Common use of Certain Matters Affecting the Cash Management Bank Clause in Contracts

Certain Matters Affecting the Cash Management Bank. (a) The Cash Management Bank shall not be under any obligation or duty to inquire into the terms of the Operating Agreement or any other agreement made or entered into in connection with this Agreement to which the Cash Management Bank is not a party. (b) The Cash Management Bank may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. The Cash Management Bank shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Cash Management Bank shall have no duty to solicit any payments which may be due it hereunder. (c) The Cash Management Bank may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Company agrees to pay or reimburse the Cash Management Bank upon request for all reasonable expenses, disbursement and advances, including reasonable attorney’s fees, incurred or made by it, in connection with the preparation, execution, performance, delivery, modification and termination of this Agreement. (e) The Cash Management Bank shall not be liable for any claims, suits, actions, costs, damages, liabilities or expenses or for any interruption of services, or incidental, consequential, special or punitive damages (“Liabilities”) in connection with the subject matter of this Agreement other than Liabilities caused by the gross negligence or willful misconduct of the Cash Management Bank, and the Company hereby agrees to indemnify and hold harmless the Cash Management Bank and its affiliates and the directors, officers, employees and agents of any of them from and against any and all Liabilities arising from or in connection with any acts or omissions taken by the Cash Management Bank or any of its affiliates or any director, officer, employee or agent of any of them in connection with this Agreement, other than those Liabilities caused by the gross negligence or willful misconduct of the Cash Management Bank or such indemnified parties. (f) If the Company becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Cash Management Bank is otherwise served with legal process, Cash Management Bank shall have the right (i) to place a hold on funds deposited in the Account until such time as Cash Management Bank receives an appropriate court order or other assurances satisfactory to Cash Management Bank establishing that the funds may continue to be disbursed according to the instructions contained in this Agreement or (ii) to commence, at the Company’s expense, an interpleader action in any United States District Court in the State of California and to take no further action except in accordance with joint instructions from the Class A Member and the Company or in accordance with the final order of the court in such action. (g) The Company shall provide the Cash Management Bank with the Tax Identification Number (TIN) as assigned to it by the Internal Revenue Service. All interest or income earned under this Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid.

Certain Matters Affecting the Cash Management Bank. (a) The Cash Management Bank shall not be bound by or under any obligation or duty to inquire into the terms term of the Operating Loan Agreement or any other agreement made or entered into in connection with this Agreement to which the Cash Management Bank is not a party. (b) The Cash Management Bank may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. The Cash Management Bank shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Cash Management Bank shall have no duty to solicit any payments which may be due it hereunder. The duties and obligations of the Cash Management Bank shall be determined solely by the express provisions of this Agreement. No implied covenants or obligations shall be read into this Agreement against the Cash Management Bank. (c) The Cash Management Bank and its directors, officers, employees and agents, shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that Cash Management Bank’s gross negligence or willful misconduct was the primary cause of any loss to the Borrower or the Lender. The Cash Management Bank may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Company Borrower agrees to pay or reimburse the Cash Management Bank upon request for all reasonable expenses, disbursement fees, disbursements, charges, return items and advances, including reasonable attorney’s fees, incurred or made by it, in connection with the preparation, execution, performance, delivery, modification and termination of this Agreement. (e) The Cash Management Bank and its directors, officers, agents or employees shall not be liable for any claims, suits, actions, costs, damages, liabilities or expenses or for any interruption of services, or incidental, consequential, special or punitive damages (“Liabilities”) in connection with the subject matter of this Agreement other than Liabilities caused by the gross negligence or willful misconduct of the Cash Management Bank, or its directors, officers, agents or employees, and the Company Borrower hereby agrees to indemnify and hold harmless the Cash Management Bank and its affiliates and the directors, officers, employees and agents of any of them from and against any and all Liabilities arising from or in connection with any acts or omissions taken by the Cash Management Bank or any of its affiliates directors, officers, employees or any director, officer, employee or agent of any of them agents in connection with this Agreement, and the Lender hereby agrees to indemnify and hold harmless the Cash Management Bank and such other indemnified parties from any and all such Liabilities resulting from the Cash Management Bank’s compliance with instructions delivered by the Lender to the Cash Management Bank, in each case, other than those Liabilities caused by the gross negligence or willful misconduct of the Cash Management Bank or such indemnified parties.. Cash Management Bank, Borrower and Lender agree that the liabilities, indemnifications and protections specified herein shall survive any termination of this Agreement. Upon the written request of the Cash Management Bank or any of its directors, officers, employees or agents, the indemnifying party (whether the Borrower or the Lender, as indicated above) agrees to assume the investigation and defense of any Liabilities subject to the foregoing indemnity. The Borrower and the Lender hereby agree that the indemnifications and protections afforded the indemnified parties in this subsection shall survive the termination of this Agreement (f) If the Company becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Cash Management Bank is otherwise served with legal process, Cash Management Bank shall have the right (i) to place a hold on funds deposited in the Account until such time as Cash Management Bank receives an appropriate court order or other assurances satisfactory to Cash Management Bank establishing that the funds may continue to be disbursed according to the instructions contained in this Agreement or (ii) to commence, at the Company’s expense, an interpleader action in any United States District Court in the State of California and to take no further action except in accordance with joint instructions from the Class A Member and the Company or in accordance with the final order of the court in such action. (g) The Company Borrower shall provide the Cash Management Bank with the Tax Identification Number (TIN) as assigned to it by the Internal Revenue Service. All interest or income earned under this Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. (g) Cash Management Bank will not enter into any additional third-party agreement with respect to the Account (including, without limitation, any third party control agreements) without the prior written consent of the Lender. (h) Cash Management Bank has not received a copy of the Loan Agreement and is not responsible for the provisions set forth therein.

Certain Matters Affecting the Cash Management Bank. (a) The Cash Management Bank shall not be under any obligation or duty to inquire into the terms of the Operating Agreement or any other agreement made or entered into in connection with this Agreement to which the Cash Management Bank is not a party. (b) The Cash Management Bank may rely and shall be protected in acting or refraining from acting upon any written notice, instruction resolution, request, consent, order, certificate, report, opinion, bond or request furnished to it hereunder and other paper, document or signature believed by it in good faith to be genuine and presented to have been signed or presented it by the proper party or parties, and it may be assumed that any person purporting to act on behalf of any Person giving any of the foregoing in connection with the provisions hereof has been duly authorized to do so. Cash Management Bank 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 herewith. Cash Management Bank shall not be liable for any act or omission done or omitted to be done by Cash Management Bank in reliance upon any instruction, direction or certification received by Cash Management Bank and without fraud, bad faith, gross negligence or willful or reckless misconduct on the part of Cash Management Bank. The Cash Management Bank shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Cash Management Bank shall have no duty to solicit any payments which may be due it hereunder. (cb) The Cash Management Bank may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Company agrees to pay or reimburse the Cash Management Bank upon request for all reasonable expenses, disbursement and advances, including reasonable attorney’s fees, incurred or made by it, in connection with the preparation, execution, performance, delivery, modification and termination of this Agreement. (e) The Cash Management Bank shall not be liable for any claimsaction taken or omitted by it in good faith unless a court of competent jurisdiction determines that Cash Management Bank’s fraud, suitswillful misconduct or gross negligence was the primary cause of any loss to Lender, actionsAdministrative Agent and/or Collateral Agent. In the administration of the Accounts, costsCash Management Bank may execute any of its powers and perform its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of such agent or attorney) and may consult with counsel, damagesaccountants and other skilled persons to be selected and retained by it. (c) In no event shall Cash Management Bank be liable either directly or indirectly for losses or delays resulting from force majeure, liabilities computer malfunctions, interruption of communication facilities, labor difficulties or expenses other causes, in each case to the extent beyond Cash Management Bank’s reasonable control or for any interruption of services, or incidental, consequentialindirect, special or punitive damages consequential damages. (“Liabilities”d) Borrower shall indemnify, defend and save harmless Cash Management Bank from all loss, liability or expense (including the fees and expenses of in-house or outside counsel) arising out of or in connection with the subject matter (i) its execution and performance of this Agreement other than Liabilities caused by Agreement, except to the extent that such loss, liability or expense is due to the fraud, gross negligence or willful misconduct of the Cash Management Bank, and or (ii) its following any instructions or other directions from Administrative Agent or Borrower, except to the Company hereby agrees extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Anything in this agreement to indemnify and hold harmless the contrary notwithstanding, in no event shall Cash Management Bank and its affiliates and the directorsbe liable for special, officers, employees and agents indirect or consequential loss or damage of any of them from and against any and all Liabilities arising from or in connection with any acts or omissions taken by the kind whatsoever (including but not limited to lost profits), even if Cash Management Bank has been advised of the likelihood of such loss or damage and regardless of the form of action. (e) The duties and responsibilities of Cash Management Bank hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. Cash Management Bank shall not have any liability under, no duty to inquire into the terms and provisions of any agreement or instructions, other than outlined in the Agreement. Cash Management Bank shall not be under any obligation or duty to perform any act which would involve it in expense (except to the extent such expense is reimbursed to Cash Management Bank in accordance with the terms hereof) or liability or to institute or defend any suit in respect hereof, or to advance any of its affiliates or any director, officer, employee or agent of any of them in connection with this Agreement, other than those Liabilities caused by the gross negligence or willful misconduct of the Cash Management Bank or such indemnified partiesown monies. (f) If The parties hereto acknowledge that the Company becomes subject to a voluntary foregoing indemnities shall survive the resignation or involuntary proceeding under the United States Bankruptcy Code, or if removal of Cash Management Bank is otherwise served with legal process, Cash Management Bank shall have or the right (i) to place a hold on funds deposited in the Account until such time as Cash Management Bank receives an appropriate court order or other assurances satisfactory to Cash Management Bank establishing that the funds may continue to be disbursed according to the instructions contained in termination of this Agreement or (ii) to commence, at the Company’s expense, an interpleader action in any United States District Court in the State of California and to take no further action except in accordance with joint instructions from the Class A Member and the Company or in accordance with the final order of the court in such actionAgreement. (g) The Company shall provide the Cash Management Bank with the Borrower’s Tax Identification Number Numbers (TIN) as assigned to it by the Internal Revenue Service. Service are as follows: AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC 00-0000000 STRATOSPHERE GAMING LLC 00-0000000 AQUARIUS GAMING LLC 00-0000000 ARIZONA CHARLIE’S, LLC 00-0000000 FRESCA, LLC 00-0000000 W2007 AQUARIUS PROPCO, L.P. 00-0000000 W2007 STRATOSPHERE PROPCO, L.P. 00-0000000 W2007 STRATOSPHERE LAND PROPCO, L.P. 00-0000000 W2007 ARIZONA CHARLIE’S PROPCO, L.P. 00-0000000 W2007 FRESCA PROPCO, L.P. 00-0000000 W2007 ACEP FIRST MEZZANINE A BORROWER, L.P. 00-0000000 W2007 ACEP FIRST MEZZANINE B BORROWER, L.P. 00-0000000 All interest or income earned under this Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid. (h) Cash Management Bank will not enter into any additional third-party agreement with respect to the Accounts (including, without limitation, any third party control agreements) without the prior written consent of Administrative Agent. (i) Cash Management Bank has not received a copy of the Loan Agreement and is not responsible for the provisions set forth therein.

Certain Matters Affecting the Cash Management Bank. (a) The Cash Management Bank shall not be under any obligation or duty to inquire into the terms of the Operating Agreement or any other agreement made or entered into in connection with this Agreement to which the Cash Management Bank is not a party. (b) The Cash Management Bank may rely and shall be protected in acting or refraining from acting upon any written notice (including but not limited to electronically confirmed facsimiles of such notice, instruction or request furnished to it hereunder and ) believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. The duties and obligations of the Cash Management Bank shall be under no duty to inquire into or investigate determined solely by the validity, accuracy or content of any such document. The Cash Management Bank shall have no duty to solicit any payments which may be due it hereunder. (c) The Cash Management Bank may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Company agrees to pay or reimburse the Cash Management Bank upon request for all reasonable expenses, disbursement and advances, including reasonable attorney’s fees, incurred or made by it, in connection with the preparation, execution, performance, delivery, modification and termination express provisions of this Modification Agreement. (e) . The Cash Management Bank shall not be liable except for any claimsthe performance of such party’s duties and obligations as are specifically set forth in this Modification Agreement, suits, actions, costs, damages, liabilities or expenses or for any interruption of services, or incidental, consequential, special or punitive damages (“Liabilities”) and except as set forth in connection with the subject matter paragraph 4 of this Schedule II, no implied covenants or obligations shall be read into this Modification Agreement other than Liabilities caused by the gross negligence or willful misconduct of against the Cash Management Bank, and the Company hereby agrees to indemnify and hold harmless the Cash Management Bank and its affiliates and the directors, officers, employees and agents of any of them from and against any and all Liabilities arising from or in connection with any acts or omissions taken . Substantial compliance by the Cash Management Bank or any of with its affiliates or any director, officer, employee or agent of any of them in connection with this Agreement, other than those Liabilities caused by standard procedures for the gross negligence or willful misconduct of services the Cash Management Bank or such indemnified parties. is providing hereunder shall be deemed to be the exercise by it of ordinary care. Notwithstanding anything to the contrary contained herein, (fi) If in the Company becomes subject to a voluntary or involuntary proceeding under administration of the United States Bankruptcy Codeaccount hereunder, or if the Cash Management Bank is otherwise served may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may, consult with legal processcounsel, accountants and other skilled persons to be selected and retained by it, (ii) in no event shall the Cash Management Bank be liable either directly or indirectly for losses or delays resulting from force majeure, computer malfunctions, interruption of communication facilities, labor difficulties or other causes beyond the Cash Management Bank’s reasonable control or for indirect, special or consequential damages, (iii) in no event shall the Cash Management Bank be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Cash Management Bank has been advised of the likelihood of such loss or damage and regardless of the form of action, (iv) the Cash Management Bank shall have the right not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies, (iv) to place a hold on funds deposited in the Account until such time as Cash Management Bank receives an appropriate court order or other assurances satisfactory to Cash Management Bank establishing that the funds may continue to be disbursed according to the instructions contained in this Agreement or (ii) to commence, at the Company’s expense, an interpleader action in any United States District Court in the State of California and to take no further action except in accordance with joint instructions from the Class A Member and the Company or in accordance with the final order of the court in such action. (g) The Company shall provide the Cash Management Bank with shall not incur any liability for following the Tax Identification Number (TIN) as assigned to it instructions herein contained or expressly provided for, or written instructions given by the Internal Revenue Service. All interest or income earned under this Agreement parties hereto, and (vi) in the event that the Cash Management Bank shall be allocated uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Modification Agreement, it shall be entitled to refrain from taking any action and paid as provided herein and reported its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the recipient to the Internal Revenue Service as having been so allocated and paidother parties hereto or by a final order or judgment of a court of competent jurisdiction.