Avenue CLO Fund, Ltd. et al v. Bank of America, N.A., et al

Filing 79

CERTIFIED REMAND ORDER. MDL No. 2106. Signed by MDL (FLSD) on 1/14/14. (Attachments: # 1 Transmittal from FLSD, # 2 1 09-md-02106 Designation of Record, # 3 1 09-md-02106 Dkt. Sheet - flsd, # 4 09-MD-2106 DE 1, 2, 4-30, # 5 0 9-MD-2106 DE 32-36, # 6 09-MD-2106 DE 37 part 1 of 3, # 7 09-MD-2106 DE 37 part 2 of 3, # 8 09-MD-2106 DE 37 part 3 of 3, # 9 09-MD-2106 DE 38, 39, 41-47, 49, 50, # 10 09-MD-2106 DE 51, # 11 09-MD-2106 DE 52-59, 61-65, 68, 70, 72-76, # (1 2) 09-MD-2106 DE 78-84, 86-91, # 13 09-MD-2106 DE 93, 95-103, 106-108, # 14 09-MD-2106 DE 110-115, # 15 09-MD-2106 DE 116-125, 127-129, 132-134, # 16 09-MD-2106 DE 136-140, 142-158, # 17 09-MD-2106 DE 160-162, 164-167, 170-175, 177-190, # ( 18) 09-MD-2106 DE 191-199, 201-215, # 19 09-MD-2106 DE 217-229, 232-247, # 20 09-MD-2106 DE 248, # 21 09-MD-2106 DE 249 part 1 of 2, # 22 09-MD-2106 DE 249 part 2 of 2, # 23 09-MD-2106 DE 251-253, 262-266, 284-287, 300, 301, 310, 319, 326-3 31, # 24 09-MD-2106 DE 335, 336, 338-344, 346-349, # 25 09-MD-2106 DE 350, # 26 09-MD-2106 DE 351-358, # 27 09-MD-2106 DE 360-366, 368-374, # 28 09-MD-2106 DE 375 part 1 of 3, # 29 09-MD-2106 DE 375 part 2 of 3, # 30 09-MD-2106 DE 375 p art 3 of 3, # 31 09-MD-2106 DE 376 part 1, # 32 09-MD-2106 DE 376 part 2, # 33 09-MD-2106 DE 376 part 3, # 34 09-MD-2106 DE 376 part 4, # 35 09-MD-2106 DE 376 part 5, # 36 09-MD-2106 DE 376 part 6, # 37 09-MD-2106 DE 376 part 7, # 38 09-MD-2106 DE 376 part 8, # 39 09-MD-2106 DE 376 part 9, # 40 09-MD-2106 DE 377 part 1, # 41 09-MD-2106 DE 377 part 2, # 42 09-MD-2106 DE 378, # 43 09-MD-2106 DE 379, # 44 09-MD-2106 DE 380, # 45 09-MD-2106 DE 381 part 1, # 46 09-MD-2 106 DE 381 part 2, # 47 09-MD-2106 DE 382 part 1, # 48 09-MD-2106 DE 382 part 2, # 49 09-MD-2106 DE 382 part 3, # 50 09-MD-2106 DE 382 part 4, # 51 09-MD-2106 DE 383 part 1, # 52 09-MD-2106 DE 383 part 2, # 53 09-MD-2106 DE 383 part 3, # 54 09-MD-2106 DE 383 part 4, # 55 09-MD-2106 DE 383 part 5, # 56 09-MD-2106 DE 383 part 6, # 57 09-MD-2106 DE 383 part 7, # 58 09-MD-2106 DE 383 part 8, # 59 09-MD-2106 DE 383 part 9, # 60 09-MD-2106 DE 383 part 10, # 61 09-MD-2106 DE 383 part 11, # 62 09-MD-2106 DE 384 part 1, # 63 09-MD-2106 DE 384 part 2, # 64 09-MD-2106 DE 384 part 3, # 65 09-MD-2106 DE 384 part 4, # 66 09-MD-2106 DE 384 part 5, # 67 09-MD-2106 DE 384 part 6, # 68 09-MD-2106 DE 384 part 7, # ( 69) 09-MD-2106 DE 384 part 8, # 70 09-MD-2106 DE 384 part 9, # 71 09-MD-2106 DE 384 part 10, # 72 09-MD-2106 DE 384 part 11, # 73 09-MD-2106 DE 385 part 1, # 74 09-MD-2106 DE 385 part 2, # 75 09-MD-2106 DE 386 part 1, # 76 09-MD-2106 DE 386 part 2, # 77 09-MD-2106 DE 386 part 3, # 78 09-MD-2106 DE 386 part 4, # 79 09-MD-2106 DE 386 part 5, # 80 09-MD-2106 DE 386 part 6, # 81 09-MD-2106 DE 386 part 7, # 82 09-MD-2106 DE 387 part 1, # 83 09-MD-2106 DE 387 part 2, # 84 09-MD-2106 DE 388, # 85 09-MD-2106 DE 389 part 1, # 86 09-MD-2106 DE 389 part 2, # 87 09-MD-2106 DE 389 part 3, # 88 09-MD-2106 DE 389 part 4, # 89 09-MD-2106 DE 390, 392-394, # 90 1 10-cv-20236 Dkt. Sheet - flsd, # 91 10cv20236 DE #1-27, 29-31, 45, 53, 60-65, 67-70, 73, # 92 1 09-cv-23835 Dkt. Sheet - flsd, # 93 09cv23835 DE 112, 115-126, # 94 09cv23835 DE 130, 134, 135 and 145)(Copies have been distributed pursuant to the NEF - MMM)

Case 1:09-md-02106-ASG Document 37 Entered on FLSD Docket 02/18/2010 Page 1 of 4

Case 1:09-md-02106-ASG Document 37 Entered on FLSD Docket 02/18/2010 Page 2 of 4

Case 1:09-md-02106-ASG Document 37 Entered on FLSD Docket 02/18/2010 Page 3 of 4

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Declaration of
Thomas C. Rice in Support of Defendants’ Joint Motions to Dismiss the Term Lender
Complaints was furnished via e-mail (where an e-mail address is listed) and First Class
U.S. Mail to those on the attached service list on February 18, 2010.

By:

/s/ John B. Hutton
John B. Hutton

Service List:
Andrew B. Kratenstein
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10017
[e-mail]
James B. Heaton, III
BARTLIT BECK HERMAN PALENCHAR & SCOTT
54 West Hubbard Street
Suite 300
Chicago IL 60610
[e-mail]
Jean-Marie L. Atamian
MAYER BROWN LLP
1675 Broadway
New York, NY 10019
[e-mail]
Jed I. Bergman
KASOWITZ BENSON TORRES & FRIEDMAN LLP
1633 Broadway
New York NY 10029
[e-mail]
Daniel L. Cantor
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
[e-mail]

Case 1:09-md-02106-ASG Document 37 Entered on FLSD Docket 02/18/2010 Page 4 of 4

Peter J. Most
HENNIGAN BENNETT & DORMAN LLP
865 S. Figueroa Street
Suite 2900
Los Angeles, CA 90017
[e-mail]
Anthony L. Paccione
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022
[e-mail]
Peter J. Roberts
SHAW GUSSIS FISHMAN GLANTZ WOLFSON & TOWBIN LLC
371 North Clark Street
Suite 800
Chicago, IL 60654
[e-mail]
Aaron Rubinstein
KAYE SCHOLER LLP
425 Park Avenue
12th Floor
New York, NY 10022
[e-mail]

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 1 of 47

Exhibit A

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 2 of 47

Published CUSIP Number: 34460YAA5
EXECUTION

CREDIT AGREEMENT
Dated as of June 6, 2007
among
FONTAINEBLEAU LAS VEGAS, LLC and
FONTAINEBLEAU LAS VEGAS II, LLC,
as Borrowers
The Lenders referred to herein
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Lender and Swing Line Lender
~---""---------

BANC OF AMERICA SECURITIES LLC,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
BARCLAYS BANK PLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Joint Lead Arrangers and Joint Book Managers
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Syndication Agent
BARCLAYS BANK PLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Documentation Agents

W02-WEST:1BEHI\40016128918

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 3 of 47
TABLE OF CONTENTS

SECTION 1.
1.1
1.2
1.3
1.4

DEFINITIONS
Defined Terms
Other Definitional Provisions
Letter of Credit Amounts
Times of Day

SECTION 2.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24

AMOUNT AND TERMS OF COMMITMENTS
Loans and Commitments Generally
Amortization and Scheduled Principal Payments
Partial Conversion of the Revolving Commitments
Procedures for Borrowing; Where Disbursed
Swing Line Commitment
Procedure for Swing Line Borrowing; Refunding of Swing Line Loans
Repayment of Loans; Evidence of Indebtedness
Commitment Fees, etc
Termination or Reduction of Commitments
Optional Prepayments
Mandatory Prepayments and Commitment Reductions
Conversion and Continuation Options
Minimum Amounts and Maximum Number of Eurodollar Tranches
Interest Rates and Payment Dates
Computation of Interest and Fees
Inability to Determine Interest Rate
Requirements of Law
Taxes
Indemnity
Illegality
Change of Lending Office
Loss Proceeds
Payments Generally; Administrative Agent's Clawback
Sharing of Payments by Lenders

SECTION 3.
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10

LETTERS OF CREDIT
The UC Commitment
Procedures for Issuance and Amendment of Letters of Credit..
Drawings and Reimbursements; Funding of Participations
Repayment of Participations
Obligations Absolute
Role of Issuing Lender
Cash Collateral
Applicability ofISP and DCP
Letter of Credit Fees
Fronting Fee and Documentary and Processing Charges Payable to Issuing
Lender

W02-WEST:IBEHI\400161289.18

1
1
39
.40
40

~

-1-

,

.41
..41
.42
.43
.43
44
..45
.46
47
.48
.48
..49
51
52
52
53
53
54
56
58
59
59
59
61
64
65
65
66
67
69
70
70
71
72
72
72

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 4 of 47
3.11

Conflict with Issuer Documents

73

SECTION 4.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
4.27
4.28
4.29

REPRESENTATIONS AND WARRANTIES
Financial Condition
No Material Adverse Effect
Corporate/LLC Existence; Compliance with Law
Corporate Power; Authorization; Enforceable Obligations
No Legal Bar
No Material Litigation
No Default.
Ownership of Property; Liens
Intellectual Property
Taxes
Federal Regulations
Labor Matters
ERISA
Investment Company Act; Other Regulations
Subsidiaries
Use of Proceeds; Letters ofCredit..
Environmental Matters
Accuracy of Information
Security Documents
Solvency
:
Second Mortgage Notes
,
Regulation H
Insurance
Performance of Agreements; Material Agreements
The Site
Permits
Utilities
,
Fiscal Year
Transactions with Affiliates

73
73
74
74
74
75
75
75
75
76
76
77
77
77
77
77
78
78
79
80
81
81
81
81
81
81
83
83
83
83

SECTION 5.
5.1
5.2
5.3

CONDITIONS PRECEDENT
Conditions to Closing Date
Conditions to Extensions of Credit controlled by Disbursement Agreement..
Conditions to Extensions of Credit following the Opening Date (except for
Reserved Amounts)

83
83
84

AFFIRMATIVE COVENANTS
Financial Statements
Certificates; Other Information
Payment of Obligations
Conduct of Business and Maintenance of Existence, etc
Maintenance of Property; Leases; Insurance
Inspection of Property; Books and Records; Discussions
Notices
Environmental Laws; Permits

85
85
87
89
89
90
90
91
92

SECTION 6.
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8

W02-WEST:1BEHI\400161289.18

-11-

:

84

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 5 of 47
6.9
6.10
6.11
6.12
6.13
6.14
SECTION 7.
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.20
7.21
7.22
7.23
7.24

Interest Rate Protection
Additional Collateral, Discharge of Liens, etc
Use of Proceeds and Revenues
Compliance with Laws; Permits
Further Assurances
Condo Unit Sales
NEGATIVE COVENANTS
Financial Covenants
,
,
Limitation on Indebtedness
Limitation on Liens
Limitation on Fundamental Changes
Limitation on Disposition of Property
Limitation on Restricted Payments and Payments in respect of
Subordinated Affiliate Expenses
Limitation on Capital Expenditures
Limitation on Investments
Limitation on Optional Payments and Modifications of Governing
Documents
Limitation on Transactions with Affiliates
Limitation on Sales and Leasebacks
Limitation on Changes in Fiscal Periods
Limitation on Negative Pledge Clauses
Limitation on Restrictions on Subsidiary Distributions, etc
Limitation on Lines of Business
Restrictions on Changes
Limitation on Formation and Acquisition of Subsidiaries and Purchase of
Equity Interests
Limitation on Hedge Agreements
Limitation on Sale or Discount of Receivables
Limitation on Zoning and Contract Changes and Compliance
No Joint Assessment; Separate Lots
Acquisition of Real Property
Use of Proceeds
'"
Liquidity Account

93
93
95
95
96
97
98
98
99
100
103
103
105
106
107
108
108
109
109
109
110
110
110
111
111
111
111
111
111
112
112

SECTION 8. EVENTS OF DEFAULT

113

SECTION 9. THE ADMINIStRATIVE AGENT; THE ARRANGERS; THE
MANAGERS
9.1
Appointment and Authority
9.2
Rights as a Lender
9.3
Exculpatory Provisions
9.4
Reliance by Administrative Agent..
9.5
Delegation of Duties
9.6
Resignation of Administrative Agent
9.7
Non-Reliance on Administrative Agent and Other Lenders
9.8
No Other Duties, Etc

118
118
119
119
120
120
120
121
122

WQ2-WEST:1BEHI\40016128918

-111-

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 6 of 47
9.9
9.10
9.11
SECTION 10.
10.1
10.2
10.3
lOA
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
10.21
10.22
10.23
10.24
10.25

Administrative Agent May File Proofs of Claim
Collateral and Guarantee Matters
Withholdings

122
122
124

MISCELLANEOUS
124
Amendments and Waivers
124
Notices; Effectiveness; Electronic Communications
126
No Waiver; Cumulative Remedies ........................•............................................. 128
Survival of Representations and Warranties
'"
128
Expenses; Indemnity; Damage Waiver..
129
Successors and Assigns
131
Adjustments; Set-off
135
Counterparts
135
Severability
135
Integration
135
GOVERNING LAW
136
Submission To Jurisdiction; Waivers
136
Certain Matters Affecting Lenders
136
Acknowledgments
137
Treatment of Certain Information; Confidentia1ity
138
138
Release of Collateral and Guarantee Obligations
Accounting Changes
139
Delivery of Lender Addenda
139
Construction
139
Payments Set Aside
140
Replacement of Lenders
140
141
WAIVERS OF JURY TRIAL.
Gaming Authorities
141
USA PATRIOT Act Notice
,
142
Joint and Several
142

W02-WEST:l BEHl\400161289.18

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Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 7 of 47

SCHEDULES:
1.1
1.2

4.1
4.4

4.6
4.9
4.19(a)-1
4. 19(a)-2
4.19(c)
4.24
4.25
4.29
6.5(d)
6.14
10.2

Closing Date Loan Documents
V nrecorded Leases
Contingent Obligations, Etc., of Parent and its Subsidiaries as of
the Closing Date
Consents, Authorizations, Filings and Notices
Litigation
Intellectual Property
UCC Filing Jurisdictions - Collateral
VCC Financing Statements to Remain on File
UCC Filing Jurisdictions - Intellectual Property Collateral
Material Agreements
Space Leases
Affiliate Agreements
Insurance Requirements
Condo Unit Release Prices
Administrative Agent's Office, Certain Addresses for Notices

EXHIBITS:
A
B

C
D
E

F-l
F-2
G-l

G-2
G-3
G-4
G-5
H
I
J
K

W02-WEST: I BEHI \400161289" 18

Form of Assignment and Assumption
Form of Compliance Certificate
[Reserved]
Form of Lender Addendum
Form of Notice of Borrowing
Form of Project Lender Intercreditor Agreement
Form of Retail Intercreditor Agreement
Form of Conversion Term Note
Form of Delay Draw Term Note
Form of Initial Term Note
Form of Revolving Note
Form of Swing Line Note
Form of Exemption Certificate
Form of Insurance Certificate
Joint Borrower Provisions
Form of Condo Sales Agreement

-v-

Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 8 of 47

This CREDIT AGREEMENT is entered into as of June 6, 2007 among
FONTAINEBLEAU LAS VEGAS, LLC, a Nevada limited liability company, and
FONTAINEBLEAU LAS VEGAS II, LLC, a Florida limited liability company (collectively, the
"Borrowers"), each lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Issuing
Lender and Swing Line Lender. BANC OF AMERICA SECURITIES LLC, DEUTSCHE
BANK TRUST COMPANY AMERICAS, BARCLAYS BANK PLC and MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED have served as Joint Lead Arrangers and Joint
Book Managers for the credit facilities described herein (collectively, the "Arrangers").
DEUTSCHE BANK TRUST COMPANY AMERICAS has served as Syndication Agent for the
credit facilities described herein. BARCLAYS BANK PLC and MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED have served as Documentation Agents for the credit
facilities described herein.

RECITALS
Borrowers propose to develop, construct and operate the Fontainebleau
Resort and Casino on the Site. The Retail Affiliate will initially lease the Retail Air Space
Parcels and will contribute the financing of certain aspects of the Project using the proceeds of
the Retail Facility.
A.

B.
Pursuant to the Disbursement Agreement, the proceeds of the Second
Mortgage Notes, the loans under the Retail Facility, the Loans under this facility, and other funds
available to the Project Entities for the construction of the Project will be disbursed.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1
Defined Terms. As used in this Agreement, the terms listed in this Section
1.1 shall have the respective meanings set forth in this Section 1.1, provided that to the extent not
so listed, each term used in this Agreement shall be used with the meaning set forth for that term
in the Disbursement Agreement, or, to the extent the Disbursement Agreement is then not in
effect, the Disbursement Agreement as of the last day of its effectiveness:
"Access Road" means a proposed access road serving the Site and the Wet
'n Wild Property.
"Account" means any "Commodity Account," "Deposit Account" or
"Securities Account" (as such terms are defined in the UCC) with respect to which the
Secured Parties have a perfected first priority Lien (subject only to Permitted Liens)
securing the Obligations of the Companies pursuant to a Control Agreement.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor administrative
agent.

W02-WEST: IBEHI\400161289.18

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Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 9 of 47

"Administrative Agent Fee Letter" means the letter agreement of even date
herewith among Borrowers and the Administrative Agent, as the same may be amended,
supplemented, replaced or otherwise modified from time to time.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.2, or such other address or
account as the Administrative Agent may from time to time notify to Borrowers and the
Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate Agreements" means, collectively, the agreements set forth on
Schedule 4.29, each as amended, restated, extended, supplemented or otherwise modified
in accordance with the provisions hereof.
"Affiliate Lease" means that certain Lease dated as of June 6,2007
between the Retail Affiliate, as lessor, and Fontainebleau Las Vegas, LLC, as lessee.
"Aggregate Exposure" means with respect to any Lender at any time, the
sum of (i) the amount of such Lender's Delay Draw Commitment then in effect or, if the
Delay Draw Commitments have been terminated, the amount of such Lender's Delay
Draw Term Loans then outstanding, (ii) the amount of such Lender's Initial Term Loans
then outstanding, (iii) the amount of such Lender's Revolving Commitment then in effect
or, if the Revolving Commitments have been terminated, the amount of such Lender's
Revolving Extensions of Credit then outstanding and (iv) the amount of such Lender's
Conversion Term Loans then outstanding.
"Aggregate Exposure Percentage" means with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure at
such time to the Aggregate Exposure of all Lenders at such time.
"Agreement" means this Credit Agreement, as amended, supplemented,
replaced or otherwise modified from time to time.
"Allocated Overhead Expense" means 75% of all expenses of Parent and
its Subsidiaries, determined in accordance with GAAP consistently applied, less (a) any
expense directly paid by or chargeable to a Subsidiary of Parent or for which Parent
obtains reimbursement from one of its Subsidiaries (other than pursuant to Section 6 of
the Parent Reimbursement Agreement), (ii) without duplication, any expense which is
otherwise reimbursed under the Parent Reimbursement Agreement (other than pursuant
to Section 6 thereof), and (iii) any expense in the nature of depreciation, amortization or
other similar non-cash charges.
"Amortization Date" means the last day of each March, June, September
and December.
"Applicable Facility Lenders" means with respect to each Facility, NonW02WEST:IBEHI\400i61289.18

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Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 10 of 47

Defaulting Lenders holding more than 33Y/fo of the Obligations outstanding under such
Facility (or, prior to any termination of the Delay Draw Commitments or the Revolving
Commitments, as the case may be, Non-Defaulting Lenders holding more than 33Y3% of
the Total Delay Draw Commitments (less the aggregate Delay Draw Commitments of
Defaulting Lenders) or Total Revolving Commitments (less the aggregate Revolving
Commitments of Defaulting Lenders), as the case may be).
"Applicable Margin" means,
(a)
in respect of each Term Loan which is a Eurodollar Loan, 3.25% per
annum plus any then applicable Condo Sales Performance Adjustment;
(b)
in respect of each Term Loan which is a Base Rate Loan, 2.00% per
annum plus any then applicable Condo Sales Performance Adjustment; and
in respect of each Revolving Loan, Conversion Term Loan, Swing Line
(c)
Loan and Letter of Credit:
(i)
for all periods prior to the commencement of the Initial Pricing
Period:
(A)
in respect of each such Loan which is a Eurodollar
Loan and in respect of each Letter of Credit, 3.25% per annum plus
any then applicable Condo Sales Performance Adjustment; and
(B)

in respect of each such Loan which is a Base Rate
Loan, 2~00% per annum plus any then applicable Condo Sales
Performance Adjustment.
(ii)
thereafter, during each Pricing Period, the rates per annum set forth
below opposite the Total Leverage Ratio as of the last day of the Fiscal
Quarter ending two months prior to the first day of that Pricing Period,
provided that (A) if a Compliance Certificate is not delivered prior to the
first day of any Pricing Period, then Pricing Level IV shall apply until the
required Compliance Certificate is delivered, and (B) each of the rates set
forth below shall be increased by any then applicable Condo Sales
Performance Adjustment:
Pricing
Level

Total Leverage Ratio

Eurodollar
Loans

Base Rate Loans

Letter of Credit
Fees

I

Less than 5.00: 1.00

2.50%

1.25%

2.50%

II

Greater than or equal to 5.00: 1.00,
but less than 5.50: 1.00

2.75%

1.50%

2.75%

III

Greater than or equal to 5.50: 1.00,
but less than 6.00: 1.00

3.00%

1075%

3.00%

Greater than or equal to 6.00: 1.00

3.25%

2.00%

3.25%

IV
-

W02-WEST:IBEHl\400161289.18

_..

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Case 1:09-md-02106-ASG Document 37-1 Entered on FLSD Docket 02/18/2010 Page 11 of 47

provided further that, notwithstanding anything to the contrary contained in this
definition, the determination of the Applicable Margin for any period shall be subject to
the provisions of Section 2.15(c).
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Arrangers" as defined in the preamble hereto.
"Asset Sale" means any Disposition of Property or series of related
Dispositions of Property by the Companies of the types described in Section 7.5(e) for a
consideration in excess of $250,000.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 1O.6(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit A or any other form approved by the Administrative
Agent.
"Available Delay Draw Commitments" means, as to any Delay Draw
Lender at any time, the excess, if any, of (a) such Delay Draw Lender's Delay Draw
Commitment then in effect over (b) such Delay Draw Lender's Delay Draw Term Loans
then outstanding.
"Available Revolving Commitment" means as to any Revolving Lender at
any time, the excess, if any, of (a) such Revolving Lender's Revolving Commitment then
in effect over (b) such Revolving Lender's Revolving Extensions of Credit then
outstanding; provided, that in calculating the Revolving Commitment Fee, the aggregate
principal amount of Swing Line Loans then outstanding shall be deemed to be zero.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its "prime
rate." The "prime rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on the day specified in the
public announcement of such change.

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"Base Rate Loans" means Loans for which the applicable rate of interest is
based upon the Base Rate.
"Beneficial Owner" as defined in Rule 13d-3 and Rule 13d-5 under the
Securities Exchange Act of 1934, except that in calculating the beneficial ownership of
any particular "person" (as that term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934), such "person" will be deemed to have beneficial ownership of all
securities that such "person" has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. The term "Beneficially Owned" has a
corresponding meaning.
"~Qard" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).

"Board of Directors" means(i) with respect to a corporation, the board of
directors of the corporation; (ii) with respect to a partnership, the board of directors of the
general partner of the partnership; and (iii) with respect to any other Person, the board or
committee of such Person serving a similar function.
"Borrowers" as defined in the preamble hereto.
"Borrowing Date" means any Banking Day specified by Borrowers as a
date on which Borrowers request the relevant Lenders to make Loans hereunder.
"Capital Expenditures" means, for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment
which should be capitalized under GAAP on a consolidated balance sheet of such Person
and its Subsidiaries; provided, that the amount of Capital Expenditures in respect of fixed
or capital assets or additions to equipment in any Fiscal Year shall not include (a) the Net
Cash Proceeds received by any such Person from Dispositions of Property pursuant to
Section 7.5 and applied to the acquisition of fixed or capital assets and (b) the Loss
Proceeds received by any such Person for any casualties to, or Taking of, fixed or capital
assets and applied during such Fiscal Year to the repair or replacement of fixed or capital
assets in accordance with Section 2.22.
"Capital Lease Obligations" means, as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and, for the purposes of this Agreement, the amount
of such obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Cash Collateral" means cash or deposit account balances in respect of
which the Administrative Agent has been granted a perfected Lien to secure the
Obligations.
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"Cash Management Agreement" means any agreement to provide cash
management services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements.
"Cash Management Bank" means any Lender or any Affiliate thereof, or
any Person that was a Lender or an affiliate thereof on the date of the execution of any
Cash Management Agreement, in its capacity as a party to a Specified Cash Management
Agreement.
"Change of Control" means an event or series of events by which:
(a)
Either of Borrowers fail to be wholly-owned, directly or indirectly,
by Parent and by Resorts Properties I;
(b)
The Jeffrey Soffer Parties fail to directly or indirectly own,
beneficially and of record, and control the power to vote, at least 35% of the Equity
Interests in Parent having ordinary voting power in the election of directors or managers
(unless a Qualified Offering of such interests has occurred, in which case, the required
percentage shall be reduced to 20%); or
(c)
Schaeffer fails to be the Chief Executive Officer of Parent or fails
to exercise all of the material prerogatives associated with such office (except in respect
of disability lasting not more than 90 days), unless a successor reasonably acceptable to
the Required Lenders is appointed within 120 days or, following the Completion of the
Project, 180 days; or
(d)
any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934), directly or indirectly, of a greater percentage of the Equity Interests of
Parent having ordinary voting power for the election of the board of directors, managers
or their equivalent of Parent on a fully-diluted basis (and taking into account all such
securities that such "person" or "group" has the right to acquire pursuant to any option
right) than the Jeffrey Soffer Parties; or
(e)
Parent shall cease, directly or indirectly, to own and control legally
and beneficially all of the Equity Interests in Las Vegas Holdings; or
Las Vegas Holdings shall cease, directly or indirectly, to own and
control legally and beneficially all of the Equity Interests in Borrowers and the other
Companies.
(f)

"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all Property of the Companies now owned or hereafter
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acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment" means as to any Lender, the sum of the Initial Ternl
Commitment, the Delay Draw Commitment and the Revolving Commitment of such
Lender.
"Committed Condo Sales Proceeds" means, as of the last day of each
calendar month, the aggregate retail sales price for all Condo Units for which Borrowers
have entered into Executed Condo Sales Agreements as of that date, provided that (a)
until Borrowers first deliver a Condo Sales Report, the Committed Condo Sales Proceeds
shall be deemed to be zero, and (b) the amount of any such sales in respect of which
Borrowers are aware of any monetary default by the purchaser, or as to which the
purchaser has repudiated its obligations in writing, shall be excluded.
"Companies" means Las Vegas Holdings and its Subsidiaries.
"Company Excess Cash Flow Percentage" means, for any period, the
difference between 100% and the Lender Excess Cash Flow Percentage for such period.
"Completion Guaranty Reimbursement Obligations" means all obligations
of the Companies to make any reimbursement, indemnity or similar payment to the issuer
of any Completion Guaranty pursuant to Section 3(a) of the Credit Enhancement Fee
Agreement, including without limitation any reimbursement obligations by reason of
drawings made under any Completion Guaranty.
"Compliance Certificate" means a certificate duly executed by a
Responsible Officer of the Companies substantially in the form of Exhibit B hereto.
"Condo Closing Agent" means Nevada Title Company, or another
independent servicer or closing agent for Condo Unit sales which is reasonably
acceptable to the Administrative Agent.
"Condo Sales Performance Adjustment" means:
(a) Prior to the Initial Condo Sales Performance Adjustment Period, 0%
per annum;
(b) During the Initial Condo Sales Performance Adjustment Period and
each subsequent Condo Sales Performance Adjustment Period or portion thereof prior to
the Condo Sales Performance Final Adjustment Date, the rate per allium set forth in the
matrix below opposite the ratio of Committed Condo Sales Proceeds to Targeted
Committed Condo Sales Proceeds (determined for each Condo Sales Performance
Adjustment Period as of the last day of the Fiscal Quarter immediately preceding the
commencement thereof):

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Ratio of Committed Condo Sales Proceeds ill Targeted
Committed Condo Sales Proceeds

Condo Sales
Perfonnance
Adjustment

0.85: 1.00 or greater

0%

Less than 0.85:1.00 but greater than or equal to 0.70:1.00

0.25%

Less than 0.70: 1.00 but greater than or equal to 0.65: 1.00

0.50%

Less than 0.65: 1.00

0.75%

provided, that, notwithstanding the foregoing provisions of this clause (b), if a Condo
Sales Report is not delivered within three Banking Days prior to an upcoming Condo
Sales Performance Adjustment Period, then the Condo Sales Performance Adjustment for
the upcoming Condo Sales Performance Adjustment Period shall be calculated on the
basis of the Committed Condo Sales Proceeds delivered in the most recent Condo Sales
Report until the required Condo Sales Report is delivered; and

(c)
From and after the Condo Sales Performance Final Adjustment
Date, the rate per annum set forth in the matrix below opposite the ratio of Total Net
Condo Sales Proceeds (determined as of the last day of the calendar month which is
twelve full calendar months following the Opening Date) to $702,000,000:
Total Net Condo Sales Proceeds to
$702,000,000

Final Condo Sales Performance
Adjustment

0.85: 1.00 or greater

0%

Less than 0.85: 1.00 but greater than
or equal to 0.70: 1.00

0.25%

Less than 0.70: 1.00 but greater than
or equal to 0.65: 1.00

0.50%

Less than 0.65: 1.00

0.75%

"Condo Sales Performance Adjustment Period" means, in respect of each
Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2009), the three
month period beginning one month following the last day of that Fiscal Quarter.
"Condo Sales Performance Final Adjustment Date" means the last day of
the calendar month which is thirteen full calendar months following the Opening Date.
"Condo Sales Report" means a monthly report executed by a Responsible
Officer of Borrowers detailing cumulative Condo Unit sales and, to the extent delivered
with respect to the last month of any Fiscal Quarter, the ratio of Committed Condo Sales
Proceeds to Targeted Committed Condo Sales Proceeds and otherwise in form and
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substance reasonably acceptable to the Administrative Agent.
"Condo Unit Release Price" means the "Minimum Release Price" set forth
for each Condo Unit on Schedule 6.14.
"Confidential Information Memorandum" means the Confidential Offering
Memorandum, dated March, 2007 and furnished to the initial Lenders.
"Consolidated Current Assets" means, at any date, all amounts (other than
any amount contained in the Accounts established by the Disbursement Agreement and
other cash and Cash Equivalents) which would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a consolidated balance
sheet of Las Vegas Holdings and its Subsidiaries at such date.
"Consolidated Current Liabilities" means, at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of Las Vegas Holdings
and its Subsidiaries at such date, but excluding (a) the current portion of the Funded
Debt, and (b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Loans, Conversion Term Loan, or Swing Line Loans to the extent otherwise
included therein.
"Consolidated First Lien Debt" means at any date, the sum as of that date
of (a) the aggregate outstanding principal amount of the Indebtedness under this
Agreement illus (b) the aggregate principal amount of any outstanding Indebtedness of
the type described in Section 7.2(e).
"Consolidated Interest Expense" means for any period, total cash interest
expense (including that attributable to Capital Lease Obligations) of Las Vegas Holdings
and its Subsidiaries for such period with respect to outstanding Indebtedness (including,
without limitation, all commissions, discounts and other fees and charges with respect to
letters of credit and bankers' acceptance financing and net costs under Hedge Agreements
in respect of interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Lease Expense" means for any period, the aggregate
amount of fixed and contingent rentals payable by Las Vegas Holdings and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, for such
period with respect to leases of real and personal property.
"Consolidated Member" means a corporation, other than the common
parent, that is a member of an affiliated group (as defined in Section 1504 of the Code) of
which any of the Companies is a member.
"Consolidated Net Income" means for any period, the vonsolidated net
income (or loss) of Las Vegas Holdings and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP; excluding (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of Las Vegas Holdings or
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is merged into or consolidated with Las Vegas Holdings or any of its Subsidiaries, and
(b) the income (or deficit) of any Person which is not a Subsidiary of Las Vegas Holdings
but in which Las Vegas Holdings has a direct or indirect ownership interest, except to the
extent that any such income is actually received by Las Vegas Holdings and its
Subsidiaries in the form of dividends or similar distributions.
"Consolidated Total Debt" means at any date, the aggregate principal
amount of all Indebtedness of Las Vegas Holdings and its Subsidiaries at such date, of
the types described in clauses (a) through (f) of the definition of "Indebtedness"
determined on a consolidated basis in accordance with GAAP, but excluding (i) any
Indebtedness of the types described in Section 7.2(f) and 7.2(j), and (ii) any Indebtedness
of the type described in clause (f) of the definition of "Indebtedness" to the extent not
required by GAAP to be quantified on the balance sheet of Las Vegas Holdings and its
Subsidiaries as of such date (as opposed to merely being a footnote thereto).
"Consolidated Working Capital" means at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities on such
date.
"ConstructioI! Consultant" means Inspection & Valuation International,
Inc. or such other construction consultant of recognized national standing appointed by
the Administrative Agent.
"Construction.Fees" means the "Contractor's Fee" (as defined in the Prime
Construction Agreement) payable by the Companies to the General Contractor pursuant
to the Prime Construction Agreement.
"Contractual Obligation" means as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Control Agreements" means any control agreement executed in favor of
the Administrative Agent for the benefit of the Secured Parties to secure the Obligations,
as the same may be amended, supplemented, replaced or otherwise modified from time to
time in accordance with this Agreement, including each such "Control Agreement"
described in the Disbursement Agreement granting such a Lien.
"Controlled Account" means a deposit, brokerage or other similar account
subject to a Control Agreement.
"Controlled Group Member" means an entity, whether or not incorporated,
which is under common control with any Borrower within the meaning of Section 4001
of ERISA or is part of a group that includes such Person and that is treated as a single
employer under Section 414 of the Code.
"Conversion Date" means the date selected by Borrowers which is not
later than six full calendar months following the date upon which the aggregate
outstanding principal balance of the Revolving Loans (exclusive of UC Obligations) first
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equals or exceeds $200,000,000. In the absence of a written election by Borrowers, the
Conversion Date shall be the date which is six months following the date upon which the
aggregate outstanding principal balance of the Revolving Loans (exclusive of UC
Obligations) first equals or exceeds $200,000,000 (or, if not a Banking Day, the next
Banking Day).
"Conversion Term Lender" means each Lender that is the holder of
Conversion Term Loans.
"Conversion Term Loan Percentage" means as to any Conversion Term
Lender at any time, the percentage which the aggregate principal amount of such Lender's
Conversion Term Loans then outstanding constitutes of·the aggregate principal amount of
the Conversion Term Loans then outstanding.
"Conversion Term Loans" means any term loans resulting from
conversion of Revolving Loans pursuant to Section 2.3.
"Conversion.Term Notes" as defined in Section 2.7(e).
"Credit Enhancement Fee Agreement" means the Credit Enhancement Fee
Agreement of even date herewith, among the Companies and Tumberry Residential, as at
any time amended.
"Credit Enhancement Fees" means any "Credit Enhancement Fee" (as
defined in the Credit Enhancement Fee Agreement) payable pursuant to the Credit
Enhancement Fee Agreement.
"Debtor Relief Laws" means the Bankmptcy Code, and all other
liquidation, conservatorship, bankmptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor
relief laws of the United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.
"Deed of Tmst" means the Deed of Tmst, Assignment of Rents and
Security Agreement dated as of the Closing Date executed and delivered by Borrowers in
respect of the Retained Site, either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or supplanted.
"Default" means any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
"Defaulting Lender" means at any time, (i) any Lender with respect to
which a Lender Default is in effect, (ii) any Lender that is the subject (as a debtor) of any
action or proceeding (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankmptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to adjudicate it a bankmpt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B) seeking
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appointment of a receiver, tmstee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, (iii) any Lender that shall make a general
assignment for the benefit of its creditors or (iv) any Lender that shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as they become
due.
"Delay Draw Commitment" means as to any Delay Draw Lender, the
obligation of such Lender, if any, to make a Delay Draw Term Loan to Borrowers
hereunder in a principal amount not to exceed the amount set forth under the heading
"Delay Draw Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof.
"Delay Draw Commitment Fee Rate" means 2.00% per annum.
"Delay Draw Commitment Period" means the period from and including
the Closing Date to the earlier of (a) the second anniversary of the Closing Date, or (b)
the Term Loan Termination Date.
"Delay Draw Lender" means each Lender that has a Delay Draw
Commitment or is the holder of a Delay Draw Term Loan.
"Delay Draw Term Loan Percentage" means as to any Delay Draw Lender
at any time, the percentage which such Lender's Delay Draw Commitment then
constitutes of the aggregate Delay Draw Commitments (or, at any time after the Delay
Draw Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Delay Draw Term Loans then outstanding constitutes
of the aggregate principal amount of the Delay Draw Term Loans then outstanding).
"Delay Draw Term Loans" as defined in Section 2.1(b).
"Delay Draw Term Notes" as defined in Section 2.7(e).
"Derivatives Counterparty" as defined in Section 7.6.
"Designated Equity_ Contributions" means cash contributions to the equity
capital of the Companies made following the Closing Date for the purpose of:
(a)

financing Equity Financed Capital Expenditures;

(b)

financing a shortfall in EBITDA;

(c) providing funds in accordance with Sections 3.8 or 3.9 of the
Disbursement Agreement;
provided that (i) no such contribution shall be deemed to finance more than one of these
purposes, and (ii) the Companies may not make more than two such designations to
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finance a shortfall in EBITDA during the term of this Agreement. No contribution to the
Companies shall be deemed a Designated Equity Contribution unless, within ten Banking
Days following their receipt thereof, the Companies deliver a certificate to the
Administrative Agent detailing the amount and source of the contribution and identifying
which of the purposes set forth above is being financed (and if the amouIlt thereof is to be
used to finance Equity Financed Capital Expenditures, identifying the Capital
Expenditures to be so financed).
"Direct Funding Account" means a Controlled Account with the
Administrative Agent into which Direct Loans (including Swing Line Loans) will be
funded.
"Direct Loans" has the meaning set forth in Section 2.1.
"Disbursement Agent" means Bank of America, in its capacity as
Disbursement Agent under the Disbursement Agreement, and any successor in such
capacity.
"Disbursement Agreement" means the Master Disbursement Agreement
dated as of the date hereof among Borrowers, Fontainebleau Las Vegas Holdings, LLC,
Fontainebleau Las Vegas Capital Corp., Fontainebleau Las Vegas Retail, LLC, the
Administrative Agent, Wells Fargo Bank, N.A., as the Tmstee, Lehman Brothers
Holdings Inc., as the Retail Agent and Bank of America, as the Disbursement Agent.
"Disbursement Agreement Loans" has the meaning set forth in
Section 2.1.
"Disbursement Agreement Event of Default" means an "Event of Default"
as defined in the Disbursement Agreement.
"Disposition" means with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, grant of restriction, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Disqualified Stock" means any Equity Interests or other ownership or
profit interest of Las Vegas Holdings that it is or, upon the passage of time or the
occurrence of any event, may become obligated to redeem, purchase, retire, defease or
otherwise make any payment in respect ofin consideration other than Equity Interests
(other than Disqualified Stock).
"Documentation Agents" means, collectively, Barclays Bank plc and
Merrill Lynch Capital.
"EBITDA" means for any period, Consolidated Net Income for such
period plus, without duplication and to the extent deducted in calculating such
Consolidated Net Income, the sum of:
(a) income tax expense or the Tax Amount (whether or not paid during
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such period);
(b) Consolidated Interest Expense, amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness;
(c) depreciation and amortization expense;
(d) amortization of intangibles (including goodwill);
(e) any extraordinary expenses or losses;
(f) pre-opening expenses related to the opening of the Project to the

extent not in excess of those contemplated by the Resort Budget;
(g) the aggregate net non-cash loss on the Disposition of Property other
than Condo Units by the Companies (other than sales of inventory in the ordinary
course of business);
(h) any cash or non cash expense relating to or loss resulting from the
development, marketing or Disposition of Condo Units;
(i)

Subordinated Affiliate Expenses;

(j) other non-cash items reducing such Consolidated Net Income
(excluding any such non-cash item to the extent that it represents an accrual or
reserve for potential cash items in any future period or amortization of a prepaid
cash item that was paid in a prior period);

(k) Designated Equity Contributions received during that period (to the
extent designated by Borrowers on a timely basis in accordance with the
definition thereof as an addition to EBITDA); and
minus, to the extent included in the calculation of such Consolidated Net Income,
the sum of:
(1) interest income;

(m) any extraordinary income or gains;
(n) the aggregate net non-cash gain on the Disposition of Property other
than Condo Units by the Companies (other than sales of inventory in the ordinary
course of business);
(0) cash or non cash gain resulting from the Disposition of Condo Units;

and
(p) other non-cash items increasing Consolidated Net Income for such
period (excluding any such non-cash item to the extent it represents the reversal
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of an accmal or reserve for potential cash item in any prior period).
"Equity Financed Capital Expenditures" means any Capital Expenditures
which are made using the proceeds of Designated Equity Contributions made not earlier
than 90 days prior to the date upon which such Capital Expenditures are made or
committed to be made by the Companies, provided that (a) within ten Banking Days
following the receipt by the Companies of such contributions, the Companies shall
provide the Administrative Agent with notice thereof, and describe the proposed Capital
Expenditures, (b) no such Capital Expenditure shall result in a change to the Resort
Budget or Combined Costs which is not permitted by the Disbursement Agreement, or
result in a Scope Change which is not permitted by the Disbursement Agreement, and (c)
no such Capital Expenditures shall be made which result in any material dismption of the
Project.
"Eligible Assignee" means any Person that meets the requirements to be
an assignee under Section 1O.6(b)(iii), (v) and (vi) (subject to such consents, if any, as
may be required under Section 1O.6(b)(iii)).
"Eurocurrency Reserve Requirements" means, for any day as applied to a
EurodollarLoan, the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other reserves
under any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto or otherwise required by applicable law) applicable to any member
bank of the Federal Reserve System in respect of eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under Regulation D).
"Eurodollar Loans" means Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Loan, the rate per annum equal to the British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent from
time to time) at approximately 11:00 A.M. (London time) two Banking Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "Eurodollar Rate" for such Interest Period
shall be the rate. per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11 :00 A.M. (London time) two
Banking Days prior to the commencement of such Interest Period.
"Eurodollar Tranche" means the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same date and
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end on the same later date (whether or not such Loans shall originally have been made on
the same day).
"Event of Default" means any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Cash Flow" means, for each Excess Cash Flow Period, the
amount calculated as follows:
(i)

EBITDA; plus

(ii)

interest income; plus

(iii) any decrease in Consolidated Working Capital (or minus any
increase thereto); plus
(iv) any increase (or minus any decrease), if any, in the deferred tax
account of the Companies; minus
(v)

Consolidated Interest Expense; minus

(vi) to the extent paid in cash, debt issuance costs and commissions,
discounts and other fees and charges associated with Indebtedness; minus
(viii) to the extent paid in cash, any extraordinary expenses or losses (or
plus to the extent paid in cash, any extraordinary income or gains); minus
(ix) to the extent paid in cash, pre-opening expenses related to the opening
of the Project to the extent not in excess of those contemplated in the Resort Budget;
mmus
(x) Designated Equity Contributions to the extent included in arriving at
EB lTDA; minus
(xi) income tax expense or the Tax Amount (to the extent paid in cash
during such period); minus
(xii) Capital Expenditures other than Project Costs and Equity Financed
Capital Expenditures made in cash; minus
(xiii) Any scheduled amortization and mandatory prepayment of Funded
Debt during such Excess Cash Flow Period (other than any prepayments required
pursuant to Section 2.11(a)(ii) by reason of Dispositions of Condo Units or pursuant to
Section 2.11(a)(vi) by reason of Excess Cash Flow for any prior period); minus
(xiv)
W02-WEST:IBEHI\400161289 18

the aggregate amount of any proceeds of Asset Sales which are
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subject to a Reinvestment Notice that are applied to the payment of Capital Expenditures
during such Excess Cash Flow Period to the extent such proceeds are included in arriving
at EBITDA for that Excess Cash Flow Period; minus
(xv) Without duplication as to (xiii), any prepayment of the Revolving
Loans and Swing Line Loans during such Excess Cash Flow Period to the extent
accompanied by a corresponding permanent reduction in the amount of the Revolving
Commitments and all optional prepayments of Term Loans and Conversion Term Loans;
provided that the conversion of Revolving Loans to Conversion Term Loans shall not
reduce Excess Cash Flow.

"Excess Cash Flow Period" means (a) the period beginning on the first day
of the Fiscal Quarter commencing on or following the Opening Date and ending on the
first June 30 or December 31 which is at least six full calendar months following the
Opening Date, and (b) each subsequent period of six months ending on each June 30 and
December 31 thereafter.
"Excess Cash Flow Recapture" as defined in Section 2.11(b)(v).
"Excluded Assets" (i) the Second Mortgage Proceeds Account, (ii) any
assets the acquisition of which was financed by Indebtedness permitted by Section 7.2(e),
to the extent that the terms of such Indebtedness prohibit additional Liens on such assets
(but only to the extent and so long as so prohibited), (iii) any license, permIt or
authorization issued by any of the Nevada Gaming Authorities or any other
Governmental Authority, (iv) any contracts, contract rights, permits, licenses,
authorizations, instruments, general intangibles or any other Collateral, which by their
terms, the terms of any documents, agreements, instruments, permits, licenses, or
authorizations relating thereto, or the operation of law (including any Nevada Gaming
Laws or other applicable law) may not be assigned or pledged, or in which a security
interest may not be created or for which any consent for assignment or creation of a
security interest therein is required and has not been obtained or which would be
breached or terminated (or permits any Person to exercise a remedy thereunder) by virtue
of a security interest being granted (other than to the extent that any such prohibition or
consent requirement would be rendered ineffective pursuant to Section 9-406,9-407,9408 or 9-409 of the UCC) or which would require a finding of suitability or other similar
approval or procedure by any of the Nevada Gaming Authorities or any other
Governmental Authority prior to being pledged, hypothecated, or given as collateral
security; provided, however, that the security interest shall attach immediately at such
time as the restriction prohibiting assignment shall be removed or any condition thereto
shall be satisfied or such required finding of suitability or other approval has been
obtained, (v) any water rights, to the extent that the requisite approvals from the Nevada
Public Utility Commission for the granting of security interests therein have not been
obtained; (vi) insofar as perfection of Liens granted by the Security Documents is
concerned, Vehicles (as defined in the Guarantee and Collateral Agreement), (vii) any
United States intent-to use trademark or service mark application to the extent that, and
solely during the period in which, the grant of a security interest therein would impair the
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validity or enforceability of such intent-to-use trademark or service mark applications
under federal law (after such period, such interest in such trademark or service mark
applications will become part of the Collateral); (viii) any Collateral released from the
Lien of the Administrative Agent securing the Obligations as permitted by the terms of
each of the Loan Documents; (ix) any deposits or cash subject to Liens described in
Sections 7.3 (f), (g), (0) or (p); and (x) any mandatory gaming security reserves or other
reserves required under applicable Nevada Gaming Laws or by directive of any of the
Nevada Gaming Authorities which may not be pledged or in which a security interest
may not be granted under Nevada Gaming Laws.
"Executed Condo Sales Agreements" means executed sales agreements
entered into with respect of Condo Units which are substantially in the form of Exhibit K,
or otherwise with such changes thereto as may be approved by the Administrative Agent.
"Facility" means, as the context requires, (a) the Initial Term Loans and
funded Delay Draw Term Loans, (b) the unfunded portion of the Delay Draw
Commitments, (c) the Revolving Commitments and the extensions of credit made
thereunder, which shall include, without limitation, UC Obligations (the "Revolving
Credit Facility"), and (d) any Conversion Term Loans then outstanding.
"Facility Fee Letter" means the letter agreement dated as of March 2,2007
among Parent and Bank of America, Banc of America Securities LLC, Deutsche Bank
Tmst Company Americas, Barclays Bank pIc, Barclays Capital Real Estate Inc., Merrill
Lynch Mortgage Capital Inc., Merrill Lynch Capital, a division of Merrill Lynch
Business Financial Services Inc., Merrill Lynch Capital Corporation and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as the same may be amended, supplemented,
replaced or otherwise modified from time to time.
"Federal Funds Rate" means for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Banking Day next succeeding such
day; provided that (a) if such day is not a Banking Day, the Federal funds Rate for such
day shall be such rate on such transactions on the next preceding Banking Day as so
published on the next succeeding Banking Day, and (b) if no such rate is so published on
such next succeeding Banking Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Financing Agreements" means, collectively, this Agreement and the other
Loan Documents, the Second Mortgage Notes, the Second Mortgage Indenture and the
Second Mortgage Upstream Guarantees.
"First Lien Leverage Ratio" means as of each date of determination, the
ratio of (a) Consolidated First Lien Debt as of that date to (b) EBITDA for the twelve
month period ending on that date, provided that in the case of the first three full Fiscal
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Quarters following the Opening Date, EBITDA shall be annualized on a straight line
basis for the period consisting of each of the full Fiscal Quarters beginning after the
Opening Date (without regard to any partial prior Fiscal Quarters).
"First Test Date" means the last day of the first Fiscal Quarter which ends
six months or more following the Opening Date.
"Fiscal Quarter" means each fiscal quarter of Las Vegas Holdings and its
Subsidiaries ending on each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Las Vegas Holdings and its
Subsidiaries ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means for any period, the ratio of
(a) EBITDA for the twelve month period ending on that date to (b) Fixed Charges for
such period, provided that in the case of the first three full Fiscal Quarters following the
Opening Date, both the numerator and the denominator of this ratio will be determined
for each of the full Fiscal Quarters beginning following the Opening Date (without regard
to any prior Fiscal Quarters).
"Fixed Charges" means, for any period, the sum (without duplication) of
(a) Consolidated Interest Expense for such period, (b) scheduled payments made during
such period on account of principal of Indebtedness of Las Vegas Holdings and its
Subsidiaries, (c) provision for cash income taxes made by Las Vegas Holdings and its
Subsidiaries on a consolidated basis in respect of such period and the paym~nt of any Tax
Amount during such period, (d) Maintenance Capital Expenditures for such period, and
(e) Consolidated Lease Expense for such period.
"Fontainebleau Materials" as defined in Section 6.2.
"Former Lender" as defined in Section 10.13(a).
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its activities.
"Funded Debt" means as of each date of determination, the consolidated
obligations of Las Vegas Holdings and its Subsidiaries in respect of Indebtedness of the
types described in clauses (a) through (e) of the definition of "Indebtedness" as ofthat
date.
"Funds Costs" means any reimbursement of costs and expenses or
payment of interest under clauses (ii) and (iii) of Section 3 of the Credit Enhancement
Fee Agreement.
"Governing Documents" means (a) with respect to any corporation,
collectively, the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with
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respect to any limited liability company, collectively, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, collectively, the
partnership, joint venture or other applicable agreement of formation or organization and
any agreement, instrument, filing or notice with respect thereto filed in connection with
its formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement dated as of Closing Date executed by the Companies in favor of the
Administrative Agent and the Lenders, either as originally executed, or as it may from
time to time be supplemented, modified, amended, restated or extended.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, cOlmterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor, (ii) to advance
or supply funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary obligation, (iv)
otherwise to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof or (v) under Hedge Agreements; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee Obligation of
any guaranteeing person shall be deemed to be the lower of (a) the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable pursuant
to the terms of the instrument embodying such Guarantee Obligation, lmless such
primary obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably anticipated liability
in respect thereof as determined by Borrowers in good faith.
"Guarantees" means, collectively (a) the Parent Guaranty (until released in
accordance with its terms), (b) the Resort Properties I Guaranty, (c) the Guarantee and
Collateral Agreement and (d) each other continuing guarantee of the Obligations
hereafter made in favor of the Administrative Agent and the Lenders.
"Guarantors" means, collectively, Parent, Resort Properties I, Las Vegas
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Holdings and each Subsidiary of Las Vegas Holdings (other than Borrowers) that
executes and delivers a guaranty or guaranty supplement pursuant to Section 6.10 (in
each case until their respective Guarantees are terminated or released in accordance with
the Loan Documents).
"Hedge Agreements" means all interest rate swaps, caps or collar
agreements or similar arrangements entered into by Companies providing for protection
against fluctuations in interest rates or currency exchange rates or the exchange of
nominal interest obligations, either generally or under specific contingencies.
"Hedge Bank" means any Lender or Specified Hedge Affiliate in its
capacity as a party to a Specified Hedge Agreement.
"Honor.Date" as defined in Section 3.3(a).
"Indebtedness" means of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade payables
incurred in the ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention
agreement with respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), (e) all Capital Lease Obligations or Synthetic
Lease Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party under acceptance, letter of credit, completion guaranties,
performance bonds or similar facilities, (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests
of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of
the kind referred to in clauses (a) through (g) above; (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any Lien on
Property (including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment of
such obligation, and (j) for the purposes of Section 8(e) only, all obligations of such
Person in respect of Hedge Agreements.
"Indemnitee" as defined in Section 10.5.
"Initial Arrangers" means, collectively, Bank of America, N.A., Deutsche
Bank Trust Company Americas, Barclays Capital Real Estate Inc., and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, each in its capacity as a joint lead arranger.
"Initial Condo Sales Performance Adjustment Period" means the Condo
Sales Performance Adjustment Period commencing on May 1,2009. .
"Initial Pricing Period" means the period of three calendar months
beginning on the first March 1, June 1, September 1 or December 1 immediately
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following the First Test Date.
"Initial Term Commitment" means as to any Initial Term Lender, the
obligation of such Initial Term Lender to make an Initial Term Loan to Borrowers
hereunder on the Closing Date in a principal amount not to exceed the amount set forth
under the heading "Initial Term Commitment" opposite such Initial Term Lender's name
on Schedule 1 to the Lender Addendum delivered by such Initial Term Lender. The
aggregate principal amount of Initial Term Commitments on the Closing Date is
$700,000,000.
"Initial Term Lender" means each Lender that has an Initial Term
Commitment or is the holder of an Initial Term Loan.
"Initial Term Loans" as defined in Section 2.1(a).
"Initial Term Notes" as defined in Section 2.7(e).
"Insolvency" means with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Insurance Advisor" means Insurance Advisors, LLC, or its successor,
appointed by the Administrative Agent.
"Insurance Requirements" means all material terms of any insurance
policy required pursuant to this Agreement or any Security Document and all material
regulations and then current standards applicable to or affecting the Site or any use or
condition thereof, which may, at any time, be recommended by the Board of Fire
Underwriters, if any, having jurisdiction over the Site, or any other body exercising
similar functions, provided that (i) any such coverages in respect of the Retail Air Space
Parcels may be maintained by the Retail Affiliate to the extent that such coverages are
reasonably acceptable to the AdministrativeAgent, and (ii) the Insurance Requirements
shall not, from and after the Completion Date, be deemed to apply to portions of the Site
that are not included in the Retained Site.
"Intellectual Property" means the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising under United
States, state, multinational or foreign laws or otherwise, including, without limitation,
copyrights, patents, trademarks, service-marks, technology, know-how and processes,
recipes, formulas, trade secrets, or licenses (under which the applicable Person is licensor
or licensee) relating to any of the foregoing and all rights to sue at law or in equity for
any infringement or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Intellectual Property Collateral" means all Intellectual Property of the
Companies, now owned or hereafter acquired, upon which a Lien is purported to be
created by the Security Documents.
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"Intellectual Property License Agreement" means the License Agreement
dated as of the Closing Date between Parent, Resort Properties II and Borrowers,
pursuant to which Borrowers are granted a license to use the "Fontainebleau" federal
trademark and related present and future intellectual property in connection with the
Project.
"Intellectual Property Security Agreement" means any Intellectual
Property Security Agreement to be executed and delivered by any Company,
substantially in the form of Exhibits A-I and A-2 to the Guarantee and Collateral
Agreement, as the same may be amended, supplemented, replaced or otherwise modified
from time to time in accordance with this Agreement.
"Interest Payment Date" means (a) as to any Base Rate Loan, the last day
of each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day which is
three months, or a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Loan (other than any Revolving
Loan that is a Base Rate Loan (unless all Revolying Loans are being repaid in full in
immediately available funds and the Revolving Commitments terminated) and any Swing
Line Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period" means as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect to
such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by
Borrowers in its Advance Request, Notice of Borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period commencing on
the day after the last day of the then current Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected by Borrowers by
irrevocable notice to the Administrative Agent not less than three Banking Days prior to
the last day of the then current Interest Period with respect thereto; provided, that all of
the foregoing provisions relating to Interest Periods are subject to the following:
if any Interest Period would otherwise end on a day that is not a
(i)
Banking Day, such Interest Period shall be extended to the next succeeding Banking Day
unless the result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Banking Day;
(ii)
no Interest Period in respect of any Revolving Loans or any
Conversion Term Loans may extend beyond the Revolving Termination Date and no
Interest Period in respect of Term Loans may extend beyond the Term Loan Termination
Date;
(iii)
any Interest Period that begins on the last Banking Day of a
calendar month (or on a day for which there is no numerically corresponding day in the
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calendar month at the end of such Interest Period) shall end on the last Banking Day of a
calendar month; and
(iv)
Borrowers shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan.
"Investments" as defined in Section 7.8.
"ISP" means with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered into by
the Issuing Lender and any Borrower (or any Subsidiary thereof) or in favor of the
Issuing Lender and relating to such Letter of Credit.
"Issuing Lender" means Bank of America and any other Revolving Lender
which at the request of Borrowers and with the consent of the Administrative Agent
agrees to issue Letters of Credit. As of the Closing Date, the sole Issuing Lender shall be
Bank of America.
"Jeffrey Soffer Parties" means, collectively, Jeffrey Soffer and:
(a) any 80% (or more) owned Subsidiary, heir, estate, lineal descendant
or immediate family member, as defined in Rule 404(a) of SEC Regulation S-K as in
effect on the date of this Agreement of Jeffery Soffer; and
(b) any trust, corporation, partnership or other entity, the beneficiaries,
equity owners, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of Jeffery Soffer and/or such other Persons referred
to in (a).
"Las Vegas Holdings" means Fontainebleau Las Vegas Holdings, LLC, a
Nevada limited liability company.
"LlC Advance" means with respect to each Revolving Lender, such
Lender's funding of its participation in any UC Borrowing in accordance with its
applicable Revolving Credit Percentage.
"LlC Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Revolving Loan.

"UC Commitment" means $100,000,000.
"LlC Commitment Period" means the period from and including the
Closing Date to the date that is 30 days prior to the Revolving Termination Date.
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"VC Credit Extension" means with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the amount
thereof.
"VC Obligations" means at any time, the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit (calculated in
accordance with Section 1.3), (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.3, and (c) the aggregate
amount of UC Borrowings.
"Lender Addendum" means with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit D hereto, to be executed and delivered by
such Lender on the Closing Date as provided in Section 10.18.
"Lender Default" means the failure or refusal (which has not been
retracted in writing) of a Lender to make available (i) its portion of any Loan required to
be made by such Lender hereunder, (ii) its portion of any unreimbursed payment required
to be made by such Lender under Section 3.4, (iii) its portion of any participating interest
required to be purchased by such Lender pursuant to Section 2.6(c) or (iv) any amount
required to be paid and/or reimbursed by such Lender to the Administrative Agent or any
other Lender hereunder or under any other Loan Document, in each case at or prior to
such time that the same is required to be so made, reimbursed or purchased by such
Lender.
"Lender Excess Cash Flow Percentage" means, for any Excess Cash Flow
Period, the percentage set forth below opposite the Total Leverage Ratio determined as of
the last day of that period:
. ,..-----

r----'

Total Leverage Ratio

Less than 4.00: 1.00

0%

Greater than or equal to 4.00: 1.00,
but less than 5.00: 1.00

50%

Greater than or equal to 5.00: LOO,
but less than 6.00: 1.00

75%

Greater than or equal to 6.00: 1,00

._-

Lender Excess
Cash Flow
Percentage

100%

_._---"Lenders" as defined in the preamble hereto and includes the Conversion
Term Lenders, the Issuing Lender and the Swing Line Lender.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use by the
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Issuing Lender.
"Letters of Credit" means each letter of credit issued pursuant to
Section 3.1.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver or similar official with respect to, any
casino, gambling or gaming license, including, without limitation, any Nevada Gaming
Approvals, covering any portion of the Project.
"Lien" means with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such Property, whether
or not filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in such Property and any filing
of or agreement to give any fmancing statement under the Uniform Commercial Code (or
equivalent statues) of any jurisdiction).
"Loan" means any loan made by any Lender pursuant to this Agreement.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Guarantees, the Completion Guaranties, the Affiliate Subordination Agreement, the
Security Documents, the Consents, the Disbursement Agreement, the Intercreditor
Agreements, the Administrative Agent Fee Letter, each Issuer Document, each Specified
Hedge Agreement, each Compliance Certificate, and any other instruments, documents or
agreements of any type or nature hereafter executed and delivered by the Loan Parties to
the Administrative Agent or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may from time to
time be supplemented, modified, amended, restated, extended or supplanted, provided
that the Specified Hedge Agreements shall not be considered to be Loan Documents for
the purposes of Sections 8(b), 8(d) or 8(i) and that the Specified Cash Management
Agreements shall not be considered to be Loan Documents. The Loan Documents in any
event include the instruments, documents and agreements listed on Schedule 1.1.
"Loan Parties" means, collectively, the Companies, each Completion
Guarantor and each Guarantor (including any Subsidiaries thereof that become party to a
Loan Document pursuant to Section 6.10) provided that following the release of any
Completion Guaranty, the Parent Guaranty or any other Guarantee in accordance with its
terms, Turnberry Residential (or any other issuer of a released Completion Guaranty) or
Parent or any other Person party to such Guarantee as the case may be, shall no longer be
considered to be "Loan Parties." For the avoidance of doubt the Retail Affiliate is not a
Loan Party.
"Loss Proceeds" means all amounts and proceeds (including instruments)
in respect of any Event of Loss, including proceeds of any insurance policy required to be
maintained by the Companies under this Agreement or any other Loan Document.
"Maintenance Capital Expenditures" means Capital Expenditures, other
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than for Project Costs, for the maintenance, repair, restoration or refurbishment of the
Project, but excluding any such Capital Expenditure which adds to, improves or expands
the Project.
"Majority Initial Arrangers" means, at any time, those of the Initial
Arrangers which, either directly or through Affiliates, hold the majority in interest of the
aggregate Obligations in respect of Loans, Letters of Credit and Swing Line Loans held
as of that date by all of the Initial Arrangers and their respective Affiliates, as a whole,
for this purpose treating the undrawn Revolving Commitments and Delay Draw
Commitments as outstanding Obligations.
"Managers" means, collectively, Banc of America Securities LLC,
Deutsche Bank Tmst Company Americas, Barclays Capital Real Estate Inc., and Merrill
.
Lynch, Pierce, Fenner & Smith Incorporated, each in its capacity as a joint book
manager.
"Material Adverse Effect" means any event or circumstance which:
(a)
has a material adverse effect on the business, assets, properties,
liabilities (actual or contingent), operations or condition (financial or otherwise) of the
Companies, taken as a whole;
(b)
materially and adversely affects the ability of the Companies, taken
as a whole, to perform their respective obligations under the Loan Documents; or
(c)
materially and adversely affects the rights of the Secured Parties
under their respective Loan Documents, including the validity, enforceability or priority
of the Liens purported to be created under the Security Documents.
"Material Affiliate Agreement" means any Material Agreement to which a
Company, on the one hand, and an Affiliate of such Company, on the other hand, are
parties. The Intellectual Property License Agreement shall be deemed a Material
Affiliate Agreement for purposes of this Agreement and the other Loan Documents.
"Material Agreement" means any contract or agreement to which any of
the Companies is a party (a) pursuant to which the Companies are reasonably expected to
incur obligations or liabilities with a dollar value in excess of $25,000,000 during the
term of such contract or agreement, or (b) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse
Effect, taking into account any viable replacements or substitutions therefore at the time
such determination is made.
"Multiemployer Plan" means a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds" means:
(a)
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cash and Cash Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of reasonable
attorneys' fees, accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale (other than any Lien
pursuant to a Security Document or relating to the Second Mortgage Indenture) and other
reasonable fees and expenses, in each case, to the extent actually incurred in connection
with such Asset Sale and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any tax credits or deductions and any tax sharing
arrangements, in each case reducing the amount of taxes so paid or estimated to be
payable), purchase price adjustments reasonably expected to be payable and reserves or
other set asides against liabilities, in each case as a result thereof;
(b)
in connection with each sale of a Condo Unit, the gross cash
proceeds received by the Companies upon the date of transfer of that Condo Unit to the
purchaser, plus (i) the amount of any deposits made by the purchaser of that Condo Unit
which have not previously been remitted to the Condo Proceeds Account as Bonded
Condo Proceeds, and minus (ii) any closing costs and other amounts payable in respect of
the sale of that Condo Unit on such date of transfer including amounts payable on that
date pursuant to the Turnberry Marketing and Sales Agreement;
(c)
in connection with any issuance or sale of Equity Interests, debt
securities or instmments or the incurrence of loans (including Subordinated Debt), the
cash proceeds received from such issuance or incurrence, net of reasonable attorneys'
fees, investment banking fees, accountants' fees, underwriting discounts and commissions
and other reasonable fees and expenses, in each case, to the extent actually incurred by
the Companies in connection therewith.
"Nevada Gaming Approvals" means with respect to any action by a
particular Person, any consent, approval or other authorization required for such action by
such Person from a Nevada Gaming Authority or under Nevada Gaming Laws.
"Non-Defaulting Lender" means any Lender other than a Defaulting
Lender.
"Non-Excluded Taxes" as defined in Section 2.18(a).
"Non-U.S. Lender" as defined in Section 2. 18(f).
"Notes" means the collective reference to the Revolving Notes, the
Conversion Term Notes, the Initial Term Notes, the Delay Draw Term Notes, and the
Swing Line Notes, if any, evidencing Loans.
"Notice of Borrowing" means a certificate duly executed by a Responsible
Officer of Borrowers substantially in the form of Exhibit E hereto.
"Obligations" means the unpaid principal of and interest on (including
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interest accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans and all other obligations
and liabilities of the Loan Parties to the Administrative Agent, to any Arranger, to any
Manager or to any Lender (or, in the case of Specified Hedge Agreements and Specified
Cash Management Agreement, any Specified Hedge Affiliate or Specified Cash
Management Affiliate, as applicable), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters of
Credit, any Specified Hedge Agreement, any Specified Cash Management Agreement or
any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent, to any Arranger, to any Manager or to any Lender that are required
to be paid by any Loan Party pursuant hereto or to any other Loan Document) or
otherwise; provided, that (i) Obligations of Borrowers under any Specified Hedge
Agreement or Specified Cash Management Agreement shall be secured and guaranteed
pursuant to the Security Documents only to the extent that, and for so long as, the other
Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors
effected in the manner permitted by this Agreement shall not require the consent of
holders of obligations under Specified Hedge Agreements or Specified Cash
Management Agreements.
"On-Site Cash" means amounts held in cash at the Site following the
substantial completion of the Project in connection with and necessary for the ordinary
course operations of the Project by the Companies.
"Parent Guaranty" means the Guaranty dated as of the Closing Date
executed by Parent in favor of the Administrative Agent and the Lenders, either as
originally executed, or as it may from time to time be supplemented, modified, amended,
restated or extended.
"Parent Guaranty ReleaseDate" means the date following the Completion
Date upon which the conditions set forth in Section 5.15(b) of the Parent Guaranty have
been satisfied.
"Parent Reimbursement Agreement" means the Reimbursement
Agreement dated as of June 6, 2007 to be effective January 1,2007, by and among
Parent, Las Vegas Holdings and Borrowers, as in effect as of the Closing Date.
"Participant" as defined in Section 1O.6(d).
"Pass Through Enti!y" means (a) a grantor trust for federal or state income
tax purposes or (b) an entity treated as a partnership or a disregarded entity for federal or
state income tax purposes.

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"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permits" means the collective reference to (i) Environmental Permits, and
(ii) any and all other franchises, licenses, leases, permits, approvals, notifications,
certifications, registrations, authorizations, exemptions, variances, qualifications,
easements, rights of way, Liens and other rights, privileges and approvals required under
any Requirement of Law.
"Permitted Businesses" means (i) the gaming business on the Site and
other adjacent real property subject to the Deed of Trust, (ii) the development,
construction, ownership and operation of the Project, (iii) all businesses, whether or not
licensed by the Nevada Gaming Authorities, which are necessary for, incident to, useful
to, arising out of, supportive of or connected to the development, construction, ownership
or operation of the Project, (iv) any development, construction or operation of lodging,
retail, restaurant or convention facilities, sports or entertainment facilities, food and
beverage distribution operations, transportation services, parking services, sales and
marketing services or other activities related to the foregoing, (v) any business that is a
reasonable extension, development or expaPsion of any of the foregoing or incidental
thereto and/or (vi) the ownership by a Person of Equity Interests in its directly Wholly
Owned Subsidiaries to the extent engaged solely in the businesses described above.
"Permitted Liens" means Liens permitted by Section 7.3.
"Permitted Refinancing Indebtedness" means any Indebtedness issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund any existing Indebtedness; provided, that (i) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest
on such Indebtedness and the amount of all expenses and premiums incurred in
connection therewith), (ii) such Permitted Refinancing Indebtedness has a final maturity
date not earlier than the final maturity date of, and no payments due prior to the maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded,
(iii) the restrictions on the Companies contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded, (iv) if such Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment
to the Loan Documents, such Permitted Refinancing Indebtedness is subordinated in right
of payment to the Loan Documents on terms at least as favorable to the Lenders as those
contained in the applicable documents reflecting such subordination (whether the
Intercreditor Agreemerits or otherwise), and (v) the relevant holders of such Permitted
Refinancing Indebtedness become party to the Intercreditor Agreements, as applicable.
In the event Permitted Refinancing Indebtedness is used to extend, refinance, renew,
replace, amend and restate, defease or refund the Second Mortgage Notes, all relevant
definitions and provisions of the Loan Documents related to the Indebtedness being
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extended, refinanced, renewed, replaced, defeased or refunded shall be amended, as
necessary, to reflect such Permitted Refinancing Indebtedness and related documentation
and/or arrangements by action of the Administrative Agent without the consent of the
Lenders.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan" means at a particular time, any employee benefit plan that is
subject to the requirements of Section 412 of the Code or that is a Single Employer Plan
and which any of the Companies or any Controlled Group Member maintains,
administers, contributes to or is required to contribute to or under which any of the
Companies or any Controlled Group Member could incur any liability.
"Platform" as defined in Section 6.20).
"Pledged Stock" as defined in the Guarantee and Collateral Agreement.
"Presumed Tax Liability" means for any Person that is not a Pass Through
Entity for any period, the product of (a) the Taxable Income allocated or attributable to
such Person (directly or through one or more tiers of Pass Through Entities) (net of
taxable losses allocated to such Person with respect to any Company) that (i) are, or were
previously, deductible by such Person and (ii) have not previously reduced Taxable
Income), and (b) the Presumed Tax Rate.
"Presumed Tax Rate" means with respect to any Person for any period
means the highest effective combined Federal, state and local income tax rate applicable
during such period to a corporation organized under the laws of the State of Nevada,
taxable at the highest marginal Federal income tax rate and the highest marginal Nevada
and Las Vegas income tax rates (after giving effect to the Federal income tax deduction
for such state and local income taxes, taking into account the effects of the alternative
minimum tax, such effects being calculated on the assumption that such Person's only
taxable income is the income allocated or attributable to such Person for such period
(directly or through one or more tiers of Pass Through Entities) with respect to its equity
interest in any of the Companies that is a Pass Through Entity.) In determining the
Presumed Tax Rate, the character of the items of income and gain comprising Taxable
Income (e.g., ordinary income or long term capital gain) shall be taken into account.
"Pricing Period" means the Initial Pricing Period and each subsequent
period of three calendar months beginning on each March 1, June 1, September 1 and
December 1.
"Proceedings" as defined in Section 6.7(c).
"Project Lender Intercreditor Agreement" means the Intercreditor
Agreement, as of the Closing Date among the Administrative Agent and the Trustee, in
the form of Exhibit F-1 hereto.
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"Project Revenues" means all cash income and receipts of the Companies.
"Projections" as defined in Section 6.2(c).
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Equity Interests.
"Public Lender" as defined in Section 6.2(j).
"Qualified Offering": a public offering of the Equity Interests in Parent or
any Person that owns 100% of Parent yielding not less than $250;000,000 in gross
proceeds to Parent or such other Person.
"Reciprocal Easement" means the reciprocal easements granted pursuant
to the Reciprocal Easement Agreement.
"Refunded Swing Line Loans" as defined in Section 2.6(b).
"Refunding Date" as defined in Section 2.6(c).
"Register" as defined in Section 1O.6(c).
"Regulation D", "Regulation H", "Regulation T", "Regulation U" and
"Regulation X" means Regulations D, H, T, U and X, respectively, of the Board as in
effect from time to time (and any successor to all or a portion thereof).
"Reimbursement Obligation" means the obligation of Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit.
"Reinvestment Notice" means a written notice executed by a Responsible
Officer of Borrowers and delivered to the Administrative Agent within 30 days after an
Asset Sale, stating that no Default or Event of Default has occurred and is continuing and
that Companies intend and expect to use all or a specified portion of the Net Cash
Proceeds of such Asset Sale to acquire assets useful in a Permitted Business.
"Related Parties" means with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Reorganization" means with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241 of
ERISA.
"Repair Plan" as defined in Section 2.22(c)(iv).
"Reportable Event" means any of the events set forth in Section 4043(c) of
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ERISA, other than those events as to which the thirty day notice period is waived under
subsections .27, .28, .29, .30, .31, .32,.34 or.35 ofPBGC Reg. Section 4043.
"Required Facility Lenders" means with respect to any Facility at any
time, Non-Defaulting Lenders holding more than 50% of the Obligations outstanding
under such Facility (or, prior to any termination of the Delay Draw Commitments or the
Revolving Commitments, as the case may be, Non-Defaulting Lenders holding more than
50% of the Total Delay Draw Commitments (less the aggregate Delay Draw
Commitments of Defaulting Lenders) or Total Revolving Commitments (less the
aggregate Revolving Commitments of Defaulting Lenders), as the case may be).
"Required Hedge Agreement" means one or more Hedge Agreements
having an initial tenor of not less than three years and at any time fixing (in a manner
which is reasonably acceptable to the Administrative Agent) the interest rate in respect of
a notional amount ofIndebtedness equal to 75% (or, on and after December 31,2009,
50%) of the anticipated maximum outstanding principal balance of the Loans at such
time (as reasonably determined by the Companies as of the date of initial effectiveness of
the Required Hedge Agreement).
"Required Lenders" means at any time, Non-Defaulting Lenders holding
more than 50% of the sum of the outstanding Obligations (for this purpose, treating the
Delay Draw Commitments and Revolving Commitments of any Non-Defaulting Lenders
as being outstanding).
"Requirement of Law" means as to any Person, the Governing Documents
of such Person, and any law, treaty, order, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its Property or towhich such Person or any of its
Property is subject.
"Resort Properties I Guaranty" means the Continuing Guaranty dated as of
the Closing Date executed by Resort Properties I in favor of the Administrative Agent
and the Lenders, either as originally executed, or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Restricted Payments" as defined in Section 7.6.
"Retail Intercreditor Agreement" means the Intercreditor Agreement,
dated as of the Closing Date among the Administrative Agent, the Trustee, the Retail
Agent and the Retail Affiliate, in the form of Exhibit F-2 hereto.
"Retail Leasing Report" means a monthly report executed by a
Responsible Officer of Borrowers detailing leasing activities in respect of the Retail Air
Space Lease in form and substance reasonably acceptable to the Administrative Agent.
"Retained Site" means, as of each date of determination, the interests in
the Site which are (a) owned by the Companies, or (b) leased or subleased by the
.companies, as lessee or sublessee. The Retained Site excludes (i) the rights of the Retail
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Affiliate in respect of the Retail Air Space Parcels, and (ii) Condo Units and other rights
and interests which are disposed of by the Companies following the Closing Date in
compliance with the Loan Documents.
"Revolving Commitment" means as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and/or participate in Swing Line Loans and
Letters of Credit, in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading "Revolving Commitment" opposite such Lender's name on
Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case may be, in
the Assignment and Assumption pursuant to which such Lender became a party hereto, as
the same may be changed from time to time pursuant to the terms hereof.
"Revolving Commitment Fee" as defined ill Section 2.8(a).
"Revolving Commitment Fee Rate" means 0.75% per annum.
"Revolving .Commitment Period" means the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Credit Percentage" means as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments shall
have expired or terminated, the percentage which the aggregate principal and/or face
amount of such Lender's Revolving Extensions of Credit then outstanding constitutes of
the aggregate principal and/or face amount of the Total Revolving Extensions of Credit
then outstanding).
"Revolving Extensions of Credit" means as to any Revolving Lender at
any time, the sum of (a) the aggregate principal amount of all Revolving Loans made by
such Lender then outstanding, (b) such Lender's Revolving Credit Percentage of the UC
Obligations then outstanding, and (c) such Lender's Revolving Credit Percentage of the
aggregate principal amount of Swing Line Loans then outstanding.
"Revolving Lender" means each Lender that has a Revolving
Commitment or that is the holder of Revolving Loans.
"Revolving Loans" as defined in Section 2.1(c).
"Revolving Notes" as defined in Section 2.7(e).
"Revolving Termination Date" means the earlier of (a) the fifth
anniversary of the Closing Date, or if such date is not a Banking Day, the next preceding
Banking Day or (b) the date upon which the Loans become due and payable pursuant to
Section 8.
"Schaeffer" means Glenn Schaeffer.
"SEC" means the Securities and Exchange Commission (or successors
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thereto or an analogous Governmental Authority).
"Second Mortgage Upstream Guarantees" mean, collectively, the
guarantees issued on the Closing Date by Parent and Resorts Properties I of the
obligations under the Second Mortgage Indenture.
"Secured Parties" means collectively, the Administrative Agent, the
Lenders, Specified Cash Management Affiliates, and Specified Hedge Affiliates that have
agreed to be bound by the provisions of Section 7.2 of the Guarantee and Collateral
Agreement as if it were a party thereto, and by the provisions of Section 9 hereof as if it
were a Lender party hereto.
"Security Documents" means the collective reference to the Guarantee and
Collateral Agreement, Intellectual Property Security Agreements, the Control
Agreements, the Deed of Trust, and all other documents now or hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"Senior Permitted Liens" means Permitted Liens described in Sections
7.3(c), (d), (e), (f), (g), (k), (m), (n), (0), (p), (u), (v), (w) and (x) and any other Permitted
Liens that are expressly permitted by the terms of the Loan Documents to be superior in
priority to the Liens of the Security Documents.
"Single Employer Plan" means any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Space Leases" means any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements, and all other agreements
affecting the Trust Estate (as defined in the Deed of Trust), taken by assignment, taken
subject to, or assumed, or has otherwise become bound by, now or in the future, that give
any person the right to conduct its business on, or otherwise use, operate or occupy, all or
any portion of the Retained Site or Improvements and any leases, agreements or
arrangements permitting anyone to enter upon or use any of the Trust Estate (as defined
in the Deed of Trust) to extract or remove natural resources of any kind, together with all
amendments, extensions, and renewals of the foregoing entered into in compliance with
the Loan Documents, together with all rental, occupancy, service, maintenance or any
other similar agreements pertaining to use or occupation of, or the rendering of services
at the Retained Site, the Improvements or any part thereof.
"Specified Cash Management Affiliate" means, as to each Cash
Management Agreement, and in determining whether that Cash Management Agreement
is a Specified Cash Management Agreement, any Person who is a counterparty to that
Cash Management Agreement that (a) is a Lender or an Affiliate of a Lender on the date
of the execution of such Cash Management Agreement, (b) in the case of any Cash
Management Agreement which is in existence on the date ?f this Agreement, is an
Affiliate of a Lender on the date of this Agreement, in each case whether or not that
Person later ceases to be an Affiliate of a Lender or the relevant Lender later ceases to be
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a Lender.
"Specified Cash Management Agreement" means any Cash Management
Agreement entered into by (i) any Borrower and (ii) any Lender or any Specified Cash
Management Affiliate.
"Specified Hedge Affiliate" means, as to each Hedge Agreement, and in
determining whether that Hedge Agreement is a Specified Hedge Agreement, any Person
who is a counterparty to that Hedge Agreement that (a) is a Lender or an Affiliate of a
Lender on the date of the execution of such Hedge Agreement, and (b) in the case of any
Hedge Agreement which is in existence on the date of this Agreement, is an Affiliate of a
Lender on the date of this Agreement, in each case whether or not that Person later ceases
to be an Affiliate of a Lender or the relevant Lender later ceases to be a Lender.
"Specified Hedge Agreement" means any Hedge Agreement entered into
by (i) any Borrower and (ii) any Lender or any Specified Hedge Affiliate.
"Subordinated Affiliate Expenses" means, collectively, the Credit
Enhancement Fees, the Construction Fees, Completion Guaranty Reimbursement
Obligations, the Funds Costs and Allocated Overhead Expense.
"Subordinated Debt" means Indebtedness that (i) does not have any
scheduled principal payment, mandatory principal prepayment, sinking fund payment or
similar payment due prior to the Term Loan Termination Date, (ii) is not secured by any
Lien on any Property, (iii) is subordinated on terms and conditions reasonably
satisfactory to the Administrative Agent and (iv) is subject to such covenants and events
of default as may be reasonably acceptable to the Administrative Agent, provided that the
Subordinated Affiliate Expenses shall not be considered to be Subordinated Debt.
"Substitute Lender" as defined in Section 1O.13(a).
"Swing Line Commitment" means the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.5 in an aggregate principal
amount at anyone time outstanding not to exceed $10,000,000.
"Swing Line Lender" means Bank of America, in its capacity as the lender
of Swing Line Loans.
"Swing Line Loans" as defined in Section 2.5.
"Swing Line Notes" as defined in Section 2.7(e).
"Swing Line Participation Amount" as defined in Section 2.6(c).
"Syndication Agent" means Deutsche Bank Trust Company Americas, in
its capacity as syndication agent.
"Synthetic Lease Obligations" means all monetary obligations of a Person
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under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations which do not appear
on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such
Person, would be characterized as the Indebtedness of such Person (without regard to
accounting treatment).
"Taking" means a taking or voluntary conveyance during the term of this
Agreement of all or part of the Site, or any interest therein or right accruing thereto or use
thereof, as the result of, or in settlement of, any condemnation or other eminent domain
proceeding by any Governmental Authority affecting the Site or any portion thereof,
whether or not the same shall have actually been commenced.
"Targeted Committed Condo Sales Proceeds" means as of each date set
forth below, the amount set forth below opposite each date:
DATE
- -1------March 31, 2009
f--June 30, 2009
September 30, 2009
December 31, 2009
f-------March 31,2010
June 30, 2010
f--September 30, 201O
and the last day of each
Fiscal Quarter
thereafter
l--.

--

AMOUNT
--$463,555,992
-$559,332,023
--$662,770,137
$704,911,591
$739,390,962 - - - $766,208,251
$780,000,000

---

"Tax Amount" means with respect to any period, (i) in the case of any
direct or indirect member of a Company that is a Pass Through Entity, the Presumed Tax
Liability of such direct or indirect member, and (ii) with respect to the Consolidated
Members, the aggregate federal income tax liability such Consolidated Members would
owe for such period if each was a corporation filing federal income tax returns on a stand
alone basis at all times during its existence and, if any of the Consolidated Members files
a consolidated or combined state income tax return such that it is not paying its own state
income taxes, then Tax Amount shall also include the aggregate state income tax liability
such Consolidated Members would have paid for such period if each was a corporation
filing state income tax returns on a stand alone basis at all times during its existence.
"Taxable Income" means with respect to any Person for any period, the
taxable income or loss of such Person for such period for federal income tax purposes as
a result of such Person's equity ownership of one or more Companies that are Pass
Through Entities for such period; provided, however. that all items of income, gain, loss
or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code
shall be included in taxable income or loss.
"Term Commitments" means, collectively, the Delay Draw Commitments
and the Initial Term Commitments.
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"Term Lenders" means, collectively, the Initial Term Lenders and the
Delay Draw Lenders.
"Term Loan Termination Date" means the earlier of (a) the seventh
anniversary of the Closing Date, or if such date is not a Banking Day, the next preceding
Banking Day or (b) the date upon which the Loans become due and payable pursuant to
Section 8.
"Term Loans" means, collectively, the Initial Term Loans and the Delay
Draw Term Loans.
"Test Quarter" means the Fiscal Quarter ending on the First Test Date, and
each subsequent Fiscal Quarter.
"Total Delay Draw Commitments" means at any time, the aggregate
amount of the Delay Draw Commitments then in effect. The Total Delay Draw
Commitments on the Closing Date are $350,000,000.
"Total Leverage Ratio" means as of each date of determination, the ratio
of (a) the Consolidated Total Debt as of that date to (b) EBI1'DA for the twelve month
period ending on that date, provided that in the case of the first three full Fiscal Quarters
following the Opening Date, EBITDA shall be annualized on a straight line basis for the
period consisting of each of the full Fiscal Quarters beginning after the Opening Date
(without regard to any partial prior Fiscal Quarters).
"Total Net Condo Sales Proceeds" means the sum without duplication of
(a) the aggregate principal amount of the Bonded Condo Proceeds which are remitted to
the Condo Proceeds Account and used for the construction of the Project, plus (b) the
aggregate amount of the sales proceeds of Condo Units received in cash by the
Companies and applied in reduction of the prepayment of the Loans pursuant to Section
2. 11 (a)(ii), plus (c) the amount of any deposits made by prospective purchasers of Condo
Units which the Companies are entitled to retain as a result of the default of such
purchasers.
"Total Revolving Commitments" means at any time, the aggregate amount
of the Revolving Commitments then in effect. The Total Revolving Commitments on the
Closing Date are $800,000,000.
"Total Revolving Extensions of Credit" means at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders outstanding at
such time.
"Tumberry Marketing and Sales Agreement" means the Marketing and
Sales Agreement dated as of June 6,2007, by and between Las Vegas Holdings and
Tumberry West Realty, Inc., as amended,. restated, extended, supplemented or otherwise
modified from time to time.
"Tumberry Residential" means Tumberry Residential Limited Partner,
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L.P., a Delaware limited partnership, its successors and permitted assigns.
"~"

means as to any Loan, its nature as a Base Rate Loan or a

Eurodollar Loan.
"United States" and "U.S." means the United States of America.
"Unrecorded Leases" means those certain leases and other real estate
rights of the Companies described on Schedule 1.2 that have not been recorded in the
appropriate real property records.
"Unreimbursed Amount" as defined in Section 3.3(a).
"Wet 'n Wild Property" means the approximately 27 acres of real property
located immediately to the north of the Site.
"Wholly Owned Subsidiary" means as to any Person, any other Person all
of the Equity Interests of which (other than directors' qualifying shares required by law)
is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
"Withdra~al Period"

1.2

as defined in Section 1O.13(b).

Other Definitional Provisions.

(a)
Unless otherwise specified therein, all terms defined in this Agreement
shall have such defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.
(b)
As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms relating to the
Companies not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c)
The words "hereof', "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d)
The meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
(e)
The words "including" and "includes" and words of similar import when
used in this Agreement shall not be limiting and shall mean "including without limitation" or
"includes without limitation", as the case may be.
The words "will" and "shall" and words of similar impqrt when used in
this Agreement shall mean a command.
(f)

(g)

Upon temlination of the Disbursement Agreement, any defined terms used

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herein or the other Loan Documents having meanings given to such terms in the Disbursement
Agreement shall continue to have the meanings given to such terms in the Disbursement
Agreement as in effect immediately prior to such termination.
(h)
Unless expressly described to the contrary, references to any document,
instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto,
(b) shall include all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to time and in effect at
the time of determination.
(i)
Unless the context requires otherwise, the expressions "payment in full",
"paid in full" and any other similar terms or phrases when used herein shall mean the payment in
full, in immediately available funds, of the Obligations (other than (x) contingent reimbursement
or indemnification obligations and (y) obligations under Specified Hedge Agreements and
Specified Cash Management Agreements that, at such times of payment, are allowed by the
terms thereof to remain outstanding).
1.3
Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit
in effect at such time; provided, however, that with respect to any Letter of Credit that, by its
terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
1.4
Times of Day. Unless otherwise specified, all references herein to times
of day shall be references to New York City time (daylight or standard, as applicable).

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SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1
Loans and Commitments Generally. Pursuant to this Agreement, the
Lenders shall make the Loans described below, (1) on the Closing Date, for remittance in
accordance with the Flow of Funds Memo, or thereafter for remittance to the Bank Proceeds
Account under the Disbursement Agreement for disbursement in accordance with the
Disbursement Agreement (the "Disbursement Agreement Loans") or, (2) following the Opening
Date (except for Revolving Loans made on account of the Bank Revolving Facility Completion
Reserve Amount) to a Direct Funding Account or another account reasonably acceptable to the
Administrative Agent (the "Direct Loans").
(a)
Initial Term Loans. Subject to the terms and conditions hereof, and in
reliance upon the representations and warranties of set forth herein and in the Disbursement
Agreement, each Initial Term Lender severally agrees to make term loans ("Initial Term Loans")
to Borrowers on the Closing Date in an aggregate principal amount not to exceed the amount of
the Initial Term Commitment of such Initial Term Lender. The making of the Initial Term
Loans on the Closing Date shall be subject to the fulfillment of both the applicable conditions
precedent set forth in Section 5 and the applicable conditions set forth in Section 3 of the
Disbursement Agreement. The proceeds of the Initial Term Loans will be disbursed in
accordance with the Flow of Funds Memo. The Initial Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by Borrowers and notified to the
Administrative Agent in accordance with Sections 2.4 and 2.12. Initial Term Loans borrowed
and subsequently repaid or prepaid may not be reborrowed.
(b)
Delay Draw Term Loans. Subject to the terms set forth herein, each Delay
Draw Lender severally agrees to make term loans ("Delay Draw Term Loans") to Borrowers on
any Banking Day during the Delay Draw Commitment Period in an aggregate principal amount
not to exceed the amount of the Delay Draw Commitment of such Lender, provided that:
(i)
each borrowing under the Delay Draw Commitments shall be in an
amount which is not less than $150,000,000 or in an integral multiple of $1,000,000
which is in excess of $150,000,000;
(ii)
no Delay Draw Term Loans shall be made prior to the date upon
which the entire amount on deposit in the Second Mortgage Proceeds Account is
disbursed;
(iii)
the proceeds of each Delayed Draw Term Loan will be applied
first to repay in full any then outstanding Revolving Loans and Swing Line Loans (but
without reducing the Total Revolving Commitments), and second, to the extent of any
excess, be credited to the Bank Proceeds Account; and
(iv)
each Delay Draw Term Loan shall be made to the Bank Proceeds
Account (and/or shall repay outstanding Revolving Loans to the extent thereof) subject
only to the satisfaction of the conditions set forth in Section 5.2, and shall thereafter be
disbursed from the Bank Proceeds Account subject only to the conditions set forth in
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Section 3.3 of the Disbursement Agreement.
The Delay Draw Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by Borrowers and notified to the Administrative Agent in accordance with Sections
2.4 and 2.12. Delay Draw Term Loans borrowed and subsequently repaid or prepaid may not be
reborrowed.
(c)
Revolving Loans. Subject to the terms and conditions hereof, and in
reliance upon the applicable representations and warranties set forth herein and in the
Disbursement Agreement, each Revolving Lender severally agrees to make Revolving Loans
("Revolving Loans") to Borrowers from time to time during the Revolving Commitment Period,
provided that:
(i)
the aggregate outstanding principal amount of the Revolving Loans
of each Lender, when added to such Lender's Revolving Credit Percentage of the sum of
(i) the UC Obligations then outstanding and (ii) the aggregate principal amount of the
Swing Line Loans then outstanding, shall not exceed the amOlmt of such Lender's
Revolving Commitment;
(ii)
the Total Revolving Extensions of Credit shall not exceed the Total
Revolving Commitments at any time; and
(iii)
unless the Total Delay Draw Commitments have been fully drawn,
the aggregate outstanding principal amount of all Revolving Loans and Swing Line
Loans shall not exceed $150,000,000.
The making of Revolving Loans which are Disbursement Agreement Loans to the Bank
Proceeds Account shall be subject only to the fulfillment of the applicable conditions set forth in
Section 5.2, and shall thereafter be disbursed from the Bank Proceeds Account subject only to
the conditions set forth in Section 3.3 of the Disbursement Agreement. The making of
Revolving Loans which are Direct Loans shall be subject only to the conditions precedent set
forth in Section 5.3. The Revolving Loans may from time to time be Eurodollar Loans or Base
Rate Loans, as determined by Borrowers and notified to the Administrative Agent in accordance
with Sections 2.4 and 2.12. Revolving Loans may be borrowed and repaid, and subsequently
reborrowed.
(d)
Treatment of Direct Loans. Each Direct Loan (including each Swing Line
Loan) shall be remitted to a Direct Funding Account (or to another account reasonably
acceptable to the Administrative Agent) and may be used for any purposes permitted by Section
6.11 of this Agreement and (while in effect) the Disbursement Agreement.
2.2

Amortization and Scheduled Principal Payments.

(a)
On each Amortization Date, commencing with the first such date which is
on or following the first armiversary of the Opening Date, Borrowers shall make principal
payments on the Term Loans (including, for the avoidance of doubt, the Delay Draw Term
Loans) in the amount of $2,625,000, provided, that the Term Loans and all other amounts owed
hereunder with respect to the Term Loans shall be paid in full no later than the Term Loan
Termination Date.
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(b)
There shall not be any scheduled required reductions in the Revolving
Commitments (other than upon the conversion thereof to Conversion Term Loans as
contemplated by Section 2.3), or scheduled repayments of the Revolving Loans or the
Conversion Term Loans; provided that Borrowers shall repay all outstanding Revolving Loans
and Conversion Term Loans on the Revolving Termination Date.
2.3
Partial Conversion of the Revolving Commitments. On the Conversion
Date, a $200,000,000 portion of the outstanding Revolving Loans shall immediately be
converted to Conversion Term Loans without further action of the parties hereto. At such time,
Revolving Loans held by the Lenders shall be converted ratably in accordance with their
Revolving Credit Percentage of the Revolving Credit Facility. Concurrently with such
conversion, the Revolving Commitments of the Lenders shall be ratably reduced in an aggregate
principal amount equal to $200,000,000. No portion of the Conversion Term Loans which is
repaid may be reborrowed, provided that the Conversion Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by Borrowers and notified to the
Administrative Agent in accordance with Sections 2.4 and 2.12, provided that no Conversion
Term Loan shall be made as a Eurodollar Loan after the day that is one month prior to the
Revolving Termination Date. The Conversion Term Loans shall bear interest in the manner set
forth in Section 2.14, and shall be payable as set forth in Section 2.7. On and after the
Conversion Date, Borrowers' may elect to replace any Revolving Notes with new Revolving
Notes which appropriately reflect the revised Revolving Commitments. Upon request,
Borrowers agree that they shall issue to each Lender desiring a Conversion Term Note a
Conversion Term Note in the appropriate principal amount.
2.4

Procedures for

Borrowing~

Where Disbursed.

(a)
Each Notice of Borrowing (whether for Disbursement Agreement Loans
or Direct Loans) shall be received by the Administrative Agent prior to 12:00 Noon, (i) three
Banking Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) one
Banking Day prior to the requested Borrowing Date, in the case of Base Rate Loans. Each
Notice of Borrowing shall specify (A) the amount and Type of Loans to be borrowed, (B) the
requested Borrowing Date and (C) in the case of Eurodollar Loans, the length of the initial
Interest Period therefor.
(b)
Upon receipt of each Notice of Borrowing which requests the making of
Loans hereunder, the Administrative Agent shall promptly notify each Delay Draw Lender
and/or Revolving Lender, as appropriate, thereof. Each such Lender will make the amount of its
pro rata share of each borrowing available to the Administrative Agent at the Administrative
Agent's Office prior to 10:00 A.M., on the Borrowing Date requested by Borrowers in funds
immediately available to the Administrative Agent.
(c)
Upon satisfaction or waiver of the applicable conditions precedent
specified in Section 2.1, the proceeds of the Loans will be made available by the Administrative
Agent, in like funds as received by the Administrative Agent from the Lenders, not later than
12:00 Noon, on the applicable Borrowing Date. The proceeds of the Disbursement Agreement
Loans will be remitted to the Bank Proceeds Account and made available to Borrowers in
accordance with and upon fulfillment of conditions set forth in the Disbursement Agreement.
The proceeds of Direct Loans will be made available to Borrowers by the Administrative Agent
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crediting a Direct Funding Account or another account reasonably acceptable to the
Administrative Agent.
(d)
Subject to Section 2.1(b), each borrowing or conversion under the Initial
Term Loans, the Delay Draw Commitments, the Revolving Commitments, or the Conversion
Term Loans shall be in an amount equal to (x) in the case of Base Rate Loans, $5,000,000 or a
whole multiple thereof (or, if the then aggregate Available Delay Draw Commitments or
Available Revolving Commitments, as applicable, are less than $5,000,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $10,000,000 or whole multiples of $1,000,000 in excess
thereof; provided, that the Swing Line Lender may request, on behalf of Borrowers, borrowings
under the Revolving Commitments which are Base Rate Loans in other amounts pursuant to
Section 2.6.
(e)
In the event that the proceeds of any Loans deposited into the Bank
Proceeds Account pursuant to subsection (c) above are not disbursed by the Disbursement Agent
on the applicable Borrowing Date, the proceeds of such Loans shall be held by the Disbursement
Agent in accordance with the provisions set forth in the Disbursement Agreement; provided,
however, that the proceeds of such Loans shall continue to bear interest and be repayable in
accordance with the provisions set forth in this Agreement. In the event that the Administrative
Agent receives a Stop Funding Notice from-the Disbursement Agent, none of the Administrative
Agent and the Lenders shall, or shall have any obligation to, make Loans until the circumstances
associated with such Stop Funding Notice have been resolved; provided, however, that
Borrowers shall be obligated to make any payments due pursuant to Section 2.19 as a result
thereof.
2.5

Swing Line Commitment.

(a)
Subject to the terms and conditions hereof, the Swing Line Lender agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.5, to make
available to Borrowers a portion of the credit otherwise available to Borrowers under the
Revolving Commitments from time to time during the Revolving Commitment Period by making
swing line loans ("Swing Line Loans") to Borrowers; provided, that (i) the aggregate principal
amount of Swing Line Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect, (ii) Borrowers shall not request, and the Swing Line Lender shall not
make, any Swing Line Loan if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Commitments would be less than zero, (iii)
Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan, and (iv) no Swing Line Loan shall be made prior to the Opening Date (or
thereafter on account of the Bank Revolving Facility Completion Reserve Amount). Borrowers
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans
only, and, notwithstanding anything to the contrary herein, may not be converted to Eurodollar
Loans.
(b)

Borrowers shall repay all outstanding Swing Line Loans on the Revolving

Termination Date.

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2.6

Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.

(a)
Whenever any Borrower desires that the Swing Line Lender make Swing
Line Loans it shall give the Swing Line Lender irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by the Swing Line Lender not
later than 1.:00 P.M., on the proposed Borrowing Date), specifying (i) the amount to be borrowed
and (ii) the requested Borrowing Date (which shall be a Banking Day during the Revolving
Commitment Period). Each borrowing under the Swing Line Commitment shall be in an
amount equal to $500,000 or a $100,000 multiple in excess thereof. Not later than 3:00 P.M., on
the Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent at the Administrative Agent's Office an amount
in immediately available funds equal to the amount of the Swing Line Loan to be made by the
Swing Line Lender; provided, that the Swing Line Lender shall not be obligated to make any
Swing Line Loans at a time when a Lender Default exists unless the Swing Line Lender has
entered into arrangements satisfactory to it to eliminate the Swing Line Lender's risk with respect
to the Defaulting Lender's or Lenders' participation in such Swing Line Loans. The
Administrative Agent shall make the proceeds of such Swing Line Loan available to Borrowers
on such Borrowing Date by depositing such proceeds into a Direct Funding Account (or such
other account as is reasonably acceptable to the Administrative Agent) in immediately available
funds.
(b)
The Swing Line Lender, at any time and from time to time in its sole and
absolute discretion may, on behalf of Borrowers (which hereby irrevocably directs the Swing
Line Lender to act on its behalf), on one Banking Day's notice given by the Swing Line Lender
no later than 12:00 Noon, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender's
Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the "Refunded
Swing Line Loans") outstanding on the date of such notice, to repay the Swing Line Lender. The
Swing Line Lender shall promptly notify Borrowers of any such request as soon as reasonably
practicable. Each Revolving Lender shall make the amount of such Revolving Loan available to
the Administrative Agent at the Administrative Agent's Office in immediately available funds,
not later than 10:00 A.M., one Banking Day after the date of such notice. The proceeds of such
Revolving Loans shall be immediately made available by the Administrative Agent to the Swing
Line Lender for application by the Swing Line Lender to the repayment of the Refunded Swing
Line Loans. Each Borrower irrevocably authorizes the Swing Line Lender to charge Borrowers'
accounts with the Administrative Agent (up to the amount available in each such account) in
order to immediately pay the amount of such Refunded Swing Line Loans to the extent amounts
received from the Revolving Lenders are not sufficient to repay in full such Refunded Swing
Line Loans and the Administrative Agent shall provide the Borrowers with notice of any such
action as soon as reasonably practicable.
(c)
If prior to the time a Revolving Loan would have otherwise been made
pursuant to Section 2.6(b), one of the events described in Section 8(f) shall have occurred and be
continuing with respect to any Borrower or if for any other reason, as determined by the Swing
Line Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section
2.6(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.6(b) (the "Refunding Date"), purchase for cash an
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undivided participating interest in the then outstanding Swing Line Loans by paying to the Swing
Line Lender an amount (the "Swing Line Participation Amount") equal to (i) such Revolving
Lender's Revolving Credit Percentage times (ii) the sum of the aggregate principal amount of
Swing Line Loans then outstanding which were to have been repaid with such Revolving Loans.
(d)
Whenever, at any time after the Swing Line Lender has received from any
Revolving Lender such Lender's Swing Line Participation Amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender will distribute
to such Revolving Lender its Swing Line Participation Amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Revolving Lender's
participating interest was outstanding and funded and, in the case of principal and interest
payments, to reflect such Revolving Lender's pro rata portion of such payment if such payment is
not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided,
however, that in the event that such payment received by the Swing Line Lender is required to be
returned, such Revolving Lender will return to the Swing Line Lender any portion thereof
previously distributed to it by the Swing Line Lender.
(e)
Each Revolving Lender's obligation to make the Loans referred to in
Section 2.6(b) and to purchase participating interests pursuant to Section 2.6(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including, without limitation,
(i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Lender or
any Borrower may have against the Swing Line Lender, any Borrower or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or
the failure to satisfy any of the other conditions specified in Section 5; (iii) any adverse change in
the condition (financial or otherwise) of any Borrower or any other Person; (iv) any breach of
this Agreement or any other Loan Document by any Borrower or any other Person (including,
without limitation, any other Revolving Lender); (v) any reduction or termination of the
Commitments; or (vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing, and each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
2.7

Repayment of Loans; Evidence of Indebtedness.

(a)
Borrowers hereby, jointly and severally unconditionally promise to pay to
the Administrative Agent for the account of the appropriate Revolving Lender, Term Lender, or
Conversion Term Lender as the case may be, (i) the then unpaid principal amount of each
Revolving Loan, and Conversion Term Loan on the Revolving Termination Date, and (ii) the
principal amount of each Term Loan of such Term Lender in installments according to the
amortization schedule set forth in Section 2.2 and the then unpaid principal amount of each Term
Loan of such Term Lender on the Tern} Loan Termination Date. Borrowers hereby jointly and
severally agree to pay interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in Section 2.14.
(b)
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of Borrowers to such Lender resulting from each
Loan of such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
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(c)
The Administrative Agent, on behalf of Borrowers, shall maintain the
Register pursuant to Section 1O.6(c), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the
Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from Borrowers to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder
from Borrowers and each Lender's share thereof.
(d)
The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.7(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of Borrowers therein recorded in
the absence of manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any error therein, shall not
in any manner affect the obligation of any Borrower to repay (with applicable interest) the Loans
made to such Borrower by such Lender in accordance with the terms of this Agreement.
(e)
Each Borrower agrees that, upon the request to the Administrative Agent
by any Lender, such Borrower will execute and deliver to such Lender a promissory note of
Borrowers evidencing any Conversion Term Loans, Delay Draw Term Loans, Initial Term
Loans, Revolving Loans or Swing Line Loans, as the case may be, of such Lender, substantially
in the forms of Exhibit G-l, G-2, G-3, G-4 or G-5 hereto, respectively, with appropriate
insertions as to date and principal amount (such notes, respectively, "Conversion Term Notes",
"Delay Draw Term Notes", "Initial Term Notes", Revolving Notes" and "Swing Line Notes").
2.8

Commitment Fees, etc.

(a)
Each Borrower agrees to pay to the Administrative Agent for the account
of each Revolving Lender a commitment fee (the "Revolving Commitment Fee") for the period
from and including the Closing Date to the last day of the Revolving Commitment Period,
computed at the Revolving Commitment Fee Rate on the average daily amount of the Available
Revolving Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December and on the
Revolving Termination Date, commencing on the first of such dates to occur after the date
hereof; provided that (a) any Revolving Commitment Fee accmed with respect to any of the
Commitments of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by Borrowers so long as such
Lender shall be a Defaulting Lender, except to the extent that such Revolving Commitment Fee
shall otherwise have been due and payable by Borrowers prior to such time, and (b) no such
Revolving Commitment Fee shall accme on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b)
Each Borrower agrees to pay to the Administrative Agent for the account
of each Delay Draw Lender a commitment fee for the period from and including the Closing
Date to the last day of the Delay Draw Commitment Period, computed at the Delay Draw
Commitment Fee Rate on the average daily amount of the Available Delay Draw Commitment
of such Lender during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the last day of the Delay Draw
Commitment Period, commencing on the first of such dates to occur after the date hereof;
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provided that (i) any such commitment fee accmed with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender
and unpaid at such time shall not be payable by Borrowers so long as such Lender shall be a
Defaulting Lender, except to the extent that such commitment fee shall otherwise have been due
and payable by Borrowers prior to such time, and (ii) that no such commitment fee shall accme
on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(c)
Each Borrower agrees to pay to the Arrangers, the Managers, and the
Administrative Agent the fees in the amounts and on the dates previously agreed to in writing by
Borrowers, the Arrangers, the Managers and the Administrative Agent including, without
limitation, pursuant to the Facility Fee Letter which Borrowers hereby agree to be obligated
under as if originally parties thereto.
(d)
Each Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates from time to time agreed to in writing by Borrowers and the
Administrative Agent including, without limitation, pursuant to the Administrative Agent Fee
Letter.
2.9
Termination or Reduction of Commitments. Borrowers shall have the
right, upon not less than three Banking Days' notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving
Commitments; provided, that no such termination or reduction of Revolving Commitments shall
be permitted prior to the Completion Date; provided, further, that no such termination or
reduction of Revolving Commitments shall be permitted if, (i) after giving effect thereto and to
any prepayments of the Revolving Loans and Swing Line Loans made on the effective date
thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments or (ii) such termination or reduction is prohibited by the Disbursement Agreement
(while in effect). Any such reduction shall be in an amount equal to $5,000,000, or a whole
multiple thereof (or, if less, shall reduce the Revolving Commitments to zero), and shall reduce
permanently the Revolving Commitments then in effect. In addition, during the Delay Draw
Commitment Period, Borrowers may, upon notice to the Administrative Agent as set forth above,
from time to time terminate (in whole or in part) the unused portion of the aggregate Delay Draw
Commitments, provided, that no such termination or reduction of Delay Draw Commitments
shall be permitted prior to the Completion Date.
2.10

Optional Prepayments.

(a)
Subject to clause (b) of this Section, Borrowers may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable
notice delivered to the Administrative Agent at least three Banking Days prior thereto in the case
of Eurodollar Loans and at least one Banking Day prior thereto in the case of Base Rate Loans,
which notice shall (i) designate whether Borrowers are prepaying Revolving Loans, Conversion
Term Loans and/or Term Loails and (ii) specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, Borrowers
shall also pay any amounts owing pursuant to Section 2.19. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is
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given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans (unless all Revolving Loans are being
repaid and the Revolving Commitments terminated) and Conversion Term Loans (unless all
Conversion Term Loans are being repaid) that are Base Rate Loans and Swing Line Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of the Loans shall be in
an aggregate principal amount of $5,000,000 or a whole multiple in excess thereof. Partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple in excess thereof.

In the event that, prior to the first anniversary of the Opening Date, the
(b)
Term Loans are prepaid in whole or in part from the proceeds of any incurrence of Indebtedness
(other than Indebtedness issued through a public offering or a private placement) which has an
interest rate lower than the interest rate then applicable to the Term Loans, the Borrowers shall
pay to each holder of a Term Loan, concurrently with such prepayment, a prepayment premium
(expressed as a percentage of the aggregate principal amount of the Term Loan prepaid) of 101 %
on the principal amount of the Term Loan of such holder which are prepaid.
2.11

Mandatory Prepayments and Commitment Reductions.

(a)
Borrowers shall prepay the Loans (on the dates required by clause (b) of
this Section, and with application in the manner set forth in clause (c) of this Section), in an
amount which is equal to:
(i)

100% of the Net Cash Proceeds received by the Companies from

each Asset Sale;
(ii)
100% of the Net Cash Proceeds received by the Companies from
each sale of Condo Units;
(iii)
100% of all Loss Proceeds received by the Companies following
the Opening Date, to the extent that the same are required to be applied to the prepayment
of the Loans pursuant to Section 2.22(c);
(iv)
by the Companies;

100% of the Net Cash Proceeds of any Subordinated Debt issued

(v)
100% of the Net Cash Proceeds of any Equity Interests hereafter
issued by any Subsidiary of Las Vegas Holdings to a person other than Las Vegas
Holdings or one of its other Subsidiaries or by Las Vegas Holdings to any Person which
is not wholly-owned by Parent;
(vi)
The Lender Excess Cash Flow Percentage of Excess Cash Flow for
each Excess Cash Flow Period; and
(vii) As and when required by Section 7.24, using the remaining
of the Liquidity Account.
proceeds
(b)

Each of the prepayments described in clause (a) shall be required to be

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made on the following dates:
Each prepayment required by clause (a)(i) shall be made not later
(i)
than thirty days following the consummation of the related Asset Sale unless the
Companies have delivered a Reinvestment Notice in relation thereto, provided that the
aggregate Net Cash Proceeds of Asset Sales that may be the subject of Reinvestment
Notices shall not exceed $5,000,000 in any Fiscal Year. To the extent that any Net Cash
Proceeds which are the subject of a Reinvestment Notice are not reinvested in property
used in Permitted Businesses within nine months following the date of the related Asset
Sale, then Borrowers shall immediately prepay the Loans to the extent of the Net Cash
Proceeds not reinvested;
(ii)
Each prepayment required by clause (a)(ii) shall be made within
one calendar month following the date upon which the related Condo Unit sale is closed
with the retail purchaser;
(iii)
Each prepayment required by clause (a)(iii) shall be made on the
Banking Day on which Loss Proceeds are required to be applied to the prepayment of
Loans pursuant to Section 2.22;
(iv)
Each prepayment required by clause (a)(iv) or by clause (a)(v)
shall be made immediately upon the receipt by the Companies of the related Net Cash
Proceeds;
(v)
Each prepayment required by reason of Excess Cash Flow for any
Excess Cash Flow Period pursuant to clause (a)(vi) shall be made within five Banking
Days after the date on which the applicable financial statements of Las Vegas Holdings
are required to be delivered to the Lenders pursuant to Section 6.1(a). For each Excess
Cash Flow Period ending on any December 31, the applicable financial statements shall
be the audited financial statements delivered pursuant to Section 6.1(a)(i). For each
Excess Cash Flow Period ending on any June 30, the applicable financial statements shall
be the unaudited quarterly financial statements for the Fiscal Quarter ending on that June
30 delivered pursuant to Section 6.1(a)(ii). It is agreed that in the event that due to any
audit adjustments made in connection with any financial statements delivered pursuant to
Section 6. 1(a)(i), the amount of the prior Excess Cash Flow payment proves to have been
incorrect, then the Excess Cash Flow payment made in respect of the Excess Cash Flow
Period then ended will be adjusted (upwards or downwards) as required to correct the
amount of the prior payment (any increased amount being the "Excess Cash Flow
Recapture"); and
(vi)
Each prepayment required by clause (a)(vii) shall be made within
thirty days following the Banking Day on which the Compliance Certificate referred to in
Section 7.24 is delivered.
(c)
applied as follows:

Each prepayment of the Loans made pursuant to this Section shall be

(i)
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shall be applied solely to the Revolving Loans (and shall not reduce the Total Revolving
Commitments);
(ii)
Each prepayment of the types required by clauses (a)(ii) through
(a)(v) shall be applied to the prepayment of the Revolving Loans and the Term Loans,
ratably on the basis of the proportions that (1) the Revolving Commitments on the
Closing Date bear to (2) the Term Commitments on the Closing Date. To the extent that
any Conversion Term Loans are then outstanding, then the portion of such prepayment
allocable to the Revolving Loans shall be applied to the prepayment of the Revolving
Loans and the Conversion Term Loans, ratably on the basis that the principal amount of
the Conversion Term Loans then outstanding bears to the Total Revolving Commitments
then outstanding. Each such prepayment of the Revolving Loans shall correspondingly
reduce the Revolving Commitments. The portion of such prepayment allocable to the
Term Loans shall be applied ratably to the prepayment of the Term Loans then
outstanding.
(iii)
Each prepayment made from Excess Cash Flow shall be applied
first, to the prepayment of the Term Loans, and second, to the prepayment of the
Conversion Term Loans and the Revolving Loans (ratably on the basis of the proportion
that the principal amount of the Conversion Term Loans then outstanding bears to the
Total Revolving Commitments then outstanding). The portion of such prepayment
allocable to the Term Loans shall be applied ratably to the prepayment of the Term Loans
then outstanding.
(iv)
Each Lender which is a holder of Term Loans may reject any
prepayment of the Term Loans otherwise allocable to it pursuant to this Section (in which
case, such prepayment shall be applied to the ratable reduction of the Conversion Term
Loans and Revolving Loans and, to the extent applied to the Revolving Loans, shall
correspondingly reduce the Total Revolving Commitments (provided that no such
application shall result in the Total Revolving Commitments being less than
$300,000,000 (or, to the extent that the conversion thereof to Conversion Term Loans
contemplated by Section 2.3 has not yet occurred, $500,000,000).
(v)
The application of each prepayment pursuant to this Section 2.11
shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under this Section 2.11 shall be accompanied by accrued
interest to such date on the amount prepaid.
2.12

Conversion and Continuation Options.

(a)
Borrowers may elect from time to time to convert Eurodollar Loans to
by giving the Administrative Agent at least two Banking Days' prior
Base Rate Loans
irrevocable notice of such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto. Other than with respect
to Swing Line Loans which shall at all times be Base Rate Loans, Borrowers ~ay elect from
time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent
at least three Banking Days' prior irrevocable notice of such election (which notice shall specify
the length of the initial Interest Period therefor), provided that no Base Rate Loan under a
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particular Facility may be converted into a Eurodollar Loan (i) when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the final scheduled termination or
maturity date of such Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b)
Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by any Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term "Interest Period"
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent has or the
Required Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility, and pro~ided, further, that if
Borrowers shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically
converted to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
2.13 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so
that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall be outstanding
at anyone time.
2.14

Interest Rates and Payment Dates.

(a)
Each Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
(b)
Each Base Rate Loan shall bear interest for each day at a rate per annum
equal to the Base Rate determined for such day plus the Applicable Margin.
(c)
(i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise) or an Event of Default has otherwise occurred and is continuing, all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest
at a rate per annum that is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus 2.0% or (y) in the
case of Reimbursement Obligations, the rate applicable to Base Rate Loans under the Revolving
Credit Facility plus 2.0%, and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder (in
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accordance with Section 2.8 or otherwise) shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per
annum equal to the rate then applicable to Base Rate Loans under the relevant Facility plus 2.0%
(or, in the case of any such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0%), in each case, with
respect to subsections (i) and (ii) above, from the date of such non-payment until such amount is
paid in full (after as well as before judgment) or so long as such Event of Default is continuing.
(d)
Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from
time to time on demand.
2.15

Computation of Interest and Fees.

(a)
Interest, fees and commissions payable pursuant hereto shall be calculated
on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of Bank of America's "prime rate",
the interest thereon shall be calculated on the basis of a 365 or 366-day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify Borrowers and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify Borrowers and the
relevant Lenders of the effective date and the amount of each such change in interest rate.
(b)
Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on Borrowers and
the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of
Borrowers, deliver to Borrowers a statement showing the quotations, if any, used by the
Administrative Agent in determining any interest rate pursuant to Section 2.15(a).
(c)
If, as a result of any restatement of or other adjustment to the financial
statements of Borrowers or for any other reason, the Administrative Agent determines that (i) the
Total Leverage Ratio as calculated by Borrowers as of any applicable date was inaccurate and
(ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for
such period, Borrowers shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to Borrowers under the Bankruptcy Code, automatically and without further action
by the Administrative Agent, any Lender or the Issuing Lender), an amount equal to the excess
of the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the Issuing Lender, as the case may be, under Section 3.3,
3.9 or 2.14(c) or under Section 8. Borrowers' obligations under this paragraph shall survive the
termination of the Commitments and the repayment of all other Obligations hereunder.
2.16

Inability to Determine Interest Rate. If prior to the first day of any Interest

Period:
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(a)
the Administrative Agent determines (which determination shall be
conclusive and binding upon Borrowers) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b)
the Administrative Agent shall have received notice from the Applicable
Facility Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to Borrowers and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have
been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as
Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be
converted, on the last day of the then current Interest Period with respect thereto, to Base Rate
Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor shall Borrowers have
the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.17

Requirements of Law.

(a)
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority
made subsequent to the date hereof:
(i)
shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.18 and changes in the basis of taxation or rate
of tax on the overall net income (including branch profits) and franchise (and similar)
taxes imposed in lieu of net income taxes of such Lender);
(ii)
shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii)

shall impose on such Lender any other condition;

and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining
Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, Borrowers shall promptly pay
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such Lender, upon its demand, any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable; provided, that Borrowers
shall not be required to compensate a Lender pursuant to this subsection (a) for any increased
costs or reduced amounts receivable from more than six months prior to the date on which such
Lender notified Borrowers of such Lender's intention to claim compensation therefor; and
provided, further, that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such retroactive effect. If
any Lender becomes entitled to claim any additional amounts pursuant to this Section, it shall
promptly notify Borrowers in writing (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled, and setting forth in such notice, in reasonable detail,
the basis and calculation of such amounts.
(b)
If any Lender shall have determined that the adoption of or any change in
any Requirement of Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lender's or such corporation's capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after submission by
such Lender to Borrowers (with a copy to the Administrative Agent) of a written request therefor
(which request shall set forth, in reasonable detail, the basis and calculation of the additional
amounts sought), Borrowers shall pay to such Lender such additional amount or am0l;lnts as set
forth in the aforesaid notice; provided, that Borrowers shall not be required to compensate a
Lender pursuant to this subsection (b) for any amounts incurred more than six months prior to
the date on which such Lender notified Borrowers of such Lender's intention to claim
compensation therefor; and provided, further, that, if the circumstances giving rise to such claim
have a retroactive effect, then such six -month period shall be extended to include the period of
such retroactive effect.
(c)
A certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to Borrowers (with a copy to the Administrative Agent) and setting
forth, in reasonable detail, the basis and calculation of such amounts shall be conclusive in the
absence of manifest error. The obligations of Borrowers pursuant to this Section shall survive
the termination of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(d)
Failure or delay on the part of any Lender to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a waiver of that Lender's
right to demand such compensation, provided that Borrowers shall not be required to compensate
a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender notifies Borrowers of
the circumstances giving rise to such increased costs or reductions and of that Lender's intention
to claim compensation therefor (except that, if the circumstances giving rise to such increased
costs or reductions is retroactive, then the six-month period referred to above shall be extended
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to include the period of retroactive effect thereof).
2.18

Taxes.

(a)
All payments made by any Borrower or any Guarantor under this
Agreement or any other Loan Document shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net income taxes
(including branch profits taxes) and franchise and similar taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent, any Arranger, any Manager or any Lender as a
result of a present or former connection between Administrative Agent, such Arranger, such
Manager or such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than any such connection
arising solely from Administrative Agent's, such Arranger's, such Manager's or such Lender's
having executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes ") are required
to be withheld from any amounts payable to the Administrative Agent, to any Arranger, any
Manager or any Lender hereunder, the amounts so payable to Administrative Agent, such
Arranger, such Manager or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent, such Arranger, such Manager or such Lender (after payment of all NonExcluded Taxes) interest or any such other amounts that would have been received hereunder or
under any other Loan Document had such withholding not been required; provided, however,
that a Borrower or a Guarantor shall not be required to increase any such amounts payable to the
Administrative Agent, to any Arranger, any Manager or any Lender with respect to any NonExcluded Taxes (i) that are attributable to Administrative Agent's, such Arranger's, such
Manager's or such Lender's failure to comply with the requirements of subsection (f) or (g) of
this Section 2.18, or (ii) that are United States withholding taxes imposed on amounts payable to
Administrative Agent, such Arranger, such Manager or such Lender at the time Administrative
Agent, such Arranger, such Manager or such Lender becomes a party to this Agreement, except
to the extent that Administrative Agent's, such Arranger's, such Manager's or such Lender's
assignor (if any) was entitled, at the time of-assignment, to receive additional amounts from a
Borrower or a Guarantor with respect to such Non-Excluded Taxes pursuant to this Section
2.18(a). The applicable Borrower or Guarantor shall make any such required withholding and
pay the full amount withheld to the relevant tax authority or other Governmental Authority in
accordance with applicable Requirements of Law.
(b)
If any Arranger, Agent, Manager or Lender, as applicable, receives a
refund, credit or other tax benefit in respect of a tax for which a payment has been made by any
Borrower or Guarantor pursuant to this Section 2.18, which refund, credit or other tax benefit in
the good faith judgment of such Arranger, Agent, Manager or Lender, as the case may be, is
attributable to such payment made by such Borrower or Guarantor, then such Arranger, Agent,
Manager or Lender, as the case may be, shall reimburse such Borrower or Guarantor for such
amount as such Arranger, Agent, Manager or Lender, as the case may be, determines in good
faith to be the proportion of the refund, credit or other tax benefit as will leave it, after such
reimbursement, in the same position it would have been in if the payment of such tax and any
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payment by such Borrower or Guarantor under this Section 2.18 had not been made. Subject to
the first sentence of this Section 2.18(b), upon the reasonable request of a Borrower or a
Guarantor (and at the expense of such Persons), the Lender or the Administrative Agent, as
applicable, shall at its sole discretion, exercised in good faith, use reasonable efforts to cooperate
with a Borrower or a Guarantor with a view to obtaining a refund, credit or other tax benefit in
respect of any Non-Excluded Taxes with respect to which a Borrower or a Guarantor has paid
any amounts pursuant to Section 2.18 and which a Borrower or a Guarantor, on advice of
counsel, reasonably believes were not correctly or legally asserted by the relevant Governmental
Authority.
(c)
Subject to subsection (f) below, Borrowers shall indemnify the
Administrative Agent, each Arranger, each Manager and any Lender for the full amount of NonExcluded Taxes to the extent payable but not paid by any Borrower or any Guarantor pursuant to
Section 2.18(a) and paid by such Arranger, Agent, Manager or Lender or any of their respective
Affiliates (including, without limitation, any Non-Excluded Taxes imposed by any
.
Governmental Authority on amounts payable under Section 2.18(a) or this Section 2.18(c) and
any penalties, additions to tax interest and related expenses attributable to such Non-Excluded
Taxes). Payment under this indemnification shall be made within ten Banking Days from the
date the Administrative Agent, any Arranger, any Manager or any Lender or any of their
respective Affiliates makes written demand therefor, which demand shall set forth in reasonable
detail the basis and calculation of the amounts demanded. Any Lender (or transferee) claiming
any indemnity payment or additional amounts payable pursuant to Section 2.18(a) shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested in writing by a Borrower or a Guarantor if the making of such a
filing would avoid the need for or reduce the amount of any such indemnity payment or
additional amounts that may thereafter accrue.
(d)
Whenever any Non-Excluded Taxes are payable by a Borrower or a
Guarantor, such Borrower or Guarantor shall pay such taxes in accordance with applicable
Requirements of Law and, as promptly as practicable thereafter, such Borrower or Guarantor
shall send to the Administrative Agent for the account of the relevant Arranger, Agent, Manager
or Lender, as the case may be, a certified copy of an original official receipt received by such
Borrower or Guarantor showing payment thereof.
(e)
The agreements in this Section 2.18 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
Each Lender (or transferee) that is not a "United States person" (as defined
in Section 7701 (a)(30) of the Code) (a "Non-U.S. Lender") shall deliver to Borrowers and the
Administrative Agent (and, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two duly completed copies of U.S. Internal Revenue
Service Form W-8BEN and/or Form W-8 IMY or Form W-8ECI, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest," a Form W-8BEN and a statement
substantially in the form of Exhibit H hereto to the effect that such Non-U.S. 'Lender is eligible
for a complete exemption from withholding of U.S. taxes under Section 871(h) or 881(c) of the
Code, or any subsequent versions of any of the foregoing or successors thereto, properly
(f)

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completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by any Borrower or any Guarantor
under this Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of
any Participant, on or before the date such Participant purchases the related participation) and on
or before the date of the first payment to it following the date, if any, such Non-U .S. Lender
changes its applicable lending office pursuant to Section 2.21 hereof. In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
Borrowers at any time it determines that it is no longer in a position to provide any previously
delivered certificate to Borrowers (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). If a Non-U.S. Lender is unable to deliver any form pursuant to this
Section 2.18(f), such Non-U.S. Lender shall be entitled to neither relief from withholding nor
indemnity hereunder with respect to Non-Excluded Taxes for the period that would have been
covered by such form, unless (i) such Non-U.S. Lender's inability to deliver such form resulted
from a change in law after the date on which such Lender became a Lender hereunder or as a
result of a change in the circumstances of any Borrower or any Guarantor or the use of proceeds
of such Non-U.S. Lender's loans or (ii) such Non-U.S. Lender's assignor (if any) was entitled, at
the time of assignment, to the indemnity afforded hereunder. Notwithstanding any other
provision of this paragraph, a Non-U .S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver. Each Lender that is
not a Non-U.S. Lender shall promptly deliver to Borrowers two duly completed copies of United
States Internal Revenue Service Forni W-9 (or any applicable successor form) establishing that
such Lender is not subject to Untied States backup withholding tax.
(g)
Each Arranger, Agent, Manager and Lender that is entitled to an
.exemption from non- U.S. withholding taxes under the law of the jurisdiction in which a
Borrower or a Guarantor is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement or any other Loan Document shall deliver to
Borrowers and the relevant Guarantor(s), as applicable (with a copy to the Administrative
Agent), at the time or times prescribed by applicable Requirements of Law or reasonably
requested by Borrowers or such Guarantor(s), such properly completed and executed
documentation prescribed by applicable Requirements of Law as will permit such payments to
be made without withholding; provided, that such Arranger, Agent, Manager or Lender is legally
entitled to complete, execute and deliver such documentation and in such Person's judgment such
completion, execution or submission would not materially prejudice the legal position of such
Person.
(h)
Each Borrower and each Guarantor shall pay all Non-Excluded Taxes to
the relevant Governmental Authority in accordance with applicable Requirements of Law.
2.19 Indemnity. Each Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by any Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after such Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement (whether as a result of a Stop Funding Notice
or otherwise), (b) default by any Borrower in making any prepayment after such Borrower has
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given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day of'an Interest
Period with respect thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest that would have accmed on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such prepayment or of such
failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have commenced on the
date of such failure) in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accmed to such Lender on
such amount by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section
submitted to Borrowers by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Loans and
Letters of Credit and all other amounts payable hereunder.
2.20 lllegality. Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application thereof shall
make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, then (a) the commitment of such Lender hereunder to make Eurodollar Loans,
continue Eurodollar Loans as such or convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, Borrowers shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.17, 2.18 or 2.20 with respect to such
Lender, it will, if requested by Borrowers, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans affected by
such event with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause such Lender and
its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any of the obligations or rights of any
Borrower or Lender pursuant to Sections 2.17, 2.18 or 2.20.
2.22

Loss Proceeds.

(a)
All Loss Proceeds received by the Companies at any time shall be (i)
received in tmst for the Administrative Agent, (ii) shall be segregated from other funds of the
Companies, and (iii) subject to clause (d) of this Section, paid over to the Administrative Agent
in the same form as received (with any necessary endorsement).
(b)
All Loss Proceeds received by the Companies or the Administrative Agent
prior to the Opening Date shall be remitted by the Companies or the Administrative Agent, as
applicable, to the Resort Loss Proceeds Account, and the release of such Loss Proceeds to the
Resort Payment Account shall be controlled solely by the terms of the Disbursement Agreement.
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(c)
Following the Opening Date, subject to clause (d) below, all Loss
Proceeds received by the Companies shall be applied to the prepayment of the Obligations in
accordance with Sections 2.11 and 2.23, unless, each of the following conditions are satisfied or
waived by the Required Lenders (subject to the last proviso hereof) within 30 Banking Days
after receipt of such Loss Proceeds, in which event such amounts shall be made available by the
Administrative Agent for application to the repair or restoration of the Project:
(i)
such damage or destruction or Event of Loss does not constitute
the destruction of all or substantially all of the Project;
(ii)
no Default or Event of Default has occurred and is continuing
(other than a Default or an Event of Default resulting solely from such damage or
destruction or Event of Loss) and after giving effect to any proposed repair and
restoration, no Default or Event of Default will result from such damage or destruction or
proposed repair and restoration or Event of Loss;
(iii)
Borrowers certify, and the Administrative Agent determines after
notice to the Lenders that repair or restoration of the Project to a condition substantially
similar to the condition of the Project immediately prior to the event or events to which
the relevant Loss Proceeds, as the case may be relate, is technically and economically
feasible within a twelve-month period and that a sufficient amount of funds is or will be
available to Borrowers to make such repairs and restorations (subject at all times to
Section 7.7);
(iv)
Borrowers deliver to the Administrative Agent a plan describing in
reasonable detail the nature of the repairs or restoration to be effected and the anticipated
costs and schedule associated therewith (the "Repair Plan"), in form and substance
reasonably satisfactory to the Administrative Agent after notice to the Lenders and in any
event providing for the completion of all associated work prior to the Revolving
Termination Date;
(v)
Borrowers certify, and the Administrative Agent determines after
notice to the Lenders, that a sufficient amount of funds is or will be available to
Borrowers to make all payments on Indebtedness which will become due during and
following the repair period and, in any event, to maintain compliance with the covenants
set forth in Section 7.1 during such repair period;
(vi)
no Permit is necessary to proceed with the repair and restoration of
the Project which the Administrative Agent reasonably determines the Companies will
not be able to obtain as and when required;
(vii) the Administrative Agent shall receive such additional title
insurance, title insurance endorsements, mechanic's lien waivers, certificates, opinions or
other matters as it may reasonably request after notice to the Lenders as necessary or
appropriate in connection with such repairs or restoration of the Project or to preserve or
protect the Lenders' interests hereunder and in the applicable Collateral; and
(viii)

the proposed repair or restoration is permitted by the Second

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Mortgage Indenture;
provided that the Administrative Agent shall be entitled to waive any of the conditions set
forth in clauses (i) through (viii) above in its sole discretion as to any Loss Proceeds in an
amount which is not greater than $50,000,000.

(d)
Notwithstanding clause (c) of this Section, if any Event of Loss (or series
of related Events of Loss) occurs with respect to which Loss Proceeds received by the
Companies is less than $10,000,000 then, unless any Default or Event of Default has occurred
and remains continuing, such Loss Proceeds shall be released to the Companies without
satisfaction of the conditions set forth above in clause (c). If an Event of Default shall have
occurred and be continuing (other than a Default or an Event of Default resulting solely from the
Event of Loss giving rise to the receipt of such Loss Proceeds (but in any event including any
Default or Event of Default arising for failure to satisfy the terms of Sections 7.1 or 8(a)), then
any provisions of this Section 2.22 to the contrary notwithstanding, the Administrative Agent
may require the application of the resulting Loss Proceeds (i) to the cure of such Event of
Default (with any remaining Loss Proceeds applied as provided in this Section 2.22), or (ii) if
such Event of Default cannot be cured, toward payment of all other Obligations in connection
with exercise of the Lenders' remedies pursuant to Section 8.
2.23

Payments Generally; Administrative Agent's Clawback.

(a)
General. All payments to be made by Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent's Office in Dollars and in immediately available funds not later than
12:00 Noon on the date specified herein. The Administrative Agent will promptly distribute to
each Lender its applicable percentage in respect of the relevant Facility (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer to such Lender's
lending office in accordance with clauses (b), (c) and (d) below. All payments received by the
Administrative Agent after 12:00 Noon shall be deemed received on the next succeeding
Banking Day and any applicable interest or fee shall continue to accrue. If any payment to be
made by Borrowers shall come due on a day other than a Banking Day, payment shall be made
on the next following Banking Day, and such extension of time shall be reflected on computing
interest or fees, as the case may be.
(b)
Each borrowing by Borrowers from the Lenders hereunder, each payment
by Borrowers on account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Delay Draw Term Loan Percentages,
Revolving Credit Percentages or Conversion Term Loan Percentages, as the case may be, of the
relevant Lenders. Subject to Section 2.23(d), each payment (other than prepayments) in respect
of principal or interest in respect of the Loans, and each payment in respect of fees or expenses
payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro
rata according to the respective amounts then due and owing to the Lenders. The application of
any mandatory prepayment pursuant to this Section 2.23 shall be made, first, to Base Rate Loans
and, second, to Eurodollar Loans.

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(c)

Each payment (including each prepayment) of Term Loans shall be:

(i)
allocated to the Initial Term Loans and the Delay Draw Term
Loans pro rata based on the outstanding principal amOlmt of the Term Loans;
(ii)
applied to the installments due in respect of the Term Loans
(including the final payments on the Term Loan Termination Date), (A) pro rata based on
the remaining outstanding principal amount of such installments in the case of mandatory
prepayments required pursuant to Section 2.11 (a)(vi) and (B) in the inverse order of the
scheduled maturities of such installments in the case of all other mandatory prepayments.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(d)
Each payment (including each prepayment) by Borrowers on accOlmt of
principal of and interest on the Revolving Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Loans then held by the Revolving
Lenders. Each payment in respect of Reimbursement Obligations in connection with any Letter
of Credit shall be made to the Issuing Lender.
(e)

Funding by Lenders; Presumption by Administrative Agent.

(i)
Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Eurodollar Loans (or, in the case of any Base
Rate Loans, prior to 11 :00 A.M. on the date of such borrowing) that such Lender will not
make available to the Administrative Agent such Lender's share of such Loan, the
Administrative Agent may assume that such Lender has made such share available on
such date in accordance with Section 2.4 (or, in the case of a Base Rate Loan, that such
Lender has made such share available in accordance with and at the time required by
Section 2.4) and may, in reliance upon such assumption, make available to Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Loan available to the Administrative Agent, then the applicable Lender and
Borrowers severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day
from and including the date such amount is made available to Borrowers to but excluding
the date of payment to the Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by
the Administrative Agent in connection with the foregoing, and (B) in the case of a
payment to be made by Borrowers, the interest rate applicable to Base Rate Loans. If
Borrowers and such Lender shall pay such interest to the Administrative Agent for the
same or an overlapping period, the Administrative Agent shall promptly remit to
Borrowers the amount of such interest paid by Borrowers for such period. If such Lender
pays its share of the applicable Loan to the Administrative Agent, then the amount so
paid shall constitute such Lender's Loan included in such Loan. Any payment by
Borrowers shall be without prejudice to any claim any Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.
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(ii)
Payments by Borrowers; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from Borrowers prior to the
time at which any payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Lender hereunder that Borrowers will not make such payment, the
Administrative Agent may assume that Borrowers have made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the
appropriate Lenders or the Issuing Lender, as the case may be, the amount due. In such
event, if Borrowers have not in fact made such payment, then each of the appropriate
Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or
the Issuing Lender, in immediately available nmds with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate_
determined by the Administrative Agent in accordance with banking industry TIlles on
interbank compensation.
(iii)
Conclusive Presumption. A notice of the Administrative Agent to
any Lender or Borrowers with respect to any amount owing under this subsection (e)
shall be conclusive, absent manifest error.
(f)
Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Section 2, and such funds are not made available to Borrowers by
the Administrative Agent because the conditions to the applicable extensions of credit set forth in
Section 5 are not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to such Lender,
without interest.

Qbligations of Lenders Several. The obligations of the Lenders hereunder
(g)
to make Term Loans and Revolving Loans, to nmd participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 1O.5(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment
under Section 1O.5(c) on any date required heretmder shall not' relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan, to purchase its participation or to make its payment
under Section 1O.5(c).
(h)
Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or marmer or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Loan in any
particular place or marmer.
(i)
Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, UC Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of
interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of
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principal and LIe Borrowings then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and LIe Borrowings then due to such parties.
2.24 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in
respect of any the Facilities due and payable to such Lender hereunder and under the other Loan
Documents at such time in excess of its ratable share (according to·the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder
and under the other Loan Documents at such time) of payments on account of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of
any of the Facilities owing (but not due and payable) to such Lender hereunder and under the
other Loan Documents at such time in excess of its ratable share (according to the proportion of
(i) the amount of such Obligations owing (but not due and payable) to such Lender at such time
to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and
payable) to all Lenders hereunder and under the other Loan Documents at such time) of
payments on account of the Obligations in respect of the Facilities owing (but not due and
payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by
all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in
the Loans and subparticipations in LIe Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in
respect of the Facilities then due and payable to the Lenders or owing (but not due and payable)
to the Lenders, as the case may be, provided that:
(i)
if any such participations or subparticipations are purchased and all
or any portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii)
the provisions of this Section shall not be constmed to apply to (A)
any payment made by Borrowers pursuant to and in accordance with the express terms of
this Agreement or (B) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or subparticipations in LIe
Obligations or Swing Line Loans to any assignee or participant, other than to any
Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.

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SECTION 3. LETTERS OF CREDIT
3.1

The UC Commitment.

(a)
Subject to the terms and conditions set forth herein, (A) the Issuing Lender
agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 3 (1)
from time to time on any Banking Day during the UC Commitment Period, to issue Letters of
Credit for the account of Borrowers, and to amend Letters of Credit previously issued by it, in
accordance with this Section 3, and (2) to honor drawings under the Letters of Credit; and (B) the
Revolving Lenders severally agree to participate in Letters of Credit issued for the account of
Borrowers and any drawings thereunder; provided that after giving effect to any UC Credit
Extension with respect to any Letter of Credit, (w) prior to the Exhaustion of the Second
Mortgage Proceeds Account, the UC Obligations shall not exceed $50,000,000, (x) the
aggregate amount of the Available Revolving Commitments is greater than or equal to zero, (y)
the aggregate outstanding amount of the Revolving Loans of any Revolving Lender, plus such
Lender's applicable Revolving Credit Percentage of the outstanding amount of all UC
Obligations, plus such Lender's applicable Revolving Credit Percentage of the outstanding
amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment, and (z)
the UC Obligations shall not exceed the UC Commitment. Each request by Borrowers for the
issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrowers
that the UC Credit Extension so requested complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, Borrowers' ability to obtain Letters of Credit shall be fully revolving, and accordingly
Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. It is understood and agreed
that Bank of America letter of credit no. 3087239 issued in favor of Tomorrow 33 Convention in
the face amount of $117,630, having an expiration date of 12/14/07 shall be deemed outstanding
under this Agreement.
(b)

The Issuing Lender shall not issue any Letter of Credit if:

(i)
the expiry date of such requested Letter of Credit would occur
more than twelve months after the date of issuance, unless the Required Facility Lenders
with respect to the Revolving Credit Facility have approved such expiry date; or
(ii)
the expiry date of such requested Letter of Credit would occur after
the UC Commitment Period, unless all the Revolving Lenders have approved such
expiry date.
(c)

The Issuing Lender shall not be under any obligation to issue any Letter of

Credit if:
(i)
any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing
such Letter of Credit, or any Requirement of Law applicable to the Issuing Lender or any
request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the
Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of
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Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Lender in good faith deems material to it;
(ii)
the issuance of such Letter of Credit would violate one or more
policies of the Issuing Lender applicable to letters of credit generally;
(iii)
except as otherwise agreed by the Administrative Agent and the
Issuing Lender, such Letter of Credit is in an initial stated amOlmt less than $100,000, in
the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit;
(iv)

such Letter of Credit is to be denominated in a currency other than

Dollars; or .
(v)
a default of any Lender's obligations to fund under Section 3.3
exists or any Lender is at such time a Defaulting Lender hereunder, unless the Issuing
Lender has entered into satisfactory arrangements with Borrowers or such Lender to
eliminate the Issuing Lender's risk with respect to such Lender.
(d)
The Issuing Lender shall not amend any Letter of Credit if the Issuing
Lender would not be permitted at such time to issue such Letter of Credit in its amended form
under the terms hereof.
(e)
The Issuing Lender shall be under no obligation to amend any Letter of
Credit if (i) the Issuing Lender would have no obligation at such time to issue such Letter of
Credit in its amended form under the·terms hereof, or (ii) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(f)
The Issuing Lender shall act on behalf of the Revolving Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and the
Issuing Lender shall have all of the benefits and immunities (i) provided to the Administrative
Agent in Section 9 with respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term "Administrative Agent" as
used in Section 9 included the Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the Issuing Lender.

3.2

Procedures for Issuance and Amendment of Letters of Credit.

(a)
Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of Borrowers delivered to the Issuing Lender (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of Borrowers. Such Letter of Credit Application must be received by the
Issuing Lender and the Administrative Agent not later than 11 :00 A.M. at least two Banking
Days (or such later date and time as the Administrative Agent and the Issuing Lender may agree
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in a particular instance in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the
Issuing Lender: (i) the proposed issuance date of the requested Letter of Credit (which shall be a
Banking Day); (ii) the amount thereof; (iii) the expiry date thereof; (iv) the name and address of
the beneficiary thereof; (v) the documents to be presented by such beneficiary in case of any
drawing thereunder; (vi) the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; (vii) the purpose and nature of the requested Letter of Credit;
(viii) with respect to Letters of Credit to be used in connection with the payment of Project Costs
the satisfaction of the conditions set forth in Section 3.4 of the Disbursement Agreement; and
(ix) such other matters as the Issuing Lender may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the Issuing Lender (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Banking Day); (C) the nature of the
proposed amendment; and (D) such other matters as the Issuing Lender may require.
Additionally, Borrowers shall furnish to the Issuing Lender and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the Issuing Lender or the Administrative Agent
may reqUIre.
(b)
Promptly after receipt of any Letter of Credit Application, the Issuing
Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from Borrowers
and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof.
Unless the Issuing Lender has received written notice from any Revolving Lender, the
Administrative Agent or Borrowers, at least one Banking Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions
contained Section 3.4 of the Disbursement Agreement (or, to the extent of Letters of Credit not
supporting the payment of Project Costs, the conditions in Section 5.3) shall not then be satisfied,
then, subject to the terms and conditions hereof, the Issuing Lender shall, on the requested date,
issue a Letter of Credit for the account of Borrowers or enter into the applicable amendment, as
the case may be, in each case in accordance with the Issuing Lender's usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Lender a risk participation in such Letter of Credit in an amount equal to the product
of such Revolving Lender's applicable Revolving Credit Percentage times the amount of such
Letter of Credit.
(c)
Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to a nominating bank with respect thereto or to the beneficiary thereof, the
Issuing Lender will also deliver to Borrowers and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
3.3

Drawings and Reimbursements; Funding of Participations.

(a)
Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the Issuing Lender shan notify Borrowers and the
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Administrative Agent thereof. Not later than 11:00 A.M. on the date of any payment by the
Issuing Lender under a Letter of Credit, or if any such payment is made after 11:00 A.M. on or
before 11 :00 A.M. of the next Banking Day (each such date, an "Honor Date It):
(i)
if such Letter of Credit was issued to support the payment of
Project Costs, to the extent of any funds contained in the Bank Proceeds Account, the
Administrative Agent shall debit the Bank Proceeds Account for the amount of such
drawing and apply such amount to the reimbursement of the Letter of Credit;
(ii)
to the extent that sufficient funds to reimburse such payment are
not present in the Bank Proceeds Account (to the extent that such Letter of Credit was
issued to support the payment of Project Costs) or Borrowers do not otherwise timely
reimburse the Issuing Lender from other available sources, Borrowers shall be deemed to
have requested the making of a Revolving Loans which are Base Rate Loans in the
amount of such payment.
The Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the
amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of any
Revolving Loans required pursuant to clause (ii) above and such Revolving Lender's applicable
Revolving Credit Percentage thereof. In any such event, Borrowers shall be deemed to have
requested a Revolving Loan of Base Rate Loans to be disbursed on the Honor Date in the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.4 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of
the Revolving Commitments. Any notice given by the Issuing Lender or the Administrative
Agent pursuant to this Section 3.3(a) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(b)
Each Revolving Lender shall upon any notice pursuant to Section 3.3(a)
make funds available to the Administrative Agent for the account of the Issuing Lender at the
Administrative Agent's Office in an amount equal to its applicable Revolving Credit Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Banking Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section 3.3(c), each
Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan
to Borrowers in such amount. The Administrative Agent shall remit the funds so received to the
Issuing Lender.
(c)
With respect to any Unreimbursed Amount that is not fully refinanced by
a borrowing of Revolving Loans pursuant to Section 3.3(a) for any reason, Borrowers shall be
deemed to have incurred from the Issuing Lender an UC Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which UC Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the rate set forth in Section 2. 14(c).
In such event, each Revolving Lender's payment to the Administrative Agent for the account of
the Issuing Lender pursuant to Section 3.3(b) shall be deemed payment in respect of its
participation in such UC Borrowing and shall constitute an UC Advance from such Lender in
satisfaction of its participation obligation under this Section 3.3.

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(d)
Until each Revolving Lender funds its Revolving Loan or UC Advance
pursuant to this Section 3.3 to reimburse the Issuing Lender for any amount drawn under any
Letter of Credit, interest in respect of such Lender's applicable Revolving Credit Percentage of
such amount shall be solely for the accmmt of the Issuing Lender.
(e)
Each Revolving Lender's obligation to make Revolving Loans or UC
Advances to reimburse the Issuing Lender for amounts drawn under Letters of Credit, as
contemplated by this Section 3.3, shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Lender, any Borrower or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing. No such making
of an UC Advance shall relieve or otherwise impair the obligation of Borrowers to reimburse the
Issuing Lender for the amount of any payment made by the Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(f)
If any Revolving Lender fails to make available to the Administrative
Agent for the account of the Issuing Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 3.3 by the time specified in Section 3.3(b),
the Issuing Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately available to the
Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Issuing Lender in accordance with banking industry mles on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
Issuing Lender in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender's Loan included in the
relevant Loan or UC Advance in respect of the relevant UC Borrowing, as the case may be. A
certificate of the Issuing Lender submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this Section 3.3(f) shall be conclusive absent
manifest error.
3.4

Repayment of Participations.

(a)
At any time after the Issuing Lender has made a payment under any Letter
of Credit and has received from any Revolving Lender such Lender's UC Advance in respect of
such payment in accordance with Section 3.3, if the Administrative Agent receives for the
account of the Issuing Lender any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from Borrowers or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its applicable Revolving Credit Percentage thereof in the same funds as those
received by the Administrative Agent.
(b)
If any payment received by the Administrative Agent for the account of
the Issuing Lender pursuant to Section 3.3(b) is required to be returned under any of the
circumstances described in Section 10.20 (including pursuant to any settlement entered into by
the Issuing Lender in its discretion), each Revolving Lender shall pay to the Administrative
Agent for the account of the Issuing Lender its applicable Revolving Credit Percentage thereof
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on demand of the Administrative Agent, Qlus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.
3.5
Obligations Absolute. The obligation of Borrowers to reimburse the
Issuing Lender for each drawing under each Letter of Credit and to repay each UC Borrowing
shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(a)
any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;
(b)
the existence of any claim, counterclaim, setoff, defense or other right that
any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee
of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(c)
any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(d)
any payment by the Issuing Lender under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
(e)
any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise constitute a defense
available to, provided, in each case, that any action taken by the Issuing Lender with respect to
the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct
of the Issuing Lender, or a discharge of, .any Borrower or any of their Subsidiaries.
Borrowers shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with
Borrowers' instructions or other irregularity, Borrowers will promptly notify the Issuing Lender.
Borrowers shall be conclusively deemed to have waived any such claim against the Issuing
Lender and its correspondents unless such notice is given as aforesaid.
3.6
Role of Issuing Lender. Each Lender and each Borrower agree that, in
paying any drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility
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to obtain any document (other than any sight draft, certificates and documents expressly required
by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the
Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the Issuing Lender shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with the approval of the
Revolving Lenders or the Required Facility Lenders with respect to the Revolving Credit
Facility, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. Borrowers hereby
assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is not intended to, and shall not,
preclude Borrowers' pursuing such rights and remedies as they may have against the beneficiary
or transferee at law, under any custom or practice, or under any other agreement. None of the
Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the Issuing Lender shall be liable or responsible for any
of the matters described in clauses (a) through (e) of Section 3.5; provided, however, that
anything in such clauses to the contrary notwithstanding, Borrowers may have a claim against
the Issuing Lender, and the Issuing Lender may be liable to Borrowers, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by
Borrowers which Borrowers prove were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing,
the Issuing Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the Issuing Lender shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
3.7
Cash Collateral. Upon the request of the Administrative Agent, (i) if the
Issuing Lender has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an UC Borrowing, or (ii) if, as of end of the UC Commitment
Period, any UC Obligation for any reason remains outstanding, Borrowers shall, in each case,
immediately Cash Collateralize the then outstanding amount of all UC Obligations. Section 8
sets forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of
this Section 3.7, "Cash. Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the
UC Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the Issuing Lender (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.
Each Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Lender
and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and
all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or claim of any Person
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other than the Administrative Agent or that the total amount of such funds is less than the
aggregate outstanding amount of all UC Obligations, Borrowers will, forthwith upon demand by
the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as
Cash Collateral, an amount equal to the excess of (x) such aggregate outstanding amount over
(y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent
determines to be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the
extent permitted under applicable Requirements of Law, to reimburse the Issuing Lender.
3.8
Applicability of ISP and UCP. Unless otherwise expressly agreed by the
Issuing Lender and Borrowers when a Letter of Credit is issued, (a) the mles of the ISP shall
apply to each standby Letter of Credit, and (ii) the mles of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial Letter of Credit.
3.9
Letter of Credit Fees. Borrowers shall pay to the Administrative Agent for
the account of each Revolving Lender in accordance with its applicable Revolving Credit
Percentage a Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit equal to
the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving
Credit Facility times the daily amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.3. Letter of
Credit Fees shall be (i) due and payable on the first Banking Day after the end of each March,
June, September and December, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the expiry date of such Letter of Credit and thereafter on demand and
(ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Margin
during any quarter, the daily amount available to be drawn under each standby Letter of Credit
shall be computed and multiplied by the Applicable Margin separately for each period during
such quarter that such Applicable Margin was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Facility Lenders with respect to the
Revolving Credit Facility, while any Event of Default exists, all Letter of Credit Fees shall
accme at the rate set forth in Section 2.14(c).
3.10 Fronting Fee and Documentary and Processing Charges ~ayable to Issuing
Lender. Borrowers shall pay directly to the Issuing Lender for its own account a fronting fee (i)
with respect to each commercial Letter of Credit, at the rate specified in the Administrative
Agent Fee Letter, computed on the amOlmt of such Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing
the amount of such Letter of Credit, at a rate separately agreed between Borrowers and the
Issuing Lender, computed on the amount of such increase, and payable upon the effectiveness of
such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum
specified in the Administrative Agent Fee Letter, computed on the daily amount available to be
drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the tenth Banking Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion thereof, in the case
of the first payment), commencing with the first such date to occur after the issuance of such
Letter of Credit, on the expiry date of such Letter of Credit and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the
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amount of such Letter of Credit shall be determined in accordance with Section 1.3. In addition,
Borrowers shall pay directly to the Issuing Lender for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the
Issuing Lender relating to letters of credit as from time to time in effect. Such customary fees
and standard costs and charges are due and payable on demand and are nonrefundable.
3.11 Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.
SECTION 4. REPRESENTAnONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Administrative Agent and
each Lender that (i) as of the Closing Date, (ii) as of the date of the making of each Direct Loan,
and (iii) as of the date of the and the issuance or amendment of each Letter of Credit following
the Opening Date (other than to the extent issued to support or finance Project Costs pursuant to
the Disbursement Agreement):
4.1

Financial Condition.

(a)
The audited consolidated balance sheets of Parent and its consolidated
Subsidiaries as at December 31, 2006, and the related consolidated statements of income and of
cash flows for the Fiscal Year then ended, present fairly in all material respects the consolidated
financial condition of Parent and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the Fiscal Year then
ended. All such financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the periods involved
(except as approved by the accountants auditing the same, which accountants shall be
independent certified public accountants of nationally recognized standing).
(b)
As of the Closing Date, Parent and its Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the audited financial statements referred to in clause (a) of
this Section, other than as set forth in Schedule 4.1. During the period from January 1,2007 to
and including the Closing Date there has been no Disposition by Parent or any of its Subsidiaries
of any material part of its business or Property other than as set forth on Schedule 4.1.
(c)
Each of the financial statements required pursuant to Section 6.1 present in
all material respects the consolidated, and if applicable, consolidating financial condition of the
persons described therein, their respective consolidated, and if applicable, consolidating results
of operations and their respective consolidated, and if applicable, consolidating cash flows for
the period then ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the accountants auditing the same, which accountants
shall be independent certified public accountants of nationally recognized standing, and
disclosed therein and except with respect to interim financials, normal year end audit
adjustments).
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4.2

No Material Adverse Effect.

(a)
As of the Closing Date, since December 31,2006, there have been no
developments or events that, individually or collectively, have had or could reasonably be
expected to have a Material Adverse Effect.
(b)
As of each date following the Closing Date, since the Closing Date, there
have been no developments or events that, individually or collectively, have had or could
reasonably be expected to have a Material Adverse Effect.
4.3
CorporatefLLC Existence; Compliance with Law. Each of the Companies
(and, as of the Closing Date and as of the execution by any Loan Party of any Loan Document,
each such Loan Party):
is duly organized, validly existing and in good standing under the laws of
(a)
the jurisdiction of its organization;
(b)
has the corporate or limited liability company power and authority, as the
case may be, and the legal right, to own and operate its Property, to lease the Property it operates
as lessee and to conduct the business in which it is currently engaged;
(c)
is duly qualified as a foreign corporation or limited liability company and
in good standing under the laws of each jurisdiction where its ownership, lease or operation of
Property or the conduct of its business requires such qualification, except to the extent the failure
to be so qualified or in good standing could not reasonably be expected to have a Material
Adverse Effect; and
(d)
is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.4
Corporate Power; Authorization; Enforceable Obligations. Each of the
Companies (and, as of the Closing Date and as of the execution by any Loan Party of any Loan
Document, each such Loan Party) has the corporate or limited liability company power, as the
case may be, and authority, and the legal right, to make, deliver and perform the Loan
Documents and the Financing Agreements to which it is a party and to carry out the transactions
contemplated thereby and, in the case of Borrowers, to borrow hereunder. Each of the Loan
Parties has taken all necessary corporate or limited liability company action, as the case may be,
to authorize the execution, delivery and performance of the Loan Documents and the Financing
Agreements to which it is a party and, in the case of Borrowers, to authorize the borrowings and
issuances of Indebtedness on the terms and conditions of this Agreement and the other Financing
Agreements. No consent or authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any Person (other than a Loan Party) is required in
connection with the borrowings hereunder or with the execution by, delivery by, performance by,
validity or enforceability of this Agreement, any of the other Loan Documents and the Financing
Agreements against any Loan Party, except (i) consents, authorizations, filings and notices
described in Schedule 4.4 or in connection with the Financing Agreements, which consents,
authorizations, filings and notices have, unless otherwise indicated on Schedule 4.4, been
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obtained or made and are in full force and effect and (ii) the filings and actions referred to in
Section 4.19 or as made in connection with the Financing Agreements. Each Loan Document,
Financing Agreement and Material Agreement has been duly executed and delivered on behalf
of each Loan Party thereto. This Agreement constitutes, and each other Loan Document,
Financing Agreement and each Material Agreement upon execution will constitute, a legal, valid
and binding obligation of each Loan Party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by applicable bankmptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
4.5
No Legal Bar. The execution, delivery and performance of this
Agreement, the other Loan Documents, the Financing Agreements and the Material Agreements,
the issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof
(a) will not violate any material Requirement of Law in respect of any of the Companies (or, as
of the Closing Date, in respect of any Loan Party) or any material Contractual Obligation of any
of the Companies (or, as of the Closing Date, in respect of any Loan Party) in any material
respect, and (b) will not result in, or require, the creation or imposition of any Lien on any of the
properties or revenues of the Companies pursuant to any material Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security Documents and the
Financing Agreements). As of the Closing Date, no Requirement of Law or Contractual
Obligation applicable to any of the Companies could, individually or collectively, reasonably be
expected to have a Material Adverse Effect.
4.6
No Material Litigation. Except as set forth on Schedule 4.6, as of the
Closing Date there is no material litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority pending or, to the knowledge of Borrowers, threatened by
or against any of the Companies (or, to the knowledge of the Companies, in respect of any Loan
Party) or against any of their respective properties or revenues. None of the litigation disclosed
on Schedule 4.6 (a) as of the Closing Date, purports to affect or enjoin any of the Financing
Agreements or any of the transactions contemplated hereby or thereby, or (b) individually or
collectively, could reasonably be expected to have a Material Adverse Effect. There is no
reasonable basis to believe that any of the litigation disclosed on Schedule 4.6 will at any time
impede the constmction of the Project, and there has been no order or decree issued by any
tribunal for any such litigation which enjoins or otherwise restricts the constmction of the
Project. As of the Closing Date, the Companies do not believe that there is any reasonable basis
to believe that any of the litigation described on Schedule 4.6 may reasonably be expected to
result in a damage award to the plaintiffs thereunder which would constitute an Event of Default
hereunder. As of each date following the Closing Date, there are no actions, suits, proceedings,
c~aims or disputes pending or threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Companies that either individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
4.7
No Default. None of the Companies (nor, as of the Closing Date, any
Loan Party) is in default under or with respect to any of its Contractual Obligations in any
respect that, individually or collectively, could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8

Ownership of Property; Liens. The Companies are the sole owners of,

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legally and beneficially, and have good, marketable and insurable title to the Retained Site. The
Retained Site is not subject to any claims, liabilities, obligations, charges or restrictions of any
kind, nature or description (other than (a) the Reciprocal Easement and Permitted Liens), and (b)
claims, liabilities, obligations, charges or restrictions that individually or in the aggregate could
not reasonably be expected to materially interfere with the business or assets of the Companies),
or to any Lien except for Permitted Liens. Each of the Companies are the sole owners of, legally
and beneficially, and has good, marketable and insurable title to, their respective Properties other
than the Unrecorded Leases, and none of such Property is subject to any claims, liabilities,
obligations, charges or restrictions of any kind, nature or description (other than claims,
liabilities, obligations, charges or restrictions that individually or in the aggregate could not
reasonably be expected to materially interfere with the business or assets of the Companies,
taken as a whole), or to any Lien except for Permitted Liens. None of the Pledged Stock is
subject to any Lien except for Permitted Liens.
4.9

Intellectual Property.

(a)
The Companies own, or are licensed to use or otherwise have the right to
use in the manner described in the Intellectual Property License Agreement, the "Fontainebleau"
name and all other Intellectual Property (other than that which may be subsequently acquired or
licensed in the ordinary course of business) which is material to the conduct of their business,
taken as a whole, as currently and contemplated to be conducted, including all trademarks and
other Intellectual Property reasonably necessary for their operations at the Project. As of the
Closing Date, no claim has been asserted or is pending by any Person challenging or questioning
the ownership or use of any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor as of the Closing Date do the Companies know of any valid basis for
any such claim. The use by each of the Companies of such Intellectual Property does not
infringe on the rights of any Person which could reasonably be expected to have a Material
Adverse Effect.
(b)
As of the Closing Date, Schedule 4.9 (i) identifies each of the trademarks,
service marks and trade name applications and registrations currently registered by or otherwise
held, directly or indirectly, by each of the Companies or which each of the Companies has a nonexclusive right to use (including, without limitation, any Intellectual Property related to or
otherwise associated with the Companies' use of the "Fontainebleau" name) and identifies which
such Person registered, made or otherwise holds such Intellectual Property, and (ii) specifies as
to each, the jurisdiction in which such Intellectual Property has been issued or registered (or, if
applicable, in which an application for such issuance or registration has been filed), including the
respective registration or application numbers and applicable dates of registration or application
and expiration. As of the Closing Date, the Companies own no other material registered
intellectual property.
4.10

Taxes.

(a)
Each of the Companies has filed, or caused to be filed, all federal, state,
Clark County and other material tax and informational returns that are required to have been
filed by it in any jurisdiction, and all such tax and informational returns are correct and complete
in all material respects. Each of the Companies has paid all taxes shown to be due and payable
on such returns and all other material taxes and assessments payable by it, to the extent the same
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have become due and payable, other than (x) those taxes that it is contesting in good faith and by
appropriate proceedings, and (y) taxes that are not yet due, with respect to each of which it has
established reserves that are adequate for the payment thereof and as are required by GAAP.
(b)
There are no Liens for Taxes on any of the Properties of any of the
Companies, other than Liens r>ermitted pursuant to Section 7.3.
4.11 Federal Regulations. None of the Companies are engaged principally, or
as one of its principal activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (as defined in Regulations T, U or X of the Board), and no part of the
proceeds of the Loans or the Companies' revenues from the Project will be used by the
Companies to purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or otherwise in violation of Regulations
T, U orX.
4.12 Labor Matters. There are no strikes, stoppages, slowdowns or other labor
disputes against any of the Companies pending or, to the knowledge of Borrowers, threatened
that (individually or in the aggregate) could reasonably be expected to have a Material Adverse
Effect. Hours worked by and payment made to employees of the Companies have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing
with such matters that (individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. All payments due from any of the Companies on account of employee
health and welfare insurance that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect if not paid have been paid or accmed as a liability on the
books of the Companies.
4.13 ERISA. Either (a) there are no Plans or Multiemployer Plans for the
Companies or any Controlled Group Member or (b) except as could not reasonably be expected
to have a Material Adverse Effect (i) the Companies and each Controlled Group Member have
fulfilled in all material respects their obligations (if any) under the minimum funding standards
of ERISA and the Code for each Plan and for contributions to any Multiemployer Plan; (ii) each
Plan is an compliance in all material respects with the currently applicable provisions of ERISA
and the Code; (iii) neither the Companies nor any Controlled Group Member have incurred any
liability to the PBGC or a Plan under Title IV of ERISA (other than liability or contributions for
premiums due in the ordinary course).
4.14 Investment Company Act; Other Regulations. No Company is an
"investment company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. No Company is subject to
regulation under any federal or state statute or regulation which may limit its ability to incur
Indebtedness, other than the Nevada Gaming Laws, or which may render all or any portion of the
Obligations unenforceable. Incurrence of the Obligations by the Companies (and, as of the
Closing Date, by the other Loan Parties) under the Loan Documents complies with all applicable
provisions of the Nevada Gaming Laws, subject to any informational filings or reports required
by Nevada Gaming Commission Regulation Section 8.130.
4.15 Subsidiaries. As of the Closing Date, each of the Subsidiaries of Parent
are shown on Exhibit K to the Disbursement Agreement and neither Parent nor any other Loan
Party have any Subsidiaries or owns the whole or any part of the issued share capital or other
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direct ownership interest of any company or corporation or other Person except as shown on
Exhibit K to the Disbursement Agreement.
4.16

Use of Proceeds; Letters of Credit.

(a)
The proceeds of the extensions of credit under this Agreement made prior
to the Opening Date shall be applied in the manner contemplated by the Disbursement
Agreement.
(b)
The proceeds of the extensions of credit made after the Opening Date shall
be used for general business purposes of the Companies; provided, that such general business
purposes are in furtherance of, or associated with, the Permitted Business of the Companies;
provided, further, that to the extent proceeds of extensions of credit made after the Opening Date
but prior to the Final Completion Date are to be applied to Project Costs, such proceeds shall be
made solely out of Disbursement Agreement Loans applied to Project Costs in accordance with
the Disbursement Agreement.
4.17

Environmental Matters.

(a)
The Companies: (i) are within the period of all applicable statutes of
limitation have been, in material compliance with all applicable material Environmental Laws;
and (ii) reasonably believe that material compliance with all applicable material Environmental
Law that is or is expected to become applicable to any of them will be timely attained and
maintained.
(b)
To the knowledge of the Companies, and except as set forth in the Phase I
Report, Hazardous Substances are not present at, on, under, in, or about the Site, or at any other
location (including, without limitation, any location to which Hazardous Substances have been
sent for re-use or recycling or for treatment, storage, or disposal) which could reasonably be
expected to:
(i)
give rise to any material liability of any of the Companies under
any applicable Environmental Law, or otherwise to result in costs to any of the
Companies, in either case that could reasonably be expected to have a Material Adverse
Effect;
(ii)
materially interfere with any of the Companies' continued
operations, taken as a whole; or
(iii)

materially impair the fair saleable value of the Retained Site.

(c)
There is no judicial, administrative, or arbitral proceeding (including any
notice of violation or alleged violation) under or relating to any Environmental Law to which any
of the Project Entities are, or to the knowledge of the Companies will be, named as a party that is
pending or, to the knowledge Of the Companies, threatened, in the case of each date after the
Closing Date, except as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(d)

The Companies have not received any written request for information, or

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been notified that it is a potentially responsible party, under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act or any similar
Environmental Law.
(e)
Except as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the Companies have not entered into or agreed to
any consent decree, order, or settlement or other agreement, or is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum for
dispute resolution, relating to compliance with or liability under any Environmental Law or
Environmental Claim.
Except as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, none of the Companies has assumed or retained, by
contract or operation of law, any liabilities of any kind, fixed or contingent, known or unknown,
under any Environmental Law or with respect to any Hazardous Substances.
(f)

(g)
Except as could not, individually or in the aggregate reasonably be
expected to have a Material Adverse Effect or as set forth in the Phase I Report:
(i)
Hazardous Materials Activities are not presently occurring, and, to
the Companies' knowledge, have not previously occurred, at, on, under, in or about the
Site; and
(ii)
none of the Companies have ever engaged in any Hazardous
Materials Activities at the Site.
4.18

Accuracy of Information.

(a)
No statement or information contained in this Agreement, any other Loan
Document, the Confidential Information Memorandum or any other document, certificate or
statement furnished to the Arrangers, the Administrative Agent, the Managers or the Lenders or
any of them, by or on behalf of the Parent or any Company for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents (other than the
materials described in clause (b)), when taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in which such statements
were made.
(b)
The projections, estimates and other forward looking statements and
estimates, and the pro forma financial information contained in the materials referenced above
(including, without limitation, the Projections) are based upon good faith estimates and
assumptions believed by management of Parent and the Companies to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it relates to future
events is not to be viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth therein by a material
amount.
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(c)
As of the Closing Date, there are no facts known to the Companies that
could, individually or collectively, reasonably be expected to have a Material Adverse Effect that
has not been expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates· and written statements
furnished to the Arrangers, the Administrative Agent, the Managers and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan Documents.
4.19

Security Documents.

(a)
The Guarantee and Collateral Agreement is effective to create in favor of
the Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and
enforceable security interest in the Collateral described therein and proceeds and products
thereof. In the case of the Pledged Stock, when any stock or membership certificates
representing such Pledged Stock are delivered to the Administrative Agent with a corresponding
endorsement, and in the case of the other Collateral (other than Non-Perfection Collateral (as
defined in the Guarantee and Collateral Agreement)) described in the Guarantee and Collateral
Agreement, when financing statements in appropriate form are filed in the offices specified on
Schedule 4.19(a)-1 and such other filings and actions as are specified on Schedule 3 to the
Guarantee and Collateral Agreement are made and taken, the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and
interest of the Companies in such Collateral and the proceeds and products thereof, as security
for the Obligations, in each case subject only to Permitted Liens and prior and superior in right to
any other Lien (except Senior Permitted Liens). Schedule 4.19(a)-2Iists as of the Closing Date
each UCC Financing Statement that names any Company as debtor and will remain on file after
the Closing Date. Notwithstanding the foregoing, it is acknowledged that, pursuant to the
Nevada Gaming Laws when the Companies are licensed by or registered with Nevada Gaming
Authorities, the approval of the pledge of the Equity Interests in the Companies by the Nevada
Gaming Authorities will be required in order for such pledge of the Equity Interests in the
Companies to remain in effect and that when the Companies are licensed by or registered with
Nevada Gaming Authorities foreclosure upon the Equity Interests and certain other assets of the
Companies may only be accomplished in accordance with the requirements of Nevada Gaming
Laws.
(b)
The Deed of Trust is effective to create in favor of the Administrative
Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable Lien on the
Retained Site, and constitutes a fully perfected Lien on as security for the Obligations, subject
only to Permitted Liens and prior and superior in right to any other Lien (except Permitted
Liens).
(c)
The Intellectual Property Security Agreements are effective to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a legal. valid and
enforceable security interest in the Intellectual Property Collateral described therein and
proceeds and products thereof. Upon the filing of (i) the Intellectual Property Security
Agreements in the appropriate indexes of the United States Patent and Trademark Office relative
to patents and trademarks, and the United States Copyright Office relative to copyrights,together
with provision for payment of all requisite fees, and (ii) financing statements in appropriate form
for filing in the offices specified on Schedule 4.19(c) (which financing statements have been
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duly completed and filed in accordance with applicable Requirements of Law) the Intellectual
Property Security Agreements shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Companies in the Intellectual Pr~perty Collateral and the
proceeds and products thereof, as security for the Obligations, in each case subject onlyto
Permitted Liens and prior and superior in right to any other Lien (except Senior Permitted Liens).
(d)
The Guarantee and Collateral Agreement and the Control Agreements
together are effective to create in favor of the Administrative Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the Accounts described therein
and proceeds and products thereof. Upon the execution of the Guarantee and Collateral
Agreement and the Control Agreements, the Guarantee and Collateral Agreement and the
Control Agreements shall constitute fully perfected Liens on, and security interests in, all right,
title and interest of the Companies in the Accounts and the proceeds and products thereof, as
security for the Obligations, in each case subject only to Permitted Liens and prior and superior
in right to any other Lien (except Senior Permitted Liens).
4.20 SolYency. On the Closing Date, after giving effect to (i) the incurrence of
all Indebtedness under by the Financing Agreements, and (ii) the use of the proceeds of such
Indebtedness (including, without limitation, the use of proceeds of the extensions of credit made
by the Lenders hereunder), the Companies are Solvent, when taken as a whole. Following the
Closing Date, the Companies taken as a whole are Solvent.
4.21 Second Mortgage Notes. The issuance and sale of the Second Mortgage
Notes, either (a) have been registered or qualified under applicable federal and state securities
laws or (b) are exempt therefrom.
4.22 Regulation H. No portion of the Site is in an area identified by the
Secretary of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance Act of 1968.
4.23 Insurance. Each of the Companies is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which it is engaged and in any event in accordance with Section
6.5; and none of the Companies has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers at a cost that could not reasonably be expected to have a Material Adverse
Effect (other than as a result of general market conditions).
4.24 Performance of Agreements; Material Agreements. None of the
Companies (nor, as of the Closing Date, any Loan Party) is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions contained in any of
its Contractual Obligations, and no condition exists that, with the giving of notice or the lapse of
time or both, would constitute such a default, in each case, except where the consequences of
such default or defaults, if any, could not reasonably be expected to have a Material Adverse
Effect. Schedule 4.24 contains a true, correct and complete list of all the Material Agreements in
effect on the Closing Date.
4.25

The Site.

(a)

The Site and the Project comply with all applicable building and zoning

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ordinances and codes in all material respects. The Retained Site and the Companies' operations
at the Project comply with all Insurance Requirements non-compliance with which may
reasonably be expected to invalidate the related insurance. None of the occupiers of the Retained
Site are non-conforming users thereof, except as count not reasonably be expected to have a
Material Adverse Effect.
(b)
No Taking has been commenced or, to Borrowers' knowledge, is
contemplated with respect to all or any portion of the Retained Site (or, as of the Closing Date,
any portion of the entire Site) or for the relocation of roadways providing access thereto except,
in respect of such action following the Closing Date, as could not, individually or collectively,
reasonably be expected to have a Material Adverse Effect.
(c)
As of the Closing Date there are no current, pending or, to Borrowers'
knowledge, proposed special or other assessments for public improvements or otherwise
affecting the Site, nor as of the Closing Date are there any contemplated improvements to the
Site that may result in such special or other assessments. There are no current, pending or, to
Borrowers' knowledge, proposed special or other assessments for public improvements or
otherwise affecting the Retained Site, nor are there any contemplated improvements to the
Retained Site that may result in such special or other assessments, in any case that could
reasonably be expected to result in a material liability to the Companies.
(d)
None of the Companies has suffered, permitted or initiated the joint
assessment of the Retained Site with any other real property constituting a separate tax lot. As of
the Closing Date, the Site has been properly subdivided, and for all purposes may be mortgaged,
conveyed and otherwise dealt with as separate legal lots or parcels. The creation of the Retail
Air Space Lease (and, when created, any subsequent fee interest into which the Retail Air Space
Lease may be converted) does not violate any applicable subdivision map act requirements.
(e)
The use being made of the Retained Site is in material conformity with the
certificate of occupancy (ifany) and/or such other permits, licenses, variances and certificates
any other reciprocal easement agreements, restrictions, covenants or conditions affecting the
Retained Site.
(f)
There are no outstanding options to purchase or rights of first refusal or
other than Permitted Liens, restrictions on transferability affecting the Retained Site.

(g)
As of each date following the Opening Date, the Site has adequate rights
of access to public ways and is served by installed, operating and adequate water, electric, gas,
telephone, sewer, sanitary sewer and storm drain facilities, in each case as necessary to permit
the Project to be developed and operated on the Site. All roads necessary for the utilization of
the Site for its current purpose have been completed and dedicated to public use and accepted by
all Governmental Authorities or are the subject of access easements for the benefit of the Site.
(h)
Except as could not, individually or collectively, reasonably be expected
to have a Material Adverse Effect, no building or structure on the Site, nor any or equipment on
the Retained Site, or the use, operation or maintenance thereof, violates any restrictive covenant
or encroaches on any easement or on any property owned by others.
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(i)
As of the Closing Date, the Companies have not entered into any Space
Leases other than as set forth on Schedule 4.25.
4.26 Permits. Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, as of
each date following the Opening Date:
(a)
each of the Companies has obtained and holds all Permits required as of
the date this representation is deemed made in respect of the Retained Site and for any other
Property otherwise operated by or on behalf of, or for the benefit of, such Person and for the
operation of its business; and
(b)
all such Permits are in full force and effect, and each of the Companies has
performed and observed all requirements of such Permits (to the extent required to be performed
by the date this representation is deemed made).
4.27 Utilities. All gas, water and electrical interconnection and utility services
necessary for the operation of the Project for its intended purposes are or will be available at the
Site as and when necessary for the operation of the Project.
4.28 Fiscal Year. The fiscal year of each of the Companies ends on December
31 of each calendar year.
4.29 Transactions with Affiliates. As of the Closing Date, (a) there is no
material binding contract or agreement between the Companies, on the one hand, and Affiliates
of the Company (including Parent and its other Subsidiaries), on the other hand, which is not
described on Schedule 4.29, (b) there is no material continuing obligation of the Companies to
make payments to any of their respective Affiliates which is not contained in the agreements
described on Schedule 4.29 and (c) to the best knowledge of the Companies, each of the material
costs contemplated to be incurred by the Companies under the Affiliate Agreements described on
Schedule 4.29 are, to the extent contemplated on the Closing Date to be payable through the
Opening Date, included in the Resort Budget, other than (i) those which are subject to
subordination pursuant to the Affiliate Subordination Agreement, and (ii) those that will be
payable by the Companies under the Affiliate Agreements out of funds other than the Resort
Sources.
SECTION 5. CONDITIONS PRECEDENT
5.1
Conditions to Closing Date. The occurrence of the Closing Date is subject
to the execution and delivery on or before the Closing Date of each of the instruments,
documents and agreements listed on Schedule 1.1, the concurrent issuance of the Second
Mortgage Notes and the closing of the Retail Facility, and the satisfaction of each of the other
conditions precedent described in Section 3.1 of the Disbursement Agreement (unless waived in
writing by the Administrative Agent with the consent of all the Lenders). Without limiting the
generality of the provisions of the last paragraph of Section 9.3, for purposes of determining
compliance with the conditions specified in this Section 5.1 or Section 3.1 of the Disbursement
Agreement, each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter required hereunder
or thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless
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the Administrative Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
5.2
Conditions to Extensions of Credit controlled by Disbursement
The agreement of each Lender to make Disbursement Agreement Loans and to
Agreement.
issue Letters of Credit for the payment of Project Costs pursuant to Section 3.4 of the
Disbursement Agreement, is subject only to the satisfaction of the following conditions
precedent:
(a)
Notice of Borrowing. Borrowers shall have submitted a Notice of
Borrowing specifying the amount and Type of the Loans requested, and the making thereof shall
be in compliance with the applicable provisions of Section 2 of this Agreement.
(b)
Letters of Credit. In the case of Letters of Credit, the procedures set forth
in Section 3.4 of the Disbursement Agreement shall have been complied with.
(c)
Drawdown Frequency. Except for Loans made pursuant to Section 3 with
respect to Reimbursement Obligations, Loans made pursuant to this Section shall be made no
more frequently than once every calendar month unless the Administrative Agent otherwise
consents in its sole discretion.
5.3
Conditions to Extensions of Credit following the Opening Date (except for
Reserved Amounts). The agreement of each Lender to make Direct Loans, the obligation of the
Swing Line Lender to make Swing Line Loans, and the obligation of the Issuing Lender to make
each Letter of Credit (other than those requested pursuant to Section 3.4 of the Disbursement
Agreement for the financing of Project Costs), is subject to the satisfaction of the following
conditions precedent:
(a)
Notice. Borrowers shall have delivered (i) in the case of the borrowing of
Revolving Loans, a Notice of Borrowing to the Administrative Agent in accordance with the
procedures specified in Section 2.4(b), (ii) in the case of the issuance of Letters of Credit, a
Letter of Credit Application and the certificates, documents and other papers and information
delivered to it in connection therewith to the Issuing Lender in accordance with the procedures
specified in Section 3.2 and (iii) in the case of the borrowing of Swing Line Loans, Borrowers
shall have complied with the provisions of Section 2.6(a).
(b)
Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on and as of such date, except
for representations and warranties expressly stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all material respects as of
such earlier date.
(c)
No Default. No Default or Event of Default shall have occurred and be
continuing on such date or immediately after giving effect to the extensions of credit requested to
be made on such date.
Each borrowing of Loans by and issuance of a Letter of Credit on behalf of Borrower under this
Section 5.3 shall constitute a representation and warranty by Borrowers as of the date thereof
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that the conditions contained in this Section 5.3 have been satisfied.

SECTION 6. AFFIRMATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding (other than Letters of Credit that have been Cash
Collateralized) or any Loan or other amount is owing to any Lender, any Arranger or the Agent
hereunder or under any other Loan Document, Borrowers shall and shall cause each of the other
Companies to, it beingmiderstood and agreed that the covenants set forth in this Section 6 shall
be of continuous application unless expressly stated below:
6.1

Financial Statements. Furnish to the Administrative Agent and each

(a)

Companies.

Lender:

(i)
As soon as available, but in any event not later than 120 days after
the end of each Fiscal Year, a copy of the audited consolidated balance sheet of Las
Vegas Holdings as at the end of such Fiscal Year and the related audited consolidated
statement of income and of cash flows for such Fiscal Year, with comparative figures for
the previous Fiscal Year, reported on without a "going concern" or like qualification or
exception (other than any qualification for periods on or prior to the Opening Date that
addresses the development stage nature of the Companies), or qualification arising out of
the scope of the audit, by independent certified public accountants of nation~lly
recognized standing; and
(ii)
As soon as available, but in any event not later than 45 days after
the end of each Fiscal Quarter (or, in the case of the Fiscal Quarter ending March 31,
2007, 90 days thereafter), the unaudited consolidated balance sheet of Las Vegas
Holdings and the related unaudited consolidated statement of income and of cash flows
for such Fiscal Quarter and the portion of the Fiscal Year through the end of such Fiscal
Quarter, in each case setting forth, in comparative form the figures for the previous Fiscal
Year, certified by a Responsible Officer of the Companies as being fairly stated in all
material respects (subject to normal year end audit adjustments and the absence of
footnotes ).
(b)

Parent. Subject to clause (e) of this Section:

(i)
As soon as available, but in any event not later than 120 days after
the end of each Fiscal Year (or, following the release of the Parent Guaranty, when
available and to the extent prepared), a copy of the audited consolidated balance sheet of
Parent as at the end of such Fiscal Year and the related audited consolidated statement of
income and of cash flows for such Fiscal Year, reported on by independent certified
public accountants of nationally recognized standing (and, prior to the release of the
Parent Guaranty, without a "going concern" or like qualification or exception (other than
any qualification for periods on or prior to the Opening Date that addresses the
development stage nature of the Project Entities), or qualification arising out of the scope
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of the audit);
(ii)
As soon as available, but in any event not later than 45 days after
the end of each Fiscal Quarter (or, in the case of the Fiscal Quarter ending March 31,
2007,90 days thereafter) (or, following the release of the Parent Guaranty, when
available and to the extent prepared), the unaudited consolidated balance sheet of Parent
and the related unaudited consolidated statement of income and of cash flows for such
Fiscal Quarter and the portion of the Fiscal Year through the end of such quarter, certified
by a senior officer of Parent as being fairly stated in all material respects (subject to
normal year end audit adjustments and the absence of footnotes), provided that, following
the release of the Parent Guaranty, Parent shall not be obligated to provide the reports
contemplated by this clause (ii) to the extent not prepared in the ordinary course of
business;
(c)
Tumberry Residential. Subject to clause (e) of this Section, while the
Completion Guaranty executed by Tumberry Residential remains in effect:
(i)
As soon as available, but in any event not later than 180 days after
the end of each fiscal year of Tumberry Residential, a copy of the audited consolidated
balance sheet of Tumberry Residential as at the end of such fiscal year and the related
audited consolidated statement of income and of cash flows for such fiscal year, reported
on without a "going concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by independent certified public accountants of nationally
recognized standing; and
(ii)
as soon as available, but in any event not later than 45 days after
the end of each fiscal quarter of Tuinberry Residential, a copy of the statement of cash
flows of the Tumberry Residential for such fiscal quarter, certified by a senior officer of
Turnberry Residential as being fairly stated in all material respects (subject to normal
year end audit adjustments and the absence of footnotes).
as soon as available, but in any event not later than 15 days after the end
(d)
of each calendar month, a Condo Sales Report and a Retail Leasing Report, provided that the
requirement of providing Retail Leasing Reports shall be terminated upon the earliest to occur of
(i) the delivery of a Retail Leasing Report demonstrating the execution of leases covering 90% of
the square feet represented by the Retail Air Space Lease (or the Retail Air Space Parcels) not
leased or subleased to the Companies, (ii) the Opening Date, and (iii) the date upon which the
Retail Affiliate (any transferee of the entirety of the interests of the Retail Affiliate in respect of
the Retail Air Space Parcels or the Retail Air Space Lease) is a Person which is not an Affiliate
of the Companies; provided that the Companies shall no longer be obligated to deliver Condo
Sales Reports following the final consummation of the sale of 100% of the Condo Units.
(e)
It is acknowledged and agreed that the financial statements of Tumberry
Residential delivered pursuant to Section 6.1(c) may at all times be designated by the Companies
as solely for distribution to Lenders which have designated themselves as recipients of "Private
Side Information" pursuant to Section 10.2, and that the financial statements of the Parent
delivered pursuant to Section 6.1 (b) may also be so designated following the release of the
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Parent Guaranty.
(f)
In the event Parent, Turnberry Residential or Las Vegas Holdings is
required to file with the SEC (or successor entity thereto) any Annual Report on Form 10-K or
any Quarterly Report on Form lO-Q, Borrowers shall furnish copies of such reports to the
Administrative Agent and the Lenders within 10 days after any such filing, and such filings shall
be deemed to satisfy the requirements of clauses (a), (b) or (c), as the case may be, above.

(g)
All financial statements delivered pursuant to this Section 6.1 shall be
complete and correct in all material respects (in the case of quarterly financial statements
delivered pursuant to subsections (a)(ii), (b)(ii) or (c)(ii) of this Section 6.1), subject to normal
year-end audit adjustments and the absence of footnotes) and shall be prepared in reasonable
detail and in accordance with GAAP (in the case of quarterly financial statements delivered
pursuant to subsection (a)(ii),(b)(ii) and (c)(ii) ofthis Section 6.1, subject to normal year-end
audit adjustments and the absence of footnotes) applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
Notwithstanding the foregoing provisions of this Section 6.1 audit opinions in
respect of Parent and its Subsidiaries and of the Companies which are materially consistent with
those delivered by their auditors in respect of the fiscal year ended December 31, 2006 shall be
deemed acceptable to the Administrative Agent and the Lenders.
6.2

Certificates; Other Information. Furnish to Administrative Agent:

(a)
concurrently with the delivery of the audited financial statements of Las
Vegas Holdings referred to in Section 6.1(a)(i), a certificate of the independent certified public
accountants reporting on such financial statements in form and substance reasonably acceptable
to the Administrative Agent to the effect that (i) their audit examination has included a review of
the terms of this Agreement and the other Loan Documents as they relate to accounting matters,
(ii) in making the examination necessary therefor no knowledge was obtained of any Default or
Event of Default relating to accounting or financial matters, except as specified in such
certificate, and (iii) based on their audit examination nothing has come to their attention that
causes them to believe that the information contained in the Compliance Certificate is not correct
or stated in accordance with the terms of this Agreement;
(b)
concurrently with the delivery of any financial statements pursuant to
Section 6.1(a)(ii), (i) a certificate of a Responsible Officer of the Companies stating that, to such
Responsible Officer's knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate, and (ii) in the case of quarterly or annual
financial statements, a Compliance Certificate containing all information and calculations
necessary for determining compliance by the Companies with the provisions Of this Agreement
referred to therein as of the last day of the applicable Fiscal Quarter or Fiscal Year, as the case
maybe;

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(c)
following the Completion Date, not earlier than 30 days prior to the
commencement of each Fiscal Year, and not later than 60 following the beginning of each Fiscal
Year, a detailed budget for the Companies for such Fiscal Year, and the related statements of
projected cash flow, projected changes in financial position and projected income), and, as soon
as available, significant revisions, if any, of such budget and projections with respect to such
Fiscal Year (collectively, the "Projections"), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer of the Companies stating that, at the time
made, such Projections are based on reasonable estimates, information and assumptions and that
such Responsible Officer has no reason to believe that such Projections are incorrect or
misleading in.any material respect;
(d)
within five Banking Days after the same are sent, copies of all financial
statements and reports that the Companies send to the holders of any class of their respective
debt securities to the extent not previously delivered to the Administrative Agent and, within five
Banking Days after the same are filed, either copies of all fmancial statements and reports that
the Companies may make to, or file with, the SEC or electronic notices of such filings;
(e)
on the date of the occurrence thereof, notice (and copies thereof in the case
such notice is written) that any obligations of the Companies in respect of Indebtedness
exceeding an aggregate amount of $10,000,000 have been accelerated;
promptly upon receipt, copies of all notices provided to any Company or
their Affiliates pursuant to any of the Financing Agreements or the Retail Facility relating to
material defaults or material delays and promptly upon execution and delivery thereof, copies of
all amendments to any of the Financing Agreements or the Retail Facility;
(f)

.
(g)
to the extent not included in subsections (a) through (f) above, no later
than the date the same are required to be delivered thereunder, copies of all agreements,
documents or other instruments (including, without limitation, (i) audited and unaudited, pro
forma and other financial statements, reports, forecasts, and projections, together with any
required certifications thereon by independent public auditors or officers of any Company or
otherwise, (ii) press releases, (iii) statements or reports furnished to any other holder of the
securities of any Company, and (iv) regular, periodic and special securities reports) that any
Company or Affiliate of a Company is required to provide pursuant to the terms of the Financing
Agreements or the Retail Facility;
(h)
promptly, and in any event within 30 days of the end of each Fiscal Year
after the Completion Date, deliver to the Administrative Agent a certificate substantially in the
form of Exhibit I hereto and otherwise in form and substance reasonably satisfactory to the
Administrative Agent in consultation with the Insurance Advisor, certifying that the insurance
requirements of Section 6.5 have been implemented and are being complied with in all material
respects;
(i)
within twenty days after the end of each Fiscal Quarter of Las Vegas
Holdings, a schedule of all Proceedings involving an alleged liability of, or claims against or
affecting, any Project Entity equal to or greater than $3,000,000, and promptly after request by
the Administrative Agent such other information as may be reasonably requested by the
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Administrative Agent to enable the Administrative Agent and its counsel to evaluate any of such
Proceedings; and
promptly, such additional financial and other information as any Lender
may from time to time reasonably request.
U)

Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the Issuing Lender materials and/or information provided by
or on behalf of Parent or any of its Subsidiaries hereunder (collectively, "Fontainebleau
Materials") by posting Fontainebleau Materials on IntraLinks or another similar electronic
system (the "Platform") and (b) certain of the Lenders (each, a "Public Lender") may have
personnel who do not wish to receive material non-public information with respect to Parent, any
of its Subsidiaries or any of their Affiliates, or the respective securities of any of the foregoing,
and who may be engaged in investment and other market-related activities with respect to such
Person's securities. Each Borrower hereby agrees that it will use commercially reasonable efforts
to identify that portion of Fontainebleau Materials that may be distributed to the Public Lenders
and that (w) all such Fontainebleau Materials shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently
on the first page thereof; (x) by marking Fontainebleau Materials "PUBLIC," Borrowers shall be
deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Lender and the
Lenders to treat such Fontainebleau Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to Parent, any of its
Subsidiaries or any of their Affiliates, or their securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Fontainebleau Materials
constitute Information (as defined in Section 10.15), they shall be treated as set forth in Section
10.15); (y) all Fontainebleau Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the Administrative Agent
and the Arranger shall be entitled to treat any Fontainebleau Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not designated "Public
Investor."
6.3
Payment of Obligations. To the extent not otherwise subject to valid
subordination, standstill, intercreditor or similar arrangements, pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except where the amOlmt or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Companies.
6.4
Conduct of Business.and Maintenance of Existence, etc~ (i) Preserve,
renew and keep in full force and effect its corporate or limited liability company existence, (ii)
take all reasonable action to maintain all rights, privileges, franchises, Permits and licenses
necessary or desirable in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 7.4 and except, in the case of subsection (ii) above, to the extent that failure
to do so could not (individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect, and (iii) the Companies shall enforce the material provisions of the Reciprocal
Easement Agreement.

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6.5

Maintenance of Property; Leases; Insurance.

(a)
Keep all material Property and systems useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted.
(b)
Maintain all rights of way, easements, grants, privileges, licenses,
certificates, and Permits necessary for the intended use of the Retained Site, except any such
item the loss of which, individually or in the aggregate, could not reasonably be expected to
materially and adversely affect or interfere with the Retained Site or its operations.
(c)
Comply with the terms of each lease or other grant ofreal property rights
associated with the Retained Site, including easement grants, so as to not permit any material
uncured default on its part to exist thereunder, except, in each case, where noncompliance
therewith could not reasonably be expected to materially and adversely affect or interfere with
the ownership, constmction or operation of the Retained Site.
(d)
At all times maintain in full force and effect the insurance policies and
programs listed on Schedule 6.5(d), which policies and programs may be modified from time to
time subject to the prior approval of the Administrative Agent in consultation with the Insurance
Consultant, which approval shall not be unreasonably withheld, if (i) the insurance policies and
programs listed on Schedule 6.5(d) are not then available on commercially reasonable terms and
(ii) the resulting coverage is, at the time of the modification, customary for companies engaged
in the same or similar business, which are similarly situated, and which have obtained or are then
obtaining insurance coverage under similar conditions (including leverage stmcture) as those
then currently applicable to the Companies. In the event that, in accordance with the preceding
sentence, the Companies are, at any time or from time to time, permitted to deviate from the
insurance policies and programs described in Schedule 6.5(d) and, thereafter, any such
requirement set forth in Schedule 6.5(d) becomes available on commercially reasonable terms,
the Companies shall promptly procure coverage satisfying such requirement.
(e)
Deliver to the Administrative Agent on behalf of the Secured Parties,
(i) upon request of any Secured Party from time to time, full information as to the insurance
carried, (ii) promptly following receipt thereof, from any insurer, a copy of any notice of
cancellation or material change in coverage from that existing on the Closing Date,
(iii) forthwith, notice of any cancellation or nonrenewal of coverage received by the Companies,
unless such insurance is replaced prior to the cancellation or non-renewal thereof in accordance
with Schedule 6.5(d), and (iv) promptly after such information is available to the Companies, full
information as to any claim for an amount in excess of $3,000,000 with respect to any property
and casualty insurance policy maintained by the Companies.
(f)
Preserve and protect the Lien status of the Deed of Trust and, if any Lien
(other than Liens permitted under Section 7.3) is asserted against the Retained Site, promptly
give the Administrative Agent a detailed written notice of such Lien and pay the underlying
claim in full or take such other action so as to cause it to be released or bonded over in a manner
reasonably satisfactory to the Administrative Agent.

6.6
Inspection of Property; Books and Records; Discussions. (a) Keep
adequate records and books of account in conformity with GAAP, consistently applied, and in
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material compliance all applicable Requirements of Law, and (b) subject to any applicable
Nevada Gaming Laws restricting such actions, permit representatives of any Lender, coordinated
through the Administrative Agent, to visit and inspect any of its properties and examine and, at
Borrowers' expense (provided that, unless an Event of Default has occurred and is continuing,
Borrowers shall be only be required to reimburse expenses for one such visit by the
Administrative Agent per Fiscal Year), make abstracts from any of the books and records of the
Companies at any reasonable time and upon reasonable prior notice and as often as may
reasonably be desired and to discuss the business, operations, properties and financial and other
condition of the Companies with officers thereof and with their respective independent certified
public accountants (provided that a Responsible Officer may be present for any such discussions
with independent certified public accOlmtants).
6.7

Notices. Promptly give the Administrative Agent and each Lender notice

(a)

the occurrence of any Default or Event of Default;

of:

(b)
any default or event of default (or alleged default) under any Contractual
Obligation of any of the Companies that could reasonably be expected to have a Material
Adverse Effect;
(c)
upon any officer of the Companies obtaining knowledge thereof, the
institution of any action, suit, proceeding (whether administrative, judicial or otherwise),
goverrunental investigation or arbitration against or affecting any of the Companies, or any
Property of the Companies or the Project (collectively, "Proceedings") not previouslydisdosed
in writing by the Companies to the Lenders that, in any case (A) if adversely determined, has a
reasonable possibility of giving rise to a Material Adverse Effect or (B) seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, or seeks to enjoin or otherwise affect the construction of
the Project, or any material development in any such Proceeding, in each case together with such
other information as may be reasonably available to the Companies to enable Lenders and their
counsel to evaluate such matters;
(d)
the following events, as soon as possible and in any event within 30 days
after the Companies know or has reason to know thereof: (i) the occurrence of any Reportable
Event with respect to any Plan, a material failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC, any of the Companies or any Controlled Group
Member or any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
(e)
any development or event that has had or could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Companies setting forth details of the occurrence referred to therein and stating
what action the Companies propose to take with respect thereto.
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6.8

Environmental Laws; Permits.

(a)
Comply in all material respects with, and use commercially reasonable
efforts to ensure compliance in all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and Environmental Permits, and obtain, maintain and comply in
all material respects with, and use best efforts to ensure that all tenants and subtenants obtain,
maintain and comply in all material respects with, any and all licenses, approvals, notifications,
registrations or Environmental Permits except, in each case, to the extent any non-compliance
could not reasonably be expected to result in any material liability to the Companies.
(b)
Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws and promptly
comply in all material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws related to the Retained Site except, in each case, to
the extent any non-compliance could not reasonably be expected to result in any material liability
to the Companies.
(c)
The Administrative Agent may, from time to time and in its reasonable
discretion, (i) retain, at Borrowers' expense, an independent professional consultant to review
any environmental audits, investigations, analyses and reports relating to Hazardous Substances
in respect of the Retained Site prepared by or for any Loan Party and (ii) conduct its own
investigation of Hazardous Substances at the Retained Site. For purposes of conducting such a
review and/or investigation, the Administrative Agent and its agents, employees, consultants and
contractors shall have the right, which unless an Event of Default has occurred and is continuing
shall be upon reasonable prior notice, to enter into or onto the Retained Site and to perform such
tests on such property (including taking samples of soil and groundwater) as are reasonably
necessary in connection therewith. Any such investigation shall be conducted, unless otherwise
agreed to by Borrowers, during normal business hours and shall be conducted so as not to
unreasonably interfere with the ongoing operations at the Retained Site or to cause any material
damage or loss to any Property.
(d)
Deliver to the Administrative Agent (i) as soon as practicable following
receipt thereof, copies in the Companies' possession or control of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared by personnel of
the Loan Parties or by independent consultants, governmental authorities or any other Persons,
with respect to Environmental Matters at the Retained Site or with respect to any Environmental
Claims, (ii) promptly upon the occurrence thereof, written notice describing in reasonable detail
(A) any Release required to be reported to any federal, state or local governmental or regulatory
agency under any applicable Environmental Laws, (B) any remedial action taken by any Person
in response to (1) any Hazardous Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, or (2) any Environmental
Claims that could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect, (iii) as soon as practicable following the sending or receipt thereof by the
Companies, a copy of any and all written communications with respect to (A) any Environmental
Claims that could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect, (B) any Release required to be reported to any federal, state or local
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governmental or regulatory agency, and (C) any request for information from any governmental
agency indicating that such agency is investigating whether the Companies may be potentially
responsible for any Hazardous Materials Activity, (iv) prompt written notice describing in
reasonable detail (A) any proposed acquisition of property by the Companies that could
reasonably be expected to (l) expose the Companies to, or result in, Environmental Claims that
could reasonably be expected to result, individually or in the aggregate, in a Material Adverse
Effect or (2) affect the ability of the Companies to maintain in full force and effect all material
Environmental Permits for their respective operations and (B) any proposed action to be taken by
the Companies to modify current operations in a manner that could reasonably be expected to
subject the Companies to any material additional obligations or requirements under any
Environmental Laws that could reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect, (v) any notice that any Governmental Authority may condition
approval of, or any application for, any material Environmental Permit held by the Companies on
terms and conditions that are materially burdensome to the Companies, or to the operation of any
of its businesses or any property owned, leased or otherwise operated by such Person, (vi) notice
of any actions or proceedings of the types described in Sections 4.17(c) through (e), (vii) as soon
as practicable, all material documents submitted to, filed with or received from any
Governmental Authority regarding Environmental Permits, and (viii) with reasonable
promptness, such other documents and information as from time to time may be reasonably
requested by the Administrative Agent.
6.9

Interest Rate Protection.

(a)
Within 180 days after the Closing Date, enter into the Required Hedge
Agreement with Persons which are reasonably acceptable to the Administrative Agent as a credit
matter, and at all times thereafter maintain the Required Hedge Agreement in effect.
(b)
On or prior to the termination of the Required Hedge Agreement, enter
into extensions of the tenor of the Required Hedge Agreement (or enter into replacement Hedge
Agreements reasonably acceptable to the Administrative Agent from time to time); provided that
the initial tenor of any such extension or replacement Hedge Agreement shall not be less than the
shorter of (i) two years, (ii) the period of time from such extension or replacement through the
Term Loan Termination Date.
6.10

Additional Collateral, Discharge of Liens, etc.

(a)
With respect to any Property acquired after the Closing Date by any of the
Companies as to which the Administrative Agent does not have a perfected security interest
(other than cash and Excluded Assets), subject to compliance with applicable Nevada Gaming
Laws and restrictions on the granting of Liens permitted pursuant to Section 7.13, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security
interest in such Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security
interest in such Property (subject to Permitted Liens), including, without limitation, the filing of
UCC financing statements in such jurisdictions as may be required by law or as may be
requested by the Administrative Agent. In addition to the foregoing, in the event any such
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Property acquired after the Closing Date consists of Property with respect to which a recording
in the real property records of an appropriate jurisdiction is required or advisable in order to
perfect a security interest therein, promptly (and, in any event, within five Banking Days
following the date of such acquisition or such longer time as approved by Administrative Agent)
(1) execute and deliver a deed of trust or mortgage, substantially in the form of the Deed of Trust
(with such modifications, if any, as are necessary to comply with Requirements of Law or that
the Administrative Agent may reasonably request), such mortgage to be recorded in the real
property records of the appropriate jurisdiction, or execute and deliver to the Administrative
Agent for recording a supplement to an existing mortgage, in either case pursuant to which the
Companies grant to the Administrative Agent on behalf of the Secured Parties a Lien on such
Property subject only to Permitted Liens, (2) provide the Secured Parties either (A) with title and
extended coverage insurance covering such Property in an amount at least equal to the fair
market value of such Property, and in any event reasonably consistent with the title and extended
coverage insurance covering the Retained Site obtained pursuant to the Disbursement
Agreement, along with such other endorsements as the Administrative Agent may reasonably
request, it being understood that the provision of title insurance may be limited to the value of
any real property and improvements acquired, or may be accomplished without increase as to the
amount of coverage by the provision of a "tie-in" endorsement to the Administrative Agent's
existing title policies or other similar mechanisms, or (B) to extent the Administrative Agent
determines in its sole discretion that the existing title insurance coverage is sufficient to cover
such Property, appropriate endorsements or supplements to an existing title policy issued to the
Administrative Agent as the Administrative Agent may reasonably request (or in the case of (A)
or (B) above, provide the Administrative Agent with a commitment to issue such insurance or
endorsements in form and substance reasonably acceptable to Administrative Agent), and (3)
execute and/or deliver such other documents or provide such other information and assurances
(including opinions) in furtherance thereof as the Administrative Agent may reasonably request,
including delivering documents and taking such other actions which would have been required
under Section 3.1 of the Disbursement Agreement if such Property were part of the Retained Site
on the Closing Date.
(b)
With respect to any new Subsidiary created or acquired after the Closing
Date by the Companies, subject to compliance with Nevada Gaming Laws, promptly (i) execute
and deliver to the Administrative Agent such amendments to the Security Documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in the Equity Interests of
such new Subsidiary (subject to Permitted Liens), (ii) deliver to the Administrative Agent the
certificates (if any) representing such Equity Interests, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Companies, (iii) cause
such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and, to
the extent applicable, the Intellectual Property Security Agreements and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of the Secured Parties
a perfected first priority security interest (subject to Permitted Liens) in the Collateral described
in the Security Documents and, to the extent applicable, the Intellectual Property Security
Agreements with respect to such new Subsidiary, the execution and delivery by all necessary
Persons of Control Agreements and the filing of VCC financing statements in such jurisdictions
as may be required by law or as may be requested by the Administrative Agent, (iv) if requested
by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the
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matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and (v) execute and/or deliver such other
documents or provide such other information as the Administrative Agent may reasonably
request, including delivering documents and taking such other actions which would have been
required under Section 3.1 of the Disbursement Agreement if such new Subsidiary existed on the
Closing Date. In addition to the foregoing, in the event any such new Subsidiary owns or
otherwise has interests in any Property with respect to which a recording in the real property
records of an appropriate jurisdiction is required or advisable in order to perfect a security
interest therein, take the actions required by clause (a) of this Section in relation thereto.
(c)
Notwithstanding anything to the contrary in this Section 6.10, paragraphs
(a) and (b) of this Section 6.10 shall not apply to any Property or new Subsidiary created or
acquired after the Closing Date, as applicable, as to which the Administrative Agent has
determined in its sole discretion that the collateral value thereof is insufficient to justify the
difficulty, time and/or expense of obtaining either (i) a perfected security interest therein or
(ii) with respect to real property, title and extended coverage insurance.
6.11

Use of Proceeds and Revenues.

(a)
Use the proceeds of the Loans and request the issuance of Letters of
Credit, only for the purposes specified in Section 4.16.
(b)
deposit all Project Revenues in the manner required by the Disbursement
Agreement, provided that with respect to any Project Revenues not controlled by the
Disbursement Agreement, the Companies shall deposit all such Project Revenues into one or
more Controlled Accounts (other than (i) On-Site Cash, (ii) as required by Requirements of Law
or by Nevada Gaming Authorities, (iii) cash or cash equivalents that in the ordinary course of
business are not maintained on deposit in a bank or other deposit or investment account pending
application toward working capital or other general corporate purposes of the Companies, and
(iv) cash or Cash Equivalents held in bank or other deposit or investment accounts for which
Control Agreements are not required pursuant to the Collateral Documents), Qrovided that
Project Revenues from the sale of Condo Units shall be remitted to the Administrative Agent to
the extent required in Section 2. 11(a)(ii)).
(c)
Apply (whether directly or through an equity contribution to Borrowers)
all Net Cash Proceeds, Excess Cash Flow, Bonded Condo Deposits and Loss Proceeds received
by it in accordance with Sections 2.11 and 2.22.
6.12

Compliance w:ith Laws; Permits.

(a)
Comply with all Requirements of Law, noncompliance with which could
reasonably be expected to cause, individually or in the aggregate, a Material Adverse Effect and
comply in all material respects with its Governing Documents.
(b)
Comply, duly and promptly, in all material respects with its respective
obligations and enforce all of its respective rights under all Material Agreements, except where
the failure to comply could not reasonably be expected to have a Material Adverse Effect.
(c)

From time to time obtain, maintain, retain, observe, keep in full force and

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effect and comply with the terms, conditions and provisions of all Permits as shall now or
hereafter be necessary under applicable laws, except to the extent the noncompliance therewith
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.13 Further Assurances. From time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or documents, and take all such
actions, as the Administrative Agent may reasonably request, for the purposes of implementing
or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds or products
thereof or with respect to any other property or assets hereafter acquired by the Companies
which may be deemed to be part of the Collateral) pursuant hereto or thereto. Without limitation
on the foregoing, the Companies will promptly provide the Administrative Agent upon request
with such further documents and agreements as may be required to provide the Administrative
Agent with a first priority Lien upon any interests held by the Companies as tenants or
subtenants in the Retail Air Space Parcel. Upon the exercise by the Administrative Agent or any
Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan
Documents which requires any consent, approval, recording, qualification or authorization of any
Governmental Authority, Borrowers shall, or shall cause any other applicable Companies to
execute and deliver, or will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that the Administrative Agent or such Lender may
be required to obtain from Companies for such governmental consent, approval, recording,
qualification or authorization. In the event that, notwithstanding the covenants contained in
Article 7, a Lien not otherwise permitted under this Agreement shall encumber the Retained Site
or other item of Collateral or any portion thereof, the Companies shall promptly discharge or
cause to be discharged by payment to the lienor or lien claimant or promptly secure removal by
bonding or deposit with the county clerk or otherwise or, at the Administrative Agent's option,
and if obtainable promptly obtain title insurance against, any such Lien or mechanics' or
materialmen's claims of lien filed or otherwise asserted against the Retained Site or any other
item of Collateral or any portion thereof within 60 days after the date of notice thereof; provided,
that the provisions of this Section 6.13 (and compliance therewith) shall not be deemed to
constitute a waiver of any of the provisions of Article 7. The Companies shall fully preserve the
Lien and the priority of the Security Documents without cost or expense to the Administrative
Agent or the Lenders. If the Companies fail to promptly discharge, remove or bond off any such
Lien or mechanics' or materialmen's claim of lien as described above, which is not being
contested by the Companies in good faith by appropriate proceedings promptly instituted and
diligently conducted, within 30 days after the receipt of notice thereof, then the Administrative
Agent may, but shall not be required to, procure the release and discharge of such Lien,
mechanics' or materialmen's claim of lien and any judgment or decree thereon, and in furtherance
thereof may, in its sole discretion, effect any settlement or compromise with the lienor or lien
claimant or post any bond or furnish any security or indemnity as the Administrative Agent, in
its sole discretion, may elect. In settling, compromising or arranging for the discharge of any
Liens under this subsection, the Administrative Agent shall not be required to establish or
confirm the validity or amount of the Lien. The Companies shall notify the Administrative
Agent at the time that any Person becomes a Subsidiary of Las Vegas Holdings.

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Each Borrower agrees that all costs and expenses expended or otherwise incurred pursuant to this
Section 6.13 (including reasonable attorneys' fees and disbursements) by the Administrative
Agent shall constitute Obligations and shall be paid by Borrowers in accordance with the terms
hereof.

6.14

Condo.Unit Sales.

The Companies shall not sell any Condo Unit or accept any reservation
(a)
therefor except pursuant to an Executed Condo Sales Agreement substantially in the form of
Exhibit K (with any changes approved by the Administrative Agent, such approval not to be
unreasonably withheld), providing for a sale price which is not less than the applicable Condo
Unit Release Price, provided that the Administrative Agent may consent to the sale of not more
than 25 Condo Units, in the aggregate, for a price which is not less than 90% of the "Minimum
Release Price" set forth on Schedule 6.14 (minus the amounts of any deposits previously made in
respect of that Condo Unit by any defaulting prospective purchaser thereof which the Companies
are entitled to retain). No Condo Unit may be leased, sold or conveyed under any lease,
conditional sales contract or other arrangement where the Companies retain a deferred portion of
the purchase price or any residual or contingent interest in the Condo Unit, inclllding any
purchase money security interest, without the prior written consent of the Administrative Agent
in each instance. The Companies will use reasonable best efforts to assure that not more than
four Condo Units are sold to anyone Person or group of Persons which are Affiliates (or, in the
case of any Person which is an individual, members of that Person's immediate family).
Upon request, the Companies shall provide to the Administrative Agent
(b)
information regarding prospective buyers and notice of, or information regarding, any claimed
breach or disavowal of the Companies' or any buyer's obligations under the related Executed
Condo Sales Agreement.
The Companies shall maintain all deposits in respect of Condo Units in a
(c)
customary escrow account with the Condo Closing Agent (other than any Bonded Condo
Deposits delivered to the Bonded Condo Proceeds Account).
The Administrative Agent shall enter into arrangements with the Condo
(d)
Closing Agent, the Companies and such other Persons as may be involved in the sale of Condo
Units which are reasonably acceptable to the Companies and the Administrative Agent to
coordinate escrow arrangements, the collection and disbursement of the proceeds of sales of
Condo Units, the partial release of the Lien of the Deed of Trust with respect to any Condo Units
sold in accordance with this Section and such other actions necessary to consummate the sales of
Condo Units in respect of each Condo Unit (and, in connection therewith, related common areas
including airspace above the highest point of the Project) sold in accordance with the provisions
of this Section 6.14, provided that the Companies shall payor reimburse the Administrative
Agent for all costs and expenses incurred in connection therewith.
The Companies shall not consummate the retail sale of any Condo Unit
(e)
unless each of the following conditions have been or shall concurrently be satisfied:
(i)
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The Condo Closing Agent shall have received copies of the final,
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executed sale agreement and escrow instructions and the draft escrow closing statement
for the sale of such Condo Unit;
(ii)
The sale price of such Condo Unit shall not be less than the price
required by clause (a) of this Section;
(iii)
The Condo Closing Agent shall have obtained or delivered a
commitment to deliver to the Administrative Agent such endorsements to the policy of
title insurance insuring the Deed of Trust as the Administrative Agent may reasonably
specify in connection with the release of the Lien of the Deed of Trust with respect to
such Condo Unit and other related rights, including without limitation CLTA Fonn 111
Endorsements; and
(iv)
The Companies shall remit to the Administrative Agent, in
immediately available funds, the amounts required by Section 2.11(a)(ii).
SECTION 7. NEGATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding (other than Letters of Credit that have been Cash
Collateralized) or any Loan or other amount is owing to any Lender, any Arranger or the Agent
hereunder or under any other Loan Document, Borrowers shall not and shall cause each of the
other Companies not to, directly or indirectly, it being understood and agreed that the covenants
set forth in this Section 7 shall be of continuous application unless otherwise expressly stated
below:
7.1

Financial Covenants.

(a)
Total Leverage Ratio. Pennit the Total Leverage Ratio as of the First Test
Date or as of the last day of any subsequent fiscal quarter to exceed the ratio set forth below
opposite that fiscal quarter, provided that in respect of each fiscal quarter ending after the Parent
Guaranty Release Date, the maximum pennitted Total Leverage Ratio shall be the lesser of
5.50: 1.00 or the applicable ratio set forth below:

Maximum Total
__
Lever~ge Ratio

Fiscal Quarter
First Test Quarter

8.30:1.00

Second Test Quarter

8.00:1.00

Third Test Quarter

7.75:1.00

Fourth and Fifth Test Quarters

6.50:1.00

Sixth and Seventh Test Quarters

6.25:1.00

Eighth Test Quarter through and including Eleventh Test

5.50:1.00

Quarter
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Thereafter

5.25:1.00

(b)
First Lien Leverage Ratio. Permit the First Lien Leverage Ratio as of the
First Test Date or as of the last day of any subsequent fiscal quarter to exceed the ratio set forth
below opposite that fiscal quarter:

Maximum First Lien

._ _
~everage Ratio

Fiscal Quarter

-----First Test Quarter

5.15:1.00

Second Test Quarter

5.00:1.00

Third Test Quarter

4.75:1.00

Fourth and Fifth Test Quarters

3.75:1.00

Sixth and Seventh Test Quarters

3.50:1.00

Eighth Test Quarter though and including Eleventh Test

3.00:1.00

Quarter
Thereafter

2.75:1.00

(c)
Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio
as of the First Test Date or as of the last day of any subsequent fiscal quarter to be less than the
ratio set forth below opposite that fiscal quarter:

Minimum Fixed Charge
Fiscal Quarter

Coverage Ratio

First Test Quarter through and including Ninth Test Quarter

1.20:1.00

Thereafter

1.25:1.00

_ _ _ _ _ .0

-

7.2
Limitation on Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a)

Indebtedness of any Company created under any Loan Document;

(b)
Indebtedness of the Companies under the Second Mortgage Indenture in
an aggregate principal amount not to exceed $675,000,000 and Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any such Indebtedness, in each case in an
aggregate outstanding principal amount not to exceed $675,000,000 at any time;
(c)

Unsecured Indebtedness of any Company to another Company;

(d)
Unsecured Guarantee Obligations made in the ordinary.course of business
by any Company of obligations of another Company;
(e)

Indebtedness of the Companies (including, without limitation, Capital

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Lease Obligations) secured by Liens pennitted by Section 7.3(c) in an aggregate principal
amount not to exceed $25,000,000 at anyone time outstanding;
(f)
Subordinated Debt of the Companies in an aggregate principal amount not
to exceed $25,000,000 at anyone time outstanding; provided, that the Net Cash Proceeds of such
Subordinated Debt are applied as required by Section 2.11 ;

(g)
On or prior to the Final Completion Date, Guarantee Obligations
represented by perfonnance bonds, guaranties, bankers' acceptances or similar instruments issued
by a Person other than any Company for the benefit of a trade creditor of any such Company, in
an aggregate amount not to exceed $10,000,000 at any time outstanding so long as (i) such
Indebtedness is incurred in the ordinary course of business and (ii) the obligations of the
Companies supported thereby consist solely of payment obligations with respect to costs
incurred in accordance with the Resort Budget which would otherwise be pennitted to be paid
pursuant to the Disbursement Agreement, and (2) are secured solely by Liens pennitted by
Section 7.3( 0);
(h)
After the date upon which the Project Entities have notified the
Disbursement Agent that the Completion Date will occur within 60 days, Guarantee Obligations
represented by perfonnance bonds, guaranties, bankers acceptances or similar instruments issued
by a Person other than any Company for the benefit of a trade creditor of any such Company, in
an aggregate amount not to exceed $5,000,000 at any time outstanding so long as (i) such
Indebtedness is incurred in the ordinary course of business and (ii) the obligations of the
Companies supported thereby (1) are not Project Costs and (2) if secured, are secured solely by
Liens permitted by Section 7.3(p);
I

.
(i)
Contingent obligations in respect of bonding arrangements for Bonded
Condo Deposits which have been remitted to the Disbursement Agent;
(j)
To the extent constituting Indebtedness, accrued and unpaid obligations
under the Affiliate Agreements, including Subordinated Affiliate Expenses; and
(k)
Additional Indebtedness of the Company in an aggregate principal amount
(for all the Companies) not to exceed $5,000,000 at anyone time outstanding.
7.3
Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except for:
(a)

Liens created pursuant to the Security Documents;

(b)
Liens securing Indebtedness in respect of the Second Mortgage Notes
pennitted under Section 7.2(b) and any Pennitted Refinancing Indebtedness in relation thereto;
provided, that such Liens are junior in priority (other than in respect of the Second Mortgage
Proceeds Account) to the Liens securing the Obligations in the manner and to the extent set forth
in the Project Lender Intercreditor Agreement;
(c)
Liens with respect to Property of the Companies securing Indebtedness
and to any proceeds of the sale or other disposition thereof incurred or assumed for the purpose
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of financing (or financing the purchase price within 180 days after the respective purchase of
Property) all or any part of the acquisition, design, installation, constmction, repair or
improvement cost of such Property; provided, that such Liens do not at any time encumber any
Property other than the Property (and proceeds of the sale or other Disposition thereof and the
proceeds (including insurance proceeds), products, rents, profits, accession and replacements
thereof or thereto) financed by such Indebtedness;
(d)
Liens for taxes, assessments or government charges not yet due or which
are being contested in good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the applicable Company, as the case may be,
in conformity with GAAP;
(e)
carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business for amounts which are not overdue for a
period of more than 30 days or that are being contested in good faith by appropriate proceeding
(such contest proceedings conclusively operating to stay the sale of any portion of the Collateral
on account of such Lien); provided, that adequate reserves with respect thereto are maintained on
the books of the applicable Company, as the case may be, in conformity with GAAP;
pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f)

(g)
deposits by or on behalf of the Companies to secure the performance of
bids, trade contracts (other than for borrowed money), leases, statutory obligations, appeal
bonds, indemnities, release bonds, fee and expense arrangements with tmstees and fiscal agents
and other obligations of a like nature incurred in the ordinary course of business.
(h)
easements, covenants, rights-of-way, restrictions, encroachments and other
similar encumbrances and other minor defects and irregularities in title, in each case incurred in
the ordinary course of business that, in the aggregate, are not substantial in amount and which do
not in any case materially detract from the value of the Property, taken as a whole, or materially
interfere with the ordinary conduct of the business of the Companies, taken as a whole;
(i)
licenses of patents, trademarks and other intellectual property rights
granted by any of the Companies in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of the Companies, taken as a whole;

CD

any attachment or judgment Lien not constituting an Event of Default

under Section 8(h);
(k)

Permitted Encumbrances;

Liens arising from the filing of DCC financing statements relating solely
to leases permitted by this Agreement;
(1)

(m)
Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;

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(n)
any zoning or similar law or right reserved to or vested in any
Governmental Authority to control or regulate the use of the Site;
(0)
Liens on cash disbursed pursuant to the Disbursement Agreement and
deposited with, or held for the account of, any Company securing reimbursement obligations
under performance bonds, guaranties, commercial or standby letters of credit, bankers'
acceptances or similar instruments permitted under Section 7.2(g), granted in favor of the issuers
of such performance bonds, guaranties, comrnercialletters of credit or bankers' acceptances, so
long as the amount of cash and/or Cash Equivalents securing such Liens does not exceed 110%
of the amount of the Indebtedness secured thereby (ignoring any interest earned or paid on such
cash and any dividends or distributions declared or paid in respect of such Cash Equivalents);
and

(p)
Liens on cash deposited with, or held for the account of, any Company
securing reimbursement obligations under performance bonds, guaranties, commercial or
standby letters of credit, bankers' acceptances or similar instmments permitted under Section
7.2(h), granted in favor of the issuers of such performance bonds, guaranties, commercial letters
of credit or bankers' acceptances, so long as the amount of cash and/or Cash Equivalents secured
by such Liens does not exceed 110% of the amount of the Indebtedness secured thereby
(ignoring any interest earned or paid on such cash and any dividends or distributions declared or
paid in respect of such Cash Equivalents);
(q)

leases and subleases of space within the Project permitted by Section 7.5;

(r)
Liens in respect of any Property which is subject to an agreement to
Dispose of that Property in favor of the counterparty to that agreement, to the extent such
Disposition is permitted by Section 7.4 or 7.5;
(s)
so long as the Disbursement Agreement is in effect, any "Permitted Liens"
under the Disbursement Agreement;
(t)
Liens in respect of customary rights of set off, revocation, refund or
chargeback or similar rights under deposit, disbursement, concentration account agreements or
under the DCC or arising by operation of law of banks or other financial institutions where any
Company maintains deposit, disbursement or concentration accounts in the ordinary course of
business permitted by this Agreement;
(u)
Liens of sellers of goods to the Companies arising under Article 2 of the
DCC or similar provisions of applicable law in the ordinary course of business, covering only the
goods sold and securing only the unpaid purchase price for such goods and related expenses;
(v)
to the extent the Companies lease (or sublease), license (or sublicense) or
obtain easement rights over any Property other than the Retained Site, the rights of any fee or
other senior owners of such Property, and, to the extent any such owners have Indebtedness
secured by their interests in such Property, the rights of such secured creditors therein;
(w)
utility easements in favor of Nevada Power Company that are subject to
the certain letter dated April 19, 2007 from Nevada Power Company to STF Inc.;
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(x)

Dispositions described in Sections 7.5(f), (j), (k), (m), (n); and

(y)
additional Liens incurred by Companies not securing Indebtedness so long
as the value of the Property subject to such Liens (valued at the time such Lien is incurred) do
not exceed $5,000,000 in the aggregate at any time.
7.4
Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution), or Dispose of all or substantially all of its Property or business, except that:
(a)

any of the Companies may merge with any of the other Companies;

(b)
any of the Companies may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other Company; and
(c)

any Company may Dispose of any of its Property in accordance with

Section 7.5.
7.5
Limitation on Disposition of Property. Dispose of any of its Property
(including, without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or issue or sell any shares of Equity Interests to any Person, except:
(a)
the Disposition in the ordinary course of business of obsolete or worn out
Property or Property no longer useful in the business of the Companies;
(b)
the Disposition of cash or Cash Equivalents (in each case in transactions
otherwise permitted hereunder), Investments permitted pursuant to Section 7.8 and Dispositions
thereof, and Dispositions of inventory (in the ordinary course of business) and receivables (in
connection with the collection thereof and otherwise as customary in gaming operations);
(c)

Dispositions permitted by Section 7.4;

(d)
the sale or issuance of any Company's Equity Interests (other than
Disqualified Stock) to its direct parent;
(e)
Dispositions of Property having a fair market value not in excess of
$5,000,000 in the aggregate in any Fiscal Year following the Opening Date; provided, that (i) the
consideration received for such Property shall be in an amount at least equal to the fair market
value thereof; and (ii) not less than 85% of the consideration received shall be cash and Cash
Equivalents, provided that the requirements of Section 2.11(a)(i) are complied with in connection
therewith;
(f)
Dispositions consisting of dedications of space within the Project for the
purpose of constructing (i) a transit system designed to facilitate the movement of people in an
out of the Project; (ii) a pedestrian bridge over or a pedestrian tunnel or similar structures to
facilitate the movement of pedestrians or vehicle traffic, (iii) a roadway dedication or (iv) such
other structures or improvements reasonably related to and in furtherance of the development,
construction and operation of the Project; provided, that in each case such dedication does not
materially impair or interfere in the use or operations of the Project, taken as a whole, or
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materially detract from the value of the Project;
(g)

the incurrence of Permitted Liens;

(h)
any Disposition which occurs as a result of a Taking or other similar Event
of Loss; provided, that the requirements of Sections 2.11(a)(iii) and 2.22 are complied with in
connection therewith; and
(i)
Dispositions by any Company to any other Company; provided, that in
each case each Company shall have taken all actions required pursuant to Section 6.10 with
respect to any Property so acquired;
(j)
Dispositions (whether of fee interests, leasehold interests or easements)
made with the prior written consent of the Administrative Agent (not to be unreasonably
withheld or delayed) of real property to the extent reasonably required to accommodate the
Access Road, provided that (x) no Default or Event of Default shall have occurred and remain
continuing, (y) each such Disposition shall be made in connection with the establishment of the
Access Road and the Companies shall concurrently receive the contemplated benefits of the
Access Road from the adjoining landowners and enter into such amendments of the Deed of
Tmst as may be required to encumber all of the rights of the Company in the Access Road, and
(z) the Administrative Agent shall have received such endorsements to its policies of title
insurance as it may reasonably require in connection therewith;

(k)
Dispositions of the fee or leasehold interests in the property underlying the
Retail Air Space Lease, provided that the conditions to such Dispositions set forth in the Retail
Intercreditor Agreement and the Retail Air Space Lease have been complied with;
(1)
Dispositions of Condo Units (and related common areas, including
airspace above the highest point of the Project) in accordance with Section 6.14;

(m)
Dispositions consisting of declarations of condominium spaces within the
Site, the grant of related declarations of covenants, conditions and restrictions and reservation of
easements and common area spaces benefiting owners of the Condo Units generally, provided, in
each case that the Administrative Agent shall have reasonably approved the configuration, terms
and conditions thereof in writing and shall have received any endorsements to its title policies as
it may reasonably require;
(n)
Dispositions of easements and rights-of-way to utility companies in the
ordinary course of business that, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the Property, taken as a whole, or materially
interfere with the ordinary conduct of the business of the Companies, taken as a whole;
Dispositions of leases or subleases with respect to any space on or within
the Project so long as: (i) no Event of Default shall exist and be continuing at the time of such
lease or sublease or would occur as a result of entering into such transaction, lease or sublease
(or immediately after any renewal or extension thereof at the option of a Company), (ii) such
lease or sublease could not reasonably be expected to materially interfere with, or materially
impair or detract from, the operation of the Project, (iii) no gaming, hotel or casino operations
(0)

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(other than the operation of arcades and games for minors) may be conducted on any space that
is subject to such lease or sublease other than by and for the benefit of the Companies and (d) no
lease or sublease may provide that a Company subordinate its fee, condominium or leasehold
interest to any lessee or any party financing any lessee; provided, that the Administrative Agent
on behalf of the Lenders shall agree to provide the tenant under any such lease or sublease with a
subordination, non-disturbance and attornment agreement in form and substance reasonably
acceptable to the Administrative Agent;
(p)
the Companies may release any Property subject to the Affiliate Lease
from the Affiliate Lease prior to the termination thereof; and
(q)
Dispositions of portions of the Site to accommodate any amendments to
the Retail Air Space Parcels based upon any inaccuracies or adjustments to such parcels which
result from the failure of the Project (as constmcted) to conform to the exact dimensions of the·
Retail Air Space Parcels as configured on the Closing Date (either because the floors constmcted
in the Project are of a higher or lower elevation, the outer walls are in a different location or the
parcels with respect thereto are in a different configuration than the parcels so described on the
Closing Date), so long as in any case the square footage or dimensions of the Retail Air Space
Parcels are not increased by more than 5% from that on the Closing Date.
7.6
Limitation on Restricted Payments and Payments in respect of
Subordinated Affiliate Expenses. Declare or pay any dividend on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Equity Interests of any of the
Companies, whether now or hereafter outstanding, or make any other distribution in respect of
such Equity Interests, or make any payment in respect of the Subordinated Affiliate Expenses, in
each case whether either directly or indirectly, and whether in cash or property or in obligations
of any of the Companies, or enter into any derivatives or other transaction with any financial
institution, commodities or stock exchange or clearinghouse (a "Derivatives Counterparty")
obligating any Company to make payments to such Derivatives Counterparty as a result of any
change in market value of any such Equity Interests (collectively, "Restricted Payments"), except
that:
(a)
each Company may declare and pay Restricted Payments payable solely
by the issuance of Equity Interests (excluding Disqualified Stock) of the Company making such
Restricted Payment;
(b)
to the extent constituting Restricted Payments, (i) any Company may
consummate a transaction permitted pursuant to Section 7.4, (ii) any Company may make
Dispositions permitted pursuant to Section 7.5, (iii) any Company may make Investments
permitted pursuant to Section 7.8, and (iv) any Company may take actions permitted pursuant to
Section 7.10;
(c)

any Company may make Restricted Payments to any other Company;

(d)
following the Opening Date, during any period in which any Company is a
Pass Through Entity or Consolidated Member, the Companies may make Restricted Payments to
their direct or indirect owners with respect to any such period in an aggregate amount not to
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exceed such owners' Tax Amounts for such period;
(e)
so long as no Default or Event of Default shall have occurred and be
continuing and no Material Adverse Effect shall have occurred and be continuing (or, in either
case, would result therefrom), the Companies may make Restricted Payments in an amount
which is equal to any Designated Equity Contributions made in accordance with Section 3.8 or
3.9 of the Disbursement Agreement provided that at the time of the making of such Restricted
Payments, the making thereof is permitted by Section 3.8 or 3.9 of the Disbursement Agreement,
as the case may be; and
(f)
on and after the Completion Date, and so long as no Default or Event of
Default shall have occurred and be continuing and no Material Adverse Effect shall have
occurred and be continuing (or, in either case, would result therefrom), the Companies may make
Restricted Payments not otherwise permitted under any other subsection of this Section 7.6:
(i)
in an aggregate ammmt not to exceed the aggregate principal
amount of the Subordinated Affiliate Expenses which have accmed and remain unpaid
from time to time, together with interest thereon at the rates set forth in the Affiliate
Agreements, provided that the aggregate amount of all such payments shall not at any
time exceed the cumulative amount which is equal to the positive Excess Cash Flow for
each Excess Cash Flow Period which has then occurred times the relevant Company
Excess Cash Flow Percentage for each such Excess Cash Flow Period, provided further
that the Companies may not make any Restricted Payments pursuant to this Section
7.6(f)(i) except during the 30 day period following the date each payment is made
pursuant to Section 2.1l(a)(vi);
(ii)
provided that after giving pro forma effect to the making of the
Restricted Payments as of the last day of the then most recently ended Fiscal Quarter for
which a Compliance Certificate has been delivered hereunder, the Total Leverage Ratio
as of the last day of such Fiscal Quarter is not greater than 4.00: 1.00, any other Restricted
Payments; and
(iii)
in an amount equal to any Equity Financed Capital Expenditures
applied toward Capital Expenditures necessary as a result of a casualty or a Taking prior
to receipt of Loss Proceeds by the Companies with respect thereto (and in such case, such
Restricted Payments to be made solely from such Loss Proceeds when received).
7.7
Limitation on Capital Expenditures. Make, commit to make or incur
Capital Expenditures, other than Capital Expenditures:
(a)
which are contemplated by the Resort Budget and the Shared Costs
permitted by the Disbursement Agreement;

•

(b)
following the Opening Date, which are in an aggregate amount in excess
of $30,000,000 (without taking into consideration any Capital Expenditures permitted pursuant
to clauses (a) or (c) of this Section 7.7) during any Fiscal Year, provided that any amount not
expended in any Fiscal Year may be carried forward and expended in the following Fiscal Year
to the extent expended for improvements at the Retained Site (and any amounts expensed in any
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Fiscal Years shall be allocated to such carryover amounts prior to the $30,000,000 base
amount); and
(c)

Equity Financed Capital Expenditures.

7.8
Limitation on Investments. Make any advance (other than prepaid
expenses and similar items in the ordinary course of business), loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Equity Interests, bonds,
notes, debentures or other debt securities of, or any assets constituting an ongoing business from,
or make any other investment in, any other Person (all of the foregoing, "Investments"), except:
(a)
extensions of trade credit in the ordinary course of business (including,
without limitation, advances to patrons of the Project's casino operation consistent with ordinary
course gaming operations);
(b)

Investments in Cash Equivalents;

(c)
loans and advances to employees of the Companies in the ordinary course
of business (including, without limitation, for travel, entertainment and relocation expenses) in
an aggregate amount not to exceed $2,500,000 at anyone time outstanding;
(d)

Investments by any Company in other any other Company;

(e)
Investments consisting of securities received in settlement of debt created
in the ordinary course of business and owing to any Company or in satisfaction of judgments;
nominal capital contributions in connection and in furtherance of the
formation of new Subsidiaries in accordance with Section 7.17;
(f)

(g)
to the extent constituting Investments, (i) any Company may consummate
a transaction permitted pursuant to Section 7.4, (ii) any Company may make Dispositions
permitted pursuant to Section 7.5, and (iii) any Company may take actions expressly permitted
pursuant to Section 7.10;
(h)
in addition to Investments otherwise expressly permitted by this Section
7.8, so long as no Default or Event of Default shall have occurred and be continuing or would
result therefrom and no Material Adverse Effect shall have occurred and be continuing or would
result therefrom, Investments by the Companies in an aggregate amount (valued at cost) not to
exceed $10,000,000 at anyone time outstanding;
(i)

Investments consisting of pledges or deposits in the ordinary course of

business;
(j)
Investments received as consideration for a Disposition consisting of debt
securities and other non-cash consideration permitted by Section 7.5; and

(k)
Investments in joint ventures established to operate restaurants, night clubs
or other retail space within the Project in an aggregate amount not to exceed at any time
outstanding $5,000,000 (determined in accordance with book value at the time of determination).
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7.9 Limitation on Optional Payments and Modifications of Governing
Documents. (a) Make or offer to make any optional or vohmtary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease any Indebtedness that
is either subordinate or junior in right of payment to the Obligations (including any Subordinated
Debt) or Indebtedness under the Second Mortgage Indenture, or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance, or enter into any derivative or other
transaction with any Derivatives Counterparty obligating any Company to make payments to
such Derivatives Counterparty as a result of any change in market value of such Indebtedness,
other than the prepayment of Indebtedness incurred hereunder or the prepayment of the
Indebtedness with the proceeds of Permitted Refmancing Indebtedness; or (b) amend or modify,
or permit the amendment or modification of its Governing Documents in any manner adverse to
the Lenders unless otherwise required in order to satisfy a condition or requirement set forth in
the Disbursement Agreement.
7.10 Limitation on Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of
any service or the payment of any management, advisory or similar fees, with any Affiliate
(other than such transactions solely among Las Vegas Holdings and its Subsidiaries) unless such
transaction:
(a)
Is consummated pursuant to the terms of the Affiliate Agreements, as in
effect on the Closing Date;
(b)
Is on terms that are not less favorable to the Companies than those that
might be obtained at the time in a comparable arm's length transaction with Persons who are not
Affiliates and Borrowers have delivered to the Administrative Agent (l) with respect to any
transaction or series of related transactions involving an amount in excess of $5,000,000, a
certificate signed by a Responsible Officer of the Companies certifying that such transaction or
series ofrelated transactions complies with this Section 7.10, (2) with respect to any such
transaction or series of related transactions that involves aggregate payments in excess of
$10,000,000, an opinion as to the fairness to the applicable Company at the time such transaction
or series of related transactions is entered into from a financial point of view issued by an
independent financial advisor satisfactory to the Administrative Agent;
(c)
course of business;
(d)
(e)
in Section 7.8(k);

Is an employment agreement entered into by a Company in the ordinary

Consists of Restricted Payments permitted pursuant to Section 7.6;
Consists solely of any Investment in a joint venture of the types described

(f)
Consists of the payment of Project Costs as permitted pursuant to the
Disbursement Agreement (subject, where applicable, to the terms of the Affiliate Subordination
Agreement);

(g)
Consists of the reimbursement of Project Costs paid in accordance with
Sections 3.8 or 3.9 of the Disbursement Agreement or the reimbursement of amounts provided
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by an Affiliate for application toward Capital Expenditures necessary as a result of a casualty or
Taking prior to receipt of Loss Proceeds by the Companies with respect thereto (and, in such
case, such reimbursement to be made solely from such Loss Proceeds when received); or
(h)
Consists of the payment of reasonable directors and managers fees to
directors and managers of the Companies, and customary indemnification and insurance
arrangements, in favor if such directors and managers, in each case in the ordinary course of
business and with duplication of the amounts required to be paid pursuant to the Affiliate
Agreements.
7.11 Limitation on Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by any Company of Property which has been or is to be sold or
transferred by any Company to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such Property or rental obligations of any
Company (except as expressly permitted by Section 7.10).
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal year of any
Company to end on a day other than December 31 or change any Company's method of
determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of any of the Companies to
create, incur, assume or suffer to exist any Lien upon any of its Property or revenues, whether
now owned or hereafter acquired, to secure the Obligations other than:
(a)

this Agreement and the other Loan Documents;

(b)
the Second Mortgage Indenture and all agreements related thereto, and
any instruments, documents or agreements refinancing the Second Mortgage Indenture in each
case which do not prohibit the Lien securing the Obligations except to the extent permitted by
the Project Lender Intercreditor Agreement;
(c)
any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only
be effective against the assets financed thereby and proceeds thereof); provided, that the
principal amount of Indebtedness thereunder shall exceed 75% of the original purchase price of
the assets financed thereby;
(d)
customary nonassignment provisions contained in leases, licenses and
similar agreements (in each case other than those with respect to Real Estate) and so long as such
restrictions are limited to such leases, licenses and similar agreements;
(e)
any agreements governing any Excluded Assets (in which case any
prohibition or limitation shall only be effective against such Excluded Assets and proceeds
thereof);
(f)
as required by applicable law or any applicable rule or order, including
those of any Nevada Gaming Authority; and

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(g)
any agreements governing any Liens permitted pursuant to Sections 7.3(f),
7.3(g), 7.3(0) or 7.3(p) with respect to the Property which is subject to those Liens.
7.14 Limitation on Restrictions on Subsidiary Distributions, etc. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on the ability of
any Subsidiary of Borrowers to:
(a)
make Restricted Payments in respect of any Equity Interests of any such
Subsidiary to Borrowers, or payor subordinate any Indebtedness owed to, any of the Companies;
(b)

make Investments in Borrowers; or

(c)

transfer any of its assets to Borrowers,

except, in each case, for such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents, (ii) any restrictions under the Second Mortgage
Indenture and all agreements related thereto, (iii) as required by applicable law or any applicable
rule or order, including those of any Nevada Gaming Authority, (iv) restrictions upon any such
Subsidiary imposed pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of its Equity Interests or upon its Property to the extent
related to Property which it has agreed to sell, (v) any restrictions imposed with respect to any
Property subject to a Lien permitted in accordance with Section 7.3 pursuant to an agreement
that has been entered into in connection with the incurrence of such Liens so long as such
restrictions relate solely to the Property subject to such Liens and (vi) customary nonassignment
provisions in leases, licenses and similar agreements and other contracts which, taken as a whole,
are not material to the business and operations of the Companies.
7.15 Limitation on Lines of Business. Enter into any business or investment
activities, whether directly or indirectly, other than Permitted Businesses.
7.16

Restrictions on Changes.

Amend or otherwise change the terms of any Financing Agreements (other than the Loan
Documents) or permit the termination thereof (other than in accordance with the terms thereof),
or enter into any new Financing Agreements or make any payment consistent with an
amendment thereof or change thereto, (i) if the effect of such amendment, change or new
Financing Agreement is to increase the interest rate or fees on the Indebtedness evidenced
thereby, change (to earlier or more frequent dates) any dates upon which payments of principal
or interest are due thereon (including, without limitation, changes to, or new additions of,
mandatory prepayment provisions), change the redemption, prepayment or defeasance provisions
thereof or change the subordination provisions thereof (or of any guaranty thereof) or (ii) in the
case of the Second Mortgage Indenture, or any documents related thereto, if the effect of such
amendment, change or new Financing Agreement, together with all other amendments and
changes previously made or new Financing Agreements previously entered into, is to materially
increase the obligations of the obligors thereunder or to confer any additional rights on the
holders of the Indebtedness or obligations evidenced thereby which could reasonably be
expected to be materially adverse to the Companies, taken as a whole, or the Lenders; provided,
that the Companies may amend the terms of any other Financing Agreement to increase the
principal amount thereof if such increase is otherwise expressly permitted by the Intercreditor
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Agreements and this Agreement.
7.17 Limitation on Formation and Acquisition of Subsidiaries and Purchase of
Equity Interests. Except as otherwise permitted pursuant to Section 7.4, form, create or acquire
any direct or indirect Subsidiary, except so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, Borrowers and their Subsidiaries may
form, create or acquire new Subsidiaries; provided, that (a) any such new Subsidiary shall be a
Wholly Owned Subsidiary of its requisite parent entity, and (b) any such new Subsidiary shall
become a Company hereunder and otherwise comply with the requirements of Section 6.10.
Notwithstanding anything to the contrary contained in this Agreement, in no event shall any of
the Companies own any Equity Interests other than that of its Wholly Owned Subsidiaries and
interests in joint ventures permitted pursuant to Section 7.8(k).
7.18 Limitation on Hedge Agreements. Enter into any Hedge Agreement other
than Hedge Agreements entered into in the ordinary course of business, and not for speculative
purposes, and to protect against changes in interest rates or foreign exchange rates or commodity
prices (with respect to commodities used by the Companies in a Permitted Business).
7.19 Limitation on.Sale or Discount of Receivables. Except as permitted
pursuant to Section 7.5(b), directly or indirectly, sell with recourse, or discount or otherwise sell
for less than the face value thereof, any of its notes or accounts receivable other than an
assignment for purposes of collection in the ordinary course of business.
7.20 Limitation on Zoning and Contract Changes and Compliance. Initiate,
consent to or acquiesce to (a) any zoning downgrade of the Site or seek any material variance
under any existing zoning ordinance except, in each case, to the extent such downgrade or
variance could not reasonably be expected to materially and adversely affect the occupancy, use
or operation of the Retained Site, (b) use or permit the use of the Retained Site in any manner
that could result in such use becoming a non-conforming use (other than a non-conforming use
otherwise in compliance with applicable land use laws, rules and regulations by virtue of a
variance or otherwise) under any zoning ordinance or any other applicable land use law, rule or
regulation or (c) any change in any laws, requirements of Governmental Authorities or
obligations created by private contracts which now or hereafter could reasonably be expected to
materially and adversely affect the occupancy, use or operation of the Retained Site.
7.21 No Joint Assessment; Separate Lots. Suffer, permit or initiate the joint
assessment of the Retained Site with any other real property constituting a 8eparate tax lot, other
than the Retail Air Space Parcels (until such time as such Retail Air Space Parcels have been
transferred to the Retail Affiliate in fee).
7.22 Acquisition of Real Property. Acquire a fee, easement or other interest in
l,"eal property (including, without limitation, any lease of real property, but excluding any
any
other leasehold interests acquired by a Company over real property already subject to the Lien of
the Deed of Trust) unless the Companies have (i) delivered to the Administrative Agent a Phase I
Report with respect to such real property along with a corresponding reliance letter from an
environmental consultant reasonably satisfactory to the Administrative Agent confirming that no
Hazardous Substances were found in, on or under such real property in a manner· that could
reasonably be expected to result in a material liability to such Company and that a Phase II
Report is not warranted by the findings of such Phase I Report and (ii) complied with the
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provisions of Section 6.10. Notwithstanding the foregoing, this Section 7.22 shall not apply to
the acquisition by the Companies of any fee, easement or other interest in any real property as to
which the Administrative Agent has determined that the size, location and proposed use thereof
are insufficient to justify the time and expense of satisfying the terms of this Section 7.22.
7.23 Use of Proceeds. (a) Use the proceeds of any Loan or UC Credit
Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose, or (b) pay any Project Costs using the Proceeds of any Direct Loan.
7.24 Liquidity Account. Fail to maintain the Liquidity Account in the manner
required by the Disbursement Agreement, provided that from and after the date upon which the
disbursement of amounts contained in the Liquidity Account are to be directed by this Section in
accordance with the terms of Section 2.17 and 2.23.3 of the Disbursement Agreement, then (a)
such amounts may be applied from time to time for the payment of Debt Service, and (b) such
amounts shall be applied to the prepayment of the outstanding Revolving Loans (but without
reducing the Revolving Commitments) upon the delivery of a Compliance Certificate
demonstrating that the Total Leverage Ratio has been reduced to 7.00:1.00. From and after the
date upon which the Administrative Agent is entitled to do so pursuant to the Disbursement
Agreement, the Administrative Agent shall direct the Disbursement Agentto release funds from
the Liquidity Account for the purposes described herein in accordance with this Section
promptly upon the request of the Borrowers.

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SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a)
(i) Borrowers shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or (ii) Borrowers shall
fail to pay any interest on any Loan or Reimbursement Obligation or any of the Companies shall
fail to pay any other amount payable hereunder or under any other Loan Document within three
days after any such interest or other amount under this clause (ii) becomes due in accordance
with the terms hereof; provided, that the failure to pay any amount due under the Disbursement
Agreement (and not otherwise due hereunder) shall constitute an Event of Default hereunder
only to the extent such failure to pay constitutes a Disbursement Agreement Event of Default; or
(b)
Any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; provided, that the inaccuracy of any
representation or warranty contained only in the Disbursement Agreement shall constitute an
Event of Default hereunder only to the extent such inaccuracy constitutes a Disbursement
Agreement Event of Default; or
(c)
(i) any Company shall default in the observance or performance of any
agreement contained in Section 6.4(i), Section 6.7(a), Section 7, or Section 5.1 of the Guarantee
and Collateral Agreement, provided, that with respect to those covenants incorporated by
reference from this Agreement into the Guarantee and Collateral Agreement no Event of Default
shall occur from a Company's default in the observance or performance of such covenants until
expiration of the notice and cure periods, if any, set forth under this Section 8 that are applicable
to the corresponding covenants in this Agreement, (ii) Resort Properties I shall default in the
observance or performance of the covenants contained in Section 5 of the Resort Properties I
.Guaranty, (iii) Turnberry Residential shall default in the performance or observance of the
covenants contained in (x) Sections 2, 3 or 6 of the Completion Guaranty issued by Turnberry
Residential or (y) where such default continues unremedied for thirty days, in respect of any
other covenant thereunder, (iv) an "Event of Default" under and as defined in the Deed of Trust
shall have occurred and be continuing, (v) a Disbursement Agreement Event of Default shall
have occurred and be continuing, or (vi) the Companies shall fail to at all times maintain in full
force and effect the insurance policies and programs listed on Schedule 6.5(d); or
(d)
Any Loan Party shall default in the observance or performance of any
other covenant or agreement contained in this Agreement or any other Loan Document to which
it is a party (other than as provided in subsections (a) through (c) of this Section but subject to
the proviso set forth in Section 8(c)(i)), and such default shall continue unremedied for a period
of 30 days after the earlier of (i) the Companies becoming aware of such default or Oi) receipt by
the Companies of written notice from the Administrative Agent or any Lender of such default;
provided, that the failure to perform or comply with any such provision of the Disbursement
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Agreement shall constitute an Event of Default hereunder only to the extent such failure to
perform or to comply constitutes a Disbursement Agreement Event of Default; or
(e)
Any of the Loan Parties shall (i) default in making any payment of any
principal of any Indebtedness (including, without limitation, any Guarantee Obligation) on the
scheduled due date with respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such
holder or beneficiary) to cause immediately such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in this subsection (e) shall not at
any time constitute an Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in this subsection (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate
$10,000,000, provided, further, that clause (iii) arove shall not apply to (A) Indebtedness that
becomes due solely as a result of the voluntary sale or transfer of property or assets or as a result
of a mandatory prepayment or a regularly scheduled repayment or (B) prepayments that become
due as a result of any incurrence of Indebtedness (in each case to the extent such sale, transfer or
incurrence is permitted by the terms of such Indebtedness); or
(f)
(i) Any of the Loan Parties (or, prior to the Opening Date, the Retail
Affiliate) shall commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or any such Person shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any such Person any case,
proceeding or other action of a nature referred to in subsection (i) above that (A) results in the
entry of an order for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any
such Person any case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of its assets that results in
the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) any such Person shall take
any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in subsection (i), (ii), or (iii) above; or (v) any such Person shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
or

(g)
(i) Any of the Companies shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
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Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any of the Companies or any Controlled Group Member, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is
reasonably likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than in a
standard termination under Section 4041(b) of ERISA, (v) any of the Companies or any
Controlled Group Member shall, or is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any of the
Companies or any Controlled Group Member shall be required to make payments pursuant to
any employee welfare benefit plan (as defined in Section 3( 1) of ERISA) that provides benefits
to retired employees (or their dependents), other than as required by Sections 601 et. seq. of
ERISA, Section 4980B of the Code, or the corresponding provisions of applicable state law; and
in each case in subsections (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(h)
One or more judgments or decrees shall be entered against any of the
Companies resulting in a liability (to the extent not paid, bonded or covered by insurance as to
which the relevant insurance company has acknowledged coverage, subject to deductibles
permitted by Schedule 6.5(d)) of $5,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged or stayed pending appeal within 60 days from the entry thereof; or
(i)
Any of the Guarantees or Security Documents shall cease, for any reason
(other than pursuant to the terms thereof), to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert or shall assert that any provision of any Loan
Document is not in full force and effect, or any Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority purported to be created thereby
(except to the extent expressly contemplated or permitted by the Loan Documents), or any Loan
Party shall assert the same; or
Any of the Financing Agreements shall terminate or be terminated or
canceled, become invalid or illegal or otherwise cease to be in full force and effect prior to its
stated expiration date or any Company, any Affiliate of any Borrower or any other Person shall
breach or default under any term, condition, provision, covenant, representation or warranty
contained in any Material Agreement (after the giving of any applicable notice and the expiration
of any applicable grace period); provided, that the occurrence of any of the foregoing events with
respect to any Material Agreement (other than any Material Affiliate Agreement) shall constitute
an Event of Default hereunder only if the same could reasonably be expected to result in a
Material Adverse Effect and the same shall continue unremedied for thirty days after the earlier
of (i) the Companies becoming aware of such occurrence or (ii) receipt by the Companies of
written notice from the Administrative Agent or any Lender of such occurrence; provided,
however, that in the case of any such Material Agreement, if the occurrence is the result of
actions or inactions by a party other than a Loan Party, then no Event of Default shall be deemed
to have occurred as a result thereof if Borrowers provide written notice to the Administrative
U)

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Agent immediately upon (but in no event more than five Banking Days after) the Companies
becoming aware of, or receiving notice of, such occurrence that the Companies intend to replace
such Material Agreement and (x) the Companies obtain a replacement obligor or obligors for the
affected party, (y) the Companies enter into a replacement Material Agreement on terms no less
beneficial to the Companies and the Secured Parties in any material respect than the Material
Agreement being replaced within sixty days of such occurrence; provided, however, that the
replacement Material Agreement may require the Companies to pay amounts under the
replacement Material Agreement in excess of those that would have been payable under the
replaced Material Agreement and (z) such occurrence, after considering any replacement obligor
and replacement Material Agreement and the time required to implement such replacement, has
not had and could not reasonably be expected to have a Material Adverse Effect; provided,
further, that a breach, default or termination under any Constmction Material Agreement prior to
the Completion Date shall constitute an Event of Default hereunder only to the extent such
breach, default or termination constitutes a Disbursement Agreement Event of Default; or
(k)

A Change of Control shall occur; or

(1)
The Liens on the Property of the Companies (other then the Second
Mortgage Proceeds AccoUllt)securing the obligations under the Second Mortgage Indenture or
the Second Mortgage Upstream Guarantees shall cease, for any reason, to be validly
subordinated and junior in right to the Liens of the Administrative Agent and the Secured Parties
on the Property of such Persons under the Loan Documents;

(m)
Any Subordinated Debt shall cease, for any reason, to be validly
subordinated to the Obligations in the manner contemplated in the documentation, instmments or
other agreements related to the Subordinated Debt;
(n)
A License Revocation that continues for three consecutive Banking Days
affecting gaming operations accounting for five percent or more of the consolidated gross
revenues (calculated in accordance with GAAP) of the Companies related to gaming operations;
(0)
Any of the Companies (or, prior to the Opening Date, the Retail Affiliate)
shall fail to observe, satisfy or perform, or there shall be a violation or breach of, any of the
terms, provisions, agreements, covenants or conditions attaching to or under the issuance to such
Person of any Permit or any such Permit or any provision thereof shall be suspended, revoked,
cancelled, terminated or materially and adversely modified or fail to be in full force and effect or
any Governmental Authority shall challenge or seek to revoke any such Permit if such failure to
perform, violation, breach, suspension, revocation, cancellation, termination or modification
could reasonably be expected to have a Material AdverseEffect;

(p)
The Opening Date shall not have occurred by the Outside Date (as the
same may be extended from time to time in accordance with the terms of the Disbursement
Agreement), provided that the Majority Initial Arrangers, in their sole discretion, may reduce the
Master Disbursement Agreement's requirement that at least 70% of the tenant improvements
with respect to the retail space within the Project (determined on the basis of square footage) be
completed as a condition to the Opening Date to a requirement of not less than 60%; or

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(q)
The Completion Date shall not have occurred within 180 calendar days
following the Opening Date, provided that the Majority Initial Arrangers may, in their sole
discretion, extend the date upon which the Completion Date must occur to the first anniversary
of the Opening Date; or
(r)
Any failure of the Retail Affiliate to comply with its obligations pursuant
to the Retail Air Space Lease and the Reciprocal Easement Agreement which could reasonably
be expected to have a Material Adverse Effect.
then, and in any such event, (A) if such event is an Event of Default specified in subsection (i) or
(ii) of paragraph (f) above with respect to any Commitments, automatically the Commitments
shall immediately terminate and the Loans hereunder (with accmed interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents (including, without
limitation, all amounts of UC Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of Default, either
or both of the following actions may be taken: (i) with the consent of the either the Required
Lenders or the Required Facility Lenders for the respective Facility, the Administrative Agent
may, or upon the request of the Required Lenders or the Required Facility Lenders for the
respective Facility, the Administrative Agent shall, by notice to Borrowers, declare the
Revolving Commitments and/or the Delay Draw Commitments, as the case may be, to be
terminated forthwith, whereupon the applicable Commitments shall immediately terminate; and
(ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request
of the Required Lenders, the Administrative Agent shall, by notice to Borrowers, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all amounts of UC
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. Upon the occurrence and during the
continuation of an Event of Default, the Administrative Agent and the Lenders shall be entitled
to exercise any and all remedies available under the Security Documents (subject to applicable
Nevada Gaming Laws and the UCC and securing any required Nevada Gaming Approvals),
including, without limitation, the Guarantee and Collateral Agreement and the Deed of Tmst, or
otherwise available under applicable law, in equity or otherwise (subject to compliance with
applicable Laws, including all Nevada Gaming Laws), including, without limitation, the right to
(1) enter into possession of the Project and perform any and all work and labor necessary to
complete the Project or to operate and maintain the Project, and all sums expended by the
Administrative Agent or any other Secured Party in so doing, together with interest on such total
amount at the highest default rate provided hereunder, shall be Obligations hereunder, shall be
repaid by Borrowers to the Administrative Agent or such Secured Party upon demand and shall
be secured by the Loan Documents, notwithstanding that such expenditures may, together with
amounts advanced under this Agreement, exceed the total amount of the Commitments and (II)
set off and apply all monies on deposit in any Account or any amounts on deposit with the
Administrative Agent or any Lender to the satisfaction of the Obligations. With respect to all
Letters of Credit with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to this paragraph, Borrowers shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount in immediately available funds
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equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. If at any
time the Administrative Agent determines that any funds held in such cash collateral account are
subject to any right or claim of any Person other than the Administrative Agent and the Secured
Parties or that the total amount of such funds is less than the aggregate undrawn and unexpired
amount of outstanding Letters of Credit, Borrowers shall, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and
held in such cash collateral account, an amOlmt equal to the excess of (a) such aggregate
undrawn and unexpired amount over (b) the total amount of funds, if any, then held in such cash
collateral account that the Administrative Agent determines to be free and clear of any such right
and claim. Amounts held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall
be applied to repay other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other
Obligations have been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Companies (or such other Person as may be lawfully entitled thereto).
Notwithstanding anything to the contrary contained in this Agreement, in the event the consent
of the Lenders (whether the Required Lenders, the Required Facility Lenders for a particular
Facility or otherwise) is required in connection with the exercise of remedies pursuant to this
Section 8, for purposes of determining the required lender consent pursuant to the applicable
definitions thereto (whether the "Required Lenders", the "Required Facility Lenders" or
otherwise), the Commitments of the Lenders shall be deemed terminated.
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGERS; THE MANAGERS
9.1

Appointment and. Authority.

(a)
Each of the Lenders and the Issuing Lender hereby irrevocably appoints
Bank of America to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. Without
limitation on the foregoing, the Lenders hereby authorize the execution by the Administrative
Agent of the Project Lender Intercreditor Agreement and the Retail Intercreditor Agreement. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Lender, and no other Person shall have rights as a third party beneficiary of any of
such provisions.
(b)
The Administrative Agent shall also act as the "collateral agent" under the
Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential Hedge Bank and potential Cash Management Bank) and the Issuing Lender
hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such
Lender and the Issuing Lender for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with
such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as "collateral agent" and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.5 for purposes of holding or
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enforcing any Lien on the Collateral (or any portion thereof) granted under the Security
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Section 9 and
Section 10 (including Section lO.5(c), as though such co-agents, sub-agents and attorneys-in-fact
were the "collateral agent" under the Loan Documents) as if set forth in full herein with respect
thereto.
(c)
The Administrative Agent is further authorized by the Lenders to enter
into amendments to this Agreement or any other Loan Documents with the Loan Parties for the
purpose of curing any formal defect, inconsistency, omission or ambiguity in this Agreement or
any other Loan Document to which it is a party (without any consent or approval by the
Lenders).
9.2
Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with
any Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.3
Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:
(a)
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(b)
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; and
(c)
shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Borrower or any of their Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
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good faith shall be necessary, under the circumstances as provided in Sections 10.1 and 8) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by Borrowers, a Lender or the Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or the creation, perfection or priority of any Lien
purported to be created by the Security Documents, (v) the value or the sufficiency of any
Collateral, or (v) the satisfaction of any condition set forth in Section 5 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.4
ReliaI!ce by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the making of a
Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of
a Lender or the Issuing Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Lender unless the Administrative Agent shall have
received notice to the contrary from such Lender or the Issuing Lender prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with
legal counsel (who may be counsel for Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such cmmsel, accountants or experts.
9.5
Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by
or through anyone or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.
9.6
Resignation of Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the Issuing Lender and Borrowers. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in
consultation with Borrowers, to appoint a successor, which shall be a bank with an office in the
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