collectively, as Borrower
as Initial Lender
as Collateral Agent,
as Administrative Agent
Page | ||||
DEFINITIONS | 7 | |||
ARTICLE I | ||||
GENERAL TERMS | ||||
Section 1.1. The Loan | 42 | |||
Section 1.2. The Term | 42 | |||
Section 1.3. Interest and Principal | 42 | |||
Section 1.4. Determination of Interest Rate | 43 | |||
Section 1.5. Interest Rate Cap Agreements | 44 | |||
Section 1.6. Method and Place of Payment | 45 | |||
Section 1.7. Regulatory Change | 45 | |||
Section 1.8. Taxes | 46 | |||
Section 1.9. Release | 47 | |||
ARTICLE II | ||||
VOLUNTARY PREPAYMENT; ASSUMPTION | ||||
Section 2.1. Voluntary Prepayment | 48 | |||
Section 2.2. Property Releases | 50 | |||
Section 2.3. Prepayments after Default | 52 | |||
Section 2.4. Release of Individual Parcels | 53 | |||
Section 2.5. Release of Second Floor Space | 55 | |||
Section 2.6. Assumption | 57 | |||
ARTICLE III | ||||
ACCOUNTS | ||||
Section 3.1. Cash Management Account | 60 | |||
Section 3.2. Distributions from Cash Management Account | 61 | |||
Section 3.3. Loss Proceeds Account | 63 | |||
Section 3.4. Taxes and Insurance Escrow Account | 63 | |||
Section 3.5. Surplus Cash Amortization Reserve Account | 64 | |||
Section 3.6. FF&E Reserve Account | 65 | |||
Section 3.7. Deferred Maintenance and Environmental Escrow Account | 66 | |||
Section 3.8. Capital Expenditure Escrow Account | 68 | |||
Section 3.9. Excess Cash Flow Reserve Account | 70 | |||
Section 3.10. Account Collateral | 71 | |||
Section 3.11. Permitted Investments | 71 | |||
Section 3.12. Bankruptcy | 72 | |||
Section 3.13. Delivery of Documents | 72 |
1
Page | ||||
ARTICLE IV | ||||
REPRESENTATIONS | ||||
Section 4.1. Organization | 73 | |||
Section 4.2. Authorization | 74 | |||
Section 4.3. No Conflicts | 74 | |||
Section 4.4. Consents | 74 | |||
Section 4.5. Enforceable Obligations | 74 | |||
Section 4.6. No Default | 74 | |||
Section 4.7. Payment of Taxes | 74 | |||
Section 4.8. Compliance with Law | 75 | |||
Section 4.9. ERISA | 75 | |||
Section 4.10. Government Regulation | 75 | |||
Section 4.11. No Bankruptcy Filing | 75 | |||
Section 4.12. Other Debt | 76 | |||
Section 4.13. Litigation | 76 | |||
Section 4.14. Major Leases; Material Agreements | 76 | |||
Section 4.15. Full and Accurate Disclosure | 77 | |||
Section 4.16. Financial Condition | 77 | |||
Section 4.17. Single-Purpose Requirements | 77 | |||
Section 4.18. Location of Chief Executive Offices | 77 | |||
Section 4.19. Not Foreign Person | 77 | |||
Section 4.20. Labor Matters | 77 | |||
Section 4.21. Title | 77 | |||
Section 4.22. No Encroachments | 78 | |||
Section 4.23. Physical Condition | 78 | |||
Section 4.24. Fraudulent Conveyance | 79 | |||
Section 4.25. Management | 79 | |||
Section 4.26. Condemnation | 79 | |||
Section 4.27. Utilities and Public Access | 79 | |||
Section 4.28. Environmental Matters | 80 | |||
Section 4.29. Assessments | 80 | |||
Section 4.30. No Joint Assessment | 81 | |||
Section 4.31. Separate Lots | 81 | |||
Section 4.32. Permits; Certificate of Occupancy | 81 | |||
Section 4.33. Flood Zone | 81 | |||
Section 4.34. Security Deposits | 81 | |||
Section 4.35. Intentionally Omitted | 81 | |||
Section 4.36. Insurance | 81 | |||
Section 4.38. Trade Name; Other Intellectual Property | 82 | |||
Section 4.39. Embargoed Person | 83 | |||
Section 4.40. REAs | 83 | |||
Section 4.41. Survival | 83 | �� | ||
Section 4.42. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws | 83 | |||
ARTICLE V | ||||
AFFIRMATIVE COVENANTS | ||||
Section 5.1. Existence | 84 | |||
Section 5.2. Maintenance of Property | 84 |
2
Page | ||||
Section 5.3. Compliance with Legal Requirements | 84 | |||
Section 5.4. Impositions and Other Claims | 85 | |||
Section 5.5. Access to Properties | 85 | |||
Section 5.6. Cooperate in Legal Proceedings | 85 | |||
Section 5.7. Leases | 86 | |||
Section 5.8. Plan Assets, etc. | 88 | |||
Section 5.9. Further Assurances | 88 | |||
Section 5.10. Management of Collateral | 88 | |||
Section 5.11. Certain Notices and Reports | 90 | |||
Section 5.12. Annual Financial Statements | 90 | |||
Section 5.13. Quarterly Financial Statements | 90 | |||
Section 5.14. Monthly Financial Statements | 91 | |||
Section 5.15. Insurance | 92 | |||
Section 5.16. Casualty and Condemnation | 96 | |||
Section 5.17. Annual Budget | 99 | |||
Section 5.19. General Indemnity | 99 | |||
Section 5.20. Intentionally Omitted | 100 | |||
Section 5.21. Intentionally Omitted | 101 | |||
Section 5.22. REA Covenants | 101 | |||
Section 5.23. Property Agreement Covenants | 102 | |||
Section 5.24. Equity Contribution Account | 102 | |||
Section 5.25. Gaming Approvals | 103 | |||
ARTICLE VI | ||||
NEGATIVE COVENANTS | ||||
Section 6.1. Liens on the Properties | 103 | |||
Section 6.2. Ownership | 103 | |||
Section 6.3. Transfer | 103 | |||
Section 6.4. Debt | 104 | |||
Section 6.5. Dissolution; Merger or Consolidation | 105 | |||
Section 6.6. Change In Business | 105 | |||
Section 6.7. Debt Cancellation | 105 | |||
Section 6.8. Affiliate Transactions | 105 | |||
Section 6.9. Misapplication of Funds | 105 | |||
Section 6.10. Place of Business | 105 | |||
Section 6.11. Modifications and Waivers | 105 | |||
Section 6.12. ERISA | 106 | |||
Section 6.13. Alterations and Expansions | 106 | |||
Section 6.14. Advances and Investments | 107 | |||
Section 6.15. Single-Purpose Entity | 107 | |||
Section 6.16. Zoning and Uses | 107 | |||
Section 6.17. Waste | 108 | |||
Section 6.18. Intentionally Omitted | 108 | |||
Section 6.19. Distributions | 108 | |||
Section 6.20. Financial Covenants | 108 |
3
Page | ||||
ARTICLE VII | ||||
DEFAULTS | ||||
Section 7.1. Event of Default | 108 | |||
Section 7.2. Remedies | 113 | |||
Section 7.3. No Waiver | 114 | |||
Section 7.4. Application of Payments after an Event of Default | 114 | |||
ARTICLE VIII | ||||
CONDITIONS PRECEDENT | ||||
Section 8.1. Conditions Precedent to Closing | 114 | |||
ARTICLE IX | ||||
MISCELLANEOUS | ||||
Section 9.1. Successors | 116 | |||
Section 9.2. Governing Law | 116 | |||
Section 9.3. Modification, Waiver in Writing | 117 | |||
Section 9.4. Notices | 118 | |||
Section 9.5. Trial By Jury | 120 | |||
Section 9.6. Headings | 120 | |||
Section 9.7. Assignment and Participation | 120 | |||
Section 9.8. Severability | 123 | |||
Section 9.9. Preferences | 123 | |||
Section 9.10. [Intentionally Omitted] | 123 | |||
Section 9.11. Offsets, Counterclaims and Defenses | 123 | |||
Section 9.12. No Joint Venture | 124 | |||
Section 9.13. Conflict; Construction of Documents | 124 | |||
Section 9.14. Brokers and Financial Advisors | 124 | |||
Section 9.15. Counterparts | 124 | |||
Section 9.16. Estoppel Certificates | 124 | |||
Section 9.17. Payment of Expenses; Mortgage Recording Taxes | 124 | |||
Section 9.18. No Third-Party Beneficiaries | 125 | |||
Section 9.19. Recourse | 126 | |||
Section 9.20. Right of Set-Off | 127 | |||
Section 9.21. Exculpation of Lender | 127 | |||
Section 9.22. Servicer | 128 | |||
Section 9.23. Prior Agreements | 128 | |||
Section 9.24. Purchase of Loan by Sponsor | 128 | |||
Section 9.25. No Fiduciary Duty | 130 | |||
Section 9.26. Confidentiality | 130 | |||
Section 9.27. Patriot Act Records | 131 | |||
ARTICLE X | ||||
AGENTS | ||||
Section 10.1. Appointment | 131 | |||
Section 10.2. Delegation of Duties | 133 | |||
Section 10.3. Exculpatory Provisions | 133 |
4
Page | ||||
Section 10.4. Reliance by Agents | 133 | |||
Section 10.5. Credit Decision | 134 | |||
Section 10.6. Non-Reliance on Agents | 134 | |||
Section 10.7. Indemnification | 135 | |||
Section 10.8. Agents in Their Individual Capacity | 136 | |||
Section 10.9. Successor Agents | 136 | |||
Section 10.10. Standard of Care of the Collateral Agent; etc. | 137 | |||
Section 10.11. Standard of Care of the Administrative Agent; etc. | 138 | |||
Section 10.10 Electronic Communication | 139 | |||
Section 10.13 Actions by the Collateral Agent and the Administrative Agent | 140 | |||
Section 10.14 Payment of Expenses and Indemnity | 141 | |||
Section 10.15 Marshalling | 142 |
5
A | Form of Cash Management Agreement | |
B | Second Floor Space | |
C | Form of Subordination, Non-Disturbance and Attornment Agreement | |
D | Form of Subordination of Property Management Agreement | |
E-1 | Form of Cash Flow Analysis (Restricted Parties) | |
E-2 | Form of Cash Flow Analysis | |
F | Form of Narrative Description (Quarterly) | |
G | OpCo Pledge and Security Agreement | |
H | Form of Account Control Agreement | |
I | Form of Assignment and Assumption Agreement | |
J | Form of Debt to EBITDA Certificate | |
K | Holdings LLC Agreement | |
L | Disbursement Instructions |
A | Properties | |
A-1 Stratosphere Hotel & Casino | ||
A-2 Aquarius Casino | ||
A-3 Arizona Charlie’s Decatur | ||
A-4 Arizona Charlie’s Boulder | ||
B | Exception Report | |
C | Liquor Licenses | |
D | Material Agreements | |
E-1 | Allocated Loan Amounts | |
E-2 | Groupings for Release Parcels | |
F | [Intentionally Omitted] | |
G | Organizational Chart | |
H | Competitor Assignees | |
I | [Intentionally Omitted] | |
J | [Intentionally Omitted] | |
K | Approved Property Managers | |
L | Gaming Licenses | |
M | Intellectual Property | |
N | Approved Cash Management Banks |
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then-current Appraisal of such Property reasonably acceptable to the Administrative Agent.
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6011 Connection Drive, Suite 550
Irving, Texas 75039
Attention: Michael Forbes
Facsimile: (972) 368-3499
and:
85 Broad Street, 11th Floor
New York, New York 10004
Attention: Richard Case and Mark Buono
Facsimile: (212) 346-3594
Telephone: (212) 902-3824
118
One Liberty Plaza
New York, New York 10006
Attention: Michael Weinberger, Esq.
Facsimile: (212) 225-3999
Telephone: (212) 225-2092
If to subsequent Lender, to the respective address set forth in the register
described in Section 9.7(b).
c/o Whitehall Street Global Real Estate Limited Partnership 2007
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Whitehall Chief Financial Officer
Facsimile: (212) 357-5505
Telephone: (212) 902-1000
and
2000 Las Vegas Boulevard
Las Vegas, Nevada 89104
Attention: Chief Financial Officer
Facsimile: (702) 383-4738
Telephone: (702) 380-7777
125 Broad Street
New York, New York 10004
Attention: Anthony J. Colletta, Esq.
Facsimile: (212) 558-3588
Telephone: (212) 558-4000
600 East Las Colinas Boulevard, Suite 1900
Irving, Texas 75039
Attention: Michael Forbes
Facsimile: (972) 672-8137
Telephone: (972) 368-2200
119
45 Broadway, 14th Floor
New York, NY 10006
Attention: Julius R. Zamora
Facsimile: (866) 297-2015
Telephone: (212) 515-1570
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AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company |
W2007 ACEP FIRST MEZZANINE A BORROWER, L.P., a Delaware limited partnership |
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory |
By: W2007 ACEP FIRST MEZZANINE A GEN-PAR, L.L.C., a Delaware limited liability company, its general partner |
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory |
W2007 ACEP FIRST MEZZANINE B BORROWER, L.P., a Delaware limited partnership |
ARIZONA CHARLIE’S, LLC, a Nevada limited liability company |
By: W2007 ACEP FIRST MEZZANINE B GEN-PAR, L.L.C., a Delaware limited liability company, its general partner |
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory |
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory |
FRESCA, LLC, a Nevada limited liability company | |||
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory | ||
AQUARIUS GAMING LLC, a Nevada limited liability company | |||
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory | ||
STRATOSPHERE GAMING LLC, a Nevada limited liability company | |||
By: | /s/ Elizabeth Burban | ||
Name: | Elizabeth Burban | ||
Title: | Authorized Signatory | ||
W2007 AQUARIUS PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 AQUARIUS GEN-PAR, L.L.C., a | |||
Delaware limited liability company, its | ||||
general partner | ||||
By: | /s/ Elizabeth Burban | |||
Name: Elizabeth Burban | ||||
Title: Authorized Signatory | ||||
W2007 STRATOSPHERE LAND PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 STRATOSPHERE LAND GEN-PAR, | |||
L.L.C., a Delaware limited liability | ||||
company, its general partner | ||||
By: | /s/ Elizabeth Burban | |||
Name: Elizabeth Burban | ||||
Title: Authorized Signatory | ||||
W2007 FRESCA PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 FRESCA GEN-PAR, L.L.C., a | |||
Delaware limited liability company, its | ||||
general partner | ||||
By: | /s/ Elizabeth Burban | |||
Name: Elizabeth Burban | ||||
Title: Authorized Signatory |
W2007 STRATOSPHERE PROPCO, L.P., a | ||||
Delaware limited partnership | ||||
By: | W2007 STRATOSPHERE GEN-PAR, | |||
L.L.C., a Delaware limited liability | ||||
company, its general partner | ||||
By: | /s/ Elizabeth Burban | |||
Name: Elizabeth Burban | ||||
Title: Authorized Signatory | ||||
W2007 ARIZONA CHARLIE’S PROPCO, | ||||
L.P., a Delaware limited partnership | ||||
By: | W2007 ARIZONA CHARLIE’S GEN-PAR, | |||
L.L.C., a Delaware limited liability | ||||
company, its general partner | ||||
By: | /s/ Elizabeth Burban | |||
Name: Elizabeth Burban Title: Authorized Signatory |
ARCHON GROUP, L.P., a Delaware limited partnership | ||||
By: | /s/ Michael Forbes | |||
Name: | Michael Forbes | |||
Title: | Authorized Signatory | |||
WELLS FARGO BANK, N.A., a national banking association | ||||
By: | /s/ Julius R. Zamora | |||
Name: | Julius R. Zamora | |||
Title: | Vice President | |||
GOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership | ||||
By: | /s/ Mark J. Buono | |||
Name: | Mark J. Buono | |||
Title: | Managing Director | |||
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Note(s) and the obligations of Borrower under the other Loan Documents, a continuing, perfected first-priority security interest in and to, and a general first lien upon, (i) each of the Accounts and all of Borrower’s right, title and interest in and to all cash, property or rights transferred to or deposited in each such Account from time to time by or on behalf of Borrower, (ii) all earnings, investments and securities held in each of the Accounts, and (iii) any and all proceeds of the foregoing. This Agreement and the pledge, assignment and grant of security interest made hereby shall secure payment of all amounts payable by Borrower to
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AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC | 20-0573058 | |
STRATOSPHERE GAMING LLC | 37-1550136 | |
AQUARIUS GAMING LLC | 35-2308426 | |
ARIZONA CHARLIE’S, LLC | 90-0160341 | |
FRESCA, LLC | 88-0452576 | |
W2007 AQUARIUS PROPCO, L.P. | 26-1927652 | |
W2007 STRATOSPHERE PROPCO, L.P. | 26-1927616 | |
W2007 STRATOSPHERE LAND PROPCO, L.P. | 26-1927877 | |
W2007 ARIZONA CHARLIE’S PROPCO, L.P. | 26-1927694 | |
W2007 FRESCA PROPCO, L.P. | 26-1927850 | |
W2007 ACEP FIRST MEZZANINE A BORROWER, L.P. | 27-0187389 | |
W2007 ACEP FIRST MEZZANINE B BORROWER, L.P. | 27-0187349 |
8
600 East Las Colinas Boulevard, Suite 1900
Irving, Texas 75039
Attn: Michael Forbes
Facsimile: 972-368-3499
85 Broad Street
New York, New York 10004
Attention: Mark Buono and Richard Case
Facsimile: (212) 346-3594
One Liberty Plaza
New York, New York 10006
Attention: Michael Weinberger, Esq.
Facsimile: (212) 225-3999.
45 Broadway, 14th Floor
New York, New York 10006
Attention: Julius R. Zamora
Facsimile: 866-297-2015
9
85 Broad Street
New York, New York 10004
Attention: Mark Buono and Richard Case
Facsimile: (212) 346-3594
One Liberty Plaza
New York, New York 10006
Attention: Michael Weinberger, Esq.
Facsimile: (212) 225-3999.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Whitehall Chief Financial Officer
Facsimile: (212) 357-5505
125 Broad Street
New York, New York 10004
Attention: Anthony J. Colletta, Esq.
Facsimile: (212) 558-3588.
1320 Willow Pass Road, Suite 300
Concord, CA 94520
Attention: Cash Management
Facsimile: 866-359-5954
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AMERICAN CASINO & | ||||||
ENTERTAINMENT PROPERTIES LLC, a | ||||||
Delaware limited liability company | ||||||
By: | ||||||
Title: | ||||||
W2007 ACEP FIRST MEZZANINE B | ||||||
BORROWER, L.P., a Delaware limited | ||||||
partnership | ||||||
By: W2007 ACEP FIRST MEZZANINE | ||||||
B GEN-PAR, L.L.C., a Delaware limited | ||||||
liability company, its general partner | ||||||
By: | ||||||
Title: | ||||||
FRESCA, LLC, a Nevada limited liability | ||||||
company | ||||||
By: | ||||||
Title: | ||||||
STRATOSPHERE GAMING LLC, a Nevada limited | ||||||
liability company | ||||||
By: | ||||||
Title: |
W2007 ACEP FIRST MEZZANINE A | ||||||
BORROWER, L.P., a Delaware limited Delaware limited partnership | ||||||
By: W2007 ACEP FIRST MEZZANINE | ||||||
A GEN-PAR, L.L.C., a Delaware limited | ||||||
liability company, its general partner | ||||||
By: | ||||||
Title: | ||||||
ARIZONA CHARLIE’S, LLC, a Nevada | ||||||
limited liability company | ||||||
By: | ||||||
AQUARIUS GAMING LLC, a Nevada limited | ||||||
liability company | ||||||
By: | ||||||
Title: |
Agreement
W2007 AQUARIUS PROPCO, L.P., a Delaware | ||||||
limited partnership | ||||||
By: W2007 AQUARIUS GEN-PAR, | ||||||
L.L.C., a Delaware limited liability | ||||||
company, its general partner | ||||||
By: | ||||||
Title: | ||||||
W2007 STRATOSPHERE LAND PROPCO, | ||||||
L.P., a Delaware limited partnership | ||||||
By: W2007 STRATOSPHERE LAND | ||||||
GEN-PAR, L.L.C., a Delaware limited | ||||||
liability company, its general partner | ||||||
By: | ||||||
Title: | ||||||
W2007 FRESCA PROPCO, L.P., a Delaware limited | ||||||
partnership | ||||||
By: W2007 FRESCA GEN-PAR, L.L.C., | ||||||
a Delaware limited liability company, its | ||||||
general partner | ||||||
By: | ||||||
Title: |
W2007 STRATOSPHERE PROPCO, L.P., a | ||||||
Delaware limited partnership | ||||||
By: W2007 STRATOSPHERE GEN- | ||||||
PAR, L.L.C., a Delaware limited | ||||||
liability company, its general partner | ||||||
By: | ||||||
Title: | ||||||
W2007 ARIZONA CHARLIE’S PROPCO, L.P., a Delaware limited partnership | ||||||
By: W2007 ARIZONA CHARLIE’S | ||||||
GEN-PAR, L.L.C., a Delaware limited | ||||||
liability company, its general partner | ||||||
By: | ||||||
Agreement
WELLS FARGO BANK, N.A., a national banking association | ||||||
By: | ||||||
Title: |
Agreement
ARCHON GROUP, L.P., a Delaware limited partnership | ||||||
By: | ||||||
Name: | ||||||
Title: |
Agreement
WELLS FARGO BANK, N.A., a national banking association | ||||||
By: | ||||||
Name: | ||||||
Title: |
Agreement
GOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership | ||||||
By: | ||||||
Name: | ||||||
Title: |
Agreement
[Address]
Attention:
1 | Attach Annex I (wiring and account information). |
Agreement
2 | During the continuance of an Event of Default, in any manner as Administrative Agent on behalf of Lender may direct. |
Agreement
Agreement
1
AND SUBORDINATION OF MANAGEMENT AGREEMENT
(Mortgage)
1 | If Manager is not an Affiliate of Borrower, this Section is to be adjusted such that base management fees of no more than 2% of gross revenues are not subject to subordination under this Agreement. |
[ ]
Attention: [ ]
Facsimile: [ ]
[ ]
New York, New York 10004
Attention: Chief Financial Officer
Facsimile: (212) 357-5505
125 Broad Street
Attention: Anthony J. Colletta, Esq.
Facsimile: (212) 558-3588
[ ]
85 Broad Street
New York, New York 10004
Attention: Chief Financial Officer
Facsimile: (212) 357-5505
125 Broad Street
New York, New York 10004
Attention: Anthony J. Colletta, Esq.
Facsimile: (212) 558-3588
85 Broad Street, 11th Floor
New York, New York 10004
Attention: Jeffrey Fastov
Facsimile: (212) 346-3594
One Liberty Plaza
New York, New York 10006
Attention: Michael Weinberger, Esq.
Facsimile: (212) 225-3999
LENDER: | ||||
GOLDMAN SACHS COMEMRCIAL MORTGAGE CAPITAL, L.P. | ||||
By: | ||||
Title: |
By: | ||||
Name: | ||||
Title: | ||||
To evidence its consent to the terms, covenants and conditions contained herein: | ||||
BORROWER: (insert signature blocks as applicable) | ||||
[ ], a | ||||
Delaware limited partnership | ||||
By: | ||||
Title: | ||||
LESSEE BORROWER: (insert signature blocks as applicable) | ||||
[ ], a [ ] | ||||
By: | ||||
Name: | ||||
Title: |
Form of Cash Flow Analysis (Restricted Parties)
Actual | Budget | Prior Year | ||||||||||
Hotel | ||||||||||||
Total Room Inventory1 | ||||||||||||
Total Occupied Rooms | ||||||||||||
Occupancy %1 | ||||||||||||
REVPAR1 | ||||||||||||
ADR1 |
Actual | Budget | Prior Year | ||||
Revenues | ||||||
Gross Casino Win | ||||||
Net Casino Win | ||||||
Other Revenue | ||||||
Rooms1 | ||||||
Food1 | ||||||
Beverage1 | ||||||
F&B Other1 | ||||||
Entertainment1 | ||||||
Retail1 | ||||||
Tower1 | ||||||
RV Park1 | ||||||
Other1 | ||||||
Total | ||||||
Gross Revenue1 | ||||||
Less Complimentaries1 | ||||||
Net Revenue | ||||||
Cost of Sales | ||||||
Total | ||||||
Expenses | ||||||
Total Pay Roll1 | ||||||
Bad Debt (Casino)1 | ||||||
Gaming Tax1 | ||||||
Promotional Expense1 | ||||||
Marketing/Advertising1 | ||||||
Property Operations1 | ||||||
R&M Expense1 | ||||||
Utilities Costs1 | ||||||
Contract Entertainment1 | ||||||
Allocated Operating Expenses1 | ||||||
Highgate Management Fees1 | ||||||
All Other Expenses1 | ||||||
Total Expenses | ||||||
Total Costs & Expenses | ||||||
EBITDA | ||||||
Operating Margin1 | ||||||
Corporate Allocations1 | ||||||
EBITDA After Allocations | ||||||
FF&E Reserve1 | ||||||
Net Cash Flow |
Actual | Budget | Prior Year | ||||||||||
Revenues | ||||||||||||
Casino Win | ||||||||||||
Table Games1 | ||||||||||||
Slots1 | ||||||||||||
Other Casino (Bingo, Keno, R&S, Poker)1 | ||||||||||||
Gross Casino Win | ||||||||||||
Less: Discounts1 | ||||||||||||
Less: Progressive/ Participations 1 | ||||||||||||
Net Casino Win | ||||||||||||
Other Revenue | ||||||||||||
Rooms1 | ||||||||||||
Food1 | ||||||||||||
Beverage1 | ||||||||||||
F&B Other1 | ||||||||||||
Entertainment1 | ||||||||||||
Retail1 | ||||||||||||
Tower1 | ||||||||||||
RV Park1 | ||||||||||||
Other1 | ||||||||||||
Total | ||||||||||||
Gross Revenue1 | ||||||||||||
Less Complimentaries1 | ||||||||||||
Net Revenue | ||||||||||||
Cost of Sales | ||||||||||||
Cost of Food1 | ||||||||||||
Cost of Beverage1 | ||||||||||||
Other / Rebates1 | ||||||||||||
Total | ||||||||||||
Expenses | ||||||||||||
Total Pay Roll1 | ||||||||||||
Bad Debt (Casino)1 | ||||||||||||
Gaming Taxi1 | ||||||||||||
Promotional Expense1 | ||||||||||||
Marketing / Advertising 1 | ||||||||||||
Property Operations1 | ||||||||||||
R&M Expense1 | ||||||||||||
Utilities Costs1 | ||||||||||||
Contract Entertainment1 | ||||||||||||
Allocated Operating Expenses1 | ||||||||||||
Highgate Management Fees1 | ||||||||||||
All Other Expenses1 | ||||||||||||
Total Expenses | ||||||||||||
Total Costs & Expenses | ||||||||||||
EBITDA | ||||||||||||
Operating Margin1 | ||||||||||||
Corporate Allocations1 | ||||||||||||
EBITDA After Allocations | ||||||||||||
FF&E Reserve1 | ||||||||||||
Net Cash Flow |
Actual | Budget | Prior Year | ||||||||||
Revenue Analysis | ||||||||||||
Casino | ||||||||||||
# Tables | ||||||||||||
Total Drop1 | ||||||||||||
Drop / Occupied Room1 | ||||||||||||
Average Daily Drop1 | ||||||||||||
Average Daily Table Win1 | ||||||||||||
Table W/U/D1 | ||||||||||||
Table Win %1 | ||||||||||||
# Slots | ||||||||||||
Total Handle1 | ||||||||||||
Handle / Occupied Room1 | ||||||||||||
Average Daily Handle1 | ||||||||||||
Average Daily Slot Win1 | ||||||||||||
Slot H/U/D1 | ||||||||||||
Slot W/U/D1 | ||||||||||||
Slot Win %1 | ||||||||||||
Net of Slot Freeplay, Promo Cash, Pts Redeemed and WAP/Progressive Fees | ||||||||||||
Average Daily Slot Win1 | ||||||||||||
W/U/D1 | ||||||||||||
Win %1 | ||||||||||||
Hotel | ||||||||||||
Total Room Inventory1 | ||||||||||||
Total Occupied Rooms | ||||||||||||
Occupancy %1 | ||||||||||||
REVPAR1 | ||||||||||||
ADR1 |
Actual | Budget | Prior Year | ||||
Market Mix % | ||||||
FIT | ||||||
Casino | ||||||
DMO | ||||||
Wholesale | ||||||
Wholesale Internet | ||||||
Tour & Travel | ||||||
Convention | ||||||
ACEP Internet | ||||||
Packages | ||||||
Wholesale Opaque | ||||||
BAR | ||||||
Consolidated | ||||||
Wholesale Non-Opaque | ||||||
Administrative | ||||||
Market Mix Rms Occ | ||||||
FIT | ||||||
Casino | ||||||
DMO | ||||||
Wholesale | ||||||
Wholesale Internet | ||||||
Tour & Travel | ||||||
Convention | ||||||
ACEP Internet | ||||||
Packages | ||||||
Wholesale Opaque | ||||||
BAR | ||||||
Consolidated | ||||||
Wholesale Non-Opaque | ||||||
Administrative | ||||||
Market Mix ADR | ||||||
FIT | ||||||
Casino | ||||||
DMO | ||||||
Wholesale | ||||||
Wholesale Internet | ||||||
Tour & Travel | ||||||
Convention | ||||||
ACEP Internet | ||||||
Packages | ||||||
Wholesale Opaque | ||||||
BAR | ||||||
Consolidated | ||||||
Wholesale Non-Opaque | ||||||
Administrative |
Ø | Quarterly financials similar to the Monthly Reporting format containing a comparison of actual financials year-over-year and quarter-over-quarter and year-to-date | ||
Ø | Quarterly financials similar to the Monthly Reporting format containing a comparison to budget for the year and quarter | ||
Ø | Quarterly financials similar to the Monthly Reporting format for the year-to-date | ||
Ø | Report detailing material variations from the Approved Annual Budget | ||
Ø | Update on the business plan with focus on approved, material activities and capital expenditure initiatives which are expected to exceed $750,000 in total cost (or savings), as well as Material Alterations as defined in the loan agreement, (i.e. the Borrower will not be required to report on strategies or initiatives not yet in progress or approved by the Board). | ||
Ø |
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1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the indebtedness of the Loan and other amounts due under this Agreement, the Loan Agreement, the Note, or the other Loan Documents or to require that all of the Pledged Collateral shall continue to secure the Obligations.
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PLEDGOR: | ||||||||||
AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company | STRATOSPHERE LLC, a Delaware limited liability company | |||||||||
By: | By: | |||||||||
Name: | Name: | |||||||||
Title: | Title: | |||||||||
CHARLIE’S HOLDING, LLC, a Delaware limited liability company | ||||||||||
By: | ||||||||||
Name: | ||||||||||
Title: |
Percentage of Class | ||||||||
Certificate | Represented by | |||||||
Issuer | Class of Interest | No. | Equity Interests | |||||
Limited | ||||||||
Stratosphere Gaming LLC | Liability | [ ] | 100 | % | ||||
Company | ||||||||
Limited | ||||||||
Aquarius Gaming LLC | Liability | [ ] | 100 | % | ||||
Company | ||||||||
Limited | ||||||||
Arizona Charlie’s, LLC | Liability | [ ] | 100 | % | ||||
Company | ||||||||
Limited | ||||||||
Fresca, LLC | Liability | [ ] | 100 | % | ||||
Company |
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ISSUER: | ||||||||||
STRATOSPHERE GAMING LLC, a Nevada limited liability company | AQUARIUS GAMING LLC, a Nevada limited liability company | |||||||||
By: | By: | |||||||||
Name: | Name: | |||||||||
Title: | Title: | |||||||||
ARIZONA CHARLIE’S, LLC, a Nevada limited liability company | FRESCA, LLC, a Nevada limited liability company | |||||||||
By: | By: | |||||||||
Name: | Name: | |||||||||
Title: | Title: |
ACCOUNT CONTROL AGREEMENT
1. | Secured Party’s Interest in Restricted Accounts and Securities Accounts.Lender represents that it has appointed Secured Party as the agent for Lender. Company hereby confirms, and Bank hereby acknowledges, the security interest granted by Company to Secured Party in all of Company’s right, title and interest in and to (i) the Restricted Accounts and all funds now or hereafter on deposit in or payable or withdrawable from the Restricted Accounts (the“Restricted Account Funds”), and (ii) the Securities Accounts and all financial assets, security entitlements, investment property, and other property and the proceeds thereof now or at any time hereafter held in the Securities Accounts (the“Securities Account Assets”). (As used herein, the terms “investment property,” “financial asset”, “entitlement order” and “security entitlement” shall have the respective meanings set forth in the Uniform Commercial Code of the state whose law governs this Agreement. The parties hereby expressly agree that all property, including without limitation, cash, certificates of deposit and mutual funds, at any time held in any of the Securities Accounts is to be treated as a “financial asset”.) Except as specifically provided otherwise in this Agreement, Company has given Secured Party complete control over the Restricted Accounts, the Restricted Account Funds, the Securities Accounts, and the Securities Account Assets. Company and Secured |
1
Party desire to enter into this Agreement to further the arrangements among Bank, Secured Party and Company regarding the Restricted Accounts and the Securities Accounts. | ||
2. | Access to Restricted Accounts and Securities Accounts.Secured Party agrees that until Bank receives, and has had a reasonable opportunity to act upon, written instructions from Secured Party directing that Company no longer have access to any Restricted Account Funds or Securities Account Assets (the“Instructions”), Company will be allowed sole and exclusive access to the Restricted Account Funds, and access to the Securities Account Assets through redemption of Securities Account Assets and transfer of the proceeds of such redemption in each case to the applicable Restricted Account. After Bank receives the Instructions, (a) Company will no longer be allowed access to the Restricted Account Funds or Securities Account Assets, and (b) Administrative Agent (as directed by Required Lenders) on behalf of Secured Party will have the exclusive right to direct the disposition of all Restricted Account Funds and Securities Account Assets; and Bank agrees to transfer the Restricted Account Funds and Securities Account Assets to Secured Party or its designee in accordance with the provisions of Section 4 below, subject to the conditions set forth in this Agreement. Company agrees that the Restricted Account Funds and Securities Account Assets should be paid and/or delivered to Secured Party after Bank receives the Instructions, and hereby irrevocably authorizes Bank to comply with the Instructions even if Company objects in any way to the Instructions. | |
3. | Balance Reports.Bank agrees, at the telephone request of Administrative Agent (as directed by Required Lenders) on behalf of Secured Party on any day on which Bank is open to conduct its regular banking business other than a Saturday, Sunday or public holiday (a“Business Day”), to make available to Administrative Agent or its designee a report(“Balance Report”)showing the available balance in the Restricted Accounts and Securities Accounts as of the beginning of such Business Day, either on-line or by facsimile transmission, at Bank’s option. Company expressly consents to this transmission of information. | |
4. | Transfers to Secured Party.Subject to the terms of that certain loan agreement of even date herewith by and among Lender, Administrative Agent, Secured Party as “Collateral Agent” thereunder, and Company as “Borrower” thereunder (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), Bank agrees that on each Business Day after it receives the Instructions it will transfer to such account as Administrative Agent on behalf of Secured Party specifies in the Instructions (the“Secured Party Account”) the full amount of the available balance in the Restricted Accounts at the beginning of such Business Day, including all Restricted Account Funds and Securities Account Assets in all Offshore Accounts or Securities Accounts linked to the Restricted Accounts. Bank will use the Fedwire system to make each funds transfer unless for any reason the Fedwire system is unavailable, in which case Bank will determine the funds transfer system to be used in making each funds transfer, and the means by which each transfer will be made. Bank, Secured Party and Company each agree that Bank will, without further consent of Company, comply with (i) instructions given to Bank by Administrative Agent (as directed by Required Lenders) or its designee directing disposition of funds in the Restricted Accounts, and (ii) entitlement orders originated by Administrative Agent (as directed by Required Lenders) or its designee directing disposition of Securities Account Assets in the Securities Accounts, subject otherwise to the terms of this Agreement and Bank’s standard policies, procedures and documentation in effect from time to time governing the type of disposition requested. Except as otherwise required by law, Bank will not agree with any third party to comply with instructions or entitlement orders originated by such third party (unless pursuant to written authorization from Administrative Agent, as directed by Required Lenders) for disposition of Restricted Account Funds in any of the Restricted Accounts or Securities Account Assets in any of the Securities Accounts. | |
5. | Returned Items.Secured Party and Company understand and agree that the face amount(“Returned Item Amount”) of each Returned Item will be paid by Bank debiting the Restricted Account into which such Returned Item was originally deposited, notice of which shall be provided to Secured Party and Company. As used in this Agreement, the term “Returned Item” means (i) any item deposited to a Restricted Account and returned unpaid, whether for insufficient funds or for any other reason, |
2
and without regard to the timeliness of such return or the occurrence or timeliness of any drawee’s notice of non-payment; (ii) any item subject to a claim against Bank of breach of transfer or presentment warranty under the Uniform Commercial Code (as adopted in the applicable state) or Regulation CC (12 C.F.R. §229), as in effect from time to time; (iii) any automated clearing house (“ACH”) entry credited to a Restricted Account and returned unpaid or subject to an adjustment entry under applicable clearing house rules, whether for insufficient funds or for any other reason, and without regard to the timeliness of such return or adjustment; (iv) any credit to a Restricted Account from a merchant card transaction, against which a contractual demand for chargeback has been made; and (v) any credit to a Restricted Account made in error. Company agrees to pay all Returned Item Amounts immediately on demand, without setoff or counterclaim, to the extent there are not sufficient funds in the applicable Restricted Account to cover the Returned Item Amounts on the day they are to be debited from the Restricted Account. Upon the written request of Bank, Lender agrees to pay all Returned Item Amounts within thirty (30) calendar days after such demand, without setoff or counterclaim, to the extent that the Returned Item Amounts are not paid in full by Company within fifteen (15) calendar days after demand on Company by Bank. | ||
6. | Settlement Items.Secured Party and Company understand and agree that the face amount(“Settlement Item Amount”)of each Settlement Item will be paid by Bank debiting the applicable Restricted Account, notice of which shall be provided to Secured Party and Company. As used in this Agreement, the term “Settlement Item” means (i) each check or other payment order drawn on or payable against any controlled disbursement account or other deposit account at any time linked to a Restricted Account by a zero balance account connection (each a“Linked Account”), which Bank cashes or exchanges for a cashier’s check or official check over its counters in the ordinary course of business prior to receiving the Instructions and having had a reasonable opportunity to act on them, and which is presented for settlement against the Restricted Account (after having been presented against the Linked Account) after Bank receives the Instructions, (ii) each check or other payment order drawn on or payable against a Restricted Account, which, on the Business Day Bank receives the Instructions, Bank cashes or exchanges for a cashier’s check or official check over its counters in the ordinary course of business after Bank’s cutoff time for posting, (iii) each ACH credit entry initiated by Bank, as originating depository financial institution, on behalf of Company, as originator, prior to Bank having received the Instructions and having had a reasonable opportunity to act on them, which ACH credit entry settles after Bank receives the Instructions, and (iv) any other payment order drawn on or payable against a Restricted Account, which Bank has paid or funded prior to receiving the Instructions and having had a reasonable opportunity to act on them, and which is first presented for settlement against the Restricted Account in the ordinary course of business after Bank receives the Instructions and has transferred Restricted Account Funds to Secured Party under Section 4 of this Agreement. Company agrees to pay all Settlement Item Amounts immediately on demand, without setoff or counterclaim, to the extent there are not sufficient funds in the applicable Restricted Account to cover the Settlement Item Amounts on the day they are to be debited from the Restricted Account. Upon the written request of Bank, Secured Party agrees to pay all Settlement Item Amounts within thirty (30) calendar days after such demand, without setoff or counterclaim, to the extent that (i) the Settlement Item Amounts are not paid in full by Company within fifteen (15) calendar days after demand on Company by Bank, (ii) Secured Party has received Restricted Account Funds under Section 4 of this Agreement and (iii) such Settlement Item Amounts relate to Settlement Items issued after the date on which Secured Party has begun to receive Restricted Account Funds under Section 4. | |
7. | Bank Fees.Company agrees to pay all Bank’s fees and charges for the maintenance and administration of the Restricted Accounts and Securities Accounts and for the treasury management and other account services provided with respect to the Restricted Accounts and Securities Accounts (collectively “Bank Fees”), including, but not limited to, the fees for (a) the Balance Reports provided on the Restricted Accounts and Securities Accounts, (b) the funds transfer services received with respect to the Restricted Accounts, (c) Returned Items, (d) funds advanced to cover overdrafts in the Restricted Accounts (but without Bank being in any way obligated to make any such advances), and (e) duplicate bank statements on the Restricted Accounts. The Bank Fees will be paid by Bank debiting one or more of the Restricted Accounts on the Business Day that the Bank Fees are due, without notice to Secured Party or Company. If there are not sufficient funds in the |
3
Restricted Accounts to cover fully the Bank Fees on the Business Day they are debited from the Restricted Accounts, such shortfall or the amount of such Bank Fees will be paid by Company sending Bank a check in the amount of such shortfall or such Bank Fees, without setoff or counterclaim, within fifteen (15) calendar days after demand of Bank. In no event shall Secured Party have any obligation to pay Bank Fees, indemnification or any other amount to Bank. | ||
8. | Account Documentation.Secured Party and Company agree that, except as specifically provided in this Agreement, the Restricted Accounts and Securities Accounts will be subject to, and Bank’s operation of the Restricted Accounts and Securities Accounts will be in accordance with, the terms and provisions of (i) Bank’s Commercial Account Agreement or other deposit account agreement governing the Restricted Accounts and (ii) Bank’s Acceptance of Services, Master Agreement for Treasury Management Services, and applicable sweep option Service Description or securities account agreement governing the Offshore Accounts and Securities Accounts (collectively, the“Account Documentation”). | |
9. | Bank Statements.After Bank receives the Instructions, Bank will send to Secured Party by United States mail, at the address indicated for Secured Party after its signature to this Agreement, duplicate copies of all bank statements on the Restricted Accounts and Securities Accounts which are sent to Company. Bank’s liability for any errors is limited as provided in the “Limitation of Liability” section of this Agreement. | |
10. | Partial Subordination of Bank’s Rights.Bank hereby subordinates to the security interest of Secured Party and/or Lender in the Restricted Accounts and Securities Accounts (i) any security interest which Bank may have or acquire in the Restricted Accounts or Securities Accounts, and (ii) any right which Bank may have or acquire to set off or otherwise apply any Restricted Account Funds or Securities Account Assets against the payment of any indebtedness from time to time owing to Bank from Company, except for debits to the Restricted Accounts permitted under this Agreement for the payment of Returned Item Amounts, Settlement Item Amounts or Bank Fees. | |
11. | Bankruptcy Notice; Effect of Filing.If Bank at any time receives notice of the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Company (a“Bankruptcy Notice”), Bank will continue to comply with its obligations under this Agreement, except to the extent that any action required of Bank under this Agreement is prohibited under applicable bankruptcy laws or regulations or is stayed pursuant to the automatic stay imposed under the United States Bankruptcy Code, by order of any court or agency or by Chapter 463B of the Nevada Revised Statutes. | |
12. | Legal Process, Legal Notices and Court Orders.Bank will comply with any legal process, legal notice or court order it receives if Bank determines in its sole discretion that the legal process, legal notice or court order is legally binding on it. | |
13. | Indemnification for Following Instructions.Secured Party and Company each agree that, notwithstanding any other provision of this Agreement, Bank will not be liable to Secured Party or Company for any losses, liabilities, damages, claims (including, but not limited to, third party claims), demands, obligations, actions, suits, judgments, penalties, costs or expenses, including, but not limited to, attorneys’ fees, (collectively,“Losses and Liabilities”) suffered or incurred by Secured Party or Company as a result of or in connection with, (a) Bank complying with any binding legal process, legal notice or court order referred to in Section 12 of this Agreement, (b) Bank following any instruction or request of Administrative Agent, or (c) Bank complying with its obligations under this Agreement. Company will indemnify Bank against any Losses and Liabilities Bank may suffer or incur as a result of or in connection with any of the circumstances referred to in clauses (a) through (c) of this Section 13. | |
14. | No Representations or Warranties of Bank.Bank agrees to perform its obligations under this Agreement in a manner consistent with the quality provided when Bank performs similar |
4
services for its own account. However, Bank will not be responsible for the errors, acts or omissions of others, such as communications carriers, correspondents or clearinghouses through which Bank may perform its obligations under this Agreement or receive or transmit information in performing its obligations under this Agreement. Secured Party and Company also understand that Bank will not be responsible for any loss, liability or delay caused by wars, failures in communications networks, labor disputes, legal constraints, fires, power surges or failures, earthquakes, civil disturbances or other events beyond Bank’s control.BANK MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. | ||
15. | Limitation of Liability. Bank will not be responsible for any Losses and Liabilities due to any cause other than its own negligence or breach of this Agreement, in which case its liability to Secured Party and Company shall, unless otherwise provided by any law which cannot be varied by contract, be limited to direct money damages in an amount not to exceed ten (10) times all the Bank Fees charged or incurred during the calendar month immediately preceding the calendar month in which such Losses and Liabilities occurred (or, if no Bank Fees were charged or incurred in the preceding month, the Bank Fees charged or incurred in the month in which the Losses and Liabilities occurred). Company will indemnify Bank against all Losses and Liabilities suffered or incurred by Bank as a result of third party claims; provided, however, that to the extent such Losses and Liabilities are directly caused by Bank’s negligence or breach of this Agreement such indemnity will only apply to those Losses and Liabilities which exceed the liability limitation specified in the preceding sentence. The limitation of Bank’s liability and the indemnification by Company set out above will not be applicable to the extent any Losses and Liabilities of any party to this Agreement are directly caused by Bank’s gross negligence or willful misconduct.IN NO EVENT WILL BANK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO BANK AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM OR ACTION ALLEGING GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FAILURE TO EXERCISE REASONABLE CARE OR FAILURE TO ACT IN GOOD FAITH.Any action against Bank by Company or Secured Party (as directed by Required Lenders) under or related to this Agreement must be brought within twelve (12) months after the cause of action accrues. | |
16. | Termination.This Agreement may be terminated by Secured Party or Bank at any time by either of them giving thirty (30) calendar days prior written notice of such termination to the other parties to this Agreement at their contact addresses specified after their signatures to this Agreement; provided, however, that this Agreement may be terminated (i) twenty (20) business days following written notice from Bank to Company and Secured Party should Company or Secured Party fail to make any payment when due to Bank from Company or Secured Party under the terms of this Agreement, or (ii) immediately upon written notice from Administrative Agent to Bank upon termination or release of Secured Party’s security interest in the Restricted Accounts and Securities Accounts. Company’s and Lender’s obligation to report errors in funds transfers and bank statements and to pay Returned Items Amounts, Settlement Item Amounts, and Bank Fees, as well as the indemnifications made, and the limitations on the liability of Bank accepted, by Company and Lender under this Agreement will continue after the termination of this Agreement and/or the closure of the Restricted Accounts and/or Securities Accounts with respect to all the circumstances to which they are applicable existing or occurring before such termination or closure, and any liability of any party to this Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of such party prior to such termination or closure will also survive such termination or closure. Upon any termination of this Agreement and the Service or closure of the Restricted Accounts all available balances in the Restricted Accounts (including proceeds from redemption of all Securities Account Assets) on the date of such termination or closure will be transferred to Administrative Agent or as otherwise requested by Administrative Agent in writing to Bank. |
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17. | Modifications, Amendments, and Waivers.This Agreement may not be modified or amended, or any provision thereof waived, except in a writing signed by all the parties to this Agreement. | |
18. | Notices.All notices from one party to another shall be in writing and shall be delivered to Company, Administrative Agent, Secured Party and/or Bank at their contact addresses specified onSchedule B hereto, or any other address of any party notified to the other parties in writing, and shall be effective upon receipt. Any notice sent by a party to this Agreement to another party shall also be sent to all other parties to this Agreement. Bank is authorized by Company and Secured Party to act on any instructions or notices received by Bank if (a) such instructions or notices purport to be made on behalf of Secured Party, (b) Bank reasonably believes that they are so made, and (c) they do not conflict with the terms of this Agreement as such terms may be amended from time to time, unless such conflicting instructions or notices are supported by a court order. In furtherance of the intentions of the parties hereof, this Agreement shall constitute written notice by Secured Party to Bank and Bank’s Grand Cayman branch of Secured Party’s security interest in the Restricted Accounts and Securities Accounts. | |
19. | Successors and Assigns.Neither Company nor Secured Party may assign or transfer its rights or obligations under this Agreement to any person or entity without providing prompt written notice to the Bank, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Secured Party may transfer its rights and duties under this Agreement to (i) a transferee to which, by contract or operation of law, Secured Party transfers substantially all of its rights and duties under the financing or other arrangements between Secured Party and Company, or (ii) if Secured Party is acting as a representative in whose favor a security interest is created or provided for, a transferee that is a successor representative; provided that as between Bank and Secured Party, Secured Party will not be released from its obligations under this Agreement unless and until Bank receives any such transferee’s binding written agreement to assume all of Secured Party’s obligations hereunder. Bank may not assign or transfer its rights or obligations under this Agreement to any person or entity without the prior written consent of Secured Party, which consent will not be unreasonably withheld or delayed; provided, however, that no such consent will be required if such assignment or transfer takes place as part of a merger, acquisition or corporate reorganization affecting Bank. | |
20. | Governing Law.This Agreement shall be governed by and be construed in accordance with the laws of the state in which the office of Bank that maintains the Restricted Accounts is located, without regard to conflict of laws principles. This state shall also be deemed to be Bank’s jurisdiction, for purposes of Article 9 of the Uniform Commercial Code as it applies to this Agreement; provided, however, that all provisions regarding the rights, duties and obligations of the Secured Party shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made to be performed entirely in such State. | |
Notwithstanding anything to the contrary contained in this Agreement, the Company, Bank, Administrative Agent and Secured Party acknowledge and agree that this Agreement is intended to be an agreement between the Company, Bank, Administrative Agent and Secured Party governing the Restricted Accounts within the meaning of Section 9-304(b) (and, if applicable, Section 8-110(e)(2)) of the Uniform Commercial Code as in effect in the State of New York from time to time (the “NY UCC”) and that the State of New York shall be deemed to be the jurisdiction of Bank for purposes of any matter in respect of the Restricted Accounts relating to or arising under Section 9-304 (and, if applicable, Section 9-305) of the NY UCC. The Company, Bank, Administrative Agent and Secured Party expressly agree that the terms and conditions of any other agreement establishing the Restricted Accounts or otherwise governing the Restricted Accounts shall, to the extent inconsistent herewith, be subordinate to and controlled by this Agreement, subject to applicable Gaming Laws. | ||
21. | Severability.To the extent that the terms of this Agreement are inconsistent with, or prohibited or unenforceable under, any applicable law or regulation, they will be deemed ineffective only to the extent of such prohibition or unenforceability and be deemed modified and applied in a manner consistent with such law or regulation. Any provision of this Agreement which is deemed |
6
unenforceable or invalid in any jurisdiction shall not affect the enforceability or validity of the remaining provisions of this Agreement or the same provision in any other jurisdiction. | ||
22. | Counterparts.This Agreement may be executed in any number of counterparts each of which shall be an original with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopier or electronic image scan transmission (e.g. a “pdf file) shall be effective as delivery of a manually executed counterpart of the Agreement. | |
23. | Entire Agreement.This Agreement, together with the Account Documentation, contains the entire and only agreement among all the parties to this Agreement and between Bank and Company, and Bank and Secured Party, with respect to (a) the interest of Secured Party and the Lenders in the Restricted Accounts and Restricted Account Funds, (b) the interest of Secured Party and the Lenders in the Securities Accounts and Securities Account Assets, and (c) Bank’s obligations to Secured Party and the Lenders in connection with the Restricted Accounts and Securities Accounts. |
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AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company | ||||
By: | ||||
Name: | ||||
Title: | ||||
W2007 ACEP FIRST MEZZANINE B BORROWER, L.P., a Delaware limited partnership | ||||
By: W2007 ACEP FIRST MEZZANINE B GEN-PAR, L.L.C., a Delaware limited liability company, its general partner | ||||
By: | ||||
Name: | ||||
Title: | ||||
FRESCA, LLC, a Nevada limited liability company | ||||
By: | ||||
Name: | ||||
Title: | ||||
STRATOSPHERE GAMING LLC, a Nevada limited liability company | ||||
By: | ||||
Name: | ||||
Title: |
W2007 ACEP FIRST MEZZANINE A BORROWER, L.P., a Delaware limited partnership | ||||
By: W2007 ACEP FIRST MEZZANINE A | ||||
GEN-PAR, L.L.C., a Delaware limited liability company, its general partner | ||||
By: | ||||
Name: | ||||
Title: | ||||
ARIZONA CHARLIE’S, LLC, a Nevada limited liability company | ||||
By: | ||||
Name: Title: | ||||
AQUARIUS GAMING LLC, a Nevada limited liability company | ||||
By: | ||||
Name: | ||||
Title: |
Agreement
(Wells Fargo)
W2007 AQUARIUS PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 AQUARIUS GEN-PAR, L.L.C., a Delaware limited liability company, its general partner | |||
By: | ||||
Name: | ||||
Title: | ||||
W2007 STRATOSPHERE LAND PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 STRATOSPHERE LAND GEN- PAR, L.L.C., a Delaware limited liability company, its general partner | |||
By: | ||||
Name: | ||||
Title: | ||||
W2007 FRESCA PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 FRESCA GEN-PAR, L.L.C., a Delaware limited liability company, its general partner | |||
By: | ||||
Name: | ||||
Title: |
W2007 STRATOSPHERE PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 STRATOSPHERE GEN-PAR, L.L.C., a Delaware limited liability company, its general partner | |||
By: | ||||
Name: | ||||
Title: | ||||
W2007 ARIZONA CHARLIE’S PROPCO, L.P., a Delaware limited partnership | ||||
By: | W2007 ARIZONA CHARLIE’S GEN- PAR, L.L.C., a Delaware limited liability company, its general partner | |||
By: | ||||
Name: | ||||
Title: |
Agreement
(Wells Fargo)
WELLS FARGO BANK, N.A., a national banking association, as collateral agent | ||||
By: | ||||
Title: |
Agreement
(Wells Fargo)
WELLS FARGO BANK, N.A., a national banking association | ||||
By: | ||||
Title: |
Agreement
(Wells Fargo)
ARCHON GROUP, L.P., a Delaware limited partnership | ||||
By: | ||||
Title: |
Agreement
(Wells Fargo)
GOLDMAN SACHS COMMERCIAL MORTGAGE | ||||
CAPITAL, L.P., a Delaware limited partnership | ||||
By: | ||||
Title: |
Agreement
(Wells Fargo)
WELLS FARGO BANK. N.A. | ABA # 121-000-248 | |||
COMPANY NAME | ACCOUNT NAME | ACCOUNT NO. | ||
American Casino & Entertainment Properties, LLC | Master General Operating | 412-168-1290 | ||
American Casino & Entertainment Properties, LLC | General Operating | 410-005-9617 | ||
American Casino & Entertainment Properties, LLC | Accounts Payable | 412-180-5766 | ||
American Casino & Entertainment Properties, LLC | Payroll | 410-005-9625 | ||
Stratosphere Gaming LLC | General Operating | 412-161-3517 | ||
Stratosphere Gaming LLC | Accounts Payable | 412-161-3525 | ||
Stratosphere Gaming LLC | Payroll | 412-161-3509 | ||
Stratosphere Gaming LLC | Workers Comp | 412-161-3533 | ||
Stratosphere Gaming LLC | Cage /Jackpot | 412-161-3541 | ||
Stratosphere Gaming LLC | Visa/Mastercard | 412-161-3467 | ||
Stratosphere Gaming LLC | American Express | 412-161-3475 | ||
Stratosphere Gaming LLC | Discover | 412-161-3483 | ||
Stratosphere Gaming LLC | Debit Cards | 412-161-3491 | ||
Stratosphere Gaming LLC | Starbucks Gift Cards | 412-161-3723 | ||
Stratosphere Leasing, LLC | Leasing — General Oper | 412-161-3582 | ||
Aquarius LLC | General Operating | 412-161-3673 | ||
Aquarius LLC | Accounts Payable | 412-179-4523 | ||
Aquarius LLC | Payroll | 412-161-3608 | ||
Aquarius LLC | Workers Comp | 412-161-3616 | ||
Aquarius LLC | Cage / Jackpot | 412-161-3657 | ||
Aquarius LLC | Visa/Mastercard | 412-161-3665 | ||
Aquarius LLC | American Express | 412-161-3640 | ||
Aquarius LLC | Discover | 412-161-3632 | ||
Aquarius LLC | Debit Cards | 412-161-3681 | ||
Aquarius LLC | Starbucks Gift Cards | 412-166-0492 |
Agreement
(Wells Fargo)
WELLS FARGO BANK. N.A. | ABA # 121-000-248 | |||
COMPANY NAME | ACCOUNT NAME | ACCOUNT NO. | ||
Arizona Charlie’s LLC (Decatur) | General Operating | 410-005-8163 | ||
Arizona Charlie’s LLC (Decatur) | Accounts Payable | 412-179-4507 | ||
Arizona Charlie’s LLC (Decatur) | Payroll | 410-005-8155 | ||
Arizona Charlie’s LLC (Decatur) | Workers Comp | 410-005-8189 | ||
Arizona Charlie’s LLC (Decatur) | Cage Acct | 410-005-8171 | ||
Arizona Charlie’s LLC (Decatur) | Visa/Mastercard | 410-005-8197 | ||
Arizona Charlie’s LLC (Decatur) | American Express | 410-005-8205 | ||
Arizona Charlie’s LLC (Decatur) | Diners/Discover | 410-005-8213 | ||
Arizona Charlie’s LLC (Decatur) | Debit Cards | 412-142-4857 | ||
Fresca, LLC dba Arizona Charlie’s East | General Operating | 405-000-5669 | ||
Fresca, LLC dba Arizona Charlie’s East | Accounts Payable | 412-179-4515 | ||
Fresca, LLC dba Arizona Charlie’s East | Payroll | 412-115-0528 | ||
Fresca, LLC dba Arizona Charlie’s East | Workers Comp | 412-115-0536 | ||
Fresca, LLC dba Arizona Charlie’s East | Cage / Jackpot | 412-115-0569 | ||
Fresca, LLC dba Arizona Charlie’s East | Visa/Mastercard | 401-002-0931 | ||
Fresca, LLC dba Arizona Charlie’s East | American Express | 401-002-0949 | ||
Fresca, LLC dba Arizona Charlie’s East | Diners/Discover | 401-002-0956 | ||
Fresca, LLC dba Arizona Charlie’s East | Debit Cards | 412-142-4865 |
Agreement
(Wells Fargo)
Notice Addresses
3800 Howard Hughes Pkwy, 4th Floor
Las Vegas, NV 89169
Attn: Clark A. Wood,
Senior Vice President-Gaming Division
Facsimile: (702) 791-6290
6011 Connection Drive, Suite 550
Irving, Texas 75039
Attention: Michael Forbes
Facsimile: (972) 368-3499
85 Broad Street, 11th Floor
New York, New York 10004
Attention: Richard Case and Mark Buono
Facsimile: (212) 346-3594
One Liberty Plaza New York,
New York 10006
Attention: Michael Weinberger, Esq.
Facsimile: (212) 225-3999.
c/o Whitehall Street Global Real Estate Limited Partnership 2007
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Whitehall Chief Financial Officer
Facsimile: (212) 357-5505
2000 Las Vegas Boulevard
Las Vegas, Nevada 89104
Attention: Chief Financial Officer
Facsimile: (702) 383-4738
125 Broad Street
New York, New York 10004
Attention: Anthony J. Colletta, Esq.
Facsimile: (212) 558-3588.
600 East Las Colinas Boulevard, Suite 1900
Irving, Texas 75039
Attn: Michael Forbes
Facsimile: (972) 368-3499
45 Broadway, 14th Floor
New York, New York 10006
Attention: Julius R. Zamora
Facsimile: 866-297-2015
2
[ ]
Year 1 | Year 2 | Year 3 | Year 4 | Year 5 | ||||||
Revenues | ||||||||||
Casino Win | ||||||||||
Table Games | ||||||||||
Slots | ||||||||||
Other Casino (Bingo, Keno, R&S, Poker) | ||||||||||
Gross Casino Win | ||||||||||
Less: Discounts | ||||||||||
Less: Progressive / Participations | ||||||||||
Net Casino Win | ||||||||||
Other Revenue | ||||||||||
Rooms | ||||||||||
Food | ||||||||||
Beverage | ||||||||||
F&B Other | ||||||||||
Entertainment | ||||||||||
Retail | ||||||||||
Tower | ||||||||||
RV Park | ||||||||||
Other | ||||||||||
Total | ||||||||||
Gross Revenue | ||||||||||
Less Complimentaries | ||||||||||
Net Revenue | ||||||||||
Cost of Sales | ||||||||||
Cost of Food | ||||||||||
Cost of Beverage | ||||||||||
Other / Rebates | ||||||||||
Total | ||||||||||
Expenses | ||||||||||
Payroll — Regular & OT | ||||||||||
Payroll — PTO / Benefits / Taxes | ||||||||||
Payroll — Incentive Bonus |
Year 1 | Year 2 | Year 3 | Year 4 | Year 5 | ||||||
Payroll — Allocation | ||||||||||
Total Payroll | ||||||||||
Bad Debt (Casino) | ||||||||||
Gaming Tax | ||||||||||
Promotional Expense | ||||||||||
Marketing / Advertising | ||||||||||
Property Operations | ||||||||||
R&M Expense | ||||||||||
Utilities Costs | ||||||||||
Contract Entertainment | ||||||||||
Allocated Operating Expenses | ||||||||||
Highgate Management Fees | ||||||||||
All Other Expenses | ||||||||||
Total Expenses | ||||||||||
Total Costs & Expenses | ||||||||||
EBITDA | ||||||||||
Operating Margin | ||||||||||
EBITDA Before Management Fee | ||||||||||
FF&E Reserve | ||||||||||
Net Cash Flow |
OF
Page | ||||||||
ARTICLE I FORMATION | 2 | |||||||
1.01 | Formation | 2 | ||||||
1.02 | Name | 2 | ||||||
1.03 | Admission of MTGLQ | 2 | ||||||
1.04 | Principal Office; Place of Business | 2 | ||||||
1.05 | Registered Office | 2 | ||||||
1.06 | Term | 2 | ||||||
ARTICLE II DEFINITIONS | 3 | |||||||
ARTICLE III PURPOSE AND BUSINESS | 16 | |||||||
3.01 | Business | 16 | ||||||
3.02 | Authorized Activities | 17 | ||||||
ARTICLE IV MEMBERSHIP INTERESTS AND CAPITAL | 18 | |||||||
4.01 | Managing Member | 18 | ||||||
4.02 | Other Members | 18 | ||||||
4.03 | Capital Contributions | 18 | ||||||
4.04 | Failure to Fund Capital Calls | 19 | ||||||
4.05 | Interest | 23 | ||||||
4.06 | Capital Account | 23 | ||||||
4.07 | Withdrawal of Capital Contributions | 23 | ||||||
4.08 | Restoration of Negative Capital Accounts | 24 | ||||||
4.09 | Highgate Consulting Agreement | 24 | ||||||
ARTICLE V PROFITS, LOSSES AND DISTRIBUTIONS | 24 | |||||||
5.01 | Allocation of Profits and Losses | 24 | ||||||
5.02 | Applications and Distributions | 24 | ||||||
5.03 | Withholding | 26 | ||||||
5.04 | Form of Distributions | 26 | ||||||
5.05 | Reimbursement | 26 | ||||||
ARTICLE VI RIGHTS AND OBLIGATIONS OF THE MANAGING MEMBER | 27 | |||||||
6.01 | Management | 27 | ||||||
6.02 | Authority | 27 | ||||||
6.03 | Liability for Acts and Omissions | 28 | ||||||
6.04 | Company Costs and Expenses | 31 | ||||||
6.05 | Organizational Expenses | 31 | ||||||
6.06 | Other Activities | 31 | ||||||
6.07 | Miscellaneous Revenues | 31 | ||||||
6.08 | Compensation of Members and their Affiliates; Goldman as Exclusive Financial Advisor | 31 | ||||||
ARTICLE VII ASSIGNMENTS, WITHDRAWAL AND BANKRUPTCY OF THE MANAGING MEMBER | 32 | |||||||
7.01 | Assignment or Withdrawal by the Managing Member | 32 | ||||||
7.02 | Voluntary Assignment or Withdrawal of the Managing Member | 32 | ||||||
7.03 | Bankruptcy of the Managing Member | 33 | ||||||
7.04 | Obligations of a Prior Managing Member | 33 | ||||||
7.05 | Successor Managing Member | 33 | ||||||
7.06 | Gaming Approvals | 34 | ||||||
ARTICLE VIII RIGHTS AND OBLIGATIONS OF OTHER MEMBERS; HIGHGATE EVENT OF DEFAULT | 34 |
-i-
Page | ||||||||
8.01 | Management of the Company | 34 | ||||||
8.02 | Limitation on Liability | 34 | ||||||
8.03 | Power of Attorney | 35 | ||||||
8.04 | Highgate Event of Defaultt: | 36 | ||||||
ARTICLE IX TRANSFER OF MEMBERSHIP INTERESTS | 39 | |||||||
9.01 | Transfers | 39 | ||||||
9.02 | Transfer by Members | 39 | ||||||
9.03 | Right of First Offer on MTGLQ Interests | 41 | ||||||
9.04 | Right of First Offer on Whitehall Interests | 43 | ||||||
9.05 | Tag-Along Rights | 45 | ||||||
9.06 | Substitute Member | 46 | ||||||
9.07 | Withdrawal by or Removal of Members | 47 | ||||||
ARTICLE X DISSOLUTION AND LIQUIDATION; CONTINUATION | 48 | |||||||
10.01 | Dissolution: | 48 | ||||||
10.02 | Liquidation | 49 | ||||||
10.03 | Continuation of Company | 49 | ||||||
ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE MEMBERS | 50 | |||||||
11.01 | Representations and Warranties of the Members | 50 | ||||||
11.02 | Representations and Warranties of the Managing Member | 50 | ||||||
ARTICLE XII ACCOUNTING AND REPORTS | 50 | |||||||
12.01 | Books and Records | 50 | ||||||
12.02 | Tax Matters Member | 51 | ||||||
12.03 | Reports to Members | 51 | ||||||
12.04 | Company Funds | 52 | ||||||
ARTICLE XIII AMENDMENTS | 53 | |||||||
13.01 | Amendments | 53 | ||||||
ARTICLE XIV MISCELLANEOUS | 53 | |||||||
14.01 | Title to Company Property | 53 | ||||||
14.02 | Validity | 53 | ||||||
14.03 | Applicable Law | 53 | ||||||
14.04 | Binding Agreement | 54 | ||||||
14.05 | Waiver of Action for Partition | 54 | ||||||
14.06 | Record of Members | 54 | ||||||
14.07 | Headings | 54 | ||||||
14.08 | Terminology | 54 | ||||||
14.09 | Counterparts | 54 | ||||||
14.10 | Entire Agreement | 54 | ||||||
14.11 | Disclaimer | 54 | ||||||
14.12 | No Third Party Rights | 54 | ||||||
14.13 | Services to the Company | 54 | ||||||
14.14 | Confidentiality | 55 |
-ii-
LIMITED LIABILITY COMPANY AGREEMENT
OF W2007/ACEP HOLDINGS, LLC
2
1. | The Appraisers appointed by the Members in accordance with Section 8.04(A)(5) shall each determine the value of the Company’s assets (each, a “Valuation”) in accordance with generally accepted professional appraisal standards and deliver such determination in writing within thirty (30) days following the Appointment Date. The Managing Member |
3
and Highgate shall each have the right to submit to those Appraisers evidence with respect to value. | |||
2. | If the difference between the Valuations is less than an amount equal to five percent (5%) of the lower Valuation, then the average of the Valuations shall be the Appraised Value. | ||
3. | If the difference between the Valuations is greater than or equal to an amount equal to five percent (5%) of the lower Valuation, then the Appraisers appointed by the applicable Members in accordance with Section 8.04(A)(5) shall appoint a third Appraiser (the “Third Appraiser”) within ten (10) days after the delivery of their respective Valuations. If the Appraisers appointed by the applicable Members in accordance with Section 8.04(A)(5) cannot agree on a Third Appraiser within such time, then the Managing Member and Highgate shall appoint a Third Appraiser within ten (10) days after the expiration of the 10-day period following the delivery of the Valuations. If the Managing Member and Highgate cannot agree on a Third Appraiser within such time, then, upon the application of either party within five (5) days thereafter, the Third Appraiser shall be selected by or on behalf of the President of the Appraisal Institute upon the application of either party, who shall be instructed to select the Third Appraiser within ten (10) days. | ||
4. | The Third Appraiser’s Valuation shall be the Appraised Value unless such Valuation is higher than the highest Valuation of the Appraisers appointed by the Members in accordance with Section 8.04(A)(5) or lower than the lowest Valuation of the Appraisers appointed by the Members in accordance with Section 8.04(A)(5), in which case the Appraised Value shall be such highest or lowest Valuation of the Appraisers appointed by the applicable Members in accordance with Section 8.04(A)(5), as applicable. | ||
5. | If any Appraiser appointed by the applicable Members in accordance with Section 8.04(A)(5) or the Third Appraiser becomes unable or unwilling to provide a Valuation, a successor Appraiser shall be appointed in the same manner as the Person who is unwilling or unable to perform. | ||
6. | In the event an Appraiser shall not deliver a Valuation within the time required herein, then the Valuation of the Appraiser who delivers a Valuation first shall be the Appraised Value. | ||
7. | If the Members need to determine an Appraised Value for purposes of Section 9.07, then the term “Highgate” in the definition of Appraised Value shall be replaced with “the Withdrawing Member,”mutatismutandis. |
4
5
6
7
1. | the gross negligence, fraud, defalcation (other than a mere failure to meet an obligation that does not involve the misappropriation of funds) or willful misconduct by the Highgate Consultant under or in connection with, or a breach by the Highgate Consultant of or under, the Highgate Consulting Agreement which results in an “Event of Default” (as defined in the Highgate Consulting Agreement) under the Highgate Consulting Agreement; | ||
2. | the gross negligence, fraud, defalcation (other than a mere failure to meet an obligation that does not involve the misappropriation of funds) or willful misconduct by Highgate in carrying out its duties and obligations under or in connection with, or a material breach by Highgate of or under, this Agreement; | ||
3. | any criminal indictment or conviction with respect to (x) Highgate, (y) any Highgate Principal or any of the representatives of Highgate listed on Schedule 3.4 or (z) any other officer, director, general partner or managing member of Highgate or any Affiliate of Highgate (if such officer, director, general partner or managing member is involved in the provision of services under the Highgate Consulting Agreement);provided,however, that in the event that that a Highgate Event of Default is triggered pursuant to clause (z) above, if such officer, director, general partner or managing member is terminated within 24 hours of the indictment or conviction and the Company is reimbursed within ten (10) Business Days by Highgate for any damages the Company and/or its subsidiaries have incurred as a result of any actions |
8
of such person, such criminal indictment or conviction shall not be deemed a Highgate Event of Default; or |
4. | the occurrence of any Bankruptcy with respect to Highgate. |
9
10
Member(s).
11
12
13
14
15
16
17
18
Section 4.04(D), with the portion of the outstanding principal and accrued and unpaid interest (as of the date of such termination) attributable to the amount funded by the Contributing Member on behalf of the Defaulting Member in connection with such Capital Call deemed to be and treated as the amount of the Funded Portion and (z) the Capital Accounts of the non-Defaulting Member(s) and the Defaulting Member(s) shall be adjusted accordingly. At any time, the Company or the Defaulting Member may tender full payment of a Company Loan to a Contributing Member and such Contributing Member shall accept such payment, whereupon the Defaulting Member shall be deemed to have made the Failed Contribution on the date the Contributing Member or Members funded such amount.
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
HIGHGATE EVENT OF DEFAULT
34
35
36
37
38
39
40
41
42
43
44
45
46
47
Amount of Payment | = | 1.5 x A/B x C | ||
Where | A = Original principal amount of note | |||
B = Fair Value of the Investment as of the effective date of removal | ||||
C = Total amount of each distribution (including payment on the Promissory Note) |
48
49
50
51
52
53
54
55
W2007 FINANCE SUB, LLC | ||||||||
By: | Whitehall Street Global Real Estate | |||||||
Limited Partnership 2007, Managing | ||||||||
Member | ||||||||
By: | WH Advisors, L.L.C., 2007, General | |||||||
Partner | ||||||||
By: | ||||||||
Title: | ||||||||
WHITEHALL PARALLEL GLOBAL REAL ESTATE LIMITED PARTNERSHIP 2007 | ||||||||
By: | WH Parallel Advisors, L.L.C. 2007, | |||||||
General Partner | ||||||||
By: | ||||||||
Title: | ||||||||
MTGLQ INVESTORS, L.P. | ||||||||
By: | MLQ, L.L.C., General Partner | |||||||
By: | ||||||||
Title: | ||||||||
STRAT HOTEL INVESTOR, L.P., | ||||||||
By: | Norwich GP, LLC, | |||||||
General Partner | ||||||||
By: | ||||||||
Title: |
W2007/ACEP HOLDINGS, LLC
-2-
-3-
-4-
-5-
-6-
-7-
EACH MEMBER
Percentage | ||||||||||
Interest as of | ||||||||||
Name | Address | Capital Contribution | June 25, 2009 | |||||||
W2007 Finance | c/o Whitehall Street Global | $ | 187,558,579.71 | 72.1780563 | % | |||||
Sub, LLC | Real Estate Limited | |||||||||
Partnership 2007 | ||||||||||
85 Broad Street | ||||||||||
New York, New York | ||||||||||
10004 | ||||||||||
with a copy to: | ||||||||||
Sullivan & Cromwell LLP | ||||||||||
125 Broad Street | ||||||||||
New York, New York | ||||||||||
10004 | ||||||||||
Attention: Anthony J. | ||||||||||
Colletta, Esq. | ||||||||||
Facsimile: (212) 558-3588 | ||||||||||
Whitehall Parallel | c/o Goldman, Sachs & Co. | $ | 6,123,039.07 | 2.35632547 | % | |||||
Global Real Estate | 85 Broad Street | |||||||||
Limited Partnership 2007 | New York, New York 10004 | |||||||||
with a copy to: | ||||||||||
Sullivan & Cromwell LLP | ||||||||||
125 Broad Street | ||||||||||
New York, New York | ||||||||||
10004 | ||||||||||
Attention: Anthony J. | ||||||||||
Colletta, Esq. | ||||||||||
Facsimile: (212) 558-3588 | ||||||||||
MTGLQ | 85 Broad Street | $ | 57,168,188.89 | 22.00 | % | |||||
Investors, L.P. | New York, New York | |||||||||
10004 | ||||||||||
Attention: [ ] | ||||||||||
Facsimile:[ ] | ||||||||||
with a copy to: | ||||||||||
Cleary Gottlieb Steen & | ||||||||||
Hamilton LLP | ||||||||||
One Liberty Plaza | ||||||||||
New York, New York | ||||||||||
10006 | ||||||||||
Attention: Michael | ||||||||||
Weinberger, Esq. | ||||||||||
Facsimile: (212) 225-3999 |
-A-1-
Percentage | ||||||||||
Interest as of | ||||||||||
Name | Address | Capital Contribution | June 25, 2009 | |||||||
Strat Hotel | c/o Highgate Hotels, L.P. | $ | 9,005,596.34 | 3.46561826 | % | |||||
Investor, L.P. | c/o Highgate Holdings, Inc. | |||||||||
545 E. Carpenter Freeway, | ||||||||||
Suite 1400 | ||||||||||
Irving, Texas 75062 | ||||||||||
Attention: Mahmood | ||||||||||
Khmiji | ||||||||||
Facsimile: (972) 401-2400 | ||||||||||
with a copy to: | ||||||||||
Haynes & Boone, LLP | ||||||||||
2323 Victory Avenue, Suite | ||||||||||
700 | ||||||||||
Dallas, Texas 75219 | ||||||||||
Attention: Jeff W. Dorrill, | ||||||||||
Esq. | ||||||||||
Facsimile: (214) 200-0754 |
-A-2-
-B-1-
Member Loan | Orig Equity | |||||||||||||||
Equity Percentaaes | ||||||||||||||||
Whitehall | 77.53 | % | $ | 198.80 | 74.53 | % | $ | 193.68 | ||||||||
Highgate | 0.47 | % | $ | 1.20 | 3.47 | % | $ | 9.01 | ||||||||
GSMC | 22.00 | % | $ | 56.41 | 22.00 | % | $ | 57.17 | ||||||||
$ | 256.41 | $ | 259.86 | |||||||||||||
Promote Structure A | ||||||||||||||||
IRR Hurdle | 0.0 | % | ||||||||||||||
Promote | 3.4 | % | ||||||||||||||
Exit EBITDA (2013) | $ | 103.0 | ||||||||||||||
Exit Multiple | 13.0 | x |
Year 0 | Year 1 | Year 2 | Year 3 | Year 4 | Year 5 | |||||||||||||||||||||||
Whitehall Contribution | $ | (193.7 | ) | $ | (198.8 | ) | ||||||||||||||||||||||
Highgate Contribution | $ | (9.0 | ) | $ | (1.2 | ) | ||||||||||||||||||||||
GSMC Contribution | $ | (57.17 | ) | $ | (56.4 | ) | ||||||||||||||||||||||
Net Sale Proceeds | $ | 1,339.0 | ||||||||||||||||||||||||||
Debt Amount | $ | (350.0 | ) | |||||||||||||||||||||||||
Total Levered Pre-Promote Cash Flows | $ | (259.9 | ) | $ | (256.4 | ) | $ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 989.0 | ||||||||||||||
IRR | 15.5 | % | ||||||||||||||||||||||||||
Member Loan Accounts | ||||||||||||||||||||||||||||
WhitehallStart | $ | 198.8 | $ | 228.6 | $ | 262.9 | $ | 302.3 | $ | 347.7 | ||||||||||||||||||
Accrual | 29.8 | 34.3 | 39.4 | 45.4 | 52.2 | |||||||||||||||||||||||
Paydown | 0.0 | 0.0 | 0.0 | (399.9 | ) | |||||||||||||||||||||||
End | $ | 228.6 | $ | 262.9 | $ | 302.3 | $ | 347.7 | $ | 0.0 | ||||||||||||||||||
HighgateStart | $ | 1.2 | $ | 1.4 | $ | 1.6 | $ | 1.8 | $ | 2.1 | ||||||||||||||||||
Accrual | 0.2 | 0.2 | 0.2 | 0.3 | 0.3 | |||||||||||||||||||||||
Paydown | 0.0 | 0.0 | 0.0 | (2.4 | ) | |||||||||||||||||||||||
End | $ | 1.4 | $ | 1.6 | $ | 1.8 | $ | 2.1 | $ | 0.0 | ||||||||||||||||||
GSMCStart | $ | 56.4 | $ | 64.9 | $ | 74.6 | $ | 85.8 | $ | 98.7 | ||||||||||||||||||
Accrual | 8.5 | 9.7 | 11.2 | 12.9 | 14.8 | |||||||||||||||||||||||
Paydown | 0.0 | 0.0 | 0.0 | (113.5 | ) | |||||||||||||||||||||||
End | $ | 64.9 | $ | 74.6 | $ | 85.8 | $ | 98.7 | $ | 0.0 | ||||||||||||||||||
Whitehall/Highgate Cash Flow Required to Repay Member Loan | $ | 515.7 | ||||||||||||||||||||||||||
GSMC Share of Cash Flow Until Member Loan is Repaid | ||||||||||||||||||||||||||||
Total Cash Flow Required to Repay Member Loan | $ | 515.7 | ||||||||||||||||||||||||||
Remaining Cash Flow After Member Loan | $ | 473.3 | ||||||||||||||||||||||||||
Promote Waterfall | ||||||||||||||||||||||||||||
Start | $ | 259.9 | $ | 259.9 | $ | 259.9 | $ | 259.9 | ||||||||||||||||||||
Accrual | $ | 0.0 | $ | 0.0 | $ | 0.0 | $ | 0.0 | ||||||||||||||||||||
Paydown | $ | (259.9 | ) | |||||||||||||||||||||||||
End | $ | 259.9 | $ | 259.9 | $ | 259.9 | $ | 259.9 | $ | 0.0 | ||||||||||||||||||
Whitehall/Highgate Cash Flow Required to Hit Promote Hurdle | $ | 259.9 | ||||||||||||||||||||||||||
GSMC Share of Cash Flow Until Promote Hurdle is Hit | ||||||||||||||||||||||||||||
Total Cash Flow Required to Hit Promote Hurdle | $ | 259.9 | ||||||||||||||||||||||||||
Remaining Cash Flow After Promote Waterfall | $ | 213.4 |
Promote | Promote | Post-Promote | ||||||||||||||||||
Pro Rate Share | Paid | Earned | Cash Flow | |||||||||||||||||
Whitehall | $ | 159.1 | $ | (5.4 | ) | $ | 153.7 | |||||||||||||
GSMC | 46.9 | (1.6 | ) | 45.4 | ||||||||||||||||
Highgate | 7.4 | (0.3 | ) | $ | 7.3 | 14.4 | ||||||||||||||
Totals | $ | 213.4 | $ | (7.3 | ) | $ | 7.3 | $ | 213.4 |
Member Loan | Return of | Total Cash | ||||||||||||||||||
Repayment | Capital | Post-Promote | Flow | % of Total | ||||||||||||||||
Whitehall | $ | 399.9 | $ | 193.7 | $ | 153.7 | $ | 747.2 | 75.6 | % | ||||||||||
GSMC | 113.5 | 57.2 | 45.4 | 216.0 | 21.8 | % | ||||||||||||||
Highgate | 2.4 | 9.0 | 14.4 | 25.8 | 2.6 | % | ||||||||||||||
Totals | $ | 515.7 | $ | 259.9 | $ | 14.4 | $ | 989.0 | 100.0 | % |
Member | Date | Capital Contribution | ||||||
W2007 Finance Sub, LLC | 2/20/08 | $ | 185,128,262.26 | |||||
4/21/08 | ($130,644.08 | ) | ||||||
6/6/08 | $ | 2,155,788.94 | ||||||
11/17/08 | $ | 405,172.59 | ||||||
Whitehall Parallel Global Real | 2/20/08 | $ | 6,043,698.91 | |||||
Estate Limited Partnership 2007 | 4/21/08 | ($4,265.01 | ) | |||||
6/6/08 | $ | 70,377.91 | ||||||
11/17/08 | $ | 13,227.27 | ||||||
MTGLQ Investors, L.P. | 2/20/08 | $ | 56,427,423.80 | |||||
4/21/08 | ($39,820.55 | ) | ||||||
6/6/08 | $ | 657,088.31 | ||||||
11/17/08 | $ | 123,497.33 | ||||||
Strat Hotel Investor, L.P. | 2/20/08 | $ | 8,888,905.02 | |||||
4/21/08 | ($6,272.86 | ) | ||||||
6/6/08 | $ | 103,509.87 | ||||||
11/17/08 | $ | 19,454.30 |
-B-2-
[Address]
Attention:
1 | Attach Annex I (wiring and account information). |
Agreement
2 | During the continuance of an Event of Default, in any manner as Administrative Agent on behalf of Lender may direct. |
Agreement
Exception Report
1. | The Agreement, dated as of March 23, 2006, by and between Stratosphere Gaming Corp. and International Union of Operating Engineers Local No. 501, A.F.L. – C.I.O., covering the period from October 15, 2005 to October 14, 2010. | |
2. | The Agreement, dated as of August 15, 2008, by and between Aquarius, LLC and International Union of Operating Engineers Local No. 501, A.F.L. – C.I.O., covering the period from April 1, 2008 to March 31, 2012. |
(a) | The Basis of Participation of Central Pension Fund of the International Union of Operating Engineers and Participating employers, by and between Aquarius and International Union of Operating Engineers Local No. 501, A.F.L. – C.I.O., establishing the terms of pension contributions. | ||
(b) | The Memorandum of Agreement, effective May 19, 2006, by and between the American Casino & Entertainment Properties, LLC on behalf of Flamingo Laughlin, Inc. and International Union of Operating Engineers Local No. 501, A.F.L. – C.I.O., establishing the terms upon which the Company adopted the Agreement dated March 23, 2006, by and between Aquarius (AREP Laughlin Corporation) and International Union of Operating Engineers Local No. 501, A.F.L. – C.I.O., covering the period from April 1, 2008 to March 31, 2012. |
3. | The Agreement, dated as of April 29, 2009, by and between the American Casino & Entertainment Properties, LLC dba Stratosphere Casino, Hotel and Tower and Professional, Clerical and Miscellaneous Employees, Teamsters Local Union No. 995, covering the period from April 1, 2008 to March 31, 2013. |
(a) | The Memorandum of Agreement, dated March 5, 2005, by and between the Stratosphere Gaming Corp. and Professional, Clerical and Miscellaneous Employees, Teamsters Local Union No. 995, concerning the response if a majority of a bargaining unit requests to participate in the union’s pension fund versus participation in the Company’s 401(k) plan. |
4. | The Collective Bargaining Agreement, dated as of April 29, 2009, by and between American Casino & Entertainment Properties, LLC dba Stratosphere Casino and Tower and Professional, Clerical and Miscellaneous Employees, Teamsters Local Union No. 995, covering the warehouse department for the period from April 1, 2008 to March 31, 2013. |
(a) | The Memorandum of Agreement, dated April 29, 2005, by and between Stratosphere Gaming Corp. and Professional, Clerical and Miscellaneous Employees, Teamsters Local Union No. 995, concerning the response if a majority of employees in the warehouse department requests to participate in the union’s pension fund versus participation in the Company’s 401(k) plan. |
5. | The Agreement, dated as of April 2, 2002, by and between Flamingo Laughlin, Inc. and the United Steelworkers of America, covering the period from April 2, 2002 to April 1, 2008. |
(a) | The Insurance Trust Understanding, dated April 2, 2002, by and between Flamingo Laughlin, Inc. and United Steelworkers of America, whereby Flamingo Laughlin, Inc. agreed to provide to United Steelworkers of America the information needed to obtain a quote for various insurance coverage for its members. |
6. | The Agreement, dated as of December 4, 2007, by and between Aquarius Casino Resort and the Security, Police, Fire Professionals of America and its Amalgamated Local #824, covering the period from March 1, 2007 to February 28, 2012, and year to year thereafter. |
7. | The Labor Agreement, dated as of April 29, 2009, by and between Aquarius, LLC and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, and its Trusted Local 720, Las Vegas, Nevada, covering the period from December 1, 2007 to November 30, 2012. |
(a) | Memorandum of Agreement #1, dated April 29, 2009, by and between Aquaruis, LLC and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, and its Trusted Local 720, Las Vegas, Nevada, to create a trained work force. | ||
(b) | Memorandum of Agreement #2, dated April 29, 2009, by and between Aquarius, LLC and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, and its Trusted Local 720, Las Vegas, Nevada, clarifying outsourcing procedures. | ||
(c) | The Trust Acceptance Agreement, dated April 29, 2009, by and between Aquarius, LLC and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, and its Trusted Local 720, Las Vegas, Nevada. |
8. | The Collective Bargaining Agreement, dated as of June 1, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive Board of Las Vegas, for on behalf of Culinary Workers Union, Local No. 226, and Bartenders Union, Local No. 165, covering the period from June 1, 2007 to May 31, 2012, and year to year thereafter. |
(a) | The Side Letter #1, dated November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, regarding the requirement that bartenders complete the Bartenders Local 165 Joint Apprenticeship Training Program and the craft exam related to that program. | ||
(b) | The Side Letter #2, dated November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, establishing that part-time cocktail servers who voluntarily accept assignment in the Top of the World Specialty Room will be the only cocktail servers from the list of part-time cocktail servers who will be offered such assignment. |
(c) | The Side Letter #3, dated November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, regarding the continuation of the practice of splitting gratuities. | ||
(d) | The Side Letter #4, dated November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, regarding the addition of an 18% gratuity to the check of parties of eight or more at Roxy’s, Lucky’s and Top of the World. | ||
(e) | The Side Letter #5, undated in 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, regarding the expansion of the banquet department. | ||
(f) | Memorandum of Agreement #1, dated as of November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, concerning the establishment of procedures for employees to exercise their rights under Section 7 of the National Labor Relations Act. | ||
(g) | Memorandum of Agreement #2, dated as of November 12, 2007, by and between Stratosphere Gaming Corporation and Local Joint Executive of Board of Las Vegas, regarding the memorialization of existing practices with respect to room services operations. | ||
(h) | Memorandum of Agreement #3, undated in 2007, by and between undisclosed parties, regarding the establishment of career ladders for certain classes of employees. | ||
(i) | Memorandum of Agreement #, undated in 2007, by and between undisclosed parties, regarding the commitment to a diverse workforce and to maintaining a supportive environment for employees. | ||
(j) | Memorandum of Agreement #, undated in 2007, by and between undisclosed parties, regarding the establishment of a joint apprenticeship committee to establish an apprenticeship program for cooks. |
9. | Memorandum of Agreement by and between Aquarius, LLC and United Steelworkers of America dated February 21, 2008 whereby Aquarius assumes CBA effective April 2, 2002 through April 1, 2008. |
10. | Memorandum of Agreement by and between Aquarius, LLC and Security , Policy, Fire Professionals of America dated February 21, 2008 whereby Aquarius assumes CBA effective March 1, 2007 through February 28, 2012. | |
11. | Memorandum of Agreement by and between American Casino & Entertainment Properties, LLC (“ACEP”) and United Steelworkers of America dated October 31, 2006 whereby ACEP assumed the CBA of Flamingo Laughlin effective April 2, 2002 through April 1, 2008. |
• | Master Room Agreement, dated as of November 29, 2007, by and between Consolidated Resorts, Inc. and American Casino & Entertainment Properties, LLC, which expired by its terms on December 31, 2008 but continues on a month-to-month basis. | ||
• | Lease Agreement, dated June 2008, by and between Consolidated Realty, Inc. and Stratosphere Gaming LLC. On or about the date hereof, Consolidated Realty, Inc. is $112,700 delinquent beyond 30 days. |
Licensor | Licensee | License No. | ||
City of Las Vegas | Stratosphere Tower Hotel & Casino | L16-00147-4-000524 | ||
City of Las Vegas | Arizona Charlies Decatur | L16-00044-4-000298 | ||
Clark County | Arizona Charlie’s Boulder | 1000274-LIQ-101 | ||
Clark County | Aquarius Casino Resort | 2001025-LIQ-101 |
1. | Consulting Agreement, dated as of February 20, 2008, by and between American Casino & Entertainment Properties LLC and Highgate Hotels, L.P., as amended by the First Amendment to Consulting Agreement, dated as of the Closing Date. | |
2. | Consolidated Resorts, Inc. has an informal arrangement with American Casino & Entertainment Properties LLC to purchase Stratosphere production show tickets. | |
3. | Agreement, dated as of April 1, 2006, by and between American Casino & Entertainment Properties LLC (for Stratosphere Gaming Corporation, Arizona Charlie’s LLC, Fresca LLC and AREP Laughlin Corporation) and Mission of Nevada Inc. (dba Mission Industries). | |
4. | Showroom Lease Agreement, dated as of July 1, 2004, by and between Stratosphere Gaming Corporation and Tim Molyneux Production Company, as further amended. | |
5. | Merchant Services Agreement, dated as of July 29, 2003, and pricing addendum thereto, dated as of November 16, 2006, by and between Wells Fargo Bank, N.A., Stratosphere Corp., Stratosphere Gaming LLC, Arizona Charlie’s, Inc. and Fresca, LLC. | |
6. | Service Contract, dated as of May 15, 1997, by and between Otis Elevator Company and Stratosphere Gaming Corporation. | |
7. | Lease, dated August 7, 1998, by and between Charleston Heights Shopping Center, as lessor, and Arizona Charlie’s, Inc., as lessee. | |
8. | Group Enrollment Agreement, dated January 1, 2008, by and between Stratosphere Gaming Corporation and Health Plan of Nevada. | |
9. | Integrated Prescription Drug Program Agreement, dated January 1, 2009, by and between Medco Health Solutions, Inc. and American Casino & Entertainment Properties, LLC. | |
10. | Showroom Lease Agreement, dated May 2008, by and between Springtime Productions, Inc. and Stratosphere Gaming LLC. | |
11. | Delta Dental PPO Dental Service Contracts, dated February 21, 2008, by and between Arizona Charlies, LLC, Fresca, LLC, Stratosphere Gaming LLC and Aquarius Gaming, LLC. | |
12. | Reservations Services and License Agreements, dated February 18, 2008 by and between Travel Tripper, LLC and Fresca, LLC, Stratosphere Gaming LLC, Arizona Charlie’s, LLC and Aquarius Gaming, LLC. |
13. | Services Agreement, dated February 20, 2009, by and between Archon Group, L.P. and American Casino & Entertainment Properties, LLC. | |
14. | Services Agreement, dated April 1, 2008, by and between Archon Group, L.P. and American Casino & Entertainment Properties, LLC. | |
15. | Master Participation Agreement, dated October 3, 2008, by and between Norl, Inc. and American Casino & Entertainment Properties, LLC. | |
16. | Workers Compensation Insurance, dated February 20, 2009, by and between AIG and American Casino & Entertainment Properties, Fresca, LLC, Arizona Charlie’s, LLC, Stratosphere Gaming LLC and Aquarius Gaming, LLC. | |
17. | Property/Terrorism Insurance, dated February 20, 2009, by and between FM Global and American Casino & Entertainment Properties, Fresca, LLC, Arizona Charlie’s, LLC, Stratosphere Gaming LLC and Aquarius Gaming, LLC. | |
18. | American Casino & Entertainment Properties, LLC and Affiliates 401K Plan. | |
19. | IGT Megajackpots Wide Area Progressive Standard Terms and Conditions, dated January 2008, and amendments, by and between Stratosphere Gaming LLC and IGT. | |
20. | The Collective Bargaining Agreements listed in Schedule B to this Loan Agreement. |
Property | Allocated Loan Amount | |||
Stratosphere | $ | 175,000,000 | ||
Aquarius | $ | 61,250,000 | ||
Decatur | $ | 80,500,000 | ||
Boulder | $ | 33,250,000 | ||
Stratosphere Land | $ | 0 |
1
Entertainment Properties LLC
Pre-LP Conversion Structure Chart
Draft of June 17, 2009
STATE OF NEVADA GAMING LICENSES
UNITED STATES COPYRIGHT REGISTRATIONS
Registration | ||||
Title of Work | Number | Registration Date | ||
Barbingo. | TXu-509-358 | March 19, 1992 | ||
High roller at Stratosphere. | VAu-346-861 | November 16, 1995 | ||
Stratosphere Las Vegas. | VAu-331-697 | September 14, 1995 | ||
Stratosphere. | VAu-349-552 | November 6, 1995 |
Domain Name | Expiration Date | |
180099tower.com | 4/16/2010 | |
80099tower.com | 4/16/2010 | |
99tower.com | 4/16/2010 | |
acepcareers.com | 1/28/2010 | |
aceplaughlin.com | 12/1/2009 | |
acepllc.com | 5/10/2010 | |
acepllc.net | 5/10/2010 | |
acepmail.com | 10/8/2009 | |
acepmail.net | 10/8/2009 | |
aceplaygaming.com | 5/29/2012 | |
aceplaynow.com | 5/29/2012 | |
aceplayonline.com | 5/29/2012 | |
aceplaytime.com | 5/29/2012 | |
aceplaytoday.com | 5/29/2012 | |
acestay.com | 6/1/2011 |
Domain Name | Expiration Date | |
americansuperstars.net | 6/9/2009 | |
aquariusac.com | 12/14/2009 | |
aquariuscasinohotel.biz | 4/2/2010 | |
aquariuscasinohotel.com | 12/14/2009 | |
aquariuscasinohotel.net | 4/3/2010 | |
aquariuscasinohotel.org | 4/3/2010 | |
aquariuscasinoresort.com | 12/13/2009 | |
aquariuscasinoresort.net | 12/13/2009 | |
aquariusgaming.com | 12/14/2009 | |
aquariusgaming.net | 12/14/2009 | |
aquariushotelcasino.com | 12/14/2009 | |
aquariuslaughlin.com | 12/14/2009 | |
aquariuslaughlin.net | 12/14/2009 | |
aquariusresortcasino.com | 9/7/2009 | |
aquariusresortcasino.net | 9/7/2009 | |
arepcasinos.com | 12/12/2009 | |
arepcasinos.net | 12/12/2009 | |
arepgaming.com | 12/12/2009 | |
arepgaming.net | 12/12/2009 | |
arephotels.com | 12/12/2009 | |
arephotels.net | 12/12/2009 | |
areplaughlin.com | 12/1/2009 | |
arepllc.com | 4/6/2010 | |
arepllc.net | 4/6/2010 | |
arizonacharlies.com | 3/21/2010 | |
arizonacharlies.net | 3/22/2010 | |
arizonacharliesboulder.com | 11/11/2012 | |
arizonacharliesboulder.net | 11/11/2012 | |
arizonacharliescasino.com | 8/3/2009 | |
arizonacharliesdecatur.com | 11/11/2012 | |
arizonacharliesdecatur.net | 11/11/2012 | |
arizonacharlieseast.com | 8/3/2009 | |
arizonacharlieshotel.com | 8/3/2009 | |
arizonacharlieslasvegas.com | 8/3/2009 | |
arizonacharlieslaughlin.com | 12/1/2009 | |
arizonacharliesvegas.com | 8/3/2009 | |
arizonacharlieswest.com | 8/3/2009 | |
azcharlies.com | 2/7/2010 | |
azlaughlin.com | 12/1/2009 | |
chapelintheclouds.com | 9/19/2009 | |
fortunescasinohotel.com | 1/25/2009 |
Domain Name | Expiration Date | |
getaqua.com | 4/19/2010 | |
getaqua.net | 4/19/2010 | |
hotelstratospherejump.com | Purchased from 3rd Party, Release in Progress | |
icahngaming.com | 6/15/2008 | |
insanityride.com | 11/8/2012 | |
insanitytheride.com | 11/8/2012 | |
jumpthestrat.com | Purchased from 3rd Party, Release in Progress | |
landmarkgaming.com | 2/10/2008 | |
landmarkgaming.net | 2/10/2008 | |
lasvegasskyjump.com | 11/4/2011 | |
lvskyjump.com | 11/4/2011 | |
Myaceplay.com | 5/29/2012 | |
romance-lounge.com | 1/24/2010 | |
romancelv.com | 1/24/2010 | |
sinsear.us | 11/4/2011 | |
skyjumplasvegas.com | 11/4/2011 | |
skyjumplv.com | 11/4/2011 | |
skyjumpstrat.com | 11/4/2011 | |
skyjumpstratosphere.com | 11/4/2011 | |
southbeachcasinohotel.com | 12/14/2008 | |
southbeachcasinoresort.com | 12/13/2008 | |
southbeachcasinoresort.net | 12/13/2008 | |
southbeachgaming.com | 12/14/2008 | |
southbeachgaming.net | 12/14/2008 | |
southbeachhotelcasino.com | 12/14/2008 | |
southbeachlaughlin.com | 12/14/2008 | |
southbeachlaughlin.net | 12/14/2008 | |
strpromo.com | 6/4/2011 | |
stratjump.com | Purchased from 3rd Party, Release in Progress | |
stratlasvegas.com | 11/6/2012 | |
stratlv.com | 8/3/2009 | |
stratosphere-hotel.com | 3/19/2010 | |
stratosphere-las-vegas.com | 3/19/2010 | |
stratosphere-tower.com | 3/19/2010 | |
stratosphereadvertising.com | 2/25/2010 | |
stratospherecasino.com | 3/30/2010 | |
stratospherehotel.com | 11/22/2012 | |
stratospherehotel.net | 8/3/2009 |
Domain Name | Expiration Date | |
stratospherejump.com | Purchased from 3rd Party, Release in Progress | |
stratospherelasvegas.com | 3/30/2010 | |
stratospherelasvegas.net | 8/3/2009 | |
stratospherelv.com | 12/22/2009 | |
stratosphereskyjump.com | 11/4/2011 | |
stratospheretower.com | 7/2/2009 | |
stratospherevegas.com | 12/22/2009 | |
stratospherewedding.com | 6/30/2009 | |
stratosphereweddings.com | 6/30/2009 | |
stratskyjump.com | 11/4/2011 | |
synsear.com | 10/31/2011 | |
tequilasundown.com | 2/20/2012 | |
theaquarius.biz | 4/9/2010 | |
theaquarius.com | 4/10/2010 | |
theaquarius.net | 4/10/2010 | |
theaquarius.us | 4/9/2010 | |
theplayersplace.com | 12/1/2009 | |
thestrat.com | 5/30/2009 | |
thestratjump.com | Purchased from 3rd Party, Release in Progress | |
topoftheworld-lv.com | 4/23/2010 | |
topoftheworldlasvegas.com | 4/23/2010 | |
topoftheworldlv.com | 4/23/2010 | |
ultimaterewardscenter.com | 1/7/2010 | |
ultimaterewardsclub.com | 1/7/2010 | |
Youraceplay.com | 5/29/2012 |
* | These domain names are currently registered in the name of Stratosphere Gaming Corp. but will be transferred to American Casino & Entertainment Properties LLC after Closing. |
Application | Application | Registration | Registration | |||||||||||
Trademark | Country | Status | Number | Date | Number | Date | ||||||||
A WORLD ABOVE THE REST | Nevada | Registered | SM00290284 | 8/8/96 | ||||||||||
BIG SHOT | United States of America | Registered | 75/145568 | 8/5/96 | 2212111 | 12/22/98 |
Application | Application | Registration | Registration | |||||||||||
Trademark | Country | Status | Number | Date | Number | Date | ||||||||
BIG SHOT | Nevada | Registered | SM00290282 | 8/8/96 | ||||||||||
INSANITY THE RIDE & Design | United States of America | Registered | 78/537623 | 12/23/04 | 3054188 | 1/31/06 | ||||||||
LOGO | United States of America | Registered | 74/676248 | 5/15/95 | 2070412 | 6/10/97 | ||||||||
LUCKY’S CAFE & Design | United States of America | Registered | 76/291439 | 7/27/01 | 2696511 | 3/11/03 | ||||||||
LUCKY’S CAFE AT THE STRATOSPHERE & Design | United States of America | Abandoned | 76/291440 | 7/27/01 | 2725446 | 6/10/03 | ||||||||
NAGA | United States of America | Registered | 78/810327 | 2/8/06 | 3236531 | 5/1/07 | ||||||||
NAKED CITY | United States of America | Unfiled | ||||||||||||
NOBODY OFFERS YOU MORE! — 42 | United States of America | Registered | 76/230888 | 3/26/01 | 2520000 | 12/18/01 | ||||||||
ROMANCE AT TOP OF THE WORLD | United States of America | Registered | 78/812034 | 2/10/06 | 3189387 | 12/26/06 | ||||||||
STRAT—16 | United States of America | Published | 77/561619 | 9/3/08 | ||||||||||
STRAT—18 | United States of America | Published | 77/561622 | 9/3/08 | ||||||||||
STRAT—21 | United States of America | Published | 77/561627 | 9/3/08 | ||||||||||
STRAT – 25 | United States of America | Published | 77/561632 | 9/3/08 | ||||||||||
STRAT—41 | United States of America | Published | 77/561614 | 9/3/08 | ||||||||||
STRAT — 43 | United States of America | Published | 77/561636 | 9/3/08 | ||||||||||
STRATOSPHERE | Nevada | Registered | SM00280675 | 12/6/95 | ||||||||||
STRATOSPHERE | Nevada | Registered | TM00280577 | 11/8/95 | ||||||||||
STRATOSPHERE — 41 | United States of America | Registered | 75/012392 | 10/25/95 | 2086400 | 8/5/97 | ||||||||
STRATOSPHERE — 42 | United States of America | Registered | 75/012393 | 10/25/95 | 2086401 | 8/5/97 | ||||||||
STRATOSPHERE & Design (Tower) | Nevada | Registered | TM00280579 | 11/8/95 | ||||||||||
STRATOSPHERE & Design (Tower) | Nevada | Registered | TM00280578 | 11/8/95 |
Application | Application | Registration | Registration | |||||||||||
Trademark | Country | Status | Number | Date | Number | Date | ||||||||
STRATOSPHERE LAS VEGAS & Design | United States of America | Registered | 78/810435 | 2/8/06 | 3212812 | 2/27/07 | ||||||||
THE CHAPEL IN THE CLOUDS | United States of America | Registered | 76/423047 | 6/17/02 | 2868387 | 8/3/04 | ||||||||
THE CRAZY ARMADILLO OYSTER BAR & Design | United States of America | Registered | 76/565398 | 12/3/03 | 2982669 | 8/9/05 | ||||||||
THE STRAT—16 | United States of America | Published | 77/561661 | 9/3/08 | ||||||||||
THE STRAT — 18 | United States of America | Published | 77/561666 | 9/3/08 | ||||||||||
THE STRAT — 21 | United States of America | Published | 77/561670 | 9/3/08 | ||||||||||
THE STRAT — 25 | United States of America | Published | 77/561672 | 9/3/08 | ||||||||||
THE STRAT — 41 | United States of America | Published | 77/561656 | 9/3/08 | ||||||||||
THE STRAT — 43 | United States of America | Published | 77/561675 | 9/3/08 | ||||||||||
TOP OF THE WORLD | United States of America | Registered | 75/012390 | 10/25/95 | 2072694 | 6/17/97 | ||||||||
TOWER PIZZERIA | Nevada | Registered | 2/26/09 | E0114012009-1 | 2/26/09 | |||||||||
ULTIMATE ACTION CASH | Nevada | Registered | SM00350736 | 8/13/03 | ||||||||||
ULTIMATE REWARDS | United States of America | Registered | 76/426101 | 6/28/02 | 2826028 | 3/23/04 | ||||||||
ULTIMATE REWARDS | Nevada | Registered | SM00340979 | 8/30/02 | ||||||||||
X SCREAM | United States of America | Registered | 76/565397 | 12/3/03 | 2904610 | 11/23/04 | ||||||||
ARIZONA CHARLIE’S INC. | Nevada | Registered | TN00210524 | 1/21/98 | ||||||||||
BINGO-THON | Nevada | Registered | SM00240533 | 7/1/01 | ||||||||||
BINGO-THON (Stylized) | Nevada | Registered | SM00240534 | 7/1/01 | ||||||||||
CHARLIE REWARDS | Nevada | Registered | TM00340242 | 9/19/01 | ||||||||||
CHARLIE REWARDS CLUB | Nevada | Registered | TN00340243 | 9/19/01 | ||||||||||
CHARLIE REWARDS PROGRAM | Nevada | Registered | TN00340244 | 9/19/01 | ||||||||||
LOTTA-LOOT | Nevada | Registered | SM0029569 | 11/20/96 | ||||||||||
NAUGHTY LADIES | Nevada | Registered | TN00340475 | 1/29/02 | ||||||||||
PAYCHECK POKER | Nevada | Registered | SM0021900 | 7/26/88 | ||||||||||
POINT POSSE | Nevada | Abandoned | SM00300111 | 6/30/97 | ||||||||||
PRIZE POSSE & Design | Nevada | Registered | SM00300888 | 4/13/98 |
Application | Application | Registration | Registration | |||||||||||
Trademark | Country | Status | Number | Date | Number | Date | ||||||||
AQUARIUS — 18 | United States of America | Registered | 78/8405011 | 3/17/06 | 3290626 | 9/11/07 | ||||||||
AQUARIUS — 35 | United States of America | Registered | 78/840494 | 3/17/06 | 3446781 | 6/10/08 | ||||||||
AQUARIUS — 41 | United States of America | Registered | 78/840491 | 3/17/06 | 3433077 | 5/20/08 | ||||||||
AQUARIUS — 43 | United States of America | Registered | 78/840469 | 3/17/06 | 3345860 | 11/27/07 | ||||||||
AQUARIUS — 43 | United States of America | Registered | 78/840488 | 3/17/06 | 3345861 | 11/27/07 | ||||||||
AQUARIUS — 44 | United States of America | Published | 78/840487 | 3/17/06 | ||||||||||
AQUARIUS — 6 | United States of America | Registered | 78/840511 | 3/17/06 | 3290627 | 9/11/07 | ||||||||
AQUARIUS & Design — 41 | United States of America | Registered | 78/840473 | 3/17/06 | 3353991 | 12/11/07 | ||||||||
AQUARIUS & Design — 43 | United States of America | Registered | 78/840475 | 3/17/06 | 3353992 | 12/11/07 | ||||||||
AQUARIUS, CASINO, HOTEL & Design — 41 | United States of America | Published | 78/840480 | 3/17/06 | ||||||||||
AQUARIUS , CASINO, HOTEL & Design — 43 | United States of America | Published | 78/840482 | 3/17/06 |
Bank of New York
Citizens Bank
LaSalle Bank
PNC Bank, N.A
Wells Fargo Bank
SunTrust Bank