exv10w5



 







EXHIBIT 10.5




APNs: 162-04-710-025 through 032, inclusive,

162-04-710-035 through 040, inclusive,

162-04-710-056 through 059, inclusive,

162-03-411-003, 162-03-410-001 through 004, inclusive,




When Recorded Return To:




Matthew Weidner, Esq.

Latham & Watkins LLP

885 Third Avenue, Suite 1000

New York, New York 10022-4834




Mail Property Tax Statements to:




Stratosphere Corporation

Accounts Payable

2000 Las Vegas Boulevard South

Las Vegas, Nevada 89104




FIRST MODIFICATION TO

DEED OF TRUST, ASSIGNMENT OF

RENTS AND LEASES, SECURITY AGREEMENT AND

FIXTURE FILING




MADE BY




STRATOSPHERE LAND CORPORATION

as TRUSTOR,




to




LAWYERS TITLE OF NEVADA,

as Trustee,

for the benefit of




BEAR STEARNS CORPORATE LENDING INC.,

in its capacity as Administrative Agent, for the benefit of the Secured Parties,

as Beneficiary




Relating to Premises in:




Clark County, Nevada




DATED:
As of May 9, 2006




Maximum Amount of Indebtedness

Secured Hereby is $60,000,000




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FIRST MODIFICATION TO

DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,

SECURITY AGREEMENT AND FIXTURE FILING




          THIS FIRST MODIFICATION TO DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT
AND FIXTURE FILING (“Modification Agreement”) is
made as of May 9, 2006, by STRATOSPHERE
LAND CORPORATION, a Nevada corporation, whose address is 2000 Las Vegas Boulevard South, Las Vegas,
Nevada 89104 (together with all successors and assigns of the Trust Estate, “Trustor”), to
LAWYERS TITLE OF NEVADA, whose address is 1210 S. Valley View Boulevard, Las Vegas, Nevada 90102,
as trustee (“Trustee”), for the benefit of BEAR STEARNS CORPORATE LENDING INC.,
(“Beneficiary”), whose address is 383 Madison Avenue, 8th floor, New York, New
York 10179, in its capacity as administrative agent (together with its substitutes, successors and
assignees in such capacity, the “Administrative Agent”) under the Credit Agreement (as
defined below), for the benefit of the Secured Parties.




RECITALS




          WHEREAS, Trustor has entered into an Amended and Restated Credit Agreement dated as of the
date hereof, by and among the American Casino & Entertainment Properties LLC, a Delaware limited
liability company (“ACEP”), certain Subsidiaries of ACEP, the several banks and other
financial institutions or entities from time to time party thereto (the “Lenders”), Bear
Stearns Corporate Lending Inc., as syndication agent (in such capacity and together with its
successors, substitutes and assigns in such capacity, the “Syndication Agent”), Bear,
Stearns & Co. Inc., as sole lead arranger and sole bookrunner (in such capacities, and together
with its successors, substitutes and assigns in each such capacity, the “Lead Arranger”),
and the Administrative Agent (hereinafter the “First Amendment”), which amends, modifies
and supplements that certain Credit Agreement, dated as of January 29, 2004, by and among ACEP,
certain Subsidiaries of ACEP, certain banks and other financial institutions (the “Existing
Lenders”), Bear Stearns & Co. Inc., as Sole Lead Arranger and Sole Bookrunner, Bear Stearns
Corporate Lending Inc., as Syndication Agent and Bear Stearns Corporate Lending Inc. as
Administrative Agent (the “Original Credit Agreement”, as amended by the First Amendment
and as further amended, supplemented or modified from time to time, the “Credit
Agreement”); capitalized terms used herein but not otherwise defined shall have the meaning set
forth for such terms in the Credit Agreement;




          WHEREAS, in connection with the execution and delivery of the Original Credit Agreement,
Trustor entered into that certain Deed of Trust, Assignment of Rents and Leases, Security Agreement
and Fixture Filing (the “Original Deed of Trust”) dated as of May 26, 2004 and recorded May
26, 2004 as Instrument Number 20040526-04506 among the official records of Clark County, Nevada,
granting to Trustee for the benefit of the Beneficiary a security interest in that certain real
property located in the County of Clark and State of Nevada (the “State”), more
particularly described in Schedule A attached to the Original Deed of Trust, and described
in Schedule A attached to this Modification Agreement;




          WHEREAS, pursuant to the First Amendment, certain of the Existing Lenders and other parties
hereto agreed, among other things, to increase the amount of certain loans




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available to ACEP (the
“Loans”) such that the aggregate principal amount of the Loans is not to exceed at any time Sixty
Million and No/100 Dollars ($60,000,000.00);




          WHEREAS, pursuant to the First Amendment, certain of the Existing Lenders and other parties
hereto agreed, among other things, to amend certain interest rates applicable to the Loans and to
extend the Termination Date to the fourth anniversary of the Restatement Date;




          WHEREAS, pursuant to the Credit Agreement, Trustor has guaranteed the obligations of ACEP
under the Credit Documents;




          WHEREAS, all obligations of Trustor to the Secured Parties under the Bank Guarantee are to be
secured, in part, by the Trust Estate pursuant to this Deed of Trust in accordance with the terms
hereof;




          WHEREAS, it is a condition precedent to the availability of funds under the Credit Agreement
and a covenant under the Credit Agreement that Trustor shall have executed and delivered this Deed
of Trust to Beneficiary;




          WHEREAS, ACEP is the parent of Trustor;




          WHEREAS, ACEP and Trustor are engaged in related businesses, and Trustor will derive
substantial direct and indirect benefit from the availability of funds under the Credit Agreement;
and




          WHEREAS, Trustor and Beneficiary desire to modify the Original Deed of Trust pursuant to the
terms of this Modification Agreement, to give notice that the Original Deed of Trust, as modified
hereby, secures all of the Obligations under the Credit Agreement and the other Loan Documents (as
such term is defined in the Credit Agreement), including without limitation the increase in the
Secured Indebtedness, including the Loans, pursuant to the First Amendment.




AGREEMENT




          NOW, THEREFORE, in consideration of the foregoing and the payment of Ten Dollars ($10.00) and
other good and valuable consideration the receipt and legal sufficiency of which is hereby
acknowledged, the parties hereto agree and give notice as follows:




          1. All of the foregoing recitals are acknowledged by Trustor as being true and correct and
shall be deemed incorporated by reference herein. Trustor hereby acknowledges and agrees that the
Original Deed of Trust, as amended and modified hereby, secures the Obligations under the Credit
Agreement, the amount of which Obligations is being increased pursuant to the First Amendment as
set forth in paragraph 2 below. From and after the date hereof, all references in the Original
Deed of Trust to the “Credit Agreement” shall mean the Credit Agreement as defined herein. From
and after the date hereof, all references in the Original Deed of Trust to the “Loans” shall mean
the Loans as increased by the terms of the First Amendment. From and after the date hereof, all
references in the Original Deed of Trust to the “Obligations” shall mean the Obligations as
increased by the terms of the First Amendment.




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          2. The Original Deed of Trust is hereby amended to increase the aggregate principal amount of
the Loans secured thereby from $20,000,000.00 to $60,000,000.00.




          3. The Original Deed of Trust, as amended and modified by this Modification Agreement (the
“Deed of Trust”), cannot be further altered, amended, modified, terminated, waived,
released or discharged except in a writing signed by the parties hereto or their respective
successors or assigns. Any future amendment or modification of the Loan Documents (as defined in
the Original Credit Agreement) or the Obligations (as defined in the Deed of Trust) may or may not
be recorded. All holders of any interest or claim that affects all or any portion of the Land (as
defined in the Deed of Trust) or any estate or interest therein, which interest or claim is
recorded after the date the Deed of Trust was originally recorded or that is otherwise or is
intended to be junior and subordinate to the lien of the Deed of Trust (collectively, “Junior
Lien Claimants”), are hereby placed on notice of the possibility that the Loan Documents or the
Obligations may be amended but any such amendment may or may not be placed of record. Any such
amendment shall be fully effective whether or not recorded, without thereby impairing or reducing
the priority of the lien of the Deed of Trust or constituting a novation. Junior Lien Claimants
should not assume they will be notified of any amendment of the Loan Documents or of the
Obligations that occur before or after the recording of their lien. By accepting their interest in
the Land, Junior Lien Claimants acknowledge and consent to the foregoing.




          4. As modified herein, the terms of the Original Deed of Trust shall continue in full force
and effect. Notwithstanding anything to the contrary contained in this Modification Agreement, if
at any time it is determined that the lien, validity or security of the Deed of Trust is impaired
or subordinated as a result of the modifications contemplated hereby (the “Modifications”),
then the Original Deed of Trust shall be construed as if such Modifications had never taken place
and the original terms of the Original Deed of Trust as unmodified hereby shall continue in full
force and effect and the Deed of Trust shall maintain all legal or equitable priorities which were
in existence before the date of execution of this Modification Agreement. It is understood by and
is the intention of the parties hereto that any legal or equitable priorities of the Deed of Trust
over any party which were in existence before the date of execution of this Modification Agreement
shall remain in effect after the execution of this Modification Agreement. Neither this
Modification Agreement nor the transactions pursuant to the First Amendment shall be deemed to
constitute a novation or to extinguish any of the Obligations secured by the Original Deed of
Trust.




          5. This Modification Agreement may be executed in any number of counterparts, and all such
counterparts shall together constitute the same agreement.




          6. THIS MODIFICATION AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEVADA.




[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]




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          IN
WITNESS WHEREOF, Trustor has duly signed and delivered this Deed of Trust as of the date first above written.




	 	 	 	 	 	 	 	 	 
	 	 	FRESCA, LLC,
	 	 	a Nevada limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Charlie’s Holding LLC,
	 	 	 	 	a Delaware limited liability company
	 	 	 	 	its a sole member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	American Casino & Entertainment Properties LLC,
	 	 	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	 	 	it’s a sole member
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BEAR STEARNS CORPORATE LENDING INC.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 





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	STATE OF

	 	                    )
	 	 
	 

	 	 	 	)	 	SS
	COUNTY OF

	 	                    )
	 	 






          On                      ___2006, before me, the undersigned, a Notary Public in and for said State
personally appeared                     known to me to be the                     of FRESCA, LLC, a Nevada
limited liability company, and acknowledged to me that such individual executed the within
instrument on behalf of said limited liability company.




          WITNESS my hand and official seal.




	 	 	 
	 
	 	 
	 	 	 
	 
	 	 
	 
	 	Notary Public in and for
	 
	 	said County and State






[SEAL]




	 	 	 	 	 	 	 
	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY OF

	 	 	)	 	 	 






          On                      ___, 2006, before me, the undersigned, a Notary Public in and for said State
personally appeared                      known to me to be the                      of BEAR STEARNS CORPORATE
LENDING INC. and acknowledged to me that such individual executed the within instrument on behalf
of said limited liability company.




          WITNESS my hand and official seal.




	 	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	Notary Public in and for
	 

	 	said County and State






[SEAL]




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