-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Tj5MCibqClOBDvyLFKWzoTH2LMFrhPL/orpd3iZBAl+HGp1m9/Crd1XEp+fByfCM DgVZwxyqvgu1qnYFGsv4yQ== 0001047469-08-006338.txt : 20080512 0001047469-08-006338.hdr.sgml : 20080512 20080509213339 ACCESSION NUMBER: 0001047469-08-006338 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 16 CONFORMED PERIOD OF REPORT: 20080331 FILED AS OF DATE: 20080512 DATE AS OF CHANGE: 20080509 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STATION CASINOS INC CENTRAL INDEX KEY: 0000898660 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 880136443 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-12037 FILM NUMBER: 08820391 BUSINESS ADDRESS: STREET 1: 1505 SOUTH PAVILION CENTER DRIVE CITY: LAS VEGAS STATE: NV ZIP: 89135 BUSINESS PHONE: 7023672411 MAIL ADDRESS: STREET 1: 1505 SOUTH PAVILION CENTER DRIVE CITY: LAS VEGAS STATE: NV ZIP: 89135 10-Q 1 a2185441z10-q.htm 10-Q
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-Q

ý	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2008
OR
o	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to

Commission file number 000-21640

STATION CASINOS, INC.
(Exact name of registrant as specified in its charter)

Nevada (State or other jurisdiction of incorporation or organization)		88-0136443 (IRS Employer Identification No.)
1505 South Pavilion Center Drive, Las Vegas, Nevada (Address of principal executive offices)
89135 (Zip Code)
(702) 495-3000 (Registrant's telephone number, including area code)
N/A (Former name, former address and former fiscal year, if changed since last report)

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act:

Large accelerated filer ý

Accelerated filer o

Non-accelerated filer o
(Do not check if a smaller reporting company)

Smaller reporting company o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No ý

Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.

As of April 30, 2008, there were 41.7 shares outstanding of the registrant's voting common stock, $0.01 par value and 41,674,838 shares outstanding of the registrant's non-voting common stock, $0.01 par value.

STATION CASINOS, INC.
INDEX


Part I.	Financial Information
Item 1.	Financial Statements
	Condensed Consolidated Balance Sheets—March 31, 2008 (Successor) (unaudited) and December 31, 2007 (Successor)	3
	Condensed Consolidated Statements of Operations (unaudited)—Three Months Ended March 31, 2008 (Successor) and March 31, 2007 (Predecessor)	4
	Condensed Consolidated Statements of Cash Flows (unaudited)—Three Months Ended March 31, 2008 (Successor) and March 31, 2007 (Predecessor)	5
	Notes to Condensed Consolidated Financial Statements (unaudited)	6
Item 2.	Management's Discussion and Analysis of Financial Condition and Results of Operations	26
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	42
Item 4.	Controls and Procedures	43
Part II.	Other Information
Item 1.	Legal Proceedings	44
Item 1A.	Risk Factors	44
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	44
Item 3.	Defaults Upon Senior Securities	44
Item 4.	Submission of Matters to a Vote of Security Holders	44
Item 5.	Other Information	44
Item 6.	Exhibits	44
Signature		46

Part I. Financial Information

Item 1. Financial Statements

STATION CASINOS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(amounts in thousands, except share data)

			Successor
			March 31, 2008			December 31, 2007
			(unaudited)
ASSETS
Current assets:
	Cash and cash equivalents		$	84,426		$	96,392
	Restricted cash			13,413			966
	Receivables, net			51,087			48,680
	Inventories			11,991			12,496
	Prepaid gaming tax			20,266			21,541
	Prepaid expenses			16,846			14,472

		Total current assets		198,029			194,547
Property and equipment, net				3,061,612			3,072,361
Goodwill				2,964,821			2,964,938
Intangible assets, net				983,138			1,002,617
Land held for development				1,023,148			1,007,322
Investments in joint ventures				304,397			391,953
Native American development costs				194,635			200,667
Other assets, net				154,799			154,261

		Total assets	$	8,884,579		$	8,988,666

LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
	Current portion of long-term debt		$	6,287		$	2,610
	Accounts payable			18,229			16,954
	Construction contracts payable			13,422			23,151
	Accrued expenses and other current liabilities			130,498			178,018

		Total current liabilities		168,436			220,733
Long-term debt, less current portion				5,401,591			5,241,814
Deferred income tax, net				753,870			789,644
Other long-term liabilities, net				64,235			65,413
Due to unconsolidated affiliate				—			100,000

		Total liabilities		6,388,132			6,417,604

Commitments and contingencies
Stockholders' equity:
	Common stock, par value $0.01; authorized 10,000 shares; 41.7 shares issued			—			—
	Non-voting common stock, par value $0.01; authorized 100,000,000 shares; 41,674,838 shares issued			417			417
	Additional paid-in capital			2,950,929			2,948,265
	Accumulated other comprehensive loss			(107,208	)		(59,666	)
	Accumulated deficit			(347,691	)		(317,954	)

		Total stockholders' equity		2,496,447			2,571,062

		Total liabilities and stockholders' equity	$	8,884,579		$	8,988,666

The accompanying notes are an integral part of these condensed consolidated financial statements.

STATION CASINOS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(amounts in thousands)

(unaudited)


			Successor			Predecessor
			Three Months Ended March 31, 2008			Three Months Ended March 31, 2007
Operating revenues:
	Casino		$	249,442		$	264,695
	Food and beverage			60,965			61,563
	Room			30,300			30,748
	Other			19,327			17,428
	Management fees			18,746			24,828

		Gross revenues		378,780			399,262
	Promotional allowances			(26,463	)		(26,824	)

		Net revenues		352,317			372,438

Operating costs and expenses:
	Casino			95,771			95,300
	Food and beverage			41,686			43,062
	Room			10,363			9,416
	Other			7,316			6,227
	Selling, general and administrative			63,551			61,928
	Corporate			12,049			21,310
	Development			727			1,029
	Depreciation and amortization			57,239			40,222
	Loss (gain) on asset disposals, net			64			(46	)
	Preopening			2,130			1,234
	Lease termination			1,500			—

				292,396			279,682

Operating income				59,921			92,756
	Earnings from joint ventures			8,526			11,527

Operating income and earnings from joint ventures				68,447			104,283

Other expense:
	Interest expense, net			(97,346	)		(56,530	)
	Interest and other expense from joint ventures			(9,254	)		(5,909	)
	Change in fair value of derivative instrument			(2,377	)		—

				(108,977	)		(62,439	)

(Loss) income before income taxes				(40,530	)		41,844
	Income tax benefit (provision)			10,793			(18,794	)

Net (loss) income			$	(29,737	)	$	23,050

The accompanying notes are an integral part of these condensed consolidated financial statements.

STATION CASINOS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(amounts in thousands)

(unaudited)


				Successor
				Successor			Predecessor
				Three Months Ended March 31, 2008			Predecessor
				Three Months Ended March 31, 2008			Three Months Ended March 31, 2007
Cash flows from operating activities:
Net (loss) income				$	(29,737	)	$	23,050

Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities:
	Depreciation and amortization				57,239			40,222
	Change in fair value of derivative instrument				2,377			—
	Amortization of debt discount and issuance costs				9,425			1,275
	Share-based compensation				3,441			5,685
	Loss (earnings) from joint ventures				728			(5,618	)
	Distributions of earnings from joint ventures				—			81,233
	Excess tax benefit from exercise of stock options				—			(1,182	)
	Changes in assets and liabilities:
		Restricted cash			(12,447	)		—
		Receivables, net			(2,407	)		(627	)
		Inventories and prepaid expenses			(594	)		(2,200	)
		Deferred income tax			(11,064	)		2,113
		Accounts payable			1,275			(2,552	)
		Accrued expenses and other current liabilities			(39,561	)		(15,850	)
	Other, net				(80	)		5,308

			Total adjustments		8,332			107,807

			Net cash (used in) provided by operating activities		(21,405	)		130,857

Cash flows from investing activities:
	Capital expenditures				(35,206	)		(137,983	)
	Proceeds from sale of land, property and equipment				1,352			81
	Investments in joint ventures, net				(35,031	)		(15,571	)
	Distributions in excess of earnings from joint ventures				792			104,824
	Construction contracts payable				(9,729	)		17,426
	Native American development costs				(3,131	)		(7,745	)
	Other, net				(1,597	)		(4,763	)

			Net cash used in investing activities		(82,550	)		(43,731	)

Cash flows from financing activities:
	Payments under Revolver with maturity dates less than three months, net				(102,100	)		—
	Proceeds from the issuance of Land Loan				200,000			—
	Debt issuance costs				(5,253	)		(7	)
	Payments under previous revolving facility with maturity dates less than three months, net				—			(171,400	)
	Proceeds from issuance of related party promissory note				—			100,000
	Purchase of treasury stock				—			(1,944	)
	Payment of dividends				—			(16,470	)
	Exercise of stock options				—			539
	Excess tax benefit from exercise of stock options				—			1,182
	Other, net				(658	)		(20	)

			Net cash provided by (used in) financing activities		91,989			(88,120	)

Cash and cash equivalents:
	Decrease in cash and cash equivalents				(11,966	)		(994	)
	Balance, beginning of period				96,392			116,898

	Balance, end of period			$	84,426		$	115,904

Supplemental cash flow disclosures:
	Cash paid for interest, net of $6,245 and $5,013 capitalized, respectively			$	120,023		$	83,157

The accompanying notes are an integral part of these condensed consolidated financial statements.

STATION CASINOS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)

1. Basis of Presentation

Station Casinos, Inc. (the "Company", "Station", "we", "our", "ours" or "us"), a Nevada corporation, is a gaming and entertainment company that currently owns and operates nine major hotel/casino properties (one of which is 50% owned) and eight smaller casino properties (three of which are 50% owned), in the Las Vegas metropolitan area, as well as manages a casino for a Native American tribe. The accompanying condensed consolidated financial statements include the accounts of Station, its wholly-owned subsidiaries and MPM Enterprises, LLC (which is 50% owned by Station and required to be consolidated). Investments in all other 50% or less owned affiliated companies are accounted for under the equity method. All significant intercompany accounts and transactions have been eliminated.

The accompanying condensed consolidated financial statements included herein have been prepared by Station, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States have been condensed or omitted pursuant to such rules and regulations, although we believe that the disclosures are adequate to make the information presented not misleading. In the opinion of management, all adjustments (which include normal recurring adjustments) necessary for a fair presentation of the results for the interim periods have been made. The results for the three months ended March 31, 2008 are not necessarily indicative of results to be expected for the full fiscal year. These financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007.

Certain amounts in the condensed consolidated financial statements for the three months ended March 31, 2007 have been reclassified to be consistent with the current year presentation. These reclassifications had no effect on the previously reported net income.

The term "successor" refers to the Company following the Merger (as defined below) on November 7, 2007 and the term "predecessor" refers to the Company prior to the Merger.

Merger Transaction

On November 7, 2007, the Company completed its merger (the "Merger") with FCP Acquisition Sub, a Nevada corporation ("Merger Sub"), pursuant to which Merger Sub merged with and into the Company with the Company continuing as the surviving corporation. The Merger was completed pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of February 23, 2007 and amended as of May 4, 2007, among the Company, Fertitta Colony Partners LLC, a Nevada limited liability company ("FCP"), and Merger Sub.

As a result of the Merger, 24.1% of the issued and outstanding shares of non-voting common stock of the Company are owned by Fertitta Partners LLC, a Nevada limited liability company ("Fertitta Partners"), which is owned by affiliates of Frank J. Fertitta III, Chairman and Chief Executive Officer of Station, affiliates of Lorenzo J. Fertitta, Vice Chairman and President of Station, affiliates of Blake L. Sartini and Delise F. Sartini, and certain officers and other members of management of the Company. The remaining 75.9% of the issued and outstanding shares of non-voting common stock of the Company are owned by FCP Holding, Inc., a Nevada corporation ("FCP HoldCo") and a wholly-owned subsidiary of FCP. FCP is owned by an affiliate of Colony Capital, LLC ("Colony"), affiliates of Frank J. Fertitta III and Lorenzo J. Fertitta and certain officers and other members of management. Substantially simultaneously with the consummation of the Merger, shares of voting common stock of Station were issued for nominal consideration to FCP VoteCo LLC, a Nevada limited liability company ("FCP VoteCo"), which is owned

1. Basis of Presentation (Continued)

equally by Frank J. Fertitta III, Lorenzo J. Fertitta and Thomas J. Barrack, Jr., the Chairman and Chief Executive Officer of Colony.

At the effective time of the Merger, each outstanding share of our common stock, including any rights associated therewith (other than shares of our common stock owned by FCP, Merger Sub, FCP HoldCo, Fertitta Partners or any wholly-owned subsidiary of the Company or shares of our common stock held in treasury by us) was cancelled and converted into the right to receive $90 in cash, without interest. Following the consummation of the Merger, the Company is privately owned through FCP HoldCo, Fertitta Partners and FCP VoteCo. Station common stock ceased trading on the New York Stock Exchange at market close on November 7, 2007, and is no longer listed on any exchange or quotation system. The Company's voting common stock is registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended.

The Merger resulted in a greater than 50% control of the Company and was a "business combination" for accounting purposes, requiring FCP, Fertitta Partners, FCP VoteCo and their respective owners (the "Investors"), pursuant to Statement of Financial Accounting Standards ("SFAS") No. 141, "Business Combinations", to record the acquired assets and assumed liabilities at their fair market values as of the acquisition date, resulting in a new basis of accounting. As a result of the Securities and Exchange Commission's rules and guidance regarding "push-down" accounting, the Investors' new accounting basis in our assets and liabilities is reflected in our condensed consolidated financial statements to the extent that the Investors paid cash for the non-voting stock of the Company as of the consummation of the Merger. Management has deemed it impracticable to determine the individual investors' carryover basis in the shares and has accordingly computed the carryover basis based on the pro rata portion of book value of Station prior to the Merger. The accompanying condensed consolidated balance sheets at March 31, 2008 and December 31, 2007 and condensed consolidated statements of operations and cash flows for the three months ended March 31, 2008 reflect the push down of the Investors' new basis. The accompanying condensed consolidated statements of operations and cash flows for the three months ended March 31, 2007 reflect the historical accounting basis in our assets and liabilities.

Recently Issued Accounting Standards

In March 2008, the Financial Accounting Standards Board (the "FASB") issued SFAS 161, "Disclosures about Derivative Instruments and Hedging Activities—an amendment of FASB Statement No. 133". SFAS 161 changes the disclosure requirements for derivative instruments and hedging activities. Under SFAS 161, entities are required to provide enhanced disclosures about how and why they use derivative instruments, how derivative instruments and related hedged items are accounted for and the affect of derivative instruments on the entity's financial position, financial performance and cash flows. SFAS 161 is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. We will adopt SFAS 161 in the first quarter of 2009.

In December 2007, the FASB issued SFAS 160, "Noncontrolling Interests in Consolidated Financial Statements—An Amendment of ARB No. 51". SFAS 160 establishes new accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. Specifically, this statement requires the recognition of a noncontrolling interest as equity in the consolidated financial statements and separate from the parent's equity. In addition, the amount of net income attributable to the noncontrolling interest should be included in consolidated net income on the face of the income statement. SFAS 160 is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2008. Early adoption is prohibited. We are evaluating SFAS 160 and have not yet determined the impact the adoption will have on our consolidated financial statements.

1. Basis of Presentation (Continued)

In December 2007, the FASB issued SFAS 141R, "Business Combinations". Under SFAS 141R, an acquiring entity will be required to recognize all the assets acquired and liabilities assumed in a transaction at the acquisition-date fair value, with limited exceptions, replacing SFAS 141's cost-allocation process. SFAS 141R also includes a substantial number of new disclosure requirements. SFAS 141R is to be applied prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. Early adoption is prohibited. We will adopt SFAS 141R in the first quarter of 2009 and cannot determine the impact SFAS 141R will have on our consolidated financial statements for future business combinations once adopted.

In February 2008, the FASB issued FASB Staff Position FAS 157-2, which defers the effective date of SFAS 157 for nonfinancial assets and liabilities that are recognized or disclosed at fair value in the entity's financial statements on a recurring basis to fiscal years beginning after November 15, 2008, and interim periods within those fiscal years. We are evaluating SFAS 157 as it relates to nonfinancial assets and have not yet determined the impact the adoption will have on our consolidated financial statements.

2. Acquisition of Station Casinos, Inc.

On November 7, 2007, pursuant to the Merger Agreement described in Note 1, approximately 72.2% of the outstanding shares of the Company were acquired for $4.17 billion. In addition, we incurred approximately $52.0 million of direct Merger costs and approximately $60.1 million in capitalized debt issuance costs related to new financings under a new senior secured credit agreement as well as a mortgage loan and related mezzanine financings.

We valued the assets acquired and liabilities assumed based on a third-party business valuation at the date of the Merger. In accordance with the provisions of SFAS 141, to the extent that the purchase price exceeded the fair value of the net identifiable tangible and intangible assets acquired, such excess was allocated to goodwill. We believe that the goodwill arose from our dominance in the local Las Vegas gaming market, the value of the existing workforce and existing management and operating infrastructure. The purchase price allocation is preliminary and will be completed within one year of the Merger as provided under SFAS 141; thus the allocation of the purchase price is subject to refinement and finalization.

	November 7, 2007
	(in millions)
Current assets	$	120
Property and equipment, net		2,753
Intangible assets		1,014
Goodwill		2,924
Other assets		948
Current liabilities assumed		(151	)
Debt assumed		(2,539	)
Other long-term liabilities assumed		(852	)

	$	4,217

Pro Forma Financial Information

The following unaudited pro forma results of operations assume that the Merger occurred on January 1, 2007. This unaudited pro forma information should not be relied upon as being indicative of the results that would have been obtained if the Merger had actually occurred on that date, nor of the results

2. Acquisition of Station Casinos, Inc. (Continued)

that may be reported in the future. The pro forma financial information contains a one-time adjustment of $286.3 million for the immediate vesting of Class B Units.

(amounts in thousands, unaudited)	Three Months Ended March 31, 2007
Net revenue	$	372,438
Operating loss		(200,805	)
Interest expense, net		91,595
Net loss		(202,465	)

3. Goodwill and Other Intangible Assets

During the three months ended March 31, 2008, goodwill decreased approximately $0.1 million as a result of adjustments to the allocation of the Merger purchase price (see Note 2). Goodwill may be further revised as purchase price allocations are refined and finalized.

Intangible assets as of March 31, 2008 and December 31, 2007 are shown on the table below (amounts in thousands).

		Successor
		March 31, 2008							December 31, 2007
				(unaudited)
	Estimated life (years)	Gross Carrying Amount		Accumulated Amortization			Net Carrying Amount		Gross Carrying Amount		Accumulated Amortization			Net Carrying Amount
Brands	Indefinite	$	214,791	$	—		$	214,791	$	214,791	$	—		$	214,791
Customer relationships	25		268,961		(6,715	)		262,246		268,961		(2,473	)		266,488
Management contracts	3-20		521,464		(20,580	)		500,884		521,464		(7,506	)		513,958
Other	1		8,654		(3,437	)		5,217		8,654		(1,274	)		7,380

		$	1,013,870	$	(30,732	)	$	983,138	$	1,013,870	$	(11,253	)	$	1,002,617

The aggregate amortization expense for the three months ended March 31, 2008 for those assets that are amortized under the provisions of SFAS 142 was approximately $19.5 million. There was no amortization expense related to intangible assets recorded in the three months ended March 31, 2007. Estimated annual amortization expense for intangible assets for the years ended December 31, 2009, 2010, 2011, 2012 and 2013 is anticipated to be approximately $67.2 million, $40.0 million, $19.0 million, $21.4 million and $21.7 million respectively. The amount of amortization expense to be recorded in future periods is subject to change as the purchase price allocations are refined and finalized.

4. Investments in Joint Ventures

We have various investments in 50% owned joint ventures, and a 6.7% investment in a joint venture that owns the Palms Casino Resort in Las Vegas, Nevada, that are accounted for under the equity method. Under the equity method, original investments are recorded at cost and adjusted by our share of earnings, losses and distributions from the joint ventures. The investment balance also includes any fair value adjustments recorded in conjunction with the Merger described in Note 1. Investments in joint ventures consist of the following (amounts in thousands):

		Successor
		March 31, 2008		December 31, 2007
		(unaudited)
Aliante Station (50.0%)		$	159,302	$	134,949
Rancho Road (50.0%)			54,696		49,958
Green Valley Ranch (50.0%) (a)			27,088		143,599
Palms Casino Resort (6.7%)			25,389		25,921
Barley's (50.0%)			22,567		22,482
Renata's (50.0%)			12,196		11,832
The Greens (50.0%)			3,159		3,212

	Investments in joint ventures	$	304,397	$	391,953

(a): Effective January 1, 2008, Green Valley Ranch distributed to its member, or cancelled, as applicable, the $200 million in notes receivable and the related accrued interest thereon. As a result, the $100 million due to unconsolidated affiliate and related accrued interest recorded on our consolidated balance sheet at December 31, 2007 was eliminated during the three months ended March 31, 2008 with a corresponding reduction in our investment in Green Valley Ranch.

As a result of the Merger, our investment in joint ventures balance differs from our ownership equity in these investments by $217.3 million due to the allocation of the purchase price to these investment accounts. As the purchase price allocation is preliminary, the amounts allocated to our investments in joint ventures are subject to change as the purchase price allocations are refined and finalized.

Summarized balance sheet information for the joint ventures is as follows (amounts in thousands):

	Successor
	March 31, 2008		December 31, 2007
	(unaudited)
Current assets	$	89,184	$	103,919
Property and equipment and other assets, net		1,795,540		1,694,345
Current liabilities		131,553		123,478
Long-term debt and other liabilities		1,372,367		1,318,904
Shareholders' equity		380,804		355,882

4. Investments in Joint Ventures (Continued)

Summarized results of operations for the joint ventures are as follows (amounts in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007
Net revenues		$	132,083		$	138,477
Operating costs and expenses			109,438			106,404

	Operating income		22,645			32,073
Interest and other expense, net			(30,466	)		(16,809	)

	Net (loss) income	$	(7,821	)	$	15,264

The operating earnings from these joint ventures are shown as a separate line item on our condensed consolidated statements of operations after operating income. In addition, interest and other expense from joint ventures are shown as a separate component under other expense on our condensed consolidated statements of operations. The following table identifies the total equity earnings from joint ventures (amounts in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007
Operating earnings from joint ventures		$	8,526		$	11,527
Interest and other expense from joint ventures			(9,254	)		(5,909	)

	Net (loss) earnings from joint ventures	$	(728	)	$	5,618

5. Long-term Debt

Long-term debt consists of the following (amounts in thousands):

		Successor
		March 31, 2008			December 31, 2007
		(unaudited)
CMBS mortgage loan and related mezzanine financings, due November 12, 2009, interest at a margin above LIBOR (6.8% and 7.8% at March 31, 2008 and December 31, 2007, respectively)		$	2,475,000		$	2,475,000
Land Loan, $250 million limit at March 31, 2008, due February 7, 2011, interest at a margin above LIBOR or the Alternate Base Rate (7.4% at March 31, 2008)			200,000			—
Revolver, $650 million limit at March 31, 2008, due August 7, 2012, interest at a margin above the Alternate Base Rate or the Eurodollar Rate (6.7% and 8.2% at March 31, 2008 and December 31, 2007, respectively)			191,000			293,100
Term Loan, due August 7, 2012, interest at a margin above the Alternate Base Rate or the Eurodollar Rate (6.4% and 8.0% at March 31, 2008 and December 31, 2007, respectively)			249,375			250,000
6% senior notes, interest payable semi-annually, principal due April 1, 2012, callable April 1, 2008, net of unamortized discount of $24.1 million and $25.4 million at March 31, 2008 and December 31, 2007, respectively			425,884			424,608
7³/4% senior notes, interest payable semi-annually, principal due August 15, 2016, callable August 15, 2011, net of unamortized discount of $8.4 million and $8.5 million at March 31, 2008 and December 31, 2007, respectively			391,627			391,455
6¹/2% senior subordinated notes, interest payable semi-annually, principal due February 1, 2014, callable February 1, 2009, net of unamortized discount of $53.2 million and $54.9 million at March 31, 2008 and December 31, 2007, respectively			396,774			395,093
6⁷/8% senior subordinated notes, interest payable semi-annually, principal due March 1, 2016, callable March 1, 2009, net of unamortized discount of $90.9 million and $92.8 million at March 31, 2008 and December 31, 2007, respectively			609,120			607,214
6⁵/8% senior subordinated notes, interest payable semi-annually, principal due March 15, 2018, callable March 15, 2011, net of unamortized discount of $47.3 million and $48.1 million at March 31, 2008 and December 31, 2007, respectively			252,663			251,937
Other long-term debt, weighted-average interest of 7.9% and 8.0% at March 31, 2008 and December 31, 2007, respectively, maturity dates ranging from 2009 to 2026			82,777			82,742

	Total long-term debt		5,274,220			5,171,149
Current portion of long-term debt			(6,287	)		(2,610	)
Market value of interest rate swaps			133,658			73,275

	Total long-term debt, net	$	5,401,591		$	5,241,814

CMBS Loans

5. Long-term Debt (Continued)

related mezzanine financings in the aggregate principal amount of $2.475 billion (the "CMBS Loans"), for the purpose of financing the Merger consideration payable to the Company's stockholders upon consummation of the Merger and paying fees and expenses incurred in connection with the Merger.

The CMBS Loans are collateralized by substantially all fee and leasehold real property comprising Palace Station, Boulder Station, Sunset Station and Red Rock (collectively, the "CMBS Property") and will mature in November 2009, subject to three one-year extensions as defined in the CMBS Loans. Interest on the CMBS Loans is equal to one-month LIBOR plus 2.3% per annum. The CMBS Borrower is required to hedge the LIBOR interest rate such that it will not exceed 5.5% on a blended basis. As a result, the CMBS Borrower purchased an interest rate cap with a $1.11 billion notional amount and a strike price of 5.77% for an initial premium of $3.6 million. This premium is being amortized to interest expense ratably over the term of the interest rate cap. In addition, the CMBS Borrower entered into an interest rate swap with a notional amount of $1.36 billion in which the borrower pays a fixed rate of approximately 5.3% and receives one-month LIBOR, terminating in November 2012 (see "Interest Rate Swaps" below).

The loan documents for the CMBS Loans (the "CMBS Loan Documents") contain a number of covenants that, among other things, restrict, subject to certain exceptions, each wholly-owned unrestricted direct and indirect subsidiary's ability to incur additional indebtedness; create liens on assets; engage in mergers or consolidations; sell assets; pay dividends or make distributions; make investments, loans or advances; make certain acquisitions; engage in certain transactions with affiliates; and fundamentally change its business. In addition, the CMBS Loan Documents require the CMBS Borrower to maintain a minimum lease coverage ratio and also contain certain customary affirmative covenants and certain events of default. The CMBS Loan Documents also require the CMBS Borrower to fund specific reserves as defined in the CMBS Loan Documents.

Land Loan

On February 7, 2008, a wholly-owned, indirect subsidiary of Station, as borrower, entered into a $250 million delay-draw term loan which is collateralized by land located on the southern end of Las Vegas Boulevard at Cactus Avenue and land surrounding Wild Wild West in Las Vegas, Nevada (the "Land Loan"). The Land Loan contains no principal amortization and matures on February 7, 2011. At closing, $200 million was drawn and the proceeds were used to fund a distribution to Station, establish an interest reserve and pay transaction expenses. The borrower has the option to request an additional $50 million under the Land Loan to purchase certain real property. Borrowings under the Land Loan bear interest at LIBOR plus 3.5% per annum or at the Alternate Base Rate (as defined in the Land Loan) plus 2.5% per annum, at the borrower's request. The borrower is required to hedge the interest rate such that it will not exceed 6.5%. As a result, the borrower entered into an interest rate swap with a notional amount of $200 million in which the borrower pays a fixed rate of 3.0% and receives one-month LIBOR, terminating in February 2011 (see "Interest Rate Swaps" below).

The Land Loan contains a number of covenants that, among other things, restrict, subject to certain exceptions, the borrower's ability to incur additional indebtedness; create liens on assets; engage in mergers or consolidations; sell assets; pay dividends or make distributions; make investments, loans or advances; make certain acquisitions; engage in certain transactions with affiliates; and fundamentally change its business. In addition, the Land Loan requires the borrower to maintain a loan-to-value ratio of no more than 40% and also contains customary affirmative covenants and certain events of default.

Credit Agreement

5. Long-term Debt (Continued)

and a $250 million term loan (the "Term Loan"). The maturity date for both the Term Loan and the Revolver is August 7, 2012 subject to a single 15-month extension (as further defined in the Credit Agreement). The Term Loan requires quarterly principal payments of $625,000 beginning March 31, 2008. The Revolver contains no principal amortization. Initial borrowings, including full funding of the Term Loan and $260 million drawn on the Revolver for an aggregate amount of $510 million, were used to repay a portion of the outstanding amounts under the previous revolving facility. Borrowings under the Credit Agreement bear interest at a margin above the Alternate Base Rate or the Eurodollar Rate (each as defined in the Credit Agreement), as selected by us. The margin above such rates, and the fee on the unfunded portions of the Revolver, will vary quarterly based on our combined consolidated ratio of debt to Adjusted EBITDA (as defined in the Credit Agreement). As of March 31, 2008, the borrower's margin above the Eurodollar Rate on borrowings under the Credit Agreement was 2.50%. The maximum margin for Eurodollar Rate borrowings is 2.50%. The maximum margin for Alternate Base Rate borrowings is 1.50%. As of March 31, 2008, the fee for the unfunded portion of the Revolver was 0.375%.

The Credit Agreement contains certain financial and other covenants. These include a minimum interest coverage ratio of 1.50 to 1.00 beginning March 31, 2008 through June 30, 2008, which increases to 1.75 to 1.00 on September 30, 2008 through December 31, 2008, to 2.00 to 1.00 on March 31, 2009 through December 31, 2009, to 2.25 to 1.00 on March 31, 2010 through December 31, 2010, and to 2.50 to 1.00 on March 31, 2011. As of March 31, 2008, the interest coverage ratio was 2.02 to 1.00. The Credit Agreement has financial covenants that require that the maximum total debt to Adjusted EBITDA (as defined in the Credit Agreement) ratio can be no more than 8.50 to 1.00 beginning March 31, 2008, which reduces to 8.25 to 1.00 on June 30, 2008, to 8.00 to 1.00 on September 30, 2008, to 7.75 to 1.00 on December 31, 2008, to 7.50 to 1.00 on March 31, 2009, to 7.25 to 1.00 on June 30, 2009, to 7.00 to 1.00 on September 30, 2009, to 6.75 to 1.00 on December 31, 2009, to 6.25 to 1.00 on March 31, 2010, to 6.00 to 1.00 on June 30, 2010 through December 31, 2010, to 5.75 on March 31, 2011, to 5.5 to 1.00 on June 30, 2011 through September 30, 2011, and to 5.00 to 1.00 on December 31, 2011. In addition, total senior secured debt to Adjusted EBITDA (as defined in the Credit Agreement) can be no more than 2.25 to 1.00 beginning March 31, 2008 through June, 30, 2008 and reduces to 2.00 to 1.00 on September 30, 2008. The covenants limit our ability to incur additional indebtedness; issue preferred stock or provide guarantees; create liens on assets; engage in mergers or consolidations; sell assets; pay dividends, make distributions or repurchase our own capital stock; make investments, loans or advances; make certain acquisitions; engage in certain transactions with affiliates; capital expenditures and fundamentally change our business. As of March 31, 2008, our total debt to Adjusted EBITDA and total senior secured debt to Adjusted EBITDA was 7.07 to 1.00 and 1.34 to 1.00, respectively. All obligations under the Credit Agreement are secured by substantially all of our assets with the exception of the collateral securing the CMBS Loans, the Land Loan and other excluded items as described in the Credit Agreement.

Senior and Senior Subordinated Notes

The indentures (the "Indentures") governing our senior and senior subordinated notes (the "Notes") contain certain customary financial and other covenants, which limit our and our subsidiaries' ability to incur additional debt. At March 31, 2008, our Consolidated Coverage Ratio (as defined in the Indentures) was 1.88 to 1.00. The Indentures provide that we may not incur additional indebtedness, other than specified types of indebtedness, unless the Consolidated Coverage Ratio is at least 2.00 to 1.00. As a result, the covenant limits our ability to incur additional indebtedness for borrowings under the Revolver not to exceed the greater of $200 million or 1.5 times Operating Cash Flow (as defined in the Indentures) for the four most recent quarters, plus $15 million. The Indentures also give the holders of the Notes the right to require us to purchase the Notes at 101% of the principal amount of the Notes plus accrued interest

5. Long-term Debt (Continued)

thereon upon a Change of Control and Rating Decline (each as defined in the Indentures) of the Company. In addition, the indenture governing the senior notes contains a limitation on liens we can incur.

Corporate Office Lease

In November 2007, we entered into a sale-leaseback agreement related to our corporate office building with a third-party real estate investment firm. We sold the corporate office building for approximately $70 million and subsequently entered into a lease with the purchaser for an initial period of 20 years with four options to extend the lease, each option for an extension of five years. Annual lease payments for the first year will be approximately $5.3 million and will increase approximately 1.2% annually to approximately $6.7 million in the final year of the original term. The lease also contains two options for us to repurchase the corporate office building, one option at the end of the fifth year of the lease term and a second option at the end of the tenth year of the lease term, which is considered continuing involvement under SFAS 98, "Accounting for Leases; Sale-Leaseback Transactions Involving Real Estate; Sales-Type Leases of Real Estate; Definition of Lease Term; Initial Direct Costs of Direct Financing Leases". Because of this continuing involvement, the sale-leaseback transaction is being accounted for as a financing transaction, with the sales proceeds recorded as a liability and the lease payments recorded as interest expense. In addition, we continue to include the corporate office building within property and equipment, net on our condensed consolidated balance sheets and it continues to be depreciated. During the three months ended March 31, 2008, we recorded approximately $1.3 million of interest expense related to this lease. Future minimum lease payments related to this lease are approximately $5.3 million, $5.4 million, $5.5 million, $5.5 million and $5.6 million for the years ended December 31, 2009, 2010, 2011, 2012 and 2013, respectively.

Interest Rate Swaps

We have entered into various interest rate swaps with members of our bank group to manage interest expense. As of March 31, 2008, we had two floating-to-fixed rate interest rate swaps, one with a $1.36 billion notional amount terminating in November 2012 and one with a $200 million notional amount terminating in February 2011, that qualified and were designated as cash flow hedges, resulting in the effective portion of the gain or loss reported as a component of other comprehensive income (loss) with an offsetting adjustment to the carrying value of the related debt. These cash flow hedges convert a portion of our floating-rate debt to a fixed rate based on one-month LIBOR rates. We paid a weighted-average fixed rate of 5.0% and received one-month LIBOR which approximated 2.9% at March 31, 2008.

In addition, in January 2008 we entered into a floating-to-fixed rate interest rate swap with a notional amount of $250 million terminating in January 2011, that converts a portion of our floating-rate debt to a fixed rate based on one-month LIBOR rates. As of March 31, 2008, we paid a fixed rate of 3.0% and received one-month LIBOR which approximated 2.6%. This interest rate swap is not designated as a hedging instrument and as a result, gains or losses resulting from changes in fair value of this swap are recognized in earnings in the period of the change. For the three months ended March 31, 2008, we recorded a $2.4 million loss on the condensed consolidated statement of operations related to the change in fair value of this interest rate swap.

The difference between amounts received and paid under our interest rate swap agreements, as well as any costs or fees, is recorded as a reduction of, or an addition to, interest expense as incurred over the life of the interest rate swaps. The net effect of the interest rate swaps resulted in an increase in interest expense of approximately $5.1 million for the three months ended March 31, 2008 and a reduction of interest expense of approximately $186,000 for the three months ended March 31, 2007.

6. Due to Unconsolidated Affiliate

On February 16, 2007, Green Valley Ranch entered into a new $830 million credit facility (the "Green Valley Facility"). Proceeds from the Green Valley Facility were used to repay outstanding borrowings under the previous revolving facility and term loan, as well as fund an equal distribution to the members which was comprised of approximately $185 million in cash distributions to each member and a $100 million loan to each member or a wholly-owned subsidiary of such member, in each case evidenced by a promissory note from each member for total distributions of approximately $570 million. Effective January 1, 2008, Green Valley Ranch distributed to its member, or cancelled, as applicable, the $200 million in notes receivable, and the related accrued interest thereon. As a result, the $100 million due to unconsolidated affiliate and related accrued interest recorded on our consolidated balance sheet at December 31, 2007 was eliminated during the three months ended March 31, 2008 with a corresponding reduction in our investments in joint ventures.

7. Stockholders' Equity

Comprehensive Income

SFAS 130, "Reporting Comprehensive Income", requires companies to disclose other comprehensive income and the components of such income. Comprehensive income is the total of net income and all other nonstockholder changes in equity. We have recorded the mark-to-market valuation of our interest rate swaps, our 50% interest in the mark-to-market valuation of the interest rate swaps at Green Valley Ranch and Aliante Station, as well as the unrealized gain on available-for-sale securities and the amortization of the unrecognized pension and postretirement benefit plan liabilities as other comprehensive (loss) income. Comprehensive (loss) income was computed as follows (amounts in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007
Net (loss) income		$	(29,737	)	$	23,050
Mark-to-market valuation of interest rate swaps, net of tax			(47,300	)		(3,193	)
Unrealized loss on available-for-sale securities, net of tax			(260	)		—
Amortization of unrecognized pension and postretirement benefit plan liabilities, net of tax			18			153

	Comprehensive (loss) income	$	(77,279	)	$	20,010

7. Stockholder's Equity (Continued)

The components of accumulated other comprehensive loss are as follows (amounts in thousands):

		Successor
		March 31, 2008			December 31, 2007
		(unaudited)
Mark-to-market valuation of interest rate swaps, net of tax		$	(101,462	)	$	(54,162	)
Unrealized gain on available-for-sale securities, net of tax			228			488
Amortization of unrecognized pension and postretirement benefit plan liabilities, net of tax			(5,974	)		(5,992	)

	Accumulated other comprehensive loss	$	(107,208	)	$	(59,666	)

Treasury Stock

During the three months ended March 31, 2007, we repurchased 22,612 shares of our common stock for approximately $1.9 million, which were withheld to offset tax withholding obligations that occur upon vesting of restricted shares. As of November 7, 2007 upon the consummation of the Merger, all treasury stock was cancelled and retired.

Dividends

During the three months ended March 31, 2007, we paid a quarterly cash dividend of $0.2875 per share to stockholders of record on February 26, 2007 for approximately $16.5 million. Subsequent to the Merger on November 7, 2007, no dividends have been declared.

8. Share-Based Compensation

Successor

Long-term incentive compensation is provided in the form of non-voting limited liability company membership interests in FCP and Fertitta Partners pursuant to the Second Amended and Restated Operating Agreement of Fertitta Colony Partners and the Amended and Restated Operating Agreement of Fertitta Partners, respectively (collectively the "Operating Agreements"). The Operating Agreements allow certain officers and members of management of the Company to participate in the long-term growth and financial success of the Company through indirect ownership of Class B Units and direct ownership of Class C Units in FCP and Fertitta Partners. The purpose is to promote the Company's long-term growth and profitability by aligning the interests of the Company's management with the interests of the owners of the Company and by encouraging management retention. Upon the consummation of the Merger, certain members of management were awarded indirect ownership of Class B Units and direct ownership of Class C Units in each of FCP and Fertitta Partners. The Class C Units include certain call and put provisions as defined in the Operating Agreements, such that under certain circumstances, within ninety days after termination, in certain cases, of the Class C Unit holder's employment with Station, FCP and Fertitta Partners can call the Class C Units and the employee that holds the Class C Units can put the Class C Units back to FCP and Fertitta Partners. The conditions that could result in the employee putting the Class C Units back to FCP and Fertitta Partners are either contingent or within the control of the issuer.

At March 31, 2008, we had unearned share-based compensation of approximately $64.0 million associated with Class B Units and Class C Units which is expected to be recognized over a period of approximately 4.8 years. During the three months ended March 31, 2008, 122,576 Class B Units were

8. Share-Based Compensation (Continued)

granted with a weighted-average grant-date fair value of $36.96, which vest equally over five years. In addition, 163,098 Class C Units were granted in the three months ended March 31, 2008 with a weighted average grant-date fair value of $20.50. The Class C Units vest equally over five years.

The Company determined the fair value associated with these units based on a third-party valuation taking into account the estimated enterprise value of the Company, expected term of the units of six years, expected volatility of 30% based on expected volatility of equity instruments of comparable companies and a risk free rate of 3.58%. The estimated fair value of the units, less an assumed forfeiture rate, will be recognized in expense on a straight-line basis over the requisite service periods of the awards.

Predecessor

Prior to the Merger, the stockholders approved and we adopted the 2005 Stock Compensation Plan (the "2005 Plan") which provided for grants of stock options, stock appreciation rights, restricted stock, restricted stock units and other stock awards (collectively, the "Awards"). Individuals eligible to receive Awards under the 2005 Plan included employees, directors and independent contractors of the Company. New shares were issued upon option exercise or restricted stock awards. Each share grant subject to an award of restricted stock, restricted stock unit or other stock award would reduce the shares available for grant by 1.9 shares. Pursuant to the Merger discussed in Note 1, each share of Station restricted stock vested and was cancelled and converted into the right to receive $90.00 in cash, without interest and less any applicable payroll withholding taxes, while each stock option outstanding under Station's stock plans was cancelled and extinguished, and the holder of any such stock option was entitled to receive an amount in cash equal to the product of (i) the number of shares of Station common stock subject to such stock option and (ii) the excess, if any, of $90.00 over the exercise price per share of such stock option, without interest and less any applicable payroll withholding taxes. The predecessor share-based compensation plans were discontinued in connection with the Merger.

The intrinsic value of a stock option is the amount by which the market value of the underlying stock exceeds the exercise price of the stock option. Total intrinsic value of stock options exercised for the three months ended March 31, 2007 was $3.3 million. The total fair value of restricted shares that vested for the three months ended March 31, 2007 was $21.0 million.

We received a tax deduction for certain stock option exercises during the period the options are exercised, generally for the excess of the market price over the exercise price of the options. For the three months ended March 31, 2007, we reported $1.2 million of excess tax benefit.

8. Share-Based Compensation (Continued)

The following table represents where reported share-based compensation expense was classified in the accompanying condensed consolidated statements of operations (amounts in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007
	Casino	$	160		$	93
	Room		22			—
	Selling, general and administrative		616			758
	Corporate		1,693			4,039
	Development		724			547
	Preopening		145			66
	Earnings from joint ventures		11			—

Total share-based compensation			3,371			5,503
	Tax benefit		(1,180	)		(1,926	)

Total share-based compensation, net of tax		$	2,191		$	3,577

9. Future Development

Las Vegas Development

Aliante Station

In December 2005, we entered into an agreement with the Greenspun Corporation to develop Aliante Station, a hotel and casino in the Aliante master-planned community located in North Las Vegas, Nevada. We are developing and will manage the facility, to be located on a gaming-entitled 40-acre site on the northeast corner of Interstate 215 and Aliante Parkway, which was contributed by the Greenspun Corporation for their 50% ownership in the joint venture. We will receive a management fee equal to 2% of the property's revenues and approximately 5% of EBITDA. The first phase of Aliante Station is expected to include a hotel, casino, multiple full-service restaurants and a multi-screen movie theater complex. Construction on Aliante Station began in February 2007. Pursuant to the terms of the agreement, in January 2006, we contributed a 54-acre site located on Losee Road in North Las Vegas, Nevada, as well as approximately $2.2 million, for our 50% ownership in the joint venture.

In October 2007, we completed financing for Aliante Station (the "Aliante Financing"). The Aliante Financing was completed with a group of banks and provides for borrowings up to $430 million at a margin above the LIBOR rate of up to 325 basis points. The loan requires initial equity contributions from each partner, Station and G.C. Investments, LLC (G.C. Investments, LLC being principally owned by members of the Greenspun family) of $105 million, which had been contributed as of March 31, 2008. The loan also requires equity contributions for a completion guarantee, if necessary, for project costs that exceed $618 million exclusive of land acquisition costs and financing costs. The completion guarantee is a joint and several obligation of each partner, with G.C. Investment, LLC's obligation collateralized.

Rancho Road

9. Future Development (Continued)

joint venture. It is anticipated that the joint venture will develop, construct and manage, pursuant to a master development plan, a mixed-use residential, retail and entertainment project on all or a portion of such property. The timing, cost and scope of the project have yet to be determined. As of March 31, 2008, we have contributed an additional $30.4 million to fund the acquisition of additional property as well as design and development costs.

Native American Development

The Federated Indians of Graton Rancheria

We have entered into Development and Management Agreements with the Federated Indians of Graton Rancheria (the "FIGR"), a federally recognized Native American tribe. Pursuant to those agreements, we will assist the FIGR in developing and operating a gaming and entertainment project to be located in Sonoma County, California. The FIGR selected us to assist them in designing, developing and financing their project and, upon opening, we will manage the facility on behalf of the FIGR. The Management Agreement has a term of seven years from the opening of the facility and we will receive a management fee equal to 24% of the facility's net income. We will also receive a development fee equal to 2% of the cost of the project upon the opening of the facility.

In October 2003, the FIGR entered into a Memorandum of Understanding with the City of Rohnert Park. In August 2005, we purchased 270 acres of land just west of the Rohnert Park city limits in Sonoma County, California. In March 2006, we purchased an additional 4.7 acres adjacent to the previously acquired property. The property purchased is approximately one-quarter mile from Highway 101 and approximately 43 miles from downtown San Francisco. In March 2008, it was determined that approximately 247 acres of the 270-acre site purchased in August 2005 would be taken into trust, with the remaining 23 acres retained by Station. As a result, the estimated cost of the remaining 23 acres was reclassed from Native American development costs to land held for development during the three months ended March 31, 2008. Development of the gaming and entertainment project is subject to certain governmental and regulatory approvals, including, but not limited to, negotiating a gaming compact with the State of California, the DOI accepting a portion of the land into trust on behalf of the FIGR and approval of the Management Agreement by the NIGC. Prior to obtaining third-party financing, we will contribute significant financial support to the project. As of March 31, 2008, we have advanced approximately $133.2 million toward the development of this project, primarily to complete the environmental impact study and secure real estate for the project, which is included on our condensed consolidated balance sheets. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from the FIGR's gaming revenues. In addition, we have agreed to pay approximately $11.3 million upon achieving certain milestones, which will not be reimbursed. As of March 31, 2008, approximately $2.0 million of these payments had been made and were expensed as incurred. The timing and feasibility of the project are dependent upon the receipt of the necessary governmental and regulatory approvals. The Company plans to continue contributing significant financial support to the project, even though there can be no assurances as to when or if the necessary approvals will be obtained.

Gun Lake Tribe

9. Future Development (Continued)

agreed to pay $6.0 million for our 50% interest in MPM, which is payable upon achieving certain milestones and is not reimbursable. As of March 31, 2008, approximately $2.0 million of these payments had been made and were expenses as incurred. An additional $12.0 million in total may be paid by us in years six and seven of the amended and restated Management Agreement, subject to certain contingencies. Under the terms of the amended and restated Development Agreement, we have agreed to arrange financing for the ongoing development costs and construction of the project. As of March 31, 2008, we have advanced approximately $38.8 million toward the development of this project, primarily to complete the environmental assessment and secure real estate for the project, which is included on our condensed consolidated balance sheets. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from Gun Lake's gaming revenues. The amended and restated Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 30% of the project's net income to be paid to MPM. Pursuant to the terms of the MPM Operating Agreement, our portion of the management fee is 50% of the first $24 million of management fees earned, 83% of the next $24 million of management fees and 93% of any management fees in excess of $48 million.

The proposed project will be located on approximately 146 acres on Highway 131 near 129th Avenue, approximately 25 miles north of Kalamazoo, Michigan. As currently contemplated, the project will include slot machines, table games, a buffet and specialty restaurants. Construction of the project includes the conversion of an existing 192,000 square-foot building into the casino and entertainment facility. Development of the gaming and entertainment project and operation of Class III gaming is subject to certain governmental and regulatory approvals, including, but not limited to, the Michigan legislature's ratification of a gaming compact signed by the Governor of the State of Michigan, the DOI taking the land into trust on behalf of Gun Lake and approval of the Management Agreement by the NIGC.

On February 27, 2004, the DOI issued a Finding Of No Significant Impact with respect to the proposed project. On May 13, 2005, the DOI published in the Federal Register a Notice of Final Agency Determination (the "Determination") to take certain land into trust for the benefit of Gun Lake. The publication commenced a thirty-day period in which interested parties could seek judicial review of the Determination. On June 13, 2005, Michigan Gambling Opposition (the "Plaintiffs") filed a complaint (the "Complaint") in the United States District Court, District of Columbia (the "District Court"), seeking declaratory and injunctive relief against the DOI and officials of the DOI. The Complaint seeks judicial review of the Determination. On July 27, 2005, Gun Lake filed a motion to intervene in that lawsuit. On September 1, 2005, the District Court granted Gun Lake's motion to intervene. On January 6, 2006, Gun Lake filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Also on January 6, 2006, the DOI filed a motion to dismiss or, in the alternative, for summary judgment. By May 2006, all responsive pleadings had been filed and the case was ready for consideration by the District Court. On October 27, 2006, the Department of Justice filed a Notice with the District Court indicating that the DOI planned to take the 146-acre site into trust on January 5, 2007, if the Plaintiffs did not seek injunctive relief or failed to persuade the court to issue any relief precluding the DOI from doing so. The DOI subsequently amended that date to March 5, 2007, in order to provide the Court sufficient time to render its decision. The Court set oral arguments on the parties' motions to dismiss or, in the alternative, for summary judgment for November 29, 2006. Oral arguments were heard on that date. On February 23, 2007, the District Court issued its decision in favor of the DOI and Gun Lake, finding that there were no facts which would entitle the Plaintiffs to any relief on the four issues raised in the Complaint, and granted the parties' motion to dismiss or, in the alternative for summary judgment (the "Dispositive Motions"). On March 1, 2007, the Plaintiffs filed a motion for stay pending appeal with the District Court. On March 5, 2007, the District Court granted the Plaintiffs' motion for stay pending appeal, thereby precluding the DOI from taking the site into trust for the benefit of Gun Lake until the District Court's decision granting the Dispositive Motions has been reviewed on appeal. On March 22, 2007, the Plaintiffs filed a notice of appeal of the District Court's decision granting the Dispositive Motions with the United States Court of

9. Future Development (Continued)

Appeals for the District of Columbia Circuit (the "Court of Appeals"). On May 21, 2007, the Plaintiffs filed their appellate brief. On July 6, 2007, the DOI and Gun Lake filed their responsive briefs. On July 30, 2007, the Plaintiffs filed their reply brief. Oral arguments were heard on October 19, 2007. On April 29, 2008, the Court of Appeals affirmed the District Court's dismissal of the lawsuit filed by the Plaintiffs. Unless the Plaintiffs petition for a rehearing or rehearing en banc of the Court of Appeals' decision or otherwise obtain a stay of the Court of Appeals' decision, the DOI will be free to take the land into trust, which is necessary for Gun Lake to commence construction of its proposed gaming and entertainment project on the site. It is anticipated that the Plaintiffs will petition for a rehearing or rehearing en banc of the Court of Appeals' decision or file a petition for certiorari seeking review of the Court of Appeals' decision by the United States Supreme Court. As with all litigation, no assurances can be provided as to the outcome of this lawsuit.

On March 9, 2007, Gun Lake and the State of Michigan entered into a tribal-state Class III gaming compact. The compact is subject to approval by the Michigan Legislature and, if approved, will regulate gaming at Gun Lake's proposed gaming and entertainment project to be developed on the site. On August 8, 2007, the Michigan House of Representatives ratified the compact. No assurances can be provided as to whether the Michigan Senate will approve the compact. Prior to obtaining third-party financing, we will contribute significant financial support to the project. The timing of this type of project is difficult to predict and is dependent upon the receipt of the necessary governmental and regulatory approvals. There can be no assurances when or if these approvals will be obtained.

Mechoopda Indian Tribe

We have entered into Development and Management Agreements with the Mechoopda Indian Tribe of Chico Rancheria, California (the "MITCR"), a federally recognized Native American tribe. Pursuant to those agreements, we will assist the MITCR in developing and operating a gaming and entertainment facility to be located on a portion of an approximately 650-acre site in Butte County, California, at the intersection of State Route 149 and Highway 99, approximately 10 miles southeast of Chico, California and 80 miles north of Sacramento, California. Under the terms of the Development Agreement, we have agreed to arrange the financing for the ongoing development costs and construction of the facility. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from the MITCR's gaming revenues. As of March 31, 2008, we have advanced approximately $10.0 million toward the development of this project, primarily to complete the environmental assessment and secure real estate for the project, which is included on our condensed consolidated balance sheets. In addition, we have agreed to pay approximately $2.2 million of payments upon achieving certain milestones, which will not be reimbursed. As of March 31, 2008, $50,000 of these payments had been made and were expensed as incurred. The Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 24% of the facility's net income. As currently contemplated, the facility will include slot machines, table games and dining and entertainment amenities. Development of the facility is subject to certain governmental and regulatory approvals, including, but not limited to, negotiating a gaming compact with the State of California, the DOI accepting land into trust on behalf of the MITCR and approval of the Management Agreement by the NIGC. Prior to obtaining third-party financing, we will contribute significant financial support to the project. The timing of this type of project is difficult to predict and is dependent upon the receipt of the necessary governmental and regulatory approvals. There can be no assurances when or if these approvals will be obtained.

North Fork Rancheria of Mono Indian Tribe

We have entered into Development and Management Agreements with the North Fork Rancheria of Mono Indians (the "Mono"), a federally recognized Native American tribe located near Fresno,

9. Future Development (Continued)

California. Pursuant to those agreements, we will assist the Mono in developing and operating a gaming and entertainment facility to be located in Madera County, California. We have purchased, for the benefit of the Mono, a 305-acre parcel of land located on Highway 99 north of the city of Madera. Under the terms of the Development Agreement, we have agreed to arrange the financing for the ongoing development costs and construction of the facility. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from the Mono's gaming revenues. As of March 31, 2008, we have advanced approximately $12.6 million toward the development of this project, primarily to complete the environmental impact study and secure real estate for the project, which is included on our condensed consolidated balance sheets. In addition, we have agreed to pay approximately $1.3 million of payments upon achieving certain milestones, which will not be reimbursed and will be expensed as incurred. As of March 31, 2008, none of these payments had been made. The Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 24% of the facility's net income. As currently contemplated, the facility will include slot machines, table games, restaurants, a hotel and entertainment amenities. Development of the gaming and entertainment project is subject to certain governmental and regulatory approvals, including, but not limited to, negotiating a gaming compact with the State of California, the DOI accepting the land into trust on behalf of the Mono and approval of the Management Agreement by the NIGC.

On April 28, 2008, the Mono and the State of California entered into a tribal-state Class III gaming compact. The compact is subject to approval by the California Legislature and, if approved, will regulate gaming at the Mono's proposed gaming and entertainment project to be developed on the site. No assurances can be provided as to whether the California Legislature will approve the compact. Prior to obtaining third-party financing, we will contribute significant financial support to the project. The timing of this type of project is difficult to predict, and is dependent upon the receipt of the necessary governmental and regulatory approvals. There can be no assurances when or if these approvals will be obtained.

Land Held for Development

As of March 31, 2008, we had $1.02 billion of land held for development that consists primarily of eight sites that are owned or leased, which consists of 354 acres in the Las Vegas valley, 171 acres in the northern California and 203 acres in Reno, Nevada. The primary gaming-entitled land that we own in the Las Vegas valley consists of 72 acres of land (106 acres including those leased or under contract) on which the Wild Wild West is located and the surrounding area, 68 acres located at the intersection of Durango Road and the Southern Beltway/Interstate 215 in the southwest area of Las Vegas, 49 acres also located in southwest Las Vegas at the intersection of Flamingo Road and Interstate 215, 45 acres in the master-planned community of Inspirada located in Henderson, Nevada, 61 acres located on the southern end of Las Vegas Boulevard at Cactus Avenue of which we lease and have an option to purchase 2.5 acres and 30 acres on Boulder Highway at the site formerly known as the Castaways Hotel Casino and Bowling Center.

In 2003, we exercised our option to purchase the 19-acre parcel of leased land on which Wild Wild West is located which was to occur in July 2005 at a purchase price of approximately $36 million. We have extended the date for the close of escrow to no later than January 2009. No amounts related to this purchase option have been recorded on our condensed consolidated balance sheets at March 31, 2008 and December 31, 2007.

Our decision whether to proceed with any new gaming or development opportunity is dependent upon future economic and regulatory factors, the availability of acceptable financing and competitive and strategic considerations. As many of these considerations are beyond our control, no assurances can be made that we will be able to proceed with any particular project.

10. Fair Value Measurements

During the three months ended March 31, 2008, we adopted SFAS 159, "The Fair Value Option for Financial Assets and Financial Liabilities—Including an amendment of FASB Statement No. 115", and have not made any fair value elections with respect to any eligible assets or liabilities as permitted under the provisions of SFAS 159 to date. We also adopted SFAS 157, "Fair Value Measurements" during the three months ended March 31, 2008, for financial and nonfinancial assets and liabilities measured on a recurring basis. We currently do not have any nonfinancial assets or liabilities measured at fair value on a recurring basis. There was no impact to the condensed consolidated financial statements upon adoption. SFAS 157 defines fair value, establishes a framework for measuring fair value and expands disclosure about fair value measurements. SFAS 157 does not require any new fair value measurements, but rather applies to other accounting pronouncements that require or permit fair value measurements. This standard utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three levels. Fair values determined by Level 1 inputs utilize quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Level 2 inputs include inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs include quoted prices for similar assets and liabilities in active markets, and inputs other than quoted prices that are observable for the asset or liability, such as interest rates and yield curves that are observable at commonly quoted intervals. Level 3 inputs are unobservable, and include situations in which there is little, if any, market activity for the asset or liability at the measurement date.

The following table presents information about our financial assets and liabilities measured at fair value on a recurring basis at March 31, 2008, and indicates the fair value hierarchy of the valuation techniques utilized to determine such fair value (amounts in thousands, unaudited):

		Quoted Prices in Active Markets for Identical Assets (Level 1)		Significant Other Observable Inputs (Level 2)		Significant Unobservable Inputs (Level 3)		Balance at March 31, 2008
Assets
Company-owned life insurance—deferred compensation		$	—	$	22,255	$	—	$	22,255
Deferred compensation assets			9,522		—		—		9,522
Available-for-sale securities			876		—		—		876

	Total assets	$	10,398	$	22,255	$	—	$	32,653

Liabilities
Interest rate swaps		$	—	$	133,658	$	—	$	133,658
Deferred compensation liabilities			29,473		—		—		29,473

	Total liabilities	$	29,473	$	133,658	$	—	$	163,131

The fair values of Company-owned life insurance deferred compensation assets are based on quotes for like instruments with similar credit ratings and terms. The fair values of available-for-sale securities and deferred compensation assets and liabilities are based on quoted prices in active markets. The fair values of interest rate swaps are based on quoted market prices from various banks for similar instruments.

11. Retirement Plans

We have two unfunded defined benefit plans which were adopted on November 30, 1994. The Supplemental Executive Retirement Plan (the "SERP"), is for our Chief Executive Officer and President as sole participants. The Supplemental Management Retirement Plan (the "SMRP"), is for certain key

11. Retirement Plans (Continued)

executives, other than the Chief Executive Officer and President, as selected by the Board of Directors to participate in the SMRP.

On April 17, 2008, the Company executed the third amendment of the Supplemental Executive Retirement Plan and the second amendment of the Supplemental Management Retirement Plan. The amendments increase the Early Retirement Date (as defined in each plan) for participants in the SERP from age 50 to age 60 and participants in the SMRP from age 55 to age 60. In addition, the amendments increase the Normal Retirement Date (as defined in each plan) for participants in both the SERP and SMRP from age 60 to age 65.

The components of the net periodic pension benefit cost related to the SERP and SMRP consist of the following (amounts in thousands, unaudited):

		Successor
		Successor			Predecessor
		Three months ended March 31, 2008			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007
Service cost		$	541		$	512
Interest cost			346			466
Amortization of prior service (credit) cost			(19	)		78
Amortization of actuarial losses			46			159

	Net periodic pension cost	$	914		$	1,215

12. Income Taxes

For the three months ended March 31, 2008 and 2007 our effective tax rate was 27% and 45%, respectively. The effective tax rate for the three months ended March 31, 2007 was significantly higher due to Merger related expenses that were not tax deductible.

13. Commitments and Contingencies

On March 27, 2008, in the matter captioned Sparks Nugget, Inc. vs. State ex rel. Department of Taxation, the Nevada Supreme Court ruled that complimentary meals provided to employees and patrons are not subject to Nevada use tax. On April 15, 2008, the Department of Taxation filed a motion for rehearing of the Supreme Court's decision. The Nevada Supreme Court has yet to rule on that motion. In the event that the Nevada Supreme Court does not reverse its original decision, we believe that we would be entitled to a refund on previously paid use tax on complimentary employee and patron meals, as would other gaming companies with Nevada casinos. No assurances can be provided as to the outcome of the litigation. Accordingly, we have not recorded a receivable related to a refund for previously paid use tax on complimentary employee and patron meals in the accompanying consolidated balance sheet at March 31, 2008.

Item 2.

MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(unaudited)

The following discussion and analysis of our results of operations and financial condition for the three months ended March 31, 2008 and 2007 should be read in conjunction with our audited consolidated financial statements, and the notes to those statements, included in our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007.

Overview

The following table highlights the results of our operations as compared to the prior period (dollars in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007			Percent Change
Net revenues—total		$	352,317		$	372,438		(5.4	)%
	Major Las Vegas Operations(a)		320,390			335,004		(4.4	)%
	Management fees(b)		18,746			24,828		(24.5	)%
	Other operations and corporate(c)		13,181			12,606		4.6	%
Operating income—total		$	59,921		$	92,756		(35.4	)%
	Major Las Vegas Operations(a)		81,252			91,707		(11.4	)%
	Management fees(b)		18,746			24,828		(24.5	)%
	Other operations and corporate(c)		(40,077	)		(23,779	)	(68.5	)%
Cash flows provided by (used in):
	Operating activities	$	(21,405	)	$	130,857		(116.4	)%
	Investing activities		(82,550	)		(43,731	)	(88.8	)%
	Financing activities		91,989			(88,120	)	204.4	%

(a): Includes the wholly-owned properties of Palace Station, Boulder Station, Texas Station, Sunset Station, Santa Fe Station, Red Rock, Fiesta Rancho and Fiesta Henderson.
(b): Includes management fees from Thunder Valley, Green Valley Ranch, Barley's, The Greens and Renata's (since October 22, 2007).
(c): Includes the wholly-owned properties of Wild Wild West, Wildfire, Magic Star, Gold Rush, Lake Mead Lounge and corporate and development expense.

Results of Operations

Consolidated net revenues for the three months ended March 31, 2008 decreased 5.4% to $352.3 million as compared to $372.4 million for the three months ended March 31, 2007. The decrease in net revenues was due primarily to an overall decrease in gaming revenue across the majority of our properties as the result of weakening Las Vegas and U.S. economies. Declining real estate values, rising oil prices, increased unemployment and declining consumer confidence have all precipitated an economic slowdown which has negatively impacted our operations for the first quarter of 2008. Similarly, combined net revenues from our Major Las Vegas Operations decreased 4.4% to $320.4 million for the three months ended March 31, 2008 as compared to $335.0 million for the three months ended March 31, 2007.

Consolidated operating income decreased 35.4% for the three months ended March 31, 2008 as compared to the three months ended March 31, 2007. This decrease is due to the decrease in revenues as a result of the general economic slowdown discussed above, as well as a 42.3% increase in depreciation and amortization expense related primarily to the intangible assets recorded in conjunction with the Merger. Consolidated operating margin decreased to 17.0% for the three months ended March 31, 2008 from 24.9% for the three months ended March 31, 2007 as a result of these factors.

The following table highlights the various sources of our revenues and expenses as compared to the prior periods (dollars in thousands, unaudited):


		Successor			Predecessor
		Three months ended March 31, 2008			Three months ended March 31, 2007			Percent Change
Casino revenues		$	249,442		$	264,695		(5.8	)%
Casino expenses			95,771			95,300		0.5	%
	Margin		61.6	%		64.0	%
Food and beverage revenues		$	60,965		$	61,563		(1.0	)%
Food and beverage expenses			41,686			43,062		(3.2	)%
	Margin		31.6	%		30.1	%
Room revenues		$	30,300		$	30,748		(1.5	)%
Room expenses			10,363			9,416		10.1	%
	Margin		65.8	%		69.4	%
Other revenues		$	19,327		$	17,428		10.9	%
Other expenses			7,316			6,227		17.5	%
Selling, general and administrative expenses		$	63,551		$	61,928		2.6	%
	Percent of net revenues		18.0	%		16.6	%
Corporate expense		$	12,049		$	21,310		(43.5	)%
	Percent of net revenues		3.4	%		5.7	%
Earnings from joint ventures		$	8,526		$	11,527		(26.0	)%

Casino. Casino revenues decreased 5.8% to $249.4 million for the three months ended March 31, 2008 as compared to $264.7 million for the three months ended March 31, 2008. The decrease in casino revenues is primarily due to the general economic slowdown discussed above. As a result, customer visits to our properties decreased during the three months ended March 31, 2008 as compared to the same period in the prior year. Casino expenses increased slightly to $95.8 million for the three months ended March 31, 2008 as compared to $95.3 million for the three months ended March 31, 2007 due to an increase in health insurance benefit costs offset by reduced payroll expense as a result of decreased staffing companywide.

Food and Beverage. Food and beverage revenues decreased 1.0% for the three months ended March 31, 2008 as compared to the same period in the prior year primarily due to several restaurant closings during the quarter as well as reduced hours of operation at various food outlets due to the general economic slowdown discussed above. Food covers for the three months ended March 31, 2008 decreased 12.5% compared to the three months ended March 31, 2007 due these same factors. Food and beverage expenses decreased 3.2% for the three months ended March 31, 2008 as compared to the same period in the prior year due to the decrease in covers and an overall decrease in our food and beverage costs as a result of efficiency efforts, offset by an increase in health insurance benefit costs. The food and beverage operating margin for the three months ended March 31, 2008 increased 1.5 percentage points as compared to the three months ended March 31, 2007 primarily due to the efficiency efforts that have decreased our food and beverage costs. The average guest check increased 8.5% for the three months ended March 31, 2008 as compared to the three months ended March 31, 2007, primarily due to an increase in selected menu prices and the addition of a 200-seat barbeque restaurant at Santa Fe Station in April 2007 and the addition of an Asian-themed full service restaurant at Red Rock in July 2007.

Room. Room revenues decreased 1.5% for the three months ended March 31, 2008 as compared to the three months ended March 31, 2007. Room occupancy decreased to 88% for the three months ended March 31, 2008 as compared to 94% for the three months ended March 31, 2007 due to the general economic slowdown discussed above. The average daily room rate increased 1.5% to $98 for the three months ended March 31, 2008 from $97 in the same three month period in the prior year. This increase is primarily due to a general increase in room rates across our properties, with the exception of Red Rock which experienced a 6.3% decrease in average daily rate while maintaining room occupancy of 90% during both periods due to increased wholesale room sales during the three months ended March 31, 2008. Room expenses increased 10.1% for the three months ended March 31, 2008 as compared to the same period in the prior year due to an increase in expenses related to our focus on brand and revenue management as well as an increase in health insurance benefit costs. Accordingly, room operating margin for the three months ended March 31, 2008 decreased 3.6 percentage points from the three months ended March 31, 2007.

Other. Other revenues primarily include income from gift shops, bowling, entertainment, leased outlets and the spa. Other revenues increased 10.9% to approximately $19.3 million for the three months ended March 31, 2008 as compared to approximately $17.4 million for the three months ended March 31, 2007, primarily due to the opening of a 72-lane bowling center at Red Rock in April 2007.

Management Fees. We manage Thunder Valley on behalf of the United Auburn Indian Community (the "UAIC") and receive a management fee equal to 24% of net income (as defined in the management agreement). In addition, we are the managing partner for Green Valley Ranch, Barley's, The Greens and Renata's and receive a management fee equal to 2% of revenues and approximately 5% of Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA") from Green Valley Ranch and 10% of EBITDA from Barley's, The Greens and Renata's. For the three months ended March 31, 2008, management fees decreased to approximately $18.7 million as compared to $24.8 million for the three months ended March 31, 2007. The decrease is primarily due to an overall decrease in revenues at our managed properties due to the general economic slowdown as discussed above as well as our portion of expenses at Thunder Valley related to California Referendum laws of approximately $1.6 million.

Selling, General and Administrative ("SG&A"). SG&A expenses increased 2.6% for the three months ended March 31, 2008 as compared to the three months ended March 31, 2007 due primarily to an increase in health insurance benefit costs. SG&A as a percentage of net revenues increased to 18.0% for the three months ended March 31, 2008 compared to 16.6% for the same period in the prior year.

Corporate Expense. Corporate expense as a percentage of net revenues decreased to 3.4% for the three months ended March 31, 2008 compared to 5.7% for the three months ended March 31, 2007. For the three months ended March 31, 2008, corporate expense decreased 43.5% to $12.0 million as compared to $21.3 million for the same period in the prior year due to a $2.3 million reduction in share-based compensation expense due to the discontinuation of the prior stock compensation plans upon consummation of the Merger on November 7, 2007, as well as a reduction in corporate incentive compensation. In addition, corporate expense for the three months ended March 31, 2007 included approximately $4.8 million of Merger related expenses.

Development Expense. Development expense includes costs to identify potential gaming opportunities and other development opportunities, which include payroll, travel and legal expenses. Development expenses for the three months ended March 31, 2008 and 2007 were approximately $0.7 million and $1.0 million, respectively.

Depreciation and Amortization. Depreciation and amortization increased 42.3% to approximately $57.2 million for the three months ended March 31, 2008 as compared to $40.2 million for the three months ended March 31, 2007. This increase was due primarily to amortization expense of approximately

$19.5 million during the three months ended March 31, 2008 associated with intangible assets recorded in connection with the Merger.

Preopening Expenses. Preopening expenses for the three months ended March 31, 2008 and 2007 were approximately $2.1 million and $1.2 million, respectively, and related primarily to projects under development.

Lease Termination. During the three months ended March 31, 2008, we recorded approximately $1.5 million to terminate a lease on land adjacent to the current Wild Wild West property. There was no such expense during the three months ended March 31, 2007.

Earnings from Joint Ventures. We own a 50% interest in various joint ventures, including Green Valley Ranch, and a 6.7% interest in a joint venture that owns the Palms Casino Resort. For the three months ended March 31, 2008, our share of earnings from these joint ventures decreased 26.0% to $8.5 million as compared to $11.5 million for the three months ended March 31, 2007. The decrease in earnings from joint ventures is primarily a result of a decrease in operating results at Green Valley Ranch due to the general economic slowdown discussed above.

Interest Expense. Interest expense, net of capitalized interest, increased 72.2% to $97.3 million in the three months ended March 31, 2008 as compared to $56.5 million in the three months ended March 31, 2007. Gross interest expense increased approximately $42.1 million due to an increase in our long-term debt of approximately $1.9 billion from March 31, 2008 to March 31, 2007 as a result of the additional debt incurred in conjunction with the consummation of the Merger, and an increase in our weighted-average cost of debt to approximately 7.8% for the three months ended March 31, 2008 from 7.0% for the three months ended March 31, 2007. The increase in the weighted-average cost of debt is primarily related to a 0.9% increase in our effective interest rate as a result of the fair value adjustments made in connection with the Merger related to our senior and senior subordinated notes. Capitalized interest increased approximately $1.2 million to $6.2 million for the three months ended March 31, 2008 as compared to $5.0 million for the three months ended March 31, 2007, primarily due to an increase in the interest being capitalized on our equity contributions to Aliante Station for construction of the project.

Interest and Other Expense from Joint Ventures. We recorded approximately $9.3 million and $5.9 million in interest and other expense related to our unconsolidated joint ventures for the three months ended March 31, 2008 and 2007, respectively. The increase in interest and other expense is the result of the $830 million credit facility Green Valley Ranch entered into on February 16, 2007 which increased their debt by approximately $586 million.

Change in Fair Value of Derivative Instrument. In January 2008, we entered into an interest rate swap with a notional amount of $250 million that converts a portion of our floating-rate debt to a fixed rate based on one-month LIBOR rates, terminating in January 2011. This interest rate swap is not designated as a hedging instrument; therefore, gains or losses resulting from the change in fair value of this swap are recognized in earnings in the period of the change. We recorded a $2.4 million loss related to the change in fair value of this interest rate swap for the three months ended March 31, 2008. There was no such expense during the three months ended March 31, 2007.

Income Tax Benefit (Provision). For the three months ended March 31, 2008 and 2007 our effective tax rate was 27% and 45%, respectively. The effective tax rate for the three months ended March 31, 2007 was significantly higher due to Merger related expenses that were not tax deductible.

Liquidity and Capital Resources

The following liquidity and capital resources discussion contains certain forward-looking statements with respect to our business, financial condition, results of operations, dispositions, acquisitions, expansion projects and our subsidiaries, which involve risks and uncertainties that cannot be predicted or quantified,

and consequently, actual results may differ materially from those expressed or implied herein. Such risks and uncertainties include, but are not limited to, financial market risks, the ability to maintain existing management, integration of acquisitions, competition within the gaming industry, the cyclical nature of the hotel business and gaming business, economic conditions, regulatory matters and litigation and other risks described in our filings with the Securities and Exchange Commission. In addition, construction projects such as Aliante entail significant risks, including shortages of materials or skilled labor, unforeseen regulatory problems, work stoppages, weather interference, floods and unanticipated cost increases. The anticipated costs and construction periods are based on budgets, conceptual design documents and construction schedule estimates. There can be no assurance that the budgeted costs or construction period will be met. All forward-looking statements are based on our current expectations and projections about future events.

During the three months ended March 31, 2008, we used cash flows from operating activities of approximately $21.4 million. At March 31, 2008, we had total available borrowings of $650 million under the Revolver, which was reduced by borrowings of $191.0 million and various letters of credit totaling approximately $9.6 million, leaving approximately $449.4 million available as of March 31, 2008. We had $84.4 million in cash and cash equivalents as of March 31, 2008, virtually all of which is used for day-to-day operations of our casinos.

During the three months ended March 31, 2008, total capital expenditures were $35.2 million, of which approximately $6.8 million was for the purchase of land and approximately $28.4 million was for maintenance and various other projects.

Our primary cash requirements for the remainder of 2008 are expected to include (i) principal and interest payments on indebtedness, (ii) maintenance and other capital expenditures of approximately $82.0 million, (iii) other strategic land purchases, (iv) equity contributions to joint ventures, (v) payments related to our existing and other potential Native American projects and (vi) payments for design and development costs of future projects.

We believe that cash flows from operations, borrowings under the Credit Agreement, the Land Loan and existing cash balances will be adequate to satisfy our anticipated uses of capital during the remainder of 2008. However, we are continually evaluating our financing needs. Although recent developments in the financial markets have had an adverse effect throughout the U.S. economy, including limited access to capital markets for certain borrowers at reasonable rates, if more attractive financing alternatives or expansion, development or acquisition opportunities become available to us, we may amend our financing plans assuming such financing would be permitted under our existing debt agreements (see "Description of Certain Indebtedness and Capital Stock") and other applicable agreements.

Off-Balance Sheet Arrangements

As of March 31, 2008, we have certain off-balance sheet arrangements that affect our financial condition, liquidity and results of operations, which include interest rate swaps with a notional amount of $1.81 billion (see "Description of Certain Indebtedness and Capital Stock—Interest Rate Swaps"). We also have certain contractual obligations including long-term debt, operating leases, employment contracts, long-term stay on agreements, slot conversion purchases and the purchase of land. There have been no material changes to our contractual obligations previously reported in our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007, other than interest swaps entered into in January and February of 2008 with notional amounts of $250 million and $200 million, respectively.

Future Development—Las Vegas

Aliante Station

In December 2005, we entered into an agreement with the Greenspun Corporation to develop Aliante Station, a hotel and casino in the Aliante master-planned community located in North Las Vegas, Nevada. We are developing and will manage the facility, to be located on a gaming-entitled 40-acre site on the northeast corner of Interstate 215 and Aliante Parkway, which was contributed by the Greenspun Corporation for their 50% ownership in the joint venture. We will receive a management fee equal to 2% of the property's revenues and approximately 5% of EBITDA. The first phase of Aliante Station is expected to include 201 hotel rooms, approximately 2,600 slot machines, multiple full-service restaurants and a multi-screen movie theater complex. Construction on Aliante Station began in February 2007 and is expected to be completed by the end of 2008 at a cost of approximately $675 million. Pursuant to the terms of the agreement, in January 2006, we contributed a 54-acre site located on Losee Road in North Las Vegas, Nevada, as well as approximately $2.2 million, for our 50% ownership in the joint venture. As of March 31, 2008, we have contributed an additional $105 million to fund project costs.

Rancho Road

In December 2006, we entered into an amended and restated operating agreement with FBLV Holding Company LLC ("FBLV"). Pursuant to the amended and restated operating agreement, the parties contributed approximately 52 acres (with approximately 20 acres contributed by us for our 50% ownership and approximately 32 acres contributed by FBLV for their 50% ownership) of improved and unimproved real property located along Rancho Road south of Palace Station in Las Vegas, Nevada into a joint venture. It is anticipated that the joint venture will develop, construct and manage, pursuant to a master development plan, a mixed-use residential, retail and entertainment project on all or a portion of such property. The timing, cost and scope of the project have yet to be determined. As of March 31, 2008, we have contributed an additional $30.4 million to fund the acquisition of additional property as well as design and development costs.

Future Development—Native American

The Federated Indians of Graton Rancheria

approval of the Management Agreement by the NIGC. Prior to obtaining third-party financing, we will contribute significant financial support to the project. As of March 31, 2008, we have advanced approximately $133.2 million toward the development of this project, primarily to complete the environmental impact study and secure real estate for the project, which is included on our condensed consolidated balance sheets. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from the FIGR's gaming revenues. In addition, we have agreed to pay approximately $11.3 million upon achieving certain milestones, which will not be reimbursed. As of March 31, 2008, approximately $2.0 million of these payments had been made and were expensed as incurred. The timing and feasibility of the project are dependent upon the receipt of the necessary governmental and regulatory approvals. The Company plans to continue contributing significant financial support to the project, even though there can be no assurances as to when or if the necessary approvals will be obtained.

Gun Lake Tribe

On November 13, 2003, we agreed to purchase a 50% interest in MPM Enterprises, LLC, a Michigan limited liability company ("MPM"). Concurrently with our agreement to purchase that interest, MPM and the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, a federally recognized Native American tribe commonly referred to as the Gun Lake Tribe ("Gun Lake"), entered into amended Development and Management Agreements, pursuant to which MPM agreed to assist Gun Lake in developing and operating a gaming and entertainment project to be located in Allegan County, Michigan. On July 29, 2005, MPM and Gun Lake entered into amended and restated Development and Management Agreements. We have agreed to pay $6.0 million for our 50% interest in MPM, which is payable upon achieving certain milestones and is not reimbursable. As of March 31, 2008, approximately $2.0 million of these payments had been made and were expensed as incurred. An additional $12.0 million in total may be paid by us in years six and seven of the amended and restated Management Agreement, subject to certain contingencies. Under the terms of the amended and restated Development Agreement, we have agreed to arrange financing for the ongoing development costs and construction of the project. As of March 31, 2008, we have advanced approximately $38.8 million toward the development of this project, primarily to complete the environmental assessment and secure real estate for the project, which is included on our condensed consolidated balance sheets. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from Gun Lake's gaming revenues. The amended and restated Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 30% of the project's net income to be paid to MPM. Pursuant to the terms of the MPM Operating Agreement, our portion of the management fee is 50% of the first $24 million of management fees earned, 83% of the next $24 million of management fees and 93% of any management fees in excess of $48 million.

The proposed project will be located on approximately 146 acres on Highway 131 near 129th Avenue, approximately 25 miles north of Kalamazoo, Michigan. As currently contemplated, the project will include 2,500 slot machines, 75 table games, a buffet and specialty restaurants. Construction of the project includes the conversion of an existing 192,000 square-foot building into the casino and entertainment facility. Development of the gaming and entertainment project and operation of Class III gaming is subject to certain governmental and regulatory approvals, including, but not limited to, the Michigan legislature's ratification of a gaming compact signed by the Governor of the State of Michigan, the DOI taking the land into trust on behalf of Gun Lake and approval of the Management Agreement by the NIGC.

review of the Determination. On July 27, 2005, Gun Lake filed a motion to intervene in that lawsuit. On September 1, 2005, the District Court granted Gun Lake's motion to intervene. On January 6, 2006, Gun Lake filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Also on January 6, 2006, the DOI filed a motion to dismiss or, in the alternative, for summary judgment. By May 2006, all responsive pleadings had been filed and the case was ready for consideration by the District Court. On October 27, 2006, the Department of Justice filed a Notice with the District Court indicating that the DOI planned to take the 146-acre site into trust on January 5, 2007, if the Plaintiffs did not seek injunctive relief or failed to persuade the court to issue any relief precluding the DOI from doing so. The DOI subsequently amended that date to March 5, 2007, in order to provide the Court sufficient time to render its decision. The Court set oral arguments on the parties' motions to dismiss or, in the alternative, for summary judgment for November 29, 2006. Oral arguments were heard on that date. On February 23, 2007, the District Court issued its decision in favor of the DOI and Gun Lake, finding that there were no facts which would entitle the Plaintiffs to any relief on the four issues raised in the Complaint, and granted the parties' motion to dismiss or, in the alternative for summary judgment (the "Dispositive Motions"). On March 1, 2007, the Plaintiffs filed a motion for stay pending appeal with the District Court. On March 5, 2007, the District Court granted the Plaintiffs' motion for stay pending appeal, thereby precluding the DOI from taking the site into trust for the benefit of Gun Lake until the District Court's decision granting the Dispositive Motions has been reviewed on appeal. On March 22, 2007, the Plaintiffs filed a notice of appeal of the District Court's decision granting the Dispositive Motions with the United States Court of Appeals for the District of Columbia Circuit (the "Court of Appeals"). On May 21, 2007, the Plaintiffs filed their appellate brief. On July 6, 2007, the DOI and Gun Lake filed their responsive briefs. On July 30, 2007, the Plaintiffs filed their reply brief. Oral arguments were heard on October 19, 2007. On April 29, 2008, the Court of Appeals affirmed the District Court's dismissal of the lawsuit filed by the Plaintiffs. Unless the Plaintiffs petition for a rehearing or rehearing en banc of the Court of Appeals' decision or otherwise obtain a stay of the Court of Appeals' decision, the DOI will be free to take the land into trust, which is necessary for Gun Lake to commence construction of its proposed gaming and entertainment project on the site. It is anticipated that the Plaintiffs will petition for a rehearing or rehearing en banc of the Court of Appeals' decision or file a petition for certiorari seeking review of the Court of Appeals' decision by the United States Supreme Court. As with all litigation, no assurances can be provided as to the outcome of this lawsuit.

Mechoopda Indian Tribe

the project, which is included on our condensed consolidated balance sheets. In addition, we have agreed to pay approximately $2.2 million of payments upon achieving certain milestones, which will not be reimbursed. As of March 31, 2008, $50,000 of these payments had been made and were expensed as incurred. The Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 24% of the facility's net income. As currently contemplated, the facility will include approximately 700 slot machines, 12 table games and dining and entertainment amenities. Development of the facility is subject to certain governmental and regulatory approvals, including, but not limited to, negotiating a gaming compact with the State of California, the DOI accepting land into trust on behalf of the MITCR and approval of the Management Agreement by the NIGC. Prior to obtaining third-party financing, we will contribute significant financial support to the project. The timing of this type of project is difficult to predict and is dependent upon the receipt of the necessary governmental and regulatory approvals. There can be no assurances when or if these approvals will be obtained.

North Fork Rancheria of Mono Indian Tribe

We have entered into Development and Management Agreements with the North Fork Rancheria of Mono Indians (the "Mono"), a federally recognized Native American tribe located near Fresno, California. Pursuant to those agreements, we will assist the Mono in developing and operating a gaming and entertainment facility to be located in Madera County, California. We have purchased, for the benefit of the Mono, a 305-acre parcel of land located on Highway 99 north of the city of Madera. Under the terms of the Development Agreement, we have agreed to arrange the financing for the ongoing development costs and construction of the facility. Funds advanced by us are expected to be repaid from the proceeds of the project financing or from the Mono's gaming revenues. As of March 31, 2008, we have advanced approximately $12.6 million toward the development of this project, primarily to complete the environmental impact study and secure real estate for the project, which is included on our condensed consolidated balance sheets. In addition, we have agreed to pay approximately $1.3 million of payments upon achieving certain milestones, which will not be reimbursed and will be expensed as incurred. As of March 31, 2008, none of these payments had been made. The Management Agreement has a term of seven years from the opening of the facility and provides for a management fee of 24% of the facility's net income. As currently contemplated, the facility will include approximately 2,000 slot machines, 60 table games, restaurants, a hotel and entertainment amenities. Development of the gaming and entertainment project is subject to certain governmental and regulatory approvals, including, but not limited to, negotiating a gaming compact with the State of California, the DOI accepting the land into trust on behalf of the Mono and approval of the Management Agreement by the NIGC.

Land Acquisition

planned community of Inspirada located in Henderson, Nevada, 61 acres located on the southern end of Las Vegas Boulevard at Cactus Avenue of which we lease and have an option to purchase 2.5 acres and 30 acres on Boulder Highway at the site formerly known as the Castaways Hotel Casino and Bowling Center.

Regulation and Taxes

We are subject to extensive regulation by the Nevada gaming authorities and will be subject to regulation, which may or may not be similar to that in Nevada, by any other jurisdiction in which we may conduct gaming activities in the future, including the NIGC and tribal gaming agency of the UAIC.

The gaming industry represents a significant source of tax revenue, particularly to the State of Nevada and its counties and municipalities. From time to time, various state and federal legislators and officials have proposed changes in tax law, or in the administration of such law, affecting the gaming industry. The Nevada Legislature concluded their 2007 session and there were no increases in taxes affecting the gaming industry. The Nevada Legislature meets again in 2009.

There are several gaming tax increase proposals currently circulating in Nevada. These proposals would take the form of voter referendums, which in Nevada require passage by voters on two separate occasions, the next two being 2008 and 2010. If a proposal to increase the gaming tax is passed in both elections, the earliest the increase could go into effect would be 2011. An increase in the gaming tax could have an adverse effect on our results of operations.

We believe that our recorded tax balances are adequate. However, it is not possible to determine with certainty the likelihood of possible changes in tax law or in the administration of such law, regulations or compact provisions. Such changes, if adopted, could have a material adverse effect on our operating results.

Description of Certain Indebtedness and Capital Stock

CMBS Loans

In connection with the Merger, on November 7, 2007, a number of wholly-owned unrestricted direct and indirect subsidiaries of Station (collectively, the "CMBS Borrower") entered into a mortgage loan and related mezzanine financings in the aggregate principal amount of $2.475 billion (the "CMBS Loans"), for the purpose of financing the Merger consideration payable to the Company's stockholders upon consummation of the Merger and paying fees and expenses incurred in connection with the Merger.

Land Loan

Credit Agreement

In connection with the Merger, Station, as borrower, entered into a new $900 million senior secured credit agreement (the "Credit Agreement") consisting of a $650 million revolving facility (the "Revolver") and a $250 million term loan (the "Term Loan"). The maturity date for both the Term Loan and the Revolver is August 7, 2012 subject to a single 15-month extension (as further defined in the Credit Agreement). The Term Loan requires quarterly principal payments of $625,000 beginning March 31, 2008. The Revolver contains no principal amortization. Initial borrowings, including full funding of the Term Loan and $260 million drawn on the Revolver for an aggregate amount of $510 million, were used to repay a portion of the outstanding amounts under the previous revolving facility. Borrowings under the Credit Agreement bear interest at a margin above the Alternate Base Rate or the Eurodollar Rate (each as defined in the Credit Agreement), as selected by us. The margin above such rates, and the fee on the unfunded portions of the Revolver, will vary quarterly based on our combined consolidated ratio of debt to Adjusted EBITDA (as defined in the Credit Agreement). As of March 31, 2008, the borrower's margin above the Eurodollar Rate on borrowings under the Credit Agreement was 2.50%. The maximum margin for Eurodollar Rate borrowings is 2.50%. The maximum margin for Alternate Base Rate borrowings is 1.50%. As of March 31, 2008, the fee for the unfunded portion of the Revolver was 0.375%.

Senior and Senior Subordinated Notes

Corporate Office Lease

In November 2007, we entered into a sale-leaseback agreement related to our corporate office building with a third-party real estate investment firm. We sold the corporate office building for approximately $70 million and subsequently entered into a lease with the purchaser for an initial period of 20 years with four options to extend the lease, each option for an extension of five years. Annual lease payments for the first year will be approximately $5.3 million and will increase approximately 1.2% annually to approximately $6.7 million in the final year of the original term. The lease also contains two options for us to repurchase the corporate office building, one option at the end of the fifth year of the lease term and a second option at the end of the tenth year of the lease term, which is considered continuing involvement under SFAS 98, "Accounting for Leases; Sale-Leaseback Transactions Involving Real Estate; Sales-Type Leases of Real Estate; Definition of Lease Term; Initial Direct Costs of Direct Financing Leases". Because of this continuing involvement, the sale-leaseback transaction is being accounted for as a financing transaction, with the sales proceeds recorded as a liability and the lease payments recorded as interest expense. In addition, we continue to include the corporate office building within property and equipment, net in our condensed consolidated balance sheets and it continues to be depreciated. During the three months ended March 31, 2008, we recorded approximately $1.3 million of interest expense related to this lease. Future minimum lease payments related to this lease are approximately $5.3 million, $5.4 million, $5.5 million, $5.5 million and $5.6 million for the years ended December 31, 2009, 2010, 2011, 2012 and 2013, respectively.

Interest Rate Swaps

Aliante Station Financing

Green Valley Ranch Financing

Common Stock

We are authorized to issue up to 10,000 shares of voting common stock, $0.01 par value per share. At March 31, 2008, there were 41.7 shares of voting common stock issued and outstanding. Each holder of issued and outstanding shares of voting common stock is entitled to one vote for each share held of record on each matter submitted to a vote of stockholders. Holders of our voting common stock have no cumulative voting, conversion or redemption rights. Under the Equityholders Agreement of Station, FCP and Fertitta Partners, as amended, in certain circumstances, FCP VoteCo, as the holder of Station's voting common stock, shall have the preemptive right to purchase or subscribe to any voting stock to be sold or issued by Station on the terms and conditions as such voting stock is being offered and sold or issued. Subject to any preferences that may be granted to the holders of our preferred stock, each holder of voting common stock is entitled to receive ratably, such dividends as may be declared by our Board of Directors out of funds legally available therefore, as well as any distributions to the stockholders and, in the event of our liquidation, dissolution or winding up is entitled to share ratably in all our assets remaining after payment of liabilities.

Dividends

Non-Voting Common Stock

We are authorized to issue up to 100,000,000 shares of non-voting common stock, $0.01 par value per share. At March 31, 2008, there were 41,674,838 shares of non-voting common stock issued and outstanding. Holders of issued and outstanding shares of non-voting common stock are not entitled to vote on any matters to be voted on by the stockholders of the Company and are not to be included in

determining the number of shares voting or entitled to vote. Holders of our non-voting common stock have no cumulative voting, conversion or redemption rights. Under the Equityholders Agreement of Station, FCP and Fertitta Partners, as amended, in certain circumstances, holders of non-voting common stock shall have the preemptive right to purchase or subscribe to any equity interests (other than voting stock) to be sold or issued by Station on the same terms and conditions as such equity interests are being offered and sold or issued. Subject to any preferences that may be granted to the holders of our preferred stock, each holder of non-voting common stock is entitled to receive ratably, such dividends as may be declared by our Board of Directors out of funds legally available therefor, as well as any distributions to the stockholders and, in the event of our liquidation, dissolution or winding up is entitled to share ratably in all our assets remaining after payment of liabilities.

Preferred Stock

We are authorized to issue up to 10,000 shares of preferred stock, $0.01 par value per share, of which none are issued. The Board of Directors, without further action by the holders of our common stock, may issue shares of preferred stock in one or more series and may fix or alter the rights, preferences, privileges and restrictions, including the voting rights, redemption provisions (including sinking fund provisions), dividend rights, dividend rates, liquidation rates, liquidation preferences, conversion rights and the description and number of shares constituting any wholly unissued series of preferred stock. Except as described above, our Board of Directors, without further stockholder approval, may issue shares of preferred stock with rights that could adversely affect the rights of the holders of our common stock. The issuance of shares of preferred stock under certain circumstances could have the effect of delaying or preventing a change of control of Station or other corporate action.

Treasury Stock

Critical Accounting Policies

A description of our critical accounting policies can be found in Item 7 of our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007. There were no material changes to our critical accounting policies during the three months ended March 31, 2008.

Forward-looking Statements

When used in this report and elsewhere by management from time to time, the words "believes", "anticipates", "expects" and similar expressions are intended to identify forward-looking statements with respect to our financial condition, results of operations and our business including our expansions, development and acquisition projects, legal proceedings and employee matters. Certain important factors, including but not limited to, financial market risks, could cause our actual results to differ materially from those expressed in our forward-looking statements. Further information on potential factors which could affect our financial condition, results of operations and business including, without limitation, the ability to recognize the benefits of the Merger, the impact of the substantial indebtedness incurred to finance the consummation of the Merger, the ability to maintain existing management, integration of acquisitions, competition within the gaming industry, the cyclical nature of the hotel business and gaming business, economic conditions, development and construction risks, regulatory matters and litigation are included in our filings with the Securities and Exchange Commission. Readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date thereof. We undertake no

obligation to publicly release any revisions to such forward-looking statements to reflect events or circumstances after the date hereof.

Item 3. Quantitative and Qualitative Disclosures about Market Risk

Market risk is the risk of loss arising from adverse changes in market rates and prices, such as interest rates, foreign currency exchange rates and commodity prices. Our primary exposure to market risk is interest rate risk associated with our long-term debt. We attempt to limit our exposure to interest rate risk by managing the mix of our long-term and short-term borrowings under the Credit Agreement. Borrowings under the Credit Agreement bear interest at a margin above the Alternate Base Rate or the Eurodollar Rate (each as defined in the Credit Agreement) as selected by us. However, the amount of outstanding borrowings is expected to fluctuate and may be reduced from time to time. The borrowings under the Credit Agreement mature in August 2012.

The following table provides information about our long-term debt at March 31, 2008 (see also "Description of Certain Indebtedness and Capital Stock") (amounts in thousands):

		Maturity date	Face amount		Carrying value		Estimated fair value
CMBS Loans, weighted-average interest rate of approximately 6.8%		November 2012 (a)	$	2,475,000	$	2,475,000	$	2,475,000
Land Loan, weighted-average interest rate of approximately 7.4%		February 2011		200,000		200,000		200,000
Revolver, weighted-average interest rate of approximately 6.7%		August 2012		191,000		191,000		191,000
Term Loan, weighted-average interest rate of approximately 6.4%		August 2012		249,375		249,375		249,375
6% senior notes		April 2012		450,000		425,884		367,313
7³/4% senior notes		August 2016		400,000		391,627		322,000
6¹/2% senior subordinated notes		February 2014		450,000		396,774		270,000
6⁷/8% senior subordinated notes		March 2016		700,000		609,120		413,000
6⁵/8% senior subordinated notes		March 2018		300,000		252,663		172,500
Other debt, weighted-average interest rate of approximately 7.9%		2009-2026		83,067		82,777		82,777
Market value of interest rate swaps				133,658		133,658		133,658

	Total		$	5,632,100	$	5,407,878	$	4,876,623

(a): Based on the assumption the Company exercises three one-year extensions.

We are also exposed to market risk in the form of fluctuations in interest rates and their potential impact upon our debt. This market risk is managed by utilizing derivative financial instruments in accordance with established policies and procedures. We evaluate our exposure to market risk by monitoring interest rates in the marketplace, and do not utilize derivative financial instruments for trading purposes. Our derivative financial instruments consist exclusively of interest rate swap agreements. Interest differentials resulting from these agreements are recorded on an accrual basis as an adjustment to interest expense. Interest rate swaps related to debt are matched with specific debt obligations.

The following table provides information about our financial instruments that are sensitive to changes in interest rates (amounts in thousands):

		Current Portion as of March 31,
		2008			2009			2010			2011			2012			Thereafter			Total
Long-term debt (including current portion):
	Fixed-rate	$	3,710		$	5,336		$	—		$	—		$	425,884		$	1,650,183		$	2,085,113
	Weighted-average interest rate		7.6	%		6.0	%		—			—			7.6	%		8.9	%		8.6	%
	Variable-rate	$	2,577		$	3,051		$	202,574		$	2,577		$	2,905,457		$	72,871		$	3,189,107
	Weighted-average interest rate		6.4	%		6.3	%		7.4	%		6.4	%		6.8	%		5.8	%		6.8	%
Interest rate swaps:
	Notional amount	$	—		$	—		$	450,000		$	—		$	1,362,500		$	—		$	1,812,500
	Average payable rate		—			—			3.0	%		—			5.3	%		—			4.7	%
	Average receivable rate		—			—			2.8	%		—			2.8	%		—			2.8	%

Item 4. Controls and Procedures

As of the end of the period covered by this report, the Company conducted an evaluation, under the supervision and with the participation of the principal executive officer and principal financial officer, of the Company's disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the "Exchange Act")). Based on this evaluation, the principal executive officer and principal financial officer concluded that the Company's disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms. There was no change in the Company's internal control over financial reporting during the Company's most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.

Part II—OTHER INFORMATION

Item 1. Legal Proceedings

Luckevich, Scott and St. Cyr Litigation

On February 4, 2008, Josh Luckevich, Cathy Scott and Julie St. Cyr filed a purported class action complaint in the United States District Court for the District of Nevada, Case No. CV-00141, against the Company. The plaintiffs are all former employees of the Company. The complaint alleges that the Company (i) failed to pay its employees for all hours worked, (ii) failed to pay overtime, (iii) failed to timely pay wages and (iv) unlawfully converted certain earned wages. The complaint seeks, among other relief, class certification of the lawsuit, compensatory damages in excess of $5,000,000, punitive damages and an award of attorneys' fees and expenses to plaintiffs' counsel. The Company filed a response to the complaint on March 10, 2008. The Company believes that the allegations in the complaint are without merit and intends to vigorously defend the same.

Item 1A. Risk Factors

A description of our risk factors can be found in Item 1A of our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007. There were no material changes to those risk factors during the three months ended March 31, 2008.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds—None.

Item 3. Defaults Upon Senior Securities—None.

Item 4. Submission of Matters to a Vote of Security Holders—None.

Item 5. Other Information—None.

Item 6. Exhibits

(a): Exhibits—

No. 4.1—	Amended and Restated Loan and Security Agreement dated as of March 19, 2008 by and among German American Capital Corporation and JPMorgan Chase Bank, N.A. and FCP PropCo, LLC
No. 4.2—	Amended and Restated Mezzanine Loan and Security Agreement (First Mezzanine), dated as of March 19, 2008, by and among FCP Mezzco Borrower I, LLC, German American Capital Corporation and JPMorgan Chase Bank, N.A.
No. 4.3—	Amended and Restated Mezzanine Loan and Security Agreement (Second Mezzanine), dated as of March 19, 2008, by and among FCP Mezzco Borrower II, LLC, German American Capital Corporation and JPMorgan Chase Bank, N.A.
No. 4.4—	Amended and Restated Mezzanine Loan and Security Agreement (Third Mezzanine), dated as of March 19, 2008, by and among FCP Mezzco Borrower III, LLC, German American Capital Corporation and JPMorgan Chase Bank, N.A.
No. 4.5—	Mezzanine Loan and Security Agreement (Fourth Mezzanine), dated as of March 19, 2008, by and among FCP Mezzco Borrower IV, LLC, German American Capital Corporation and JPMorgan Chase Bank, N.A.

No. 10.1—	First Amendment to Master Lease Agreement dated as of March 19, 2008, by and between FCP PropCo, LLC and the Company amending the Master Lease Agreement dated as of November 7, 2007 by and between FCP PropCo, LLC and the Company
No. 10.2—	First Amendment to Sublease Agreement (Boulder Station) dated as of March 19, 2008 by and between the Company and Boulder Station, Inc. amending the Sublease (Boulder Station) dated as of November 7, 2007 by and between the Company and Boulder Station, Inc.
No. 10.3—	First Amendment to Sublease Agreement (Red Rock) dated as of March 19, 2008 by and between the Company and Charleston Station, Inc. amending the Sublease Agreement (Red Rock) dated as of November 7, 2007 by and between the Company and Charleston Station, Inc.
No. 10.4—	First Amendment to Sublease Agreement (Sunset Station) dated as of March 19, 2008 by and between the Company and Sunset Station, Inc. amending the Sublease (Sunset Station) dated as of November 7, 2007 by and between the Company and Sunset Station, Inc.
No. 10.5—	First Amendment to Sublease Agreement (Palace Station) dated as of March 19, 2008 by and between the Company and Palace Station Hotel & Casino, Inc. amending the Sublease (Palace Station) dated as of November 7, 2007 by and between the Company and Palace Station Hotel & Casino, Inc.
No. 31.1—	Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
No. 31.2—	Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
No. 32.1—	Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
No. 32.2—	Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

		STATION CASINOS, INC., Registrant
DATE: May 9, 2008			/s/ THOMAS M. FRIEL Thomas M. Friel Executive Vice President, Chief Accounting Officer and Treasurer (Principal Accounting Officer)

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STATION CASINOS, INC. INDEX
STATION CASINOS, INC. CONDENSED CONSOLIDATED BALANCE SHEETS (amounts in thousands, except share data)
STATION CASINOS, INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (amounts in thousands) (unaudited)
STATION CASINOS, INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (amounts in thousands) (unaudited)
STATION CASINOS, INC. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (unaudited)

Item 3. Quantitative and Qualitative Disclosures about Market Risk

Item 4. Controls and Procedures

Item 1. Legal Proceedings

Item 1A. Risk Factors

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds— None.

Item 3. Defaults Upon Senior Securities— None.

Item 4. Submission of Matters to a Vote of Security Holders— None.

Item 5. Other Information— None.

Item 6. Exhibits

SIGNATURE
EX-4.1 2 a2185441zex-4_1.htm EXHIBIT 4.1

EXHIBIT 4.1

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

Dated as of March 19, 2008

Among

FCP PROPCO, LLC

as Borrower

and

GERMAN AMERICAN CAPITAL CORPORATION

and

JPMORGAN CHASE BANK, N.A.,

on behalf of the holders of the Notes,

as Lender

TABLE OF CONTENTS

					Page

I.	DEFINITIONS; PRINCIPLES OF CONSTRUCTION				10
	1.1		Definitions		10
	1.2		Principles of Construction		47

II.	GENERAL TERMS				47
	2.1	Loan; Disbursement to Borrower			47
		2.1.1		The Loan; Delegation; Novation	47
		2.1.2		Disbursement to Borrower	48
		2.1.3		The Notes, Security Instruments and Loan Documents	48
		2.1.4		Use of Proceeds	48
	2.2	Interest; Loan Payments; Late Payment Charge			48
		2.2.1		Payment of Principal and Interest	48
		2.2.2		Method and Place of Payment	49
		2.2.3		Late Payment Charge	49
		2.2.4		Usury Savings	49
	2.3	Prepayments			50
		2.3.1		Prepayments	50
		2.3.2		Prepayments After Event of Default; Application of Amounts Paid	50
		2.3.3		Release of Property upon Repayment of Loan in Full	50
		2.3.4		Release of Individual Properties	51
		2.3.5		Substitution of Properties	53
		2.3.6		Provisions Relating to Individual Properties That Go Dark	59
		2.3.7		Excess Account Collateral	59
		2.3.8		Reserve Requirements	59
		2.3.9		Release of Unimproved Parcels	59
	2.4	Regulatory Change; Taxes			61
		2.4.1		Increased Costs	61
		2.4.2		Special Taxes	62
		2.4.3		Other Taxes	62
		2.4.4		Indemnity	62
		2.4.5		Change of Office	62
		2.4.6		Survival	62
	2.5	Conditions Precedent to Closing			62
		2.5.1		Representations and Warranties; Compliance with Conditions	62
		2.5.2		Delivery of Loan Documents; Title Policies; Reports; Leases	63
		2.5.3		Delivery of Organizational Documents	64
		2.5.4		Counsel Opinions	65
		2.5.5		Consummation of the Merger	65
		2.5.6		Payments	65
		2.5.7		Transaction Costs	66
		2.5.8		Material Adverse Effect	66
		2.5.9		Control	66

		2.5.10	Insolvency	66
		2.5.11	Master Lease and Individual Property Subleases	66
		2.5.12	Equity Contribution	66
		2.5.13	Existing Indebtedness	66
		2.5.14	Ground Lease and Fee Mortgagee Estoppels	67
		2.5.15	Equity and Real Property Transfer Documents	67
		2.5.16	No Competing Financing	67
		2.5.17	Approvals	68
		2.5.18	Searches	68
	2.6	[Reserved]		68

III.	CASH MANAGEMENT			68
	3.1	Cash Management		68
		3.1.1	Establishment of Accounts	68
		3.1.2	Pledge of Account Collateral	69
		3.1.3	Maintenance of Collateral Accounts	70
		3.1.4	Eligible Accounts	70
		3.1.5	Deposits into Sub-Accounts	70
		3.1.6	Monthly Funding of Sub-Accounts; Master Lease Rent Shortfalls; Sub-Account Shortfalls	71
		3.1.7	Required Payments from Sub-Accounts	74
		3.1.8	Cash Management Bank	76
		3.1.9	Borrower’s Account Representations, Warranties and Covenants	77
		3.1.10	Account Collateral and Remedies	77
		3.1.11	Transfers and Other Liens	78
		3.1.12	Reasonable Care	78
		3.1.13	Lender’s Liability	79
		3.1.14	Continuing Security Interest	79
		3.1.15	Distributions	79

IV.	REPRESENTATIONS AND WARRANTIES			80
	4.1	Borrower Representations		80
		4.1.1	Organization	80
		4.1.2	Proceedings	80
		4.1.3	No Conflicts	81
		4.1.4	Litigation	81
		4.1.5	Agreements	81
		4.1.6	Title	82
		4.1.7	No Bankruptcy Filing	82
		4.1.8	Full and Accurate Disclosure	82
		4.1.9	All Property	83
		4.1.10	No Plan Assets	83
		4.1.11	Compliance	83
		4.1.12	Financial Information	84
		4.1.13	Condemnation	84
		4.1.14	Federal Reserve Regulations	84
		4.1.15	Utilities and Public Access	84

		4.1.16	Not a Foreign Person	84
		4.1.17	[Reserved]	84
		4.1.18	[Reserved]	84
		4.1.19	[Reserved]	84
		4.1.20	Enforceability	84
		4.1.21	[Reserved	85
		4.1.22	Insurance	85
		4.1.23	Use of Property	85
		4.1.24	Certificate of Occupancy; Licenses	85
		4.1.25	Flood Zone	85
		4.1.26	Physical Condition	85
		4.1.27	Boundaries	85
		4.1.28	Subleases	86
		4.1.29	Filing and Recording Taxes	86
		4.1.30	Single Purpose Entity/Separateness	86
		4.1.31	[Reserved	87
		4.1.32	Illegal Activity	87
		4.1.33	No Change in Facts or Circumstances; Disclosure	87
		4.1.34	[Reserved	87
		4.1.35	Tax Filings	87
		4.1.36	Solvency/Fraudulent Conveyance	87
		4.1.37	Investment Company Act	87
		4.1.38	Interest Rate Protection Agreement	87
		4.1.39	Labor	88
		4.1.40	Brokers	88
		4.1.41	No Other Debt	88
		4.1.42	Taxpayer Identification Number	88
		4.1.43	Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering Laws	88
		4.1.44	Merger Agreement	89
		4.1.45	Rights of First Refusal or First Offer to Lease or Purchase	89
		4.1.46	Reserved	89
	4.2	Survival of Representations		89
	4.3	Borrower’s Knowledge		89

V.	BORROWER COVENANTS			89
	5.1	Affirmative Covenants		89
		5.1.1	Performance by Borrower	89
		5.1.2	Existence; Compliance with Legal Requirements; Insurance	90
		5.1.3	Litigation	90
		5.1.4	Single Purpose Entity	90
		5.1.5	Consents	91
		5.1.6	Access to Property	92
		5.1.7	Notice of Default	92
		5.1.8	Cooperate in Legal Proceedings	92
		5.1.9	[Reserved	92
		5.1.10	Insurance	92

		5.1.11	Further Assurances; Separate Notes; Loan Resizing	92
		5.1.12	Mortgage Taxes	94
		5.1.13	Operation	94
		5.1.14	Business and Operations	94
		5.1.15	Title to the Property	95
		5.1.16	Costs of Enforcement	95
		5.1.17	Estoppel Statements	95
		5.1.18	Loan Proceeds	96
		5.1.19	No Joint Assessment	96
		5.1.20	No Further Encumbrances	96
		5.1.21	[Reserved	96
		5.1.22	Master Lease	96
	5.2	Negative Covenants		98
		5.2.1	Incur Debt	98
		5.2.2	Encumbrances	98
		5.2.3	Engage in Different Business	98
		5.2.4	Make Advances	98
		5.2.5	Subdivision	98
		5.2.6	Commingle	98
		5.2.7	Guarantee Obligations	98
		5.2.8	Transfer Assets	98
		5.2.9	Amend Organizational Documents	98
		5.2.10	Dissolve	99
		5.2.11	Bankruptcy	99
		5.2.12	ERISA	99
		5.2.13	Distributions	99
		5.2.14	[Reserved	99
		5.2.15	[Reserved	99
		5.2.16	[Reserved;]	99
		5.2.17	Modify Account Agreement	99
		5.2.18	Zoning Reclassification	99
		5.2.19	Change of Principal Place of Business	100
		5.2.20	Debt Cancellation	100
		5.2.21	Misapplication of Funds	100
		5.2.22	Single-Purpose Entity	100

VI.	INSURANCE; CASUALTY; CONDEMNATION; RESTORATION			100
	6.1	Insurance Coverage Requirements		100
		6.1.1	Property Insurance	100
		6.1.2	Liability Insurance	101
		6.1.3	Workers’ Compensation Insurance	101
		6.1.4	Commercial Rents Insurance	101
		6.1.5	Builder’s All-Risk Insurance	101
		6.1.6	Boiler and Machinery Insurance	102
		6.1.7	Flood Insurance	102
		6.1.8	[Reserved	102
		6.1.9	Terrorism Insurance	102

		6.1.10	Other Insurance	102
		6.1.11	Ratings of Insurers	102
		6.1.12	Form of Insurance Policies; Endorsements	103
		6.1.13	Certificates	104
		6.1.14	Separate Insurance	104
		6.1.15	Blanket Policies	104
	6.2	Condemnation and Insurance Proceeds		105
		6.2.1	Notification	105
		6.2.2	Proceeds	105
		6.2.3	Lender to Take Proceeds	106
		6.2.4	Borrower to Restore	107
		6.2.5	Disbursement of Proceeds	109

VII.	IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS			110
	7.1	Borrower to Pay Impositions and Other Charges		110
	7.2	No Liens		110
	7.3	Contest		111

VIII.	TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS			111
	8.1	General Restriction on Transfers		111
	8.2	Sale of Building Equipment		112
	8.3	Immaterial Transfers and Easements, etc.		112
	8.4	[Reserved.]		113
	8.5	Permitted Equity Transfers		113
	8.6	Deliveries to Lender		114
	8.7	Loan Assumption		114
	8.8	Subleases		115
		8.8.1	Master Lease and Existing Subleases	115
		8.8.2	Leasing Conditions	115
		8.8.3	Delivery of New Sublease or Sublease Modification	115
		8.8.4	Sublease Amendments	116
		8.8.5	Security Deposits	116
		8.8.6	No Default Under Subleases	116
		8.8.7	Subordination	116
		8.8.8	Attornment	116
		8.8.9	Non-Disturbance Agreements	117
		8.8.10	Recognition Agreements	117

IX.	INTEREST RATE PROTECTION AGREEMENT			118
	9.1	Interest Rate Protection Agreement		118
	9.2	Pledge and Collateral Assignment		118
	9.3	Covenants		119
	9.4	Powers of Borrower Prior to an Event of Default		120
	9.5	Representations and Warranties		120
	9.6	Payments		121
	9.7	Remedies		121
	9.8	Sales of Rate Protection Collateral		123

	9.9	Public Sales Not Possible		124
	9.10	Receipt of Sale Proceeds		124
	9.11	Replacement Interest Rate Protection Agreement		124
	9.12	Swap Gain		124
	9.13	Prepayment of Interest Rate Swap Notional Amount		124

X.	MAINTENANCE OF PROPERTY; ALTERATIONS			124
	10.1	Maintenance of Property		124
	10.2	Conditions to Alteration		125
	10.3	Costs of Alteration		125

XI.	BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION			126
	11.1	Books and Records		126
	11.2	Financial Statements		126
		11.2.1	Monthly Reports	126
		11.2.2	Quarterly Reports	127
		11.2.3	Annual Reports	128
		11.2.4	Disclosure Restrictions	128
		11.2.5	Capital Expenditures Summaries	128
		11.2.6	Master Lease	128
		11.2.7	Annual Budget; Operating Agreement Annual Budgets	128
		11.2.8	Other Information	129
		11.2.9	Proprietary Information	129

XII.	ENVIRONMENTAL MATTERS			129
	12.1	Representations		129
	12.2	Covenants		130
		12.2.1	Compliance with Environmental Laws	130
		12.2.2	Notices Regarding Environmental Events	130
		12.2.3	Other Notices	130
	12.3	Environmental Reports		130
	12.4	Environmental Indemnification		131
	12.5	Recourse Nature of Certain Indemnifications		132

XIII.	THE OPERATING AGREEMENTS			132
	13.1	Operating Agreement Representations, Warranties		132
	13.2	Cure by Lender		133
	13.3	Option to Renew or Extend the Ground Lease		134
	13.4	Operating Agreement Covenants		134
		13.4.1	Waiver of Interest In New Ground Lease	134
		13.4.2	No Election to Terminate	134
		13.4.3	Notice Prior to Rejection	134
		13.4.4	Lender Right to Perform	135
		13.4.5	Lender Attorney in Fact	135
		13.4.6	Payment of Sums Due Under Operating Agreements	135
		13.4.7	Performance of Covenants	135

		13.4.8	[Reserved	136
		13.4.9	No Modification or Termination	136
		13.4.10	Notices of Default	136
		13.4.11	Delivery of Information	136
		13.4.12	No Subordination	136
		13.4.13	Further Assurances	136
		13.4.14	Estoppel Certificates	136
		13.4.15	Common Area/Common Elements Insurance	137
		13.4.16	[Reserved.]	137
	13.5	Lender Right to Participate		137
	13.6	No Liability		137

XIV.	SECURITIZATION AND PARTICIPATION			137
	14.1	Sale of Notes and Securitization		137
	14.2	Securitization Financial Statements		139
	14.3	Securitization Indemnification		139
		14.3.1	Disclosure Documents	139
		14.3.2	Indemnification Certificate	139
	14.4	Retention of Servicer		141
	14.5	Lender’s Securitization Expenses		142

XV.	ASSIGNMENTS AND PARTICIPATIONS			142
	15.1	Assignment and Acceptance		142
	15.2	Effect of Assignment and Acceptance		142
	15.3	Content		143
	15.4	Register		143
	15.5	Substitute Notes		143
	15.6	Participations		144
	15.7	Disclosure of Information		144
	15.8	Security Interest in Favor of Federal Reserve Bank		144

XVI.	RESERVE ACCOUNTS			145
	16.1	Tax Reserve Account		145
	16.2	Insurance Reserve Account		145
	16.3	Ground Rent Reserve Account		146

XVII.	DEFAULTS			147
	17.1	Event of Default		147
	17.2	Remedies		151
	17.3	Remedies Cumulative; Waivers		152
	17.4	Costs of Collection		153

XVIII.	SPECIAL PROVISIONS			153
	18.1	Exculpation		153
		18.1.1	Exculpated Parties	153
		18.1.2	Carveouts From Non-Recourse Limitations	154
	18.2	Pro Rata Share		155

XIX.	MISCELLANEOUS		156
	19.1	Survival	156
	19.2	Lender’s Discretion	156
	19.3	Governing Law	156
	19.4	Modification; Waiver in Writing	157
	19.5	Delay Not a Waiver	157
	19.6	Notices	158
	19.7	TRIAL BY JURY	159
	19.8	Headings	160
	19.9	Severability	160
	19.10	Preferences	160
	19.11	Waiver of Notice	160
	19.12	Expenses; Indemnity	160
	19.13	Exhibits and Schedules Incorporated	162
	19.14	Offsets, Counterclaims and Defenses	162
	19.15	Liability of Assignees of Lender	163
	19.16	No Joint Venture or Partnership; No Third Party Beneficiaries	163
	19.17	Publicity	163
	19.18	Waiver of Marshalling of Assets	163
	19.19	Waiver of Counterclaim and other Actions	164
	19.20	Conflict; Construction of Documents; Reliance	164
	19.21	Prior Agreements	164
	19.22	Counterparts	164

EXHIBITS AND SCHEDULES

EXHIBIT A	TITLE INSURANCE REQUIREMENTS, ENDORSEMENTS AND AFFIRMATIVE COVERAGES
EXHIBIT B	SURVEY REQUIREMENTS
EXHIBIT C	INTENTIONALLY DELETED
EXHIBIT D	INTENTIONALLY DELETED
EXHIBIT E	INTENTIONALLY DELETED
EXHIBIT F	FORM OF MASTER LEASE
EXHIBIT G	FORM OF TENANT ESTOPPEL LETTER
EXHIBIT H	FORM OF GROUND LESSOR ESTOPPEL CERTIFICATE
EXHIBIT H-1	FORM OF FEE MORTGAGEE ESTOPPEL CERTIFICATE
EXHIBIT I	[RESERVED]
EXHIBIT J	INTENTIONALLY DELETED
EXHIBIT K	BORROWER ORGANIZATIONAL STRUCTURE
EXHIBIT L	INTEREST RATE PROTECTION AGREEMENT
EXHIBIT M	FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT N	FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT O	INTENTIONALLY DELETED
EXHIBIT P	FORM OF RENT PAYMENT DIRECTION LETTER
EXHIBIT Q	RATE HEDGE COUNTERPARTY ACKNOWLEDGMENT
EXHIBIT R	INTENTIONALLY DELETED
EXHIBIT S	INTENTIONALLY DELETED
EXHIBIT T	FORM OF INDEPENDENT MANAGER/MEMBER CERTIFICATE

SCHEDULE I	EXISTING SUBLEASES; MATERIAL SUBLEASES; DEFAULTS OR PREPAID RENT UNDER SUBLEASES; SUBLEASING STANDARDS
SCHEDULE II	LITIGATION SCHEDULE
SCHEDULE III	DEFERRED MAINTENANCE AND REMEDIATION
SCHEDULE IV	UNIMPROVED PARCELS
SCHEDULE 4.1.11	COMPLIANCE QUALIFICATIONS
SCHEDULE V	ALLOCATED LOAN AMOUNTS
SCHEDULE VI	RIGHTS OF FIRST REFUSAL OR RIGHTS OF FIRST OFFER (OR OTHER RIGHTS OR OPTIONS) TO LEASE OR PURCHASE INDIVIDUAL PROPERTIES
SCHEDULE VII	EXISTING MATTERS OF RECORD
SCHEDULE VIII	[Reserved]
SCHEDULE IX	SUCCESSOR PRINCIPAL CONTROL PERSONS

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated as of March 19, 2008 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), among FCP PROPCO, LLC, a Delaware limited liability company (“Borrower”) having an office at 1505 South Pavilion Center Drive, Las Vegas, Nevada 89135, GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation (“GACC” and together with its successors and assigns, “Noteholder I”), having an address at 60 Wall Street, New York, New York 10005, and JPMORGAN CHASE BANK, N.A., a national banking association, having an address at 270 Park Avenue, New York, New York 10017 (“JPMC” and together with its successors and assigns, “Noteholder II”) (Noteholder I and Noteholder II, individually or collectively as the context indicates, “Lender”).

RECITALS:

WHEREAS, Borrower and Lender entered into a Loan and Security Agreement, dated as of November 7, 2007 (the “Original Agreement”) pursuant to which Lender made a loan in the original principal amount of $2,050,000,000 (the “Original Loan”) to Borrower;

WHEREAS, Lender and Mezzanine Lender (as hereinafter defined) have determined to decrease the principal amount of the Original Loan and correspondingly increase the principal amount of the Mezzanine Loan (as hereinafter defined);

WHEREAS, in order to implement such resizing, Borrower shall delegate and transfer its obligations in respect of a portion of the Original Loan to each of the Mezzanine Borrowers (as hereinafter defined), each of the Mezzanine Borrowers will assume the obligations of Borrower as to each such delegated portion of the Original Loan, Lender will novate the obligations of Borrower so as to exonerate Borrower from any obligation to Lender in respect of the delegated portions of the Original Loan, and each of the Mezzanine Lenders (as hereinafter defined) shall agree that the portion of the Original Loan assumed by each of the Mezzanine Borrowers, respectively, shall be treated for all purposes as an obligation of the applicable Mezzanine Borrower under its respective mezzanine loan agreement;

WHEREAS, in order to implement such resizing, the parties desire to amend and restate the Original Agreement in its entirety.

NOW, THEREFORE, in consideration of the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby amend and restate the Original Agreement in its entirety and covenant, agree, represent and warrant as follows:

I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“80% Trigger Approval Period” shall mean any period (a) commencing on the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR is

less than 80% of Closing Date LCR and (b) ending on the day immediately preceding the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR exceeds 80% of Closing Date LCR, provided that no Noticed Default or Event of Default is then continuing, and that Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default or Event of Default exists; and, for avoidance of doubt, subject to resumption of the 80% Trigger Approval Period upon any subsequent occurrence of the conditions set forth in clause (a) above.

“90% Cash Sweep Period” shall mean any period (a) commencing on the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR is less than 90% of Closing Date LCR and (b) ending on the day immediately preceding the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR exceeds 90% of Closing Date LCR, provided that no Noticed Default or Event of Default is then continuing, and that Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default or Event of Default exists; and, for avoidance of doubt, subject to resumption of the 90% Cash Sweep Period upon any subsequent occurrence of the conditions set forth in clause (a) above.

“Account Agreement” shall mean (a) the side letter agreement dated November 7, 2007 between Cash Management Bank and Collateral Agent or (b) at any time when Lender or Servicer is not the Cash Management Bank, an Account Control Agreement, in form reasonably acceptable to Lender and acceptable to the Rating Agencies among Collateral Agent, Borrower and Cash Management Bank.

“Account Collateral” shall have the meaning set forth in Section 3.1.2.

“Acknowledgment” shall mean the Acknowledgment, dated on or about the Closing Date made by Counterparty, or as applicable, Approved Counterparty in the form of Exhibit Q.

“Actually Known by the Lender to the Contrary” shall mean the actual receipt, prior to the Closing Date, by Todd Sammann and Michael Mesard of an email, fax, memorandum, letter or other written statement from any of Borrower, Sponsor, or Lender’s counsel expressly disclosing to Lender a state of facts contrary to a representation made by Borrower in Section 4.1.

“Additional Non-Consolidation Opinion” shall have the meaning set forth in Section 4.1.30(b).

“Affiliate” shall mean, with respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common control with, or any general partner or managing member in, such specified Person. An Affiliate of a Person includes, without limitation, (i) any officer or director of such Person, (ii) any record or beneficial owner of more than 20% (or, solely for purposes of the definition of “Independent Purchaser” herein, 10%) of any class of ownership interests of such Person and (iii) any Affiliate of the foregoing.

“Aggregate Appraised Value” as of the date determined shall mean the sum of (a) the aggregate appraised values as of the Closing Date of all Property which remains as of the date determined subject to the Lien of a Security Instrument (excluding the Replaced Properties, Release Properties and the Substitute Properties) and (b) the appraised value of the Substitute Property as of such date of determination.

“Agreement” shall have the meaning set forth in the preamble hereof.

“Aliante Financing” shall have the meaning set forth in Section 2.5.13.

“Allocated Loan Amount” shall mean with respect to each Individual Property, the designated allocated portion of the Loan applicable to such Individual Property that is set forth on Schedule V-1 attached hereto.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Alteration” shall have the meaning set forth in Section 10.2.

“Amendment Effective Date” means March 19, 2008.

“Annual Budget” shall mean, with respect to each Individual Property, an annual budget for the succeeding Fiscal Year with respect to the operations of such Individual Property.

“Appraisals” shall mean the FIRREA appraisals conducted in 2007 by Cushman & Wakefield on or prior to the Closing Date which establish the master leased fee or ground leasehold value of each Individual Property.

“Appraised Value” shall mean, for an Individual Property, the value of such Individual Property as determined by the Appraisal for such Individual Property.

“Approved Bank” shall mean a bank or other financial institution which has a minimum long-term unsecured debt rating of at least “A” and a minimum short-term unsecured debt rating of at least “A-1” by each of the Rating Agencies, or if any such bank or other financial institution is not rated by all the Rating Agencies, then a minimum long-term rating of at least “A” and a minimum short-term unsecured debt rating of at least “A-1,” or their respective equivalents, by two of the Rating Agencies, but in any event one of the two Rating Agencies shall be S&P, it being understood that the A and A-1 benchmark ratings and other benchmark ratings in this Agreement are intended to be the ratings, or the equivalent of ratings, issued by S&P.

“Approved Counterparty” shall mean a bank or other financial institution which has (a) either (i) a long-term unsecured debt rating of “A+” or higher by S&P or (ii) if the long-term unsecured debt rating is “A” or lower by S&P, a short-term rating of not less than “A-1” from S&P; (b) a long-term unsecured debt rating of not less than “Aa3” by Moody’s; and (c) if the counterparty is rated by Fitch, either a long-term unsecured debt rating of not less than “A” from Fitch or a short-term unsecured debt rating of not less than “F-1” from Fitch.

“Architect” shall mean an architect, engineer or construction consultant selected by Borrower (which can be an employee of Borrower or an Affiliate), licensed to practice in the

relevant State, if required by the laws of such State, and has at least five (5) years of architectural or construction management experience and which is approved by Lender, which approval shall not be unreasonably withheld, delayed or conditioned.

“Asset-Specific Proprietary Information” shall have the meaning set forth in Section 11.2.9(b).

“Assigned Landlord Lien” shall have the meaning set forth in Section 4.1.6.

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by Lender and an assignee, and accepted by Lender in accordance with Article XV and in substantially the form of Exhibit M or such other form customarily used by Lender in connection with the participation or syndication of mortgage loans at the time of such assignment.

“Assignment of Leases” shall mean that certain first priority Assignment of Master Lease, Subleases, Rents and Security Deposits, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Master Lease, the Subleases, Rents and Security Deposits as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Leases Counterpart” shall have the meaning provided in Section 2.3.5(d)(xiii)(2).

“Assignment of Licenses” shall mean that certain first priority Assignment of License Agreement, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in, to and under the License and Reservation Service Agreement as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Bankruptcy Code” shall mean Title 11, U.S.C.A., as amended from time to time and any successor statute thereto.

“Blanket Policy” shall have the meaning provided in Section 6.1.15.

“Borrower” shall have the meaning set forth in the first paragraph of this Agreement.

“Borrower Party” shall mean any of Borrower, Mezzanine Borrowers and Guarantors.

“Borrower’s Account” shall mean an account or accounts maintained by Borrower for its own account at such bank and with such account number as may be designated in writing by Borrower to Lender and Cash Management Bank from time to time.

“Building Equipment” shall have the meaning set forth in the Security Instruments, collectively.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York or in the state in which Servicer is located are not open for business. When used with respect to an Interest Determination Date, Business Day shall mean

any day on which dealings in deposits in U.S. Dollars are transacted in the London interbank market.

“Cash” shall mean the legal tender of the United States of America.

“Cash and Cash Equivalents” shall mean any one or a combination of the following: (i) Cash, and (ii) U.S. Government Obligations.

“Cash Equity Contribution” shall have the meaning set forth in Section 2.5.12.

“Cash Management Bank” shall mean any Approved Bank acting as Cash Management Bank under the Account Agreement or other financial institution approved by the Lender and, if a Securitization has occurred, the Rating Agencies.

“Casualty Amount” shall mean twenty percent (20%) of the Allocated Loan Amount of the affected Individual Property.

“Chase” shall have the meaning set forth in Section 14.3.2(b).

“Close Affiliate” shall mean with respect to any Person (the “First Person”) any other Person (each, a “Second Person”) which is an Affiliate of the First Person and in respect of which any of the following are true: (a) the Second Person owns, directly or indirectly, at least 75% of all of the legal, beneficial and/or equitable interest in such First Person, (b) the First Person owns, directly or indirectly, at least 75% of all of the legal, beneficial and/or equitable interest in such Second Person, or (c) a third Person owns, directly or indirectly, at least 75% of all of the legal, beneficial and/or equitable interest in both the First Person and the Second Person.

“Closing Date” shall mean November 7, 2007.

“Closing Date LCR” shall mean a ratio of 1.28:1.

“Closing Date LTV” shall mean 79.7%.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral Accounts” shall have the meaning set forth in Section 3.1.1.

“Collateral Agent” means German American Capital Corporation in its capacity as collateral agent acting on behalf of Lender.

“Combined Allocated Loan Amount” shall mean with respect to each Individual Property, the aggregate portions of the Loan and the Mezzanine Loans allocated to such Individual Property that is set forth on Schedule V attached hereto.

“Combined Loans” shall mean the Loan and the Mezzanine Loan, collectively.

“Combined Principal Amount” shall mean the sum of the Principal Amount and the Principal Amount (Mezzanine).

“Combined Release Price” shall mean the product of (a) the Combined Allocated Loan Amount for the Release Property and (b) the applicable Combined Release Price Percentage(s), minus, if applicable, the principal amount of any prepayment of the Combined Loans paid from Proceeds derived from a casualty, other damage or injury or Taking affecting such Release Property.

“Combined Release Price Percentage” shall mean, as of any Release Date, (a) if the Release Property is the Individual Property commonly known as “Red Rock”, (i) 120% if the transferee of such Release Property is a bona fide Independent Purchaser of such Individual Property, and (ii) otherwise, 135%; and (b) if the Release Property is any other Individual Property, the percentage applicable to the range of the aggregate of the Combined Allocated Loan Amounts of the Individual Properties subject to a Security Instrument that would be outstanding immediately following such Release, as set forth in the following table:

Range of Outstanding Aggregate Combined Allocated Loan Amounts Following Release	Combined Release Price Percentage
From $2,475,000,000 to and including $2,103,750,000	100	%
Less than $2,103,750,000 to and including $1,732,500,000	110	%
Less than $1,732,500,000 to $0.00	120	%

To the extent the Combined Allocated Loan Amount of an Individual Property to be released, when added to the Combined Allocated Loan Amount of previously (or simultaneously) released Individual Properties, would exceed a benchmark set forth under the “Range of Outstanding Aggregate Combined Allocated Loan Amounts Following Release” column, such excess Combined Allocated Loan Amount (but only such excess) shall be subject to the higher Combined Release Price Percentage set forth in the second column. For example, if a release would result in an aggregate Combined Allocated Loan Amount which exceeded the first benchmark by $10 million, the $10 million would bear a 110% Combined Release Price Percentage, and the remainder a 100% Combined Release Price Percentage.

of any remedies by Lender or Mezzanine Lender, and (vi) following Lender’s or its designee’s succession in title to any Property, the transfer of any such Property by Lender or such designee.

“Control” shall mean (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise (provided that the granting of major decision veto rights including, without limitation, with respect to decisions regarding the sale of material assets, the incurrence or refinancing of debt, the institution of insolvency, bankruptcy or other proceedings with respect to debtor protection, and the merger, consolidation, liquidation or dissolution of such Person in favor of a Person shall not be deemed to constitute “Control”), together with (ii) the ownership, direct or indirect, of no less than 51% of the voting securities of such Person, and the terms Controlled, Controlling and Common Control shall have correlative meanings.

“Counterparty” shall mean, with respect to the Interest Rate Cap Agreement, JPMorgan Chase Bank, N.A., with respect to the Interest Rate Swap Agreement, Deutsche Bank AG, and with respect to any Replacement Interest Rate Protection Agreement, any substitute Approved Counterparty.

“Counterparty Opinion” shall have the meaning set forth in Section 9.3(g).

“Cut-Off Date” shall have the meaning set forth in Section 6.2.3(a).

“DBS” shall have the meaning set forth in Section 14.3.2(b).

“Debt” shall mean, with respect to any Person at any time, (a) indebtedness or liability of such Person for borrowed money whether or not evidenced by bonds, debentures, notes or other instruments, or for the deferred purchase price of property or services; (b) obligations of such Person as lessee under leases which should have been or should be, in accordance with GAAP, recorded as capital leases; (c) current liabilities of such Person in respect of unfunded vested benefits under plans covered by Title IV of ERISA; (d) obligations or liabilities of such Person arising under letters of credit, credit facilities or other acceptance facilities; (e) obligations of such Person under any guarantees or other agreement to become secondarily liable for any obligation of any other Person, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person or otherwise to assure a creditor against loss; (f) obligations of such Person secured by any Lien on any property of such Person, whether or not the obligations have been assumed by such Person; or (g) obligations of such Person under any interest rate or currency exchange agreement.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Notes.

“Debt Service (First Mezzanine)” shall mean, with respect to any particular period of time, scheduled interest payments under the First Mezzanine Note.

“Debt Service Reserve Account” shall have the meaning set forth in Section 3.1.1(d).

“Debt Service (Second Mezzanine)” shall mean, with respect to any particular period of time, scheduled interest payments under the Second Mezzanine Note.

“Debt Service (Third Mezzanine)” shall mean, with respect to any particular period of time, scheduled interest payments under the Third Mezzanine Note.

“Debt Service (Fourth Mezzanine)” shall mean, with respect to any particular period of time, scheduled interest payments under the Fourth Mezzanine Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall have the meaning set forth in the Notes.

“Deficiency” shall have the meaning set forth in Section 6.2.4(b)(ii).

“Disclosure Document” shall have the meaning set forth in Section 14.3.1.

“Disqualified Transferee” shall mean any proposed transferee that, (i) has been convicted in a criminal proceeding for a felony or a crime involving moral turpitude or that is an organized crime figure or is reputed (as determined by Lender in its sole discretion) to have substantial business or other affiliations with an organized crime figure, or (ii) has been found by a court of competent jurisdiction or other Governmental Authority in a comparable proceeding to have violated any federal or state securities laws or regulations promulgated thereunder.

“Eligible Account” shall mean (i) a segregated trust account or accounts maintained with the corporate trust department of a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds on deposit such as or similar to Title 12 of the Code of Federal Regulations Section 9.10(b) which, in either case, has corporate trust powers, acting in its fiduciary capacity or (ii) a segregated account maintained at an Approved Bank. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Environmental Certificate” shall have the meaning set forth in Section 12.2.2.

“Environmental Claim” shall mean any claim, action, cause of action, investigation or written notice by any Person alleging potential liability (including potential liability for investigatory costs, cleanup costs, natural resource damages, property damages, personal injuries or penalties) arising out of, based upon or resulting from (a) the presence, threatened presence, release or threatened release into the environment of any Hazardous Materials from or at the Property, or (b) the violation, or alleged violation, of any Environmental Law relating to the Property.

“Environmental Event” shall have the meaning set forth in Section 12.2.2.

“Environmental Law” shall mean any federal, state or local statute, regulation or ordinance or any judicial or administrative decree or decision, whether now existing or

hereinafter enacted, promulgated or issued, with respect to the protection of human health from any environmental hazards (as relating to exposure to such environmental hazards), or the environment, or any Hazardous Materials, wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water run-off, waste emissions or wells. Without limiting the generality of the foregoing, the term shall encompass each of the following statutes, and regulations promulgated thereunder, and amendments and successors to such statutes and regulations, as may be enacted and promulgated from time to time: (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified in scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. §9601 et seq.); (ii) the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.); (iii) the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.); (iv) the Toxic Substances Control Act (15 U.S.C. §2061 et seq.); (v) the Clean Water Act (33 U.S.C. §1251 et seq.); (vi) the Clean Air Act (42 U.S.C. §7401 et seq.); (vii) the Safe Drinking Water Act (21 U.S.C. §349; 42 U.S.C. §201 and §300f et seq.); (viii) the National Environmental Policy Act of 1969 (42 U.S.C. §4321); (ix) the Superfund Amendment and Reauthorization Act of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x) Title III of the Superfund Amendment and Reauthorization Act (40 U.S.C. §1101 et seq.).

“Environmental Reports” shall have the meaning set forth in Section 12.1.

“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.

“Event of Default” shall have the meaning set forth in Section 17.1(a).

“Excess Account Collateral” shall have the meaning set forth in Section 2.3.7.

“Excess Cash Flow” shall have the meaning set forth in Section 3.1.6(a)(xv).

“Exchange Act” shall have the meaning set forth in Section 14.3.1.

“Excluded Personal Property” shall mean, collectively, (a) all of the personal property of Master Lessee (including, without limitation, all inventory and equipment, but excluding any items that constitute fixtures), and (b) any personal property of Tenants under Subleases. For purposes of this definition, the terms “inventory,” “equipment” and “fixtures” shall have the meaning set forth in the Uniform Commercial Code in effect in the State of New York, except that the term “fixtures” shall specifically include, but not be limited to, and the terms “inventory” and “equipment” shall specifically exclude, all HVAC equipment, elevators, escalators and lighting together with all equipment, parts and supplies used to service, repair, maintain and equip the foregoing.

“Exculpated Parties” shall have the meaning set forth in Section 18.1.1.

responsible for performing an obligation hereunder, provided that lack of funds shall not be deemed a cause beyond the control of any Borrower Party.

“Executive Office Capital Lease” shall have the meaning provided in Section 2.5.13.

“Existing Indebtedness” shall have the meaning provided in Section 2.5.13.

“Existing Matters of Record” shall mean the Liens set forth on Schedule VII.

“Existing Notes” shall have the meaning provided in Section 2.5.13.

“Family Trust” shall mean, with respect to an individual, any trust or entity owned, controlled by or established for the benefit of, or the estate of, such individual or that individual’s spouse or lineal descendants (including adopted children and their lineal descendants).

“Fee Letter” shall mean that certain fee letter dated October 15, 2007 among Sponsor, FP, GACC, JPMC, and Deutsche Bank AG, New York Branch.

“Fee Mortgagee Estoppel Certificate” shall mean an executed estoppel letter from any mortgagee of, or beneficiary of a deed of trust granted by, a Fee Owner encumbering the fee simple estate related to the applicable Ground Lease Property, which estoppel letter shall be in the form attached as Exhibit H-1.

“Fee Owner” shall mean, collectively, the owner of the fee simple estate relating to each Ground Lease Property.

“Fertitta Brothers” shall mean Frank J. Fertitta III and Lorenzo J. Fertitta.

“FF&E” shall have the meaning set forth in the Master Lease.

“First Mezzanine Account” shall mean account number 048818623 at Cash Management Bank.

“First Mezzanine Borrower” shall mean FCP MezzCo Borrower I, LLC, a Delaware limited liability company.

“First Mezzanine Debt Service Reserve Account” shall have the meaning set forth in Section 3.1.1(h).

“First Mezzanine Lender” shall mean the holders of the First Mezzanine Loan.

“First Mezzanine Lender Monthly Debt Service Notice” shall mean the written notice required to be delivered by First Mezzanine Lender pursuant to Section 3.1.6 of the First Mezzanine Loan Agreement to Lender at least five (5) Business Days prior to each Payment

Date setting forth the First Mezzanine Loan Debt Service Amount payable by First Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.

“First Mezzanine Loan” shall mean a $200,000,000 mezzanine loan, comprised of (x) that certain $150,000,000 mezzanine loan, made by First Mezzanine Lender to First Mezzanine

Borrower and (y) the assumption by First Mezzanine Borrower pursuant to the First Mezzanine Loan Documents of $50,000,000 in principal amount initially borrowed by Borrower.

“First Mezzanine Loan Agreement” shall mean that certain Amended and Restated Mezzanine Loan and Security Agreement (First Mezzanine), dated as of the Amendment Effective Date, between First Mezzanine Borrower, as borrower, and First Mezzanine Lender, as lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“First Mezzanine Loan Debt Service Amount” shall mean, with respect to any specified date or a particular period of time, interest payments under the First Mezzanine Note (excluding any default or accrued interest) due as of such date (as set forth in the First Mezzanine Lender Monthly Debt Service Notice delivered to Lender) or payable during such period (including the last day thereof), as applicable and repayment in full of the principal balance of the First Mezzanine Note on the scheduled maturity of the First Mezzanine Loan (but excluding any principal payments on account of an acceleration of the First Mezzanine Loan or a default under any of the First Mezzanine Loan Documents).

“First Mezzanine Loan Default Notice” shall mean a notice from First Mezzanine Lender to Lender (upon which Lender may conclusively rely without any inquiry into the validity thereof) that an “Event of Default” has occurred and is continuing under any of the First Mezzanine Loan Documents.

“First Mezzanine Loan Default Revocation Notice” shall have the meaning set forth in Section 3.1.7(vii) hereof.

“First Mezzanine Loan Documents” shall mean the documents evidencing and securing the First Mezzanine Loan, as may be modified, amended, extended, supplemented, restated or replaced from time to time.

“First Mezzanine Note” shall mean, collectively, (a) that certain Amended and Restated First Mezzanine Note A-1, dated as of March 19, 2008, made by First Mezzanine Borrower, as maker, in favor of Noteholder I, as payee, in the principal amount of $125,000,000 and (b) that certain Amended and Restated First Mezzanine Note A-2, dated as of March 19, 2008, made by First Mezzanine Borrower, as maker, in favor of Noteholder II, as payee, in the principal amount of $75,000,000.

“Fiscal Quarter” shall mean each quarter within a Fiscal Year.

“Fiscal Year” shall mean the calendar year during each year of the term of the Loan or the portion of any such 12-month period falling within the term of the Loan in the event that such a 12-month period occurs partially before or after, or partially during, the term of the Loan, or such other 12-month fiscal accounting period as Borrower may establish from time to time.

“Fourth Mezzanine Account” shall mean account number 048821403 at Cash Management Bank.

“Fourth Mezzanine Borrower” shall mean FCP MezzCo Borrower IV, LLC, a Delaware limited liability company.

“Fourth Mezzanine Debt Service Reserve Account” shall have the meaning set forth in Section 3.1.1(k).

“Fourth Mezzanine Lender” shall mean the holders of the Fourth Mezzanine Loan.

“Fourth Mezzanine Lender Monthly Debt Service Notice” shall mean the written notice required to be delivered by Fourth Mezzanine Lender pursuant to Section 3.1.6 of the Fourth Mezzanine Loan Agreement to Lender at least five (5) Business Days prior to each Payment Date setting forth the Fourth Mezzanine Loan Debt Service Amount payable by Fourth Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.

“Fourth Mezzanine Loan” shall mean the assumption by Fourth Mezzanine Borrower pursuant to the Fourth Mezzanine Loan Documents of $150,000,000 in principal amount initially borrowed by Borrower.

“Fourth Mezzanine Loan Agreement” shall mean that certain Mezzanine Loan and Security Agreement (Fourth Mezzanine), dated as of March 19, 2008, between Fourth Mezzanine Borrower, as borrower, and Fourth Mezzanine Lender, as lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Fourth Mezzanine Loan Debt Service Amount” shall mean, with respect to any specified date or a particular period of time, interest payments under the Fourth Mezzanine Note (excluding any default or accrued interest) due as of such date (as set forth in the Fourth Mezzanine Lender Monthly Debt Service Notice delivered to Lender) or payable during such period (including the last day thereof), as applicable and repayment in full of the principal balance of the Fourth Mezzanine Note on the scheduled maturity of the Fourth Mezzanine Loan (but excluding any principal payments on account of an acceleration of the Fourth Mezzanine Loan or a default under any of the Fourth Mezzanine Loan Documents).

“Fourth Mezzanine Loan Default Notice” shall mean a notice from Fourth Mezzanine Lender to Lender (upon which Lender may conclusively rely without any inquiry into the validity thereof) that an “Event of Default” has occurred and is continuing under any of the Fourth Mezzanine Loan Documents.

“Fourth Mezzanine Loan Default Revocation Notice” shall have the meaning set forth in Section 3.1.7(x) hereof.

“Fourth Mezzanine Loan Documents” shall mean the documents evidencing and securing the Fourth Mezzanine Loan, as may be modified, amended, extended, supplemented, restated or replaced from time to time.

“Fourth Mezzanine Note” shall mean, collectively, (i) that certain Fourth Mezzanine Note A-1-a in the principal amount of $46,875,000 dated as of March 19, 2008, from Fourth Mezzanine Borrower to Noteholder I, (ii) that certain Fourth Mezzanine Note A-1-b in the principal amount of $46,875,000 dated as of March 19, 2008, from Fourth Mezzanine Borrower

to Noteholder I, (iii) that certain Fourth Mezzanine Note A-2-a in the principal amount of $28,125,000 dated as of March 19, 2008, from Fourth Mezzanine Borrower to Noteholder II, and (iv) that certain Fourth Mezzanine Note A-2-b in the principal amount of $28,125,000 dated as of March 19, 2008, from Fourth Mezzanine Borrower to Noteholder II.

“Fitch” shall mean Fitch Ratings Inc.

“FP” shall mean Fertitta Partners LLC, a Nevada limited liability company.

“Funding Letter Agreement” shall mean that certain letter agreement, dated as of November 7, 2007, between Borrower and Lender with respect to conditions precedent to funding the Loan and Mezzanine Loan.

“GAAP” shall mean the generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), or in such other statements by such entity as may be in general use by significant segments of the U.S. accounting profession as of the Closing Date, to the extent such principles are applicable to the facts and circumstances on the date of determination.

“Gaming Authority” shall mean those federal, state and local governmental, regulatory and administrative authorities, agencies, boards and officials responsible for or involved in the regulation of gaming or gaming activities in any jurisdiction, including within the State of Nevada, specifically, the Nevada Gaming Commission, the Nevada State Gaming Control Board, and applicable local authorities.

“Gaming Laws” shall mean those laws pursuant to which any Gaming Authority possesses regulatory, licensing or permit authority over gaming within any jurisdiction applicable to the Property and, within the State of Nevada, specifically, the Nevada Gaming Control Act, as codified in the Chapter 463 of the Nevada Revised Statutes, and the regulations of the Nevada Gaming Commission and Nevada State Gaming Control Board promulgated thereunder, as amended from time to time.

“General Release Conditions” shall have the meaning set forth in Section 2.3.4.

consecutive days, provided that if in connection with a Material Alteration, Borrower shall have disclosed to Lender in the notice required for such Material Alteration pursuant to Section 10.2 hereof that the Material Alteration will require the affected Individual Property to be closed to the public for a specified period exceeding thirty (30) consecutive days and Lender shall have approved such Material Alteration, the Individual Property may be closed to the public for such specified period of closure without being deemed to have “Gone Dark.”

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

“Ground Leases” shall have the meaning provided in the Security Instruments, collectively.

“Ground Lease Property” shall mean, collectively, each Individual Property of which Borrower is a tenant under a Ground Lease.

“Ground Lessor Estoppel Certificate” shall mean an executed estoppel letter from a Fee Owner in the form attached as Exhibit H.

“Ground Rent” shall mean the aggregate amount of all rent and other amounts payable by the Borrower pursuant to the Ground Leases.

“Ground Rent Reserve Account” shall have the meaning provided in Section 3.1.1(c).

“Ground Rent Reserve Amount” shall have the meaning provided in Section 16.3.

“Guarantors” shall mean Holdco, FP and VoteCo.

“Hazardous Materials” shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law. Without limiting the generality of the foregoing, the term shall mean and include:

(i) “hazardous substances” as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Superfund Amendment and Reauthorization Act of 1986, or Title III of the Superfund Amendment and Reauthorization Act, each as amended, and regulations promulgated thereunder; excluding, however, common maintenance and cleaning products regularly found at properties with a standard of operation and maintenance comparable to the Property;

(ii) “hazardous waste” and “regulated substances” as defined in the Resource Conservation and Recovery Act of 1976, as amended, and regulations promulgated thereunder;

(iii) “hazardous materials” as defined in the Hazardous Materials Transportation Act, as amended, and regulations promulgated thereunder; and

(iv) “chemical substance or mixture” as defined in the Toxic Substances Control Act, as amended, and regulations promulgated thereunder.

“Holdco” shall mean FCP Holding, Inc., a Nevada corporation.

“Holding Account” shall have the meaning set forth in Section 3.1.1.

“Impositions” shall mean all taxes (including all ad valorem, sales (including those imposed on lease rentals), use, single business, gross receipts, value added, intangible transaction, privilege or license or similar taxes), governmental assessments (including all assessments for public improvements or benefits, whether or not commenced or completed prior to the Closing Date and whether or not commenced or completed within the term of this Agreement), water, sewer or other rents and charges, excises, levies, fees (including license, permit, inspection, authorization and similar fees), and all other governmental charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Property and/or any Rents (including all interest and penalties thereon), which at any time prior to, during or in respect of the term hereof may be assessed or imposed on or in respect of or be a Lien upon (a) Borrower (including all income, franchise, single business or other taxes imposed on Borrower for the privilege of doing business in the jurisdiction in which the Property is located), (b) the Property, or any other collateral delivered or pledged to Lender in connection with the Loan, or any part thereof, or any Rents therefrom or any estate, right, title or interest therein, or (c) any occupancy, operation, use or possession of, or sales from, or activity conducted on, or in connection with the Property or the leasing or use of all or any part thereof. Nothing contained in this Agreement shall be construed to require Borrower to pay any tax, assessment, levy or charge imposed on (i) Master Lessee, (ii) any Tenant or (iii) Lender in the nature of a capital levy, estate, inheritance, succession, income or net revenue tax.

“Improvements” shall have the meaning set forth in the Security Instruments, collectively.

“Increased Costs” shall have the meaning set forth in Section 2.4.1.

“Indebtedness” shall mean, at any given time, the Principal Amount, together with all accrued and unpaid interest thereon and all other obligations and liabilities due or to become due to Lender pursuant hereto, under the Notes or in accordance with the other Loan Documents and all other amounts, sums and expenses paid by or payable to Lender hereunder or pursuant to the Notes or the other Loan Documents and the Interest Rate Swap Agreement.

“Indemnified Parties” shall have the meaning set forth in Section 19.12(b).

“Independent” shall mean, when used with respect to any Person, a Person who: (i) does not have any direct financial interest or any material indirect financial interest in any Borrower Party or in any Affiliate of any Borrower Party, (ii) is not connected with any Borrower Party or any Affiliate of any Borrower Party as an officer, employee, promoter, underwriter, trustee, partner, member, manager, director or person performing similar functions and (iii) is not a member of the immediate family of a Person defined in (i) or (ii) above.

“Independent Accountant” shall mean a firm of nationally recognized, certified public accountants which is Independent and which is selected by Borrower and reasonably acceptable to Lender.

“Independent Director,” “Independent Manager,” or “Independent Member” shall mean a Person who is not and will not be while serving, and has not been in the five (5) years preceding the Closing Date, (i) a member (other than an Independent Member), manager (other than an Independent Manager), director (other than an Independent Director), officer, employee, attorney, or counsel of Borrower or its Affiliates (provided that Borrower may have the same Independent Directors, Independent Managers or Independent Members as any Mezzanine Borrower), (ii) a customer, supplier or other Person who derives more than 1% of its purchases or revenues from its activities with Borrower or its Affiliates, (iii) a direct or indirect legal or beneficial owner in any entity referred to in (i) or (ii) above or any of its Affiliates, (iv) a member of the immediate family of any member, manager, officer, director, employee, attorney, customer, supplier or other Person referred to in (i), (ii) or (iii) above, or (v) a person Controlling or under the common Control of anyone listed in (i) through (iv) above. A Person that otherwise satisfies the foregoing shall not be disqualified from serving as an Independent Director or Independent Manager or Independent Member if such individual is at the time of initial appointment, or at any time while serving as such, is an Independent Director or Independent Manager or Independent Member, as applicable, of a Single Purpose Entity affiliated with Borrower.

“Independent Purchaser” shall mean a Person who is not: (i) a Person having any direct financial interest or any material indirect financial interest in any Borrower Party or in any Affiliate of any Borrower Party, (ii) a Person connected with any Borrower Party or any Affiliate of any Borrower Party as an officer, employee, promoter, underwriter, trustee, partner, member, manager, director or person performing similar functions, (iii) Frank J. Fertitta, Lorenzo J. Fertitta or Thomas J. Barrack, Jr. (each, “Key Person”), a member of the immediate family of any Key Person, or a Person in which a Key Person or any Key Person’s immediate family member has a direct or indirect interest, (iv) a member of the immediate family of a Person who is defined in (i) or (ii) above, or (v) a Person Controlling, Controlled by or under the common Control of anyone listed in (i) through (iv) above.

“Individual Property” shall mean the “Property” as defined in each Security Instrument, severally.

“Individual Property Sublease” shall mean the Sublease of an Individual Property from Master Lessee to the subsidiary of Master Lessee that operates the Individual Property (the “Individual Property Sublessee”). There shall be an Individual Property Sublease for each Individual Property.

“Insurance Requirements” shall mean, collectively, (i) all material terms of any insurance policy required pursuant to this Agreement and (ii) all material regulations and then-current standards applicable to or affecting the Property or any part thereof 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 Property, or such other body exercising similar functions.

“Insurance Reserve Account” shall have the meaning set forth in Section 3.1.1(b).

“Insurance Reserve Amount” shall have the meaning set forth in Section 16.2(a).

“Interest Determination Date” shall have the meaning set forth in the Notes.

“Interest Period” shall have the meaning set forth in the Notes.

“Interest Rate Cap Agreement” shall mean the Confirmation and Agreement (together with the confirmation and schedules relating thereto) between the Counterparty and Borrower, obtained by Borrower and collaterally assigned to Lender pursuant to this Agreement, as amended from time to time with the prior written approval of Lender. After delivery of a Replacement Interest Rate Cap Agreement to Lender, the term “Interest Rate Cap Agreement” shall be deemed to mean such Replacement Interest Rate Cap Agreement. The Interest Rate Cap Agreement shall be governed by the laws of the State of New York and shall contain each of the following:

(a) Notional Amount. The notional amount of the Interest Rate Cap Agreement shall be equal to the Interest Rate Cap Notional Amount, which may be reduced from time to time in amounts equal to any prepayment of the principal of the Loan made in accordance with Section 5(b) of the Notes;

(b) Remaining Term. The remaining term of the Interest Rate Cap Agreement shall at all times extend through the end of the Interest Period in which the Maturity Date occurs as extended from time to time pursuant to this Agreement and the Loan Documents;

(c) Parties. The Interest Rate Cap Agreement shall be issued by the Counterparty to Borrower and shall be pledged to Lender by Borrower in accordance with this Agreement;

(d) Payment Stream. The Counterparty under the Interest Rate Cap Agreement shall be obligated to make a stream of payments, directly to the Holding Account (whether or not an Event of Default has occurred) from time to time equal to the product of (i) the notional amount of such Interest Rate Cap Agreement multiplied by (ii) the excess, if any, of LIBOR (including any upward rounding under the definition of LIBOR) over the applicable Strike Price;

(e) Acknowledgment. The Counterparty under the Interest Rate Cap Agreement shall execute and deliver the Acknowledgment; and

(f) Other. The Interest Rate Cap Agreement shall impose no material obligation on the beneficiary thereof (after payment of the acquisition cost) and shall be in all material respects reasonably satisfactory in form and substance to Lender.

“Interest Rate Cap Notional Amount” shall mean the initial Principal Amount, less the Interest Rate Swap Notional Amount.

“Interest Rate Protection Agreement” shall mean, collectively, (a) an Interest Rate Cap Agreement and (b) an Interest Rate Swap Agreement. After delivery of a Replacement Interest

Rate Protection Agreement to Lender, the term “Interest Rate Protection Agreement” shall be deemed to mean such Replacement Interest Rate Protection Agreement.

“Interest Rate Swap Agreement” shall mean, collectively, one or more interest rate swap agreements between an Approved Counterparty (which shall be an affiliate of GACC in connection with such Interest Rate Swap Agreement being purchased by Borrower as of the Closing Date) and Borrower obtained by Borrower as and when required pursuant to Section 9.1 hereof, in a form reasonably acceptable to Lender. Such interest rate swap agreements will require Borrower to pay a fixed interest rate on a monthly, actual/360 basis and receive one-month LIBOR on the same basis. Such interest rate swap agreements will pay and receive on a net basis.

“Interest Rate Swap Notional Amount” shall mean $1,362,500,000.

“Land” shall have the meaning set forth in the Security Instruments, collectively.

“Land Loan” shall mean indebtedness incurred pursuant to a senior secured delayed-draw term loan in an aggregate amount not to exceed $250 million that was entered into on February 7, 2008.

“Late Payment Charge” shall have the meaning set forth in Section 2.2.3.

“LCR” shall mean a ratio, as determined by Lender for the applicable period, in which:

(a) the numerator is Portfolio Four-Wall EBITDAR, applied consistently, as determined by Lender based on Master Lessee’s four most recent quarterly financial statements with respect to the Property prepared and delivered to Lender in accordance with Section 11.2.2, for the trailing twelve (12) month period immediately prior to the applicable calculation date; and

(b) the denominator is the aggregate amount of Master Lease Base Rent payable under the Master Lease for the twelve calendar months immediately prior to the applicable calculation date, provided that for the twelve-month period following the Closing Date, LCR shall be calculated based on the Master Lease Base Rent payable under the Master Lease from the Closing Date through the full calendar month preceding the calculation date, with such sum annualized to determine the Master Lease Base Rent for a full twelve month period.

“Leasehold Estate” means the estate in the Property created by each Ground Lease.

“Legal Requirements” shall mean all present and future laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, and irrespective of the nature of the work to be done, of every Governmental Authority including, without limitation, Environmental Laws and all covenants, restrictions and conditions now or hereafter of record which may be applicable to Borrower or to the Property and the Improvements and the Building Equipment thereon, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Property and the Improvements and the Building Equipment thereon including, without limitation, building and zoning codes and ordinances and laws relating to handicapped accessibility.

“Lender” shall have the meaning set forth in the first paragraph of this Agreement.

“Lender Group” shall have the meaning set forth in Section 14.3.2(b).

“Lender-Initiated Substitution” shall mean the designation by Lender of one or more casino and hotel projects owned (directly or through its subsidiaries) by Master Lessee to be conveyed to Borrower in lieu of one or more of the original Individual Properties, subject to all of the terms and conditions of this Agreement and the other Loan Documents, so as to avoid a Portfolio MAE.

“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit (either an evergreen letter of credit or one which does not expire until at least sixty (60) days after the Maturity Date (the “LC Expiration Date”)), in favor of Lender and entitling Lender to draw thereon in New York, New York, based solely on a statement executed by an officer or authorized signatory of Lender and issued by an Approved Bank. If at any time (a) the institution issuing any such Letter of Credit shall cease to be an Approved Bank or (b) the Letter of Credit is due to expire prior to the LC Expiration Date, Lender shall have the right immediately to draw down the same in full and hold the proceeds thereof in accordance with the provisions of this Agreement, unless Borrower shall deliver a replacement Letter of Credit from an Approved Bank within (i) as to (a) above, twenty (20) days after Lender delivers written notice to Borrower that the institution issuing the Letter of Credit has ceased to be an Approved Bank or (ii) as to (b) above, at least twenty (20) days prior to the expiration date of said Letter of Credit.

“Liabilities” shall have the meaning set forth in Section 14.3.2(b).

“LIBOR” shall have the meaning set forth in the Notes.

“LIBOR Margin” shall have the meaning set forth in the Notes.

“LIBOR Rate” shall have the meaning set forth in the Notes.

“License” shall have the meaning set forth in Section 4.1.24.

“License and Reservation Service Agreement” shall mean the License and Reservation Service Agreement regarding the branding rights, reservation system and primary customer data base, by and between Borrower and Master Lessee, dated as of November 7, 2007.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance or charge on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and the filing of mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan in the amount of the Loan Amount made by Lender to Borrower pursuant to the Original Agreement as reduced to such Loan Amount pursuant to Section 2.1 hereof.

“Loan Amount” shall mean the original principal amount of the Loan equal to $1,800,000,000.

“Loan Documents” shall mean, collectively, this Agreement, the Notes, the Security Instruments, the Assignment of Leases, the Assignment of Licenses, the Ground Lessor Estoppel Certificate, the Fee Mortgagee Estoppel Certificate, the Master Lease SNDA, the Account Agreement, the Recourse Guaranty, and all other documents executed and/or delivered by Borrower, Master Lessee or Guarantor to Lender in connection with the Loan or in connection with the amendment and restatement of the Original Agreement, and in connection with any Property Substitution, including any opinion certificates or other certifications or representations delivered by or on behalf of Borrower or any Affiliate of Borrower to Lender.

“LTV Ratio” shall mean the ratio, expressed as a percentage, of the Combined Principal Amount as of the date of determination, to the Aggregate Appraised Value as of the date of determination.

“Master Lease” shall mean that certain Master Lease Agreement for the Property by and between Borrower, as lessor, and Master Lessee, as lessee, dated as of November 7, 2007, as more particularly described in Section 5.1.22.

“Master Lease Base Rent” shall mean monthly payments under the Master Lease of Base Rent (as defined in the Master Lease).

“Master Lease Default” shall mean a default by Master Lessee or Borrower under the terms of the Master Lease beyond any applicable notice and cure periods contained therein.

“Master Lease Recurrent Additional Rent” shall mean monthly payments under the Master Lease of additional rent for Scheduled Additional Charges (as defined in the Master Lease).

“Master Lease Rent” shall mean, collectively, the Master Lease Scheduled Rent and the Master Lease Variable Additional Rent.

“Master Lease Rent Payment Direction Letter” shall mean a letter in the form of Exhibit P pursuant to which Borrower instructs Master Lessee to make payments of Master Lease Scheduled Rent directly to the Holding Account as more particularly set forth in Section 3.1.9(a).

“Master Lease Rent Shortfall” shall mean a shortfall in the Holding Account with respect to all or any portion of the Master Lease Rent required to be deposited therein by Master Lessee pursuant to the Master Lease Rent Payment Direction Letter.

“Master Lease Rent Shortfall Reserve Account” shall have the meaning provided in Section 3.1.1(e).

“Master Lease Scheduled Rent” shall mean, collectively, the Master Lease Base Rent and the Master Lease Recurrent Additional Rent.

“Master Lease SNDA” shall mean that certain Subordination, Non-Disturbance and Attornment agreement among Borrower, Master Lessee and Lender dated November 7, 2007.

“Master Lease Tenant Default” shall mean a default by Master Lessee under the terms of the Master Lease beyond any applicable notice and cure periods contained therein.

“Master Lease Variable Additional Rent” shall mean with respect to any month, payments payable by the Master Lessee under the Master Lease of Variable Additional Charges (as defined in the Master Lease) but excluding any such items expressly included in any other sub-account of the Holding Account, such as the Monthly Tax Reserve Amount, Monthly Insurance Reserve Amount and Monthly Ground Rent Reserve Amount. Subject to the Master Lease, Master Lease Variable Additional Rent shall be presumptively established pursuant to the Annual Budget.

“Master Lessee” shall mean Station Casinos, Inc., a Nevada corporation.

“Master Lessee Officer’s Certificate” shall mean a certificate executed by an authorized signatory of Master Lessee that is familiar with the financial condition of Master Lessee and the operation of the Property.

“Master Lessee Parties” shall mean the Master Lessee and each Individual Property Sublessee.

“Material Alteration” shall mean any Alteration which, when aggregated with all related Alterations, involves costs estimated by Master Lessee (which costs shall be reasonably acceptable to Borrower and Lender) to be incurred in implementing the Alterations exceeding $50 million.

“Material Alteration Collateralization Threshold” shall mean $100 million.

“Material Sublease” shall mean: (i) each Individual Property Sublease; (ii) any Sublease to a single Tenant covering 10,000 square feet or more of rentable area of any Individual Property; and (iii) the Material Subleases (including all amendments and supplements thereto) designated as such on Schedule I attached hereto and made a part hereof.

“Maturity Date” shall have the meaning set forth in the Notes.

“Maturity Date Payment” shall have the meaning set forth in the Notes.

Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Merger Agreement” shall mean that certain Agreement and Plan of Merger by and among Station Casinos, Inc., Fertitta Colony Partners LLC and FCP Acquisition Sub, dated as of February 23, 2007, as amended.

“Merger Representations and Warranties” shall mean the representations and warranties made by Master Lessee in the Merger Agreement that are material to the interests of Lender and that, if breached (but for the application of clause (z) in the lead-in to Article IV of the Merger Agreement), would allow Sponsor to terminate its obligations under the Merger Agreement.

“Mezzanine Account” shall mean the First Mezzanine Account, Second Mezzanine Account, Third Mezzanine Account, Fourth Mezzanine Account and/or such other mezzanine accounts that may be opened in connection with a Mezzanine Loan, or all such accounts collectively, as the context may require.

“Mezzanine Allocated Loan Amount” shall mean with respect to each Individual Property, the designated allocated portion of each Mezzanine Loan applicable to such Individual Property that is set forth on Schedule V-2 attached hereto.

“Mezzanine Borrowers” shall mean the First Mezzanine Borrower, Second Mezzanine Borrower, Third Mezzanine Borrower, Fourth Mezzanine Borrower, and/or such other mezzanine borrowers in connection with a Mezzanine Loan, or all such borrowers collectively, as the context may require.

“Mezzanine Cap Agreements” shall mean the Confirmation and Agreements (together with the confirmation and schedules relating thereto) between the counterparties and Mezzanine Borrowers, obtained by Mezzanine Borrowers and collaterally assigned to Mezzanine Lenders pursuant to the Mezzanine Loan Documents.

“Mezzanine Intercreditor Agreement” shall mean an intercreditor, recognition and standstill agreement between Lender and Mezzanine Lender.

“Mezzanine Lender” shall mean the First Mezzanine Lender, Second Mezzanine Lender, Third Mezzanine Lender, Fourth Mezzanine Lender and/or such other mezzanine lenders in connection with a Mezzanine Loan, or all such lenders collectively, as the context may require.

“Mezzanine Loan” shall mean the First Mezzanine Loan, Second Mezzanine Loan, Third Mezzanine Loan, Fourth Mezzanine Loan, and/or such other mezzanine loans as may be created pursuant to Section 5.1.11(b), or all such loans collectively, as the context may require.

“Mezzanine Loan Default Notice” shall mean a First Mezzanine Loan Default Notice, Second Mezzanine Loan Default Notice, Third Mezzanine Loan Default Notice, Fourth Mezzanine Loan Default Notice, and/or such other notice from a Mezzanine Lender that an event of default under a Mezzanine Loan is no longer continuing, or all such default notices collectively, as the context may require.

“Mezzanine Loan Documents” shall mean the documents evidencing and securing the Mezzanine Loan, as may be modified, amended, extended, supplemented, restated or replaced from time to time.

“Mezzanine Notes” shall mean the First Mezzanine Note, Second Mezzanine Note, Third Mezzanine Note, Fourth Mezzanine Note and/or such other note(s) from a Mezzanine Borrower to a Mezzanine Lender, or all such notes collectively, as the context may require.

“Mezzanine Notional Amount” shall mean the notional amounts under the Mezzanine Cap Agreements.

“Mezzanine Release Price” shall mean the product of (a) the Mezzanine Allocated Loan Amount for each Mezzanine Loan with respect to the Release Property; and (b) the applicable Combined Release Price Percentage(s), minus, if applicable, the principal amount of any prepayment of such Mezzanine Loan paid from Proceeds derived from a casualty, other damage or injury or Taking affecting such Release Property.

“Monetary Default” shall mean a Default (i) that can be cured with the payment of money or (ii) arising pursuant to Section 17.1(a)(vi) or (vii).

“Monthly Insurance Reserve Amount” shall have the meaning set forth in Section 16.2(a).

“Monthly Tax Reserve Amount” shall have the meaning set forth in Section 16.1.

“Monthly Ground Rent Reserve Amount” shall have the meaning provided in Section 16.3.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“New Sublease” shall have the meaning set forth in Section 8.8.2.

“Non-Consolidation Opinion” shall have the meaning provided in Section 2.5.4(a).

“Non-Contravention Opinion” shall have the meaning provided in Section 2.5.4(d).

“Non-Disqualification Opinion” shall mean an opinion of outside tax counsel reasonably acceptable to the Lender or the Rating Agencies to whom such opinion is addressed that a contemplated action will neither cause any trust formed as a Real Estate Mortgage Investment Conduit (a “REMIC”) pursuant to a Securitization to fail to qualify as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code at any time that any “regular interests” in the REMIC are outstanding nor cause a “prohibited transaction” tax (within the meaning of Section 860F(a)(2) of the Code) or “prohibited contribution” tax (within the meaning of Section 860G(d) of the Code) to be imposed on any such REMIC.

“Non-Disturbance Agreement” shall have the meaning set forth in Section 8.8.9.

“Note A-1” shall mean that certain Amended and Restated Promissory Note dated as of March 19, 2008 in the principal amount of $687,500,000, made by Borrower in favor of Noteholder I, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note A-2” shall mean that certain Amended and Restated Promissory Note dated as of March 19, 2008 in the principal amount of $412,500,000, made by Borrower in favor of Noteholder II, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note B-1” shall mean that certain Promissory Note dated as of March 19, 2008 in the principal amount of $437,500,000, made by Borrower in favor of Noteholder I, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note B-2” shall mean that certain Promissory Note dated as of March 19, 2008 in the principal amount of $262,500,000, made by Borrower in favor of Noteholder II, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Noteholder I” shall have the meaning set forth in the preamble hereof.

“Noteholder II” shall have the meaning set forth in the preamble hereof.

“Notes” shall mean, collectively, Note A-1, Note A-2, Note B-1, and Note B-2 as each may amended, restated, replaced, supplemented, substituted, severed, or otherwise modified from time to time.

“Noticed Default” shall mean any Default as to which Borrower has received written notice.

“Novated Amounts” shall have the meaning set forth in Section 2.1.1(f).

“Obligations” shall have meaning set forth in the recitals of the Security Instruments.

“OFAC List” means the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.

“Officer’s Certificate” shall mean a certificate executed by an authorized signatory of Borrower that is familiar with the financial condition of Borrower and the operation of the Property, or, in the case of Officer’s Certificates required under Section 11, the principal officer of Borrower (as designated in its organizational documents).

“Operating Agreements” shall mean, collectively, the Master Lease, the Material Subleases, and the Ground Leases.

“Opinion of Counsel” shall mean an opinion of counsel of a law firm selected by Borrower and reasonably acceptable to Lender, which opinion of counsel shall include (without

limitation) opinions re due formation, due authorization, due execution, enforceability and 10b-5 negative assurances.

“Other Charges” shall mean, collectively, maintenance charges, impositions other than Impositions, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof by any Governmental Authority, other than those required to be paid by a Tenant pursuant to its respective Sublease.

“Other Taxes” shall have the meaning set forth in Section 2.4.3.

“Owner’s Title Policy Loss Payment Direction Letter” shall mean that certain letter of November 7, 2007 from Borrower to the Mezzanine Lenders and countersigned by the Title Companies, directing the Title Company to make certain loss payments under certain of Borrower’s owner’s title insurance policies to Mezzanine Lender as more particularly set forth therein.

“Payment Date” shall have the meaning set forth in the Notes.

“Permitted Debt” shall mean, (i) in the case of the Borrower, the Notes and the other obligations, indebtedness and liabilities specifically provided for in any Loan Document and secured by this Agreement, the Security Instruments and the other Loan Documents, and any Interest Rate Protection Agreement (including any obligations under the Interest Rate Protection Agreement); and (ii) in the case of the Mezzanine Borrowers, the applicable Mezzanine Note executed by such Mezzanine Borrower and the other obligations, indebtedness and liabilities specifically permitted in the Mezzanine Loan Documents executed by such Mezzanine Borrower. In no event shall Borrower or any Mezzanine Borrower be permitted under this provision to enter into a note (other than the Notes and the other Loan Documents or the Mezzanine Notes and the other Mezzanine Loan Documents, as applicable) or other instrument for borrowed money.

“Permitted Encumbrances” shall mean collectively, (a) the Liens and security interests created or permitted by the Loan Documents; (b) all Liens, encumbrances and other matters disclosed in the Title Policies; (c) Liens, if any, for Impositions imposed by any Governmental Authority not yet due or delinquent; (d) Liens arising after the Closing Date which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted in accordance with Article VII hereof; (e) in the case of Liens arising after the Closing Date, statutory Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens arising by operation of law, which are incurred in the ordinary course of business or in connection with any Alteration permitted hereunder for sums which are not delinquent or are being contested in good faith in accordance with Article VII hereof; (f) easements, rights-of-way, restrictions and other similar charges or non-monetary encumbrances against real property which would not individually or in the aggregate be reasonably likely to have a Material Adverse Effect; (g) any judgment Lien provided that the judgment it secures shall have been discharged of record or the execution thereof stayed pending appeal within 30 days after the entry thereof or within 30 days after the expiration of any stay, as applicable; (h) any matters that would be disclosed by an accurate survey of an Individual Property other than the Surveys, provided that

in the case of Substitute Properties, the survey-related coverage under the Title Policies is provided with respect to such Substitute Properties; (i) any of the Existing Matters of Record, provided that (1) the amounts secured by such Liens have been paid in full, or, in the case of an existing contested lien is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted in accordance with Article VII hereof and (2) such Liens are insured over in the Title Policies in a manner satisfactory to Lender, whether such insurance is made available in consideration of payment, bonding or indemnity by Borrower (but without limiting Borrower’s obligations under Article VII with respect to the existing contested lien and provided that any such indemnity or other consideration shall be in a form reasonably satisfactory to Lender); (j) the Owner’s Title Policy Loss Payment Direction Letter; (k) any Sublease permitted under Section 8.8.2 below; and (l) such other Liens as Lender may approve in writing in Lender’s sole discretion.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Plan” shall have the meaning set forth in Section 4.1.10(a).

“PML” shall mean probable maximum loss.

“Portfolio Four-Wall EBITDAR” shall mean earnings from hotel and casino operations at the Property before interest expense/income, taxes, depreciation and amortization, any rental expense on real property (other than ground rent), distribution expense, direct and allocated corporate overhead expense, regional office allocation, royalty charges from affiliates and restructuring expense plus any non-cash charges/less any non-cash income, including but not limited to losses on sales of assets and non cash compensation expense.

“Portfolio MAE” shall mean a material adverse effect on the Property taken as a whole, or the operations, business or condition (financial or otherwise) of Borrower, taken as a whole.

“Prepayment Fee” shall have the meaning set forth in the Notes.

“Principal Amount” shall mean, collectively, the aggregate “Principal Amount” under each of the Notes, as such term is defined in each of the Notes.

“Principal Amount (Mezzanine)” shall mean, collectively, the aggregate “Principal Amount” under each of the Mezzanine Notes, as such term is defined in each of the Mezzanine Notes.

“Principal Control Persons” shall mean (a) one or more affiliates of Colony Capital, LLC (or, subject to such Persons being licensed as and when required in accordance with applicable Gaming Laws, its five most senior executive officers, including, without limitation, Thomas J. Barrack, Jr.’s successor as Chief Executive Officer of Colony Capital, LLC), (b) Frank J. Fertitta III, (c) Lorenzo J. Fertitta, (d) Thomas J. Barrack, Jr., (e) any other Person expressly agreed to in writing by Lender, in Lender’s reasonable discretion, to be a Principal Control Person, and (f) in the event that both Fertitta Brothers are deceased or incapacitated, one of the Persons identified

on Schedule IX designated by Borrower (subject to compliance with applicable Gaming Laws and provided that the Person so designated shall not be a Disqualified Transferee) as a Principal Control Person in lieu of the Fertitta Brothers.

“Principal Investors” shall mean (a) one or more Affiliates of Colony Capital, LLC, (b) Frank J. Fertitta III, his Affiliates, personal investment vehicles, spouse, lineal descendants (including adopted children and their lineal descendants) and any trust or entity owned, controlled by or established for the benefit of, or the estate of, any of the foregoing, (c) Lorenzo J. Fertitta, his Affiliates, personal investment vehicles, spouse, lineal descendants (including adopted children and their lineal descendants) and any trust or entity owned, controlled by or established for the benefit of, or the estate of, any of the foregoing, (d) Blake and Delise Sartini, their Affiliates, personal investment vehicles, lineal descendants (including adopted children and their lineal descendants) and any trust or entity owned, controlled by or established for the benefit of, or the estate of, any of the foregoing, and (e) Thomas J. Barrack, Jr., his Affiliates, personal investment vehicles, spouse, lineal descendants (including adopted children and their lineal descendants) and any trust or entity owned, controlled by or established for the benefit of, or the estate of, any of the foregoing. For purposes of this definition, the term “Affiliate” shall mean, with respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect Common Control with, or any general partner or managing member in, such specified Person.

“Pro Rata Share” shall mean, with respect to each Lender, the ratio of such Lender’s interest in the amount of the Loan to the aggregate amount of the Loan. As of the date hereof, the Pro Rata Share applicable to Noteholder I is sixty-two and one-half percent (62.5%) and the Pro Rata Share applicable to Noteholder II is thirty-seven and one-half percent (37.5%).

“Proceeds” shall have the meaning set forth in Section 6.2.2.

“Proceeds Reserve Account” shall have the meaning set forth in Section 3.1.1(f).

“Prohibited Person” means any Person identified on the OFAC List or any other Person with whom a U.S. Person may not conduct business or transactions by prohibition of Federal law or Executive Order of the President of the United States or America.

“Property” shall mean the Individual Properties collectively, provided that Property shall not include any Individual Property or Unimproved Parcel that has been released from the Lien of the Security Instruments and related Loan Documents pursuant to Section 2.3.4 or Section 2.3.9, respectively, of this Agreement.

“Property Release” shall have the meaning set forth in Section 2.3.4.

“Property Release Notice” shall have the meaning set forth in Section 2.3.4(a).

“Property Specific Representations” shall mean the representations and warranties of Borrower set forth in Sections 4.1.4 (with respect to the Property only), 4.1.6, 4.1.11, 4.1.13, 4.1.15, 4.1.23, 4.1.24, 4.1.25, 4.1.26, 4.1.27, 4.1.29, 4.1.39, 4.1.45, and 12.1 with respect to the Property.

“Proprietary Information” shall have the meaning set forth in Section 11.2.9(a).

“Proscribed Assignee” shall mean Highland Capital Partners.

“Provided Information” shall have the meaning set forth in Section 14.1(a).

“Purchase and Sale Agreement” shall mean that certain Amended and Restated Purchase and Sale Agreement, dated as of October 31, 2007, by and among Charleston Station LLC, Boulder Station, Inc., Palace Station Hotel & Casino, Inc., and Sunset Station, Inc., collectively as sellers, FCP Newco, LLC, and the other parties thereto, as assigned by FCP NewCo, LLC to Borrower on or approximately on the Closing Date.

“PZR” shall mean The Planning Zoning Resource Corporation.

“Qualified Transferee” shall mean any entity that, together with its Close Affiliates, (i) is experienced in owning and/or operating properties similar to the Property, (ii) (a) has a net worth, as of a date no more than six (6) months prior to the date of the transfer of at least $500 Million and (b) immediately prior to such transfer, controls real estate equity assets of at least $2 Billion, and (iii) is not a Disqualified Transferee.

“Rate Protection Collateral” shall have the meaning set forth in Section 9.2.

“Rating Agencies” shall mean (a) prior to a Securitization, each of S&P, Moody’s and Fitch and any other nationally-recognized statistical rating agency which has been approved by Lender and (b) after a Securitization has occurred, each such Rating Agency which has rated the Securities in the Securitization.

“Rating Agency Confirmation” shall mean, collectively, a written affirmation from each of the Rating Agencies that the credit rating of the Securities given by such Rating Agency immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the occurrence of such event, which affirmation may be granted or withheld in such Rating Agency’s sole and absolute discretion which may be satisfied by a Rating Agency declining to review the matter in question without adverse impact on the Securities. In the event that, at any given time, no such Securities shall have been issued and are then outstanding, then the term Rating Agency Confirmation shall be deemed instead to require the written approval of Lender based on its good faith determination of whether the Rating Agencies would issue a Rating Agency Confirmation if any such Securities were outstanding.

“Real Property” shall mean, collectively, the Land, the Improvements and the Appurtenances (as defined in the Security Instruments, collectively).

“Recourse Guaranty” shall mean that certain Guaranty of Recourse Obligations of Borrower, dated as of November 7, 2007, by Guarantors in favor of Lender, as the same may be amended, supplemented, restated or otherwise modified from time to time.

“Register” shall have the meaning set forth in Section 15.4.

“Regulatory Change” shall mean any change after the date of this Agreement in federal, state or foreign laws or regulations or the adoption or the making, after such date, of any interpretations, directives or requests applying to Lender, or any Person Controlling Lender or to a class of banks or companies Controlling banks of or under any federal, state or foreign laws or regulations (whether or not having the force of law) by any court or Governmental Authority or monetary authority charged with the interpretation or administration thereof.

“Release” shall have the meaning provided in Section 2.3.4.

“Release Date” shall have the meaning provided in Section 2.3.4(a).

“Release Instruments” shall have the meaning provided in Section 2.3.4(c).

“Release Price” shall mean the product of (a) the Allocated Loan Amount of the Loan with respect to the Release Property; and (b) the applicable Combined Release Price Percentage(s), minus, if applicable, the principal amount of any prepayment of the Loan paid from Proceeds derived from a casualty, other damage or injury or Taking affecting such Release Property.

“Release Property” shall have the meaning provided in Section 2.3.4.

“Relevant Portions” shall have the meaning provided in Section 14.3.2(a).

“Rents” shall mean all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower from any and all sources arising from or attributable to the Property, including, but not limited to the Master Lease and, upon termination thereof, the Subleases, and Proceeds, if any, from business interruption or other loss of income insurance.

“Replaced Property” shall have the meaning provided in Section 2.3.5(a).

“Replacement Interest Rate Protection Agreement” shall mean collectively, one or more interest rate protection agreements from an Approved Counterparty with terms that are the same in all material respects as the terms of the Interest Rate Protection Agreement, except that (i) the same shall be effective as of (A) in connection with a replacement following a downgrade, withdrawal or qualification of Counterparty, the date required in Section 9.3(c) or (B) in connection with a replacement related to an extension of the Maturity Date, the date required in Section 5(a)(ii) of the Note, and (ii) the notional amount shall be the Principal Amount then outstanding; provided that to the extent any such interest rate protection agreement does not meet the foregoing requirements, a Replacement Interest Rate Protection Agreement shall be such interest rate cap agreement approved in writing by Lender, or if the Loan or any portion thereof is included in a Securitization, each of the Rating Agencies with respect thereto.

“Requesting Parties” shall have the meaning set forth in Section 11.2.9(b).

“Retainage Release Threshold” shall have the meaning provided in Section 6.2.5(a).

“Revolving/Term Credit Facility” shall mean that certain Credit Agreement, dated as of November 7, 2007, among Station Casinos, Inc., as borrower, Deutsche Bank Trust Company Americas, as administrative agent, Deutsche Bank Securities Inc. and J. P. Morgan Securities Inc., as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A., as syndication agent, and the other lenders party thereto, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, and any refinancing thereof.

“Revolving/Term Credit Facility Lien” shall have the meaning provided in Section 8.5(b)(iv).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“Second Mezzanine Account” shall mean account number 048818640 at Cash Management Bank.

“Second Mezzanine Borrower” shall mean FCP MezzCo Borrower II, LLC, a Delaware limited liability company.

“Second Mezzanine Debt Service Reserve Account” shall have the meaning set forth in Section 3.1.1(i).

“Second Mezzanine Lender” shall mean the holders of the Second Mezzanine Loan.

“Second Mezzanine Lender Monthly Debt Service Notice” shall mean the written notice required to be delivered by Second Mezzanine Lender pursuant to Section 3.1.6 of the Second Mezzanine Loan Agreement to Lender at least five (5) Business Days prior to each Payment Date setting forth the Second Mezzanine Loan Debt Service Amount payable by Second Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.

“Second Mezzanine Loan” shall mean that certain $175,000,000 mezzanine loan, comprised of (x) the original loan in the principal amount of $150,000,000 made by Second Mezzanine Lender to Second Mezzanine Borrower pursuant to the Second Mezzanine Loan Agreement and (y) the assumption by Second Mezzanine Borrower pursuant to the Second Mezzanine Loan Documents of $25,000,000 in principal amount initially borrowed by Borrower.

“Second Mezzanine Loan Agreement” shall mean that certain Amended and Restated Mezzanine Loan and Security Agreement (Second Mezzanine), dated as of the Amendment Effective Date, between Second Mezzanine Borrower, as borrower, and Second Mezzanine Lender, as lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Second Mezzanine Loan Debt Service Amount” shall mean, with respect to any specified date or a particular period of time, interest payments under the Second Mezzanine Note (excluding any default or accrued interest) due as of such date (as set forth in the Second Mezzanine Lender Monthly Debt Service Notice delivered to Lender) or payable during such

period (including the last day thereof), as applicable and repayment in full of the principal balance of the Second Mezzanine Note on the scheduled maturity of the Second Mezzanine Loan (but excluding any principal payments on account of an acceleration of the Second Mezzanine Loan or a default under any of the Second Mezzanine Loan Documents).

“Second Mezzanine Loan Default Notice” shall mean a notice from Second Mezzanine Lender to Lender (upon which Lender may conclusively rely without any inquiry into the validity thereof) that an “Event of Default” has occurred and is continuing under any of the Second Mezzanine Loan Documents.

“Second Mezzanine Loan Default Revocation Notice” shall have the meaning set forth in Section 3.1.7(viii) hereof.

“Second Mezzanine Loan Documents” shall mean the documents evidencing and securing the Second Mezzanine Loan, as may be modified, amended, extended, supplemented, restated or replaced from time to time.

“Second Mezzanine Note” shall mean, collectively, that certain Amended and Restated Second Mezzanine Note A-1 in the principal amount of $109,375,000 dated as of March 19, 2008, from Second Mezzanine Borrower to Noteholder I, and that certain Amended and Restated Second Mezzanine Note A-2 in the principal amount of $65,625,000 dated as of March 19, 2008, from Second Mezzanine Borrower to Noteholder II, as the same may be amended, restated, replaced, supplemented, substituted, severed, or otherwise modified from time to time.

“Securities” shall have the meaning set forth in Section 14.1.

“Securities Act” shall have the meaning set forth in Section 14.3.1.

“Security Documents” shall have the meaning set forth in Section 2.3.5(d)(xiii)(3).

“Securitization” shall have the meaning set forth in Section 14.1.

“Security Instrument” shall mean each of those certain first priority Deeds of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Master Lease, Subleases, Rents and Security Deposits, dated the Closing Date, executed and delivered by Borrower to Lender (or to a trustee for the benefit of lender, as applicable) and encumbering a portion of the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Senior Mezzanine Loan Default Revocation Notice” shall have the meaning set forth in Section 3.1.7(x).

“Senior Swap Breakage” shall mean any Swap Breakage other than Subordinate Swap Breakage.

“Servicer” shall mean such Person designated in writing with an address for such Person by Lender, in its sole discretion, to act as Lender’s agent hereunder with such powers as are specifically delegated to the Servicer by Lender, whether pursuant to the terms of this

Agreement, the Account Agreement or otherwise, together with such other powers as are reasonably incidental thereto.

“Single Purpose Entity” shall mean a Person, other than an individual, which (i) is formed or organized solely for the purpose of acquiring, owning, holding, developing, using, operating and financing directly, or, in the case of Mezzanine Borrower, indirectly, an ownership interest in the Property, (ii) does not engage in any business unrelated to the Property (or in the case of Mezzanine Borrower, its subsidiary) and the ownership, development, use, operation, and financing thereof, (iii) has not and will not have any assets other than those related to its interest in the Property (or in the case of Mezzanine Borrower, its subsidiary) or the operation, management and financing thereof or any indebtedness other than the Permitted Debt (as applicable), (iv) maintains its own separate books and records and its own accounts, in each case which are separate and apart from the books and records and accounts of any other Person, (v) holds itself out as being a Person, separate and apart from any other Person, (vi) does not and will not commingle its funds or assets with those of any other Person, (vii) conducts its own business in its own name; (viii) maintains separate financial statements, (ix) pays its own liabilities out of its own funds, (x) observes all partnership, corporate or limited liability company formalities, as applicable, (xi) pays the salaries of its own employees, if any, and maintains a sufficient number of employees, if any, in light of its contemplated business operations, (xii) does not guarantee or otherwise obligate itself with respect to the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, (xiii) does not acquire obligations or securities of its partners, members or shareholders, (xiv) allocates fairly and reasonably shared expenses, including, without limitation, any overhead for shared office space, if any, (xv) uses separate stationery, invoices, and checks, (xvi) maintains an arms-length relationship with its Affiliates, (xvii) does not and will not pledge its assets for the benefit of any other Person (except as permitted pursuant to the Mezzanine Loan) or make any loans or advances to any other Person, (xviii) does and will continue to use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity, (xix) maintains adequate capital in light of its contemplated business operations, (xx) files its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pays any taxes so required to be paid under applicable law, and (xxi) has not and will not engage in, seek, or consent to the dissolution, winding up, liquidation, consolidation or merger and except as otherwise permitted in this Agreement, has not and will not engage in, seek or consent to any asset sale, transfer of partnership, membership or shareholder interests, or amendments of its partnership or operating agreement, certificate of incorporation, articles of organization or other organizational document. In addition, if such Person is a partnership, (1) all general partners of such Person shall be Single Purpose Entities; and (2) if such Person has more than one general partner, then the organizational documents shall provide that such Person shall continue (and not dissolve) for so long as a solvent general partner exists. In addition, if such Person is a corporation, then, at all times: (a) such Person shall have at least two (2) Independent Directors and (b) the board of directors of such Person may not take any action requiring the unanimous affirmative vote of 100% of the members of the board of directors unless all of the directors, including the Independent Directors, shall have participated in such vote. In addition, if such Person is a limited liability company, (a) such Person shall have at least two (2) Independent Managers, Independent Directors or Independent Members, (b) if such Person is managed by a board of managers or directors, the board of managers or

directors of such Person may not take any action requiring the unanimous affirmative vote of 100% of the members of the board of managers or directors unless all of the managers or directors, including the Independent Managers or Independent Directors, shall have participated in such vote, (c) if such Person is not managed by a board of managers or directors, the members of such Person may not take any action requiring the affirmative vote of 100% of the members of such Person unless all of the members, including the Independent Members, shall have participated in such vote, (d) each managing member shall be a Single Purpose Entity and (e) its articles of organization, certificate of formation and/or operating agreement, as applicable, shall provide that until all of the Indebtedness and Obligations are paid in full such entity will not dissolve. In addition, the organizational documents of such Person shall provide that such Person (1) without the unanimous consent of all of the partners, directors or members, as applicable, shall not with respect to itself or to any other Person in which it has a direct or indirect legal or beneficial interest (a) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or other similar official for the benefit of the creditors of such Person or all or any portion of such Person’s properties, or (b) petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (2) has and will maintain its books, records, resolutions and agreements as official records, (3) has held and will hold its assets in its own name, (4) has not and will not identify its partners, members or shareholders, or any affiliates of any of them as a division or part of it, and (5) except as provided in the Loan Documents, has not and will not enter into or be a party to any transaction with its partners, members, shareholders, or its Affiliates except in the ordinary course of business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arms-length transaction with a third party.

“SPE Entity” shall mean the Borrower and any of Mezzanine Borrower.

“Special Taxes” shall mean any and all present or future taxes, levies, imposts, deductions, charges or withholdings, or any liabilities with respect thereto, including those arising after the Closing Date as result of the adoption of or any change in law, treaty, rule, regulation, guideline or determination of a Governmental Authority or any change in the interpretation or application thereof by a Governmental Authority but excluding, in the case of Lender, such taxes (including income taxes, franchise taxes and branch profit taxes) as are imposed on or measured by Lender’s net income by the United States of America or any Governmental Authority of the jurisdiction under the laws under which Lender is organized or maintains a lending office.

“Sponsor” shall mean Fertitta Colony Partners LLC, a Nevada limited liability company.

“State” shall mean, with respect to each Individual Property, the State in which such Individual Property or any part thereof is located.

“Strike Price” shall mean a rate for the Interest Rate Cap Notional Amount and the Mezzanine Loan Notional Amount when calculated as the weighted average of (X) the Swap Fixed Rate; (Y) the strike rate under the Cap Agreement, and (Z) the strike rate under the Mezzanine Cap Agreements and weighted by the respective notional amounts of the Interest Rate Swap Notional Amount, Interest Rate Cap Notional Amount, and Mezzanine Notional

Amount, shall not exceed 5.50% (which rate shall be maintained regardless of any prepayments of the Loan made hereunder)

“Sub-Account(s)” shall have the meaning set forth in Section 3.1.1.

“Sublease” shall mean any lease (other than the Ground Leases or the Master Lease), sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect), pursuant to which any Person is granted by the Borrower or the Master Lessee a possessory interest in, or right to use or occupy all or any portion of any space in the Property, and every modification, amendment or other agreement relating to such lease, sublease, sub-sublease, or other agreement entered into in connection with such lease, sublease, sub-sublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Sublease Modification” shall have the meaning set forth in Section 8.8.2.

“Subleasing Standards” shall mean the standards set forth on Schedule I attached hereto and made a part hereof.

“Subordinate Swap Breakage” shall mean any Swap Breakage that (i) becomes payable under the Interest Rate Swap Agreement by reason of an “event of default” with the Swap Counterparty as the “defaulting party” or a “termination event” (other than an “illegality” or “tax event”) as to which the Swap Counterparty is the sole “affected party” under any Interest Rate Swap Agreement; or (ii) exceeds 1% of the Interest Rate Swap Notional Amount being terminated in whole or in part.

“Substitute Property” shall have the meaning provided in Section 2.3.5(a).

“Substitute Property Mortgage Spreader Agreement” shall have the meaning provided in Section 2.3.5(a).

“Substitution” shall have the meaning provided in Section 2.3.5(a).

“Substitution Date” shall have the meaning provided in Section 2.3.5(c).

“Substitution Due Diligence Package” shall have the meaning provided in Section 2.3.5(c).

“Substitution Notice” shall have the meaning provided in Section 2.3.5(c).

“Survey” shall mean a survey of each parcel included in the Property prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Policies, and containing a certification of such surveyor reasonably satisfactory to Lender.

“Swap Breakage” shall mean any breakage charges or amounts due from Borrower in connection with any full or partial termination under any Interest Rate Swap Agreement.

“Swap Counterparty” shall mean one or more Approved Counterparties entering into an Interest Rate Swap Agreement.

“Swap Fixed Rate” shall mean 5.279%.

“Swap Gain” shall mean any net hedge gain due to Borrower in connection with any termination under any Interest Rate Swap Agreement.

“Swap Payment Account” shall have the meaning set forth in Section 3.1.1(g).

“Taking” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Tax Reserve Account” shall have the meaning set forth in Section 3.1.1(a).

“Tax Reserve Amount” shall have the meaning set forth in Section 16.1.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property, other than the Master Lessee and its employees and agents.

“Terrorism Insurance” shall have the meaning set forth in Section 6.1.9.

“Third Mezzanine Account” shall mean account number 048818666 at Cash Management Bank.

“Third Mezzanine Borrower” shall mean FCP MezzCo Borrower III, LLC, a Delaware limited liability company.

“Third Mezzanine Debt Service Reserve Account” shall have the meaning set forth in Section 3.1.1(j).

“Third Mezzanine Lender” shall mean the holders of the Third Mezzanine Loan.

“Third Mezzanine Lender Monthly Debt Service Notice” shall mean the written notice required to be delivered by Third Mezzanine Lender pursuant to Section 3.1.6 of the Third Mezzanine Loan Agreement to Lender at least five (5) Business Days prior to each Payment Date setting forth the Third Mezzanine Loan Debt Service Amount payable by Third Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.

“Third Mezzanine Loan” shall mean that certain $150,000,000 mezzanine loan, comprised of (x) that certain $125,000,000 mezzanine loan, made by Third Mezzanine Lender to Third Mezzanine Borrower and (y) the assumption by Third Mezzanine Borrower pursuant to the

Third Mezzanine Loan Documents of $25,000,000 in principal amount initially borrowed by Borrower.

“Third Mezzanine Loan Agreement” shall mean that certain Amended and Restated Mezzanine Loan and Security Agreement (Third Mezzanine), dated as of the Amendment Effective Date, between Third Mezzanine Borrower, as borrower, and Third Mezzanine Lender, as lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Third Mezzanine Loan Debt Service Amount” shall mean, with respect to any specified date or a particular period of time, interest payments under the Third Mezzanine Note (excluding any default or accrued interest) due as of such date (as set forth in the Third Mezzanine Lender Monthly Debt Service Notice delivered to Lender) or payable during such period (including the last day thereof), as applicable and repayment in full of the principal balance of the Third Mezzanine Note on the scheduled maturity of the Third Mezzanine Loan (but excluding any principal payments on account of an acceleration of the Third Mezzanine Loan or a default under any of the Third Mezzanine Loan Documents).

“Third Mezzanine Loan Default Notice” shall mean a notice from Third Mezzanine Lender to Lender (upon which Lender may conclusively rely without any inquiry into the validity thereof) that an “Event of Default” has occurred and is continuing under any of the Third Mezzanine Loan Documents.

“Third Mezzanine Loan Default Revocation Notice” shall have the meaning set forth in Section 3.1.7(ix) hereof.

“Third Mezzanine Loan Documents” shall mean the documents evidencing and securing the Third Mezzanine Loan, as may be modified, amended, extended, supplemented, restated or replaced from time to time.

“Third Mezzanine Note” shall mean, collectively, (i) that certain Amended and Restated Third Mezzanine Note A-1-a in the principal amount of $55,312,500 dated as of March 19, 2008, from Third Mezzanine Borrower to Noteholder I, (ii) that certain Amended and Restated Third Mezzanine Note A-1-b in the principal amount of $38,437,500 dated as of March 19, 2008, from Third Mezzanine Borrower to Noteholder I, (iii) that certain Amended and Restated Third Mezzanine Note A-2-a in the principal amount of $33,187,500 dated as of March 19, 2008, from Third Mezzanine Borrower to Noteholder II, and (iv) that certain Amended and Restated Third Mezzanine Note A-2-b in the principal amount of $23,062,500 dated as of March 19, 2008, from Third Mezzanine Borrower to Noteholder II.

“Title Company” shall mean, collectively, Chicago Title Insurance Company and its affiliates, Fidelity National Title Insurance Company and its affiliates, Commonwealth Land Title Insurance Company and its affiliates, Stewart Title Guaranty Company and its affiliates, First American Title Insurance Company and its affiliates, Lawyers Title Insurance Company and its affiliates, Transnation Title Insurance Company and its affiliates, and Ticor Title Insurance Company and its affiliates, or, with respect to Substitutions from and after the Closing Date, any one of the foregoing subject to delivery of co-insurance endorsements or re-insurance

agreements from the other Title Companies and, in states where available, tie-in endorsements from all of the Title Companies with respect to such coverage.

“Title Policies” shall mean the ALTA mortgagee title insurance policies, each in a form reasonably acceptable to Lender (or, if an Individual Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and reasonably acceptable to Lender), issued by the Title Company with respect to the Property and insuring the Lien of the Security Instruments.

“Total Loss” shall mean with respect to each Individual Property (i) a casualty, damage or destruction of the Individual Property which, in the reasonable judgment of Lender, involves the likely recovery of Proceeds in an amount exceeding forty percent (40%) of the Allocated Loan Amount for such Individual Property, or (ii) a permanent Taking which, in the reasonable judgment of Lender, involves (A) an actual or constructive loss of more than fifteen percent (15%) of the Land comprising such Individual Property, or (B) the likely recovery of Proceeds in an amount exceeding fifteen percent (15%) of the Allocated Loan Amount for such Individual Property, or (iii) a casualty, damage, destruction or Taking that affects so much of the Individual Property such that it would be impracticable, in Lender’s reasonable discretion, even after restoration, to operate the Individual Property as an economically viable whole.

“Transfer” shall mean to, directly or indirectly, sell, assign, convey, mortgage, transfer, lease, pledge, hypothecate, encumber, grant a security interest in, exchange or otherwise dispose of any beneficial interest or grant any option or warrant with respect to, or where used as a noun, a direct or indirect sale, assignment, conveyance, transfer, lease, pledge or other disposition of any beneficial interest by any means whatsoever whether voluntary, involuntary, by operation of law or otherwise.

“True Lease Opinion” shall have the meaning provided in Section 2.5.4(b).

“True Sale Opinion” shall have the meaning provided in Section 2.5.4(c).

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State.

“UCC Financing Statement” shall have the meaning provided in Section 2.3.5(d)(xiii)(3).

“Underwriter Group” shall have the meaning set forth in Section 14.3.2(b).

“Unimproved Parcels” shall mean (a) those portions of the Property identified on Schedule IV attached hereto and made a part hereof and (b) any undeveloped portion of an Individual Property as to which Lender has reasonably determined (x) that such portion is not required for the primary intended use of such Individual Property, and (y) that neither the release of such portion nor the intended use of such portion following such release will adversely affect either the “as leased” appraised value or the net operating income of the remaining portion of such Individual Property.

“U.S. Government Obligations” shall mean any direct obligations of, or obligations guaranteed as to principal and interest by, the United States Government or any agency or

instrumentality thereof, provided that such obligations are backed by the full faith and credit of the United States. Any such obligation must be limited to instruments that have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change. If any such obligation is rated by S&P, it shall not have an “r” highlighter affixed to its rating. Interest must be fixed or tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with said index. U.S. Government Obligations include, but are not limited to: U.S. Treasury direct or fully guaranteed obligations, Farmers Home Administration certificates of beneficial ownership, General Services Administration participation certificates, U.S. Maritime Administration guaranteed Title XI financing, Small Business Administration guaranteed participation certificates or guaranteed pool certificates, U.S. Department of Housing and Urban Development local authority bonds, and Washington Metropolitan Area Transit Authority guaranteed transit bonds. In no event shall any such obligation have a maturity in excess of 365 days.

“VoteCo” shall mean FCP VoteCo, LLC, a Nevada limited liability company.

“Work” shall have the meaning provided in Section 6.2.4(a).

1.2 Principles of Construction. All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. When used herein, the term “financial statements” shall include the notes and schedules thereto. Unless otherwise specified herein or therein, all terms defined in this Agreement shall have the definitions given them in this Agreement when used in any other Loan Document or in any certificate or other document made or delivered pursuant thereto. All uses of the word “including” shall mean including, without limitation unless the context shall indicate otherwise. Unless otherwise specified, 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. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

II. GENERAL TERMS

2.1 Loan; Disbursement to Borrower.

2.1.1 The Loan; Delegation; Novation.

(a) Subject to and upon the terms and conditions set forth herein, each Lender has made, on a several (but not joint) basis, its Pro Rata Share of the Original Loan, and Borrower has accepted the Original Loan.

(b) Borrower hereby assigns, delegates and transfers to First Mezzanine Borrower a portion of the Original Loan in the principal amount $50,000,000.

(c) Borrower hereby assigns, delegates and transfers to Second Mezzanine Borrower a portion of the Original Loan in the principal amount $25,000,000.

(d) Borrower hereby assigns, delegates and transfers to Third Mezzanine Borrower a portion of the Original Loan in the principal amount $25,000,000.

(e) Borrower hereby assigns, delegates and transfers to Fourth Mezzanine Borrower a portion of the Original Loan in the principal amount $150,000,000.

(f) Lender hereby acknowledges the assignment, delegation and transfer by Borrower of $250,000,000 of the Original Loan as set forth in Subsections (b) through (e) above (the “Novated Amounts”) and agrees that, in consideration of the assumption of such Novated Amounts by the applicable Mezzanine Borrower, Borrower shall have no further obligation to Lender under this Agreement, the other Loan Documents or the Notes in respect of the Novated Amounts and the aggregate outstanding principal balance due as of the date hereof under this Agreement, the other Loan Documents and the Notes shall be reduced for all purposes to the Loan Amount.

(g) Lender hereby agrees with Borrower that Lender shall not assert against Borrower or any Affiliate of Borrower any claim for indemnification or other rights of recovery pursuant to this Agreement or otherwise in respect of any damages incurred by Lender solely as a result of the modification of the Loan pursuant to this Agreement.

2.1.2 Disbursement to Borrower. Borrower has requested and received only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed. Borrower acknowledges and agrees that the full proceeds of the Loan have been disbursed by Lender to Borrower as of the Closing Date.

2.1.3 The Notes, Security Instruments and Loan Documents. The Loan shall be evidenced by the Notes and secured by the Security Instruments, the Assignment of Leases, this Agreement and the other Loan Documents.

2.1.4 Use of Proceeds. Borrower shall use the proceeds of the Loan to (a) acquire the Property, (b) pay all past-due operating expenses, if any, in respect of the Property, (c) fund any working capital requirements of the Property, (d) make deposits into the Sub-Accounts as required hereunder, (e) pay costs and expenses incurred in connection with the closing of the Loan, (f) distribute to its parent entities and (g) retain and/or distribute the balance, if any.

2.2 Interest; Loan Payments; Late Payment Charge.

2.2.1 Payment of Principal and Interest.

(i) Except as set forth in Section 2.2.1(ii), interest shall accrue on the Principal Amount as set forth in the Notes.

occurrence of the Event of Default until the actual receipt and collection of the Indebtedness (or that portion thereof that is then due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Indebtedness, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instruments. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Indebtedness, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default, and Lender retains its rights under the Notes to accelerate and to continue to demand payment of the Indebtedness upon the happening of any Event of Default.

2.2.2 Method and Place of Payment.

(a) On each Payment Date, Borrower shall pay to Lender interest accruing pursuant to the Notes for the entire Interest Period during which said Payment Date shall occur.

(b) All amounts advanced by Lender pursuant to the applicable provisions of the Loan Documents, other than the Principal Amount, together with any interest at the Default Rate or other charges as provided therein, shall be due and payable hereunder as provided in the Loan Documents. In the event any such advance or charge is not so repaid by Borrower, Lender may, at its option, first apply any payments received under the Notes to repay such advances, together with any interest thereon, or other charges as provided in the Loan Documents, and the balance, if any, shall be applied in payment of any installment of interest or principal then due and payable.

(c) The Maturity Date Payment shall be due and payable in full on the Maturity Date. The Maturity Date Payment shall be applied, first, pro rata and pari passu, to the outstanding balances of Note A-1 and Note A-2 until Note A-1 and Note A-2 are paid in full, and second, pro rata and pari passu, to the outstanding balances of Note B-1 and Note B-2.

2.2.3 Late Payment Charge. If any principal, interest or any other sums due under the Loan Documents (other than the outstanding Principal Amount due and payable on the Maturity Date) is not paid by Borrower on or prior to the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of three percent (3%) of such unpaid sum or the Maximum Legal Rate (the “Late Payment Charge”) in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by this Agreement, the Security Instruments and the other Loan Documents to the extent permitted by applicable law.

2.2.4 Usury Savings. This Agreement and the Notes are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due under the Notes at a rate in excess of the Maximum Legal Rate, then the LIBOR Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the

interest due under the Notes. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.3 Prepayments.

2.3.1 Prepayments. No prepayments of the Indebtedness shall be permitted except as set forth in Section 4 of the Notes and this Section 2.3. If Borrower tenders payment of any part of the Indebtedness other than in accordance with Sections 2.3.2, 2.3.3 or 2.3.4, (a) such payment may be made only on the next occurring Payment Date together with all unpaid interest thereon as calculated through the end of the Interest Period during which such Payment Date occurs (even if such period extends beyond such Payment Date and calculated as if such payment had not been made on such Payment Date), and (b) Borrower shall pay, in addition to the Indebtedness, an amount equal to the Prepayment Fee and all other fees and sums payable hereunder or under the Loan Documents, including without limitation, Swap Breakage. All prepayments of the Indebtedness shall be applied, first, pro rata and pari passu, to the outstanding balances of Note A-1 and Note A-2 until Note A-1 and Note A-2 are paid in full, and second, pro rata and pari passu, to the outstanding balances of Note B-1 and Note B-2.

2.3.2 Prepayments After Event of Default; Application of Amounts Paid. If, following an Event of Default, Lender shall accelerate the Indebtedness and Borrower thereafter tenders payment of all or any part of the Indebtedness, or if all or any portion of the Indebtedness is recovered by Lender after such Event of Default, (a) such payment may be made only on the next occurring Payment Date together with all unpaid interest thereon as calculated through the end of the Interest Period during which such Payment Date occurs (even if such period extends beyond such Payment Date and calculated as if such payment had not been made on such Payment Date), and all other fees and sums payable hereunder or under the Loan Documents, including without limitation, interest that has accrued at the Default Rate, and any Late Payment Charges, and Swap Breakage), (b) such payment shall be deemed a voluntary prepayment by Borrower, and (c) Borrower shall pay, in addition to the Indebtedness, an amount equal to the Prepayment Fee and any Swap Breakage.

2.3.3 Release of Property upon Repayment of Loan in Full. Lender shall, upon the written request of Borrower, upon payment in full of the Principal Amount and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of the Notes and this Agreement (including, without limitation, Swap Breakage, if applicable), release the Lien of (i) this Agreement upon the Account Collateral and the Rate Protection Collateral and (ii) the Security Instruments and Assignment of Leases on the Property (or assign it (together with the Notes), in whole or in part, to a new lender without representation, warranty or recourse). In such event, Borrower shall submit to Lender, not less than ten (10) Business Days prior to the date of such release or assignment, a release of lien or assignment of lien, as applicable, for such property for execution by Lender. Such release or

assignment, as applicable, shall be in a form appropriate in each jurisdiction in which the Property is located and satisfactory to Lender in its reasonable discretion. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release or assignment, as applicable.

2.3.4 Release of Individual Properties. Subject to satisfaction of each of the conditions set forth below with respect to any Individual Property or Individual Properties (collectively, the “General Release Conditions”), Lender shall (i) release such Individual Property or Individual Properties (a “Release” and each Individual Property subject to a Release, a “Release Property”) from the Lien of the applicable Security Instrument and related Loan Documents (or to the extent so requested by Borrower, assign the Lien of the applicable Security Instrument to a new lender without representation, warranty or recourse) (each release under this Section 2.3.4 or Section 2.3.5, a “Property Release”), (ii) authorize a reduction in the notional amounts of the Interest Rate Protection Agreements in proportion to the reduction of the Principal Amount (which may be pro rata to the notional amounts thereof or otherwise as reasonably determined by Borrower), (iii) instruct the Cash Management Bank to return to Borrower any Excess Account Collateral subject to and in accordance with Section 2.3.7 except to the extent otherwise provided in such Section, (iv) comply with Section 2.3.8 with regard to adjusting the ongoing reserve requirements hereunder, (v) authorize a reduction in the Master Lease Base Rent in an amount, which shall equal the product of (x) the initial Master Lease Base Rent multiplied by (y) a fraction, the numerator of which is the Combined Allocated Loan Amount for the Release Property, and the denominator of which is the original Combined Principal Amount, and (vi) require Borrower to enter into an amendment to the Master Lease with Master Lessee (A) to effect such authorized reduction in the Master Lease Base Rent, (B) to cause such Release Property to be released from the Master Lease, (C) to terminate the Master Lease with respect to such Release Property as of the date that such Release Property is released from the Lien of the applicable Security Instrument and related Loan Documents, (D) to amend the legal description of the “Leased Property” (as defined in the Master Lease) to delete the Release Property, and (E) make such other amendments consistent with the release of the Release Property from the Leased Property.

(a) Borrower delivers a written notice (a “Property Release Notice”) to Lender of its desire to effect such Property Release no later than thirty (30) days prior to the date of such desired Property Release, and setting forth the Business Day (the “Release Date”) on which Borrower desires that Lender release its interest in such Release Property.

(b) Lender and each Mezzanine Lender shall have received all prepayment fees required to be paid to them under the Loan Documents and Mezzanine Loan Documents, as applicable, and the Lender shall have received the full Release Price and evidence that each Mezzanine Lender has received its full applicable Mezzanine Release Price. Interest payable under the Notes and the Mezzanine Notes shall be calculated through the end of the Interest Period in which such payment is made on the applicable principal amount (even if such period extends beyond such Payment Date and calculated as if such payment had not been made on such Payment Date (i.e. without a deduction for the portion of the Principal Amount included in the Release Price)).

(c) Borrower shall submit to Lender, concurrently with the Property Release Notice (except that Borrower may deliver the release of Liens hereinafter described to Lender after delivery of the Property Release Notice so long as such delivery is made prior to the tenth (10^th ) Business Day preceding the applicable Release Date), a release of Liens (and related Loan Documents) for each applicable Release Property (for execution by Lender) in a form appropriate in the State and otherwise satisfactory to Lender in its reasonable discretion and all other documentation Lender reasonably requires to be delivered by Borrower in connection with such Property Release (collectively, “Release Instruments”) for each applicable Release Property together with an Officer’s Certificate certifying that (i) the Release Instruments are, or will be when delivered, in compliance with all Legal Requirements, (ii) the release to be effected will not violate the terms of this Agreement, (iii) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Individual Properties subject to the Loan Documents not being released) and (iv) the requirement described in paragraph (d) below is satisfied in connection with such Property Release (together with calculations and supporting documentation demonstrating the same in reasonable detail).

(d) With respect to any Property Release, after giving effect to such Property Release, the LCR as of the Release Date for all of the Individual Properties then remaining subject to the Liens of the Security Instruments shall not be less than the greater of (A) the Closing Date LCR and (B) 65% of the LCR for the Individual Properties subject to the Liens of the Security Instruments immediately prior to the Release Date.

(e) No Default or Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice and on the Release Date.

(f) The Release Property is simultaneously transferred to a party other than Borrower or any other SPE Entity.

(g) Borrower executes and delivers such other instruments, certificates, opinions of counsel and documentation as Lender and the Rating Agencies shall reasonably request in order to preserve, confirm or secure the Liens and security granted to Lender by the Loan Documents, including any amendments, modifications or supplements to any of the Loan Documents and partial release endorsements to the existing Title Policies, as applicable.

(h) Borrower shall pay for any Swap Breakage resulting from any Property Release and any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed Property Release, including Lender’s reasonable attorneys’ fees and disbursements and all title insurance premiums for any endorsements to any existing Title Policies reasonably required by Lender in connection with such proposed release.

(i) Prior to the Release Date, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transaction relating to the proposed Property Release have been paid in full, or will simultaneously be paid in full on the Release Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such

transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender.

(j) As a condition precedent to a Release but not as a direct covenant of the Borrower, on the Release Date, each Mezzanine Borrower shall have paid to each Mezzanine Lender the Mezzanine Release Price and any other sums required to be paid under Section 2.3.4 of each Mezzanine Loan Agreement. This Section 2.3.4(j) shall not create a debtor-creditor relationship between Borrower and any Mezzanine Lender.

(k) In the event Lender has approved in writing a right of first refusal or purchase option with respect to the subject Release Property, the transfer of the Release Property in connection with the Property Release shall comply in all respects with the terms and conditions of any such rights of first refusal or purchase options, as such terms and conditions have been approved by Lender.

2.3.5 Substitution of Properties.

(a) Generally. Borrower may, subject to the conditions in this Section 2.3.5, substitute one or more properties (each a “Substitute Property”) for an existing Individual Property (each a “Replaced Property”) (each release and substitution a “Substitution”); provided, however, such right of Substitution shall be limited to Individual Properties whose aggregate Allocated Loan Amounts represent not greater than twenty percent (20%) of the Loan Amount. From and after the Substitution of a Substitute Property in accordance herewith, such Substitute Property shall thereafter be deemed a Property, and shall have the Allocated Loan Amount, Mezzanine Allocated Loan Amount, and Combined Allocated Loan Amount applicable to the Replaced Property. Concurrently with the completion of all steps necessary to effect a Substitution as provided in this Section 2.3.5, Lender shall release such Replaced Property from the Lien of the applicable Security Instrument and related Loan Documents. In the event of a Substitution, the Notes shall remain in full force and effect, and the Lien of the applicable Security Instrument shall be spread to encumber the Substitute Property (each a “Substitute Property Mortgage Spreader Agreement”).

(b) Certain Requirements. All Substitute Properties shall comply with this Section 2.3.5. To qualify as a Substitute Property, a property must, as of the Substitution Date (in addition to the other criteria set forth in this Section 2.3.5):

(i) be subject to the Master Lease;

(ii) be a property as to which Borrower will hold insurable fee title or a valid and subsisting leasehold interest free and clear of any Lien or other encumbrance except for Permitted Encumbrances (excluding those described in clauses (b), (d), (e) and (i) of the definition of Permitted Encumbrances) and exceptions not materially impairing the value of such property, and have an appraised value at least equal to the Appraised Value of the Replaced Property;

(iii) be free and clear, as evidenced by the environmental report referred to in paragraph (c) below, of Hazardous Materials requiring remediation or other action under any

Environmental Law the presence of which violates Environmental Laws (with the exception of any immaterial remediation, as determined by Lender in its sole discretion) and be in material compliance with all Environmental Laws;

(iv) be of a similar use and quality to the other Individual Properties (as reasonably determined by Lender applying the standards of a prudent commercial mortgage loan lender);

(v) be in good repair and condition, as evidenced by the engineering report referred to in clause (c) below;

(vi) if the Substitute Property is ground leased (such that Borrower will hold a leasehold interest rather than fee title), the ground lease shall be financeable (as reasonably determined by Lender, including, without limitation, having a memorandum of lease of record in the applicable real property records, not containing rental adjustments that reset the ground lease rent to fair market rent, and otherwise containing terms and conditions and having a state of title that comports with then-current guidelines of the Rating Agencies for ground leases in commercial mortgage-backed security transactions); and

(vii) be in compliance, in all material respects, with Legal Requirements and Insurance Requirements, as evidenced by diligence items required to be provided in paragraph (c) below.

(c) Diligence Process. The Borrower shall submit to the Lender written notice (a “Substitution Notice”) setting forth the Business Day no earlier than thirty (30) days after the date of such Substitution Notice on which Borrower desires to effect such Substitution (the “Substitution Date”), together with the following materials (the “Substitution Due Diligence Package”) relating to the proposed Substitute Property: (i) a description of the proposed Substitute Property sufficient to obtain a Title Policy for such proposed Substitute Property, (ii) three years of historical cash flow operating statements, if available, (iii) true, complete and correct copies of any Material Subleases affecting the proposed Substitute Property, (iv) a map and site plan, including an existing Survey of the proposed Substitute Property dated not more than six (6) months prior to such submission, (v) a copy of the proposed amendment to the Master Lease and Master Lease SNDA and the License and Reservation Service Agreement to include the proposed Substitute Property, (vi) copies of all permits, licenses and approvals required with respect to operation of the proposed Substitute Property, (vii) a Phase I environmental assessment report, conducted under the ASTM International Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process E1527-05, issued by a recognized environmental consultant, (viii) copies of all condominium documents and ground leases, if any, (ix) an engineer’s inspection report, (x) ground lessor, fee mortgagee, condominium association and tenant (under Material Subleases) estoppel certificates and tenant (under Material Subleases) Non-Disturbance Agreements, in each case in the forms attached hereto and including such variations that are either immaterial or are reasonably acceptable to Lender, as applicable, together with any consents required with respect to the Contemplated Transactions, (xi) a commitment from the Title Company with respect to the issuance of a Title Policy, together with copies of all exceptions referenced therein and a copy of the recorded memorandum of ground lease if such Substitute Property will be a Ground Lease Property,

(xii) upon the reasonable request of the Lender, a PML study, (xiii) a FIRREA appraisal conducted by Cushman & Wakefield (or another Independent appraiser reasonably acceptable to Lender), (xiv) if such proposed Substitute Property is not then owned by the Borrower or its Affiliate, a duly executed copy of the purchase and sale agreement for such proposed Substitute Property and copies of all proposed documentation transferring title to the proposed Substitute Property to Borrower including any interim transfers to its Affiliates, (xv) a copy of the flood certification, (xvi) either (A) a letter or other evidence with respect to the proposed Substitute Property from the appropriate Governmental Authorities concerning compliance with applicable zoning and building laws, (B) an ALTA 3.1 zoning endorsement for the Title Policy or (C) a zoning report prepared by PZR indicating that the proposed Substitute Property is in material compliance with applicable zoning and building laws, (xvii) a copy of the valid permanent certificate of occupancy (if required by applicable law), (xviii) calculations of the LTV Ratio and LCR both before and after the proposed Substitution, (xix) evidence reasonably satisfactory to Lender and its insurance consultant of insurance policies covering the proposed Substitute Property satisfying all of the requirements of Article VI, and (xx) UCC, bankruptcy, state and federal tax lien, litigation and judgment searches conducted by a search firm reasonably acceptable to the Lender with respect to the title holder of such proposed Substitute Property on the date immediately prior to acquisition thereof by Borrower, in each of the locations reasonably specified by the Lender and not revealing any Liens other than Permitted Encumbrances. In addition, Borrower shall permit the Lender at all reasonable times and upon reasonable prior notice to make an inspection of such proposed Substitute Property. Lender shall confirm Borrower’s compliance with this paragraph (c) with respect to each proposed Substitute Property within thirty (30) days after Lender’s receipt of the complete applicable Substitution Due Diligence Package and Lender’s failure to so confirm or deny Borrower’s compliance within such thirty (30) day period shall be deemed compliance by Borrower with this paragraph (c), provided that this sentence appears in bold capital letters in the Substitution Notice accompanying the Substitution Due Diligence Package.

(d) Additional Conditions Precedent. In addition to the conditions in paragraphs (a), (b) and (c) above, each Substitution shall be subject to the satisfaction of the following conditions precedent:

(i) Rating Agency Confirmation; Rating Agency Requirements. For any Substitution made after a Securitization, Lender’s receipt of a Rating Agency Confirmation and Borrower’s satisfaction of such other conditions as may be required by the Rating Agencies, including any such conditions as may relate to any applicable Ground Lease;

(ii) Release Conditions. Borrower’s compliance with the conditions set forth in Section 2.3.4(c), (e), (f), (g) and (k) with respect to the release of the Replaced Property;

(iii) Financial and Other Tests.

(1) LCR. After giving effect to such Substitution, as of the Substitution Date the LCR for all of the Individual Properties then remaining subject to the Liens of the Security Instruments (i.e., including the Substitute Property and excluding the Replaced Property), shall not be less than the greater of (A) the Closing Date LCR and (B) the LCR for the

Individual Properties subject to the Liens of the Security Instruments immediately prior to the Substitution Date;

(2) LTV Ratio. After giving effect to such Substitution, as of the Substitution Date the LTV Ratio for all of the Properties then remaining subject to the Liens of the Security Instruments (i.e. including the Substitute Property and excluding the Replaced Property), shall not be more than the Closing Date LTV.

(3) EBITDAR. The earnings from hotel and casino operations at the Property before interest expense/income, taxes, depreciation and amortization, any rental expense on real property (other than ground rent), distribution expense, direct and allocated corporate overhead expense, regional office allocation, royalty charges from affiliates and restructuring expense plus any non-cash charges/less any non-cash income, including but not limited to losses on sales of assets and non cash compensation expense (as evidenced by the financial statements and information provided to Lender by Borrower pursuant to clause (c) of this Section 2.3.5), during each of the three 12-month periods prior to the Substitution Date shall not have materially declined or during the prior 12-month period, evidence a material downward trend (as reasonably determined by Lender, applying the standards of a prudent commercial mortgage loan lender) over such three (3) year period.

(4) Geographic Diversity. The proposed Substitution does not cause (A) more than two Individual Properties to be within a three (3) mile radius of each other or (B) any two Individual Properties to be within a three (3) mile radius of each other having aggregate Combined Allocated Loan Amounts in excess of forty percent (40%) of the Combined Principal Amount.

(iv) Lender’s Costs and Expenses. Borrower shall pay for any and all reasonable out-of-pocket costs and expenses of Lender incurred in connection with any proposed Substitution, including Lender’s reasonable attorneys’ fees and disbursements, all title insurance premiums for any endorsements to any existing Title Policies reasonably required by Lender in connection with such proposed Substitution, title premiums, mortgage recording taxes, transfer taxes and recording fees;

(v) Transaction Costs. Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transactions relating to the proposed Substitution have been paid in full, or will simultaneously be paid in full on the Substitution Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender;

(vi) Opinions of Counsel. Delivery to Lender of the following favorable original Opinions of Counsel or updates thereto in connection with the Substitute Property similar in form and substance to the opinions which were delivered on the Closing Date in connection with the Replaced Property, reasonably satisfactory to Lender and addressed to the Lender on behalf of the holders of the Notes: (a) if requested by the Rating Agencies, a True Lease Opinion and a Non-Consolidation Opinion, (b) a local counsel enforceability opinion as to matters governed by local law, (c) an enforceability opinion under New York law, (d) an opinion

to the effect that each of Borrower, Master Lessee and Guarantor is duly organized and validly existing under the laws of the state of its formation and is qualified or licensed to do business in each jurisdiction where the nature of its business in which it is engaged makes such qualification or licensing necessary and (e) an opinion to the effect that the Loan Documents or amendments thereto have been duly authorized, executed and delivered by Borrower, Master Lessee and Guarantor and are the valid and binding obligations and agreements of such party, enforceable in accordance with their terms, in each case with the same exceptions as made on Closing Date;

(vii) No Event of Default. No Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Substitution Notice and on the Substitution Date;

(viii) Accuracy of Representations and Warranties. The representations and warranties set forth in the Loan Documents shall be true and correct as to the Substitute Property on the Substitution Date in all material respects (subject to any additional items set forth on updated exhibits and schedules hereto provided by Borrower which do not violate the provisions of the Loan Documents and are not reasonably likely to have a Material Adverse Effect with respect to such Substitute Property);

(ix) Officer’s Certificate. Delivery to Lender of an Officer’s Certificate certifying to the truth and accuracy of the statements in clauses (vii) and (viii);

(x) Non-Disqualification Opinion. Delivery of a Non-Disqualification Opinion;

(xi) Organizational Documents. If required by the Rating Agencies, delivery of original updated organizational documents of each of the Borrower, Mezzanine Borrower, Master Lessee, Guarantors and Sponsor, including, but not limited to a current certificate of good standing. If the Substitute Property is located in a State not previously covered by the Security Instruments, evidence of Borrower’s and Master Lessee’s qualification to do business in the State where the Substitute Property is located. Delivery of appropriate evidence of the authorization of the Borrower, Master Lessee and Guarantors approving the execution, delivery and performance of the Loan Documents or amendments thereto being executed and delivered in connection with the Substitution, duly adopted by the Borrower, Master Lessee and Guarantors as applicable and accompanied by an Officer’s Certificate stating that such authorizations have not been altered or repealed and are in full force and effect, and certifying as to the names of the Persons authorized to sign on behalf of such parties, together with the true signatures of each such Person;

(xii) Insurance Certificates. Delivery of the insurance certificates with respect to the Substitute Property required under Article VI; and

(xiii) Loan Documents. Delivery to Lender of originals of the following Loan Documents or amendments thereto:

(1) a Substitute Property Mortgage Spreader Agreement, duly executed and acknowledged by Borrower;

(2) a first priority Assignment of Master Lease, Subleases, Rents and Security Deposits, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Master Lease, the Subleases, Rents and Security Deposits as security for the Loan with respect to the Substitute Property, or a counterpart original of the Assignment of Leases, modified as necessary, duly executed and acknowledged by Borrower (the “Assignment of Leases Counterpart”);

(3) UCC financing statements (Form UCC-1) (or other forms required in any jurisdiction), covering all fixtures, Building Equipment and other personal property (other than the Excluded Personal Property), and all proceeds thereof, naming Borrower as debtor and Lender as secured party (collectively, the “UCC Financing Statements”; together with the Assignment of Leases Counterpart and the Substitute Property Mortgage Spreader Agreement, the “Security Documents”);

(4) the Title Policy or endorsements to the Title Policies, as applicable, issued by the Title Company in an amount equal to 125% of the Allocated Loan Amount for the Substitute Property (or, if the Title Company issues a tie-in endorsement between the Title Policy for the Substitute Property and the Title Policies for the other Individual Properties in form and substance reasonably acceptable to Lender, in an amount equal to 100% of the Allocated Loan Amount for the Substitute Property), reflecting the addition of each such Substitute Property and containing such affirmative coverage similar in form and substance to the affirmative coverage provided in connection with the Replaced Property, insuring that the Substitute Property Mortgage Spreader Agreement creates a valid first lien on Borrower’s fee or leasehold title in the Substitute Property subject to the Permitted Encumbrances, and insuring the perfected first priority interest of Lender pursuant to the Substitute Property Mortgage Spreader Agreement, together with any title insurance premiums, fees or charges due in connection therewith, and the Borrower shall cooperate with the Lender and execute such further instruments and documents and perform such further acts as the Lender or the Title Company shall reasonably request to carry out the creation and perfection of the liens and security interests contemplated by the Security Documents and the release, discharge and removal of any encumbrances required for the issuance of the Title Policy;

(5) an amendment to the Master Lease and to the Master Lease SNDA incorporating the Substitute Property and eliminating the Replaced Property;

(6) updates to any Exhibits and Schedules to the Loan Documents as applicable without disclosing matters inconsistent with the requirements of this Section 2.3.5; and

(7) a Confirmation of Guaranty in customary form duly executed and delivered by Guarantors, adding the Substitute Property to and affirming their obligations under the Recourse Guaranty.

(xiv) Mezzanine Loan Deliveries. The Mezzanine Lender shall have received all deliveries required under Section 2.3.5 of the Mezzanine Loan Agreement, including, but not limited to, insurance certificates naming Mezzanine Lender with respect to the Substitute Property, a copy of the owner’s title insurance policy and related mezzanine endorsement (if

available in such State) and copies of the Substitution Due Diligence Package and all final deliveries to Lender under this Section 2.3.5.

(xv) Additional Deliveries. Lender shall have received such other deliveries reasonably requested by Lender, provided such requests are customary and are consistent with the deliveries required with respect to the Individual Properties on the Closing Date.

2.3.6 Provisions Relating to Individual Properties That Go Dark.

(a) Borrower shall not allow, permit or suffer any Individual Property to Go Dark. If an Individual Property shall Go Dark, it shall be an Event of Default hereunder unless, within 30 days of such Individual Property Going Dark, Borrower shall:

(i) cause such Individual Property to reopen for business to the public; or

(ii) cause such Individual Property to be released from the lien of the applicable Security Instrument in accordance with Section 2.3.4 hereof; or

(iii) provide a Substitute Property, to be subject to the lien of the Security Instrument, in accordance with Section 2.3.5 hereof to the extent permitted under such Section, to replace such Individual Property.

(b) If any Individual Property shall Go Dark, Borrower will promptly send written notice thereof to Lender. If an Individual Property shall Go Dark, the Master Lessee shall nonetheless be required to make into the Holding Account without reduction the full Master Lease Rent payment as and when required under the Master Lease and the Master Lease Rent Payment Direction Letter with respect to all Individual Properties.

2.3.7 Excess Account Collateral. Upon the occurrence of any Property Release, provided no 90% Cash Sweep Period exists and no Event of Default has occurred and is continuing, Lender shall promptly perform an analysis of the Account Collateral in order to reasonably determine the amount of the Account Collateral (including, but not limited to, Proceeds) attributable to the Release Property (the “Excess Account Collateral”), and shall promptly instruct Cash Management Bank to return to Borrower the Excess Account Collateral, if any, except to the extent that Lender reasonably determines that a shortfall exists in any Sub-Account with respect to the Property other than the Release Property.

2.3.8 Reserve Requirements. Upon the occurrence of a Property Release, provided no Event of Default has occurred and is continuing, Borrower shall promptly prepare a revised estimate of Impositions and Other Charges, insurance premiums, Ground Rent and Master Lease Rent with respect to the remaining Properties in accordance with Sections 16.1, 16.2 and 16.3, as applicable, and shall promptly provide Lender and Cash Management Bank with notice of the revised Monthly Tax Reserve Amount, Monthly Insurance Reserve Amount and Monthly Ground Rent Amount.

2.3.9 Release of Unimproved Parcels. Subject to satisfaction of each of the conditions set forth below with respect to any Unimproved Parcel, at the request of Borrower, Lender shall

release such Unimproved Parcel from the Lien of the applicable Security Instrument and related Loan Documents without the payment of any Release Price:

(a) Borrower delivers a written notice to Lender (i) identifying the Unimproved Parcel to be released and the date on which Borrower desires the release to be effective, which date shall not be less than thirty (30) days from the date of Borrower’s delivery of notice, and (ii) specifying the intended use of the Unimproved Parcel, which shall not be inconsistent with the use of the portion of the related Individual Property that shall remain subject to the Lien of the applicable Security Instrument. For the avoidance of doubt, the erecting, maintaining and operating of residential apartment or condominium complexes on Unimproved Parcels after their release shall not be deemed to be inconsistent with the use of the related Individual Property.

(b) No Noticed Default or Event of Default shall exist and be continuing on the date Borrower delivers its notice to Lender or on the date on which the release of the Unimproved Parcel is to become effective, and on each such date Borrower shall have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of such date no Default or Event of Default exists.

(c) Each of the Unimproved Parcel and the remainder of the related Individual Property shall constitute separate tax lots and comply with all applicable Legal Requirements, including all zoning and subdivision laws and including, without limitation, applicable requirements for parking following the intended development of each such Unimproved Parcel.

(d) The release of the Unimproved Parcel shall not impair, other than to a de minimis extent, any access to or use of the remaining portion of the related Individual Property.

(e) Borrower shall submit to Lender, concurrently with its request for release, Release Instruments for the Unimproved Parcel together with an Officer’s Certificate certifying that (i) the Release Instruments are in compliance with all Legal Requirements, (ii) the release and conveyance to be effected will not violate the terms of this Agreement, (iii) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Property subject to the Loan Documents not being released) and (iv) the requirements described in the other clauses of this Section 2.3.9 have been satisfied in connection with the release and conveyance of the Unimproved Parcel (together with calculations and supporting documentation demonstrating the same in reasonable detail).

(f) On the date of release of the Unimproved Parcel, the Unimproved Parcel is simultaneously transferred to a party other than Borrower or any other SPE Entity.

(h) Borrower shall pay for any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed release and conveyance of an Unimproved Parcel, including Lender’s reasonable attorneys’ fees and disbursements and all title insurance premiums for any endorsements to any existing Title Policies reasonably required by Lender in connection with such proposed release.

(i) Borrower shall cause a Non-Disqualification Opinion with respect to such release to be delivered to Lender and the Rating Agencies.

2.4 Regulatory Change; Taxes.

2.4.1 Increased Costs. Prior to the Securitization of the Loan, if as a result of any Regulatory Change or compliance of Lender therewith, the basis of taxation of payments to Lender or any company Controlling Lender of the principal of or interest on the Loan is changed or Lender or the company Controlling Lender shall be subject to (i) any tax, duty, charge or withholding of any kind with respect to this Agreement (excluding federal taxation of the overall net income of Lender or the company Controlling Lender); or (ii) any reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with or other liabilities, of Lender or any company Controlling Lender is imposed, modified or deemed applicable; or (iii) any other condition affecting loans to borrowers subject to LIBOR-based interest rates is imposed on Lender or any company Controlling Lender and Lender determines that, by reason thereof, the cost to Lender or any company Controlling Lender of making, maintaining or extending the Loan to Borrower is increased, or any amount receivable by Lender or any company Controlling Lender hereunder in respect of any portion of the Loan to Borrower is reduced, in each case by an amount deemed by Lender in good faith to be material (such increases in cost and reductions in amounts receivable being herein called “Increased Costs”), then Lender shall provide notice thereof to Borrower and Borrower agrees that it will pay to Lender upon Lender’s written request such additional amount or amounts as will compensate Lender or any company Controlling Lender for such Increased Costs to the extent Lender determines that such Increased Costs are allocable to the Loan. If Lender requests compensation under this Section 2.4.1, Borrower may, by notice to Lender, require that Lender furnish to Borrower a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. In the event that Borrower is required to pay any Increased Costs in accordance with the terms hereof, Borrower shall have the right to prepay the Principal Amount (together with all accrued but unpaid interest thereon calculated through the end of the then current Interest Period) without the imposition of any Prepayment Fee. Borrower shall have up to ninety (90) days following the later to occur of (1) Lender furnishing a statement setting forth the basis for requesting compensation for Increased Costs if requested by Borrower and (2) receipt from Lender of notice of the Increased Costs to make such prepayment, provided until such prepayment is paid in full (including all accrued but unpaid interest thereon calculated through the end of the then current Interest Period), Borrower shall pay to Lender upon Lender’s written request such additional amount or amounts as will compensate Lender or any company Controlling Lender for Increased Costs incurred in the interim to the extent Lender determines that such Increased Costs are allocable to the Loan.

2.4.2 Special Taxes. Borrower shall make all payments hereunder free and clear of and without deduction for Special Taxes. If Borrower shall be required by law to deduct any Special Taxes from or in respect of any sum payable hereunder or under any other Loan Document to Lender, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.4.2) Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. Notwithstanding anything to the contrary contained in this Section 2.4, Borrower shall not be liable for any amounts as a result of withholding for Special Taxes or additional costs incurred as a result of the assignment of all or any portion of the Loan by Lender.

2.4.3 Other Taxes. In addition, Borrower agrees to pay any present or future stamp or documentary taxes or other excise or property taxes, charges, or similar levies which arise from any payment made hereunder, or from the execution, delivery or registration of, or otherwise with respect to, this Agreement, the other Loan Documents, or the Loan (hereinafter referred to as “Other Taxes”).

2.4.4 Indemnity. Borrower shall indemnify Lender for the full amount of Special Taxes (unless Borrower shall not be liable therefore as provided in Section 2.4.2) and Other Taxes (including any Special Taxes or Other Taxes imposed by any Governmental Authority on amounts payable under this Section 2.4.4) paid by Lender and any liability (including penalties, interest, and reasonable out-of-pocket expenses) arising therefrom or with respect thereto, whether or not such Special Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made within thirty (30) days after the date Lender makes written demand therefor.

2.4.5 Change of Office. To the extent that changing the jurisdiction of Lender’s applicable office would have the effect of minimizing Special Taxes, Other Taxes or Increased Costs, Lender shall use reasonable efforts to make such a change, provided that same would not otherwise be disadvantageous to Lender.

2.4.6 Survival. Without prejudice to the survival of any other agreement of Borrower hereunder, the agreements and obligations of Borrower contained in this Section 2.4 shall survive the payment in full of principal and interest hereunder, and the termination of this Agreement.

2.5 Conditions Precedent to Closing. The following conditions precedent to the obligation of Lender to make the Loan hereunder were either fulfilled by, or on behalf of, Borrower or waived by Lender as of the Closing Date; provided, however, that unless a condition precedent expressly survived the Closing Date pursuant to a separate agreement, by funding the Loan and recording the Security Instruments, Lender is deemed to have waived any such conditions not theretofore fulfilled or satisfied; and provided that the funding of the Loan was further subject to the terms and conditions set forth in the Funding Letter Agreement:

2.5.1 Representations and Warranties; Compliance with Conditions. The representations and warranties of Borrower contained in this Agreement and the other Loan

Documents, and the Merger Representations and Warranties, shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed. Notwithstanding the foregoing, (i) the breach or failure of a Property Specific Representation shall not constitute the failure to satisfy the condition precedent set forth in this Section 2.5.1 unless such breach or failure would result in a “Material Adverse Effect on the Company” (as such phrase is defined in the Merger Agreement), (ii) in the event of the breach or failure of a Property Specific Representation that results in a Portfolio MAE, Lender may require Borrower to effect a Lender-Initiated Substitution.

2.5.2 Delivery of Loan Documents; Title Policies; Reports; Leases.

(a) Loan Documents. Lender shall have received an original copy of this Agreement, the Notes, the Assignment of Licenses and all of the other Loan Documents, in each case, duly executed (and to the extent required, acknowledged) and delivered on behalf of Borrower and any other parties thereto.

(b) Security Instruments, Assignment of Leases. Lender shall have received evidence that original counterparts of the Security Instruments and Assignment of Leases, in proper form for recordation, have been delivered to the Title Company for recording, so as effectively to create, in the reasonable judgment of Lender, upon such recording valid and enforceable first priority Liens upon the Property, in favor of Lender (or such other trustee as may be required or desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents.

(c) Interest Rate Protection Agreement. Lender shall have received the original Interest Rate Cap Agreement which shall be in form and substance reasonably satisfactory to Lender and an original counterpart of the Acknowledgment executed and delivered by the Counterparty, and an original Interest Rate Swap Agreement which shall be in form and substance reasonably satisfactory to Lender.

(d) Account Agreement. Lender shall have received the original of the Account Agreement executed by each of Cash Management Bank and Borrower.

(e) Intercreditor Agreements. Lender shall have received the Revolver Intercreditor Agreement and the Mezzanine Intercreditor Agreement

(f) UCC Financing Statements. Lender shall have received evidence that the UCC financing statements relating to the Security Instruments and this Agreement have been delivered to the Title Company for filing in the applicable jurisdictions.

(g) Title Insurance. Lender shall have received the Title Policies issued by the Title Company and dated as of the Closing Date. Such Title Policies shall (i) provide coverage in an amount equal to 100% of the Loan, (ii) insure Lender that the Security Instruments create a valid, first priority Lien on the Property, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by

the terms of any endorsements), (iii) contain the endorsements and affirmative coverages set forth on Exhibit A and such additional endorsements and affirmative coverages as Lender may reasonably request to the extent available in such State, and (iv) name Lender as the insured. Lender also shall have received evidence that all premiums in respect of such Title Policies have been paid. Lender shall have received evidence that all appropriate releases or discharges of encumbrances necessary for the delivery of the Title Policies have been delivered for recording. In addition, Lender shall have received evidence of Borrower’s ownership of the Property in the form of owner’s title policies insuring Borrower’s title to the Property, which title policies shall be in form and substance, and issued by a title insurance company (with appropriate reinsurance or coinsurance), reasonably satisfactory to Lenders

(h) Surveys. Lender shall have received a current Survey for each of the Individual Properties, containing the survey certification substantially in the form attached hereto as Exhibit B. Each such Survey shall reflect the same legal description contained in the Title Policies referred to in paragraph (g) above and shall include, among other things, a metes and bounds description or such other description as is required by Title Company, of the real property comprising part of the Property, any such description to be reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to the Survey.

(i) Insurance. Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all insurance premiums currently due and payable for the existing policy period.

(j) Environmental Reports. Lender shall have received Environmental Reports in respect of the Property from a firm, and in form and substance, reasonably satisfactory to Lender.

(k) Encumbrances. Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien as of the Closing Date on the Property, subject only to Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

2.5.3 Delivery of Organizational Documents. On or before the Closing Date, Borrower shall deliver, or cause to be delivered, to Lender copies, certified by an Officer’s Certificate, of all organizational documentation related to Borrower, Sponsor, each Guarantor, Master Lessee and Mezzanine Borrower as have been requested by Lender and/or the formation, structure, existence, good standing and/or qualification to do business of Borrower, Sponsor, each Guarantor, Master Lessee and Mezzanine Borrower as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender. Each of the organizational documents of any SPE Entity shall contain single purpose entity provisions reasonably approved by Lender prior to the Closing Date.

2.5.4 Counsel Opinions.

(a) Lender shall have received or Borrower shall have delivered into escrow (for release to Lender concurrently with the delivery of the Security Instruments to the Title Company for recording) a non-consolidation opinion in a form reasonably satisfactory to the Lender (the “Non-Consolidation Opinion”).

(b) Lender shall have received or Borrower shall have delivered into escrow (for release to Lender concurrently with the delivery of the Security Instruments to the Title Company for recording) a true lease opinion with respect to the Master Lease in form and substance reasonably satisfactory to the Lender (the “True Lease Opinion”).

(c) Lender shall have received or Borrower shall have delivered into escrow (for release to Lender concurrently with the delivery of the Security Instruments to the Title Company for recording) a true sale opinion with respect to the Transfer of the entities owning the Property to Borrower in form and substance reasonably satisfactory to the Lender (the “True Sale Opinion”).

(d) Lender shall have received or Borrower shall have delivered into escrow (for release to Lender concurrently with the delivery of the Security Instruments to the Title Company for recording) a non-contravention opinion with respect to the Transfer of the entities owning the Property to Borrower in form and substance reasonably satisfactory to the Lender (the “Non-Contravention Opinion”).

(e) [Reserved]

(f) Lender shall have received or Borrower shall have delivered into escrow (for release to Lender concurrently with the delivery of the Security Instruments to the Title Company for recording) the Opinion of Counsel in such form reasonably approved by the Lender.

(g) Lender shall have received from Counterparty the Counterparty Opinion in such form approved by the Lender.

2.5.5 Consummation of the Merger. Borrower shall have delivered to Lender a true, correct and complete copy of the Merger Agreement. The merger transactions contemplated by the Merger Agreement shall have been consummated in accordance with the Merger Agreement, and all conditions precedent to such consummation, as set forth in the Merger Agreement, shall, as of the consummation of the merger transactions, have been satisfied (and would have been satisfied, without taking into consideration the application of the last paragraph of Section 6.1 of the Merger Agreement) or (subject to the following clause) waived, provided that no item requiring the consent of the Parent (as defined in the Merger Agreement), including pursuant to Section 6.1 of the Merger Agreement, that is material to the interest of Lender shall have been given and no condition material to the interests of the Lender shall have been waived except, in ease such case, with the prior written consent of Lender (which Lender shall not unreasonably withhold or delay).

2.5.6 Payments. All payments, deposits or escrows, if any, required to be made or established by Borrower under this Agreement, the Notes and the other Loan Documents on or before the Closing Date shall have been paid.

2.5.7 Transaction Costs. Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees, costs of Environmental Reports, seismic reports, zoning reports, searches, flood certifications, appraisals and other reports, the reasonable fees and costs of Lender’s counsel and all other reasonable third party out-of-pocket expenses incurred in connection with the origination of the Loan; and Borrower shall have paid the fees due to Lender pursuant to the Fee Letter.

2.5.8 Material Adverse Effect. Subject to the qualification contained in the preamble to Article IV of the Merger Agreement, other than clause (z) thereof, since December 31, 2005, there not having occurred a “Material Adverse Effect on the Company” (as defined in the Merger Agreement).

2.5.9 Control. After giving effect to the consummation of the transactions contemplated by the Merger Agreement, the Principal Investors, collectively, shall beneficially own and control, with unrestricted voting power, at least seventy percent (70%) of the voting equity of each Person constituting a Guarantor pursuant to arrangements consistent with the arrangements previously disclosed to Lender.

2.5.10 Insolvency. Neither Borrower nor any of its constituent Persons shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

2.5.11 Master Lease and Individual Property Subleases. Lender shall have received a copy of the duly executed Master Lease and each Individual Property Sublease, each in form consistent with the forms attached hereto (with respect to the Master Lease) or to the Purchase and Sale Agreement (with respect to the Individual Property Subleases) and otherwise reasonably acceptable to Lender and acceptable to the Rating Agencies and acceptable to the Title Company.

2.5.12 Equity Contribution. Holdco and FP collectively shall have received as equity contributions an aggregate amount equal to at least 32.5% of the total consideration payable under the Merger Agreement (a portion of which may be in the form of rollover equity provided by Frank Fertitta III, Lorenzo Fertitta and certain others) (plus such additional amount as the Principal Investors and their co-investors shall elect to contribute in their sole discretion), and (x) Holdco shall have contributed (or cause to be contributed) as a common equity contribution proceeds of such equity contribution received to Borrower in an amount not less than $550 million (the “Cash Equity Contribution”) and (y) Holdco and FP shall have applied, or caused to be applied, all proceeds of such equity contributions other than the Cash Equity Contribution to finance the consummation of the Contemplated Transactions.

Borrower Party in another Borrower Party, so long as such preferred equity does constitute “disqualified stock,” is not otherwise entitled to any mandatory dividends or redemptions, and contains terms that are otherwise reasonably satisfactory to Lender (provided that Lender shall approve such terms so long as they are not adverse to the interests of Lender); (iii) indebtedness evidenced by a note in the principal amount of $100 million dated February 16, 2007 issued by GV Ranch Station Capital Holdings, LLC and indebtedness evidenced by a series of notes in an aggregate principal amount of $9.2 million issued by a subsidiary of Master Lessee having a weighted average interest rate of 7.1% and maturity dates ranging from 2009 to 2026; (iv) a capital lease of the office building in which Master Lessee’s executive offices are located adjacent to the Red Rock Resort (the “Executive Office Capital Lease”); (v) indebtedness evidenced by that certain Credit Agreement dated as of October 4, 2007 providing to Aliante Gaming, LLC, a Nevada limited liability company, construction loans in the aggregate amount of $410 million and revolving loans in the aggregate amount of $20 million, and a completion guaranty by Master Lessee in respect thereof (the “Aliante Financing”) and (vi) such other existing indebtedness and preferred equity, if any, as shall be agreed by Lender (together with the Existing Notes, and the indebtedness described in clauses (iii), (iv) and (v), the “Existing Indebtedness”), and (b) all stock of the Master Lessee shall be owned by Guarantors free and clear of Liens (other than those securing the Revolving/Term Credit Facility)

2.5.14 Ground Lease and Fee Mortgagee Estoppels. Landlord shall have received a Ground Lessor Estoppel Certificate and, if applicable, a Fee Mortgagee Estoppel Certificate, for each Ground Lease Property.

2.5.15 Equity and Real Property Transfer Documents. Borrower shall have delivered to Lender true, correct and complete copies of all documentation pursuant to which the transactions contemplated by the Merger Agreement are consummated, including, but not limited to, all documents evidencing all stages of the acquisition of Station Casinos, Inc. by the Guarantors and all documents evidencing (i) all preliminary transfers of equity interests that resulted in the Borrower structure set forth on Exhibit K, (ii) any preliminary transfers of the Property into Affiliates of Borrower and (iii) the acquisition of such Affiliates by and the merger of such Affiliates into Borrower. In addition, Borrower shall have delivered to Lender a copy of the ALTA owner’s title insurance policy(ies) issued by the Title Company with respect to the Property and insuring Borrower’s fee and/or leasehold title thereto, in form and substance reasonably acceptable to Lender.

2.5.16 No Competing Financing. Lender shall be reasonably satisfied that prior to and during the 135-day period after the Closing Date (or such shorter period necessary to complete the Securitization) there shall be no competing offering, placement, or arrangement of any debt securities or bank financing (including refinancings and renewals of debt) by or on behalf of any Guarantor or any of its subsidiaries (including Borrower) other than (a) the Revolving/Term Credit Facility, (b) the Mezzanine Loan, (c) the Executive Office Capital Lease, (d) the Aliante Financing, (e) the Land Loan, (f) to the extent permitted to be incurred under the Merger Agreement, refinancings of existing indebtedness of subsidiaries of Master Lessee, and (g) to the extent permitted to be incurred under the Merger Agreement, construction and other single asset financings by subsidiaries of Master Lessee.

2.5.17 Approvals. All material governmental and third party approvals necessary in connection with the Contemplated Transactions (including all necessary regulatory and gaming approvals) and the continuing operations of Master Lessee, Borrower and their respective subsidiaries (including shareholder or member approvals, if any) shall have been obtained on terms reasonably satisfactory to Lender and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Contemplated Transactions. There shall not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that would permit Sponsor under the Merger Agreement not to consummate the merger transaction.

2.5.18 Searches. Lender shall have received current judgment, bankruptcy, UCC, litigation and tax lien searches showing no material monetary encumbrances with respect to the Property or material liabilities of Borrower or the SPE Entities other than as contemplated by the Loan Documents; provided that, for the avoidance of doubt, the disclosure, in any such searches or otherwise, or existence of any pending or threatened action, suit, litigation or proceeding relating to the Contemplated Transactions which does not constitute at such time a contractual basis for termination of the Merger Agreement shall not constitute a basis of the failure or non-satisfaction of this condition.

2.6 [Reserved].

III. CASH MANAGEMENT

3.1 Cash Management.

3.1.1 Establishment of Accounts. Borrower hereby acknowledges that, simultaneously with the execution of this Agreement, pursuant to the Account Agreement, Borrower has established with Cash Management Bank a holding account (the “Holding Account”), which has been established as a non-interest bearing deposit account with interest-bearing sub-accounts. The Holding Account and each sub-account of such account and the funds deposited therein shall serve as additional security for the Loan. Pursuant to the Account Agreement, Borrower shall irrevocably instruct and authorize Cash Management Bank to disregard any and all orders for withdrawal from the Collateral Accounts made by, or at the direction of, Borrower. Borrower agrees that, prior to the payment in full of the Indebtedness, the terms and conditions of the Account Agreement shall not be amended or modified in any material respect without the prior written consent of Lender (which consent Lender may grant or withhold in its sole discretion), and if a Securitization has occurred, the delivery by Borrower of a Rating Agency Confirmation. In recognition of Lender’s security interest in the funds deposited into the Collateral Accounts, the Holding Account shall be named as follows: “FCP PropCo, LLC Holding Account in favor of German American Capital Corporation, as Collateral Agent” (Account Number 048818470). Borrower confirms that it has established with Cash Management Bank the following sub-accounts of the Holding Account (each, a “Sub-Account” and, collectively, the “Sub-Accounts” and together with the Holding Account, the “Collateral Accounts”), which (i) may be ledger or book entry sub-accounts and need not be actual sub-accounts, (ii) shall each be linked to the Holding Account, (iii) shall each be a “deposit account” (as such term is defined in Section 9-102(a)(29)

of the UCC) and (iv) shall each be an Eligible Account to which certain funds shall be allocated and from which disbursements shall be made pursuant to the terms of this Agreement:

(a) a sub-account for the retention of Account Collateral in respect of Impositions and Other Charges for the Property (the “Tax Reserve Account”);

(b) a sub-account for the retention of Account Collateral in respect of insurance premiums for the Property (the “Insurance Reserve Account”);

(d) a sub-account for the retention of Account Collateral in respect of Debt Service on the Loan (the “Debt Service Reserve Account”);

(e) a sub-account for the retention of Account Collateral in respect of reserves relating to shortfalls in Master Lease Rent (the “Master Lease Rent Shortfall Reserve Account”);

(f) a sub-account for the retention of Account Collateral in respect of certain Proceeds as more fully set forth in Section 6.2 (the “Proceeds Reserve Account”);

(g) a sub-account for the retention of Account Collateral in respect of sums required to be paid to the Swap Counterparty under the Interest Rate Swap Agreement with account number 048818542 (the “Swap Payment Account”);

(h) a sub-account for the retention of Account Collateral in respect of Debt Service (First Mezzanine) (the “First Mezzanine Debt Service Reserve Account”);

(i) a sub-account for the retention of Account Collateral in respect of Debt Service (Second Mezzanine) (the “Second Mezzanine Debt Service Reserve Account”); and

(j) a sub-account for the retention of Account Collateral in respect of Debt Service (Third Mezzanine) (the “Third Mezzanine Debt Service Reserve Account”).

(k) a sub-account for the retention of Account Collateral in respect of Debt Service (Fourth Mezzanine) (the “Fourth Mezzanine Debt Service Reserve Account”).

3.1.2 Pledge of Account Collateral. To secure the full and punctual payment and performance of the Obligations, Borrower hereby collaterally assigns, grants a security interest in and pledges to Lender, to the extent not prohibited by applicable law, a first priority continuing security interest in and to the following property of Borrower, whether now owned or existing or hereafter acquired or arising and regardless of where located (all of the same, collectively, the “Account Collateral”):

(a) the Collateral Accounts and all cash, deposits and/or wire transfers from time to time deposited or held in, credited to or made to the Collateral Accounts;

(b) all interest and cash from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing or purchased with funds from the Collateral Accounts; and

(c) to the extent not covered by clauses (a) or (b) above, all proceeds (as defined under the UCC) of any or all of the foregoing.

In addition to the rights and remedies herein set forth, Lender shall have all of the rights and remedies with respect to the Account Collateral available to a secured party at law or in equity, including, without limitation, the rights of a secured party under the UCC, as if such rights and remedies were fully set forth herein.

This Agreement shall constitute a security agreement for purposes of the Uniform Commercial Code and other applicable law.

3.1.3 Maintenance of Collateral Accounts.

(a) Borrower agrees that each of the Collateral Accounts is and shall be maintained (i) as a “deposit account” (as such term is defined in Section 9-102(a)(29) of the UCC), (ii) in such a manner that Lender shall have control (within the meaning of Section 9-104(a)(2) of the UCC) over the Holding Account and (iii) such that no Person other than Lender shall have any right of withdrawal from the Collateral Accounts and, except as provided herein, no Account Collateral shall be released to the Borrower or any Affiliate of Borrower from the Collateral Accounts. Without limiting the Borrower’s obligations under the immediately preceding sentence, Borrower shall only establish and maintain the Holding Account with a financial institution that has executed an agreement substantially in the form of the Account Agreement or in such other form acceptable to Lender in its sole discretion.

3.1.4 Eligible Accounts. The Collateral Accounts shall be Eligible Accounts. The Collateral Accounts shall be subject to such applicable laws, and such applicable regulations of the Board of Governors of the Federal Reserve System and of any other banking authority or Governmental Authority, as may now or hereafter be in effect. Income and interest accruing on the Collateral Accounts or any investments held in such accounts shall be periodically added to the principal amount of such account and shall be held, disbursed and applied in accordance with the provisions of this Agreement and the Account Agreement. Borrower shall be the beneficial owner of the Collateral Accounts for federal income tax purposes and shall report all income on the Collateral Accounts.

3.1.5 Deposits into Sub-Accounts. On the Closing Date, Borrower deposited the following amounts into the Sub-Accounts:

(i) $2,392,298.65 into the Tax Reserve Account;

(ii) $0.00 into the Insurance Reserve Account;

(iii) $183,333.33 into the Ground Rent Reserve Account;

(iv) $0.00 into the Debt Service Reserve Account;

(v) $0.00 into the Swap Payment Account;

(vi) $0.00 into the Master Lease Rent Shortfall Reserve Account;

(vii) $0.00 into the Proceeds Reserve Account;

(viii) $0.00 into the First Mezzanine Debt Service Reserve Account;

(ix) $0.00 into the Second Mezzanine Debt Service Reserve Account; and

(x) $0.00 into the Third Mezzanine Debt Service Reserve Account.

(xi) $0.00 into the Fourth Mezzanine Debt Service Reserve Account.

3.1.6 Monthly Funding of Sub-Accounts; Master Lease Rent Shortfalls; Sub-Account Shortfalls.

(a) Monthly Funding of Sub-Accounts. Borrower hereby irrevocably authorizes Lender to transfer (and, pursuant to the Account Agreement shall irrevocably authorize Cash Management Bank to execute any corresponding instructions of Lender), and, subject to Section 3.1.10, Lender shall transfer, from the Holding Account by 11:00 a.m. New York time on the date on which each payment of Master Lease Rent under the Master Lease is made to the Holding Account, or as soon thereafter as sufficient funds are in the Holding Account to make the applicable transfers, commencing on the date of the first payment of Master Lease Rent under the Master Lease, funds in the following amounts and in the following order of priority:

(i) funds in an amount equal to the Monthly Tax Reserve Amount and any other amounts required pursuant to Section 16.1 for the month in which the transfer from the Holding Account is made to the Tax Reserve Account;

(ii) funds in an amount equal to the Monthly Insurance Reserve Amount and any other amounts required pursuant to Section 16.2 for the month in which the transfer from the Holding Account is made to the Insurance Reserve Account;

(iii) funds in an amount equal to the Monthly Ground Rent Reserve Amount due on the Payment Date immediately following the date on which the transfer from the Holding Account is made to the Ground Rent Reserve Account;

(iv) funds sufficient to pay Senior Swap Breakage, if any, to be paid to Swap Counterparty pursuant to the Interest Rate Swap Agreement, as certified to Lender by Swap Counterparty, which amount shall be deposited into the Swap Payment Account;

(v) (i) funds in an amount equal to the amount of Debt Service due on the Interest Rate Swap Notional Amount (as the same may have been reduced in accordance with this Agreement) on the Payment Date immediately following the date the transfer from the Holding Account is made to the Debt Service Reserve Account, and (ii) funds sufficient to pay the net amount, if any (taking into consideration the current monthly amount to be paid by the Swap Counterparty under

the Interest Rate Swap Agreement) due to Swap Counterparty under the Interest Rate Swap Agreement, as certified to Lender by Swap Counterparty, which amount shall be deposited into the Swap Payment Account and applied on a pro rata basis among the amounts due under subclauses (i) and (ii) of this clause;

(vi) funds sufficient to pay the next monthly payment of Debt Service for the remaining Principal Amount (other than in respect of the Interest Rate Swap Notional Amount), which amount shall be deposited into the Debt Service Account;

(vii) to the extent Lender receives a First Mezzanine Lender Monthly Debt Service Notice, funds in an amount equal to the First Mezzanine Loan Debt Service Amount for the month in which the Payment Date immediately following the date of the transfer from the Holding Account occurs and transfer the same to the First Mezzanine Debt Service Reserve Account;

(viii) to the extent Lender receives a Second Mezzanine Lender Monthly Debt Service Notice, funds in an amount equal to the Second Mezzanine Loan Debt Service Amount for the month in which the Payment Date immediately following the date of the transfer from the Holding Account occurs and transfer the same to the Second Mezzanine Debt Service Reserve Account;

(ix) to the extent Lender receives a Third Mezzanine Lender Monthly Debt Service Notice, funds in an amount equal to the Third Mezzanine Loan Debt Service Amount for the month in which the Payment Date immediately following the date of the transfer from the Holding Account occurs and transfer the same to the Third Mezzanine Debt Service Reserve Account;;

(x) to the extent Lender receives a Fourth Mezzanine Lender Monthly Debt Service Notice, funds in an amount equal to the Fourth Mezzanine Loan Debt Service Amount for the month in which the Payment Date immediately following the date of the transfer from the Holding Account occurs and transfer the same to the Fourth Mezzanine Debt Service Reserve Account;

(xi) to the extent Lender receives a comparable Monthly Debt Service Notice from a Mezzanine Lender under any other Mezzanine Loan, funds in an amount equal to the applicable debt service amount under such notice for the month in which the Payment Date immediately following the date of the transfer from the Holding Account occurs and transfer the same to the applicable Mezzanine Debt Service Reserve Account, in order of priority of the applicable Mezzanine Loans;

(xii) funds sufficient to pay Subordinate Swap Breakage, if any, to be paid to Swap Counterparty pursuant to the Interest Rate Swap Agreement, as certified to Lender by Swap Counterparty, which amount shall be deposited into the Swap Payment Account;

(xiii) during any 90% Cash Sweep Period, funds in an amount equal to eighty percent (80%) of the balance (if any) remaining or deposited in the Holding Account after the foregoing transfers, to the Master Lease Rent Shortfall Reserve Account;

(xiv) if a Noticed Default is then continuing, the balance remaining on Deposit in the Holding Account after the foregoing transfers, to the Master Lease Rent Shortfall Reserve Account;

(xv) provided no Noticed Default or Event of Default is then continuing, and Lender has not received a Mezzanine Loan Default Notice, funds in an amount equal to the balance (if any) remaining or deposited in the Holding Account after the foregoing transfers (such remainder being hereinafter referred to as “Excess Cash Flow”), to the Borrower’s Account.

(b) Master Lease Rent Shortfalls; Release of Funds in Master Lease Rent Shortfall Reserve Account.

(i) If there is a Master Lease Rent Shortfall, Lender shall have the right at its election to direct the Cash Management Bank to transfer (but shall not be obligated to so direct the Cash Management Bank to transfer) from the Master Lease Rent Shortfall Reserve Account to the Holding Account, without prior notice to Borrower or Master Lessee, an amount equal to such Master Lease Rent Shortfall. Lender shall endeavor to give prompt notice to Borrower of the occurrence of such a transfer from the Master Lease Rent Shortfall Reserve Account, but it shall not be a breach of this Agreement, and Lender shall have no liability to Borrower or any other Person, if Lender shall fail to do so.

(ii) In the event that no 90% Cash Sweep Period, Default or Event of Default is then continuing, Lender shall direct the Cash Management Bank to transfer the unapplied portion, if any, of the funds in the Master Lease Rent Shortfall Reserve Account to the Borrower’s Account.

(c) Sub-Account Shortfalls. If (after taking into account any sums Lender may elect to deposit into the Holding Account pursuant to Section 3.1.6(b)) there are insufficient funds in the Holding Account to make any of the transfers required under Section 3.1.6(a)(i), (ii), (iii) or (iv), as reasonably determined by Lender, Lender shall provide notice to Borrower of such insufficiency (it being understood that in no event shall Lender be required to notify Borrower of any deficiency in the Debt Service Reserve Account, such deficiency on any Payment Date being an Event of Default) and, within five (5) Business Days after receipt of said notice and, notwithstanding such five (5) Business Day period, prior to the expiration of any grace period applicable to such payment, Borrower shall deposit into the Holding Account an amount equal to the shortfall of available funds in the Holding Account taking into account any funds which accumulate in the Holding Account during such five (5) Business Day period. Notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents, Borrower shall not be deemed to be in default hereunder or thereunder in the event funds sufficient for a required transfer are held in an appropriate Sub-Account (other than the Master Lease Rent Shortfall Reserve Account) and Lender or Cash Management Bank fails to timely make any transfer from such Sub-Account (other than the Master Lease Rent Shortfall Reserve Account) as contemplated by this Agreement unless due to the negligence or willful misconduct of Borrower. Any amounts deposited by Borrower pursuant to this Section 3.1.6(c) in excess of the amount necessary to cure a shortfall of available funds in the Holding Account shall be promptly returned to Borrower.

(d) To the extent that Borrower shall fail to pay any mortgage recording tax, costs, expenses or other amounts pursuant to Section 19.12 of this Agreement (other than any such costs, expenses or other amounts to be paid at closing) within the time period set forth therein, Lender shall have the right, at any time, without prior notice to Borrower, to withdraw from the Holding Account (excluding to the extent required under the last sentence of Section 3.1.10(a) any funds that would otherwise be directed into the Tax Reserve Account, the Insurance Reserve Account, the Ground Rent Reserve Account and, to the extent the Master Lessee is entitled to Proceeds under the Master Lease or such Proceeds are required for restoration under the Master Lease, the Proceeds Reserve Account), an amount equal to such unpaid taxes, costs, expenses and/or other amounts and pay such amounts to the Person(s) entitle thereto. Lender shall endeavor to give prompt notice to Borrower of the occurrence of such a withdrawal from the Holding Account, but it shall not be a breach of this Agreement, and Lender shall have no liability to Borrower or any other Person, if Lender shall fail to do so.

(e) In the event that Lender has received a Mezzanine Loan Default Notice and no Event of Default or 90% Cash Sweep Period has occurred and is continuing, Borrower hereby irrevocably directs that all Excess Cash Flow shall (in lieu of transferring such funds to the Borrower’s Account): (i) to the extent Lender has received a First Mezzanine Loan Default Notice and until such time as Lender receives a First Mezzanine Loan Default Revocation Notice, be deposited directly into the First Mezzanine Account for application as provided in the First Mezzanine Loan Agreement; (ii) provided Lender has not received a First Mezzanine Loan Default Notice but has received a Second Mezzanine Loan Default Notice and until such time as Lender receives a Second Mezzanine Loan Default Revocation Notice, be deposited directly in the Second Mezzanine Account; (iii) provided Lender has not received a First Mezzanine Loan Default Notice or a Second Mezzanine Loan Default Notice but has received a Third Mezzanine Loan Default Notice and until such time as Lender receives a Third Mezzanine Loan Default Revocation Notice from Third Mezzanine Lender, be deposited directly in the Third Mezzanine Account; (iv) provided Lender has not received a First Mezzanine Loan Default Notice, a Second Mezzanine Loan Default Notice or a Third Mezzanine Loan Default Notice but has received a Fourth Mezzanine Loan Default Notice and until such time as Lender receives a Fourth Mezzanine Loan Default Revocation Notice from Fourth Mezzanine Lender, be deposited directly in the Fourth Mezzanine Account; (v) provided Lender has not received a First Mezzanine Loan Default Notice, a Second Mezzanine Loan Default Notice, a Third Mezzanine Loan Default Notice or a Fourth Mezzanine Loan Default Notice, but has received a Senior Mezzanine Loan Default Notice from a more junior Mezzanine Lender and until such time as Lender receives a Senior Mezzanine Loan Default Revocation Notice from such Mezzanine Lender, be deposited directly in the Mezzanine Account of the most senior Mezzanine Lender delivering such default notice. The direction set forth in the immediately preceding sentence shall not be changed or terminated without the written consent of the applicable Mezzanine Lender. Notwithstanding any provision herein to the contrary, no Mezzanine Loan Default Notice shall be required for the deposit of Proceeds into the respective Mezzanine Account in accordance with the terms of Section 6.2.3(b) hereof.

3.1.7 Required Payments from Sub-Accounts. Borrower irrevocably authorizes Lender to make and, subject to Section 3.1.10, Lender hereby agrees to make or to direct the Cash Management Bank to make, the following payments from the Sub-Accounts to the extent of the monies on deposit therefor:

(i) funds from the Tax Reserve Account to Lender sufficient to permit Lender to pay (A) Impositions and (B) Other Charges, on the respective due dates therefor, and Lender shall so pay such funds to the Governmental Authority having the right to receive such funds;

(ii) funds from the Insurance Reserve Account to Lender sufficient to permit Lender to pay insurance premiums for the insurance required to be maintained pursuant to the terms of this Agreement and the Security Instruments, on the respective due dates therefor, and Lender shall so pay such funds to the insurance company having the right to receive such funds;

(iii) funds from the Ground Rent Reserve Account to Lender sufficient to permit Lender to pay all Ground Rent on the due dates therefor and Lender shall so pay such funds to the Person having the right to receive such funds on the respective due dates therefor;

(iv) funds from the Debt Service Reserve Account to Lender sufficient to pay Debt Service on each Payment Date, and Lender, on each Payment Date, shall apply such funds to the payment of the Debt Service payable on such Payment Date;

(v) funds from the Swap Payment Account to Swap Counterparty on the date each month as required under the Interest Rate Swap Agreement;

(vi) provided no Event of Default has occurred and is continuing, funds on deposit in the First Mezzanine Debt Service Reserve Account to the First Mezzanine Account;

(vii) provided (a) no Event of Default has occurred and is continuing and (b) Lender has not received a First Mezzanine Loan Default Notice, funds on deposit in the Second Mezzanine Debt Service Reserve Account to the Second Mezzanine Account; however, if no Event of Default has occurred and is continuing and Lender has received a First Mezzanine Loan Default Notice, any amounts that would otherwise have been distributed to the Second Mezzanine Account, Third Mezzanine Account, Fourth Mezzanine Account or such other Mezzanine Account junior thereto pursuant to this Section 3.1.7 absent such notice shall instead be distributed to the First Mezzanine Account for application in accordance with the First Mezzanine Loan Documents until such time as Lender receives a notice from First Mezzanine Lender that such event of default under the First Mezzanine Loan is no longer continuing (a “First Mezzanine Loan Default Revocation Notice”);

(viii) provided (a) no Event of Default has occurred and is continuing and (b) Lender has not received a First Mezzanine Loan Default Notice or a Second Mezzanine Loan Default Notice, funds on deposit in the Third Mezzanine Debt Service Reserve Account to the Third Mezzanine Account; however, (x) if no Event of Default has occurred and is continuing and Lender has not received a First Mezzanine Loan Default Notice, and (y) Lender has received a Second Mezzanine Loan Default Notice, any amounts that would otherwise have been distributed to the Third Mezzanine Account, the Fourth Mezzanine Account or such other Mezzanine Account junior thereto pursuant to this Section 3.1.7 absent such notice shall instead be distributed to the Second Mezzanine Account for application in accordance with the Second Mezzanine Loan Documents until such time as Lender receives a notice from Second Mezzanine

Lender that such event of default under the Second Mezzanine Loan is no longer continuing (a “Second Mezzanine Loan Default Revocation Notice”);

(ix) provided (a) no Event of Default has occurred and is continuing and (b) Lender has not received a First Mezzanine Loan Default Notice, a Second Mezzanine Loan Default Notice, or a Third Mezzanine Loan Default Notice, funds on deposit in the Fourth Mezzanine Debt Reserve Account to the Fourth Mezzanine Account; however, (x) if no Event of Default has occurred and is continuing and Lender has not received a First Mezzanine Loan Default Notice or Second Mezzanine Loan Default Notice and (y) Lender has received a Third Mezzanine Loan Default Notice, any amounts that would otherwise have been distributed to the Fourth Mezzanine Account or such other Mezzanine Account junior thereto pursuant to this section 3.1.7 absent such notice shall instead be distributed to the Third Mezzanine Account for application in accordance with the Third Mezzanine Loan Documents until such time as Lender receives a notice from Third Mezzanine Lender that such event of default under the Third Mezzanine Loan is no longer continuing (a “Third Mezzanine Loan Default Revocation Notice”); and

(x) provided (a) no Event of Default has occurred and is continuing and (b) Lender has not received a First Mezzanine Loan Default Notice, a Second Mezzanine Loan Default Notice, a Third Mezzanine Loan Default Notice or a Fourth Mezzanine Loan Default Notice, funds on deposit in any other Mezzanine Debt Service Reserve Account to the Mezzanine Account of the applicable Mezzanine Lender, in order of priority of the applicable Mezzanine Loans; however, (x) if no Event of Default has occurred and is continuing and Lender has not received a First Mezzanine Loan Default Notice, Second Mezzanine Loan Default Notice or Third Mezzanine Loan Default Notice, and (y) Lender has received a Fourth Mezzanine Loan Default Notice or a comparable Mezzanine Loan Default Notice from another Mezzanine Lender subordinate to the Fourth Mezzanine Lender, any amounts that would otherwise have been distributed pursuant to this Section 3.1.7 to a Mezzanine Lender more junior in priority to the Fourth Mezzanine Lender or such other Mezzanine Lender providing the default notice shall not receive any such sums, but rather such sums shall instead be distributed (following delivery of a Fourth Mezzanine Loan Default Notice) to the Fourth Mezzanine Account or (provided there has been no Fourth Mezzanine Loan Default Notice, following delivery of a comparable Mezzanine Loan Default Notice from another Mezzanine Lender subordinate to the Fourth Mezzanine Lender) to the applicable senior Mezzanine Lender that delivered such default notice for application in accordance with Fourth Mezzanine Loan Documents or such senior Mezzanine Lender’s Mezzanine Loan Documents, as applicable, until such time as Lender receives a notice from Fourth Mezzanine Lender or such senior Mezzanine Lender that such event of default under the Fourth Mezzanine Loan or such senior Mezzanine Lender’s Mezzanine Loan is no longer continuing (respectively, a “Fourth Mezzanine Loan Default Revocation Notice” or a “Senior Mezzanine Loan Default Revocation Notice”).

3.1.8 Cash Management Bank.

(a) Lender shall have the right at Borrower’s sole cost and expense to replace the Cash Management Bank with a financial institution reasonably satisfactory to Borrower in the event that (i) the Cash Management Bank fails, in any material respect, to comply with the Account Agreement or (ii) the Cash Management Bank is no longer an Approved Bank. Upon

the occurrence and during the continuance of an Event of Default, Lender shall have the right at Borrower’s sole cost and expense to replace Cash Management Bank at any time, without notice to Borrower. Borrower shall cooperate with Lender in connection with the appointment of any replacement Cash Management Bank and the execution by the Cash Management Bank and the Borrower of an Account Agreement and delivery of same to Lender (with a copy to the Mezzanine Lender).

(b) So long as no Event of Default shall have occurred and be continuing, Borrower shall have the right at its sole cost and expense to replace the Cash Management Bank with a financial institution that is an Approved Bank provided that such financial institution and Borrower shall execute and deliver to Lender (with a copy to Mezzanine Lender) an Account Agreement substantially similar to the Account Agreement executed as of the Closing Date, or in such other form reasonably required by Lender or required by the Rating Agencies, with such changes therein as shall be reasonably acceptable to Lender.

3.1.9 Borrower’s Account Representations, Warranties and Covenants.

(a) Borrower represents, warrants and covenants that as of the Closing Date, Borrower irrevocably directed the Master Lessee pursuant to a letter substantially in the form of the Master Lease Rent Payment Direction Letter to make all payments of Master Lease Scheduled Rent directly to the Holding Account at all times during the term of the Loan and Borrower shall cause all such sums to be deposited in the Holding Account.

(b) Borrower further represents, warrants and covenants that (i) Borrower shall cause Master Lessee to deposit all amounts payable to Borrower pursuant to the Master Lease directly into the Holding Account, (ii) Borrower shall pay or cause to be paid all Rents, Cash and Cash Equivalents or other items of operating income not covered by the preceding subsection (a) within one Business Day after receipt thereof by Borrower or its Affiliates directly into the Holding Account and, until so deposited, any such amounts held by Borrower or its Affiliates shall be deemed to be Account Collateral and shall be held in trust by it for the benefit, and as the property, of Lender and shall not be commingled with any other funds or property of Borrower or its Affiliates, (iii) there are no accounts other than the Collateral Accounts maintained by Borrower or any other Person with respect to the Property or the collection of Rents, and (iv) so long as the Loan shall be outstanding, neither Borrower nor any other Person shall open any other operating accounts with respect to the Property or the collection of Rents, except for the Collateral Accounts; provided that, Borrower shall not be prohibited from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to the Borrower’s Account pursuant to Section 3.1.6.

3.1.10 Account Collateral and Remedies.

(a) Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, without additional notice from Lender to Borrower, (i) Lender may, in addition to and not in limitation of Lender’s other rights, make any and all withdrawals from, and transfers between and among, the Collateral Accounts as Lender shall determine in its sole and absolute discretion to pay any Indebtedness, Obligations, operating expenses and/or capital expenditures for the Property in such order and

priority as Lender shall determine in its sole and absolute discretion; and (ii) all payments to the Mezzanine Lender pursuant to Section 3.1.6 shall immediately cease. Notwithstanding anything to the contrary contained herein, except to the extent that Borrower is entitled to such funds under the terms and provisions of the Master Lease due to the continuance of a Master Lease Event of Default thereunder or otherwise, funds deposited into the Tax Reserve Account, the Insurance Reserve Account, and the Ground Rent Reserve Account (i) may not be applied by Lender in satisfaction of the Obligations and (ii) shall continue to be disbursed by Lender as provided in Article XVI and this Article III as if no Event of Default has occurred.

(b) Upon the occurrence and during the continuance of an Event of Default, Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s true and lawful attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver any instruments and to exercise and enforce every right, power, remedy, option and privilege of Borrower with respect to the Account Collateral, and do in the name, place and stead of Borrower, all such acts, things and deeds for and on behalf of and in the name of Borrower, which Borrower could or might do or which Lender may deem necessary or desirable to more fully vest in Lender the rights and remedies provided for herein and to accomplish the purposes of this Agreement. The foregoing powers of attorney are irrevocable and coupled with an interest. Upon the occurrence and during the continuance of an Event of Default, Lender may perform or cause performance of any such agreement, and any reasonable out-of-pocket expenses of Lender incurred in connection therewith shall be paid by Borrower as provided in Section 5.1.16.

(c) Borrower hereby expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any notice of any kind in connection with this Agreement or the Account Collateral. Borrower acknowledges and agrees that ten (10) days’ prior written notice of the time and place of any public sale of the Account Collateral or any other intended disposition thereof shall be reasonable and sufficient notice to Borrower within the meaning of the UCC.

3.1.11 Transfers and Other Liens. Borrower agrees that it will not (i) sell or otherwise dispose of any of the Account Collateral or (ii) create or permit to exist any Lien upon or with respect to all or any of the Account Collateral, except for the Lien granted to Lender under this Agreement.

3.1.12 Reasonable Care. Beyond the exercise of reasonable care in the custody thereof, Lender shall have no duty as to any Account Collateral in its possession or control as agent therefor or bailee thereof or any income thereon or the preservation of rights against any person or otherwise with respect thereto. Lender shall be deemed to have exercised reasonable care in the custody of the Account Collateral in its possession if the Account Collateral is accorded treatment substantially equal to that which Lender accords its own property, it being understood that Lender shall not be liable or responsible for any loss or damage to any of the Account Collateral, or for any diminution in value thereof, by reason of the act or omission of Lender, its Affiliates, agents, employees or bailees, except to the extent that such loss or damage results from the Lender’s gross negligence or willful misconduct. In no event shall Lender be liable either directly or indirectly for losses or delays resulting from any event which may be the basis of an Excusable Delay, computer malfunctions, interruption of communication facilities, labor difficulties or other causes beyond Lender’s reasonable control or for indirect, special or

consequential damages except to the extent of Lender’s gross negligence or willful misconduct. Notwithstanding the foregoing, Borrower acknowledges and agrees that (i) Lender does not have custody of the Account Collateral, (ii) Cash Management Bank has custody of the Account Collateral, (iii) the initial Cash Management Bank was chosen by Borrower and (iv) Lender has no obligation or duty to supervise Cash Management Bank or to see to the safe custody of the Account Collateral.

3.1.13 Lender’s Liability.

(a) Lender shall be responsible for the performance only of such duties with respect to the Account Collateral as are specifically set forth in this Section 3.1 or elsewhere in the Loan Documents, and no other duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act with respect to the Account Collateral which would cause it to incur any expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender, its employees and officers harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by Lender in connection with the transactions contemplated hereby with respect to the Account Collateral except as such may be caused by the gross negligence or willful misconduct of Lender, its employees, officers or agents.

(b) Lender shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper, document or signature believed by it in good faith to be genuine, and, in so acting, it may be assumed that any person purporting to give any of the foregoing in connection with the provisions hereof has been duly authorized to do so. Lender may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder and in good faith in accordance therewith.

3.1.14 Continuing Security Interest. This Agreement shall create a continuing security interest in the Account Collateral and shall remain in full force and effect until payment in full of the Indebtedness. Upon payment in full of the Indebtedness, this security interest shall automatically terminate without further notice from any party and Borrower shall be entitled to the return, upon its request, of such of the Account Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof and Lender shall execute such instruments and documents as may be reasonably requested by Borrower to evidence such termination and the release of the Account Collateral.

3.1.15 Distributions. Transfers of Borrower’s funds from any of the Collateral Accounts to or for the benefit of any of the Mezzanine Borrowers shall constitute distributions to First Mezzanine Borrower, and deemed distributions by the First Mezzanine Borrower to the Second Mezzanine Borrower, by the Second Mezzanine Borrower to the Third Mezzanine Borrower, by the Third Mezzanine Borrower to the Fourth Mezzanine Borrower, and by the Fourth Mezzanine Borrower to such other Mezzanine Borrower as may be junior thereto, as applicable, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act. The provisions of this Article III shall not create a debtor-creditor relationship between Borrower and any Mezzanine Lender. Notwithstanding anything to the contrary

contained herein, there shall be no restriction or limitation on Borrower’s ability to make distributions to its members or its or their Affiliates other than as set forth in Section 5.2.13.

IV. REPRESENTATIONS AND WARRANTIES

4.1 Borrower Representations. Except as Actually Known by the Lender to the Contrary, Borrower represents and warrants as of the Closing Date that:

4.1.1 Organization. Borrower is a limited liability company and has been duly organized and is validly existing and in good standing pursuant to the laws of the State of Delaware with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Master Lessee is a corporation and has been duly organized and is validly existing and in good standing pursuant to the laws of the State of Nevada with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Holdco is a corporation and has been duly organized and is validly existing and in good standing pursuant to the laws of the State of Delaware with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. FP is a limited liability company and has been duly organized and is validly existing and in good standing pursuant to the laws of the State of Nevada with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. VoteCo is a limited liability company and has been duly organized and is validly existing and in good standing pursuant to the laws of the State of Nevada with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Each of Borrower, Guarantors and Master Lessee has duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations, or, in the case of qualifications in the various States (a) an application for such qualification has been duly filed with the applicable Governmental Authority and all fees required in order to obtain such qualification have been paid in full, (b) all conditions to obtaining such qualification have been satisfied under applicable law and the issuance of such qualification is a ministerial act of the applicable Governmental Authority, (c) Borrower has agreed to so qualify in accordance with a post-closing side letter entered into on Closing Date, and (d) no such failure to qualify would be reasonably likely to have a Material Adverse Effect. Each of Borrower, Master Lessee and Guarantor possesses all material rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership of the Property. The organizational structure of Borrower, each Guarantor and Master Lessee is accurately depicted by the schematic diagrams attached hereto as Exhibit K. Borrower shall not change its name, identity, limited liability company form or jurisdiction of organization unless it shall have given Lender thirty (30) days prior written notice of any such change and shall have taken all steps reasonably requested by Lender to grant, perfect, protect and/or preserve the liens and security interest granted to Lender under the Loan Documents.

4.1.2 Proceedings. Each of Borrower, Mezzanine Borrower, Guarantors and Master Lessee has full power to and has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents to which it is a party.

4.1.3 No Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower, Mezzanine Borrower, Guarantors and Master Lessee, as applicable, will not conflict with or result in a material breach of any of the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the property or assets of any such Person pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which any such Person is a party or by which any of such Person’s property or assets is subject (unless consents from all applicable parties thereto have been obtained), except for any conflict that would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority, and any material consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower, Mezzanine Borrower, Guarantors and Master Lessee of this Agreement, except for any violation that would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect, or any other Loan Documents has been obtained and is in full force and effect.

4.1.4 Litigation. Except as set forth on Schedule II attached hereto, there are no arbitration proceedings, governmental investigations, actions, suits or proceedings at law or in equity by or before any Governmental Authority now pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, Mezzanine Borrower, any Guarantor, Master Lessee or any Individual Property (other than claims (A) (i) which are being covered by insurance, (ii) which are being defended by the relevant insurance company and (iii) as to which Borrower has not received a notice from such insurance company that the claim exceeds the total amount of insurance coverage with respect to such claim; (B) which are covered by the self insurance limit permitted pursuant to the Loan Documents and are being diligently defended by Borrower, Guarantors, Master Lessee or their respective Affiliates; or (C) which relate to employment claims for which liability in the event any such matter is adversely determined could not reasonably be expected to exceed $1,000,000 or provided that none of such unscheduled claims could reasonably be expected to individually or in the aggregate to have a Material Adverse Effect if adversely determined). The actions, suits or proceedings identified on Schedule II, if determined against Borrower, Mezzanine Borrower, any Guarantor, Master Lessee or the Property, would not have a Material Adverse Effect.

4.1.5 Agreements. The Operating Agreements constitute all of the agreements to which Borrower or any of its Affiliates are party or are bound which are material to the ownership and operation of any Individual Property. Borrower is not a party to any agreement or instrument or subject to any restriction which is reasonably likely to materially and adversely affect Borrower or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation (contingent or otherwise) under any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations constituting the

Permitted Debt of Borrower which are incurred in the ordinary course of the ownership and operation of the Property and (b) obligations under the Loan Documents.

4.1.6 Title. Borrower has good, marketable and insurable (i) leasehold title to the Land and the Improvements relating to the Ground Lease Properties, and enjoys the quiet and peaceful possession of the Leasehold Estate related thereto, and (ii) fee simple title to the Land and the Improvements relating to all Individual Properties other than the Ground Lease Properties, in each case free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. Borrower has good and marketable title to the remainder of the Property (excluding the Excluded Personal Property), free and clear of all Liens whatsoever except the Permitted Encumbrances. The Security Instruments, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (i) a valid, perfected first mortgage lien on the Land and the Improvements or the leasehold estate therein, as applicable, subject only to Permitted Encumbrances and (ii) perfected security interests in and to, and perfected collateral assignments of, all personalty other than the Excluded Personal Property (including the Subleases) or any leases of equipment from third parties, all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. For avoidance of doubt, those portions of the Excluded Personal Property owned by Master Lessee constituting “FF&E” as defined in the Master Lease, are subject to a Lien in favor of the Borrower, as landlord, under the Master Lease, and such landlord Lien has been assigned to Lender, along with Borrower’s other rights as landlord under the Master Lease, pursuant to the Security Instruments and the Assignment of Leases (such landlord Lien, as assigned to Lender, the “Assigned Landlord Lien”). There are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents other than the Permitted Encumbrances. Borrower represents and warrants that none of the Permitted Encumbrances would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect as of the Closing Date and thereafter. Borrower shall preserve its right, title and interest in and to the Property for so long as the Notes remain outstanding and will warrant and defend same and the validity and priority of the Lien hereof from and against any and all claims whatsoever other than the Permitted Encumbrances.

4.1.7 No Bankruptcy Filing. None of Borrower, Mezzanine Borrower, any Guarantor or Master Lessee is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such entity’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it, Mezzanine Borrower, any Guarantor or Master Lessee.

4.1.8 Full and Accurate Disclosure. To the best of Borrower’s knowledge no statement of material fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make such statements contained herein or therein not materially misleading as of the date made which in any such case could reasonably be expected to have a Material Adverse Effect. There is no fact presently known to Borrower which has not been disclosed which could reasonably be expected to have a Material Adverse Effect.

4.1.9 All Property. The Property constitutes all of the real property, personal property, equipment and fixtures currently (i) owned or leased by Borrower and (ii) used in the operation of the business located on the Property, other than the Excluded Personal Property (but a portion of which Excluded Personal Property is subject to the Assigned Landlord Lien).

4.1.10 No Plan Assets.

(a) Borrower does not maintain an employee benefit plan as defined by Section 3(3) of ERISA, which is subject to Title IV of ERISA, and Borrower (i) has no knowledge of any material liability which has been incurred or is expected to be incurred by Borrower which is or remains unsatisfied for any taxes or penalties with respect to any “employee benefit plan,” within the meaning of Section 3(3) of ERISA, or any “plan,” within the meaning of Section 4975(e)(1) of the Code or any other benefit plan (other than a multiemployer plan) maintained, contributed to, or required to be contributed to by Borrower or by any entity that is under common control with Borrower within the meaning of ERISA Section 4001(a)(14) (a “Plan”) or any plan that would be a Plan but for the fact that it is a multiemployer plan within the meaning of ERISA Section 3(37); and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code, and any other applicable federal or state law other than such actions or failures to act that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; and no action shall be taken or fail to be taken that would result in the disqualification or loss of tax-exempt status of any such Plan intended to be qualified and/or tax exempt other than such actions or failures to act that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; and

(b) Borrower is not an employee benefit plan, as defined in Section 3(3) of ERISA, subject to Title I of ERISA, none of the assets of Borrower constitutes or will constitute plan assets of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101 and Borrower is not a governmental plan within the meaning of Section 3(32) of ERISA and Borrower is not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

4.1.11 Compliance. Subject to Schedule 4.1.11, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes (except for any non-compliance that individually or in the aggregate would not reasonably be expected to result in a Material Adverse Effect). To the best of Borrower’s knowledge, Borrower is not in default or in violation of any order, writ, injunction, decree or demand of any Governmental Authority. To the best of Borrower’s knowledge, there has not been committed by Borrower any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.12 Financial Information. The information set forth in the certificate of Borrower regarding financial information dated as of the Closing Date (i) is true, complete and correct in all material respects and (ii) fairly represents the financial condition of the Master Lessee and the Property as of the Closing Date. Borrower does not have any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and could reasonably be expected to have a Material Adverse Effect.

4.1.13 Condemnation. Except as set forth on Schedule II, no Taking is pending or, to the best of Borrower’s knowledge, is contemplated with respect to all or any portion of the Property. No Taking is pending or, to the best of Borrower’s knowledge, is contemplated for the relocation of roadways providing access to the Property. None of the Taking matters listed on Schedule II is reasonably likely to result in (a) a material reduction in the vehicular or pedestrian access to any Individual Property, (b) a material reduction in the parking rights located on or appurtenant to any Individual Property or (c) a Material Adverse Effect.

4.1.14 Federal Reserve Regulations. None of the proceeds of the Loan will be used for the purpose of purchasing or carrying any “margin stock”“ as defined in Regulation U, Regulation X or Regulation T or for the purpose of reducing or retiring any Indebtedness which was originally incurred to purchase or carry “margin” stock or for any other purpose which might constitute this transaction a “purpose credit” within the meaning of Regulation U or Regulation X, which in any such case would cause the Loan, the Borrower or the Lender to be in violation of Regulation U. As of the Closing Date, Borrower does not own any “margin stock.”

4.1.15 Utilities and Public Access. Each Individual Property has rights of access to one or more public ways, either directly or through a recorded easement set forth in and insured under the Title Policies. Each Individual Property is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its intended uses (except to the extent any such failure individually or in the aggregate would not reasonably be expected to result in a Material Adverse Effect). All utilities necessary to the existing use of the Property are located either in the public right-of-way abutting the Property or in recorded easements serving the Property and such easements are set forth in and insured by the Title Policies.

4.1.16 Not a Foreign Person. Borrower is not a foreign person within the meaning of § 1445(f)(3) of the Code.

4.1.17 [Reserved].

4.1.18 [Reserved].

4.1.19 [Reserved].

4.1.20 Enforceability. The Loan Documents to which each of Borrower, Mezzanine Borrower, Guarantors and Master Lessee is a party have been duly executed and delivered by, or on behalf of, Borrower, Mezzanine Borrower, Guarantors and Master Lessee, as applicable, and constitute legal, valid and binding obligations of such Persons, as applicable, enforceable against such Persons, as applicable, in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to

enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.21 [Reserved.]

4.1.22 Insurance. Borrower has obtained and has delivered to Lender certified copies or originals of all insurance policies required under this Agreement, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. Borrower has not, and to the best of Borrower’s knowledge no Person has, done by act or omission anything which would impair the coverage of any such policy.

4.1.23 Use of Property. Each Individual Property is used exclusively for casino and hotel operations and other appurtenant and related uses.

4.1.24 Certificate of Occupancy; Licenses. All material certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required of Borrower for the legal use, occupancy and operation of each Individual Property for its current use as a hotel and casino (collectively, the “Licenses”), have been obtained and are in full force and effect (except to the extent any such failure would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect). Borrower shall keep and maintain all Licenses necessary for the operation of each Individual Property in accordance with its current use as a hotel and casino. The use being made of each Individual Property is in conformity with the certificate of occupancy issued for such Individual Property (except to the extent any such failure would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect).

4.1.25 Flood Zone. None of the Improvements on the Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards except as identified on the flood certifications delivered to Lender prior to the Closing Date, and Borrower has obtained the insurance required under Article VI with respect to any Improvements located in any such special flood hazards.

4.1.26 Physical Condition. To the best of Borrower’s knowledge, the Property, including, without limitation, all buildings, Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; to the best of Borrower’s knowledge, there exists no structural or other material defects or damages in or to the Property, whether latent or otherwise, and Borrower has not received any written notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.27 Boundaries. Except as set forth in and insured pursuant to the Title Policies, to the best of Borrower’s knowledge and, where applicable, in reliance on the Surveys (a) all of the Improvements lie wholly within the boundaries and building restriction lines of the Real

Property relating to the applicable Individual Property, (b) no improvements on adjoining properties encroach upon the Real Property, and (c) no easements or other encumbrances upon the Real Property encroach upon any of the Improvements, so as to have a Material Adverse Effect.

4.1.28 Subleases. The Property is not subject to any leases other than the Master Lease, the Individual Property Subleases, and the other Subleases set forth on Schedule I attached hereto. No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Master Lease, the Individual Property Subleases and the other Subleases. The current Material Subleases are in full force and effect and to the best of Borrower’s knowledge, there are no material defaults thereunder by either party (other than as expressly disclosed on Schedule I). No Rent under any Material Sublease has been paid more than one (1) month in advance of its due date, except as disclosed on Schedule I. There has been no prior sale, transfer or assignment, hypothecation or pledge by Borrower or Master Lessee of the Master Lease, the Individual Property Subleases or any Sublease or of the Rents received therein, which will be outstanding following the funding of the Loan, other than those assigned to Lender on the Closing Date.

4.1.29 Filing and Recording Taxes. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Property to Borrower and the granting and recording of the Security Instruments and the UCC financing statements required to be filed in connection with the Loan have been paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Security Instruments, have been paid, and, under current Legal Requirements, the Security Instruments are enforceable against Borrower in accordance with its terms by Lender (or any subsequent holder thereof) subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law.

4.1.30 Single Purpose Entity/Separateness.

(a) Until the Indebtedness has been paid in full, Borrower hereby represents, warrants and covenants that Borrower, and each of the Mezzanine Borrowers is, shall be, and shall continue to be, a Single Purpose Entity.

the assumptions made with respect to it in any Additional Non-Consolidation Opinion. Each entity other than Borrower with respect to which an assumption shall be made in any Additional Non-Consolidation Opinion will have complied and will comply in all material respects with all of the assumptions made with respect to it in any Additional Non-Consolidation Opinion.

(c) All of the assumptions made in the True Lease Opinion, including, but not limited to, any exhibits attached thereto, are true and correct in all material respects.

(d) All of the assumptions made in the True Sale Opinion, including, but not limited to, any exhibits attached thereto, are true and correct in all material respects.

4.1.31 [Reserved.]

4.1.32 Illegal Activity. No portion of the Property has been or will be purchased with proceeds of any illegal activity.

4.1.33 No Change in Facts or Circumstances; Disclosure. All material information submitted by Borrower to Lender in writing in connection with the Loan or in satisfaction of the terms hereof and all material statements of fact made by any Borrower in this Agreement or in any other Loan Document, are to the best of Borrower’s knowledge, accurate and correct in all material respects except as would not have a Material Adverse Effect.

4.1.34 [Reserved.]

4.1.35 Tax Filings. Borrower has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Borrower.

4.1.36 Solvency/Fraudulent Conveyance. Borrower has not entered into the transaction contemplated by this Agreement or any Loan Document with the actual intent to hinder, delay or defraud any creditor. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur Debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such Debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower).

4.1.37 Investment Company Act. Borrower is not (a) an investment company or a company Controlled by an investment company, within the meaning of the Investment Company Act of 1940, as amended, or (b) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.38 Interest Rate Protection Agreement. A complete and correct copy of the Interest Rate Protection Agreement is attached hereto as Exhibit L. The Interest Rate Protection Agreement is in full force and effect and enforceable against Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws generally affecting the

enforcement of creditors’ rights and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.39 Labor. Except as set forth on Schedule II, no organized work stoppage or labor strike is pending or threatened by employees and other laborers at the Property. Except as set forth in Schedule II or to the extent any such failure would not reasonably be expected to result in a Material Adverse Effect, none of Borrower or Master Lessee, (i) is involved in or, to the best knowledge of Borrower, threatened with any labor dispute, grievance or litigation relating to labor matters involving any employees and other laborers at the Property, including, without limitation, violation of any federal, state or local labor, safety or employment laws (domestic or foreign) and/or charges of unfair labor practices or discrimination complaints, (ii) to the best knowledge of Borrower, has engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway Labor Act or (iii) is a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and other laborers at the Property and no such agreement or contract is currently being negotiated by the Borrower or Master Lessee.

4.1.40 Brokers. Neither Borrower nor Lender has dealt with any broker or finder with respect to the transactions contemplated by the Loan Documents, and neither party has done any acts, had any negotiations or conversations, or made any agreements or promises which will in any way create or give rise to any obligation or liability for the payment by either party of any brokerage fee, charge, commission or other compensation to any Person with respect to the transactions contemplated by the Loan Documents. Borrower and Lender shall each indemnify and hold harmless the other from and against any loss, liability, cost or expense, including any judgments, attorneys’ fees, or costs of appeal, incurred by the other party and arising out of or relating to any breach or default by the indemnifying party of its representations, warranties and/or agreements set forth in this Section 4.1.40. The provisions of this Section 4.1.40 shall survive the expiration and termination of this Agreement and the payment of the Indebtedness.

4.1.41 No Other Debt. Borrower has not borrowed or received debt financing that has not been heretofore repaid in full, other than the Permitted Debt of Borrower.

4.1.42 Taxpayer Identification Number. Borrower’s Federal taxpayer identification number is 26-1259366.

4.1.43 Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering Laws. (i) None of Borrower, any Guarantor or any Person who Controls Borrower or any Guarantor currently is identified on the OFAC List or otherwise qualifies as a Prohibited Person, and (ii) none of Borrower or any Guarantor is in violation of any Legal Requirements relating to anti-money laundering or anti-terrorism, including, without limitation, Legal Requirements related to transacting business with Prohibited Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations, all as amended from time to time. To the best of Borrower’s knowledge, no Tenant at the Premises currently is identified on the OFAC List or otherwise qualifies as a Prohibited Person, and no Tenant at the Premises is owned or Controlled by a Prohibited Person.

4.1.44 Merger Agreement. Borrower has delivered to Lender true complete and correct copies of the Merger Agreement and all deliveries made by any party thereto or any of their respective Affiliates as Lender shall have requested, to the extent that such deliveries are within the possession or control of Borrower or any of the Guarantors.

4.1.45 Rights of First Refusal or First Offer to Lease or Purchase. No Person, whether pursuant to an Operating Agreement or otherwise has a right of first refusal, right of first offer or other right or option pursuant to such Operating Agreement or otherwise to lease or purchase or to restrict or impose requirements upon the lease or purchase of all or any part of any Individual Property, except as set forth on Schedule VI. None of the matters set forth on Schedule VI has been or will be triggered by any of the Contemplated Transactions and Borrower and its Affiliates are not in default of any of the provisions referenced in Schedule VI. None of the matters set forth on Schedule VI has or will have a Material Adverse Effect.

4.1.46 Reserved.

4.2 Survival of Representations. Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall be deemed given and made as of the Closing Date and survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower or Guarantor unless a longer survival period is expressly stated in a Loan Document with respect to a specific representation or warranty, in which case, for such longer period. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

4.3 Borrower’s Knowledge. Whenever a representation or warranty is made “to Borrower’s knowledge,” “to Borrower’s best knowledge,” “to Master Lessee’s knowledge,” “to Master Lessee’s best knowledge,” or a term of similar import, such term shall mean the current actual knowledge of each of Thomas Friel and Matthew Heinhold, in each case after reasonable diligence, and of Borrower’s or Master Lessee’s, as applicable, respective executive officers (other than Thomas Friel) and directors who have actual knowledge of the relevant subject matter.

V. BORROWER COVENANTS

5.1 Affirmative Covenants. From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1 Performance by Borrower. Borrower shall in a timely manner observe, perform and fulfill in all material respects each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower, as applicable, without the prior written consent of Lender.

5.1.2 Existence; Compliance with Legal Requirements; Insurance. Subject to Borrower’s right of contest pursuant to Section 7.3 and Schedule 4.1.11, Borrower shall at all times comply and cause the Property to be in compliance in all material respects with all Legal Requirements applicable to the Borrower, any SPE Entity and the Property and the uses permitted upon the Property. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises necessary to comply with all material Legal Requirements applicable to it and the Property. There shall never be committed by Borrower, and Borrower shall not knowingly permit any other Person in occupancy of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, knowingly permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all franchises and trade names where the failure to so preserve and protect would be reasonably likely to have a Material Adverse Effect, and preserve all the remainder of its property used in and necessary for the conduct of its business and shall keep the Property in good working order and repair (reasonable wear and tear excepted, and subject to Excusable Delays, casualty and Taking, as to the latter two of which Section 6.2 shall apply), and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully set forth in the Security Instruments. Borrower shall keep the Property insured at all times to such extent and against such risks, and maintain liability and such other insurance, as is more fully set forth in this Agreement.

5.1.3 Litigation. Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which, if determined adversely to Borrower would reasonably be expected to have a Material Adverse Effect.

5.1.4 Single Purpose Entity.

(a) Borrower has been since the date of its formation and shall remain a Single Purpose Entity.

(b) Borrower shall continue to maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. None of the funds of Borrower will be diverted to any other Person for anything other than business uses of Borrower, nor will such funds be commingled with the funds of any other Affiliate.

(c) To the extent that Borrower shares the same officers or other employees as any of its Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.

(d) To the extent that Borrower jointly contracts with any of its Affiliates, to do business with vendors or service providers or to share overhead expenses, the costs incurred in so

doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions between (or among) Borrower and any of its Affiliates shall be conducted on substantially the same terms (or on more favorable terms for Borrower) as would be conducted with third parties.

(e) To the extent that Borrower, or any of its Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses.

(f) Borrower shall conduct its affairs strictly in accordance with its organizational documents, and observe all necessary, appropriate and customary corporate, limited liability company or partnership formalities, as applicable, including, but not limited to, obtaining any and all members’ consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, without limitation, payroll and intercompany transaction accounts.

(g) In addition, Borrower shall: (i) maintain books and records separate from those of any other Person; (ii) maintain its assets in such a manner that it is not more costly or difficult to segregate, identify or ascertain such assets; (iii) hold regular meetings of its board of directors, shareholders, partners or members, as the case may be; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity; (v) prepare separate tax returns (unless part of a consolidated group) and financial statements (unless part of a consolidated group), or if part of consolidated group it will be shown as a separate member of such group or such consolidated tax returns or financial statements will contain a note indicating that it and its Affiliate are separate legal entities and maintain records, books of account and accounts separate and apart from any other Person; (vi) transact all business with its Affiliates on an arm’s-length basis and pursuant to enforceable agreements; (vii) conduct business in its name and use separate stationery, invoices and checks; (viii) not commingle its assets or funds with those of any other Person; and (ix) not assume, guarantee or pay the debts or obligations of any other Person.

5.1.5 Consents. If Borrower is a corporation, the board of directors of such Person may not take any action requiring the unanimous affirmative vote of 100% of the members of the board of directors unless all of the directors, including the Independent Directors, shall have participated in such vote. If Borrower is a limited liability company, (a) if such Person is managed by a board of managers or directors, the board of managers or directors of such Person may not take any action requiring the unanimous affirmative vote of 100% of the members of the board of managers or directors unless all of the managers or directors, including the Independent Managers or Independent Directors, shall have participated in such vote, (b) if such Person is not managed by a board of managers or directors, the members of such Person may not take any action requiring the affirmative vote of 100% of the members of such Person unless all of the members, including the Independent Members, shall have participated in such vote. An affirmative vote of 100% of the directors, managers or members, as applicable, of Borrower shall

be required to (i) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings or to authorize Borrower to do so or (ii) file an involuntary bankruptcy petition against any Affiliate, Manager, or any Affiliate of Manager. Furthermore, Borrower’s formation documents shall expressly state that for so long as the Loan is outstanding, Borrower shall not be permitted to (i) dissolve, liquidate, consolidate, merge or sell all or substantially all of Borrower’s assets other than in connection with the repayment of the Loan or (ii) engage in any other business activity and such restrictions shall not be modified or violated for so long as the Loan is outstanding.

5.1.6 Access to Property. Subject to applicable Gaming Laws, Borrower shall permit agents, representatives and employees of Lender and the Rating Agencies to inspect the Property or any part thereof during normal business hours on Business Days upon reasonable advance notice.

5.1.7 Notice of Default. Borrower shall promptly advise Lender (a) of any event or condition of which Borrower has knowledge that has a Material Adverse Effect and (b) of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.8 Cooperate in Legal Proceedings. Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which would reasonably be expected to affect in any material adverse way the rights of Lender hereunder or under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings which may have a Material Adverse Effect.

5.1.9 [Reserved.]

5.1.10 Insurance.

(a) Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any reasonable out-of-pocket expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements) out of such Proceeds.

(b) Borrower shall comply with all Insurance Requirements and shall not bring or keep or permit to be brought or kept any article upon any of the Property or cause or permit any condition to exist thereon which would be prohibited by any Insurance Requirement, or would invalidate insurance coverage required hereunder to be maintained by Borrower on or with respect to any part of the Property pursuant to Section 6.1.

5.1.11 Further Assurances; Separate Notes; Loan Resizing.

(a) Borrower shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably required by Lender from time to time to confirm the rights created or now or hereafter intended to be created under this Agreement and the other Loan Documents and any security interest created or purported to be created thereunder, to protect and further the validity, priority and enforceability of this Agreement and the other Loan Documents, to subject to the Loan Documents any

property of Borrower intended by the terms of any one or more of the Loan Documents to be encumbered by the Loan Documents, or otherwise carry out the purposes of the Loan Documents and the transactions contemplated thereunder. Borrower agrees that it shall, upon request and at Lender’s cost (including, without limitation, any costs related to the modification or replacement of the Interest Rate Protection Agreement (but not including any breakage costs associated with or arising under the Interest Rate Protection Agreement), reasonably cooperate with Lender in connection with any request by Lender to sever one or more of the Notes into two (2) or more separate substitute notes in an aggregate principal amount equal to the Principal Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the applicable Note or Notes, amendments to or replacements of existing Loan Documents to reflect such severance and/or Opinions of Counsel with respect to such substitute notes, amendments and/or replacements, provided that Borrower shall bear no costs or expenses in connection therewith (other than internal administrative costs and expenses of Borrower). Any such substitute notes may have varying principal amounts and economic terms, provided, however, that (i) the maturity date of any such substitute note shall be the same as the scheduled Maturity Date of the Notes immediately prior to the issuance of such substitute notes, (ii) the initial weighted average LIBOR Margin for the term of the substitute notes shall not exceed the LIBOR Margin under the Note being substituted immediately prior to the issuance of such substitute notes; and (iii) the economics of the Loan shall not change in a manner which is adverse to Borrower. Upon the occurrence and during the continuance of an Event of Default, Lender may apply payment of all sums due under such substitute notes (and in respect of any other Indebtedness and Obligations) in such order and priority as Lender shall elect in its sole and absolute discretion.

(b) Borrower further agrees that if Lender determines, in its sole discretion, to increase the principal amount of the Loan and correspondingly decrease the principal amount of the Mezzanine Loan, or to decrease the principal amount of the Loan and correspondingly increase the principal amount of the Mezzanine Loan, or to reallocate the aggregate principal amount of the Mezzanine Loan among the Mezzanine Notes or among the Mezzanine Notes plus additional tiers of mezzanine notes, then in any such event, the Borrower shall cooperate with Lender’s “resizing” of the Mezzanine Loan and the Loan, and such cooperation shall include any one or more of the following (either individually or in combination): (A) if on the date of the “resizing” of the Loan, a Mezzanine Lender lends to the applicable Mezzanine Borrower (by way of a reallocation of the principal amounts of the Loan and the Mezzanine Loan) such additional amount equal to the amount of the principal reduction of the Loan, Borrower and each Mezzanine Borrower shall execute and deliver any and all amendments or modifications to the Loan Documents and the Mezzanine Loan Documents reasonably required by Lender or Mezzanine Lender to implement such resizing; (B) if on the date of the “resizing” of the Loan, Lender lends to the Borrower (by way of a reallocation of the principal amount of the Loan and the Mezzanine Loan) an additional amount equal to the amount of principal reduction of the applicable Mezzanine Loan, Borrower and each Mezzanine Borrower shall execute and deliver any and all modifications to the Loan Documents and Mezzanine Loan

Documents reasonably required by Lender or Mezzanine Lender to implement such resizing; and/or (C) in the event of any reallocation of the principal amount of the Mezzanine Loan among the various Mezzanine Notes, or among the various Mezzanine Notes plus newly created additional tiers of mezzanine notes, Borrower and Mezzanine Borrower shall execute and deliver any and all necessary amendments, modifications and/or supplements to the Loan Documents and Mezzanine Loan Documents reasonably required by Lender or Mezzanine Lender to effect such reallocation. In connection with the foregoing, Borrower and Lender agree that the execution of such documents and other agreements reasonably required by Mezzanine Lender and/or Lender to “re-size” or reallocate the Loan and the Mezzanine Loan shall be at Lender’s sole cost and expense. If the principal amount of the Loan is increased, a fully paid endorsement to the Title Policies reflecting an increase in the insured amount thereunder shall be obtained by Borrower at Lender’s sole cost and expense and Borrower shall pay any related mortgage taxes or mortgage recording taxes. Notwithstanding the foregoing, Lender agrees that (a) any “resizing” of the Loan and the Mezzanine Loan (and any reallocation of the Mezzanine Loan) shall not change the economics of the Loan and the Mezzanine Loan taken as a whole in a manner which is adverse to Borrower and (b) no amendment of any of the Loan Documents in connection with such “resizing” or reallocation shall (taken as a whole with the Mezzanine Loan Documents) increase in any respect the obligations or liabilities of, or decrease the rights of, Borrower, in each case other than to a de minimis extent.

(c) Any amounts recovered from the Property or any other collateral delivered or pledged to Lender in connection with the Loan, or any part thereof, after an Event of Default may be applied by Lender toward the payment of any interest and/or principal of the Loan and/or any other amounts due under the Loan Documents or the Interest Rate Swap Agreement in such order, priority, or proportions as Lender in its sole discretion shall determine.

5.1.12 Mortgage Taxes. Borrower shall pay all taxes, charges, filing, registration and recording fees, excises and levies payable with respect to the Notes or the Liens created or secured by the Loan Documents, other than income, franchise and doing business taxes imposed on Lender.

5.1.13 Operation.

Borrower shall, and shall cause Master Lessee to, (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Master Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any Master Lease Default of which it is aware; and (iii) promptly deliver to Lender a copy of each financial statement, capital expenditures plan, property improvement plan and any other notice, report and estimate received by it under the Master Lease; and Borrower shall enforce in a commercially reasonable manner the performance and observance of all of the covenants and agreements required to be performed and/or observed by the Master Lessee under the Master Lease. Whenever in this Agreement or in any other Loan Document Borrower is obligated to cause the Master Lessee to take or refrain from taking a certain action, and whenever this Agreement or any Loan Document shall set forth an obligation of Master Lessee, then such provisions shall be construed to mean that Borrower shall exercise its best efforts to cause Master Lessee to take or refrain from taking such action, or performing such action, including exercising such legal rights and remedies as shall be available to Borrower under the Master Lease and applicable law.

5.1.14 Business and Operations. Borrower shall continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property. Borrower shall qualify to do business

and shall remain in good standing under the laws of the State in which the Property is located as and to the extent required for the ownership, maintenance, management and operation of the Property.

5.1.15 Title to the Property.

(a) Borrower shall warrant and defend (a) its title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Security Instruments, the Assignment of Leases and this Agreement on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever. Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than Permitted Encumbrances, is claimed by another Person.

(b) Borrower agrees to comply with the provisions contained in Section 3(e) of the Security Instruments regarding the spreading of the Lien of Security Instruments to cover additional property intended to be secured thereby.

5.1.16 Costs of Enforcement. In the event (a) that this Agreement or any Security Instrument is foreclosed upon in whole or in part or that by reason of Borrower’s default hereunder this Agreement or any Security Instrument is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any security agreement prior to or subsequent to this Agreement in which proceeding Lender is made a party, or a mortgage prior to or subsequent to any Security Instrument in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all reasonable out-of-pocket costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.17 Estoppel Statements. Borrower shall, from time to time but no more often than once in any calendar quarter so long as no Event of Default shall exist, upon thirty (30) days’ prior written request from Lender, execute, acknowledge and deliver to the Lender, an Officer’s Certificate, stating that this Agreement and the other Loan Documents are unmodified and in full force and effect (or, if there have been modifications, that this Agreement and the other Loan Documents are in full force and effect as modified and setting forth such modifications), stating the amount of accrued and unpaid interest and the outstanding principal amount of the Notes and containing such other information with respect to the Borrower, the Property and the Loan as Lender shall reasonably request. Lender shall, from time to time, but no more often than once in any calendar quarter, upon thirty (30) days’ prior written request from Borrower, execute, acknowledge and deliver to Borrower, a certificate signed by an officer of Lender, stating that this Agreement and the other Loan Documents are unmodified and in full force and effect (or, if there have been modifications, that this Agreement and the other Loan Documents are in full force and effect as modified and setting forth such modifications). The estoppel certificate from

Borrower shall also state either that, to the best of Borrower’s knowledge, no Default exists hereunder or, if any Default shall exist hereunder, specify such Default and the steps being taken to cure such Default and the estoppel certificate from Lender shall state whether Lender has delivered notice of a Default or an Event of Default.

5.1.18 Loan Proceeds. Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.19 No Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of the Property, (a) with any other real property constituting a tax lot separate from the Property and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20 No Further Encumbrances. Subject to Section 7.3, Borrower shall do, or cause to be done, all things necessary to keep and protect the Property and all portions thereof unencumbered from any Liens, easements or agreements granting rights in or restricting the use or development of the Property, except for Permitted Encumbrances.

5.1.21 [Reserved.]

5.1.22 Master Lease.

(a) Each Individual Property shall at all times be leased directly and exclusively by the Borrower to the Master Lessee under the Master Lease (and not to any other Person under the Master Lease or any replacement Master Lease). Master Lessee shall be permitted to enter into Subleases subject to and in accordance with Section 8.8.2.

(b) The Master Lease shall have an initial term of fifteen (15) years with renewal rights.

(c) The Master Lease shall require Master Lessee to make payments of Master Lease Rent. Pursuant to the Master Lease and the Master Lease Rent Payment Direction Letter all Master Lease Scheduled Rent shall at all times during the term of the Loan be made directly to the Holding Account, and none of the foregoing payments of Master Lease Rent shall be deemed made until such payment has been deposited into the Holding Account.

(d) The Master Lease shall require the Master Lessee to prepare the expenses and revenue in accordance with Article XI and to submit copies to Lender for its reference, not for its approval.

(e) Neither Borrower nor Master Lessee shall terminate the Master Lease or consent to the termination of the Master Lease without the prior written consent of Lender. Except as provided in the Master Lease with respect to casualties or condemnations, the Master Lease shall not provide for the release of an Individual Property. The Master Lease may be amended to provide, inter alia, for a release of an Individual Property and the reduction of Master Lease Rent as provided in Section 2.3.4(v) and (vi).

(f) Except for the Assignment of Leases and the Permitted Encumbrances, neither the Borrower nor the Master Lessee shall Transfer or sublease, or allow to be Transferred, its interest in the Master Lease or any interest therein without the prior written consent of the Lender. The Borrower shall not permit (except as expressly permitted under the Master Lease) and shall not consent to (except as expressly required under the Master Lease) any assignment by the Master Lessee of its interest in the Master Lease or its rights and interests thereunder except to Master Lessee’s successor by merger or acquisition of all or substantially all of Master Lessee’s assets. Notwithstanding the foregoing, Master Lessee shall pledge to Borrower its interest in the “FF&E” as defined in the Master Lease, subject to the Assigned Landlord Lien.

(g) Neither the Borrower nor the Master Lessee shall, without the prior written consent of Lender which consent, solely with respect to clauses (ii) and (iii) of this Section 5.1.22(g), will not be unreasonably withheld, (i) renew (other than pursuant to renewal rights expressly set forth in the Master Lease), extend, release any Individual Property from (except in connection with a Property Release, Substitution or release of an Unimproved Parcel, in compliance with Sections 2.3.4, 2.3.5 and 2.3.9 hereof) terminate, reduce rents (except as expressly authorized pursuant to Section 2.3.4) or other sums payable under, accept a surrender of, or shorten the term of, the Master Lease, (ii) appoint any appraiser, (iii) make any determination of Fair Market Rental (as such term is defined in the Master Lease), (iv) waive any provisions of the Master Lease, provided that subject to clause (i), Borrower and Master Lessee shall have the right to waive provisions of the Master Lease so long as the same would not have the effect of (1) waiving or reducing the monetary obligations of Master Lessee under the Master Lease or (2) either permitting Master Lessee to take an action that Borrower or Master Lessee is prohibited from taking under this Agreement or any other Loan Document, or preventing Borrower and/or Master Lessee from complying with an obligation on the part of Borrower or Master Lessee under this Agreement or any other Loan Document, (v) amend or modify in any respect in a manner adverse to Lender or that would decrease Master Lessee’s obligations or increase Borrower’s obligations thereunder, any provision of the Master Lease contained in Article I (leased property, term, etc.), Article III (rent), Article IV (termination and abatement), Article V (Ownership of Leased Property), Section 6.1(b) (Taxes and Other Charges; Contest for Taxes and Other Charges, Legal Requirements and Liens), Article VIII (Alterations; Leasing), Article X (Casualty and Condemnation), Article XI (Accounts and Reserves), Article XII (defaults and remedies), Article XV (Subordination) and related definitions in Article II (definitions) or (vi) materially amend or modify any provision of the Master Lease not listed in clause (v) in a manner adverse to Lender or that would decrease Master Lessee’s obligations or increase Borrower’s obligations thereunder, provided that nothing in this Section 5.1.22(g) shall prohibit or restrict Master Lessee from exercising its rights under Section 1.2 of the Master Lease subject to the requirements of Sections 2.3.4 and 2.3.9 hereof.

(h) The Master Lease shall be subject and subordinate to the Loan pursuant to the Master Lease SNDA.

(i) Lender shall have the right to declare a Master Lease Tenant Default under the Master Lease and to exercise the rights and remedies of the Borrower, as landlord under the Master Lease (including without limitation, exercising it rights and remedies with respect to the Assigned Landlord Lien), pursuant to the assignment of such rights in the Assignment of Leases.

(j) The form of the Master Lease is attached hereto as Exhibit F. Lender hereby approves of the form of the Master Lease. Notwithstanding the foregoing, or anything else in Loan Documents to the contrary, except as expressly set forth in this Agreement if any conflict, contradiction or inconsistency exists between the Master Lease and this Agreement, the terms and provisions of this Agreement shall, as among the parties hereto, control and govern.

5.2 Negative Covenants.

From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of this Agreement or the Security Instruments in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1 Incur Debt. Incur, create or assume any Debt other than Permitted Debt of Borrower or Transfer or lease all or any part of the Property or any interest therein, except as permitted in the Loan Documents (for the avoidance of doubt, Borrower shall not have any obligations under or with respect to the Mezzanine Loan);

5.2.2 Encumbrances. Other than in connection with the Mezzanine Loan, incur, create or assume or permit the incurrence, creation or assumption of any Debt secured by an interest in Borrower or any other SPE Entity;

5.2.3 Engage in Different Business. Engage, directly or indirectly, in any business other than that of entering into this Agreement and the other Loan Documents to which Borrower is a party and the use, ownership, management, leasing, renovation, financing, development, operation and maintenance of the Property and activities related thereto;

5.2.4 Make Advances. Make advances or make loans to any Person, or hold any investments, except as expressly permitted pursuant to the terms of this Agreement or any other Loan Document;

5.2.5 Subdivision. Subdivide any Individual Property other than with respect to Unimproved Parcels in accordance with the terms of this Agreement or otherwise with the prior consent of Lender which consent shall not be unreasonably withheld, conditioned or delayed.

5.2.6 Commingle. Commingle its assets with the assets of any of its Affiliates;

5.2.7 Guarantee Obligations. Guarantee any obligations of any Person;

5.2.8 Transfer Assets. Transfer any asset other than in the ordinary course of business or Transfer any interest in the Property except in each case (including in connection with a Release or Substitution) as may be permitted hereby or in the other Loan Documents;

5.2.9 Amend Organizational Documents. Amend or modify any of its organizational documents without Lender’s consent, other than in connection with any Transfer permitted

pursuant to Article VIII or to reflect any change in capital accounts, contributions, distributions, allocations or other provisions that do not and could not reasonably be expected to have a Material Adverse Effect and provided that Borrower remains a Single Purpose Entity;

5.2.10 Dissolve. Dissolve, wind-up, terminate, liquidate, merge with or consolidate into another Person, except as expressly permitted pursuant to this Agreement;

5.2.11 Bankruptcy. (i) File a bankruptcy or insolvency petition or otherwise institute insolvency proceedings, (ii) dissolve, liquidate, consolidate, merge or sell all or substantially all of Borrower’s assets other than in connection with the repayment of the Loan, or (iii) file or solicit the filing of an involuntary bankruptcy petition against Borrower, Mezzanine Borrower, a Master Lessee Party or any Guarantor, without obtaining the prior consent of all of the directors, members or managers, as applicable, of such Person;

5.2.12 ERISA. Engage in any activity that would subject Borrower to material liability under ERISA or qualify it as an “employee benefit plan” (within the meaning of Section 3(3) of ERISA) to which ERISA applies and Borrower’s assets do not and will not constitute plan assets within the meaning of 29 C.F.R. Section 2510.3-101;

5.2.13 Distributions. From and after the occurrence and during the continuance of an Event of Default or an event of default (a “Mezzanine Event of Default”) under any Mezzanine Loan Agreement, make any distributions to or for the benefit of any of its partners or members or its or their Affiliates; provided that so long as an Event of Default shall not have occurred and be outstanding, distributions from Borrower solely for the purpose of enabling a Mezzanine Borrower to cure a Mezzanine Event of Default, and which distributions are in fact sufficient to completely cure such Mezzanine Event of Default and are used for their intended purpose, shall be permitted.

5.2.14 [Reserved;]

5.2.15 [Reserved;]

5.2.16 [Reserved;]

5.2.17 Modify Account Agreement. Without the prior consent of Lender, which shall not be unreasonably withheld, delayed or conditioned, execute any modification to the Account Agreement;

5.2.18 Zoning Reclassification. Without the prior written consent of Lender (which in the case of clause (a) shall not be unreasonably withheld), (a) initiate or consent to any zoning reclassification of any portion of the Property, (b) seek any variance under any existing zoning ordinance that could result in the use of the Property becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, or (c) allow any portion of the Property to be used in any manner that could result in the use of the Property becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation;

5.2.19 Change of Principal Place of Business. Change its principal place of business and chief executive office set forth on the first page of this Agreement without first giving Lender thirty (30) days’ prior written notice (but in any event, within the period required pursuant to the UCC) and there shall have been taken such action, reasonably satisfactory to Lender, as may be necessary to maintain fully the effect, perfection and priority of the security interest of Lender hereunder in the Account Collateral and the Rate Protection Collateral at all times;

5.2.20 Debt Cancellation. Cancel or otherwise forgive or release any material claim or debt owed to it by any Person, except for adequate consideration or in the ordinary course of its business and except for termination of a Sublease as permitted by Section 8.8;

5.2.21 Misapplication of Funds. Distribute any revenue from the Property or any Proceeds in violation of the provisions of this Agreement, fail to remit amounts to the Holding Account, as applicable, as required by Section 3.1, misappropriate any security deposit or portion thereof or apply the proceeds of the Loan in violation of Section 2.1.4; or

5.2.22 Single-Purpose Entity. Fail to be a Single Purpose Entity or take or suffer any action or inaction the result of which would be to cause it to cease to be a Single Purpose Entity.

VI. INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

6.1 Insurance Coverage Requirements. Borrower shall, at its sole cost and expense, keep in full force and effect, or cause the Master Lessee or, to the extent within Borrower’s control, the applicable party to the Operating Agreements to keep in full force and effect, insurance coverage of the types and minimum limits as follows during the term of this Agreement (it being understood that to the extent that Master Lessee or any party to any Operating Agreement maintains any such coverage on the Closing Date, but thereafter fails to maintain such coverage, Borrower shall obtain such coverage at its sole cost and expense):

6.1.1 Property Insurance. Insurance against loss customarily included under so called “All Risk” policies including flood (subject to a $50 million sublimit), earthquake (subject to a $50 million sublimit), windstorm, vandalism, and malicious mischief, boiler and machinery, and such other insurable hazards as, under good insurance practices, from time to time are insured against for other property and buildings similar to the Improvements and Building Equipment in nature, use, location, height, and type of construction. Such insurance policy shall also insure the additional expense of demolition and if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, provide coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. The amount of such “All Risk” insurance shall be not less than one hundred percent (100%) of the replacement cost value of the Improvements and the Building Equipment. Each such insurance policy shall contain an agreed amount (coinsurance waiver) and replacement cost value endorsement and shall cover, without limitation, all tenant improvements and betterments which Borrower is required to insure in accordance with any Sublease. If the insurance required under this paragraph is not obtained by blanket insurance policies, the insurance policy shall be endorsed to also provide guaranteed building replacement cost. Lender shall be named “Loss

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Payee” on a “Standard Mortgagee Endorsement” and be provided not less than thirty (30) days advance notice of cancellation or non-renewal.

6.1.2 Liability Insurance. “General Public Liability” insurance, including, without limitation, “Commercial General Liability” insurance; “Owned” (if any), “Hired” and “Non Owned Auto Liability”; and “Umbrella Liability” coverage for “Personal Injury,” “Bodily Injury,” “Death, Accident and Property Damage,” providing in combination no less than $100 million per occurrence and in the annual aggregate, per location. The policies described in this paragraph shall cover, without limitation: elevators, escalators, independent contractors, “Contractual Liability” (covering, to the maximum extent permitted by law, Borrower’s obligation to indemnify Lender as required under this Agreement and “Products and Completed Operations Liability” coverage). All public liability insurance shall name Lender as “Additional Insured” either on a specific endorsement or under a blanket endorsement satisfactory to Lender. Borrower shall be permitted to maintain the foregoing coverage under an insurance program containing primary self-insured retention with respect to the first $500,000 in losses. Notwithstanding the foregoing, Borrower shall not be obligated to maintain terrorism public liability insurance in an amount greater than that which can be purchased for a sum equal to $225,000.

6.1.3 Workers’ Compensation Insurance. Workers compensation and disability insurance as required by law.

6.1.4 Commercial Rents Insurance. “Commercial rents” insurance in an amount equal to eighteen (18) months actual rental loss plus a 365-day extended period of indemnity endorsement and with a limit of liability sufficient to avoid any co-insurance penalty and to provide Proceeds which will cover the actual loss of profits and rents sustained during the period of at least eighteen (18) months following the date of casualty. Such policies of insurance shall be subject only to exclusions that are reasonably acceptable to Lender; provided, however, that such exclusions are reasonably consistent with those required for loans similar to the Loan provided herein. Such insurance shall be deemed to include “loss of rental value” insurance where applicable. The term “rental value” means the sum of (A) the total then ascertainable Rents payable under the Master Lease and the Subleases and (B) the total ascertainable amount of all other amounts to be received by Borrower from third parties which are the legal obligation of Tenants, reduced to the extent such amounts would not be received because of operating expenses not incurred during a period of non-occupancy of that portion of the Property then not being occupied. Lender shall be named “Loss Payee” on a “Standard Mortgagee Endorsement” and be provided not less than thirty (30) days advance notice of cancellation or non-renewal.

6.1.5 Builder’s All-Risk Insurance. During any period of repair or restoration to an Individual Property, builder’s “All-Risk” insurance in an amount equal to not less than the full insurable value of such Individual Property against such risks (including so called “All Risk” perils coverage and collapse of the Improvements to agreed limits as Lender may request, in form and substance reasonably acceptable to Lender). Lender shall be named “Loss Payee” on a “Standard Mortgagee Endorsement” and be provided not less than thirty (30) days advance notice of cancellation or non-renewal.

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6.1.6 Boiler and Machinery Insurance. Comprehensive boiler and machinery insurance (without exclusion for explosion) covering all mechanical and electrical equipment against physical damage, rent loss and improvements loss and covering, without limitation, all tenant improvements and betterments that Borrower or Master Lessee is required to insure pursuant to the Master Lease or any Sublease on a replacement cost basis. The minimum amount of limits to be provided shall be $10,000,000 per accident. Lender shall be named “Loss Payee” on a “Standard Mortgagee Endorsement” and be provided not less than thirty (30) days advance notice of cancellation or non-renewal.

6.1.7 Flood Insurance. If any portion of the Improvements is located within an area designated as “flood prone” or a “special flood hazard area” (as defined under the regulations adopted under the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), flood insurance shall be provided, in an amount not less than the maximum limit of coverage available under the Federal Flood Insurance plan with respect to the Property. Lender reserves the right to require flood insurance in excess of that available under the Federal Flood Insurance plan. Lender shall be named “Loss Payee” on a “Standard Mortgagee Endorsement” and be provided not less than thirty (30) days advance notice of cancellation or non-renewal.

6.1.8 [Reserved.]

6.1.9 Terrorism Insurance. Borrower shall be required to carry insurance with respect to the Improvements and Building Equipment covering acts of sabotage or acts by terrorist groups or individuals (“Terrorism Insurance”) throughout the Loan term in an amount equal to the lesser of (x) the Combined Release Price, reduced by land value as defined in the Appraisal, for the Individual Property with the largest Combined Allocated Loan Amount of any Individual Property then subject to a Security Instrument and (y) the replacement cost for the Individual Property with the largest Combined Allocated Loan Amount of any Individual Property then subject to a Security Instrument. The Terrorism Insurance shall also include 18 months of business interruption coverage. Notwithstanding the foregoing, Borrower shall not be obligated to maintain Terrorism Insurance in an amount greater than that which can be purchased for a sum equal to $1,800,000. Lender agrees that Terrorism Insurance coverage may be provided under a blanket policy that is acceptable to Lender. Notwithstanding anything to the contrary in this Section 6.1.9, Borrower shall not be obligated to maintain Terrorism Insurance except to the extent commercially available. Terrorism Insurance policies shall name Lender as loss payee and additional insured.

6.1.10 Other Insurance. At Lender’s reasonable request, such other insurance with respect to the Property against loss or damage of the kinds from time to time customarily insured against and in such amounts as are generally required under Rating Agency criteria or by institutional lenders on loans of similar amounts and secured by properties comparable to, and in the general vicinity of, the Property.

6.1.11 Ratings of Insurers. Borrower shall maintain the insurance coverage described in Section 6.1 above, in all cases, with one or more financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A” or better by S&P, provided that if five (5) or more insurance companies issue any of the policies required hereunder, and at least sixty percent (60%) of the applicable insurance coverage is

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provided by insurance companies having a claims paying ability of “A” or better (and the equivalent thereof), then the remaining forty percent (40%) or less of the applicable insurance coverage required hereunder may be provided by insurance companies having a claims paying ability of “BBB” or better (and the equivalent thereof).

6.1.12 Form of Insurance Policies; Endorsements. All insurance policies shall be in such form and with such endorsements as are reasonably satisfactory to Lender (and Lender shall have the right, subject to the provisions of this Agreement, to approve amounts, form, risk coverage, deductibles, loss payees and insureds). A certificate of insurance with respect to all of the above-mentioned insurance policies has been delivered to Lender and originals or certified copies of all such policies shall be delivered to Lender when the same are available (but no later than thirty (30) days after the Closing Date) and shall be held by Lender. All policies shall name Lender as an additional insured, shall provide that all Proceeds (except with respect to Proceeds of general liability and workers’ compensation insurance) be payable to Lender as and to the extent set forth in Section 6.2, and shall contain: (i) a standard “non-contributory mortgagee” endorsement or its equivalent relating, inter alia, to recovery by Lender notwithstanding the negligent or willful acts or omissions of Borrower; (ii) a waiver of subrogation endorsement in favor of Lender; (iii) an endorsement providing that no policy shall be impaired or invalidated by virtue of any act, failure to act, negligence of, or violation of declarations, warranties or conditions contained in such policy by Borrower, Lender or any other named insured, additional insured or loss payee, except for the willful misconduct of Lender knowingly in violation of the conditions of such policy; (iv) an endorsement providing for a deductible per loss of an amount not more than that which is customarily maintained by prudent owners of properties with a standard of operation and maintenance comparable to and in the general vicinity of the Property, but in no event in excess of an amount reasonably acceptable to Lender; and (v) a provision that such policies shall not be canceled, terminated or expire without at least thirty (30) days’ prior written notice to Lender, in each instance. Each insurance policy shall contain a provision whereby the insurer: (i) agrees that such policy shall not be canceled or terminated, the coverage, deductible, and limits of such policy shall not be modified, other provisions of such policy shall not be modified if such policy, after giving effect to such modification, would not satisfy the requirements of this Agreement, and such policy shall not be canceled or fail to be renewed, without in each case, at least thirty (30) days prior written notice to Lender, (ii) waives any right to claim any premiums and commissions against Lender, provided that the policy need not waive the requirement that the premium be paid in order for a claim to be paid to the insured, and (iii) provides that Lender at its option, shall be permitted to make payments to effect the continuation of such policy upon notice of cancellation due to non-payment of premiums. In the event any insurance policy (except for general public and other liability and workers compensation insurance) shall contain breach of warranty provisions, such policy shall provide that with respect to the interest of Lender, such insurance policy shall not be invalidated by and shall insure Lender regardless of (A) any act, failure to act or negligence of or violation of warranties, declarations or conditions contained in such policy by any named insured, (B) the occupancy or use of the Property for purposes more hazardous than permitted by the terms thereof, or (C) any foreclosure or other action or proceeding taken by Lender pursuant to any provision of this Agreement. Lender hereby confirms and acknowledges that Borrower has delivered to Lender certificates of insurance with respect to Master Lessee’s insurance program, in amount, form and content so as to satisfy the requirements of this Section 6.1 in all material respects as of the Closing Date other than with respect to Section 6.1.9, and that any renewals or modifications that

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comply with Section 6.1.11 and are otherwise not, in substance, materially different from the approved program in place on the Closing Date shall be deemed to be in compliance.

6.1.13 Certificates. Borrower shall deliver to Lender annually, concurrently with the renewal of the insurance policies required hereunder, a certificate from Borrower’s insurance agent stating that the insurance policies required pursuant to this Section 6.1 are maintained with insurers who comply with the terms of Section 6.1.11, setting forth a schedule describing all premiums required to be paid by Borrower to maintain the policies of insurance required under this Section 6.1, and stating that Borrower has paid such premiums. Certificates of insurance with respect to all replacement policies shall be delivered to Lender not less than ten (10) Business Days prior to the expiration date of any of the insurance policies required to be maintained hereunder which certificates shall bear notations evidencing payment of applicable premiums. Borrower shall deliver to Lender originals (or certified copies) of such replacement insurance policies on or before the earlier to occur of (i) thirty (30) days after the effective date thereof and (ii) five (5) Business Days after Borrower’s receipt thereof. If Borrower fails to maintain and deliver to Lender the certificates of insurance and certified copies or originals required by this Agreement, upon five (5) Business Days’ prior notice to Borrower, Lender may procure such insurance, and all costs thereof (and interest thereon at the Default Rate) shall be added to the Indebtedness. Lender shall not, by the fact of approving, disapproving, accepting, preventing, obtaining or failing to obtain any insurance, incur any liability for or with respect to the amount of insurance carried, the form or legal sufficiency of insurance contracts, solvency of insurance companies, or payment or defense of lawsuits, and Borrower hereby expressly assumes full responsibility therefor and all liability, if any, with respect to such matters.

6.1.14 Separate Insurance. Borrower shall not take out separate insurance contributing in the event of loss with that required to be maintained pursuant to this Section 6.1 unless such insurance complies with this Section 6.1.

6.1.15 Blanket Policies. The insurance coverage required under this Section 6.1 may be effected under a blanket policy or policies covering the Property and other properties and assets not constituting a part of the Property (a “Blanket Policy”); provided that any such Blanket Policy shall specify, except in the case of public liability insurance, the portion of the total coverage of such policy that is allocated to the Property, and any sublimits in such Blanket Policy applicable to the Property, which amounts shall not be less than the amounts required pursuant to this Section 6.1 and which shall in any case comply in all other respects with the requirements of this Section 6.1. In addition, Borrower shall provide evidence satisfactory to Lender that the insurance premiums for the Property are separately allocated under such Blanket Policy to the Property and that payment of such allocated amount (A) shall maintain the effectiveness of such Blanket Policy as to the Property and (B) shall otherwise provide the same protection as would a separate policy that complies with the terms of this Agreement as to the Property, notwithstanding the failure of payment of any other portion of the insurance premiums. If no such allocation is available, Lender shall have the right to increase the amount required to be deposited into the Insurance Reserve Account in an amount sufficient to purchase a non-blanket policy covering the Property from insurance companies which qualify under this Agreement. Upon Lender’s request, Borrower shall deliver to Lender an Officer’s Certificate setting forth (i) the number of Individual Properties covered by such policy, (ii) the location by city (if available, otherwise, county) and state of such Individual Properties, (iii) the average

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square footage of such Individual Properties (or the aggregate square footage), (iv) a brief description of the typical construction type included in the Blanket Policy and (v) such other information as Lender may reasonably request.

6.2 Condemnation and Insurance Proceeds.

6.2.1 Notification. Borrower shall promptly notify Lender in writing upon obtaining knowledge of (i) the institution of any proceedings relating to any Taking (whether material or immaterial) of, or (ii) the occurrence of any casualty, damage or injury to, the Property or any portion thereof, the restoration of which is estimated by Borrower in good faith to cost more than the Casualty Amount as to any Individual Property. In addition, each such notice shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in reasonable detail if the same is then available and, if not, as soon thereafter as it can reasonably be provided. Borrower shall promptly provide Lender with copies of any material documentation available to Borrower and requested by Lender relating to any Taking, including, but not limited to, documentation relating to the Taking matters set forth on Schedule II.

6.2.2 Proceeds. In the event of any Taking of or any casualty or other damage or injury to the Property, including, but not limited to, pursuant to the Taking matters set forth on Schedule II, Borrower’s right, title and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the Closing Date) and payments which Borrower may receive or to which Borrower may become entitled with respect to the Property or any part thereof other than payments received in connection with any liability or loss of rental value or business interruption insurance, including all such right, title and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action under insurance required to be maintained for the benefit of Borrower or Lender under the Master Lease (collectively, “Proceeds”), in connection with any such Taking of, or casualty or other damage or injury to, the Property or any part thereof are hereby assigned by Borrower to Lender and, except as otherwise herein provided, shall be paid to the Lender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Proceeds as herein provided, will cause the same to be paid directly to Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default, Borrower may settle any insurance claim with respect to Proceeds which does not exceed the Casualty Amount as to any Individual Property. Whether or not a Monetary Default or an Event of Default shall have occurred and be continuing, Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount as to any Individual Property and Borrower shall deliver or cause to be delivered to Lender all instruments reasonably requested by Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses reasonably incurred by Lender (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within ten (10) Business Days after delivery of a request for reimbursement by Lender, in connection with the settlement of any claim for Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing

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provisions. If any Proceeds are received by Borrower and may be retained by Borrower pursuant to this Section 6.2, such Proceeds shall, until the completion of the related Work, be held in trust for Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount as to any Individual Property, such Proceeds shall be forthwith paid directly to and held by Lender in the Proceeds Reserve Account in trust for Borrower, in each case to be applied or disbursed in accordance with this Section 6.2. If an Event of Default shall have occurred and be continuing, or if Borrower fails to file and/or prosecute any insurance claim for a period of fifteen (15) Business Days following Borrower’s receipt of written notice from Lender, Borrower hereby irrevocably empowers Lender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Lender pursuant to this Section 6.2). Notwithstanding anything to the contrary set forth in this Agreement, however, and excluding situations requiring prepayment of the Notes, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Casualty Amount as to any Individual Property, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof (except that Proceeds paid in respect of the insurance described in Section 6.1.4 shall be deposited directly to the Holding Account as revenue of the Property).

6.2.3 Lender to Take Proceeds.

(a) If (i) a Monetary Default or an Event of Default shall have occurred and be continuing, (ii) a Total Loss with respect to the Property shall have occurred, (iii) the Work is not capable of being completed before the earlier to occur of the date which is six (6) months prior to the earlier of the Maturity Date (as the same may be extended pursuant to the terms of the Notes) and the date on which the business interruption insurance carried by Borrower with respect to the Property shall expire (the “Cut-Off Date”), unless on or prior to the Cut-Off Date the Borrower shall deliver to the Lender and there shall remain in effect a binding written offer, subject only to customary conditions, of an Approved Bank or such other financial institution or investment bank reasonably satisfactory to Lender for a loan from such Approved Bank or such other financial institution or investment bank to the Borrower in a principal amount of not less than the then Principal Amount and which shall, in the Lender’s reasonable judgment, enable the Borrower to refinance the Loan prior to the Maturity Date, (iv) the Property is not capable of being restored substantially to its condition prior to such Taking or casualty and such incapacity shall have a Material Adverse Effect, (v) Subleases demising in the aggregate less than 40% of the total rentable space in the Property which has been demised under executed and delivered Subleases in effect as of the date of the occurrence of such fire or other casualty remain in full force and effect during and after the completion of the restoration, (vi) the Master Lessee or Borrower shall exercise any termination right under the Master Lease or (vii) Lender determines that upon the completion of the restoration, the Portfolio Four-Wall EBITDAR of the Property will not be restored to a level sufficient to cover all Master Lease Base Rent at a coverage ratio of at least 1.4 to 1.0, which coverage ratio shall be determined by Lender in its reasonable discretion; then in any such case, all Proceeds shall be paid over to Lender (if not paid directly to Lender) for repayment of the Loan and the Mezzanine Loan as set forth in clause (b) below.

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(b) Any Proceeds remaining after reimbursement of Lender’s or its agent’s reasonable out-of-pocket costs and expenses actually incurred in connection with recovery of any such Proceeds (including, without limitation, reasonable out-of-pocket administrative costs and inspection fees) shall, except to the extent required to be applied for restoration under Section 6.2.4(b) below, or otherwise agreed between Lender and Borrower, be applied by Lender to prepay the Notes (in order of seniority or as otherwise allocated by Lender, and without regard for the affect on the weighted average interest rate) to the extent of the Release Price for the Individual Property affected by the Taking or casualty giving rise to such Proceeds in accordance with the provisions thereof (without the imposition of any Prepayment Fee), and the balance, if any shall be paid over to (i) the First Mezzanine Lender to be applied in accordance with the terms of the First Mezzanine Loan Agreement to the extent of the Mezzanine Release Price set forth therein for such Individual Property, (ii) with the balance, if any, to the Second Mezzanine Lender to be applied in accordance with the terms of the Second Mezzanine Loan Agreement to the extent of the Mezzanine Release Price set forth therein, or (iii) with the balance, if any, to the Third Mezzanine Lender to be applied in accordance with the terms of the Third Mezzanine Loan Agreement to the extent of the Mezzanine Release Price set forth therein, (iv) with the balance, if any, to each other Mezzanine Lender in the order of priority of the applicable Mezzanine Loan to be applied in accordance with the terms of the applicable Mezzanine Loan Agreements to the extent of the Mezzanine Release Price set forth therein, and (v) if the Mezzanine Loans are no longer outstanding, the balance, if any, to the Borrower’s Account. If the Proceeds applied by Lender and Mezzanine Lenders pursuant to the preceding sentence equal or exceed the Combined Release Price for such Individual Property, Borrower shall be entitled to obtain a Property Release subject to and in accordance with Section 2.3.4. Transfers of Proceeds to or for the benefit of any of the Mezzanine Borrowers shall constitute distributions to First Mezzanine Borrower, and deemed distributions by the First Mezzanine Borrower to the Second Mezzanine Borrower, by the Second Mezzanine Borrower to the Third Mezzanine Borrower, and by the Third Mezzanine Borrower to the Fourth Mezzanine Borrower and so on with respect to each other Mezzanine Borrower, as applicable, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act. The provisions of this Section 6.2.3 shall not create a debtor-creditor relationship between Borrower and any Mezzanine Lender.

6.2.4 Borrower to Restore.

(a) Subject to Section 2.3.4 and the last sentence of this Section 6.2.4(a), promptly after the occurrence of any damage or destruction to all or any portion of the Property or a Taking of a portion of the Property, unless the Proceeds therefrom are sufficient to entitle Borrower to obtain a Property Release with respect to the Individual Property subject to such damage, destruction or Taking as described in Section 6.2.3(b) and such Proceeds have been made available to Lender for prepayment of the Loan and Mezzanine Loan in accordance with Section 6.2.3(b), Borrower shall commence and diligently prosecute, or cause to be commenced and diligently prosecuted, to completion, subject to Excusable Delays, the repair, restoration and rebuilding of the Property (in the case of a partial Taking, to the extent it is capable of being restored) so damaged, destroyed or remaining after such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Encumbrances (such repair, restoration and rebuilding are collectively referred to herein as the “Work”). The plans and specifications shall require that the Work be done in a first-class

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workmanlike manner at least equivalent to the quality and character prior to the damage or destruction (provided, however, that in the case of a partial Taking, the Property restoration shall be done to the extent reasonably practicable after taking into account the consequences of such partial Taking), so that upon completion thereof, the Property shall be at least equal in value and general utility to the Property prior to the damage or destruction; it being understood, however, that Borrower shall not be obligated to restore the Property to the precise condition of the Property prior to any partial Taking of, or casualty or other damage or injury to, the Property, if the Work actually performed, if any, or failed to be performed, shall have no Material Adverse Effect on the value of the Property from the value that the Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Subject to Borrower’s rights pursuant to Sections 2.3.4 and 2.3.9 to cause the Property and Unimproved Parcels to be released from the Lien of the applicable Security Instrument(s), Borrower shall be obligated to restore the Property suffering a casualty or which has been subject to a partial Taking in accordance with the provisions of this Section 6.2 at Borrower’s sole cost and expense whether or not the Proceeds shall be sufficient; provided however, that in the event Lender has the right to apply Proceeds toward the payment of the Indebtedness pursuant to Section 6.2.3(a), and Lender has, in fact, elected to apply such Proceeds to the payment of Indebtedness pursuant to Section 6.2.3(b), then Borrower shall have a period of 90 days commencing on the date the Proceeds are so applied to either (i) commence restoration as otherwise provided under this Section; (ii) comply with all requirements necessary to obtain a release of the Individual Property subject to such casualty, Taking, damage, or injury from the Lien of the applicable Security Instrument and related Loan Documents pursuant to Section 2.3.4 (including the payment of the applicable Combined Release Price), provided that, in the case of both clauses (i) and (ii) above, during such period, Affiliates of Borrower are diligently pursuing financing (which may consist of a construction loan with respect to the restoration of the Individual Property subject to casualty, Taking, damage or injury) to fund the payment of the Combined Release Price as otherwise provided in Section 2.3.4.

(b) If Proceeds are not required to be applied toward payment of the Indebtedness pursuant to Section 6.2.3(a), then Lender shall make the Proceeds which it is holding pursuant to the terms hereof (after payment of any reasonable out-of-pocket expenses actually incurred by Lender pursuant to the penultimate sentence of Section 6.2.2 in connection with the collection thereof plus interest thereon at the Default Rate (from the date advanced through the date of reimbursement) to the extent the same are not paid within ten (10) Business Days after request for reimbursement by Lender) available to Borrower for payment of or reimbursement of Borrower’s, Master Lessee’s or the applicable Tenant’s expenses incurred with respect to the Work, upon the terms and subject to the conditions set forth in paragraphs (i), (ii) and (iii) below and in Section 6.2.5:

(i) at the time of loss or damage or at any time thereafter while Borrower is holding any portion of the Proceeds, there shall be no continuing Monetary Default or Event of Default;

(ii) if, at any time, the estimated cost of the Work (as estimated by the Architect referred to in clause (iii) below) shall exceed the Proceeds (a “Deficiency”) and for so long as such Deficiency shall exist, Lender shall not be required to make any Proceeds disbursement to Borrower unless Borrower (within a reasonable period of time after receipt of

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such estimate), at its election, either deposits with or delivers to Lender (A) Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to the estimated cost of the Work less the Proceeds available, or (B) such other evidence of Borrower’s ability to meet such excess costs and which is satisfactory to Lender and the Rating Agencies;

(iii) Lender and the Architect shall have reasonably approved the plans and specifications for the Work and any change orders in connection with such plans and specifications within a reasonable period of time; and

(iv) Lender shall, within a reasonable period of time prior to request for initial disbursement, be furnished with an estimate of the cost of the Work accompanied by an Architect’s certification as to such costs and appropriate plans and specifications for the Work. Borrower shall restore all Improvements such that when they are fully restored and/or repaired, such Improvements and their contemplated use comply in all material respects with all applicable Legal Requirements including zoning, environmental and building laws, codes, ordinances and regulations.

6.2.5 Disbursement of Proceeds.

(a) Disbursements of the Proceeds in Cash or Cash Equivalents to Borrower hereunder shall be made from time to time (but not more frequently than once in any month) by Lender but only for so long as no Monetary Default or Event of Default shall have occurred and be continuing, as the Work progresses upon receipt by Lender of (i) an Officer’s Certificate dated not more than ten (10) Business Days prior to the application for such payment, requesting such payment or reimbursement and describing the Work performed that is the subject of such request, the parties that performed such Work and the actual cost thereof, and also certifying that such Work and materials are or, upon disbursement of the payment requested to the parties entitled thereto, will be free and clear of Liens other than Permitted Encumbrances, (ii) subject to Borrower’s right to contest under Section 7.3, evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed in connection with such Work have been paid for in full and (B) there exists no notices of pendency, stop orders, mechanic’s liens or notices of intention to file same (unless the same is required by the applicable State law as a condition to the payment of a contractor) or any Liens or encumbrances of any nature whatsoever on the Property arising out of the Work which have not been either fully bonded to the satisfaction of Lender or discharged of record or in the alternative, fully insured to the satisfaction of Lender by the Title Company, and (iii) an Architect’s certificate certifying performance of the Work together with an estimate of the cost to complete the Work. No payment made prior to the final completion of the Work, as certified by the Architect, except for payment made to contractors or subcontractors whose Work shall have been fully completed and from which final lien waivers have been received, shall exceed ninety percent (90%) (the “Retainage Release Threshold”) of the value of the Work performed and materials furnished and incorporated into the Improvements by such contractor or subcontractor, as applicable, from time to time until such time as fifty percent (50%) of such Work has been satisfactorily completed (as certified by the Architect), at which time the Retainage Release Threshold with respect to such Work may be increased to ninety-five (95%), and at all times the undisbursed balance of said Proceeds together with all amounts deposited, bonded, guaranteed or otherwise provided for pursuant to Section 6.2.4(b) above, shall be at least sufficient to pay for the estimated cost of

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completion of the Work; final payment of all Proceeds remaining with Lender shall be made upon receipt by Lender of a certification by an Architect, as to the completion of the Work substantially in accordance with the submitted plans and specifications, final lien releases, and the filing of a notice of completion and the expiration of the period provided under the law of the applicable State for the filing of mechanics’ and materialmens’ liens which are entitled to priority as to other creditors, encumbrances and purchasers, as certified pursuant to an Officer’s Certificate, and delivery of a certificate of occupancy with respect to the Work, or, if not applicable, an Officer’s Certificate to the effect that a certificate of occupancy is not required.

(b) If, after the Work is completed in accordance with the provisions hereof and Lender receives evidence that all costs of completion have been paid, there are excess Proceeds, such excess Proceeds shall be paid over to Lender for application in accordance with Section 6.2.3(b).

VII. IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS

7.1 Borrower to Pay Impositions and Other Charges. Borrower shall pay (or cause to be paid) all Impositions now or hereafter levied or assessed or imposed against the Property or any part thereof prior to the imposition of any interest, charges or expenses for the non-payment thereof and shall pay all Other Charges on or before the date they are due. Borrower shall deliver to Lender annually, no later than thirty (30) calendar days after the first day of each Fiscal Year of Borrower, and shall update as new information is received, a schedule describing all Impositions, payable or estimated to be payable during such Fiscal Year attributable to or affecting the Property or Borrower. Subject to Borrower’s right of contest set forth in Section 7.3, as set forth in the next two sentences and provided that there are sufficient funds available in the Tax Reserve Account, Lender, on behalf of Borrower, shall pay all Impositions and Other Charges which are attributable to or affect the Property or Borrower, prior to the date such Impositions or Other Charges shall become delinquent or late charges may be imposed thereon, directly to the applicable taxing authority with respect thereto. Lender shall, or Lender shall direct the Cash Management Bank to, pay to the taxing authority such amounts to the extent funds in the Tax Reserve Account are sufficient to pay such Impositions. Nothing contained in this Agreement or any Security Instrument shall be construed to require Borrower to pay any tax, assessment, levy or charge imposed on Lender in the nature of a franchise, capital levy, estate, inheritance, succession, income or net revenue tax.

7.2 No Liens. Subject to its right of contest set forth in Section 7.3 and to Permitted Encumbrances, Borrower shall at all times keep, or cause to be kept, the Property free from all Liens (other than Permitted Encumbrances) and shall pay when due and payable (or bond over) all claims and demands of mechanics, materialmen, laborers and others which, if unpaid, might result in or permit the creation of a Lien on the Property or any portion thereof and shall in any event cause the prompt, full and unconditional discharge of all Liens imposed on or against the Property or any portion thereof within forty-five (45) days after receiving written notice of the filing (whether from Lender, the lienor or any other Person) thereof. Borrower shall do or cause to be done, at the sole cost of Borrower, everything reasonably necessary to fully preserve the first priority of the Lien of the Security Instruments against the Property, subject to the Permitted Encumbrances. Upon the occurrence and during the continuance of an Event of Default with respect to its Obligations as set forth in this Article VII, Lender may (but shall not be obligated

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to) make any such payment or discharge any such Lien (other than Permitted Encumbrances [excluding therefrom any Liens described in clauses (d) and (e) of the definition of “Permitted Encumbrances” which are the subject of such Event of Default]), and Borrower shall reimburse Lender on demand for all such advances pursuant to Section 19.12 (together with interest thereon at the Default Rate).

7.3 Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if Borrower is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 110% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, (a) provided no Event of Default has occurred and is continuing hereunder, Lender shall disburse to Borrower or the Person entitled to such sums, the security provided therefor under this Section 7.3 and (b) Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Lender.

VIII. TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS

8.1 General Restriction on Transfers. Unless such action is permitted by the provisions of this Article VIII, Borrower shall not, and shall not permit any other Person holding

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any direct or indirect ownership interest in Borrower, Mezzanine Borrower, any Guarantor, Master Lessee or the Property to, except with the prior written consent of Lender and, if a Securitization has occurred, delivery of a Rating Agency Confirmation, (i) Transfer all or any part of the Property, or (ii) except for (A) the security interests granted in connection with the Loan or the Mezzanine Loan and (B) the Revolving/Term Credit Facility Lien granted under Revolving/Term Credit Facility (which shall be solely a pledge, hypothecation, encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee as security for the Revolving/Term Credit Facility), and in each case the enforcement thereof, permit any Transfer (directly or indirectly) of any interest in Borrower or any Mezzanine Borrower, or (iii) except for the Revolving/Term Credit Facility Lien granted under Revolving/Term Credit Facility and the enforcement thereof, permit any Transfer (directly or indirectly) of any interest in any Guarantor or Master Lessee. For avoidance of doubt, the foregoing shall not prohibit (i) the Master Lessee from granting a Lien to Borrower on portions of the Excluded Personal Property, subject to the Assigned Landlord Lien, or (ii) the Borrower, Master Lessee or any Tenant under any Individual Property Sublease or Sublease permitted under Section 8.8.2 from entering into any Permitted Encumbrance.

8.2 Sale of Building Equipment. Borrower may Transfer or dispose of Building Equipment which is being replaced or which is no longer necessary in connection with the operation of an Individual Property free from the Lien of the applicable Security Instrument provided that such Transfer or disposal will not have a Material Adverse Effect on the value of such Individual Property, will not materially impair the utility of such Individual Property, and will not result in a reduction or abatement of, or right of offset against, the Rents payable under the Master Lease or any Sublease, in either case as a result thereof, and provided further that any new Building Equipment acquired by Borrower (and not so disposed of) shall be subject to the Lien of the applicable Security Instrument. Lender shall, from time to time, upon receipt of an Officer’s Certificate requesting the same and confirming satisfaction of the conditions set forth above, execute a written instrument in form reasonably satisfactory to Lender to confirm that such Building Equipment which is to be, or has been, sold or disposed of is free from the Lien of the applicable Security Instrument.

8.3 Immaterial Transfers and Easements, etc. Borrower may, without the consent of Lender, (i) make immaterial Transfers of portions of the Property to Governmental Authorities for dedication or public use (subject to the provisions of Section 6.2) or, portions of the Property to third parties for the purpose of erecting and operating additional structures whose use is integrated with the use of the Property, and (ii) grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone and telegraph lines, electric lines or other utilities or for other similar purposes, provided that no such Transfer, conveyance or encumbrance set forth in the foregoing clauses (i) and (ii) shall materially impair the utility and operation of the Property or have a Material Adverse Effect on the value of the Property taken as a whole. In connection with any Transfer permitted pursuant to this Section 8.3, Lender shall execute and deliver any instrument reasonably necessary or appropriate, in the case of the Transfers referred to in clause (i) above, to release the portion of the Property affected by such Taking or such Transfer from the Lien of the applicable Security Instrument or, in the case of clause (ii) above, to subordinate the Lien of the applicable Security Instrument to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by Lender of:

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(a) thirty (30) days prior written notice thereof;

(b) a copy of the instrument or instruments of Transfer;

(c) an Officer’s Certificate stating (x) with respect to any Transfer, the consideration, if any, being paid for the Transfer and (y) that such Transfer does not materially impair the utility and operation of the Property or have a Material Adverse Effect on the value of the Property taken as a whole; and

(d) reimbursement of all of Lender’s reasonable out-of-pocket costs and expenses incurred in connection with such Transfer.

8.4 [Reserved.]

8.5 Permitted Equity Transfers.

(a) A Transfer of an ownership interest in Borrower or any Mezzanine Borrower that is otherwise prohibited hereunder shall nevertheless be permitted without Lender’s prior written consent or a Rating Agency Confirmation if all of the following conditions are satisfied with respect to such Transfer: (i) Lender receives fifteen (15) days prior written notice thereof, (ii) immediately prior to such Transfer, no Event of Default shall have occurred and be continuing, (iii) no more than forty-nine percent (49%) of the ownership interests in Borrower or any Mezzanine Borrower is being Transferred (in the aggregate of all such Transfers), (iv) the transferee is not a Disqualified Transferee, (v) the Principal Control Persons collectively retain Control of Borrower and Mezzanine Borrower, and (vi) the Principal Investors collectively continue to own, directly and/or indirectly, at least 51% of the ownership interests in Borrower and Mezzanine Borrower.

(b) Notwithstanding anything herein to the contrary, the following Transfers shall not require the prior written consent of or, except as otherwise required in clause (y) below, notice to Lender or a Rating Agency Confirmation so long as (x) (except with respect to Section 8.5(b)(ii) and (iv) below) Section 8.5(a)(v) above is complied with and (y) with respect to (1) any Transfer of interests in any Guarantor or Sponsor that alters the ratio of ownership interests in Master Lessee between that owned by Colony Capital, LLC and its Affiliates, on the one hand, and that owned by the Fertitta Brothers and their Affiliates and Family Trusts, on the other hand, and (2) any Transfer of interests in the Fertitta Brothers and their Affiliates and Family Trusts to Persons other than Principal Investors, Lender shall receive prior written notice:

(i) a Transfer of (A) interests in any Guarantor or Sponsor between or among its existing owners and any Principal Investors, and (B) any interests in the parent entities of such owners;

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greater amount of the voting power or economic interest in Master Lessee than that which is then owned by the Principal Control Persons and Principal Investors in aggregate, or (B) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Master Lessee;

(iii) Transfers of direct or indirect interests in the Guarantors (including, without limitation, any combination of one or more Guarantors or a Guarantor with Sponsor), and the pledge or grant of security interests, as permitted under the terms of the organizational documents for each of the Guarantors; and

(iv) the pledge, hypothecation, encumbrance or granting of a security interest in or lien on the direct interest in Master Lessee to an Approved Bank as security for the Revolving/Term Credit Facility (the “Revolving/Term Credit Facility Lien”), provided that the Revolving/Term Credit Facility Lien shall not be foreclosed upon unless (A) the ownership of such direct interest in Master Lessee following such foreclosure shall be held by an Approved Bank or a Qualified Transferee and comply with all Gaming Laws and (B) such foreclosure shall not create or cause a Default or Event of Default hereunder (provided that the occurrence of such foreclosure, so long as clause (A) is complied with, shall not of itself constitute a Default or Event of Default). For purposes solely of this Section 8.5(b)(iv), the term “Qualified Transferee” shall have the meaning set forth in Section 1.1 except that the “$2 Billion” figure in clause (b) of the definition in Section 1.1 is replaced with “$1 Billion.”

Notwithstanding the foregoing, Borrower shall not, and shall not permit or suffer any person to, pledge, hypothecate, encumber or grant a security interest in or lien on any direct or, except as set forth in this Section 8.5, indirect interest in Borrower, Mezzanine Borrower or any SPE Entities, any Guarantor or Sponsor.

8.6 Deliveries to Lender. Not less than thirty (30) days prior to (or, in the case of the transactions described in Section 8.5, promptly following) the closing of any transaction that requires consent of Lender under the provisions of Sections 8.1, 8.3 and 8.5, Borrower shall deliver to Lender an Officer’s Certificate describing the proposed transaction and stating that such transaction is permitted by this Article VIII, together with any appraisal or other documents upon which such Officer’s Certificate is based. In addition, Borrower shall provide Lender with copies of executed deeds or other similar closing documents within ten (10) Business Days after such closing.

8.7 Loan Assumption. Provided no Event of Default is then continuing, Borrower shall have the right, with the prior written consent of Lender, to sell, assign, convey or transfer (but not mortgage, hypothecate or otherwise encumber or grant a security interest in) legal or equitable title to all (but not less than all) of the Property only if after giving effect to the proposed transaction the Property will be owned by a Single Purpose Entity wholly owned by a Qualified Transferee which shall have executed and delivered to Lender an assumption agreement in form and substance acceptable to Lender. Any such assumption of the Loan shall be conditioned upon, among other things, (i) the delivery of financial information, including, without limitation, audited financial statements, for such purchaser and the direct and indirect owners of such purchaser, (ii) the delivery of evidence that the purchaser is a Single Purpose Entity and is not a Disqualified Transferee, (iii) the execution and delivery of all documentation

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reasonably requested by Lender, (iv) the delivery of Opinions of Counsel requested by Lender, including, without limitation, a Non-Consolidation Opinion with respect to the purchaser and other entities identified by Lender or requested by the Rating Agencies and opinions with respect to the valid formation, due authority and good standing of the purchaser and any additional pledgors and the continued enforceability of the Loan Documents and any other matters requested by Lender, (v) the delivery of an endorsement to each of the Title Policies in form and substance acceptable to Lender, insuring the lien of the Security Instruments, as assumed, subject only to the Permitted Encumbrances and (vi) the payment of all of Lender’s reasonable out-of-pocket fees, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, actually incurred by Lender in connection with such assumption.

8.8 Subleases

8.8.1 Master Lease and Existing Subleases. Borrower represents, warrants, and covenants that each Individual Property shall be leased to Master Lessee pursuant to the Master Lease, and substantially occupied by a wholly-owned subsidiary of Master Lessee under an Individual Property Sublease, and with respect to the retail components of the Individual Properties, occupied in part by other Tenants under the applicable Subleases.

8.8.2 Leasing Conditions. Except as otherwise provided in this Section 8.8.2, Borrower shall not, and shall not permit Master Lessee to (i) enter into any Material Sublease (a “New Sublease”) or (ii) modify any Material Sublease (including, without limitation, accept a surrender of any portion of the Property subject to a Material Sublease (unless otherwise required by law), allow a reduction in the term of any Material Sublease or a reduction in the Rent payable under any Material Sublease, change any renewal provisions of any Material Sublease, materially increase the obligations of the landlord or materially decrease the obligations of any Tenant under a Material Sublease) or terminate any Material Sublease unless the Tenant under such Lease is in default (any such action referred to in clause (ii) being referred to herein as a “Sublease Modification”) without the prior written consent of Lender. Any New Sublease or Sublease Modification that requires Lender’s consent shall be delivered to Lender for approval not less than five (5) Business Days prior to the effective date of such New Sublease or Sublease Modification. If Lender fails to respond to a request for Lender’s consent pursuant to this Section 8.8.2 within five (5) Business Days of Lender’s receipt of Borrower’s request therefor, Borrower may deliver to Lender a second request in an envelope or under cover of a letter marked “URGENT” and including a legend in bold typeface that Lender’s failure to grant or deny the requested consent within ten (10) Business Days of the receipt thereof will result in the requested consent being deemed to have been granted. If Lender fails to respond to such second request within ten (10) Business Days of its receipt thereof, Lender’s consent shall be deemed granted. Notwithstanding the foregoing, but subject to terms of Sections 8.8.7 and 8.8.8, provided no Event of Default shall have occurred and be continuing, Borrower may permit Master Lessee to enter into a New Sublease or Sublease Modification in accordance with the Subleasing Standards.

8.8.3 Delivery of New Sublease or Sublease Modification. Upon the execution of any New Sublease or Sublease Modification, as applicable, Borrower shall deliver to Lender an executed copy of the Sublease.

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8.8.4 Sublease Amendments. Borrower agrees that it shall not have the right or power, as against Lender without its consent (which consent shall not be unreasonably withheld or delayed as provided herein), to cancel, abridge, amend or otherwise modify any Sublease unless such modification complies with this Section 8.8.

8.8.5 Security Deposits. All security or other deposits of Tenants of the Property shall be treated as trust funds and shall not be commingled with any other funds of Borrower, Master Lessee or Tenant under an Individual Property Sublease, as appropriate, and such deposits shall be deposited, upon receipt of the same in a separate trust account maintained by Borrower, Master Lessee or Tenant under an Individual Property Sublease, as appropriate, expressly for such purpose. Within ten (10) Business Days after written request by Lender, Borrower, Master Lessee or Tenant under an Individual Property Sublease, as appropriate, shall furnish to Lender reasonably satisfactory evidence of compliance with this Section 8.8.5, together with a statement of all lease securities deposited by the Tenants and the location and account number of the account in which such security deposits are held.

8.8.6 No Default Under Subleases. Borrower shall or shall cause Master Lessee to (i) promptly perform and observe all of the material terms, covenants and conditions required to be performed and observed by Borrower under the Subleases, if the failure to perform or observe the same would have a Material Adverse Effect; (ii) exercise, within ten (10) Business Days after a written request by Lender, any right to request from the Tenant under any Material Sublease a certificate with respect to the status thereof and (iii) not collect any of the Rents under any Sublease, more than one (1) month in advance (except that Borrower may collect such security deposits and last month’s Rents as are permitted by Legal Requirements and are commercially reasonable in the prevailing market and collect other charges in accordance with the terms of each Sublease).

8.8.7 Subordination. All Sublease Modifications and New Subleases entered into by Borrower after the Closing Date shall by their express terms be subject and subordinate to this Agreement and the Security Instruments (through a subordination provision contained in such Sublease or otherwise).

8.8.8 Attornment. Each New Sublease entered into from and after the Closing Date shall provide that in the event of the enforcement by Lender of any remedy under this Agreement or the Security Instruments, the Tenant under such Sublease shall, at the option of Lender or of any other Person succeeding to the interest of Lender as a result of such enforcement, attorn to Lender or to such Person and shall recognize Lender or such successor in the interest as lessor under such Sublease without change in the provisions thereof; provided, however, Lender or such successor in interest shall not be liable for or bound by (i) any payment of an installment of rent or additional rent made more than thirty (30) days before the due date of such installment, (ii) any act or omission of or default by Master Lessee under any such Sublease (but the Lender, or such successor, shall be subject to the continuing obligations of the landlord to the extent arising from and after such succession to the extent of Lender’s, or such successor’s, interest in the Property), (iii) any credits, claims, setoffs or defenses which any Tenant may have against Master Lessee, (iv) any obligation on Master Lessee’s part, pursuant to such Sublease, to perform any tenant improvement work, or (vi) any obligation on Master Lessee’s part, pursuant to such Sublease, to pay any sum of money to any Tenant. Each such New Sublease shall also

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provide that, upon the reasonable request by Lender or such successor in interest, the Tenant shall execute and deliver an instrument or instruments confirming such attornment.

8.8.9 Non-Disturbance Agreements. Lender shall enter into, and, if required by applicable law to provide constructive notice or requested by a Tenant, record in the county where the subject Property is located, a subordination, attornment and non-disturbance agreement, substantially in form and substance substantially similar to the form attached hereto as Exhibit N (a “Non-Disturbance Agreement”), with any Tenant (other than an Affiliate of Borrower) entering into a New Sublease or Sublease Modification, within twenty (20) Business Days after written request therefor by Borrower; provided that such request is accompanied by an Officer’s Certificate stating that such Sublease or Sublease Modification (as applicable) complies in all material respects with this Section 8.8 and payment of all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the negotiation, preparation, execution and delivery of any Non-Disturbance Agreement, including, without limitation, reasonable attorneys’ fees and disbursements.

8.8.10 Recognition Agreements. Master Lessee and the subsidiaries of Master Lessee under the Individual Property Subleases shall have the right to enter into recognition agreements or nondisturbance and attornment agreements with Tenants under Subleases without Lender’s consent.

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IX. INTEREST RATE PROTECTION AGREEMENT

9.1 Interest Rate Protection Agreement. Prior to or contemporaneously with the Amendment Effective Date, Borrower shall enter into (x) an amendment to the Interest Rate Cap Agreement with respect to the Interest Rate Cap Notional Amount, satisfactory in form and substance to the Lender, and (y) a Interest Rate Swap Agreement with respect to the Interest Rate Swap Notional Amount. The aggregate notional amount of the Interest Rate Cap Agreement, as so amended, and Interest Rate Swap Agreement shall be at least equal to the Principal Amount. Each Interest Rate Protection Agreement shall (i) at all times be in a form and substance reasonably acceptable to Lender, (ii) at all times be with an Approved Counterparty, (iii) direct such Approved Counterparty to deposit directly into the Holding Account any net amounts due to Borrower under such Interest Rate Protection Agreement so long as any portion of the Loan is outstanding, provided that the Loan shall be deemed to be outstanding if the Properties are transferred by judicial or non-judicial foreclosure or deed-in-lieu thereof, (iv) with respect to the Interest Rate Swap Agreement shall have a notional amount that does not exceed the original Interest Rate Swap Notional Amount and be for a period through the end of the Interest Period during which the Maturity Date occurs, (v) in the case of an Interest Rate Cap Agreement, have a strike rate no greater than the Strike Price, and (vi) with respect to each Interest Rate Swap Agreement for the Interest Rate Swap Notional Amount (A) the obligations of Borrower thereunder shall not be secured by or encumber any Individual Property or any of the other collateral securing Borrower’s obligations under the Loan Documents, (B) Borrower’s obligations thereunder cannot be assigned to or guaranteed by any other Person, (C) the applicable Approved Counterparty thereunder shall agree that the Borrower’s obligations thereunder shall be paid from the Holding Account in the order and priority set forth in Section 3.1.6, and (D) provide that the Swap Counterparty shall receive a monthly payment equal to the interest accrued on the Interest Rate Swap Notional Amount at a per annum rate equal to the Swap Fixed Rate and Borrower shall receive in return from such Swap Counterparty a monthly payment equal to the interest accrued in respect of the Interest Rate Swap Notional Amount at a per annum rate equal to one (1) month LIBOR.

9.2 Pledge and Collateral Assignment. As security for the full and punctual payment and performance of the Obligations when due (whether upon stated maturity, by acceleration, early termination or otherwise), Borrower, as pledgor, hereby pledges, assigns, hypothecates, transfers and delivers to Lender as collateral and hereby grants to Lender a continuing first priority lien on and security interest in, to and under all of the following whether now owned or hereafter acquired and whether now existing or hereafter arising (the “Rate Protection Collateral”): all of the right, title and interest of Borrower in and to (i) the Interest Rate Protection Agreement; (ii) all payments, distributions, disbursements or proceeds due, owing, payable or required to be delivered to Borrower in respect of the Interest Rate Protection Agreement or arising out of the Interest Rate Protection Agreement, whether as contractual obligations, damages or otherwise; and (iii) all of Borrower’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under or arising out of the Interest Rate Protection Agreement, in each case including all accessions and additions to, substitutions for and replacements, products and proceeds of any or all of the foregoing.

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9.3 Covenants.

(a) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement, including, but not limited to, all payments from Borrower due under each Interest Rate Swap Agreement. All amounts paid by the Counterparty under the Interest Rate Protection Agreement to Borrower or Lender shall be deposited immediately into the Holding Account pursuant to Section 3.1. Subject to terms hereof, provided no Event of Default has occurred and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and to control the prosecution of all claims with respect to, the Interest Rate Protection Agreement and the other Rate Protection Collateral. Borrower shall take all actions reasonably requested by Lender to enforce Borrower’s rights under the Interest Rate Protection Agreement in the event of a default by the Counterparty thereunder and shall not waive, amend or otherwise modify any of its rights thereunder.

(b) Borrower shall defend Lender’s right, title and interest in and to the Rate Protection Collateral pledged by Borrower pursuant hereto or in which it has granted a security interest pursuant hereto against the claims and demands of all other Persons.

(c) In the event of any downgrade, withdrawal or qualification of the rating of the Counterparty such that it ceases to qualify as an “Approved Counterparty,” unless the Counterparty shall have posted collateral on terms acceptable to each Rating Agency, or in the event of any default by any Counterparty under the Interest Rate Protection Agreement, Borrower shall replace the Interest Rate Protection Agreement with a Replacement Interest Rate Protection Agreement from an Approved Counterparty not later than ten (10) Business Days following receipt of notice from Lender, Servicer or any other Person of such downgrade, withdrawal or qualification. In the event that the Counterparty is downgraded below A- by S&P, a Replacement Interest Rate Protection Agreement shall be required regardless of the posting of collateral.

(d) In the event that Borrower fails to purchase and deliver to Lender the Interest Rate Protection Agreement as and when required hereunder, Lender may upon written notice to Borrower purchase the Interest Rate Protection Agreement and the actual cost incurred by Lender in purchasing the Interest Rate Protection Agreement shall upon written demand be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender and demand made until such cost is paid by Borrower to Lender.

(e) Borrower shall not sell, assign, or otherwise dispose of, or mortgage, pledge or grant a security interest in, any of the Rate Protection Collateral or any interest therein, and any sale, assignment, mortgage, pledge or security interest whatsoever made in violation of this covenant shall be a nullity and of no force and effect, and upon demand of Lender, shall forthwith be cancelled or satisfied by an appropriate instrument in writing.

(f) Borrower shall not (i) without the prior written consent of Lender modify, amend or supplement the terms of the Interest Rate Protection Agreement, (ii) without the prior written consent of Lender, except in accordance with the terms of the Interest Rate Protection Agreement, cause the termination of the Interest Rate Protection Agreement prior to its stated maturity date, (iii) without the prior written consent of Lender, except as aforesaid, waive or

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release any obligation of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) under the Interest Rate Protection Agreement, (iv) without the prior written consent of Lender, consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Agreement, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Protection Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment or (vii) fail to give prompt notice to Lender of any notice of default given by or to Borrower under or with respect to the Interest Rate Protection Agreement, together with a complete copy of such notice. If Borrower shall have received written notice that the Securitization shall have occurred, no consent by Lender provided for in this Section 9.3 (f) shall be given by Lender unless Lender shall have received a Rating Agency Confirmation.

(g) In connection with an Interest Rate Protection Agreement, Borrower shall obtain and deliver to Lender an Opinion of Counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Lender and its successors and assigns may rely (the “Counterparty Opinion”), under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, in a form approved by the Lender.

9.4 Powers of Borrower Prior to an Event of Default. Subject to the provisions of Section 9.3(a), provided no Event of Default has occurred and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and to control the prosecution of all claims with respect to, the Interest Rate Protection Agreement and the other Rate Protection Collateral.

9.5 Representations and Warranties. Borrower hereby covenants with, and represents and warrants as of the Closing Date (and, with respect to the amendment to the Interest Rate Cap Agreement, as of the Amendment Effective Date) to, Lender as follows:

(a) The Interest Rate Protection Agreement (including the Interest Rate Cap Agreement, as amended) constitutes the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws generally affecting the enforcement of creditors’ rights and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(b) The Rate Protection Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and Borrower has the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect.

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(c) The Rate Protection Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by Borrower for the consummation of the transactions contemplated by the Interest Rate Protection Agreement (including the Interest Rate Cap Agreement, as amended) and this Article IX have been obtained.

(d) Giving effect to the aforesaid grant and assignment to Lender, Lender has, as of the date of this Agreement, and as to Rate Protection Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Protection Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of Lender in the proceeds of Rate Protection Collateral consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except if, and to the extent, the provisions of Section 9-306 of the UCC shall be complied with.

(e) Except for financing statements filed or to be filed in favor of Lender as secured party, there are no financing statements under the UCC covering any or all of the Rate Protection Collateral and Borrower shall not, without the prior written consent of Lender, until payment in full of all of the Indebtedness and the Obligations, execute and file in any public office, any enforceable financing statement or statements covering any or all of the Rate Protection Collateral, except financing statements filed or to be filed in favor of Lender as secured party.

9.6 Payments. If Borrower at any time shall be entitled to receive any payments with respect to the Interest Rate Protection Agreement, such amounts shall, immediately upon becoming payable to Borrower, be deposited by Counterparty into the Holding Account.

9.7 Remedies. Subject to the provisions of the Interest Rate Protection Agreement, if an Event of Default shall occur and then be continuing:

(a) Lender, without obligation to resort to any other security, right or remedy granted under any other agreement or instrument, shall have the right to, in addition to all rights, powers and remedies of a secured party pursuant to the UCC (all of which Lender may exercise), at any time and from time to time, sell, resell, assign and deliver, in its sole discretion, any or all of the Rate Protection Collateral (in one or more parcels and at the same or different times) and all right, title and interest, claim and demand therein and right of redemption thereof, at public or private sale, for cash, upon credit or for future delivery, and in connection therewith Lender may grant options and may impose reasonable conditions such as requiring any purchaser to represent that any “securities” constituting any part of the Rate Protection Collateral are being purchased for investment only, Borrower hereby waiving and releasing any and all equity or right of redemption to the fullest extent permitted by the UCC or applicable law. If all or any of the Rate Protection Collateral is sold by Lender upon credit or for future delivery, Lender shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, Lender may resell such Rate Protection Collateral. It is expressly agreed that Lender may exercise its rights with respect to less than all of the Rate Protection Collateral, leaving unexercised its rights with respect to the remainder of the Rate Protection Collateral, provided, however, that such partial exercise shall in no way restrict or jeopardize Lender’s right to exercise its rights with respect to all or any other portion of the Rate Protection Collateral at a later time or times.

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(b) Lender may exercise, either by itself or by its nominee or designee, in the name of Borrower, all of Lender’s rights, powers and remedies in respect of the Rate Protection Collateral, hereunder and under law.

(c) Borrower hereby irrevocably, in the name of Borrower or otherwise, authorizes and empowers Lender and assigns and transfers unto Lender, and constitutes and appoints Lender its true and lawful attorney-in-fact, and as its agent, irrevocably, with full power of substitution for Borrower and in the name of Borrower, (i) to exercise and enforce every right, power, remedy, authority, option and privilege of Borrower under the Interest Rate Protection Agreement, including any power to subordinate or modify the Interest Rate Protection Agreement (but not, unless an Event of Default exists and is continuing, the right to terminate or cancel the Interest Rate Cap Agreement), or to give any notices, or to take any action resulting in such subordination, termination, cancellation or modification and (ii) in order to more fully vest in Lender the rights and remedies provided for herein, to exercise all of the rights, remedies and powers granted to Lender in this Agreement, and Borrower further authorizes and empowers Lender, as Borrower’s attorney-in-fact, and as its agent, irrevocably, with full power of substitution for Borrower and in the name of Borrower, to give any authorization, to furnish any information, to make any demands, to execute any instruments and to take any and all other action on behalf of and in the name of Borrower which in the opinion of Lender may be necessary or appropriate to be given, furnished, made, exercised or taken under the Interest Rate Cap Agreement, in order to comply therewith, to perform the conditions thereof or to prevent or remedy any default by Borrower thereunder or to enforce any of the rights of Borrower thereunder. These powers-of-attorney are irrevocable and coupled with an interest, and any similar or dissimilar powers heretofore given by Borrower in respect of the Rate Protection Collateral to any other Person are hereby revoked.

(d) Lender may, without notice to, or assent by, Borrower or any other Person (to the extent permitted by law), but without affecting any of the Obligations, in the name of Borrower or in the name of Lender, notify the Counterparty, or if applicable, any other counterparty to the Interest Rate Protection Agreement, to make payment and performance directly to Lender; extend the time of payment and performance of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any obligations owing to Borrower, or claims of Borrower, under the Interest Rate Protection Agreement; file any claims, commence, maintain or discontinue any actions, suits or other proceedings deemed by Lender necessary or advisable for the purpose of collecting upon or enforcing the Interest Rate Protection Agreement; and execute any instrument and do all other things deemed necessary and proper by Lender to protect and preserve and realize upon the Rate Protection Collateral and the other rights contemplated hereby.

(e) Pursuant to the powers-of-attorney provided for above, Lender may take any action and exercise and execute any instrument which it may deem necessary or advisable to accomplish the purposes hereof; provided, however, that Lender shall not be permitted to take any action pursuant to said power-of-attorney that would conflict with any limitation on Lender’s rights with respect to the Rate Protection Collateral. Without limiting the generality of the foregoing, Lender, after the occurrence of an Event of Default, shall have the right and power to receive, endorse and collect all checks and other orders for the payment of money made payable to Borrower representing: (i) any payment of obligations owed pursuant to the Interest Rate

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Protection Agreement, (ii) interest accruing on any of the Rate Protection Collateral or (iii) any other payment or distribution payable in respect of the Rate Protection Collateral or any part thereof, and for and in the name, place and stead of Borrower, to execute endorsements, assignments or other instruments of conveyance or transfer in respect of any property which is or may become a part of the Rate Protection Collateral hereunder.

(f) Without limiting any other provision of this Agreement or any of Borrower’s rights hereunder, and without waiving or releasing Borrower from any obligation or default hereunder, Lender shall have the right, but not the obligation, to perform any act or take any appropriate action, as it, in its reasonable judgment, may deem necessary to protect Lender’s security interest in the Rate Protection Collateral created pursuant to this Agreement, to cure such Event of Default or to cause any term, covenant, condition or obligation required under this Agreement or the Interest Rate Protection Agreement to be performed or observed by Borrower to be promptly performed or observed on behalf of Borrower. All amounts advanced by, or on behalf of, Lender in exercising its rights under this Section 9.7(g) (including, but not limited to, reasonable legal expenses and disbursements incurred in connection therewith), together with interest thereon at the Default Rate from the date of each such advance, shall be payable by Borrower to Lender upon demand and shall be secured by this Agreement.

9.8 Sales of Rate Protection Collateral. No demand, advertisement or notice, all of which are, to the fullest extent permitted by law, hereby expressly waived by Borrower, shall be required in connection with any sale or other disposition of all or any part of the Rate Protection Collateral following and during the continuance of an Event of Default, except that Lender shall give Borrower at least thirty (30) Business Days’ prior written notice of the time and place of any public sale or of the time when and the place where any private sale or other disposition is to be made, which notice Borrower hereby agrees is reasonable, all other demands, advertisements and notices being hereby waived. To the extent permitted by law, Lender shall not be obligated to make any sale of the Rate Protection Collateral if it shall determine not to do so, regardless of the fact that notice of sale may have been given, and Lender may without notice or publication adjourn any public or private sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each private sale of the Rate Protection Collateral of a type customarily sold in a recognized market and upon each public sale, unless prohibited by any applicable statute which cannot be waived, Lender (or its nominee or designee) may purchase any or all of the Rate Protection Collateral being sold, free and discharged from any trusts, claims, equity or right of redemption of Borrower, all of which are hereby waived and released to the extent permitted by law, and may make payment therefor by credit against any of the Indebtedness or Obligations in lieu of cash or any other obligations. In the case of all sales of the Rate Protection Collateral, public or private, Borrower shall pay all reasonable out-of-pocket costs and expenses of every kind for sale or delivery, including brokers’ and attorneys’ fees and disbursements and any tax imposed thereon. However, the proceeds of sale of Rate Protection Collateral shall be available to cover such costs and expenses, and, after deducting such costs and expenses from the proceeds of sale, Lender shall apply any residue to the payment of any interest and/or principal of the Loan and/or any other amounts due under the Loan Documents or the Interest Rate Swap Agreement in such order, priority, or proportions as Lender in its sole discretion shall determine.

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9.9 Public Sales Not Possible. Borrower acknowledges that the terms of the Interest Rate Protection Agreement may prohibit public sales, that the Rate Protection Collateral may not be of the type appropriately sold at public sales, and that such sales may be prohibited by law. As a result, Borrower agrees that private sales of the Rate Protection Collateral shall not be deemed to have been made in a commercially unreasonable manner by mere virtue of having been made privately.

9.10 Receipt of Sale Proceeds. Upon any sale of the Rate Protection Collateral by Lender hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise), the receipt by Lender or the officer making the sale of the proceeds of such sale shall be a sufficient discharge to the purchaser or purchasers of the Rate Protection Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to Lender or such officer or be answerable in any way for the misapplication or non-application thereof.

9.11 Replacement Interest Rate Protection Agreement. If, in connection with Borrower’s exercise of any extension option pursuant to Section 5 of the Notes, Borrower delivers a Replacement Interest Rate Protection Agreement, all the provisions of this Article IX applicable to the Interest Rate Protection Agreement delivered on the Closing Date (as amended by the amendment to the Interest Rate Cap Agreement delivered as of the Amendment Effective Date) shall be applicable to the Replacement Interest Rate Protection Agreement.

9.12 Swap Gain. Any Swap Gain, including Swap Gain in connection with a prepayment of the Loan pursuant to Section 2.3, shall be held by Lender as additional collateral for the Loan or, upon the written request of Borrower, applied by Lender as a voluntary prepayment of the outstanding Principal Amount of the Loan, together with the applicable Prepayment Fee and Swap Breakage due thereon, if any.

9.13 Prepayment of Interest Rate Swap Notional Amount. Simultaneously with any full or partial prepayment in respect of the Rate Swap Notional Amount, Borrower shall cause an equivalent portion of the notional amount of Interest Rate Swap Agreement to be terminated.

X. MAINTENANCE OF PROPERTY; ALTERATIONS

10.1 Maintenance of Property. Borrower shall keep and maintain, or cause to be kept and maintained, the Property and every part thereof in good condition and repair, subject to ordinary wear and tear, and, subject to Excusable Delays and the provisions of this Agreement with respect to damage or destruction caused by casualty events or Takings, shall not permit or commit any waste of any portion of the Property in any material respect. Borrower shall not remove or demolish any Improvement on the Property except as the same may be necessary in connection with an Alteration or a restoration in connection with a Taking or casualty, or as otherwise permitted herein, in each case in accordance with the terms and conditions hereof. Without limiting the foregoing, within one (1) year of the Closing Date, Borrower shall, or shall cause Master Lessee, to complete the items of deferred maintenance and environmental remediation identified on Schedule III attached hereto.

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10.2 Conditions to Alteration. Provided that no Noticed Default or Event of Default shall have occurred and be continuing hereunder, and that Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default on Event of Default exists, Borrower and Master Lessee shall have the right, without Lender’s consent, to undertake any alteration, improvement, demolition or removal of the Property or any portion thereof (any such alteration, improvement, demolition or removal, an “Alteration”) so long as (i) Borrower provides Lender with not less than ten (10) Business Days prior written notice of any Material Alteration, and (ii) such Alteration is undertaken in accordance with the applicable provisions of the Master Lease, this Agreement and the other Loan Documents and in compliance with all applicable Legal Requirements, is not prohibited by any relevant Operating Agreements and shall not, upon completion (giving credit to rent and other charges attributable to Subleases executed upon such completion), have a Material Adverse Effect on the value, use or operation of the Property taken as a whole or otherwise. Any Material Alteration shall be conducted under the supervision of an Architect and, in connection with any Material Alteration, Borrower shall deliver to Lender concurrently with the notice of such Material Alteration, for information purposes only and not for approval by Lender, detailed plans and specifications, cost estimates therefor as set forth in an Officer’s Certificate, and an estimated date of completion therefore, which date shall be not later than the date which is six (6) months prior to the Maturity Date (unless otherwise consented to in writing by Lender, which consent shall not be unreasonably withheld, conditioned or delayed), all prepared and approved by such Architect. Such plans and specifications may be revised at any time and from time to time by such Architect provided that material revisions of such plans and specifications are filed with Lender, for information purposes only. All work done in connection with any Alteration shall be performed with due diligence in a good and workmanlike manner, all materials used in connection with any Alteration shall not be less than the standard of quality of the materials currently used at the applicable Individual Property and all materials used shall be in accordance with all applicable Legal Requirements and Insurance Requirements. The cost of any Alteration shall be promptly and fully paid for, subject to a five percent (5%) retainage, provided that such retainage shall not be required if such Alteration is being performed by Master Lessee, an Affiliate of Borrower, or an Affiliate of Master Lessee. Notwithstanding anything to the contrary contained in this Section 10.2, Borrower shall obtain Lender’s prior written approval (which approval shall not be unreasonably withheld, conditioned or delayed so long as no Noticed Default or Event of Default shall then exist, and so long as Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default or Event of Default exists, and shall be deemed given unless Lender shall give notice of its disapproval with the reasons therefor within ten (10) Business Days after Lender’s receipt of the notice of Material Alteration described in clause (i) of this Section 10.2 above) for any Material Alteration if (x) an 80% Trigger Approval Period shall then be in effect or existence, or (y) such proposed Material Alteration is reasonably likely to result in more than a ten percent (10%) reduction in the pro forma LCR during the twelve (12) months following the commencement of such proposed Material Alteration.

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that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Borrower unless Borrower shall have delivered to Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Borrower shall deliver to Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Borrower may be entitled to withdraw pursuant to Section 6.2 and which are held by Lender in accordance with Section 6.2. Payment or reimbursement of Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Section 6.2.

Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Borrower (or if a Letter of Credit originally shall have been deposited, returned to Borrower upon the substitution of a Letter of Credit in a lesser amount) as Borrower shall provide written evidence, in form reasonably satisfactory to Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Lender, free and clear of Liens, other than Permitted Encumbrances.

XI. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION

11.1 Books and Records. Borrower shall keep and maintain on a Fiscal Year basis proper books and records separate from any other Person, in which accurate and complete entries shall be made of all dealings or transactions of or in relation to the Notes, the Property and the business and affairs of Borrower relating to the Property which shall reflect all items of income and expense in connection with the operation of the Property and in connection with any services, equipment or furnishings provided in connection with the operation of the Property, in accordance with GAAP. Subject to Section 11.2.9, Lender and its authorized representatives shall have the right at reasonable times and upon reasonable notice to examine the books and records of Borrower relating to the operation of the Property and to make such copies or extracts thereof as Lender may reasonably require.

11.2 Financial Statements.

11.2.1 Monthly Reports. Commencing in November 2007, not later than thirty (30) days following the end of each calendar month (or, with respect to calendar months that end on the

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last day of a Fiscal Quarter, concurrently with the delivery of the applicable quarterly reports pursuant to Section 11.2.2), Borrower shall cause Master Lessee, pursuant to the Master Lease, to deliver to Lender monthly revenue reports in respect of the Property for such month, for the corresponding month of the previous Fiscal Year and for the year to date, and financial statements, internally prepared on an accrual basis for such month, reporting Portfolio Four-Wall EBITDAR as of the end of such month, for the corresponding month of the previous Fiscal Year and for the year to date, and a comparison of the year to date results with (i) the results for the same period of the previous year and (ii) the Annual Budget for such period and the Fiscal Year, and a calculation of the LCR, LTV Ratio, Master Lease Variable Additional Rent and Master Lease Recurrent Additional Rent for such period. Such statements for each month shall: (A) fairly represent the financial condition and results of operations of Master Lessee and (B) be accompanied by an Officer’s Certificate and a Master Lessee Officer’s Certificate certifying to the best of the signer’s knowledge, (1) that the requirements in clause (A) above have been satisfied; and (2) that as of the date of such Officer’s Certificate, no Event of Default exists under this Agreement, the Notes or any other Loan Document or, if so, specifying the nature and status of each such Event of Default and the action then being taken by Borrower or proposed to be taken to remedy such Event of Default. Such financial statements shall contain such other information as shall be reasonably requested by Lender for purposes of calculations to be made by Lender pursuant to the terms hereof. Notwithstanding the foregoing, Borrower shall deliver promptly to Lender reports detailing any non recurring charges of Borrower or Master Lessee including, among other things, any charges assessed under any Operating Agreement. Subject to Section 11.2.9(b), revenue reports and Portfolio Four-Wall EBITDAR shall each be prepared on an aggregate basis for all of the Individual Properties.

11.2.2 Quarterly Reports. Commencing not later than forty-five (45) days following the end of each Fiscal Quarter (commencing with the Fiscal Quarter ending December 31 2007), Borrower shall cause Master Lessee, pursuant to the Master Lease, to deliver to Lender quarterly revenue reports in respect of the Property and unaudited financial statements, internally prepared on an accrual basis, reporting Portfolio Four-Wall EBITDAR as of the end of such Fiscal Quarter and for the corresponding Fiscal Quarter of the previous year, including a statement of net income (in respect of the Property) for the year to date and a statement of revenues and expenses for such Fiscal Quarter, and a comparison of the year to date results with (i) the results for the same period of the previous year and (ii) the Annual Budget for such period and the Fiscal Year, and a calculation of the LCR, LTV Ratio, Master Lease Variable Additional Rent and Master Lease Recurrent Additional Rent for such period. Such statements for each Fiscal Quarter shall: (A) fairly represent the financial condition and results of operations of Master Lessee and (B) be accompanied by an Officer’s Certificate and a Master Lessee Officer’s Certificate certifying to the best of the signer’s knowledge, (1) that the requirements in clause (A) above have been satisfied; (2) that as of the date of such Officer’s Certificate, no Event of Default exists under this Agreement, the Notes or any other Loan Document or, if so, specifying the nature and status of each such Event of Default and the action then being taken by Borrower or proposed to be taken to remedy such Event of Default, and (3) that as of the date of each Officer’s Certificate, no litigation exists involving Borrower, Master Lessee or the Property in which the amount involved is $5,000,000 (in the aggregate) or more or in which all or substantially all of the potential liability is not covered by insurance, or, if so, specifying such litigation and the actions being taken in relation thereto. Such financial statements shall contain such other information as shall

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be reasonably requested by Lender for purposes of calculations to be made by Lender pursuant to the terms hereof.

11.2.3 Annual Reports. Not later than one-hundred twenty (120) days after the end of each Fiscal Year of Borrower’s operations (commencing with the Fiscal Year ending December 31, 2007), Borrower shall cause Master Lessee, pursuant to the Master Lease, to deliver to Lender annual revenue reports in respect of the Property, audited financial statements for Master Lessee certified by an Independent Accountant in accordance with GAAP which shall contain unaudited schedules as follows: a statement of Master Lessee’s net income for the Fiscal Year and for the fourth Fiscal Quarter thereof and a statement of Master Lessee’s revenues and expenses for such year, and stating in comparative form the figures for the previous Fiscal Year, and a calculation of the LCR, LTV Ratio, Master Lease Variable Additional Rent and Master Lease Recurrent Additional Rent for such period. Such annual financial statements shall: (A) fairly represent the financial condition and results of operations of Master Lessee and (B) be accompanied by a Master Lessee Officer’s Certificate in the form required pursuant to Section 11.2.1 and a schedule which reflects the amount by which actual operating expenses were greater than or less than operating expenses anticipated in the applicable Annual Budget.

11.2.4 Disclosure Restrictions. Notwithstanding anything to the contrary contained in this Article XI, unless such information is otherwise disclosed publicly by Borrower, Borrower shall not be required to deliver financial information hereunder to Lender to the limited extent and only during any such period that any applicable federal or state securities laws or regulations promulgated thereunder (a) expressly prohibit such delivery or (b) permit such delivery to be made to Lender only when also disclosed publicly.

11.2.5 Capital Expenditures Summaries. Borrower shall, or shall cause Master Lessee to, within ninety (90) days after the end of each calendar year during the term of the Notes, deliver to Lender an annual summary of any and all capital expenditures made at the Property during the prior twelve (12) month period.

11.2.6 Master Lease. Without duplication of any other provision of this Agreement or any other Loan Documents, Borrower shall deliver to Lender, within ten (10) Business Days of the receipt thereof by Borrower, a copy of all reports prepared by Master Lessee pursuant to the Master Lease, including, without limitation, the Annual Budget and any inspection reports.

11.2.7 Annual Budget; Operating Agreement Annual Budgets.

(a) Borrower shall or shall cause Master Lessee to deliver to Lender the Annual Budget for Lender’s review, but not approval, prior to the expiration of each Fiscal Year. Any proposed modifications to such Annual Budget shall be delivered to Lender for its review, but not approval. Notwithstanding the foregoing, while an 80% Trigger Approval Period shall exist, Lender shall have the right to approve all aspects of the Annual Budget relating to expenditures for FF&E, which approval shall not be unreasonably withheld, delayed or conditioned.

(b) Borrower shall or shall cause Master Lessee to deliver to Lender the Annual Budget and any modifications thereto under any Operating Agreement for Lender’s review, but not approval, prior to Borrower’s or Master Lessee’s approval of any such annual budget or

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modification. Notwithstanding the foregoing, upon the occurrence and during the continuation of an Event of Default and if there is a Master Lease Tenant Default, Lender shall have the right to exercise any right of approval that Borrower may have to approve the annual budgets and any amendments thereto under any Operating Agreements subject to any constraints in the Operating Agreement in question, in its sole and absolute discretion.

11.2.8 Other Information. Borrower shall, promptly after written request by Lender or, if a Securitization shall have occurred, the Rating Agencies, furnish or cause to be furnished to Lender, in such manner and in such detail as may be reasonably requested by Lender, such reasonable additional information as may be reasonably requested with respect to the Property, Borrower, Master Lessee or any Guarantor.

11.2.9 Proprietary Information.

(a) The Lender shall keep confidential all revenue reports and any other proprietary information delivered to Lender pursuant to this Agreement, (provided any such other proprietary information is clearly marked by Borrower as confidential) (collectively, “Proprietary Information”), including specifically, but not limited to, any financial information provided pursuant to this Article XI and any information provided in connection with a securitization pursuant to Article XIV. Notwithstanding the foregoing, Lender shall be permitted to freely deliver Proprietary Information to Rating Agencies, Servicer and Securitization trustees, to prospective participants and purchasers of the Loan and interests therein other than the Proscribed Assignee and to prospective holders of securities backed by the Loan other than the Proscribed Assignee, and to its and their respective agents and representatives provided that Lender shall inform such parties of the confidential nature of such information.

(b) Notwithstanding anything to the contrary contained herein, Borrower shall not identify any specific property to which any Proprietary Information relates (“Asset-Specific Proprietary Information”) (and shall not be required to permit inspection of Property-specific information contained in its books and records) unless requested by holders or prospective holders of (a) the Mezzanine Loan or any interest therein or (b) the unrated or lower-rated securities backed by the Loan (collectively, “Requesting Parties”). Lender shall be permitted to deliver Asset-Specific Proprietary Information to Requesting Parties that request such information (and such Requesting Parties shall be permitted to inspect Property-specific information contained in Borrower’s books and records), provided that each such Person (i) executes a commercially reasonable confidentiality agreement with respect to such information for the benefit of Borrower and Master Lessee and (ii) is not the Proscribed Assignee.

XII. ENVIRONMENTAL MATTERS

12.1 Representations. Borrower hereby represents and warrants, as of the Closing Date, that except as set forth in the environmental reports and studies delivered to Lender prior to the Closing Date (the “Environmental Reports”) or as would not reasonably be expected to have a Material Adverse Effect, (i) Borrower has not engaged in or, to the Borrower’s knowledge, permitted any operations or activities upon, or any use or occupancy of the Property, or any portion thereof, for the purpose of or in any way involving the handling, manufacture, treatment,

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storage, use, generation, release, discharge, refining, dumping or disposal of any Hazardous Materials on, under, in or about the Property, or transported any Hazardous Materials to, from or across the Property, except in all cases in compliance with Environmental Laws; (ii) to Borrower’s knowledge, no tenant, occupant or user of the Property, or any other Person, has engaged in or permitted any operations or activities upon, or any use or occupancy of the Property, or any portion thereof, for the purpose of or in any material way involving the handling, manufacture, treatment, storage, use, generation, release, discharge, refining, dumping or disposal of any Hazardous Materials on, in or about the Property, or transported any Hazardous Materials to, from or across the Property, except in all cases in compliance with Environmental Laws; (iii) to the Borrower’s knowledge, no Hazardous Materials are presently constructed, deposited, stored, or otherwise located on, under, in or about the Property except in compliance with Environmental Laws; (iv) to the best of Borrower’s knowledge, no Hazardous Materials have migrated from the Property upon or beneath other properties which would reasonably be expected to result in material liability for Borrower; and (v) to the Borrower’s knowledge, no Hazardous Materials have migrated or threaten to migrate from other properties upon, about or beneath the Property which would reasonably be expected to result in material liability for Borrower.

12.2 Covenants.

12.2.1 Compliance with Environmental Laws. Subject to Borrower’s right to contest under Section 7.3, Borrower covenants and agrees with Lender that it shall, and shall cause the Property to, comply with all Environmental Laws, except for any such non-compliance that would not reasonably be expected to have a Material Adverse Effect. If the Security Instruments are foreclosed, Borrower shall deliver the Property in compliance with all applicable Environmental Laws.

12.2.2 Notices Regarding Environmental Events. If at any time during the continuance of the Lien of the Security Instruments, a Governmental Authority having jurisdiction over the Property requires, in writing, remedial action to correct the presence of Hazardous Materials in, around, or under the Property (an “Environmental Event”), Borrower shall deliver prompt notice of the occurrence of such Environmental Event to Lender. Within thirty (30) days after Borrower has knowledge of the occurrence of an Environmental Event, Borrower shall deliver to Lender an Officer’s Certificate (an “Environmental Certificate”) explaining the Environmental Event in reasonable detail and setting forth the proposed remedial action, if any.

12.2.3 Other Notices. Borrower shall promptly provide Lender with copies of all written notices which allege or identify any actual or potential violation or noncompliance received by or prepared by or for Borrower in connection with any Environmental Law. For purposes of this paragraph, the term “notice” shall mean any summons, citation, directive, order, claim, pleading, letter, application, filing, report, findings, declarations or other written materials pertinent to compliance of the Property and Borrower with such Environmental Laws.

12.3 Environmental Reports. Upon the occurrence and during the continuance of an Environmental Event with respect to the Property or any Event of Default, Lender shall have the right to have its consultants perform an environmental audit of the Property. Such audit shall be conducted by an environmental consultant chosen by Lender and may include a visual survey, a

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non-privileged record review, an area reconnaissance assessing the presence of hazardous or toxic waste or substances, PCBs or storage tanks at the Property, an asbestos survey of the Property, which may include random sampling of the Improvements and air quality testing, and such further site assessments as Lender may reasonably require due to the results obtained from the foregoing, provided that if such audit shall be undertaken with respect to an Environmental Event, such audit shall be limited to a scope reasonably necessary to assess the subject matter of the Environmental Event. Subject to applicable Gaming Laws, Borrower grants Lender, its agents, consultants and contractors the right to enter the Property as reasonable or appropriate for the circumstances, during normal business hours on Business Days upon reasonable advance written notice, for the purposes of performing such studies and the reasonable cost of such studies shall be due and payable by Borrower to Lender upon demand and shall be secured by the Lien of the Security Instruments. Lender shall not unreasonably interfere with, and Lender shall direct the environmental consultant to use its commercially reasonable efforts not to hinder, Borrower’s, Master Lessee’s or any Tenant’s or other occupant’s operations upon the Property when conducting such audit, sampling or inspections. By undertaking any of the measures identified in and pursuant to this Section 12.3, Lender shall not be deemed to be exercising any control over the operations of Borrower or the handling of any environmental matter or hazardous wastes or substances of Borrower for purposes of incurring or being subject to liability therefor.

12.4 Environmental Indemnification. Borrower, at its sole cost and expense, shall protect, indemnify, save, defend (at trial and at appellate levels and with attorneys, consultants and experts selected by Borrower and reasonably acceptable to Indemnified Parties), and hold harmless the Indemnified Parties from and against any and all liability, loss, lien, damage, obligations, settlement payments, penalties, assessments, citations, directives, litigation, actions, demands, defenses, proceedings, causes of action, costs, disbursements, or expenses of any kind or of any nature whatsoever (including, without limitation, but subject to the provisions hereof, reasonable attorneys’, consultants’ and experts’ fees and disbursements reasonably incurred in investigating, defending against, settling or prosecuting any claim, litigation or proceeding) and any and all claims, suits and judgments which may at any time be imposed upon, incurred by or asserted or awarded against any Indemnified Party or any Individual Property, as a result of or with respect to or arising from or out of: (a) any Environmental Claim relating to or arising from the Property; (b) the violation of any Environmental Law in connection with the Property; (c) any actual or threatened release, spill, or the presence of any Hazardous Materials affecting the Property; (d) the presence at, in, on or under, or the release, escape, seepage, leakage, discharge or migration at or from, the Property of any Hazardous Materials, whether or not such condition was known or unknown to Borrower; (e) the actual or threatened presence, release, seepage, leakage, discharge or migration of Hazardous Materials at any other location if the Hazardous Materials were generated, treated, stored, transported or disposed of by or on behalf of the Borrower; (f) the failure of Borrower to comply fully with the terms and conditions of this Article XII; or (g) the enforcement of this Article XII, including, without limitation, (i) the reasonable costs of assessment, containment and/or removal of any and all Hazardous Materials from all or any portion of any Individual Property, any adjacent areas, (ii) the costs of any actions taken in response to an actual or threatened release, escape, seepage, leakage, discharge, migration or presence of any Hazardous Materials on, in, under or affecting all or any portion of any Individual Property, any adjacent areas, or any other areas to prevent or minimize such actual or threatened release, escape, seepage, leakage, discharge, migration or presence of any

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Hazardous Materials so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and (iii) costs incurred to comply with the Environmental Laws in connection with all or any portion of any Individual Property, any adjacent areas, or any other areas for violations; provided that, in each case, Borrower shall be relieved of its obligation under this subsection if any of the matters referred to in clauses (a) through (g) above did not occur (but need not have been discovered) prior to (1) the foreclosure of the Security Instruments, (2) the delivery by Borrower to Lender or its designee of a deed-in-lieu of foreclosure with respect to the Property, or (3) Lender’s or its designee’s taking possession and control of the Property after the occurrence of an Event of Default hereunder. If any such action or other proceeding shall be brought against Lender, upon written notice from Borrower to Lender (given reasonably promptly following Lender’s notice to Borrower of such action or proceeding), Borrower shall be entitled to assume the defense thereof, at Borrower’s expense, with counsel reasonably acceptable to Lender; provided, however, Lender may, at its own expense, retain separate counsel to participate in such defense, but such participation shall not be deemed to give Lender a right to control such defense, which right Borrower expressly retains. Notwithstanding the foregoing, each Indemnified Party shall have the right to employ separate counsel at Borrower’s expense if, in the reasonable opinion of legal counsel, a conflict or potential conflict exists between the Indemnified Party and Borrower that would make such separate representation advisable. Borrower shall have no obligation under this Section 12.4 to indemnify an Indemnified Party for any liability, loss, lien, damage, obligations, settlement payments, penalties, assessments, citations, directives, litigation, actions, demands, defenses, proceedings, causes of action, costs, disbursements, or expenses of any kind or of any nature whatsoever (including, without limitation, but subject to the provisions hereof, reasonable attorneys’, consultants’ and experts’ fees and disbursements reasonably incurred in investigating, defending against, settling or prosecuting any claim, litigation or proceeding) and any and all claims, suits and judgments resulting from any Indemnified Party’s gross negligence or willful misconduct.

12.5 Recourse Nature of Certain Indemnifications. Notwithstanding anything to the contrary provided in this Agreement or in any other Loan Document, the indemnification provided in Section 12.4 shall be fully recourse to Borrower and shall be independent of, and shall survive, the discharge of the Indebtedness, the release of the Liens created by the Security Instruments, and/or the conveyance of title to the Property to Lender or any purchaser or designee in connection with a foreclosure of the Security Instruments or conveyance in lieu of foreclosure.

XIII. THE OPERATING AGREEMENTS

13.1 Operating Agreement Representations, Warranties. Borrower hereby represents and warrants as of the Closing Date (and, solely with respect to the Master Lease, the Individual Property Subleases and the Ground Leases, as of the Amendment Effective Date) as follows:

(a) the Operating Agreements to which Borrower or any Borrower Party or Master Lessee is a party or is bound are, or will be as of the Closing Date, in full force and effect, and have not been amended, restated, modified, supplemented, replaced or assigned except as indicated on the applicable schedule attached hereto or the Security Instruments and Borrower has not waived, canceled or surrendered any of its rights thereunder;

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(b) none of the Contemplated Transactions in any case: (1) requires the consent or approval of or notice to any party to any Operating Agreement, other than consents obtained prior to the Closing Date and notices delivered prior to or on the Closing Date or (2) will constitute a default under any Operating Agreement that would have a Material Adverse Effect;

(c) none of the Operating Agreements requires the continued use of any Individual Property (i) under any designated trade name or (ii) for any single designated required use (other than use categories such as hotel and casino operations or similarly broad categories that would not have a Material Adverse Effect);

(d) all sums, charges, fees, costs, expenses, rent, additional rent, common charges, common area maintenance charges and other charges or assessments reserved in or payable under the Operating Agreements, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities, are current (except for any of the same which are being contested in accordance with Section 7.3), and no Lien (other than the Existing Matters of Record) with respect thereto has attached on any Individual Property (or threat thereof been made in writing) for failure to pay any of the foregoing;

(e) Borrower has not delivered or received any notices of default under any of the Operating Agreements and is not in default under any material terms of any of the Operating Agreements, except as to the extent that such default would not reasonably be expected to result in a Material Adverse Effect;

(f) To the best of Borrower’s knowledge, no Fee Owner or other party to any Operating Agreement is in default under any of the terms of any of the Operating Agreements and there are no circumstances which, with the passage of time or the giving of notice, or both, would constitute a default under any terms of any of the Operating Agreements by any such Fee Owner or other party that would have a Material Adverse Effect;

(g) Borrower has delivered to Lender a true, accurate and complete copy of each of the Operating Agreements;

(h) All construction obligations of Borrower under all Operating Agreements have been satisfied in all material respects; and

(i) To the best of Borrower’s knowledge, all easements granted pursuant to any Operating Agreement which were to have survived the site preparation and completion of construction, remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise, except to the extent it would not be expected to result in a Material Adverse Effect.

13.2 Cure by Lender. In the event of a default by Borrower in the performance of any of its obligations under any Operating Agreement beyond any applicable notice and cure periods therein, including, without limitation, any default in the payment of any sums payable thereunder, then, in each and every such case, Lender may, at its option, cause the default or defaults to be remedied and otherwise exercise any and all rights of Borrower thereunder in the

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name of and on behalf of Borrower. Borrower shall, on demand, reimburse Lender for all advances made and reasonable out-of-pocket expenses incurred by Lender in curing any such default (including, without limitation, reasonable attorneys’ fees and disbursements), together with interest thereon computed at the Default Rate from the date that such advance is made to and including the date the same is paid to Lender.

13.3 Option to Renew or Extend the Ground Lease. Borrower shall give Lender written notice of its intention to exercise each and every option, if any, to renew or extend the term of any of the Ground Leases, at least thirty (30) days prior to the expiration of the time to exercise such option under the terms thereof. If required by Lender, Borrower shall duly exercise any renewal or extension option with respect to any of the Ground Leases if Lender reasonably determines that the exercise of such option is necessary to protect Lender’s security for the Loan. If Borrower intends to renew or extend the term of any of the Ground Leases, it shall deliver to Lender, with the notice of such decision, a copy of the notice of renewal or extension delivered to the applicable Fee Owner, together with the terms and conditions of such renewal or extension. If Borrower does not renew or extend the term of a Ground Lease, Lender may, at its option if Lender reasonably determines that the exercise of such option is necessary to protect Lender’s security for the Loan, exercise the option to renew or extend in the name of and on behalf of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of Borrower, all instruments and agreements necessary under the Ground Leases or otherwise to cause any renewal or extension of the Ground Leases in accordance with this Section 13.3.

13.4 Operating Agreement Covenants.

13.4.1 Waiver of Interest In New Ground Lease. In the event any of the Ground Leases shall be terminated by reason of a default thereunder by Borrower and Lender shall require that the related Fee Owner enter into a new ground lease, Borrower hereby waives any right, title and interest in and to such new ground lease or the leasehold estate created thereby, waiving all rights of redemption now or hereafter operable under any law.

13.4.2 No Election to Terminate. Borrower shall not elect to treat any of the Operating Agreements as terminated, canceled or surrendered pursuant to the applicable provisions of the Bankruptcy Code (including, without limitation, Section 365(h)(1) thereof) without Lender’s prior written consent in the event a bankruptcy of a Fee Owner or any other party to an Operating Agreement. In addition, to the extent not prohibited by applicable law, Borrower shall, in the event of a bankruptcy of Fee Owner or any other party to an Operating Agreement, reaffirm and ratify the legality, validity, binding effect and enforceability of such Operating Agreement and shall remain in possession of the Property, the Leasehold Estate and the other rights granted pursuant to the Operating Agreements, notwithstanding any rejection thereof by Fee Owner, any other party to any Operating Agreement, or any trustee, custodian or receiver.

13.4.3 Notice Prior to Rejection. Borrower shall give Lender not less than thirty (30) days prior written notice of the date on which Borrower shall apply to any court or other Governmental Authority for authority and permission to reject an Operating Agreement in the event that there shall be filed by or against Borrower any petition, action or proceeding under the Bankruptcy Code or under any other similar federal or state law now or hereafter in effect and if

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Borrower determines to reject an Operating Agreement. Lender shall have the right, but not the obligation, to serve upon Borrower within such thirty (30) day period a notice stating that (i) Lender demands that Borrower assume and assign such Operating Agreement to Lender subject to and in accordance with the Bankruptcy Code, and (ii) Lender covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults reasonably susceptible of being cured by Lender and of future performance under such Operating Agreement. If Lender serves upon Borrower the notice described above, Borrower shall not seek to reject such Operating Agreement and shall comply with the demand provided for in clause (i) above within fifteen (15) days after the notice shall have been given by Lender.

13.4.4 Lender Right to Perform. During the continuance of an Event of Default, Lender shall have the right, but not the obligation, (i) to perform and comply with all obligations of Borrower under the Operating Agreements without relying on any grace period provided therein, (ii) to do and take, without any obligation to do so, such actions as Lender deems necessary or desirable to prevent or cure any default by Borrower under the Operating Agreements, including, without limitation, any act, deed, matter or thing whatsoever that Borrower may do in order to cure a default under the Operating Agreements and (iii) subject to the terms of the Operating Agreements, to enter in and upon the Property or any part thereof to such extent and as often as Lender deems necessary or desirable in order to prevent or cure any default of Borrower under the Operating Agreements. Borrower shall, within five (5) Business Days after written request is made therefor by Lender, execute and deliver to Lender or to any party designated by Lender, such further instruments, agreements, powers, assignments, conveyances or the like as may be reasonably necessary to complete or perfect the interest, rights or powers of Lender pursuant to this Section or as may otherwise be required by Lender.

13.4.5 Lender Attorney in Fact. In the event of any arbitration under or pursuant to any Operating Agreement in which Lender elects to participate, Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise, during the continuance of an Event of Default, all right, title and interest of Borrower in connection with such arbitration, including, without limitation, the right to appoint arbitrators and to conduct arbitration proceedings on behalf of Borrower and Lender. All reasonable out-of-pocket costs and expenses incurred by Lender in connection with such arbitration and the settlement thereof shall be borne solely by Borrower, including, without limitation, reasonable attorneys’ fees and disbursements. Nothing contained in this Section shall obligate Lender to participate in any such arbitration.

13.4.6 Payment of Sums Due Under Operating Agreements. Subject to Section 7.3, Borrower shall pay all rent, additional rent, common charges, common area maintenance charges and other charges or assessments reserved in or payable under the Operating Agreements on or prior to the due date thereof.

13.4.7 Performance of Covenants. Borrower shall promptly perform and observe in all material respects all of the terms, covenants and conditions required to be performed and observed by Borrower under the Operating Agreements, the breach of which could permit any party to an Operating Agreement validly to terminate such Operating Agreement (including, without limitation, all payment obligations) except in the case of a Material Sublease where such termination would not have a Material Adverse Effect, shall do all things commercially

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reasonable to preserve and to keep unimpaired its rights under the Operating Agreements, shall not waive, excuse or discharge any of the material obligations of Fee Owner or any other party to the Operating Agreements without Lender’s prior written consent in each instance, and shall diligently and continuously enforce the material obligations of the Fee Owner and the other parties to the Operating Agreements except in any such case where same would not have a Material Adverse Effect.

13.4.8 [Reserved.]

13.4.9 No Modification or Termination. (a) Borrower shall not, except as permitted hereunder or with the prior written consent of Lender, not to be unreasonably withheld, (i) institute any action or proceeding to subdivide or partition any Individual Property other than with respect to Unimproved Parcels in accordance with the terms of this Agreement, or (ii) materially modify or amend or vote for or consent to any material modification of or amendment to any Operating Agreement.

(b) Borrower shall not vote for, agree to or acquiesce in any cancellation, termination or surrender of any Operating Agreement without the prior written consent of Lender. Any agreement to which Borrower or its Affiliates is a party whereby any of the Operating Agreements is terminated or the Property is withdrawn therefrom in violation of the immediately preceding sentence shall constitute a Transfer prohibited under this Agreement.

13.4.10 Notices of Default. Borrower shall deliver to Lender copies of any written notice of default by any party under the Operating Agreements, or of any written notice from Fee Owner or any other party to any of the Operating Agreements of its intention to terminate such Operating Agreement or to re-enter and take possession of any portion of the Property, immediately upon delivery or receipt of such notice, as the case may be.

13.4.11 Delivery of Information. Borrower shall promptly furnish to Lender copies of such information and evidence as Lender may reasonably request concerning Borrower’s due observance, performance and compliance with the terms, covenants and conditions of the Operating Agreements.

13.4.12 No Subordination. Borrower shall not consent to the subordination of the Operating Agreements to any mortgage or other lease of the fee interest in any portion of the Property, other than the Security Instruments and as permitted hereunder pursuant to Section 8.8.10.

13.4.13 Further Assurances. Borrower, at its sole cost and expense, shall execute and deliver to Lender, within five (5) Business Days after request, such documents, instruments or agreements as may be reasonably required to permit Lender to cure any default under the Operating Agreements.

13.4.14 Estoppel Certificates. In addition to and without limitation of any obligations of Borrower under Section 2.3.9 and under any post-closing side letter delivered on the Closing Date, Borrower shall use commercially reasonable efforts to obtain and deliver to Lender within thirty (30) days after written demand by Lender, an estoppel certificate in the applicable form attached hereto from each Fee Owner and other parties to the Operating Agreements designated

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by Lender setting forth, among other things, (i) the name of the parties thereunder, (ii) that the Operating Agreement is in full force and effect and has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the date to which all rent, additional rent, common charges, common area maintenance charges and other charges or assessments reserved in or payable under the Operating Agreements have been paid thereunder, (iv) whether there are any alleged defaults of the lessee under the Operating Agreements and, if there are, setting forth the nature thereof in reasonable detail, (v) if any party under the Operating Agreements shall be in default, the default, and (vi) such other matters as Lender shall reasonably request.

13.4.15 Common Area/Common Elements Insurance. Borrower shall use commercially reasonable efforts to cause the parties to the Operating Agreements to maintain the insurance required to be maintained by such parties thereunder and to deliver any insurance proceeds payable to Borrower under such Operating Agreements to be delivered to Lender. Without limitation of Borrower’s obligations under Section 6.1, in the event any party to any Operating Agreement fails to maintain any insurance coverage required in any Operating Agreement and the failure would reasonably be expected to have a Material Adverse Effect, Borrower shall obtain such insurance coverage to satisfy such requirement.

13.4.16 [Reserved.]

13.5 Lender Right to Participate. Lender shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of the Operating Agreements by Fee Owner or any other party to any Operating Agreement as a result of a bankruptcy of Fee Owner or any other party to any Operating Agreement, including, without limitation, the right to file and prosecute any and all proofs of claims, complaints, notices and other documents in any case in respect of Fee Owner or any other party to any Operating Agreement under and pursuant to the Bankruptcy Code.

13.6 No Liability. Lender shall have no liability or obligation under the Operating Agreements by reason of its acceptance of the Security Instruments, this Agreement and the other Loan Documents. Lender shall be liable for the obligations of Borrower arising under the Operating Agreements for only that period of time during which Lender is in possession of the portion of the Property covered by said Operating Agreement or has acquired, by foreclosure or otherwise, and is holding all of Borrower’s right, title and interest therein.

XIV. SECURITIZATION AND PARTICIPATION

14.1 Sale of Notes and Securitization. Borrower acknowledges and agrees that each Lender may sell all or any portion of its Pro Rata Share of the Loan and the Loan Documents, or issue one or more participations therein, or consummate one or more private or public Securitizations (as hereinafter defined) of rated single or multi-class Securities (as hereinafter defined) secured by or evidencing ownership interests in all or any portion of its Pro Rata Share of the Loan and the Loan Documents or a pool of assets that include its Pro Rata Share of the Loan and the Loan Documents. At the request of Lender and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall use reasonable efforts to satisfy the market standards which may be reasonably required in the marketplace or by the

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Rating Agencies in connection with the sale of one or more of the Notes or a participation interest therein as part of a securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the applicable Note or Notes and this Agreement, including using reasonable efforts to do (or cause to be done) the following, at Borrower’s sole cost and expense (subject in the case of Lender’s Securitization costs and expenses to Section 14.5), but (i) in complying with this Section 14.1, Borrower shall not be required to incur, suffer or accept (except to a de minimis extent) any lesser rights or greater obligations or potential liabilities than as currently set forth in the Loan Documents, except after an Event of Default, any increase in the weighted average interest rate of the Notes that may result after certain prepayments of the Loan have been made and applied in accordance with the terms hereof, (ii) in complying with this Section 14.1, Borrower shall not have to provide Regulation S-X compliant financials or auditors consents, and (iii) nothing contained in this Section 14.1 shall result in any economic change or other adverse change in the transaction contemplated by the Security Instruments or the Loan Documents (unless Borrower is made whole by the holder of Notes), other than to a de minimis extent, or result in any operational changes that are unduly burdensome to the Property or Borrower:

(a) Provided Information. (i) Provide such financial and other information (but not projections) with respect to the Property, Borrower, Master Lessee and Guarantors to the extent such information is reasonably available to Borrower (provided that Borrower shall not be obligated hereby to provide property-specific information other than with respect to the Property), (ii) provide business plans (but not projections) and budgets relating to the Property, to the extent prepared by the Borrower or Master Lessee and (iii) cooperate with the holder of the Notes (and its representatives) in obtaining such site inspection, appraisals, market studies, environmental reviews and reports, engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Notes or reasonably requested by the Rating Agencies (all information provided pursuant to this Section 14.1 together with all other information heretofore provided to Lender in connection with the Loan in the scope of that described in clauses (i), (ii) and (iii) above, as such may be updated, at Lender’s request, in connection with the Securitization, or hereafter provided to Lender in connection with the Loan or the Securitization, being herein collectively called the “Provided Information”);

(b) Opinions of Counsel. Use reasonable efforts to cause to be rendered such customary updates or customary modifications to the Opinions of Counsel delivered at the closing of the Loan as may be reasonably requested by the holder of the Notes or the Rating Agencies in connection with the Securitization, including without limitation, true lease and non-consolidation opinions but specifically excluding 10b-5, “no fraudulent conveyance” and/or true sale opinions. Borrower’s failure to use reasonable efforts to deliver or cause to be delivered the opinion updates or modifications required hereby within twenty (20) Business Days after written request therefor shall constitute an “Event of Default” hereunder;

(c) Modifications to Loan Documents. Execute such amendments to the Security Instruments and Loan Documents as may be reasonably requested by Lender or the Rating Agencies in order to achieve the required rating or to effect the Securitization (including, without limitation, modifying the Payment Date and modifying the commencement and expiration of the Interest Period, in each case to dates other than as originally set forth in the Notes), and

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(d) Cooperation with Rating Agencies. Borrower shall, (i) at Lender’s request, meet with representatives of the Rating Agencies at reasonable times to discuss the business and operations of the Property, and (ii) cooperate with the reasonable requests of the Rating Agencies in connection with the Property. Until the Obligations are paid in full, Borrower shall provide the Rating Agencies with all financial reports required hereunder and such other information as they shall reasonably request, including copies of any default notices or other material notices delivered to and received from Lender hereunder, to enable them to continuously monitor the creditworthiness of Borrower and to permit an annual surveillance of the implied credit rating of the Securities.

14.2 Securitization Financial Statements. Borrower acknowledges that all financial information delivered by Borrower to Lender pursuant to Article XI may, at Lender’s option, be delivered to the Rating Agencies, subject to compliance with Section 11.2.9.

14.3 Securitization Indemnification.

14.3.1 Disclosure Documents. Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including a prospectus, private placement memorandum, collateral term sheet or a public registration statement (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”) or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon request, Borrower shall reasonably cooperate with the holder of the Notes in updating the Provided Information for inclusion or summary in the Disclosure Document by providing all updates to the Provided Information available to Borrower reasonably requested by Lender.

14.3.2 Indemnification Certificate. In connection with each applicable Disclosure Document, Borrower agrees to provide, at Lender’s reasonable request, an indemnification certificate:

(a) certifying that Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, reasonably designated in writing by Lender for Borrower’s review pertaining to Borrower, the Property, the Guarantors, the Loan and/or the Provided Information and insofar as such sections or portions thereof specifically pertain to Borrower, the Property, the Guarantors, the Provided Information or the Loan (such portions, the “Relevant Portions”), the Relevant Portions do not (except to the extent specified by Borrower if Borrower does not agree with the statements therein), as of the date of such certificate, to Borrower’s knowledge, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

(b) indemnifying Lender and the Affiliates of Deutsche Bank Securities, Inc. (collectively, “DBS”) as well as JPMC and its Affiliates (“Chase”), as applicable, that have prepared the Disclosure Document relating to the Securitization, each of their respective

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directors, each of their respective officers who have signed the Disclosure Document and each person or entity who controls DBS or Chase, as applicable, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Lender Group”), and DBS and Chase, together with the Lender Group, each of their respective directors and each person who controls DBS or Chase or the Lender Group, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual, out-of-pocket losses, third party claims, damages (excluding lost profits, diminution in value and other consequential damages) or liabilities arising out of third party claims (the “Liabilities”) to which any member of the Underwriter Group may become subject to the extent such Liabilities arise out of or are based upon any untrue statement of any material fact contained in the Relevant Portions and in the Provided Information or arise out of or are based upon the omission by Borrower to state therein a material fact required to be stated in the Relevant Portions in order to make the statements in the Relevant Portions in light of the circumstances under which they were made, not misleading (except that (w) Borrower’s obligation to indemnify in respect of any information contained in a Disclosure Document that is derived in part from information provided by Borrower or any Affiliate of Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results directly from an error in any information provided (or which should have been provided) by Borrower, (x) Borrower shall have no responsibility or obligation to indemnify in respect of any information related to the Underwriter Group which is provided by the Underwriter Group, (y) Borrower shall have no responsibility for the failure of any member of the Underwriter Group to accurately transcribe written information supplied by Borrower or to include such portions of the Provided Information and (z) Borrower shall have no responsibility or obligation to indemnify in respect of any untrue or misleading statement in the Relevant Portions or Provided Information which is not corrected upon a request for such correction by Borrower or which is caused by the gross negligence or willful misconduct of the Underwriter Group). The indemnity contained in the indemnification certificate will be in addition to any liability which Borrower may otherwise have.

(c) The indemnification certificate shall provide that Borrower’s liability under clauses (a) and (b) of the indemnification certificate shall be limited to Liabilities arising out of or based upon any such untrue statement or omission made in a Disclosure Document in reliance upon and in conformity with information furnished to Lender by, or furnished at the direction and on behalf of, Borrower in connection with the preparation of those portions of the relevant Disclosure Document pertaining to Borrower, the Property, any Guarantor, the Sponsor or the Loan, including financial statements of Borrower and operating statements with respect to the Property.

(d) The indemnification certificate shall also provide that promptly after receipt by an indemnified party of notice of the commencement of any action covered by the indemnification certificate, such indemnified party will notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party thereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly

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with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After such notice from the indemnifying party to such indemnified party of its assumption of such defense, the indemnifying party shall not be liable for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however, if an indemnified party shall have reasonably concluded that there are any legal defenses available to it that are different from or in conflict with those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party.

(e) The indemnification certificate shall also provide that in order to provide for just and equitable contribution in circumstances in which the indemnity provided for therein is for any reason held to be unenforceable by an indemnified party in respect of any actual, out-of-pocket losses, claims, damages or liabilities relating to third party claims (or action in respect thereof) referred to therein which would otherwise be indemnifiable thereunder, the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such actual, out of pocket losses, third party claims, damages or liabilities (or action in respect thereof) (but excluding damages for lost profits, diminution in value of the Property and consequential damages); provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution for Liabilities arising therefrom from any person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Lender Group’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; (iii) the limited responsibilities and obligations of Borrower as specified herein; and (iv) any other equitable considerations appropriate in the circumstances.

(f) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to (and Lender shall not take any action to cause Borrower to) act as an issuer, co-registrant or registrant with respect to the securities issued in any securitization.

14.4 Retention of Servicer. Lender reserves the right to retain the Servicer but Lender agrees to consult with Borrower prior to retaining (or replacing) the Servicer (provided that Borrower hereby agrees that Lender may retain Midland Loan Services without any obligation to consult with Borrower and Borrower acknowledges and agrees that Borrower shall not have any approval or veto rights over Lender’s choice of Servicer). Lender has advised Borrower that the Servicer initially retained by Lender shall be KeyBank Real Estate Capital or its Affiliate. Borrower shall pay any reasonable fees and expenses of the Servicer and any reasonable third party fees and expenses of the Servicer, special servicing fees, work-out fees and reasonable attorneys fees and disbursements, in connection with a prepayment, release or substitution of the Property, assumption or modification of the Loan, or following an Event of Default, special servicing or work-out of the Loan or enforcement of the Loan Documents. In addition, Borrower shall pay the standard monthly servicing fee of the Servicer on or prior to each Payment Date.

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14.5 Lender’s Securitization Expenses. Borrower has deposited into escrow with the Title Company on the Closing Date an amount equal to $2,730,000 in full satisfaction of any obligation of Borrower to pay Lender’s costs and expenses in connection with any Securitization, including but not limited to Lender’s out-of-pocket costs and expenses for legal fees, fees of Rating Agencies and their counsel, printing and distribution of offering materials, trustee acceptance fee and legal fees and accounting expenses. The Title Company shall release to Lender, upon Lender’s written request, amounts from such escrow to reimburse Lender for its costs and expenses in connection with any Securitization. In the event that Lender’s total costs and expenses in connection with the Securitization are less than the amount Borrower deposited into escrow, Lender shall instruct the Title Company to remit to Borrower the difference.

XV. ASSIGNMENTS AND PARTICIPATIONS

15.1 Assignment and Acceptance. Each Lender may assign to one or more Persons, other than any Proscribed Assignee, all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of one or more of the Notes); provided that the parties to each such assignment shall execute and deliver to Lender, for its acceptance and recording in the Register (as hereinafter defined), an Assignment and Acceptance and deliver to Borrower a copy of same. In addition, each Lender may participate to one or more Persons, other than any Proscribed Assignee, all or any portion of its rights and obligations under this Agreement and the other Loan Documents (including without limitation, all or a portion of one or more of the Notes) utilizing such documentation to evidence such participation and the parties’ respective rights thereunder as such Lender, in its sole discretion, shall elect. Notwithstanding anything in the foregoing sentences of this Section 15.1 to the contrary, there shall be no Proscribed Assignee restriction on the ability of a Lender (other than either GACC or JPMC or any Affiliate thereof solely with respect to such portion of the Loan, if any, that is not the subject of Securitization but is retained by any of them) to assign or participate its rights and obligations under this Agreement and the other Loan Documents after Securitization.

15.2 Effect of Assignment and Acceptance. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, as the case may be, hereunder and such assignee shall be deemed to have assumed such rights and obligations, and (ii) Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of a Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto) accruing from and after the effective date of the Assignment and Acceptance, except with respect to (A) any payments made by Borrower to such Lender pursuant to the terms of the Loan Documents after the effective date of the Assignment and Acceptance and (B) any letter of credit, cash deposit or other deposits or security (other than the Lien of the Security Instruments and the other Loan Documents) delivered to or for the benefit of or deposited with GACC or JPMC, on behalf of the holders of the

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Notes, as Lender, for which GACC or JPMC, as applicable, on behalf of the holders of the Notes, shall remain responsible for the proper disposition thereof until such items are delivered to a party who is qualified as an Approved Bank and agrees to hold the same in accordance with the terms and provisions of the agreement pursuant to which such items were deposited.

15.3 Content. By executing and delivering an Assignment and Acceptance, Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (ii) Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under any Loan Documents or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes Lender to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to Lender by the terms hereof together with such powers and discretion as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform, in accordance with their terms, all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by Lender.

15.4 Register. Each Lender (solely for this purpose, as agent for Borrower) shall maintain a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of Lender and each assignee pursuant to this Article XV and the principal amount of the Loan owing to each such assignee from time to time (the “Register”) in a manner and with the intent that the Loan will be considered to be in registered form within the meaning of Section 163(f) of the Code, and this Section 15.4 shall be interpreted consistently with such intent. The entries in the Register shall, with respect to such assignees, be conclusive and binding for all purposes, absent manifest error. A copy of each change to the Register shall be delivered by Lender to Borrower promptly after such change is made and the Register shall be available for inspection by Borrower or any assignee pursuant to this Article XV at any reasonable time and from time to time upon reasonable prior written notice.

15.5 Substitute Notes. Upon its receipt of an Assignment and Acceptance executed by an assignee, together with any Note or Notes subject to such assignment, Lender shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit M hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt written notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice, Borrower, at Lender’s expense, shall execute and

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deliver to Lender in exchange and substitution for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the portion of the Loan assigned to it and a new Note to the order of Lender in an amount equal to the portion of the Loan retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate then outstanding principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of the Notes (modified, however, to the extent necessary so as not to impose duplicative or increased obligations on Borrower and to delete obligations previously satisfied by Borrower). Notwithstanding the provisions of this Article XV, Borrower shall not be responsible or liable for any additional taxes, reserves, adjustments or other costs and expenses that are related to, or arise as a result of, any transfer of the Loan (except as provided in Article XIV) or any interest or participation therein that arise solely and exclusively from the transfer of the Loan or any interest or participation therein or from the execution of the new Note contemplated by this Section 15.5, including, without limitation, any mortgage tax. Lender and/or the assignees, as the case may be, shall from time to time designate one agent through which Borrower shall request all approvals and consents required or contemplated by this Agreement and the other Loan Documents and on whose statements Borrower may rely. Lender hereby initially designates Noteholder I as such agent.

15.6 Participations. Each assignee pursuant to this Article XV may sell participations to one or more Persons (other than Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of the Note held by it); provided, however, that (i) such assignee’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such assignee shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such assignee shall remain the holder of any such Note for all purposes of this Agreement and the other Loan Documents, and (iv) Borrower, Lender and the assignees pursuant to this Article XV shall continue to deal solely and directly with such assignee in connection with such assignee’s rights and obligations under this Agreement and the other Loan Documents. In the event that more than one (1) party comprises Lender, Lender shall designate one party to act on the behalf of all parties comprising Lender in providing approvals and all other necessary consents under the Loan Documents and on whose statements Borrower may rely.

15.7 Disclosure of Information. Any assignee pursuant to this Article XV may, in connection with any subsequent assignment or participation or subsequent proposed assignment or participation pursuant to this Article XV, disclose to the subsequent assignee or participant or subsequent proposed assignee or participant, any information relating to Borrower furnished to such assignee by or on behalf of Borrower; provided, however, that, with respect to any Asset-Specific Proprietary Information, the terms of Section 11.2.9 shall be complied with.

15.8 Security Interest in Favor of Federal Reserve Bank. Notwithstanding any other provision set forth in this Agreement or any other Loan Document, any assignee pursuant to this Article XV may at any time create a security interest in all or any portion of its rights under this Agreement or the other Loan Documents (including, without limitation, the amounts owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.

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XVI. RESERVE ACCOUNTS

16.1 Tax Reserve Account. In accordance with the time periods set forth in Section 3.1, Borrower shall cause to be deposited into the Tax Reserve Account (which deposit may be effected by the transfers contemplated under Section 3.1.6(a)) an amount equal to (a) one-twelfth of the annual Impositions that Lender reasonably estimates, based on the most recent tax bill for the Property, will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Impositions at least thirty (30) days prior to the imposition of any interest, charges or expenses for the non-payment thereof and (b) one-twelfth of the annual Other Charges that Lender reasonably estimates will be payable during the next ensuing twelve (12) months (said monthly amounts in (a) and (b) above hereinafter called the “Monthly Tax Reserve Amount,” and the aggregate amount of funds held in the Tax Reserve Account being the “Tax Reserve Amount”). As of the Closing Date, the Monthly Tax Reserve Amount is $996,522.60, but such amount is subject to adjustment by Lender in its reasonable discretion upon notice to Borrower. The Monthly Tax Reserve Amount shall be paid by Borrower to Lender on each Payment Date. Lender will apply the Monthly Tax Reserve Amount to payments of Impositions and Other Charges required to be made by Borrower pursuant to Article V and Article VII and under the Security Instruments, subject to Borrower’s right to contest Impositions in accordance with Section 7.3. In making any payment relating to the Tax Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office, without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof subject to Borrower’s right to contest. If the amount of funds in the Tax Reserve Account shall exceed the amounts due for Impositions and Other Charges pursuant to Article V and Article VII, Lender shall credit such excess against future payments to be made to the Tax Reserve Account. If at any time Lender reasonably determines that the Tax Reserve Amount is not or will not be sufficient to pay Impositions and Other Charges by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender reasonably estimates is sufficient to make up the deficiency at least thirty (30) days prior to the imposition of any interest, charges or expenses for the non-payment of the Impositions and Other Charges. Upon payment of the Impositions and Other Charges, Lender shall reassess the amount necessary to be deposited in the Tax Reserve Account for the succeeding period, which calculation shall take into account any excess amounts remaining in the Tax Reserve Account.

16.2 Insurance Reserve Account.

(a) Insurance Reserve. Subject to clause (b) below, Borrower shall, in accordance with the time periods set forth in Section 3.1, cause to be deposited into the Insurance Reserve Account (which deposit may be effected by the transfers contemplated under Section 3.1.6(a)) an amount equal to one-twelfth of the insurance premiums that Lender reasonably estimates, based on the most recent bill, will be payable for the renewal of the coverage afforded by the insurance policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such insurance premiums at least thirty (30) days prior to the expiration of the policies required to be maintained by Borrower pursuant to the terms hereof (said monthly amounts hereinafter called the “Monthly Insurance Reserve Amount,” and the aggregate amount of funds held in the “Insurance Reserve Account” being the “Insurance Reserve Amount”). The Monthly

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Insurance Reserve Amount shall be subject to adjustment by Lender upon notice to Borrower. The Monthly Insurance Reserve Amount shall be paid by Borrower to Lender on each Payment Date. Lender will apply the Monthly Insurance Reserve Amount to payments of insurance premiums required to be made by Borrower pursuant to Article VI and under the Security Instruments. In making any payment relating to the Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the insurer or agent, without inquiry into the accuracy of such bill, statement or estimate or into the validity thereof. If the amount of funds in the Insurance Reserve Account shall exceed the amounts due for insurance premiums pursuant to Article VI, Lender shall credit such excess against future payments to be made to the Insurance Reserve Account. If at any time Lender reasonably determines that the Insurance Reserve Amount is not or will not be sufficient to pay insurance premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender reasonably estimates is sufficient to make up the deficiency at least thirty (30) days prior to expiration of the applicable insurance policies. Upon payment of such insurance premiums, Lender shall reassess the amount necessary to be deposited in the Insurance Reserve Account for the succeeding period, which calculation shall take into account any excess amounts remaining in the Insurance Reserve Account.

(b) Blanket Policies. Notwithstanding the foregoing, provided no Noticed Default or Event of Default has occurred and is continuing, Borrower shall not be required to deposit funds into the Insurance Reserve Account at any time when the insurance required to be maintained pursuant to this Agreement is provided under a Blanket Policy in accordance with Article VI hereof and the premiums in respect of such Blanket Policy are paid or caused to be paid at least sixty (60) days before such premiums become due and payable.

16.3 Ground Rent Reserve Account. In accordance with the time periods set forth in Section 3.1, Borrower shall, on each Payment Date, cause to be deposited into the Ground Rent Reserve Account (which deposit may be effected by the transfers contemplated under Section 3.1.6(a)) an amount (without duplication of any amounts required to be deposited in the Tax Reserve Account in respect of real estate taxes payable with respect to the Leasehold Estate) equal to one-twelfth of the annual Ground Rent that Lender reasonably estimates will be payable during the next ensuing twelve (12) months, or if such Ground Rent is payable monthly, the sum of the next month’s Ground Rent due, in order to accumulate with Lender sufficient funds to pay all such Ground Rent at least thirty (30) days prior to the imposition of any interest, charges or expenses for the non-payment thereof (said monthly amounts above hereinafter called the “Monthly Ground Rent Reserve Amount,” and the aggregate amount of funds held in the Ground Rent Reserve Account being the “Ground Rent Reserve Amount”). The Monthly Ground Rent Reserve Amount shall be subject to adjustment by Lender upon notice to Borrower. The Monthly Ground Rent Reserve Amount shall be paid by Borrower to Lender on each Payment Date. Subject to the terms hereof, Lender will apply the Ground Rent Reserve Amount to payments of Ground Rent required to be made by Borrower pursuant to the Ground Lease. In making any payment relating to the Ground Rent Reserve Account, Lender may do so according to any bill, statement or estimate procured from the Fee Owner, without inquiry into the accuracy of such bill, statement or estimate or into the validity thereof. If the amount of funds in the Ground Rent Reserve Account shall exceed the amounts due as Ground Rent pursuant to the Ground Lease, Lender shall credit such excess against future payments to be made to the Ground Rent Reserve

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Account. If at any time Lender reasonably determines that the Ground Rent Reserve Amount is not or will not be sufficient to pay Ground Rent by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender reasonably estimates is sufficient to make up the deficiency at least thirty (30) days prior to the imposition of any interest, charges or expenses for the non-payment of Ground Rent.

XVII. DEFAULTS

17.1 Event of Default.

(a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i) if (A) the Indebtedness is not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest due under the Notes is not paid in full on the applicable Payment Date, (C) any prepayment of principal due under this Agreement or the Notes is not paid when due, (D) the Prepayment Fee is not paid when due, (E) any deposit to the Holding Account is not made on the required deposit date therefor; or (F) except as to any amount included in (A), (B), (C), (D), and/or (E) of this clause (i) or in clause (ii), any other amount payable pursuant to this Agreement, the Notes or any other Loan Document is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document, with the failure described in this clause (F) continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;

(ii) subject to Borrower’s right to contest as set forth in Section 7.3, if any of the Impositions or Other Charges are not paid prior to the imposition of any interest, penalty, charge or expense for the non-payment thereof, provided, that Borrower shall not be deemed to be in default hereunder in the event funds sufficient for a required payment of such Imposition or Other Charge under Section 3.1.7(i) are held in the Tax Reserve Account and Lender or Cash Management Bank fails to timely make payment from such Sub-Account as contemplated by this Agreement unless due to the negligence or willful misconduct of Borrower;

(iii) if (A) the insurance policies required by Section 6.1 are not kept in full force and effect at all times required under such Section, or (B) Borrower fails to deliver to Lender evidence of the insurance required by Section 6.1 at the times required in such Section with such failure continuing for five (5) Business Days after the Lender delivers written notice thereof to Borrower, provided, that Borrower shall not be deemed to be in default hereunder in the event funds sufficient for a required payment under Section 3.1.7(ii) of the premiums required to keep the insurance policies in full force and effect are held in the Insurance Reserve Account and Lender or Cash Management Bank fails to timely make payment from such Sub-Account as contemplated by this Agreement unless due to the negligence or willful misconduct of Borrower;

(iv) if, except as expressly permitted pursuant to Article VIII or the other provisions hereof, any of the following shall occur: (a) any Transfer of any

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direct or indirect legal, beneficial or equitable interest in all or any portion of the Property, (b) any Transfer of any direct or indirect interest in Borrower, Mezzanine Borrower, Master Lessee, or any Guarantor, (c) Borrower grants any Lien or encumbrance against all or any portion of the Property, (d) any pledge, hypothecation, creation of a security interest in or other encumbrance of any direct or indirect interests in Borrower, Mezzanine Borrower, Master Lessee, or any Guarantor or (e) Borrower’s filing of a declaration of condominium with respect to any portion of the Property;

(v) if (i) any representation or warranty made by Borrower in Section 4.1.24 shall have been false or misleading in any material respect as of the date the representation or warranty was made which incorrect, false or misleading statement is not cured within thirty (30) days after receipt by Borrower of notice from Lender in writing of such breach or a longer period of time not to exceed thirty (30) additional days if Borrower has commenced to cure but cannot cure within the initial thirty (30) day period or (ii) if any other representation or warranty made by Borrower herein or by Borrower or any Affiliate of Borrower in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made; provided, however, that if such representation or warranty which was false or misleading in any material respect is, by its nature, curable and is not reasonably likely to have a Material Adverse Effect, and such representation or warranty was not, to the best of Borrower’s knowledge, false or misleading in any material respect when made, then same shall not constitute an Event of Default unless Borrower has not cured same within thirty (30) days after receipt by Borrower of notice from Lender in writing of such breach;

(vi) if Borrower, a Master Lessee Party, or any Guarantor shall make an assignment for the benefit of creditors;

(vii) if a receiver, liquidator or trustee shall be appointed for Borrower, a Master Lessee Party, or any Guarantor or Borrower, a Master Lessee Party, or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower, a Master Lessee Party, or any Guarantor, or if any proceeding for the dissolution or liquidation of Borrower, a Master Lessee Party, or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower, a Master Lessee Party, or any Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;

(viii) if Borrower, Master Lessee, or Guarantor as applicable, attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix) if any of the assumptions contained in the True Sale Opinion is untrue in any material respect;

(x) if any of the assumptions contained in the Non-Consolidation Opinion, in any Additional Non-Consolidation Opinion or in any other non-consolidation opinion delivered to Lender in connection with the Loan, or in any other non-consolidation delivered subsequent to the closing of the Loan, is untrue in any material respect;

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(xi) if any of the assumptions contained in the True Lease Opinion is untrue in any material respect;

(xii) if Borrower, having notified Lender of its election to extend the Maturity Date as set forth in Section 5 of the Notes, fails to deliver the Replacement Interest Rate Protection Agreement to Lender not later than one (1) Business Day prior to the first day of the extended term of the Loan and Borrower has not prepaid the Loan pursuant to the terms of the Notes prior to such first day of the extended term;

(xiii) if Borrower shall fail to comply in any material respect with any covenants set forth in Section 5.1.4, Section 5.2.9 and 5.2.22;

(xiv) except as provided clause (xiii) above, if Borrower shall fail to comply with any covenants set forth in Article V or Article XI with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;

(xv) if Borrower shall fail to comply with the covenants set forth in Section 3(d) or Section 8 of any Security Instrument with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;

(xvi) if this Agreement or any other Loan Document or any Lien granted hereunder or thereunder, in whole or in part, shall terminate or shall cease to be effective or shall cease to be a legally valid, binding and enforceable obligation of Borrower or any Guarantor, or any Lien securing the Indebtedness shall, in whole or in part, cease to be a perfected first priority Lien, subject to the Permitted Encumbrances (except in any of the foregoing cases in accordance with the terms hereof or under any other Loan Document or by reason of any affirmative act of Lender);

(xvii) except as expressly permitted pursuant to the Loan Documents, if Borrower grants any easement, covenant or restriction (other than the Permitted Encumbrances) over the Property;

(xviii) [Reserved];

(xix) if there shall occur any default by Borrower, as lessee under any Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of Borrower to be observed or performed, and said default is not cured prior to the expiration of any applicable grace or cure period therein provided, or if any one or more of the events referred to in a Ground Lease shall occur which would cause such Ground Lease to terminate without notice or action by the related Fee Owner under such Ground Lease or if any Leasehold Estate shall be surrendered or any Ground Lease shall be lawfully terminated or cancelled for any reason or under any circumstances whatsoever, or if any of the terms, covenants or conditions of any Ground Lease shall in any manner be modified, changed, supplemented, altered or amended in contradiction of the provisions of Article XIII without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, or if Borrower or Master Lessee shall fail to exercise any option to renew the Ground Lease or shall fail to or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to the terms of the Ground Lease, provided, that if a default by Borrower under a

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Ground Lease is a Ground Rent payment default, the occurrence or failure to cure such default shall not be deemed to be in default hereunder in the event funds sufficient for a required transfer under Section 3.1.7(iii) are held in the Ground Rent Reserve Account and Lender or Cash Management Bank fails to timely make any transfer from such Sub-Account as contemplated by this Agreement unless due to the negligence or willful misconduct of Borrower;

(xx) [Reserved];

(xxi) [Reserved];

(xxii) [Reserved];

(xxiii) if, without the prior written consent of Lender, any of the material terms or provisions of any Operating Agreement are modified or amended (in a manner prohibited by Article XIII);

(xxiv) [Reserved];

(xxv) if the Master Lease shall be materially modified without the prior written consent of Lender, except as expressly permitted hereunder or any other Loan Document;

(xxvi) if Borrower shall be in default in any material obligation on the part of Borrower beyond any applicable notice periods and cure periods pursuant to the terms of the Master Lease;

(xxvii) if an Individual Property shall Go Dark and Borrower shall not have caused such Individual Property to reopen for business to the public, obtained a release of such Individual Property or provided a substitute therefor in accordance with Section 2.3.6 within the time period specified for each of the foregoing in such Section; or if an Individual Property shall Go Dark during any period when any other Individual Property shall have “Gone Dark”;

(xxviii) if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or of any Loan Document not specified in subsections (i) to (xxvii) above (including, without limitation, in Default under Section 8.8.2 or 13.4.9), for thirty (30) days after notice from Lender; provided, however, that if such Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days.

(b) Unless waived in writing by Lender, upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in subsections (a)(vi), (vii) or (viii) above in respect of Borrower) Lender may, without notice or demand, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, (i) declaring immediately due and payable the entire Principal Amount together with interest

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thereon and all other sums due by Borrower under the Loan Documents, (ii) collecting interest on the Principal Amount at the Default Rate whether or not Lender elects to accelerate the Notes and (iii) enforcing or availing itself of any or all rights or remedies set forth in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in subsections (a)(vi), (a)(vii) or (a)(viii) above in respect of Borrower, the Indebtedness and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding. The foregoing provisions shall not be construed as a waiver by Lender of its right to pursue any other remedies available to it under this Agreement, the Security Instruments or any other Loan Document. Any payment hereunder may be enforced and recovered in whole or in part at such time by one or more of the remedies provided to Lender in the Loan Documents.

17.2 Remedies.

(a) Unless waived in writing by Lender, upon the occurrence and during the continuance of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Indebtedness shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender shall not be subject to any one action or election of remedies law or rule and (ii) all liens and other rights, remedies or privileges provided to Lender (including the Assigned Landlord Lien) shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Security Instruments have been foreclosed, sold and/or otherwise realized upon in satisfaction of the Indebtedness or the Indebtedness has been paid in full.

(b) Upon the occurrence and during the continuance of an Event of Default, with respect to the Account Collateral, the Lender may:

(i) without notice to Borrower, except as required by law, and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Account Collateral against the Indebtedness, Obligations, operating expenses and/or capital expenditures for the Property or any part thereof;

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(ii) in Lender’s sole discretion, at any time and from time to time, exercise any and all rights and remedies available to it under this Agreement, and/or as a secured party under the UCC;

(iii) demand, collect, take possession of or receipt for, settle, compromise, adjust, sue for, foreclose or realize upon the Account Collateral (or any portion thereof) as Lender may determine in its sole discretion; and

(iv) take all other actions provided in, or contemplated by, this Agreement.

(c) With respect to Borrower, the Account Collateral, the Rate Protection Collateral and the Property, nothing contained herein or in any other Loan Document shall be construed as requiring Lender to resort to the Property for the satisfaction of any of the Indebtedness, and Lender may seek satisfaction out of the Property or any part thereof, or exercise its rights under the Security Instruments, the Assignment of Leases, or the other Loan Documents, in its absolute discretion in respect of the Indebtedness. In addition, Lender shall have the right from time to time to partially foreclose or exercise remedies under this Agreement, the Security Instruments, and the other Loan Documents, in any manner and for any amounts secured by this Agreement, the Security Instruments, or the other applicable Loan Documents then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal or interest, Lender may foreclose under this Agreement, the Security Instruments, and the applicable Loan Documents to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose under this Agreement, the Security Instruments, and the other applicable Loan Documents to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by this Agreement, the Security Instruments, and the other applicable Loan Documents as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to this Agreement, the Security Instruments, and the applicable Loan Documents to secure payment of sums secured by this Agreement, the Security Instruments, and the applicable Loan Documents and not previously recovered.

17.3 Remedies Cumulative; Waivers. The rights, powers and remedies of Lender under this Agreement and the Security Instruments shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon a Default or an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower or any Guarantor shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or any Guarantor or to impair any remedy, right or power consequent thereon.

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17.4 Costs of Collection. In the event that after an Event of Default: (i) the Notes or any of the Loan Documents is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under the Notes or any of the Loan Documents; or (iii) an attorney is retained to protect or enforce the lien or any of the terms of this Agreement, any Security Instrument or any of the Loan Documents; then Borrower shall pay to Lender all reasonable attorney’s fees, costs and expenses actually incurred in connection therewith, including costs of appeal, together with interest on any judgment obtained by Lender at the Default Rate.

XVIII. SPECIAL PROVISIONS

18.1 Exculpation.

18.1.1 Exculpated Parties. Except as set forth in this Section 18.1 and the Recourse Guaranty, no personal liability shall be asserted, sought or obtained by Lender or enforceable against (i) Borrower, (ii) any Affiliate of Borrower, (iii) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (iv) any direct or indirect partner, member, principal, officer, Controlling Person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described in clauses (i) through (iii) above (collectively, the “Exculpated Parties”) and none of the Exculpated Parties shall have any personal liability (whether by suit deficiency judgment or otherwise) in respect of the Obligations, this Agreement, the Security Instruments, the Notes, the Property or any other Loan Document, or the making, issuance or transfer thereof, all such liability, if any, being expressly waived by Lender. The foregoing limitation shall not in any way limit or affect Lender’s right to any of the following and Lender shall not be deemed to have waived any of the following:

(a) Foreclosure of the lien of this Agreement and the Security Instruments in accordance with the terms and provisions set forth herein and in the Security Instruments;

(b) Action against any other security at any time given to secure the payment of the Notes and the other Obligations;

(c) Exercise of any other remedy set forth in this Agreement or in any other Loan Document which is not inconsistent with the terms of this Section 18.1;

(d) Any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness secured by this Agreement and the Security Instruments or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents; or

(e) The liability of any given Exculpated Party with respect to any separate written guaranty or agreement given by any such Exculpated Party in connection with the Loan (including, without limitation, the Recourse Guaranty).

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18.1.2 Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, there shall at no time be any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the Notes, the Security Instruments and the other Loan Documents, to Lender of:

(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the fraudulent acts of Borrower or any Affiliate of Borrower;

(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;

(c) all loss, damage, cost or expense as incurred by Lender and arising from any intentional misrepresentation of Borrower or any Affiliate of Borrower;

(d) any misappropriation of Rents or security deposits or other funds relating to the Properties by Master Lessee, Borrower or any of their respective Affiliates;

(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Protection Collateral being encumbered by a Lien or Transferred by reason of the acts of Borrower or any Affiliate of Borrower from and after the Closing Date (other than this Agreement and the Security Instruments) in violation of the Loan Documents;

(f) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income from the Property collected by Borrower or any Affiliate of Borrower (other than Rent sent to the Holding Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property) and not applied to payment of the Indebtedness or the Obligations or used to pay normal and verifiable operating expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;

(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of physical damage to the Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of Borrower;

(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XII;

(i) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of any breach of a representation set forth in Section 4.1.30 or any covenant set forth in Section 5.1.4 or Section 5.2.22;

(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to deliver to Lender the net sales proceeds of a Transfer of an Individual

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Property described in Section 2.3.4 together with any shortfall necessary to pay in full the Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;

(k) all of the Indebtedness and the Obligations in the event of: (i) any Borrower Party or any Master Lessee Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any Borrower Party or Master Lessee Party filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower Party’s or Master Lessee Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower Party or Master Lessee Party consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Borrower Party or Master Lessee Party or any portion of the Property; (iv) any Borrower Party or Master Lessee Party making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, that it is insolvent;

(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Protection Collateral or any part thereof which is found by a court to have been raised by Borrower in bad faith or to be without basis in fact or law; or

(m) reasonable attorney’s fees and expenses actually incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l).

18.2 Pro Rata Share. The obligations of each Lender hereunder and under any of the other Loan Documents are several (but not joint). Subject to the terms hereof, each Lender shall be obligated to fund on a pari passu basis only its respective Pro Rata Share of the Loan. Each Lender hereby agrees that if either of them shall, whether by voluntary payment (other than a voluntary prepayment of the Loan made and applied in accordance with the terms of this Agreement), by realization upon security, through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code or other applicable insolvency law, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to that Lender hereunder or under the other Loan Documents which is greater than its Pro Rata Share, then such Lender receiving such proportionately greater payment shall (i) notify the other Lender of the receipt of such payment, and (ii) appropriate payments or other adjustments shall be made by each Lender to ensure each Lender receives its respective Pro Rata Share of such aggregate amount due.

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XIX. MISCELLANEOUS

19.1 Survival. This Agreement and all covenants, indemnifications, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Notes, and shall continue in full force and effect so long as all or any of the Indebtedness is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the successors and assigns of Lender. If Borrower consists of more than one person, the obligations and liabilities of each such person hereunder and under the other Loan Documents shall be joint and several.

19.2 Lender’s Discretion. Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

19.3 Governing Law.

(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTES, AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING,

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AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:

		CORPORATION SERVICE COMPANY
		80 STATE STREET
		ALBANY, NEW YORK 12207-2543

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

19.4 Modification; Waiver in Writing. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Notes, or of any other Loan Document, or consent to any departure therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought (and, if a Securitization shall have occurred, a Rating Agency Confirmation is obtained), and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to or demand on Borrower shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

19.5 Delay Not a Waiver. Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Notes or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Notes or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Notes or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

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19.6 Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery or (c) telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:		German American Capital Corporation, on behalf of the holders of the Notes
		60 Wall Street, 10th floor
		New York, NY 10005
		Attention: Robert Pettinato and General Counsel
		Telecopy No.: (212) 797-4489

		and to JPMorgan Chase Bank, N.A., on behalf of the holders of the Notes 270 Park Avenue New York, New York 10017 Attention: Michael Mesard Telecopy No.: (212) 834-6592

With a copy to:		KeyBank Real Estate Capital, as Servicer, at such notice address as shall be designated by notice delivered in accordance with this Section.

With a copy to:		Centerline Servicing Inc.
		5221 N. O’Connor Boulevard, Suite 600
		Irving, Texas 75039
		Attention: Wesley Wolf, SVP, Asset Management
		Telecopy No.: (972) 868-5493

With a copy to:		Latham & Watkins LLP
		633 West Fifth Street, Suite 4000
		Los Angeles, California 90071
		Attention: Donald I. Berger, Esq.
		Telecopy No.: (213) 891-8763

If to Borrower:		FCP PropCo, LLC 1505 South Pavilion Center Drive Las Vegas, Nevada 89135 Attention: General Counsel Telecopy No.: (702) 495-4260

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With a copy to:		Milbank, Tweed, Hadley & McCloy LLP 601 S. Figueroa Street, 30^th Floor Los Angeles, California 90017 Attention: Kenneth J. Baronsky Telecopy No.: (213) 892-4733

With a copy to:		Colony Capital Acquisitions, LLC 1999 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attention: Jonathan H. Grunzweig Telecopy No.: (310) 407-7407

With a copy to:		Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 Attention: Thomas Cerabino Telecopy No.: (212) 728-9208

All notices, elections, requests and demands under this Agreement shall be effective and deemed received upon the earliest of (i) the actual receipt of the same by personal delivery or otherwise, (ii) one (1) Business Day after being deposited with a nationally recognized overnight courier service as required above, or (iii) on the day sent if sent by facsimile with confirmation on or before 5:00 p.m. New York time on any Business Day or on the next Business Day if so delivered after 5:00 p.m. New York time or on any day other than a Business Day. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, election, request, or demand sent.

19.7 TRIAL BY JURY. BORROWER AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT, THE SECURITY INSTRUMENTS, THE NOTES OR ANY OTHER LOAN DOCUMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, THE SECURITY INSTRUMENTS, THE NOTES OR ANY OTHER LOAN DOCUMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND BORROWER HEREBY AGREES AND CONSENTS THAT AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY.

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BORROWER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF THE LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE LOAN.

19.8 Headings. The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

19.9 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

19.10 Preferences. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

19.11 Waiver of Notice. Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

19.12 Expenses; Indemnity

(a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements), except as may be otherwise expressly provided in Article XIV or elsewhere in this Agreement or the Loan Documents, incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of the Loan Documents (other than this Agreement and the documents executed in connection with the resizing of the Combined Loans concurrently herewith) and the consummation of the transactions contemplated hereby and thereby (other than such resizing) and all the costs of furnishing all opinions by counsel for Borrower (excluding any opinions requested by Lender pursuant to this Agreement in conjunction with such resizing); (ii) Lender’s ongoing performance of and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iii) the negotiation, preparation, execution, delivery and administration of any consents,

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amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters as required herein or under the other Loan Documents; (iv) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (v) the filing and recording fees and expenses, mortgage recording taxes, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (vi) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; (vii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a work-out or of any insolvency or bankruptcy proceedings and (viii) procuring insurance policies pursuant to Section 6.1; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender. Any cost and expenses due and payable to Lender may be paid from any amounts in the Holding Account subject to the provisions of Section 3.1.10(a).

(b) Subject to the non-recourse provisions of Section 18.1, Borrower shall protect, indemnify and save harmless Lender, and all officers, directors, stockholders, members, partners, employees, managers, agents, successors and assigns thereof (collectively, the “Indemnified Parties”) from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including all reasonable attorneys’ fees and expenses actually incurred) imposed upon or incurred by or asserted against the Indemnified Parties or the Property or any part of its interest therein, by reason of the occurrence or existence of any of the following (to the extent Proceeds payable on account of the following shall be inadequate; it being understood that in no event will the Indemnified Parties be required to actually pay or incur any costs or expenses as a condition to the effectiveness of the foregoing indemnity) prior to (i) the acceptance by Lender or its designee of a deed-in-lieu of foreclosure with respect to the Property, or (ii) an Indemnified Party or its designee taking possession or control of the Property or (iii) the foreclosure of the Security Instruments, except to the extent caused by the actual willful misconduct or gross negligence of the Indemnified Parties (other than such willful misconduct or gross negligence imputed to the Indemnified Parties because of their interest in the Property): (1) ownership of Borrower’s interest in the Property, or any interest therein, or receipt of any Rents or other sum therefrom, (2) any accident, injury to or death of any persons or loss of or damage to property occurring on or about the Property or any appurtenances thereto, (3) any design, construction, operation, repair, maintenance, use, non-use or condition of the Property or Appurtenances thereto, including claims or penalties arising from violation of any Legal Requirement or Insurance Requirement, as well as any claim based on any patent or latent defect, whether or not discoverable by Lender and any claim the insurance as to which is inadequate, (4) any Default under this Agreement or any of the other Loan Documents or any failure on the part of Borrower to perform or comply with any of the terms of any Operating Agreement within the applicable notice or grace periods, (5) any performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof, (6) any negligence or tortious act or omission on the part of Borrower or any of its

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agents, contractors, servants, employees, sublessees, licensees or invitees, (7) any contest referred to in Section 7.3 hereof, or (8) any obligation or undertaking relating to the performance or discharge of any of the terms, covenants and conditions of the landlord contained in the Subleases or the Master Lease. Any amounts the Indemnified Parties are legally entitled to receive under this Section which are not paid within fifteen (15) Business Days after written demand therefor by the Indemnified Parties or Lender, setting forth in reasonable detail the amount of such demand and the basis therefor, shall bear interest from the date of demand at the Default Rate, and shall, together with such interest, be part of the Indebtedness and secured by the Security Instruments. In case any action, suit or proceeding is brought against the Indemnified Parties by reason of any such occurrence, Borrower shall at Borrower’s expense resist and defend such action, suit or proceeding or will cause the same to be resisted and defended by counsel at Borrower’s reasonable expense for the insurer of the liability or by counsel designated by Borrower (unless reasonably disapproved by Lender promptly after Lender has been notified of such counsel); provided, however, that nothing herein shall compromise the right of Lender (or any Indemnified Party) to appoint its own counsel at Borrower’s expense for its defense with respect to any action which in its reasonable opinion presents a conflict or potential conflict between Lender or such Indemnified Party and Borrower that would make such separate representation advisable; provided further that if Lender or such Indemnified Party shall have appointed separate counsel pursuant to the foregoing, Borrower shall not be responsible for the expense of additional separate counsel of any Indemnified Party or Lender unless in the reasonable opinion of Lender a conflict or potential conflict exists between such Indemnified Party and Lender. So long as Borrower is resisting and defending such action, suit or proceeding as provided above in a prudent and commercially reasonable manner, Lender and the Indemnified Parties shall not be entitled to settle such action, suit or proceeding without Borrower’s consent which shall not be unreasonably withheld or delayed, and claim the benefit of this Section 19.12 with respect to such action, suit or proceeding and Lender agrees that it will not settle any such action, suit or proceeding without the consent of Borrower; provided, however, that if Borrower is not diligently defending such action, suit or proceeding in a prudent and commercially reasonable manner as provided above, and Lender has provided Borrower with thirty (30) days’ prior written notice, or shorter period if mandated by the requirements of applicable law, and opportunity to correct such determination, Lender may settle such action, suit or proceeding and claim the benefit of this Section 19.12 with respect to settlement of such action, suit or proceeding. Any Indemnified Party will give Borrower prompt notice after such Indemnified Party obtains actual knowledge of any potential claim by such Indemnified Party for indemnification hereunder. The Indemnified Parties shall not settle or compromise any action, proceeding or claim as to which it is indemnified under this Section 19.12 without prior notice to and reasonable consent of Borrower.

19.13 Exhibits and Schedules Incorporated. The Exhibits and Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

19.14 Offsets, Counterclaims and Defenses. Any assignee of Lender’s interest in and to this Agreement, the Notes and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any

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such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

19.15 Liability of Assignees of Lender. No assignee of Lender shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any other Loan Document or any amendment or amendments hereto made at any time or times, heretofore or hereafter, any different than the liability of Lender hereunder. In addition, no assignee shall have at any time or times hereafter any personal liability, directly or indirectly, under or in connection with or secured by any agreement, lease, instrument, encumbrance, claim or right affecting or relating to the Property or to which the Property is now or hereafter subject any different than the liability of Lender hereunder. The limitation of liability provided in this Section 19.15 is (i) in addition to, and not in limitation of, any limitation of liability applicable to the assignee provided by law or by any other contract, agreement or instrument, and (ii) shall not apply to any assignee’s gross negligence or willful misconduct.

19.16 No Joint Venture or Partnership; No Third Party Beneficiaries.

(a) Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b) This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

19.17 Publicity. Each party shall endeavor to permit the other to review the initial press release relating to the Loan in order to provide the other with a reasonable opportunity to comment thereon.

19.18 Waiver of Marshalling of Assets. To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s members and others with interests in Borrower and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Indebtedness without any prior or

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different resort for collection or of the right of Lender to the payment of the Indebtedness out of the net proceeds of the Property in preference to every other claimant whatsoever.

19.19 Waiver of Counterclaim and other Actions. Borrower hereby expressly and unconditionally waives, in connection with any suit, action or proceeding brought by Lender on this Agreement, the Notes, any Security Instrument or any Loan Document, any and every right it may have to (i) interpose any counterclaim therein (other than a counterclaim which can only be asserted in the suit, action or proceeding brought by Lender on this Agreement, the Notes, any Security Instrument or any Loan Document and cannot be maintained in a separate action) and (ii) have any such suit, action or proceeding consolidated with any other or separate suit, action or proceeding.

19.20 Conflict; Construction of Documents; Reliance. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

19.21 Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of any and all such prior agreements do not survive execution of this Agreement.

19.22 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which shall constitute one document.

[NO FURTHER TEXT ON THIS PAGE]

164

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

	BORROWER:

	FCP PROPCO LLC, a Delaware limited liability company


	By:	/s/ Thomas M. Friel
	Name: Thomas M. Friel
	Title: Authorized Signatory

[Lender’s signature appears on following page]

Borrower’s Execution Page

LENDER:

GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation, on behalf of the holders of the Notes


By:	/s/ John Beacham
		Name: John Beacham
		Title: Vice President


By:	/s/ Jeffrey E. Paige
		Name: Jeffrey E. Paige
		Title: Vice President


JPMORGAN CHASE BANK, N.A., a national banking association, on behalf of the holders of the Notes


By:	/s/ Michael Mesard
		Name: Michael Mesard
		Title: Executive Director

EX-4.2 3 a2185441zex-4_2.htm EXHIBIT 4.2

EXHIBIT 4.2

AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT
(FIRST MEZZANINE)

Dated as of March 19, 2008

Among

FCP MEZZCO BORROWER I, LLC

as Mezzanine Borrower

and

GERMAN AMERICAN CAPITAL CORPORATION

and

JPMORGAN CHASE BANK, N.A.,

on behalf of the holders of the Mezzanine Notes,

as Mezzanine Lender

TABLE OF CONTENTS

				Page

I.	DEFINITIONS; PRINCIPLES OF CONSTRUCTION			10
	1.1	Definitions		10
	1.2	Principles of Construction		40

II.	GENERAL TERMS			40
	2.1	Loan; Disbursement to Mezzanine Borrower		40
		2.1.1	The Loan	40
		2.1.2	Disbursement to Mezzanine Borrower	40
		2.1.3	The Mezzanine Notes, Pledge and Mezzanine Loan Documents	40
		2.1.4	Use of Proceeds	40
	2.2	Interest; Loan Payments; Late Payment Charge		41
		2.2.1	Payment of Principal and Interest	41
		2.2.2	Method and Place of Payment	41
		2.2.3	Late Payment Charge	41
		2.2.4	Usury Savings	42
	2.3	Prepayments		42
		2.3.1	Mandatory Prepayments	42
		2.3.2	Prepayments After Event of Default; Application of Amounts Paid	42
		2.3.3	Release of Collateral upon Repayment of Loan in Full	43
		2.3.4	Release of Individual Properties	43
		2.3.5	Substitution of Properties.	46
		2.3.6	Provisions Relating to Individual Properties That Go Dark	52
		2.3.7	Excess Account Collateral	52
		2.3.8	Reserve Requirements	53
		2.3.9	Release of Unimproved Parcels	54
	2.4	Regulatory Change; Taxes		54
		2.4.1	Increased Costs	55
		2.4.2	Special Taxes	55
		2.4.3	Other Taxes	55
		2.4.4	Indemnity	56
		2.4.5	Change of Office	56
		2.4.6	Survival	56
	2.5	Conditions Precedent to Closing		56
		2.5.1	Representations and Warranties; Compliance with Conditions	56
		2.5.2	Delivery of Mezzanine Loan Documents; Title Policies; Reports; Leases	56
		2.5.3	Delivery of Organizational Documents	58
		2.5.4	Counsel Opinions	58
		2.5.5	Consummation of the Merger	59
		2.5.6	Payments	59
		2.5.7	Transaction Costs	59
		2.5.8	Material Adverse Effect	60

		2.5.9	Control	60
		2.5.10	Insolvency	60
		2.5.11	Master Lease and Individual Property Subleases	60
		2.5.12	Equity Contribution	60
		2.5.13	Existing Indebtedness	60
		2.5.14	Ground Lease and Fee Mortgagee Estoppels	61
		2.5.15	Equity and Real Property Transfer Documents	61
		2.5.16	No Competing Financing	61
		2.5.17	Approvals	61
		2.5.18	Searches	62
	2.6	[Reserved]		62

III.	CASH MANAGEMENT			62
	3.1	Cash Management		62
		3.1.1	Establishment of Accounts	62
		3.1.2	Pledge of Account Collateral (First Mezzanine)	63
		3.1.3	Maintenance of Collateral Accounts	63
		3.1.4	Eligible Accounts	64
		3.1.5	Deposits into Sub-Accounts	64
		3.1.6	Monthly Funding	64
		3.1.7	Cash Management Bank (First Mezzanine)	66
		3.1.8	Mezzanine Borrower’s Account Representations, Warranties and Covenants	66
		3.1.9	Account Collateral (First Mezzanine) and Remedies	67
		3.1.10	Transfers and Other Liens	68
		3.1.11	Reasonable Care	68
		3.1.12	Mezzanine Lender’s Liability	68
		3.1.13	Continuing Security Interest	69
		3.1.14	Distributions	69

IV.	REPRESENTATIONS AND WARRANTIES			69
	4.1	Mezzanine Borrower Representations		69
		4.1.1	Organization	69
		4.1.2	Proceedings	70
		4.1.3	No Conflicts	70
		4.1.4	Litigation	70
		4.1.5	Agreements	71
		4.1.6	Title to Property and Assets	71
		4.1.7	No Bankruptcy Filing	72
		4.1.8	Full and Accurate Disclosure	72
		4.1.9	Ownership Interests	72
		4.1.10	No Plan Assets	72
		4.1.11	Compliance	73
		4.1.12	Financial Information	73
		4.1.13	Condemnation	73
		4.1.14	Federal Reserve Regulations	74
		4.1.15	Utilities and Public Access	74

		4.1.16	Not a Foreign Person	74
		4.1.17	Setoff, Etc	74
		4.1.18	Representations and Warranties in the Loan Documents (Mortgage)	74
		4.1.19	[Reserved.]	74
		4.1.20	Enforceability	74
		4.1.21	[Reserved.]	75
		4.1.22	Insurance	75
		4.1.23	Use of Property	75
		4.1.24	Certificate of Occupancy; Licenses	75
		4.1.25	Flood Zone	75
		4.1.26	Physical Condition	75
		4.1.27	Boundaries	76
		4.1.28	Subleases	76
		4.1.29	Filing and Recording Taxes	76
		4.1.30	Single Purpose Entity/Separateness	76
		4.1.31	[Reserved.]	77
		4.1.32	Illegal Activity	77
		4.1.33	No Change in Facts or Circumstances; Disclosure	77
		4.1.34	[Reserved.]	77
		4.1.35	Tax Filings	77
		4.1.36	Solvency/Fraudulent Conveyance	77
		4.1.37	Investment Company Act	78
		4.1.38	Interest Rate Cap Agreement (First Mezzanine)	78
		4.1.39	Labor	78
		4.1.40	Brokers	78
		4.1.41	No Other Debt	78
		4.1.42	Taxpayer Identification Number	78
		4.1.43	Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering Laws	79
		4.1.44	Merger Agreement	79
		4.1.45	Rights of First Refusal or First Offer to Lease or Purchase	79
	4.2	Survival of Representations		79
	4.3	Mezzanine Borrower’s Knowledge		79

V.	MEZZANINE BORROWER COVENANTS			80
	5.1	Affirmative Covenants		80
		5.1.1	Performance by Mezzanine Borrower	80
		5.1.2	Existence; Compliance with Legal Requirements; Insurance	80
		5.1.3	Litigation	81
		5.1.4	Single Purpose Entity	81
		5.1.5	Consents	82
		5.1.6	Access to Property	82
		5.1.7	Notice of Default	82
		5.1.8	Cooperate in Legal Proceedings	83
		5.1.9	[Reserved.]	83
		5.1.10	Insurance	83

		5.1.11	Further Assurances; Separate Notes; Loan Resizing	83
		5.1.12	Mortgage Taxes	84
		5.1.13	Operation	84
		5.1.14	Business and Operations	85
		5.1.15	Title to the Collateral	85
		5.1.16	Costs of Enforcement	85
		5.1.17	Estoppel Statements	85
		5.1.18	Loan Proceeds	86
		5.1.19	No Joint Assessment	86
		5.1.20	No Further Encumbrances	86
		5.1.21	Loan (Mortgage) Covenants	86
		5.1.22	Master Lease	87
	5.2	Negative Covenants		89
		5.2.1	Incur Debt	89
		5.2.2	Encumbrances	89
		5.2.3	Engage in Different Business	89
		5.2.4	Make Advances	90
		5.2.5	Subdivision	90
		5.2.6	Commingle	90
		5.2.7	Guarantee Obligations	90
		5.2.8	Transfer Assets	90
		5.2.9	Amend Organizational Documents	90
		5.2.10	Dissolve	90
		5.2.11	Bankruptcy	90
		5.2.12	ERISA	90
		5.2.13	Distributions	90
		5.2.14	Modify Mezzanine Account Agreement	91
		5.2.15	Zoning Reclassification	91
		5.2.16	Change of Principal Place of Business	91
		5.2.17	Debt Cancellation	91
		5.2.18	Misapplication of Funds	91
		5.2.19	Single-Purpose Entity	91

VI.	INSURANCE; CASUALTY; CONDEMNATION; RESTORATION			91
	6.1	Insurance Coverage Requirements		91
		6.1.1	Insurance Proceeds	92
		6.1.2	Restoration of Property	92
		6.1.3	Compliance	92
	6.2	Condemnation		92
	6.3	Certificates		93

VII.	IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS			94
	7.1	Mortgage Borrower to Pay Impositions and Other Charges		94
	7.2	No Liens		94
	7.3	Contest		95

VIII.	TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS			96
	8.1	General Restriction on Transfers		96
	8.2	Sale of Building Equipment		96
	8.3	Immaterial Transfers and Easements, etc.		96
	8.4	[Reserved.]		97
	8.5	Permitted Equity Transfers		97
	8.6	Deliveries to Mezzanine Lender		98
	8.7	Loan Assumption		98
	8.8	Subleases		99
		8.8.1	Master Lease and Existing Subleases	99
		8.8.2	Leasing Conditions	99
		8.8.3	Delivery of New Sublease or Sublease Modification	100
		8.8.4	Sublease Amendments	100
		8.8.5	Security Deposits	100
		8.8.6	No Default Under Subleases	100

IX.	INTEREST RATE CAP AGREEMENT (FIRST MEZZANINE)			101
	9.1	Interest Rate Cap Agreement (First Mezzanine)		101
	9.2	Pledge and Collateral Assignment		101
	9.3	Covenants		101
	9.4	Powers of Mezzanine Borrower Prior to an Event of Default		103
	9.5	Representations and Warranties		103
	9.6	Payments		104
	9.7	Remedies		104
	9.8	Sales of Rate Cap Collateral (First Mezzanine)		106
	9.9	Public Sales Not Possible		107
	9.10	Receipt of Sale Proceeds		107
	9.11	Replacement Interest Rate Cap Agreement (First Mezzanine)		107

X.	MAINTENANCE OF PROPERTY; ALTERATIONS			107
	10.1	Maintenance of Property		107
	10.2	Conditions to Alteration		107
	10.3	Costs of Alteration		108

XI.	BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION			109
	11.1	Books and Records		109
	11.2	Financial Statements		110
		11.2.1	Monthly Reports	110
		11.2.2	Quarterly Reports	110
		11.2.3	Annual Reports	111
		11.2.4	Disclosure Restrictions	111
		11.2.5	Capital Expenditures Summaries	111
		11.2.6	Master Lease	112
		11.2.7	Annual Budget; Operating Agreement Annual Budgets	112
		11.2.8	Other Information	112
		11.2.9	Proprietary Information	112

XII.	ENVIRONMENTAL MATTERS			113
	12.1	Representations		113
	12.2	Covenants		114
		12.2.1	Compliance with Environmental Laws	114
		12.2.2	Notices Regarding Environmental Events	114
		12.2.3	Other Notices	114
	12.3	Environmental Reports		114
	12.4	Environmental Indemnification		115
	12.5	Recourse Nature of Certain Indemnifications		116

XIII.	THE OPERATING AGREEMENTS			116
	13.1	Operating Agreement Representations, Warranties		116
	13.2	Cure by Mezzanine Lender		117
	13.3	Option to Renew or Extend the Ground Lease		118
	13.4	Operating Agreement Covenants		118
		13.4.1	Waiver of Interest In New Ground Lease	118
		13.4.2	No Election to Terminate	118
		13.4.3	Notice Prior to Rejection	119
		13.4.4	Mezzanine Lender Right to Perform	119
		13.4.5	Mezzanine Lender Attorney in Fact	119
		13.4.6	Payment of Sums Due Under Operating Agreements	120
		13.4.7	Performance of Covenants	120
		13.4.8	[Reserved	120
		13.4.9	No Modification or Termination	120
		13.4.10	Notices of Default	120
		13.4.11	Delivery of Information	120
		13.4.12	No Subordination	121
		13.4.13	Further Assurances	121
		13.4.14	Estoppel Certificates	121
		13.4.15	Common Area/Common Elements Insurance	121
	13.5	Mezzanine Lender Right to Participate		121
	13.6	No Liability		121

XIV.	[RESERVED]			122

XV.	ASSIGNMENTS AND PARTICIPATIONS			122
	15.1	Assignment and Acceptance		122
	15.2	Effect of Assignment and Acceptance		122
	15.3	Content		122
	15.4	Register		123
	15.5	Substitute Mezzanine Notes		123
	15.6	Participations		124
	15.7	Disclosure of Information		124
	15.8	Security Interest in Favor of Federal Reserve Bank		124

XVI.	[RESERVED]			125

XVII.	DEFAULTS			125
	17.1	Event of Default		125
	17.2	Remedies.		130
	17.3	Remedies Cumulative; Waivers		131
	17.4	Costs of Collection		132

XVIII.	SPECIAL PROVISIONS			132
	18.1	Exculpation		132
		18.1.1	Exculpated Parties	132
		18.1.2	Carveouts From Non-Recourse Limitations	133
	18.2	Pro Rata Share		135

XIX.	MISCELLANEOUS			135
	19.1	Survival		135
	19.2	Mezzanine Lender’s Discretion		136
	19.3	Governing Law		136
	19.4	Modification; Waiver in Writing		137
	19.5	Delay Not a Waiver		137
	19.6	Notices		137
	19.7	Trial By Jury		139
	19.8	Headings		139
	19.9	Severability		140
	19.10	Preferences		140
	19.11	Waiver of Notice		140
	19.12	Expenses; Indemnity		140
	19.13	Exhibits and Schedules Incorporated		142
	19.14	Offsets, Counterclaims and Defenses		142
	19.15	Liability of Assignees of Mezzanine Lender		143
	19.16	No Joint Venture or Partnership; No Third Party Beneficiaries		143
	19.17	Publicity		143
	19.18	Waiver of Marshalling of Assets		143
	19.19	Waiver of Counterclaim and other Actions		144
	19.20	Conflict; Construction of Documents; Reliance		144
	19.21	Prior Agreements		144
	19.22	Counterparts		145
	19.23	Direction of Mortgage Borrower with Respect to the Property		145

EXHIBITS AND SCHEDULES

EXHIBIT A		INTENTIONALLY DELETED
EXHIBIT B		INTENTIONALLY DELETED
EXHIBIT C		INTENTIONALLY DELETED
EXHIBIT D		FORM OF ACKNOWLEDGEMENT
EXHIBIT E		INTENTIONALLY DELETED
EXHIBIT F		FORM OF MASTER LEASE
EXHIBIT G		INTENTIONALLY DELETED
EXHIBIT H		FORM OF GROUND LESSOR ESTOPPEL CERTIFICATE
EXHIBIT I		INTENTIONALLY DELETED
EXHIBIT J		INTENTIONALLY DELETED
EXHIBIT K		MEZZANINE BORROWER ORGANIZATIONAL STRUCTURE
EXHIBIT L		INTEREST RATE CAP AGREEMENT (FIRST MEZZANINE)
EXHIBIT M		FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT N		INTENTIONALLY DELETED
EXHIBIT O		INTENTIONALLY DELETED
EXHIBIT P		INTENTIONALLY DELETED
EXHIBIT Q		RATE CAP COUNTERPARTY ACKNOWLEDGMENT
EXHIBIT R		INTENTIONALLY DELETED
EXHIBIT S		INTENTIONALLY DELETED
EXHIBIT T		INTENTIONALLY DELETED
EXHIBIT U		FORM OF MEMBER POWER
EXHIBIT V		PERMITTED SETTLEMENT AMOUNTS

SCHEDULE I		EXISTING SUBLEASES; MATERIAL SUBLEASES; DEFAULTS OR PREPAID RENT UNDER SUBLEASES; SUBLEASING STANDARDS
SCHEDULE II		LITIGATION SCHEDULE
SCHEDULE III		DEFERRED MAINTENANCE AND REMEDIATION
SCHEDULE IV		UNIMPROVED PARCELS
SCHEDULE 4.1.11		COMPLIANCE
SCHEDULE VI		RIGHTS OF FIRST REFUSAL OR RIGHTS OF FIRST OFFER (OR OTHER RIGHTS OR OPTIONS) TO LEASE OR PURCHASE INDIVIDUAL PROPERTIES
SCHEDULE VII		EXISTING MATTERS OF RECORD
SCHEDULE VIII		RESERVED
SCHEDULE IX		INTERIM SUCCESSOR PRINCIPAL CONTROL PERSONS

AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT

(FIRST MEZZANINE)

THIS AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT dated as of March 19, 2008 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), among FCP MEZZCO BORROWER I, LLC, a Delaware limited liability company (“Mezzanine Borrower”) having an office at 1505 South Pavilion Center Drive, Las Vegas, Nevada 89135, GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation (“GACC” and together with its successors and assigns, “Mezzanine Noteholder I”), having an address at 60 Wall Street, New York, New York 10005, and JPMORGAN CHASE BANK, N.A., a national banking association, having an address at 270 Park Avenue, New York, New York 10017 (“JPMC” and together with its successors and assigns, “Mezzanine Noteholder II”) (Mezzanine Noteholder I and Mezzanine Noteholder II, individually or collectively as the context indicates, “Mezzanine Lender”).

RECITALS:

WHEREAS, Mezzanine Borrower and Mezzanine Lender entered into a Mezzanine Loan and Security Agreement, dated as of November 7, 2007 (the “Original Agreement”) pursuant to which Mezzanine Lender made a loan in the original principal amount of $150,000,000 (the “Original Loan”) to Mezzanine Borrower;

WHEREAS, Mortgage Lender (as hereinafter defined), Mezzanine Lender and Current Junior Mezzanine Lenders (as hereinafter defined) have determined to decrease the principal amount of the Loan (Mortgage) (as hereinafter defined) and correspondingly increase the principal amounts of the Original Loan and the Junior Mezzanine Loans (as hereinafter defined);

WHEREAS, in order to implement such resizing, Mortgage Borrower (as hereinafter defined) shall delegate and transfer its obligations in respect of a portion of the Loan (Mortgage) to each of Mezzanine Borrower and the Current Junior Mezzanine Borrowers (as hereinafter defined), each of Mezzanine Borrower and the Current Junior Mezzanine Borrowers will assume the obligations of the Mortgage Borrower as to each such delegated portion of the Loan (Mortgage), the Mortgage Lender will novate the obligations of Mortgage Borrower so as to exonerate Mortgage Borrower from any obligation to Mortgage Lender in respect of the delegated portions of the Loan (Mortgage) and each of Mezzanine Lender and each of the Current Junior Mezzanine Lenders shall agree that the portion of the Loan (Mortgage) assumed by each of Mezzanine Borrower and each of the Current Junior Mezzanine Borrowers, respectively, shall be treated for all purposes as an obligation of Mezzanine Borrower or the applicable Current Junior Mezzanine Borrower under its respective mezzanine loan agreement;

WHEREAS, in order to implement such resizing, the parties desire to amend and restate the Original Agreement in its entirety.

I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“80% Trigger Approval Period” shall mean any period (a) commencing on the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR is less than 80% of Closing Date LCR and (b) ending on the day immediately preceding the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR exceeds 80% of Closing Date LCR, provided that no Noticed Default or Event of Default is then continuing and that Mezzanine Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default or Event of Default exists; and, for avoidance of doubt, subject to resumption of the 80% Trigger Approval Period upon any subsequent occurrence of the conditions set forth in clause (a) above.

“90% Cash Sweep Period” shall mean any period (a) commencing on the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR is less than 90% of Closing Date LCR and (b) ending on the day immediately preceding the Payment Date following the conclusion of any two (2) consecutive Fiscal Quarters for which the LCR exceeds 90% of Closing Date LCR, provided that no Noticed Default or Event of Default is then continuing and that Mezzanine Borrower shall then have delivered an Officer’s Certificate certifying to the best of the signer’s actual knowledge without investigation that as of the date of such Officer’s Certificate no Default or Event of Default exists, and, for avoidance of doubt, subject to resumption of the 90% Cash Sweep Period upon any subsequent occurrence of the conditions set forth in clause (a) above.

“Account Collateral (First Mezzanine)” shall have the meaning set forth in Section 3.1.2.

“Acknowledgment” shall mean the Acknowledgment, dated on or about the Closing Date made by Counterparty, or as applicable, Approved Counterparty in the form of Exhibit Q.

“Actually Known by the Mezzanine Lender to the Contrary” shall mean the actual receipt, prior to the Closing Date, by Todd Sammann and Michael Mesard of an email, fax, memorandum, letter or other written statement from any of Mezzanine Borrower, Sponsor, or Mezzanine Lender’s counsel expressly disclosing to Mezzanine Lender a state of facts contrary to a representation made by Mezzanine Borrower in Section 4.1.

“Additional Non-Consolidation Opinion” shall have the meaning set forth in Section 4.1.30(b).

“Aggregate Appraised Value” shall have the meaning set forth in the Loan Agreement (Mortgage).

“Agreement” shall have the meaning set forth in the Preamble hereof.

“Aliante Financing” shall have the meaning set forth in Section 2.5.13.

“Allocated Loan Amount” shall mean with respect to each Individual Property, the designated “Mezzanine Allocated Loan Amount” allocated to the Loan and applicable to such Individual Property as set forth in the Loan Agreement (Mortgage).

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Alteration” shall have the meaning set forth in the Loan Agreement (Mortgage).

“Amendment Effective Date” means March 19, 2008.

“Annual Budget” shall have the meaning set forth in the Loan Agreement (Mortgage).

“Appraised Value” shall mean, for an Individual Property, the value of such Individual Property as determined by the Appraisal for such Individual Property.

“Architect” shall mean an architect, engineer or construction consultant selected by Mortgage Borrower (which can be an employee of Mortgage Borrower or an Affiliate), licensed to practice in the relevant State, if required by the laws of such State, and has at least five (5) years of architectural or construction management experience and which is approved by Mezzanine Lender, which approval shall not be unreasonably withheld, delayed or conditioned.

“Asset-Specific Proprietary Information” shall have the meaning set forth in Section 11.2.9(b).

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by Mezzanine Lender and an assignee, and accepted by Mezzanine Lender in accordance with Article XV and in substantially the form of Exhibit M or such other form customarily used by Mezzanine Lender in connection with the participation or syndication of mortgage loans at the time of such assignment.

“Assignment of Leases Counterpart” shall have the meaning set forth in Section 2.3.5(d).

“Assigned Landlord Lien” shall have the meaning set forth in the Loan Agreement (Mortgage).

“Bankruptcy Code” shall mean Title 11, U.S.C.A., as amended from time to time and any successor statute thereto.

“Borrower Party” shall mean any of Mezzanine Borrower, Mortgage Borrower, Junior Mezzanine Borrowers and Guarantors.

“Building Equipment” shall have the meaning set forth in the Security Instruments, collectively.

“Cash” shall mean the legal tender of the United States of America.

“Cash and Cash Equivalents” shall mean any one or a combination of the following: (i) Cash, and (ii) U.S. Government Obligations.

“Cash Equity Contribution” shall have the meaning set forth in Section 2.5.12.

“Cash Management Bank (First Mezzanine)” shall mean any Approved Bank acting as Cash Management Bank under the Mezzanine Account Agreement or other financial institution approved by the Mezzanine Lender. The Cash Management Bank (Mortgage) may serve as the Cash Management Bank (First Mezzanine) so long as it is a party to the Mezzanine Account Agreement.

“Cash Management Bank (Mortgage)” shall mean the “Cash Management Bank” as defined in the Loan Agreement (Mortgage).

“Certificate” shall mean the certificate evidencing the Ownership Interests.

“Closing Date” shall mean November 7, 2007.

“Closing Date LCR” shall mean a ratio of 1.28:1.

“Closing Date LTV” shall mean 79.7%.

“Collateral” shall mean collectively (i) all of the Pledged Collateral and all proceeds thereof, (ii) all Receipts of the Mortgage Borrower, (iii) any stock certificates or other certificates, membership interest certificates or instruments evidencing any of the foregoing property described in clauses (i) and (ii) above, (iv) the Rate Cap Collateral, (First Mezzanine), (v) the Account Collateral (First Mezzanine) and (vi) all other rights appurtenant to the property described in clauses (i) through (v) above.

“Collateral Accounts (First Mezzanine)” shall have the meaning set forth in Section 3.1.1.

“Collateral Agent” means German American Capital Corporation in its capacity as collateral agent acting on behalf of Mezzanine Lender.

“Combined Allocated Loan Amount” shall mean with respect to each Individual Property, the aggregate portions of the Loan, the Mortgage Loan and the Junior Mezzanine Loans allocated to such Individual Property that is set forth in the Loan Agreement (Mortgage).

“Combined Loans” shall mean the Mortgage Loan, the Loan, and the Junior Mezzanine Loans, collectively.

“Combined Principal Amount” shall mean the sum of each “Principal Amount” as defined in each of the Loan Agreement (Mortgage), this Agreement, and the Junior Mezzanine Loan Agreements.

Range of Outstanding Aggregate Combined Allocated Loan Amounts Following Release	Combined Release Price Percentage

From $2,475,000,000 to and including $2,103,750,000	100	%

Less than $2,103,750,000 to and including $1,732,500,000	110	%

Less than $1,732,500,000 to $0.00	120	%

“Contemplated Transactions” shall mean, collectively, (i) the transactions consummated pursuant to the Merger Agreement, including but not limited to the acquisition of Station Casinos, Inc. by the Guarantors and the various equity transfers in connection with the related restructuring, (ii) the merger of FCP MezzCo Parent Merger Sub, LLC into FCP MezzCo Parent, LLC, (iii) Mortgage Borrower’s acquisition of the Property from subsidiaries of Master Lessee and the various equity transfers and merger related to such acquisition, (iv) the leasing or subleasing of the Property from Mortgage Borrower to Master Lessee pursuant to the Master Lease, (v) the execution and delivery of the Mortgage Loan Documents, the Mezzanine Loan Documents, and Junior Mezzanine Loan Documents, Mortgage Borrower’s, Mezzanine Borrower’s and Junior Mezzanine Borrower’s performance thereunder, the recordation of the Security Instruments, the filing of the UCC financing statements evidencing the Pledge, and the exercise of any remedies by Mortgage Lender, Mezzanine Lender or any Junior Mezzanine Lender, and (vi) following Mortgage Lender’s or its designee’s succession in title to any Property, the transfer of any such Property by Mortgage Lender or such designee.

proceedings with respect to debtor protection, and the merger, consolidation, liquidation or dissolution of such Person in favor of a Person shall not be deemed to constitute “Control”), together with (ii) the ownership, direct or indirect, of no less than 51% of the voting securities of such Person, and the terms Controlled, Controlling and Common Control shall have correlative meanings.

“Counterparty” shall mean, with respect to the Interest Rate Cap Agreement (First Mezzanine), JPMorgan Chase Bank, N.A., and with respect to any Replacement Interest Rate Cap Agreement (First Mezzanine), any substitute Approved Counterparty.

“Counterparty Opinion” shall have the meaning set forth in Section 9.3(g).

“Current Junior Mezzanine Borrowers” shall mean, collectively, Second Mezzanine Borrower, Third Mezzanine Borrower and Fourth Mezzanine Borrower.

“Current Junior Mezzanine Lenders” shall mean, collectively, Second Mezzanine Lender, Third Mezzanine Lender and Fourth Mezzanine Lender.

“Debt Service (First Mezzanine)” shall mean, with respect to any particular period of time, scheduled interest payments under the Mezzanine Notes.

“Default” shall mean the occurrence of any event hereunder or under any other Mezzanine Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall have the meaning set forth in the Mezzanine Notes.

“Disqualified Transferee” shall mean any proposed transferee that, (i) has been convicted in a criminal proceeding for a felony or a crime involving moral turpitude or that is an organized crime figure or is reputed (as determined by Mezzanine Lender in its sole discretion) to have substantial business or other affiliations with an organized crime figure, or (ii) has been found by a court of competent jurisdiction or other Governmental Authority in a comparable proceeding to have violated any federal or state securities laws or regulations promulgated thereunder.

“Environmental Certificate” shall have the meaning set forth in Section 12.2.2.

“Environmental Claim” shall mean the meaning set forth in the Loan Agreement (Mortgage).

“Environmental Event” shall have the meaning set forth in Section 12.2.2.

“Environmental Law” shall mean any federal, state or local statute, regulation or ordinance or any judicial or administrative decree or decision, whether now existing or hereinafter enacted, promulgated or issued, with respect to the protection of human health from any environmental hazards (as relating to exposure to such environmental hazards), or the environment, or any Hazardous Materials, wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water run-off, waste emissions or wells. Without limiting the generality of the foregoing, the term shall encompass each of the following statutes, and regulations promulgated thereunder, and amendments and successors to such statutes and regulations, as may be enacted and promulgated from time to time: (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified in scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. §9601 et seq.); (ii) the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.); (iii) the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.); (iv) the Toxic Substances Control Act (15 U.S.C. §2061 et seq.); (v) the Clean Water Act (33 U.S.C. §1251 et seq.); (vi) the Clean Air Act (42 U.S.C. §7401 et seq.); (vii) the Safe Drinking Water Act (21 U.S.C. §349; 42 U.S.C. §201 and §300f et seq.); (viii) the National Environmental Policy Act of 1969 (42 U.S.C. §4321); (ix) the Superfund Amendment and Reauthorization Act of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x) Title III of the Superfund Amendment and Reauthorization Act (40 U.S.C. §1101 et seq.).

“Environmental Reports” shall have the meaning set forth in Section 12.1.

“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.

“Event of Default” shall have the meaning set forth in Section 17.1(a).

“Excess Cash Flow” shall have the meaning set forth in the Loan Agreement (Mortgage).

“Excess Proceeds” shall have the meaning set forth in Section 2.3.1.

“Exculpated Parties” shall have the meaning set forth in Section 18.1.1.

“Excusable Delay” shall mean a delay due to strikes, lockouts, inability to procure materials, power failure, acts of God, governmental restrictions, enemy or terrorist action, civil commotion, fire, unavoidable casualty or other causes beyond the control of the Borrower Party responsible for performing an obligation hereunder, provided that lack of funds shall not be deemed a cause beyond the control of any Borrower Party.