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SECOND AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

Stock Purchase Agreement

SECOND AMENDMENT TO 
MEMBERSHIP INTEREST PURCHASE AGREEMENT | Document Parties: ICAHN ENTERPRISES L.P. | American Entertainment Properties Corp | WH Advisors, LLC | WHITEHALL STREET GLOBAL REAL ESTATE LIMITED PARTNERSHIP You are currently viewing:
This Stock Purchase Agreement involves

ICAHN ENTERPRISES L.P. | American Entertainment Properties Corp | WH Advisors, LLC | WHITEHALL STREET GLOBAL REAL ESTATE LIMITED PARTNERSHIP

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Title: SECOND AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT
Date: 2/11/2008
Industry: Real Estate Operations     Sector: Services

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EXECUTION COPY

SECOND AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT

This Second Amendment (this “Amendment”) to the Membership Interest Purchase Agreement by and between W2007/ACEP Holdings, LLC, a Delaware limited liability company (the “Original Buyer”), and American Entertainment Properties Corp., a Delaware corporation (“Seller”), dated as of April 22, 2007 (the “Original Purchase Agreement”), as amended by the First Amendment to Membership Interest Purchase Agreement, dated as of September 12, 2007 (the “First Amendment”, and together with the Original Purchase Agreement, the “Amended Agreement” and the Amended Agreement together with and as amended by this Amendment, the “Purchase Agreement”), is made by the Parties to the Purchase Agreement and Whitehall Street Global Real Estate Limited Partnership 2007 (“Whitehall”), this 8 th day of February, 2008. Capitalized terms used herein and not defined shall have the respective meanings given such terms in the Original Purchase Agreement.

Background

Effective as of December 4, 2007, the Original Buyer assigned its rights, interests and obligations in and to the Purchase Agreement to W2007/ACEP Managers Voteco, LLC, a Delaware limited liability company ("Buyer"), provided that such assignment did not relieve the Original Buyer from its obligations under the Purchase Agreement.

On Monday, February 4, 2008, representatives of Buyer and Whitehall called Seller and stated that, because of the current credit markets and the price of the transaction contemplated by the Purchase Agreement (the “Transaction”), Buyer and Whitehall were unwilling to proceed with the Transaction and wanted to speak further with Seller to discuss the possibility of changing the terms. As an accommodation to Buyer and Whitehall, and to enhance the probability that the Transaction will close on or before February 22, 2008, which is a result that Whitehall, Buyer and Seller desire, the parties hereto are agreeing to the terms set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises set forth herein and in the Purchase Agreement, the Parties, intending to be legally bound, agree as follows:

1.   Closing Date . Notwithstanding anything in the Purchase Agreement to the contrary, neither Party shall have any option or right to extend the date of the Closing beyond February 22, 2008, time being of the essence.

2.   Purchase Price Revised . Effective upon the payment of the Transferred Amount (as hereinafter defined) on February 11, 2008 in compliance with Section 4 of this Amendment, Section 2.2(a)(i) of the Amended Purchase Agreement is amended and restated as follows: “One Billion Two Hundred Million Dollars ($1,200,000,000.00) minus the Transferred Amount minus ”.
 
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3.   The Closing . The phrase “Subject to the conditions set forth in this Agreement” is hereby deleted from (i) Section 2.1 of the Amended Purchase Agreement, and (ii) the beginning of Section 2.3(b) of the Amended Purchase Agreement.

4.   Payment of Transferred Amount to Seller . Whitehall agrees to, and shall pay, or cause to be paid on February 11, 2008 (time being of the essence), to Seller’s account specified below (or such other account as specified by Seller prior to 11:00 a.m. New York City time on February 11, 2008), the sum of One Hundred Sixty Two Million Five Hundred Thousand Dollars ($162,500,000.00) (the “Transferred Amount”) by wire transfer of immediately available funds. The obligations of Whitehall under this Amendment are and shall be irrevocable, absolute and unconditional. If Whitehall fails to deliver the Transferred Amount to Seller on February 11, 2008, Whitehall hereby consents and agrees that Seller shall be entitled to the entry of a court order for the full amount of the Transferred Amount, without proof of actual damages.

If, on or prior to February 18, 2008, Whitehall has delivered written notice to Seller in good faith stating that Buyer will be closing the Transaction on or after February 20, 2008 and prior to February 23, 2008 (the “Section 4 Notice”), then Seller shall satisfy the Seller Requirements (as defined below) on or before February 20, 2008 and the Transferred Amount shall be the sole and exclusive property of Seller “come hell or high water,” as a non-refundable deposit and as liquidated damages and not as a penalty, and none of Buyer, Whitehall nor any other person shall have any rights or claims therein or to obtain the return thereof under any circumstance, whether or not the Closing occurs.

If Whitehall fails to give the Section 4 Notice on or prior to February 18, 2008, then the Transferred Amount shall be the sole and exclusive property of Seller “come hell or high water,” as a non-refundable deposit and as liquidated damages and not as a penalty, and none of Buyer, Whitehall nor any other person shall have any rights or claims therein or to obtain the return thereof under any circumstance, whether or not the Closing occurs.

Whitehall represents and warrants to Seller that it has the liquid assets to lawfully perform its obligations under this

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