Exhibit 10.1




Exhibit 10.1



 

 








CREDIT AGREEMENT




among




FULL HOUSE RESORTS, INC.




as Borrower,




THE LENDERS NAMED HEREIN




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender,




and




WELLS FARGO SECURITIES, LLC,

as Lead Arranger and Sole Bookrunner,




Dated as of October 29, 2010




 

 










 


 









 











TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	ARTICLE I. INTERPRETATION	 	 	1	 
	1.01.
	 	Definitions	 	 	1	 
	1.02.
	 	GAAP	 	 	30	 
	1.03.
	 	Headings	 	 	31	 
	1.04.
	 	Plural Terms	 	 	31	 
	1.05.
	 	Time	 	 	31	 
	1.06.
	 	Governing Law	 	 	31	 
	1.07.
	 	Construction	 	 	31	 
	1.08.
	 	Entire Agreement	 	 	31	 
	1.09.
	 	Calculation of Interest and Fees	 	 	32	 
	1.10.
	 	References	 	 	32	 
	1.11.
	 	Other Interpretive Provisions	 	 	32	 
	1.12.
	 	Rounding	 	 	32	 
	ARTICLE II. CREDIT FACILITIES	 	 	33	 
	2.01.
	 	Loan Facilities	 	 	33	 
	2.02.
	 	Letters of Credit	 	 	41	 
	2.03.
	 	The Swing Line	 	 	50	 
	2.04.
	 	Amount Limitations, Commitment Reductions, Etc.	 	 	53	 
	2.05.
	 	Fees	 	 	55	 
	2.06.
	 	Prepayments	 	 	55	 
	2.07.
	 	Other Payment Terms	 	 	59	 
	2.08.
	 	Loan Accounts; Notes	 	 	60	 
	2.09.
	 	Loan Funding	 	 	61	 
	2.10.
	 	Pro Rata Treatment	 	 	62	 
	2.11.
	 	Change of Circumstances	 	 	64	 
	2.12.
	 	Taxes on Payments	 	 	66	 
	2.13.
	 	Funding Loss Indemnification	 	 	68	 
	2.14.
	 	Security	 	 	68	 
	2.15.
	 	Replacement of the Lenders	 	 	69	 
	ARTICLE III. CONDITIONS PRECEDENT	 	 	70	 
	3.01.
	 	Conditions Precedent to Effectiveness	 	 	70	 
	3.02.
	 	Conditions Precedent to Initial Funding	 	 	70	 






 


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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	3.03.
	 	Conditions Precedent to each Credit Event	 	 	70	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES	 	 	71	 
	4.01.
	 	Representations and Warranties of the Borrower	 	 	71	 
	4.02.
	 	Reaffirmation of Borrower’s Representations and Warranties	 	 	79	 
	4.03.
	 	Representations and Warranties of each Lender	 	 	79	 
	ARTICLE V. COVENANTS	 	 	79	 
	5.01.
	 	Affirmative Covenants	 	 	79	 
	5.02.
	 	Negative Covenants	 	 	85	 
	5.03.
	 	Financial Covenants	 	 	94	 
	ARTICLE VI. EVENTS OF DEFAULT	 	 	95	 
	6.01.
	 	Events of Default	 	 	95	 
	6.02.
	 	Remedies	 	 	99	 
	ARTICLE VII. ADMINISTRATIVE AGENT, COLLATERAL AGENT, SECURITY TRUSTEE AND RELATIONS AMONG LENDERS
	 	 	101	 
	7.01.
	 	Appointment, Powers and Immunities	 	 	101	 
	7.02.
	 	Reliance by the Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender	 	 	102	 
	7.03.
	 	Defaults	 	 	103	 
	7.04.
	 	Indemnification	 	 	103	 
	7.05.
	 	Non-Reliance	 	 	103	 
	7.06.
	 	Resignation of the Administrative Agent or Collateral Agent	 	 	104	 
	7.07.
	 	Collateral Matters	 	 	105	 
	7.08.
	 	Performance of Conditions	 	 	105	 
	7.09. 
	 	The Administrative Agent, the Collateral Agent and the Security Trustee in
their Individual Capacities	 	 	106	 
	7.10.
	 	Collateral Matters/Lender Rate Contracts	 	 	106	 
	7.11.
	 	Administrative Agent May File Proofs of Claim	 	 	106	 
	7.12.
	 	Application of Gaming Laws	 	 	107	 
	ARTICLE VIII. MISCELLANEOUS	 	 	108	 
	8.01.
	 	Notices	 	 	108	 
	8.02.
	 	Expenses	 	 	110	 
	8.03.
	 	Indemnification	 	 	110	 
	8.04.
	 	Waivers; Amendments	 	 	112	 






 


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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	8.05.
	 	Successors and Assigns	 	 	115	 
	8.06.
	 	Setoff; Security Interest	 	 	120	 
	8.07.
	 	No Third Party Rights	 	 	120	 
	8.08.
	 	Partial Invalidity	 	 	120	 
	8.09.
	 	Jury Trial	 	 	120	 
	8.10.
	 	Confidentiality	 	 	121	 
	8.11.
	 	Counterparts	 	 	121	 
	8.12.
	 	Consent to Jurisdiction	 	 	121	 
	8.13.
	 	Relationship of Parties	 	 	122	 
	8.14.
	 	Time	 	 	122	 
	8.15.
	 	Waiver of Punitive Damages	 	 	122	 
	8.16.
	 	USA PATRIOT Act	 	 	123	 
	8.17.
	 	Clarification	 	 	123	 
	8.18.
	 	NO MANAGEMENT	 	 	123	 
	8.19.
	 	Gaming Law Limitations	 	 	123	 






 


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An extra section break has been inserted above this paragraph. Do not delete this section break if
you plan to add text after the Table of Contents/Authorities. Deleting this break will cause Table
of Contents/Authorities headers and footers to appear on any pages following the Table of
Contents/Authorities.





 


 









 







SCHEDULES




	 	 	 	 	 
	SCHEDULE I

	 	—
	 	THE LENDERS
	SCHEDULE 1.01(a)

	 	—
	 	REAL PROPERTY SECURITY DOCUMENTS
	SCHEDULE 3.01

	 	—
	 	CONDITIONS PRECEDENT TO EFFECTIVENESS
	SCHEDULE 3.02

	 	 	 	CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT
	SCHEDULE 4.01(e)(iv)

	 	 	 	GOVERNMENTAL AUTHORIZATIONS
	SCHEDULE 4.01(g)

	 	—
	 	LITIGATION
	SCHEDULE 4.01(h)

	 	—
	 	REAL PROPERTY
	SCHEDULE 4.01(k)

	 	—
	 	MULTIEMPLOYER PLANS
	SCHEDULE 4.01(o)

	 	—
	 	SUBSIDIARIES
	SCHEDULE 4.01(v)

	 	—
	 	AGREEMENTS WITH AFFILIATES, ETC.
	SCHEDULE 5.02(a)

	 	—
	 	EXISTING INDEBTEDNESS
	SCHEDULE 5.02(b)

	 	—
	 	EXISTING LIENS
	SCHEDULE 5.02(e)

	 	—
	 	EXISTING INVESTMENTS






EXHIBITS




	 	 	 
	EXHIBIT A

	 	NOTICE OF LOAN BORROWING
	EXHIBIT B

	 	NOTICE OF CONVERSION
	EXHIBIT C

	 	NOTICE OF INTEREST PERIOD SELECTION
	EXHIBIT D

	 	NOTICE OF SWING LINE BORROWING
	EXHIBIT E

	 	REVOLVING LOAN NOTE
	EXHIBIT F

	 	TERM LOAN NOTE
	EXHIBIT G

	 	SWING LINE NOTE
	EXHIBIT H

	 	ASSIGNMENT AGREEMENT
	EXHIBIT I

	 	COMPLIANCE CERTIFICATE
	EXHIBIT J

	 	COLLATERAL CERTIFICATE
	EXHIBIT K

	 	NON-BANK CERTIFICATE
	EXHIBIT L

	 	FORM OF GUARANTY
	EXHIBIT M

	 	FORM OF SECURITY AGREEMENT
	EXHIBIT N

	 	GRAND VICTORIA EXCESS LAND







 


 











 







CREDIT AGREEMENT




THIS CREDIT AGREEMENT, dated as of October 29, 2010, is entered into by and among: (1) FULL
HOUSE RESORTS, INC., a Delaware corporation (the “Borrower”); (2) each of the financial
institutions from time to time listed in Schedule I hereto, as amended, restated,
supplemented or otherwise modified from time to time (collectively, the “Lenders”); and (3)
WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent for the
Lenders (in such capacity, the “Administrative Agent”), as collateral agent for the Secured
Parties (as defined herein) (in such capacity, the “Collateral Agent”), as security trustee
for the Lenders (in such capacity, the “Security Trustee”), as L/C Issuer and as Swing Line
Lender. Wells Fargo Securities, LLC (“WFS”) has been given the titles of sole lead
arranger and sole bookrunner in connection with this Agreement.



RECITALS




A. The Borrower has requested that the Lenders provide certain credit facilities to the
Borrower.



B. The Lenders are willing to provide such credit facilities upon the terms and subject to the
conditions set forth herein.



AGREEMENT




NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein
contained, the parties hereto hereby agree as follows:



ARTICLE I. INTERPRETATION.




1.01. Definitions. Unless otherwise indicated in this Agreement or any other Credit
Document, each term set forth below, when used in this Agreement or any other Credit Document,
shall have the respective meaning given to that term below or in the provision of this Agreement or
other document, instrument or agreement referenced below.



“Acquired Person” shall mean a Proposed Target that is the subject of a Permitted
Acquisition after the Effective Date.



“Acquired Portion” shall have the meaning given to that term in Section
2.01(h)(iv).



“Acquisition” shall mean the acquisition by the Borrower of the Purchased Assets
pursuant to the Acquisition Agreement.



“Acquisition Agreement” shall mean that certain Asset Purchase Agreement, dated as of
September 10, 2010, by and between Grand Victoria Casino & Resort, L.P. and the Borrower.



“Acquisition Documents” shall mean, collectively, the Acquisition Agreement and all
documents executed in connection therewith and any other document(s) evidencing the Acquisition.


 


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“Adjusted EBITDA” shall mean, for any period, (a) Net Income for such period,
plus (b) to the extent deducted in determining Net Income of the Loan Parties for such
period, the sum of the following for such period (without duplication): (i) Interest Expense, (ii)
provisions for income taxes, (iii) depreciation and amortization expenses, (iv) extraordinary
losses (including non-cash impairment charges), (v) acquisition costs required to be expensed in
accordance with GAAP in any quarter in fiscal years 2010 and 2011 in an aggregate amount not to
exceed $800,000 during the term of this Agreement, (vi) rebranding costs in an aggregate amount not
to exceed $800,000 during the term of this Agreement and (vii) costs incurred in connection with
Grand Victoria Casino & Resort compliance with the Sarbanes-Oxley Act of 2002 in an aggregate
amount not to exceed $100,000 during the term of this Agreement, minus (c) to the extent
added in determining Net Income of the Loan Parties for such period, extraordinary gains,
minus (d) the portion of Net Income for such period attributable to GEM, GED or any other
Non-Wholly-Owned Subsidiary relating to Equity Interests held by Persons other than the Borrower;
provided, that Adjusted EBITDA for any period that includes any fiscal quarter ending prior
to the Initial Funding Date shall be deemed to include the Adjusted EBITDA of or attributable to
the Purchased Assets.



Pro forma credit shall be given for an Acquired Person’s Adjusted EBITDA as if owned on the
first day of the applicable period; companies (or identifiable business units or divisions) sold,
transferred or otherwise disposed of during any period will be treated as if not owned during the
entire applicable period.



“Administrative Agent” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



“Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary,
ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person or any Affiliate of such
Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners;
provided, however, that in no case shall the Administrative Agent or any Lender be
deemed to be an Affiliate of any Loan Party for purposes of this Agreement. For the purpose of
this definition, “control” of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether through the ownership
of voting securities, by contract or otherwise.



“Agreement” shall mean this Credit Agreement.



“Anti-Terrorism Law” shall mean each of: (a) the Executive Order; (b) the Patriot Act;
(c) the Money Laundering Control Act of 1986, 18 U.S.C. Sect. 1956; and (d) any other Governmental
Rule now or hereafter enacted to monitor, deter or otherwise prevent terrorism or the funding or
support of terrorism.



“Applicable Lending Office” shall mean, with respect to any Lender, (a) in the case of
its Base Rate Loans and Base Rate Portions, its Domestic Lending Office, and (b) in the case of its
LIBOR Loans and LIBOR Portions, its Euro-Dollar Lending Office.


 


-2-









 





“Applicable Margin” shall mean, with respect to each Loan and Portion (and with
respect to the calculation of Standby Letter of Credit fees pursuant to Section
2.02(i)(i)), the per annum margin which is determined pursuant to the Pricing Grid. The
Applicable Margin shall be determined as provided in the Pricing Grid and may change as set forth
in the definition of Pricing Grid.



“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



“Assignee Lender” shall have the meaning given to that term in Section
8.05(c).



“Assignment” shall have the meaning given to that term in Section 8.05(c).



“Assignment Agreement” shall have the meaning given to that term in Section
8.05(c).



“Assignment Effective Date” shall have, with respect to each Assignment Agreement, the
meaning set forth therein.



“Assignor Lender” shall have the meaning given to that term in Section
8.05(c).



“Base Rate” shall mean, on any day, the greatest of (a) the Prime Rate in effect on
such day, (b) the Federal Funds Rate in effect on the Business Day prior to such day plus
one and one-half percent (1.50%) and (c) the One Month LIBOR Rate for such day (determined on a
daily basis as set forth below) plus one and one-half percent (1.50%). As used in this
definition, “One Month LIBOR Rate” shall mean, with respect to any interest rate
calculation for a Loan, Portion or other Obligation bearing interest at the Base Rate, a rate per
annum equal to the quotient (rounded upward if necessary to the nearest 1/16 of one percent) of (i)
the greater of (A) 1.50% and (B) rate per annum referred to as the BBA (British Bankers
Association) LIBOR RATE as reported on Reuters LIBOR page 1, or if not reported by Reuters, as
reported by any service selected by the Administrative Agent, on the applicable day (provided that
if such day is not a Business Day for which a LIBOR Rate is quoted, the next preceding Business Day
for which a LIBOR Rate is quoted) at or about 11:00 a.m., London time (or as soon thereafter as
practicable), for Dollar deposits being delivered in the London interbank eurodollar currency
market for a term of one month commencing on such date of determination, divided by (ii)
one minus the Reserve Requirement in effect on such day. If for any reason rates are not available
as provided in clause (i)(B) of the preceding sentence, the rate to be used in clause (i)(B) shall
be, at the Administrative Agent’s discretion (in each case, rounded upward if necessary to the
nearest 1/16 of one percent), (A) the rate per annum at which Dollar deposits are offered to the
Administrative Agent in the London interbank eurodollar currency market or (B) the rate at which
Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major
banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each
case on the applicable day (provided that if such day is not a Business Day for which Dollar
deposits are offered to the Administrative Agent in the London or such offshore interbank
eurodollar currency market, the next preceding Business Day for which Dollar deposits are offered
to the Administrative Agent in the London or such offshore interbank eurodollar
currency market) at or about 11:00 a.m., London time (or as soon thereafter as practicable)
(for delivery on such date of determination) for a one month term.


 


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“Base Rate Loan” shall mean, at any time, a Revolving Loan which then bears interest
as provided in Section 2.01(d)(i).



“Base Rate Portion” shall mean, at any time, a Portion of a Term Loan Borrowing, or a
Term Loan, as the case may be, which then bears interest at a rate specified in Section
2.01(d)(i).



“Borrower” shall have the meaning given to such term in clause (1) of the introductory
paragraph hereof.



“Borrower Parties” shall mean, collectively, the Borrower and its Subsidiaries.



“Borrowing” shall mean a Revolving Loan Borrowing, a Term Loan Borrowing or a Swing
Line Borrowing, as the context may require.



“Business Day” shall mean any day on which (a) commercial banks are not authorized or
required to close in San Francisco, California or New York, New York and (b) if such Business Day
is related to a LIBOR Loan or a LIBOR Portion, dealings in Dollar deposits are carried out in the
London interbank market.



“Capital Adequacy Requirement” shall have the meaning given to that term in
Section 2.11(d).



“Capital Asset” shall mean, with respect to any Person, any tangible fixed or capital
asset owned or leased (in the case of a Capital Lease) by such Person, or any expense incurred by
such Person that is required by GAAP to be reported as a non-current asset on such Person’s balance
sheet.



“Capital Expenditures” shall mean, with respect to any Person and any period, all
amounts expended by such Person during such period to acquire or to construct Capital Assets
(including renewals, improvements and replacements, but excluding repairs in the ordinary course)
computed in accordance with GAAP (including all amounts paid or accrued on Capital Leases and other
Indebtedness incurred or assumed to acquire Capital Assets).



“Capital Leases” shall mean any and all lease obligations that, in accordance with
GAAP, are required to be capitalized on the books of a lessee.



“Cash Collateralize” shall mean to pledge and deposit with or deliver to the
Collateral Agent, for its own benefit and for the benefit of the L/C Issuer and/or the Lenders, as
applicable, as collateral subject to a first priority, perfected security interest securing the
Obligations or the obligations of a Deteriorating Lender, as applicable, cash or deposit account
balances in an amount equal to the L/C Obligations, obligations in respect of Swing Line Loans or
obligations of a Deteriorating Lender, as applicable, pursuant to documentation in form and
substance satisfactory to the Collateral Agent and the L/C Issuer or the Swing Line Lender, as
applicable (which documents are hereby consented to by the Lenders). Derivatives of such term
shall have a corresponding meaning.


 


-4-









 





“Cash Equivalents” shall mean:



(a) Direct obligations of, or obligations the principal and interest on which are
unconditionally guaranteed by, the United States or obligations of any agency of the United States
to the extent such obligations are backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;



(b) Certificates of deposit maturing within six months from the date of acquisition thereof
issued by a commercial bank or trust company organized under the laws of the United States or a
state thereof or that is a Lender; provided that (i) such deposits are denominated in
Dollars, (ii) such bank or trust company has capital, surplus and undivided profits of not less
than $500,000,000 and (iii) such bank or trust company has certificates of deposit or other debt
obligations rated at least A-1 (or its equivalent) by Standard and Poor’s Ratings Services or P-1
(or its equivalent) by Moody’s Investors Service, Inc.;



(c) Open market commercial paper maturing within 270 days from the date of acquisition thereof
issued by a corporation organized under the laws of the United States or a state thereof;
provided such commercial paper is rated at least A-1 (or its equivalent) by Standard and
Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s Investors Service, Inc.; and



(d) Any repurchase agreement entered into with a commercial bank or trust company organized
under the laws of the United States or a state thereof or that is a Lender; provided that
(i) such bank or trust company has capital, surplus and undivided profits of not less than
$500,000,000, (ii) such bank or trust company has certificates of deposit or other debt obligations
rated at least A-1 (or its equivalent) by Standard and Poor’s Ratings Services or P-1 (or its
equivalent) by Moody’s Investors Service, Inc., (iii) the repurchase obligations of such bank or
trust company under such repurchase agreement are fully secured by a perfected security interest in
a security or instrument of the type described in clause (a), (b) or (c) above and (iv) such
security or instrument so securing the repurchase obligations has a fair market value at the time
such repurchase agreement is entered into of not less than 100% of such repurchase obligations.
Notwithstanding the foregoing, in no event shall “Cash Equivalents” include auction rate
securities.



“Change of Control” shall mean the occurrence of any one or more of the following:



(a) The Borrower shall cease to beneficially own and control, directly or indirectly, (i) one
hundred percent (100%) of the Equity Securities of each Loan Party (other than the Borrower), (ii)
fifty percent (50%) of the Equity Securities of GEM or (iii) prior to August 1, 2011, fifty percent
(50%) of the Equity Securities of GED;



(b) The acquisition after the Effective Date of ownership, directly or indirectly,
beneficially or of record, by any person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Commission thereunder as in effect on the date hereof), of Equity
Securities representing more than 15% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Securities of the Borrower or any such person or group acquires
control of the Borrower, or


 


-5-









 





(c) The occupation after the Effective Date of a majority of the seats (other than vacant
seats) on the board of directors or other governing body of the Borrower by persons who were
neither (i) nominated by the board of directors or other governing body of the Borrower nor (ii)
appointed by directors or members of such other or other governing body so nominated, or



(d) A “change of control” or “change in control” or any similar term as defined in any
document governing Indebtedness of any Borrower Party which gives the holders of such Indebtedness
the right to accelerate or otherwise require payment of such Indebtedness prior to the maturity
date thereof or the right to require such Borrower Party to redeem, purchase or otherwise defease,
or offer to redeem, purchase or otherwise defease, all or any portion of such Indebtedness.



For the purpose of this definition, “control” of a Person shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.



“Change of Law” shall have the meaning given to that term in Section 2.11(b).



“Collateral” shall mean all Property in which the Collateral Agent, the Administrative
Agent, the Security Trustee or any Lender has a Lien to secure the Obligations or the Guaranty.



“Collateral Agent” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



“Collateral Certificate” shall mean a Collateral Certificate in substantially the form
of Exhibit J, appropriately completed and duly executed by the Borrower.



“Commercial Letter of Credit” shall mean any documentary letter of credit issued by
the L/C Issuer under this Agreement, either as originally issued or as the same may be
supplemented, modified, amended, extended, restated or supplanted.



“Commitment Fee Percentage” shall mean (a) prior to the Initial Funding Date, 0.50%
and (b) from and after the Initial Funding Date, the per annum percentage which is used to
calculate Commitment Fees determined pursuant to the Pricing Grid.



“Commitment Fees” shall have the meaning given to that term in Section
2.05(b).



“Commitments” shall mean, collectively, the Revolving Loan Commitments and the Term
Loan Commitments.



“Compliance Certificate” shall have the meaning given to that term in Section
5.01(a)(iii).


 


-6-









 





“Confidential Information” shall mean information delivered to any Lender or the
Administrative Agent by or on behalf of any Loan Party pursuant to the Credit Documents that is
proprietary in nature and that is clearly marked or labeled as being confidential information of
such Loan Party; provided; however, that such term does not include information
that (a) was
publicly known or otherwise known to the receiving party prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by the receiving party or any
person acting on its behalf, (c) otherwise becomes known to the receiving party other than through
disclosure by any Loan Party or (d) constitutes financial statements delivered to the Lenders and
the Administrative Agent under Section 5.01(a) that are otherwise publicly available.



“Contingent Obligation” shall mean, with respect to any Person, (a) any Guaranty
Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or
otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of drawings or payments,
(ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other Property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment for such materials,
supplies or other Property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other Property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not entered into in
connection with a bona fide hedging operation that provides offsetting benefits to such Person.
The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to the
last sentence of the definition of “Guaranty Obligation”) be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall, with respect to item (b)(iv) of this
definition be marked to market on a current basis.



“Contractual Obligation” of any Person shall mean, any indenture, note, lease, loan
agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract,
agreement or other form of contractual obligation or undertaking to which such Person is a party or
by which such Person or any of its Property is bound.



“Control Agreement” shall mean a control agreement among the Borrower or a Guarantor,
a depository bank, a securities intermediary or a commodity intermediary, as the case may be, and
the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent.



“Credit Documents” shall mean and include this Agreement, the Notes, the Guaranty, the
Security Documents, each Letter of Credit Application, each Notice of Borrowing, each Notice of
Interest Period Selection, each Notice of Conversion, all Lender Rate Contracts, the Collateral
Certificate, the Fee Letter, all other documents, instruments and agreements delivered to the
Administrative Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or any Lender
pursuant to Sections 3.01 or 3.02 and all other documents, instruments and agreements
delivered by any Loan Party to the Administrative Agent, the Collateral Agent, the Security Trustee
or any Lender in connection with this Agreement or any other Credit Document on or after the date
of this Agreement, including, without limitation, any amendments, consents or waivers, as the same
may be amended, restated, supplemented or modified from time to time.



“Credit Event” shall mean the making of any Loan (including a Swing Line Loan) or the
making of an L/C Credit Extension.


 


-7-









 





“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all
other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Governmental Rules from time to time in effect
affecting the rights of creditors generally.



“Decreasing Lender” shall have the meaning given to that term in Section
2.01(h)(iv).



“Default” shall mean an Event of Default or any event or circumstance not yet
constituting an Event of Default which, with the giving of any notice or the lapse of any period of
time or both, would become an Event of Default.



“Default Rate” shall have the meaning given to that term in Section 2.07(c).



“Defaulting Lender” shall mean a Lender which (a) has failed to fund its portion of
any Borrowing, any participations in Letters of Credit or participations in Swing Line Loans
required to be funded by it under this Agreement within three (3) Business Days of the date when
due, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a
receivership, bankruptcy or insolvency proceeding.



“Designated Person” shall mean any Person who (i) is named on the list of Specially
Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury’s Office
of Foreign Assets Control and/or any other similar lists maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control pursuant to authorizing statute, executive order or
regulation, (ii) (A) is a Person whose property or interest in property is blocked or subject to
blocking pursuant to Section 1 of the Executive Order or any related legislation or any other
similar executive order(s) or (B) engages in any dealings or transactions prohibited by Section 2
of the Executive Order or is otherwise associated with any such Person in any manner violative of
Section 2 of the Executive Order or (iii)(X) is an agency of the government of a country, (Y) an
organization controlled by a country, or (Z) a Person resident in a country that is subject to a
sanctions program identified on the list maintained by the U.S. Department of the Treasury’s Office
of Foreign Assets Control, or as otherwise published from time to time, as such program may be
applicable to such agency, organization or Person.



“Deteriorating Lender” shall mean (a) a Defaulting Lender or (b) a Lender as to which
(i) the L/C Issuer or Swing Line Lender (as applicable) has been informed that such Lender has
defaulted in fulfilling its monetary or other material obligations under one or more other
syndicated credit facilities or (ii) an entity that controls such Lender has been deemed insolvent
or becomes subject to a receivership, bankruptcy or other similar proceeding. For the purpose of
this definition, “control” of a Lender shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether through the ownership
of voting securities, by contract or otherwise.


 


-8-









 





“Disqualified Securities” shall mean any Equity Security which, by its terms (or by
the terms of any security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the date that is one year following the date of payment and satisfaction in
full by the Loan Parties of the Obligations, (b) is convertible into or exchangeable for (i) debt
securities or (ii) any Equity Security referred to in (a) above, in each case at any time on or
prior to the date that is one year following the date of payment and satisfaction in full by the
Loan Parties of the Obligations, or (c) is entitled to receive a cash Distribution (other than for
taxes attributable to the operations of the business) or a Distribution of Disqualified Securities
on or prior to the date that is one year following the date of payment and satisfaction in full by
the Loan Parties of the Obligations.



“Distributions” shall mean the declaration or (without duplication) payment of any
distributions or dividends (in cash, Property or obligations) on, or other payments on account of,
or the setting apart of money for a sinking or other analogous fund for, or the purchase,
repurchase, redemption, retirement or other acquisition of, any Equity Securities of any Person or
of any warrants, options or other rights to acquire the same (or to make any payments to any
Person, such as “phantom membership” or “phantom stock” payments or similar payments, where the
amount is calculated with reference to the fair market or equity value of any Person), but
excluding distributions or dividends payable by a Person solely in membership interests or shares
of common stock of such Person.



“Dollars” and “$” shall mean the lawful currency of the United States and, in
relation to any payment under this Agreement, same day or immediately available funds.



“Domestic Lending Office” shall mean, with respect to any Lender, (a) initially, its
office designated as such in Schedule I (or, in the case of any Lender which becomes a
Lender pursuant to Section 2.01(h) or by an assignment pursuant to Section 8.05(c),
its office designated as such in the applicable Assignment Agreement) and (b) subsequently, such
other office or offices as such Lender may designate to the Administrative Agent as the office at
which such Lender’s Base Rate Loans and Base Rate Portions will thereafter be maintained and for
the account of which all payments of principal of, and interest on, such Lender’s Base Rate Loans
and Base Rate Portions will thereafter be made.



“Effective Amount” shall mean (i) with respect to Revolving Loans, Term Loans, and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving
effect to (A) any borrowings and prepayments or repayments of Revolving Loans, Term Loans, and
Swing Line Loans and (B) with respect to Swing Line Loans, any risk participation amongst the
Lenders, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations
on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.



“Effective Date” shall mean the time and Business Day on which the satisfaction of all
conditions precedent and the consummation of all of the transactions contemplated in Schedule
3.01 occur.


 


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“Eligible Assignee” shall mean (a) any Lender, any Affiliate of any Lender and any
Approved Fund of any Lender; and (b) a Person that is (i) a commercial bank, savings and loan
association or savings bank organized under the laws of the United States, or any state thereof,
and having a combined capital and surplus of at least $100,000,000, (ii) a commercial bank
organized under the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), or a political subdivision of any such country,
and having a combined capital and surplus of at least $100,000,000; provided that such bank
is acting through a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD, (iii) a finance company, insurance company or other
financial institution that is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in excess of $100,000,000, or
(iv) a Person that is primarily engaged in the business of commercial lending and that is (x) a
Subsidiary of a Lender, (y) a Subsidiary of a Person of which a Lender is a Subsidiary, or (z) a
Person of which a Lender is a Subsidiary; provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include any Borrower Party or any Affiliate of a Borrower Party or
any natural person.



“Environmental Damages” shall mean all claims, judgments, damages, losses, penalties,
liabilities (including strict liability), costs and expenses (including costs of investigation,
remediation, defense, settlement and reasonable attorneys’ fees and consultants’ fees and any
diminution in the value of the security afforded to the Lenders with respect to any real property
owned or used by any Borrower Party), that are incurred at any time (a) as a result of the
existence of any Hazardous Materials upon, about or beneath any real property owned by or leased by
any Borrower Party or migrating or threatening to migrate to or from any such real property
regardless of whether or not caused by or within the control of any Borrower Party, (b) arising
from any investigation, proceeding or remediation of any location at which any Borrower Party or
any predecessors are alleged to have directly or indirectly disposed of Hazardous Materials or (c)
arising in any manner whatsoever out of any violation of Environmental Laws by any Borrower Party
or with respect to the Grand Victoria Vessel or any real property owned or used by any Borrower
Party or (d) as a result of the existence of any Hazardous Material upon, about or released from
the Grand Victoria Vessel.



“Environmental Laws” shall mean the Clean Air Act, 42 U.S.C. Section 7401 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980
(including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section
9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine
Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules
relating to the protection of human health and safety and the environment, including all
Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage,
disposal, investigation or remediation of emissions, discharges, releases, or threatened releases
of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation or
handling of Hazardous Materials.


 


-10-









 





“Equity Securities” of any Person shall mean (a) all common stock, preferred stock,
participations, shares, partnership interests, limited liability company interests or other equity
interests in and of such Person (regardless of how designated and whether or not voting or
non-voting) and (b) all warrants, options and other rights to acquire any of the foregoing.



“ERISA” shall mean the Employee Retirement Income Security Act of 1974.



“ERISA Affiliate” shall mean any Person which is treated as a single employer with any
Borrower Party under Sections 414(b) and (c) of the IRC (and Sections 414(m) and (o) of the IRC for
purposes of the provisions relating to Section 412 of the IRC).



“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Borrower Party or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a “substantial employer” (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA which could reasonably be expected to give rise to any liability with
respect to such withdrawal; (c) a complete or partial withdrawal by a Borrower Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer
Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f)
the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon a Borrower Party or any ERISA Affiliate.



“Euro-Dollar Lending Office” shall mean, with respect to any Lender, (a) initially,
its office designated as such in Schedule I (or, in the case of any Lender which becomes a
Lender pursuant to Section 2.01(h) or by an assignment pursuant to Section
8.05(c), its office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Lender may designate to the Administrative Agent
as the office at which such Lender’s LIBOR Loans and LIBOR Portions will thereafter be maintained
and for the account of which all payments of principal of, and interest on, such Lender’s LIBOR
Loans and LIBOR Portions will thereafter be made.



“Event of Default” shall have the meaning given to that term in Section 6.01.



“Evergreen Letter of Credit” shall have the meaning given to that term in Section
2.02(b)(iii).



“Executive Order” shall mean Executive Order No. 13224 on Terrorist Financings: -
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or
Support Terrorism issued on 23rd September, 2001.



“Exempted Equity Issuance” shall mean any of the following: (a) the issuance of
Equity Securities by any Loan Party to another Loan Party, (b) the contribution of capital by any
Loan
Party to another Loan Party, or (c) the issuance by the Borrower of its Equity Securities to
any of its officers, directors or employees pursuant to customary compensation arrangements.


 


-11-









 





“FASB ASC” shall mean the Accounting Standards Codification of the Financial
Accounting Standards Board.



“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards to
the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next succeeding such day;
provided, that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate charged to Wells Fargo
on such day on such transactions as determined by the Administrative Agent.



“Federal Reserve Board” shall mean the Board of Governors of the Federal Reserve
System.



“Fee Letter” shall mean the letter agreement dated as of September 10, 2010, between
the Borrower and the Wells Fargo Parties regarding certain fees payable by the Borrower to the
Wells Fargo Parties as expressly indicated therein.



“Financial Statements” shall mean, with respect to any accounting period for any
Person, statements of income and cash flows (and, in the case of financial statements in respect of
a fiscal year, statements of retained earnings, or stockholders’ equity or members’ equity or
partners’ capital) of such Person for such period, and a balance sheet of such Person as of the end
of such period, setting forth in each case in comparative form figures for the corresponding period
in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a
full fiscal year, corresponding figures from the preceding annual audited financial statements and,
in each case, corresponding figures from the comparable budgeted and projected figures for such
period, all prepared in reasonable detail and in accordance with GAAP.



“FireKeepers Indenture” shall mean that certain indenture, dated as of May 6, 2008
among the FireKeepers Development Authority, the Nottawaseppi Tribe and U.S. Bank National
Association with respect to the 13.875% Senior Secured Notes due 2015.



“FireKeepers Management Agreement” shall mean the management agreement entered into by
and among GEM, the Nottawaseppi Tribe and FireKeepers Development Authority with respect to the
FireKeepers Casino.



“Fixed Charge Coverage Ratio” shall mean, as at any date of determination, with
respect to the Borrower Parties for the period of four consecutive fiscal quarters ending on or
most recently ended prior to such date, (a)(i) Adjusted EBITDA, minus (ii) the aggregate
amount of Capital Expenditures made during such period (excluding up to $2,000,000 in the aggregate
spent to convert hotel rooms at the Grand Victoria Casino & Resort to suites), minus (iii)
the aggregate amount of dividends made during such period, minus (iv) cash taxes required
to be paid during such period divided by (b) Fixed Charges for such period.


 


-12-









 





“Fixed Charges” shall mean, for any four fiscal quarter period, the sum, for the
Borrower Parties (determined on a consolidated basis without duplication), of the following items:
(a) Interest Expense for such period, (b) payments of principal on Indebtedness scheduled to be
paid during such period, provided, however, that for purposes of this clause (b),
any optional prepayments that are applied pursuant to Section 2.06(b) to payments on the
Term Loans originally scheduled to be made during such period shall be disregarded, and such
originally scheduled payments on the Term Loans during such period shall be included in this clause
(b) notwithstanding the prior application of such prepayments to such scheduled payments, and (c)
the portion of payments under Capital Leases that should be treated as payment of principal in
accordance with GAAP scheduled to be paid during such period, provided, however,
that for each of the four fiscal quarter periods ending with the first full fiscal quarter after
the Initial Funding Date, the second full fiscal quarter after the Initial Funding Date and the
third full fiscal quarter after the Initial Funding Date, Fixed Charges for each such four fiscal
quarter period shall be deemed equal to the sum of clauses (a) through (c) above for the full
quarters after the Initial Funding Date ending thereon multiplied by 4, by 2 and by 4/3rds,
respectively.



“Foreign Plan” shall mean any employee benefit plan maintained or contributed to by
any Loan Party which is mandated or governed by any Governmental Rule of any Governmental Authority
other than the United States.



“Fund” shall mean any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.



“GAAP” shall mean generally accepted accounting principles and practices as in effect
in the United States from time to time, consistently applied.



“Gaming Board” shall mean any Governmental Authority that holds licensing or permit
authority over gambling, gaming or casino activities conducted by any Borrower Party within its
jurisdiction.



“Gaming Laws” shall mean all Laws pursuant to which any Gaming Board possesses
licensing or permit authority over gambling, gaming, or casino activities conducted by any Borrower
Party within its jurisdiction.



“GED” shall mean Gaming Entertainment (Delaware), LLC.



“GEM” shall mean Gaming Entertainment (Michigan), LLC.



“Governmental Authority” shall mean any international, domestic, tribal or foreign
national, state or local government, any political subdivision thereof, any department, agency,
authority or bureau of any of the foregoing, or any other entity exercising executive, legislative,
judicial, regulatory, tax or administrative functions of or pertaining to government, including,
without limitation, the Federal Trade Commission, Federal Deposit Insurance Corporation, the
Federal Reserve Board, the Comptroller of the Currency, any central bank or any comparable
authority and any supra-national bodies such as the European Union.


 


-13-









 





“Governmental Authorization” shall mean any permit, license, registration, approval,
finding of suitability or licensing, authorization, plan, directive, order, consent, exemption,
waiver, consent order or consent decree of or from, or notice to, action by or filing with, any
Governmental Authority (including any Gaming Board).



“Governmental Charges” shall mean, with respect to any Person, all levies,
assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person
or any of its Property or otherwise payable by such Person.



“Governmental Rule” shall mean any law, rule, regulation, ordinance, order, code
interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or
similar form of decision of any Governmental Authority.



“Grand Victoria EBITDA” shall mean, for any period, (a) net income of the Purchased
Assets for such period, plus (b) to the extent deducted in determining such net income, the
sum of the following for such period (without duplication): (i) interest expense, (ii) provisions
for income taxes and (iii) depreciation and amortization expenses.



“Grand Victoria Vessel” shall mean the vessel known as the Grand Victoria II, official
number 1027644.



“Grand Victoria Vessel Security Document” shall mean the first preferred ship mortgage
on the Grand Victoria Vessel made or to be made by Gaming Entertainment (Indiana), LLC in favor of
the Security Trustee.



“Guarantor” shall mean each now existing or hereafter acquired or created direct or
indirect Subsidiary of the Borrower which becomes a party to the Guaranty.



“Guaranty” shall mean the Guaranty Agreement by each Guarantor from time to time party
thereto in favor of the Administrative Agent and the Lender Parties, substantially in the form of
Exhibit L.



“Guaranty Obligation” shall mean, with respect to any Person, any direct or indirect
liability of that Person with respect to any Indebtedness, lease, dividend, letter of credit or
other obligation (the “primary obligations”) of another Person (the “primary obligor”), including
any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligations or any Property constituting direct or indirect security therefor,
or (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, or (c) to purchase Property, securities or services primarily for
the purpose of assuring the beneficiary of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect thereof, provided that
the term “Guaranty Obligation” shall not include endorsements for collection or deposit in the
ordinary course of business. The amount of any Guaranty Obligation shall be deemed equal to the
stated or determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum liability in respect
thereof.


 


-14-









 





“Hazardous Materials” shall mean all pollutants, contaminants and other materials,
substances and wastes which are hazardous, toxic or caustic to the environment, including petroleum
and petroleum products and byproducts, radioactive materials, asbestos, polychlorinated biphenyls
and all materials, substances and wastes which are classified or regulated as “hazardous,” “toxic”
or similar descriptions under any Environmental Law.



“Honor Date” shall have the meaning given to that term in Section 2.02(c)(i).



“Increase Effective Date” shall have the meaning given to that term in Section
2.01(h)(iii).



“Insurance Disclosure Statement” shall have the meaning given to that term in
clause (g)(iv) of Schedule 3.02.



“IGRA” means the Federal Indian Gaming Regulatory Act of 1988, codified at 25 U.S.C.
§2701, et seq., as amended.



“Indebtedness” of any Person shall mean, without duplication:



(a) All obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments and all other obligations of such Person for borrowed money (including obligations to
repurchase receivables and other assets sold with recourse);



(b) All obligations of such Person for the deferred purchase price of property or services
(including obligations under letters of credit and other credit facilities which secure or finance
such purchase price), except for (i) trade accounts payable, provided that (A) such trade accounts
payable arise in the ordinary course of business and (B) no material part of any such account is
more than sixty (60) days past due and (ii) time-based licenses;



(c) All obligations of such Person under conditional sale or other title retention agreements
with respect to property acquired by such Person (to the extent of the value of such property if
the rights and remedies of the seller or the lender under such agreement in the event of default
are limited solely to repossession or sale of such property);



(d) All obligations of such Person as lessee under or with respect to Capital Leases and
synthetic leases and all other off-balance sheet financing;



(e) All obligations of such Person, contingent or otherwise, under or with respect to Surety
Instruments;



(f) All Unfunded Pension Liabilities of such Person;



(g) All obligations of such Person arising under acceptance facilities or under facilities for
the discount of accounts receivable of such Person;



(h) All Contingent Obligations of such Person;



(i) All Disqualified Securities of such Person;


 


-15-









 





(j) With respect to any Rate Contracts, the Termination Value thereof;



(k) All obligations of such Person with respect to letters of credit, whether drawn or
undrawn, contingent or otherwise;



(l) All Guaranty Obligations of such Person with respect to the obligations of other Persons
of the types described in clauses (a) — (k) above; and



(m) All obligations of other Persons (“primary obligors”) of the types described in clauses
(a) — (l) above to the extent secured by (or for which any holder of such obligations has an
existing right, contingent or otherwise, to be secured by) any Lien on any property (including
accounts and contract rights) of such Person, even though such Person has not assumed or become
liable for the payment of such obligations (and, for purposes of this clause (m), the amount of the
Indebtedness of such Person shall be deemed to be the lesser of (x) the amount of all obligations
of such primary obligors so secured by (or for which any holder of such obligations has an existing
right, contingent or otherwise, to be secured by) the property of such Person and (y) the value of
such property).



To the extent not included above, “Indebtedness” shall include all Obligations.



“Indemnifiable Taxes” shall have the meaning given to that term in Section
2.12(a).



“Initial Funding Date” shall mean the time and Business Day on which the satisfaction
of all conditions precedent and the consummation of all of the transactions contemplated in
Schedule 3.02 occur.



“Indemnitees” shall have the meaning given to that term in Section 8.03.



“Interest Expense” shall mean, for any period, the sum, for the Borrower Parties
(determined on a consolidated basis without duplication in accordance with GAAP), of the following:
(a) all interest, fees, charges and related expenses payable during such period to any Person in
connection with Indebtedness or the deferred purchase price of assets that are treated as interest
in accordance with GAAP, (b) the portion of rent actually paid during such period under Capital
Leases that should be treated as interest in accordance with GAAP and (c) the net amounts payable
(or minus the net amounts receivable) under Rate Contracts accrued during such period
(whether or not actually paid or received during such period).



“Interest Period” shall mean, with respect to any LIBOR Loan or LIBOR Portion, the
time periods selected by the Borrower pursuant to Section 2.01(c) or Section
2.01(e) which commences on the first day of such Loan or Portion or the effective date of any
conversion and ends on the last day of such time period, and thereafter, each subsequent time
period selected by the Borrower pursuant to Section 2.01(f) which commences on the last day
of the immediately preceding time period and ends on the last day of that time period.



“Investment” of any Person shall mean any loan or advance of funds by such Person to
any other Person (other than advances to employees of such Person for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business consistent with past
practice), any purchase or other acquisition of any Equity Securities or


 


-16-









 





Indebtedness of any other Person, any capital contribution by such Person to or any other
investment by such Person in any other Person (including (x) any Guaranty Obligations of such
Person with respect to any obligations of any other Person and (y) any payments made by such Person
on account of obligations of any other Person); provided, however, that Investments
shall not include (a) accounts receivable or other indebtedness owed by customers of such Person
(other than any Borrower Party) which are current assets and arose from sales or rentals of
inventory in the ordinary course of such Person’s business consistent with past practice or (b)
prepaid expenses of such Person incurred and prepaid in the ordinary course of business consistent
with past practice.




“IRC” shall mean the U.S. Internal Revenue Code of 1986.



“ISP” shall have the meaning given to that term in Section 2.02(h).



“Joint Venture” shall mean a joint venture, limited liability company, corporation,
partnership, other entity or other legal arrangement (whether created pursuant to a contract or
conducted through a separate legal entity) formed by a Loan Party and one or more other Persons who
are not Loan Parties.



“L/C Advance” shall mean, with respect to each Revolving Lender, such Revolving
Lender’s payment or participation in any L/C Borrowing in accordance with its Revolving
Proportionate Share.



“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Loan Borrowing.



“L/C Credit Extension” shall mean, with respect to any Letter of Credit, the issuance
thereof, the amendment thereof, the extension of the expiry date thereof, or the renewal or
increase of the amount thereof.



“L/C Issuer” shall mean Wells Fargo in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” shall mean, as at any date of determination, the aggregate undrawn
face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings.



“Lead Arranger” shall mean WFS in its capacity as lead arranger and sole bookrunner
with respect to this Agreement. Except as expressly set forth in Sections 8.02 and 8.03,
the capacity of the Lead Arranger is titular in nature, and the Lead Arranger shall have no special
rights or obligations over those of a Lender by reason thereof.



“Lender Parties” shall mean, collectively, the Lenders and the Persons who are
counterparties to the Borrower under Lender Rate Contracts.


 


-17-









 





“Lender Rate Contract(s)” shall mean one or more Rate Contracts with respect to the
Indebtedness evidenced by this Agreement between the Borrower and any Person who, at the
time it enters into such Rate Contract, is a Lender or an Affiliate of a Lender (in each
case, only so long as such Person remains a Lender or an Affiliate of a Person that remains a
Lender), on terms acceptable to the Borrower and such Person. Each Lender Rate Contract shall be a
Credit Document and shall be secured by the Liens created by the Security Documents to the extent
set forth in Section 2.14(a).



“Lenders” shall have the meaning given to that term in clause (2) of the introductory
paragraph hereof and includes the L/C Issuer and the Swing Line Lender (unless the context
otherwise requires).



“Letter of Credit” shall mean any letter of credit issued hereunder. A Letter of
Credit may be a Commercial Letter of Credit or a Standby Letter of Credit.



“Letter of Credit Application” shall mean an application and agreement (including any
master letter of credit agreement) for the issuance or amendment of a letter of credit in the form
from time to time in use by the L/C Issuer.



“Letter of Credit Expiration Date” shall mean the day that is thirty days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).



“Letter of Credit Sublimit” shall mean an amount equal to the lesser of (a) $2,500,000
and (b) the Total Revolving Loan Commitment. The Letter of Credit Sublimit is part of, and not in
addition to, the Total Revolving Loan Commitment.



“LIBOR Loan” shall mean, at any time, a Revolving Loan which then bears interest as
provided in Section 2.01(d)(ii).



“LIBOR Portion” shall mean, at any time, a Portion of a Term Loan Borrowing, or a Term
Loan, as the case may be, which then bears interest at a rate specified in Section
2.01(d)(ii).



“LIBOR Rate” shall mean, with respect to any Interest Period for the LIBOR Loans in
any Revolving Loan Borrowing consisting of LIBOR Loans or any LIBOR Portion of a Term Loan
Borrowing, a rate per annum equal to the quotient (rounded upward if necessary to the nearest 1/16
of one percent) of (a) the greater of (1) 1.50% and (2) the rate per annum referred to as the BBA
(British Bankers Association) LIBOR RATE as reported on Reuters LIBOR page 1, or if not reported by
Reuters, as reported by any service selected by the Administrative Agent, on the first day of such
Interest Period at or about 11:00 a.m., London time (or as soon thereafter as practicable), for
delivery on the second Business Day prior to the first day of such Interest Period for a term
comparable to such Interest Period, divided by (b) one minus the Reserve Requirement for
such Loans or Portion in effect from time to time. If for any reason rates are not available as
provided in clause (a)(2) of the preceding sentence, the rate to be used in clause (a)(2) shall be,
at the Administrative Agent’s discretion (in each case, rounded upward if necessary to the nearest
1/16 of one percent), (i) the rate per annum at which Dollar deposits are offered to the
Administrative Agent in the London interbank eurodollar currency market or (ii) the rate at which
Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major
banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each
case on the second Business Day prior to the commencement of such Interest


 


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Period at or about 10:00 a.m. (for delivery on the first day of such Interest Period) for a
term comparable to such Interest Period and in an amount approximately equal to the amount of the
Loan or Portion to be made or funded by the Administrative Agent as part of such Borrowing. The
LIBOR Rate shall be adjusted automatically as to all LIBOR Loans and LIBOR Portions then
outstanding as of the effective date of any change in the Reserve Requirement.




“Lien” shall mean, with respect to any Property, any security interest, mortgage,
pledge, lien, charge or other encumbrance in, of, or on such Property or the income therefrom,
including the interest of a vendor or lessor under a conditional sale agreement, Capital Lease or
other title retention agreement, or any agreement to provide any of the foregoing, and the filing
of any financing statement or similar instrument under the Uniform Commercial Code or comparable
law of any jurisdiction.



“Loan” shall mean a Revolving Loan, a Term Loan or a Swing Line Loan.



“Loan Account” shall have the meaning given to that term in Section 2.08(a).



“Loan Parties” shall mean, collectively, the Borrower and the Guarantors.



“Margin Stock” shall have the meaning given to that term in Regulation U issued by the
Federal Reserve Board but shall in any case include the treasury stock of the Borrower.



“Material Adverse Effect” shall mean any event or circumstance that has or could
reasonably be expected to have a material adverse effect on (a) the business, operations, condition
(financial or otherwise), assets or liabilities (whether actual or contingent) of the Borrower
Parties taken as a whole, (b) the ability of the Borrower to pay or perform the Obligations in
accordance with the terms of this Agreement and the other Credit Documents or the ability of the
Guarantors, collectively, to pay or perform any portion of their obligations in accordance with the
terms of the Guaranty and the other Credit Documents; (c) the rights and remedies of the
Administrative Agent, the Collateral Agent, the Security Trustee or any Lender under this
Agreement, the other Credit Documents or any related document, instrument or agreement; (d) the
value of the Collateral, the Administrative Agent’s, the Collateral Agent’s, the Security Trustee’s
or any Lender’s security interest in the Collateral or the perfection or priority of such security
interests; or (e) the validity or enforceability of any of the Credit Documents.



“Material Contract” shall mean the FireKeepers Management Agreement and any other
agreement or arrangement to which any Borrower Party is a party (other than the Credit Documents)
with respect to which breach, termination, nonperformance or failure to renew could reasonably be
expected to have a Material Adverse Effect.



“Material Documents” shall mean (i) the Organizational Documents of the Loan Parties,
(ii) all Acquisition Documents and (iii) the Material Contracts.



“Maturity” or maturity” shall mean, with respect to any Loan, interest, fee or
other amount payable by the Borrower under this Agreement or the other Credit Documents, the date
such Loan, interest, fee or other amount becomes due, whether upon the stated maturity or due date,
upon acceleration or otherwise.


 


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“Maturity Date” shall mean the earlier of (i) June 30, 2016 and (ii) the fifth
anniversary of the Initial Funding Date.



“Multiemployer Plan” shall mean any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by any Loan Party or any ERISA Affiliate.



“Negative Pledge” shall mean a Contractual Obligation which contains a covenant
binding on any Loan Party that prohibits Liens on any of its Property, other than
(a) any such covenant contained in a Contractual Obligation granting or relating to a particular
Permitted Lien which affects only the Property that is the subject of such Permitted Lien and (b)
any such covenant that does not apply to Liens securing the Obligations.



“Net Condemnation Proceeds” shall mean an amount equal to: (a) any cash payments or
proceeds received by a Loan Party, the Administrative Agent, the Security Trustee or the Collateral
Agent as a result of any condemnation or other taking or temporary or permanent requisition of any
Property of a Loan Party, any interest therein or right appurtenant thereto, or any change of grade
affecting such Property, as the result of the exercise of any right of condemnation or eminent
domain by a Governmental Authority (including a transfer to a Governmental Authority in lieu or
anticipation of a condemnation), minus (b) (i) any actual and reasonable costs incurred by a Loan
Party in connection with any such condemnation or taking (including reasonable fees and expenses of
counsel), and (ii) provisions for all taxes payable as a result of such condemnation, without
regard to the consolidated results of operations of the Loan Parties, taken as a whole.



“Net Income” shall mean with respect to any fiscal period, the net income of or
attributable to the Borrower Parties for such period determined on a consolidated basis in
accordance with GAAP, consistently applied; provided, that Net Income for any period that
includes any fiscal quarter ending prior to the Initial Funding Date shall be deemed to include the
Net Income of or attributable to the Purchased Assets



“Net Insurance Proceeds” shall mean an amount equal to: (a) any cash payments or
proceeds received by a Loan Party, the Administrative Agent or the Collateral Agent under any key
man life insurance policy or any casualty policy in respect of a covered loss thereunder with
respect to any property, minus (b) (i) any actual and reasonable costs incurred by a Loan Party in
connection with the adjustment or settlement of any claims of a Loan Party in respect thereof
(including reasonable fees and expenses of counsel), (ii) provisions for all taxes payable as a
result of such event without regard to the consolidated results of operations of Loan Parties,
taken as a whole, and (iii) with respect to cash payments or proceeds from any key man life
insurance policies, reasonable and customary amounts paid by the applicable Loan Party to (A) an
executive recruiting firm related to hiring a replacement executive officer, and (B) the
replacement executive officer as a signing bonus and relocation expenses.



“Net Proceeds” shall mean:


 


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(a) With respect to any sale of any asset or property by any Person, the aggregate
consideration received by such Person from such sale less the sum of (i) the actual amount
of the reasonable fees and commissions payable by such Person other than to any of its
Affiliates, (ii) the reasonable legal expenses and other costs and expenses directly related
to such sale that are to be paid by such Person other than to any of its Affiliates (including,
without limitation, transfer, sale, use and other similar taxes payable in connection with such
sale), (iii) income taxes reasonably estimated to be payable by such Person as a result of such
sale, and (iv) the amount of any Indebtedness (other than the Obligations) which is secured by such
asset and is required to be repaid or prepaid by such Person as a result of such sale; and



(b) With respect to any issuance or incurrence of any Indebtedness by any Person, the
aggregate consideration received by such Person from such issuance or incurrence less the
sum of (i) the actual amount of the reasonable fees and commissions payable by such Person other
than to any of its Affiliates and (ii) the reasonable legal expenses and the other reasonable costs
and expenses directly related to such issuance or incurrence that are to be paid by such Person
other than to any of its Affiliates; and



(c) With respect to any issuance of Equity Securities by any Person, the aggregate
consideration received by such Person from such issuance less the sum of (i) the actual
amount of the reasonable fees and commissions payable by such Person other than to any of its
Affiliates and (ii) the reasonable legal expenses and the other reasonable costs and expenses
directly related to such issuance that are to be paid by such Person other than to any of its
Affiliates.



“New Lender” shall have the meaning given to that term in Section
2.01(h)(i)(G).



“Non-Bank Certificate” shall have the meaning given to that term in Section
2.12(e).



“Non-Bank Lender” shall have the meaning given to that term in Section
2.12(e).



“Non-Consenting Lender” shall have the meaning given to that term in Section
8.04.



“Nonrenewal Notice Date” shall have the meaning given to that term in Section
2.02(b)(iii).



“Non-Wholly-Owned Subsidiary” shall mean a direct or indirect Subsidiary of the
Borrower that is not a Wholly-Owned Subsidiary.



“Nottawaseppi Tribe” shall mean the Nottawaseppi Huron Band of Potawatomi.



“Note” shall mean a Revolving Loan Note, a Term Loan Note or a Swing Line Note.



“Notice of Borrowing” shall mean a Notice of Loan Borrowing or a Notice of Swing Line
Borrowing.



“Notice of Conversion” shall have the meaning given to that term in Section
2.01(e).



“Notice of Interest Period Selection” shall have the meaning given to that term in
Section 2.01(f)(ii).



“Notice of Loan Borrowing” shall have the meaning given to that term in Section
2.01(c).



 


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“Notice of Swing Line Borrowing” shall mean a notice of a Swing Line Borrowing
pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of
Exhibit D.



“Obligations” shall mean and include all loans, advances, debts, liabilities and
obligations, howsoever arising, owed or owing by the Borrower of every kind and description
(whether or not evidenced by any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of this Agreement or any of the other Credit Documents, including without
limitation all interest (including interest that accrues after the commencement of any bankruptcy
or other insolvency proceeding by or against any the Borrower, whether or not allowed or
allowable), fees, charges, expenses, attorneys’ fees and accountants’ fees chargeable to and
payable by the Borrower hereunder and thereunder.



“Organizational Documents” shall mean, with respect to any Person, collectively, (a)
such Person’s articles or certificate of incorporation, articles or certificate of organization,
certificate of limited partnership, certificate of formation, or comparable documents filed or
recorded with the applicable Governmental Authority of such Person’s jurisdiction of formation and
(b) such Person’s, bylaws, limited liability company agreement, partnership agreement or other
comparable organizational or governing documents.



“Participant” shall have the meaning given to that term in Section 8.05(b).



“Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56
(commonly known as the USA Patriot Act).



“PBGC” shall mean the Pension Benefit Guaranty Corporation.



“Pension Plan” shall mean any “employee pension benefit plan” (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan and a Foreign Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which
a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute.



“Permitted Acquisition” shall mean any acquisition permitted under Section
5.02(d)(iv).



“Permitted Indebtedness” shall have the meaning given to that term in Section
5.02(a).



“Permitted Liens” shall have the meaning given to that term in Section
5.02(b).



“Person” shall mean and include an individual, a partnership, a corporation (including
a business trust), a joint stock company, an unincorporated association, a limited liability
company, a joint venture, a trust or other entity or a Governmental Authority.



“Pledged Intercompany Notes” shall have the meaning given to that term in Schedule
3.01(a)(vi).


 


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“Portion” shall mean a portion of the principal amount of a Term Loan Borrowing or a
Term Loan, as applicable. A Term Loan Borrowing shall consist of one or more Portions, and
each Term Loan comprising a Term Loan Borrowing shall consist of the same number of Portions,
with each such Term Loan Portion corresponding pro rata to a Term Loan Borrowing Portion. Any
reference to a Portion of a Term Loan Borrowing shall include the corresponding Portion of each
Term Loan comprising a Term Loan Borrowing.



“Pricing Grid” shall mean,



Pricing Grid




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin	 	 	Applicable Margin	 	 	Commitment Fee	 
	Tier	 	Total Leverage Ratio	 	 	for LIBOR Loans	 	 	for Base Rate Loans	 	 	Percentage	 
	I
	 	 	≥ 1.25	 	 	 	5.50	%	 	 	4.50	%	 	 	0.750	%
	II
	 	 	≥ 0.75 < 1.25	 	 	 	5.00	%	 	 	4.00	%	 	 	0.625	%
	III
	 	 	< 0.75	 	 	 	4.50	%	 	 	3.50	%	 	 	0.500	%






Any increase or decrease in the Applicable Margin resulting from a change in the Total
Leverage Ratio shall become effective as of the fifth Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 5.01(a)(iii) with respect to any
fiscal quarter; provided, however, that if no Compliance Certificate is delivered
when due in accordance with such Section, then Tier I shall apply as of the date of the failure to
deliver such Compliance Certificate until such date as the Borrower delivers such Compliance
Certificate in form and substance reasonably acceptable to the Administrative Agent and thereafter
the Applicable Margin shall be based on the Total Leverage Ratio indicated on such Compliance
Certificate until such time as the Applicable Margin is further adjusted as set forth in this
definition. Notwithstanding anything to the contrary herein, the Applicable Margin in effect as of
the Initial Funding Date shall be based on Tier I until adjusted in the manner set forth in this
definition following the date a Compliance Certificate is delivered pursuant to Section
5.01(a)(iii) with respect to the first full fiscal quarter following the Initial Funding Date.
If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to have been
incorrectly reported and if correctly reported would have resulted in a higher Applicable Margin,
then the Applicable Margin shall be retroactively adjusted to reflect the higher rate that would
have been applicable had the Total Leverage Ratio been correctly reported in such Compliance
Certificate and the additional amounts resulting therefrom shall be due and payable upon demand
from the Administrative Agent or any Lender (the Borrower’s obligations to pay such additional
amounts shall survive the payment and performance of all other Obligations and the termination of
this Agreement).



“Prime Rate” shall mean the per annum rate of interest most recently announced within
Wells Fargo at its principal office in San Francisco, California as its Prime Rate, with the
understanding that Wells Fargo’s Prime Rate is one of its base rates and serves as the basis upon
which effective rates of interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal publication or
publications as Wells Fargo may designate. Any change in the Base Rate resulting from a
change in the Prime Rate shall become effective on the Business Day on which each such change
in the Prime Rate occurs.


 


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“Property” shall mean any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.



“Proportionate Share” shall mean a Revolving Proportionate Share or a Term
Proportionate Share, as the context may require.



“Proposed Change” shall have the meaning given to that term in Section 8.04.



“Proposed Target” shall have the meaning given to that term in Section
5.02(d)(iv).



“Purchased Assets” shall have the meaning given to that term in the Acquisition
Agreement.



“Qualified Equity Securities” means Equity Securities of the Borrower other than
Disqualified Equity Securities.



“Rate Contract” shall mean any agreement with respect to any swap, cap, collar, hedge,
forward, future or derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions.



“Real Property Security Documents” shall mean (a) each document listed on Schedule
1.01(a) and (b) each deed of trust or mortgage delivered from time to time in accordance with
Section 5.01(k) or otherwise in connection with the Credit Documents.



“Receipt Date” shall have the meaning given to that term in Section
2.06(c)(vii).



“Reduction Amount” shall have the meaning given to that term in Section
2.04(b).



“Reduction Date” shall have the meaning given to that term in Section 2.04(b).



“Reduction Notice” shall have the meaning given to that term in Section
2.04(a).



“Register” shall have the meaning given to that term in Section 8.05(d).



“Relevant Sale” shall have the meaning given to that term in Section
2.06(c)(iv).



“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA
and applicable regulations thereunder (other than events for which the thirty (30) day notice
period has been waived).



“Required Lenders” shall mean, at any time, the Lenders whose Proportionate Shares
then exceed fifty percent (50%) of the total Proportionate Shares of all Lenders; provided
that at any time any Lender is a Defaulting Lender, such Defaulting Lender shall be excluded in
determining “Required Lenders”, and “Required Lenders” shall mean at such time non-


 


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Defaulting Lenders having total Proportionate Shares exceeding fifty percent (50%) of the
total Proportionate Shares of all non-Defaulting Lenders. Notwithstanding the foregoing, in no
event shall Required Lenders consist of fewer than two non-Defaulting Lenders at any time at which
there shall be at least two non-Defaulting Lenders party to this Agreement, and for purposes of the
foregoing, Lenders that are Affiliates of one another shall be treated as a single Lender.




“Requirement of Law” applicable to any Person shall mean (a) such Person’s
Organizational Documents, (b) any Governmental Rule applicable to such Person, (c) any Governmental
Authorization granted by or obtained from any Governmental Authority or under any Governmental Rule
for the benefit of such Person or (d) any judgment, decision, award, decree, writ or determination
of any Governmental Authority or arbitrator, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject.



“Reserve Requirement” shall mean, with respect to any day in an Interest Period for a
LIBOR Loan or LIBOR Portion and for any calculation of the One Month LIBOR Rate, the aggregate of
the maximum of the reserve requirement rates (expressed as a decimal) in effect on such day for
eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the
Federal Reserve Board) maintained by a member bank of the Federal Reserve System. As used herein,
the term “reserve requirement” shall include, without limitation, any basic, supplemental or
emergency reserve requirements imposed on any Lender by any Governmental Authority.



“Responsible Officer” shall mean, with respect to a Loan Party, the chief executive
officer, president, chief operating officer, chief financial officer, vice president or treasurer
of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a
Loan Party and any request or other communication conveyed telephonically or otherwise by a
Responsible Officer of a Loan Party (or any Person reasonably believed by the Administrative Agent,
the Collateral Agent or the Security Trustee to be a Responsible Officer of a Loan Party) shall be
conclusively presumed to have been authorized by all necessary corporate, company, partnership
and/or other action on the part of such Loan Party and such Responsible Officer (or such Person
reasonably believed by the Administrative Agent or the Security Trustee to be a Responsible
Officer) shall be conclusively presumed to have acted on behalf of such Loan Party.



“Revolving Lender” shall mean (a) on the Initial Funding Date, the Lenders having
Revolving Loan Commitments as specified on Part A of Schedule I hereto and (b)
thereafter, the Lenders from time to time holding Revolving Loans, L/C Obligations and Swing Line
Loans and Revolving Commitments after giving effect to any assignments permitted by Section
8.05(c).



“Revolving Loan” shall have the meaning given to that term in Section 2.01(b).



“Revolving Loan Borrowing” shall mean a borrowing by the Borrower consisting of the
Revolving Loans made by each of the Revolving Lenders to the Borrower on the same date and of the
same Type pursuant to a single Notice of Loan Borrowing for Revolving Loans.



“Revolving Loan Commitment” shall mean, with respect to each Lender, the Dollar amount
set forth under the caption “Revolving Loan Commitment” opposite such Lender’s name
on Part A of Schedule I, or, if changed, such Dollar amount as may be set
forth for such Lender in the Register.


 


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“Revolving Loan Note” shall have the meaning given to that term in Section
2.08(b).



“Revolving Proportionate Share” shall mean:



(a) With respect to any Lender so long as the Revolving Loan Commitments are in effect, the
ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of
(i) such Lender’s Revolving Loan Commitment at such time to (ii) the Total Revolving Loan
Commitment at such time; and



(b) With respect to any Lender at any other time, the ratio (expressed as a percentage rounded
to the eighth digit to the right of the decimal point) of (i) the sum of (A) the aggregate
Effective Amount of such Lender’s Revolving Loans, (B) such Lender’s Proportionate Share of the
Effective Amount of all L/C Obligations, and (C) such Lender’s Proportionate Share of the aggregate
Effective Amount of all Swing Line Loans to (ii) the sum of (A) the aggregate Effective
Amount of all Revolving Loans and Swing Line Loans and (B) the Effective Amount of all L/C
Obligations.



The initial Revolving Proportionate Share of each Lender is set forth under the caption
“Revolving Proportionate Share” opposite such Lender’s name on Schedule I.



“Sale and Leaseback” shall mean, with respect to any Person, the sale of Property
owned by such Person (the “Seller”) to another Person (the “Buyer”), together with
the substantially concurrent leasing of such Property by the Buyer to the Seller.



“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral
Agent, the Security Trustee and the Lender Parties.



“Security Agreement” shall mean that certain Security Agreement among the Borrower,
each Guarantor party thereto and the Collateral Agent, substantially in the form of Exhibit
M.



“Security Documents” shall mean and include the Security Agreement, the Collateral
Assignment of Leases, each Control Agreement, each Real Property Security Document, the Grand
Victoria Vessel Security Document, each other pledge agreement or security agreement from time to
time delivered in accordance with Section 5.01(i), and all other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial Code financing statements and
fixture filings) delivered to the Administrative Agent, the Collateral Agent, the Security Trustee
or any Lender in connection with any Collateral or to secure the Obligations or the obligation of a
Guarantor under the Credit Documents.



“Security Trustee” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



“Senior Finance Officer” shall mean, with respect to a Loan Party, the Chief Executive
Officer, the Chief Financial Officer or the Vice President of Finance of such Loan Party.


 


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“Ship Mortgage Act” means Chapter 313 of Title 46 of the United States Code.



“Solvent” shall mean, with respect to any Person on any date, that on such date (a)
the fair value of the Property of such Person is greater than the fair value of the liabilities
(including contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the
present fair saleable value of the assets of such Person is greater than the amount that will be
required to pay the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities mature and (d) such
Person is not engaged in or about to engage in business or transactions for which such Person’s
Property would constitute an unreasonably small capital.



“Standby Letter of Credit” shall mean any of the standby letters of credit issued by
the L/C Issuer under this Agreement, either as originally issued or as the same may be
supplemented, modified, amended, extended, restated or supplanted.



“Subordinated Obligations” shall mean, as of any date of determination, any
Indebtedness of the Loan Parties on that date which has been subordinated in right of payment to
the Obligations in a manner reasonably satisfactory to the Required Lenders and contains such other
protective terms with respect to senior debt (such as amount, maturity, amortization, interest
rate, covenants, defaults, remedies, payment blockage and terms of subordination) as the Required
Lenders may reasonably require.



“Subsidiary” of any Person shall mean (a) any corporation of which more than 50% of
the issued and outstanding Equity Securities having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of
which more than 50% of the Equity Securities having the power to vote, direct or control the
management of such partnership, joint venture or other association is at the time owned and
controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or
more of such Person’s other Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis. Unless otherwise indicated in this Agreement,
“Subsidiary” shall mean a Subsidiary of the Borrower. For the avoidance of doubt, the Subsidiaries
of the Borrower shall include GEM and exclude GED.



“Surety Instruments” shall mean all letters of credit (including standby and
commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar
instruments.



“Swing Line” shall mean the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.03.



“Swing Line Borrowing” shall mean a borrowing of a Swing Line Loan.



“Swing Line Lender” shall mean Wells Fargo in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.


 


-27-









 





“Swing Line Loan” shall mean the meaning specified in Section 2.03(a).



“Swing Line Note” shall have the meaning given to that term in Section
2.08(d).



“Swing Line Settlement Date” shall mean the fifteenth day of each month and the last
Business Day of each month.



“Swing Line Sublimit” shall mean an amount equal to the lesser of (a) $1,000,000 and
(b) the Total Revolving Loan Commitment. The Swing Line Sublimit is part of, and not in addition
to, the Total Revolving Loan Commitment.



“Taxes” shall mean all taxes, assessments, charges, duties, fees, levies or other
governmental charges, including, without limitation, all U.S. federal, state, local, foreign and
other income, franchise, profits, gross receipts, capital gains, capital stock, transfer, property,
sales, use, value-added, occupation, property, excise, severance, windfall profits, stamp, license,
payroll, social security, withholding and other taxes, assessments, charges, duties, fees, levies
or other governmental charges of any kind whatsoever (whether payable directly or by withholding
and whether or not requiring the filing of a Tax Return), all estimated taxes, deficiency
assessments, additions to tax, penalties and interest and shall include any liability for such
amounts as a result either of being a member of a combined, consolidated, unitary or affiliated
group or of a contractual obligation to indemnify any person or other entity.



“Tax Return” shall mean all tax returns, statements, forms and reports (including
elections, declarations, disclosures, schedules, estimates and information returns) for Taxes.



“Term Lender” shall mean (a) prior to the Initial Funding Date, the Lenders having
Term Loan Commitments as specified on Part A of Schedule I and (b) from and after
the Initial Funding Date, the Lenders from time to time holding Term Loans after giving effect to
any assignments permitted by Section 8.05(c).



“Term Loan” shall mean each advance made by a Term Lender pursuant to Section
2.01(a).



“Term Loan Borrowing” shall mean the borrowing by the Borrower consisting of the Term
Loans made by the applicable Term Lenders to the Borrower.



“Term Loan Commitment” shall mean, with respect to each Lender, the Dollar amount set
forth under the caption “Term Loan Commitment” opposite such Lender’s name on Part A of
Schedule I, or, if changed, such Dollar amount as may be set forth for such Lender in the
Register.



“Term Loan Increase” shall have the meaning given to that term in Section
2.01(a)(ii).



“Term Loan Installment Date” shall mean the last Business Day in each March, June,
September and December of each year, commencing the last Business Day of the first full fiscal
quarter after the Initial Funding Date.



“Term Loan Note” shall have the meaning given to that term in Section 2.08(c).


 


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“Term Proportionate Share” shall mean:



(a) With respect to any Lender at any time prior to the Initial Funding Date, the ratio
(expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i)
such Lender’s Term Loan Commitment at such time to (ii) the Total Term Loan Commitment at
such time; and



(b) With respect to any Lender at any time after the Initial Funding Date, the ratio
(expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i)
the Effective Amount of such Lender’s Term Loan outstanding at such time to (ii) the
Effective Amount of all Term Loans outstanding at such time.



The initial Term Proportionate Share of each Lender is set forth under the caption “Term
Proportionate Share” opposite such Lender’s name on Schedule I.



“Termination Value” shall mean, in respect of any one or more Rate Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Rate
Contracts, (a) for any date on or after the date such Rate Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market
value(s) for such Rate Contracts, as determined by the Administrative Agent based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Rate
Contracts which may include any Lender.



“Total Funded Debt” shall mean, as of any date of determination, all Indebtedness of
or attributable to the Borrower Parties on a consolidated basis as of such date; provided
that Total Funded Debt for any period that includes any fiscal quarter ending prior to the Initial
Funding Date shall be deemed to include the Total Funded Debt of or attributable to the Purchased
Assets.



“Total Leverage Ratio” shall mean, as of any date of determination, the ratio of (a)
Total Funded Debt as of such date to (b) Adjusted EBITDA for the four consecutive fiscal quarter
period most recently ended for which Financial Statements are available.



“Total Revolving Loan Commitment” shall mean, at any time, Four Million Seven Hundred
Thirty Six Thousand Eight Hundred Forty Two Million Dollars and Eleven Cents ($4,736,842.11) or, if
such amount is reduced pursuant to Section 2.04(a) or (b), the amount to which so
reduced and in effect at such time, or, if such amount is increased pursuant to Section
2.01(h), the amount to which so increased and in effect at such time.



“Total Term Loan Commitment” shall mean, at any time, Thirty One Million Two Hundred
Sixty Three Thousand One Hundred Fifty Seven Dollars and Eighty Nine Cents ($31,263,157.89) or,
when such amount is reduced pursuant to Section 2.04(b), the amount to which so reduced and
in effect at such time or, if such amount is increased pursuant to Section 2.01(h), the
amount to which so increased and in effect at such time.



“Transactions” shall mean, collectively (a) the transactions contemplated under the
Acquisition Agreement, including the Acquisition, (b) the initial Borrowings of the Loans on the
Initial Funding Date and (c) the payment of fees, commissions and expenses in connection with
the foregoing.


 


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“Type” shall mean, with respect to any Loan, Borrowing or Portion at any time, the
classification of such Loan, Borrowing or Portion by the type of interest rate it then bears,
whether an interest rate based upon the Base Rate or the LIBOR Rate.



“UCP” shall have the meaning given to that term in Section 2.02(h)(ii).



“Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the IRC for the applicable plan year.



“Unreimbursed Amount” has the meaning set forth in Section 2.02(c)(i).



“Unused Revolving Commitment” shall mean, at any time, the remainder of (a) the Total
Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all
Revolving Loans and the Effective Amount of all L/C Obligations outstanding at such time. For the
avoidance of doubt, Swing Line Loans shall not be counted as Revolving Loans for purposes of
determining the amount of Unused Revolving Commitment.



“United States” and “U.S.” shall mean the United States of America.



“Wells Fargo” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



“Wells Fargo Parties” shall mean, collectively, Wells Fargo and WFS.



“WFS” shall have the meaning given to that term in the introductory paragraph hereof.



“Wholly-Owned Subsidiary” shall mean any Person in which 100% of the Equity Securities
of each class having ordinary voting power, and 100% of the Equity Securities of every other class,
in each case, at the time as of which any determination is being made, is owned, beneficially and
of record, by the Borrower, or by one or more Wholly-Owned Subsidiaries of the Borrower, or both.



1.02. GAAP. Unless otherwise indicated in this Agreement or any other Credit
Document, all accounting terms used in this Agreement or any other Credit Document shall be
construed, and all accounting and financial computations hereunder or thereunder shall be computed,
in accordance with GAAP applied in a consistent manner with the principles used in the preparation
of the Financial Statements of the Borrower Parties for the fiscal year ending December 31, 2009.
Notwithstanding the other provisions of this Section 1.02, for purposes of determining
compliance with any covenant, including any financial covenant, Indebtedness of the Borrower and
its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof,
and the effects of FASB ASC 825 (and FASB ASC 470-20, if applicable) on financial liabilities shall
be disregarded. If GAAP changes, as applicable, during the term of this Agreement such that any
covenants contained herein would then be calculated in


 


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a different manner or with different components, other than changes in GAAP that require items
to be included in the definition of Indebtedness that were not so required before such change in
GAAP, the Borrower, the Lenders and the Administrative Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those covenants as criteria for
evaluating the Loan Parties’ financial condition to substantially the same criteria as were
effective prior to such change in GAAP; provided, however, that, until the
Borrower, the Lenders and the Administrative Agent so amend this Agreement, all such covenants
shall be calculated in accordance with GAAP, as in effect immediately prior to such change in GAAP.




1.03. Headings. The table of contents, captions and section headings appearing in
this Agreement are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.



1.04. Plural Terms. All terms defined in this Agreement or any other Credit Document
in the singular form shall have comparable meanings when used in the plural form and vice versa.



1.05. Time. All references in this Agreement and each of the other Credit Documents
to a time of day shall mean San Francisco, California time, unless otherwise indicated.



1.06. Governing Law. This Agreement and, unless otherwise expressly provided in any
such Credit Document, each of the other Credit Documents shall be governed by and construed in
accordance with the laws of the State of New York without reference to conflicts of law rules other
than Section 5-1401 of the General Obligations Law of the State of New York. The scope of the
foregoing governing law provision is intended to be all-encompassing of any and all disputes that
may be brought in any court or any mediation or arbitration proceeding and that relate to the
subject matter of the Credit Documents, including contract claims, tort claims, breach of duty
claims and all other common law and statutory claims.



1.07. Construction. This Agreement is the result of negotiations among, and has been
reviewed by, the Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the
Security Trustee and their respective counsel. Accordingly, this Agreement shall be deemed to be
the product of all parties hereto, and no ambiguity shall be construed in favor of or against the
Borrower, any Lender, the Security Trustee, the Collateral Agent or the Administrative Agent.



1.08. Entire Agreement. This Agreement and each of the other Credit Documents, taken
together, constitute and contain the entire agreement of the Borrower, the Lenders, the
Administrative Agent, the Security Trustee and the Collateral Agent and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications among the parties,
whether written or oral, respecting the subject matter hereof including, except to the extent
expressly set forth therein and in the last sentence of this Section 1.08, the commitment
letter dated as of September 10, 2010 between the Borrower and the Wells Fargo Parties (the
“Commitment Letter”), but excluding the Fee Letter. Notwithstanding anything to the
contrary herein or in any of the other Credit Documents, Sections 1(c) and 2(b) of the Commitment
Letter shall survive the Effective Date, the payment of the Obligations and the termination of this
Agreement.


 


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1.09. Calculation of Interest and Fees. All calculations of interest and fees under
this Agreement and the other Credit Documents for any period (a) shall include the first day of
such period and exclude the last day of such period; provided that any Loan or Portion that
is repaid on the same day on which it is made shall bear interest for one day and (b) shall be
calculated on the basis of a year of 360 days for actual days elapsed, except that during any
period any Loan or Portion bears interest based upon the Base Rate, such interest shall be
calculated on the basis of a year of 365 or 366 days, as appropriate, for actual days elapsed.



1.10. References.



(a) References in this Agreement to “Recitals,” “Sections,” “Paragraphs,” “Exhibits” and
“Schedules” are to recitals, sections, paragraphs, exhibits and schedules herein and hereto unless
otherwise indicated.



(b) References in this Agreement or any other Credit Document to any document, instrument or
agreement (i) shall include all exhibits, schedules and other attachments hereto or thereto, (ii)
shall include all documents, instruments or agreements issued or executed in replacement thereof if
such replacement is permitted hereby or thereby, and (iii) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, restated, modified and supplemented
from time to time and in effect at any given time if such amendment, restatement, modification or
supplement is permitted hereby or thereby.



(c) References in this Agreement or any other Credit Document to any Governmental Rule (i)
shall include any successor Governmental Rule, (ii) shall include all rules and regulations
promulgated under such Governmental Rule (or any successor Governmental Rule), and (iii) shall mean
such Governmental Rule (or successor Governmental Rule) and such rules and regulations, as amended,
modified, codified or reenacted from time to time and in effect at any given time.



(d) References in this Agreement or any other Credit Document to any Person in a particular
capacity (i) shall include any successors to and permitted assigns of such Person in that capacity
and (ii) shall exclude such Person individually or in any other capacity.



1.11. Other Interpretive Provisions. The words “hereof,” “herein” and “hereunder” and
words of similar import when used in this Agreement or any other Credit Document shall refer to
this Agreement or such other Credit Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Credit Document, as the case may be. The
words “include” and “including” and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the event of any
inconsistency between the terms of this Agreement and the terms of any other Credit Document, the
terms of this Agreement shall govern.



1.12. Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed in this Agreement and rounding the result up or down to the nearest number
(with a round-up if there is no nearest number) to the number of places by which such ratio is
expressed in this Agreement.


 


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ARTICLE II. CREDIT FACILITIES.




2.01. Loan Facilities.



(a) Term Loan Availability.



(i) On the Initial Funding Date. On the terms and subject to the conditions of this
Agreement, each Term Lender severally agrees to advance to the Borrower in a single advance on the
Initial Funding Date a loan in Dollars under this Section 2.01(a)(i); provided,
however, that (i) the principal amount of the Term Loan made by such Term Lender shall not
exceed such Term Lender’s Term Loan Commitment on the Initial Funding Date and (ii) the aggregate
principal amount of all Term Loans made by all Term Lenders shall not exceed the Total Term Loan
Commitment on the Initial Funding Date. The Term Loans made on the Initial Funding Date shall be
made on a pro rata basis by the Term Lenders in accordance with their respective Term Proportionate
Shares, with the Term Loan Borrowing to be comprised of a Term Loan by each Term Lender equal to
such Term Lender’s Term Proportionate Share of such Term Loan Borrowing.



(ii) After the Initial Funding Date. On the terms and subject to the conditions of
this Agreement, after the Initial Funding Date, if there is to be an increase in the aggregate
principal amount of the Term Loans pursuant to Section 2.01(h) (the “Term Loan
Increase”), the Term Lender that has agreed to advance the Term Loan Increase pursuant to
Section 2.01(h) hereby agrees to advance to the Borrower in a single advance on the date
specified for such Term Loan Increase pursuant to Section 2.01(h) a loan in Dollars under
this Section 2.01(a)(ii); provided, however, that the principal amount of
the Term Loan made by the such Lender shall not exceed the amount such Lender has agreed to advance
pursuant to Section 2.01(h) with respect to such Term Loan Increase. The Term Loan
Borrowing made in respect of the Term Loan Increase shall be comprised of a Term Loan made by such
Lender in an amount equal to such Term Loan Increase.



(iii) The Borrower may not reborrow the principal amount of any Term Loan after repayment or
prepayment thereof.



(b) Revolving Loan Availability. On the terms and subject to the conditions of this
Agreement, each Revolving Lender severally agrees to advance to the Borrower from time to time
during the period beginning on the Initial Funding Date up to, but not including the Maturity Date
such loans in Dollars as the Borrower may request under this Section 2.01(b) (individually,
a “Revolving Loan”); provided, however, that (i) the sum of (A) the
Effective Amount of all Revolving Loans made by such Revolving Lender at any time outstanding and
(B) such Revolving Lender’s Revolving Proportionate Share of the Effective Amount of all L/C
Obligations and all Swing Line Loans at any time outstanding shall not exceed such Revolving
Lender’s Revolving Loan Commitment at such time and (ii) the sum of (A) the Effective Amount of all
Revolving Loans made by all the Revolving Lenders at any time outstanding and (B) the Effective
Amount of all L/C Obligations and Swing Line Loans at any time outstanding


 


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shall not exceed the Total Revolving Loan Commitment at such time. All Revolving Loans shall
be made on a pro rata basis by the Revolving Lenders in accordance with their respective Revolving
Proportionate Shares, with each Revolving Loan Borrowing to be comprised of a Revolving Loan by
each Revolving Lender equal to such Revolving Lender’s Revolving Proportionate Share of such
Revolving Loan Borrowing. Except as otherwise provided herein, the Borrower may borrow, repay and
reborrow Revolving Loans until the Maturity Date.




(c) Notice of Loan Borrowing. The Borrower shall request each Revolving Loan
Borrowing and Term Loan Borrowing by delivering to the Administrative Agent an irrevocable written
notice substantially in the form of Exhibit A (a “Notice of Loan Borrowing”), duly
executed by a Responsible Officer of the Borrower and appropriately completed which specifies,
among other things:



(i) Whether the applicable Borrowing is a Revolving Loan Borrowing or Term Loan Borrowing;



(ii) In the case of a Revolving Loan Borrowing, the principal amount of the requested
Revolving Loan Borrowing, which shall be in the amount of $500,000 or an integral multiple of
$100,000 in excess thereof, provided that if such Revolving Loan Borrowing is (A) made in
connection with Section 2.01(h) or (B) of the remaining unfunded Total Revolving Loan
Commitment, it shall not be subject to any limitation under this clause (ii);



(iii) In the case of a Revolving Loan Borrowing, whether the requested Revolving Loan
Borrowing is to consist of Base Rate Loans or LIBOR Loans;



(iv) In the case of a Revolving Loan Borrowing, if the requested Revolving Loan Borrowing is
to consist of LIBOR Loans, the initial Interest Periods selected by the Borrower for such LIBOR
Loans in accordance with Section 2.01(f); and



(v) In the case of a Revolving Loan Borrowing, the date of the requested Revolving Loan
Borrowing, which shall be a Business Day.



The Borrower shall give (x) each Notice of Loan Borrowing for Revolving Loans to the Administrative
Agent not later than 11:00 a.m. at least three (3) Business Days before the date of the requested
Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of LIBOR Loans and
not later than 11:00 a.m. at least one (1) Business Day before the date of the requested Revolving
Loan Borrowing in the case of a Revolving Loan Borrowing consisting of Base Rate Loans and (y) the
Notice of Loan Borrowing for the Term Loan Borrowing to the Administrative Agent no later than
11:00 a.m. at least one (1) Business Day before the date of the requested Term Loan Borrowing. The
Term Loan Borrowing made on the Initial Funding Date shall initially be made as a Base Rate
Portion. Each Notice of Loan Borrowing shall be delivered by first-class mail, facsimile or e-mail
containing a PDF of such signed and completed Notice of Loan Borrowing) to the Administrative Agent
at the office or to the facsimile number or e-mail address and during the hours specified in
Section 8.01; provided, however, that the Borrower shall promptly deliver
to the Administrative Agent the original of any Notice of Loan Borrowing initially delivered by
facsimile or e-mail. The Administrative Agent shall promptly notify (x) each Revolving Lender of
the contents of each Notice of Loan Borrowing for



 


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Revolving Loans and of the amount and Type of (and, if applicable, the Interest Period for) the
Revolving Loan to be made by such Revolving Lender as part of the requested Revolving Loan
Borrowing and (y) each Term Lender of the contents of the Notice of Loan Borrowing for the Term
Loan Borrowing on the Initial Funding Date and of the amount of the Term Loan to be made by such
Term Lender as part of the requested Term Loan Borrowing. Notwithstanding the foregoing, the
Revolving Loan Borrowing advanced on the Initial Funding Date (if any) shall consist of Base Rate
Loans.




(d) Interest Rates. The Borrower shall pay interest on the unpaid principal amount of
each Revolving Loan and each Term Loan from the date of such Revolving Loan and such Term Loan
until paid in full, at one of the following rates per annum:



(i) During such periods as such Loan is a Base Rate Loan or Base Rate Portion, at a rate per
annum equal to the Base Rate plus the Applicable Margin therefor, such rate to change from time to
time as the Applicable Margin or Base Rate shall change; and



(ii) During such periods as such Loan is a LIBOR Loan or LIBOR Portion, at a rate per annum
equal at all times during each Interest Period for such LIBOR Loan or LIBOR Portion to the LIBOR
Rate for such Interest Period plus the Applicable Margin therefor, such rate to change from time to
time during such Interest Period as the Applicable Margin shall change.



All Revolving Loans in each Revolving Loan Borrowing shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates. Each LIBOR Portion of a Term Loan
Borrowing shall be in a minimum amount of $500,000 or an integral multiple of $100,000 in excess
thereof (except to the extent that any lesser Portion results from a mandatory prepayment of the
Term Loans pursuant to Section 2.06(c)). The number of Revolving Loan Borrowings
consisting of LIBOR Loans and LIBOR Portions of Term Loan Borrowings shall not exceed five (5) in
the aggregate at any time.




(e) Conversion of Loans. Subject to Section 2.13, the Borrower may convert
any Revolving Loan Borrowing or any Portion of the Term Loans from one Type of Revolving Loan
Borrowing or Portion of the Term Loans, respectively, to the other Type; provided,
however, that any such conversion shall be in a minimum amount of $500,000 or an integral
multiple of $100,000 in excess thereof; provided, further, that no Base Rate Loan
or Base Rate Portion may be converted into a LIBOR Loan or LIBOR Portion, respectively, after the
occurrence and during the continuance of an Event of Default and provided, further,
that any conversion of a LIBOR Loan or LIBOR Portion on any day other than the last day of the
Interest Period therefor shall be subject to the payments required under Section 2.13. The
Borrower shall request such a conversion by delivering to the Administrative Agent an irrevocable
written notice to the Administrative Agent substantially in the form of Exhibit B (a
“Notice of Conversion”), duly executed by a Responsible Officer of the Borrower and
appropriately completed, which specifies, among other things:



(i) The Revolving Loan Borrowing or the Portion of the Term Loans which is to be converted, as
applicable;


 


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(ii) The Type of Revolving Loan Borrowing into which such Revolving Loan Borrowing is to be
converted or the amount and Type of each Portion of Term Loans into which it is to be converted, as
applicable;



(iii) If such Revolving Loan Borrowing is to be converted into a Revolving Loan Borrowing
consisting of LIBOR Loans or if any Portion of Term Loans is to be converted into a LIBOR Portion,
the initial Interest Period selected by the Borrower for such LIBOR Loans or LIBOR Portion in
accordance with Section 2.01(f), as applicable; and



(iv) The date of the requested conversion, which shall be a Business Day.



The Borrower shall give each Notice of Conversion to the Administrative Agent not later than 11:00
a.m. at least three (3) Business Days before the date of the requested conversion of a Base Rate
Loan into a LIBOR Loan (or Base Rate Portion into a LIBOR Portion) or at least one (1) Business Day
before the date of the requested conversion of a LIBOR Loan into a Base Rate Loan (or a LIBOR
Portion into a Base Rate Portion). Each Notice of Conversion shall be delivered by first-class
mail, facsimile or e-mail containing a PDF of such signed and completed Notice of Conversion to the
Administrative Agent at the office or to the facsimile number or e-mail address and during the
hours specified in Section 8.01; provided, however, that the Borrower shall
promptly deliver to the Administrative Agent the original of any Notice of Conversion initially
delivered by facsimile or e-mail. The Administrative Agent shall promptly notify (x) each
Revolving Lender of the contents of each Notice of Conversion relating to Revolving Loans and (y)
each Term Lender of the contents of each Notice of Conversion relating to Term Loans or Portions
thereof. For the avoidance of doubt, the provisions of this Section 2.01(e) relate to the
conversion of the type of interest rate (LIBOR or Base Rate) applicable to the applicable Loans or
Portions and do not permit the conversion of a Revolving Loan, Term Loan or Portion into any other
kind of Loan provided hereunder.




(f) LIBOR Loan Interest Periods.



(i) The initial and each subsequent Interest Period selected by the Borrower for a Revolving
Loan Borrowing consisting of LIBOR Loans, or a LIBOR Portion of a Term Loan Borrowing, as
applicable, shall be one (1), three (3) or six (6) months; provided, however, that
(A) any Interest Period which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless such next Business Day falls in another
calendar month, in which case such Interest Period shall end on the immediately preceding Business
Day; (B) any Interest Period which begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month; (C) no Interest Period
shall end after the Maturity Date; (D) no LIBOR Loan or LIBOR Portion shall be made or continued
for an additional Interest Period after the occurrence and during the continuance of an Event of
Default; (E) no Interest Period for any LIBOR Portion of a Term Loan Borrowing shall end after a
Term Loan Installment Date unless, after giving effect to such Interest Period, the aggregate
principal amount of the Base Rate Portion and all LIBOR Portions of a Term Loan Borrowing having
Interest Periods ending on or prior to such Term Loan Installment Date equals or exceeds the
principal payment on a Term Loan Borrowing
due on such Term Loan Installment Date and (F) no Interest Period for any LIBOR Loan shall end
after a Reduction Date unless, after giving effect to such Interest Period, the aggregate principal
amount of the Base Rate Loans and LIBOR Loans having Interest Periods ending on or prior to such
Reduction Date equals or exceeds the Reduction Amount due on such Reduction Date.


 


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(ii) The Borrower shall notify the Administrative Agent of the Borrower’s selection of a new
Interest Period for a Revolving Loan Borrowing consisting of LIBOR Loans or a LIBOR Portion of a
Term Loan Borrowing, as applicable, by an irrevocable written notice substantially in the form of
Exhibit C (a “Notice of Interest Period Selection”), duly executed by a Responsible
Officer of the Borrower and appropriately completed, not later than 11:00 a.m. at least three (3)
Business Days prior to the last day of each Interest Period for (x) a Revolving Loan Borrowing
consisting of LIBOR Loans or (y) a LIBOR Portion of a Term Loan Borrowing, as applicable, of the
Interest Period selected by the Borrower for the next succeeding Interest Period for such LIBOR
Loans or LIBOR Portion; provided, however, that no LIBOR Loan or LIBOR Portion
shall be continued for an additional Interest Period after the occurrence and during the
continuance of an Event of Default. Each Notice of Interest Period Selection shall be given by
first-class mail or facsimile or by e-mail containing a PDF of such signed and completed Notice of
Interest Period Selection to the Administrative Agent at the office or to the facsimile number or
e-mail address and during the hours specified in Section 8.01; provided,
however, that the Borrower shall promptly deliver to the Administrative Agent the original
of any Notice of Interest Period Selection initially delivered by facsimile or by e-mail. If (A)
the Borrower shall fail to notify the Administrative Agent of the next Interest Period for a
Revolving Loan Borrowing consisting of LIBOR Loans or a LIBOR Portion of a Term Loan Borrowing, as
applicable, in accordance with this Section 2.01(f) or (B) an Event of Default has occurred
and is continuing on the last date of an Interest Period for any LIBOR Loan or LIBOR Portion, such
LIBOR Loan(s) and LIBOR Portion(s) shall automatically convert to Base Rate Loan(s) and Base Rate
Portion(s), as applicable, on the last day of the current Interest Period therefor. The
Administrative Agent shall promptly notify (x) each Revolving Lender of the contents of each Notice
of Interest Period Selection for the Revolving Loans and (y) each Term Lender of the contents of
each Notice of Interest Period Selection for a Term Loan Borrowing and Portions thereof.



(g) Scheduled Payments.



(i) Interest — All Loan and Portions . The Borrower shall pay accrued interest on
the unpaid principal amount of each Revolving Loan Borrowing, Term Loan Borrowing and each Portion
thereof in arrears (i) in the case of a Base Rate Loan or Base Rate Portion, on the last Business
Day of each March, June, September and December (commencing the last day of the first full fiscal
quarter after the Initial Funding Date), (ii) in the case of a LIBOR Loan or LIBOR Portion, on the
last day of each Interest Period thereof (and, if any such Interest Period is longer than three (3)
months, every three (3) months after the first day of such Interest Period); and (iii) in the case
of all Loans and Portions, on the Maturity Date. All interest that is not paid when due shall be
due on demand.



(ii) Scheduled Principal Payments — Revolving Loans and Unreimbursed Amounts. The
Borrower shall repay the principal amount of the Revolving Loans
and Unreimbursed Amounts on the Maturity Date. The Borrower shall also make the mandatory
prepayments required by Section 2.06(c).


 


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(iii) Scheduled Principal Payments — Term Loans. On each Term Loan Installment Date,
the Borrower shall repay the principal amount of the Term Loans in equal installments of
$1,563,157.89 plus, from and after the date of any increase in the Total Term Loan
Commitment or principal amount of the Term Loans pursuant to Section 2.01(h), $86,842.11;
provided, that the Borrower shall pay all outstanding principal on the Term Loans, together
with all accrued and unpaid interest thereon, on the Maturity Date.



The Borrower shall also make the mandatory prepayments required by Section 2.06(c), which
shall be applied to the Loans in the manner set forth in Section 2.06(d).




(h) Optional Increases.



(i) On the terms and subject to the conditions set forth below, Borrower may, (1) at any time
before the Initial Funding Date, increase the Total Revolving Loan Commitment and Total Term Loan
Commitment or (2) at any time from the Initial Funding Date until the Business Day immediately
prior to the last Business Day of the first full fiscal quarter after the Initial Funding Date,
increase the Total Revolving Loan Commitment and the principal amount of the Term Loans;
provided that:



(A) the amount of increase in the principal amount of the Term Loans or the Total Term Loan
Commitment, as applicable, shall be equal to $1,736,842.11 and the amount of increase in the Total
Revolving Loan Commitment shall be equal to $263,157.89 (for a total amount of increases in the
Total Revolving Loan Commitment and Total Term Loan Commitment (or Term Loans, as applicable) of
$2,000,000);



(B) all required third party consents and approvals shall have been obtained;



(C) prior to the date of any proposed increases, the Total Revolving Loan Commitment shall not
have been decreased pursuant to Section 2.04(a);



(D) the Borrower may only exercise its option under this Section 2.01(h) once;



(E) no Default or Event of Default shall have occurred and be continuing or shall occur as a
result of such increases;



(F) all fees related to such increases shall have been paid by the Borrower prior to or
substantially concurrent with the effectiveness of such increases;



(G) such increases shall be provided by one new lender who qualifies as an Eligible Assignee
and is reasonably acceptable to the Administrative Agent (the “New Lender”);


 


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(H) Each of Wells Fargo and Capital One, N.A. shall have assigned (or shall concurrently
assign on the Increase Effective Date) a portion of (i) its Term Loan (or, to the extent such
assignment is made prior to the Initial Funding Date, its Term Loan Commitment) and (ii) its
Revolving Loan Commitment, in an aggregate amount for each of them equal to $1,500,000, to the New
Lender in accordance with Section 8.05(c); provided that either Wells Fargo or
Capital One, N.A. may waive the required assignment under this Section 2.01(h)(i)(H) with
respect to its own Loans and Commitments;



(I) the Loan Parties shall have executed and delivered such documents and instruments and
taken such other actions as may be reasonably requested by the Administrative Agent and the New
Lender in connection with such increases (including new Notes, any related fee letters, a
compliance certificate evidencing compliance with financial covenants on a pro forma basis, any
joinder agreement related to the New Lender, reaffirmations of the Guaranty, and the Loan Parties,
copies of resolutions regarding the increase in the Total Revolving Loan Commitment and Total Term
Loan Commitment (or principal amount of the Term Loans, as applicable) and related actions taken by
Loan Parties, certified as true and correct by a Responsible Officer, title insurance endorsements,
amendments and updates and legal opinions, in each case in form and substance reasonably
satisfactory to the Administrative Agent.



Any request under this Section 2.01(h) shall be submitted by the Borrower to the
Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed
effective date and amount of such increase and be accompanied by a certificate of a Responsible
Officer stating that no Default or Event of Default exists or will occur as a result of such
increase. The Borrower may pay fees to the New Lender in connection with such increases. The
Borrower shall pay a fee to the Administrative Agent solely for the account of the Administrative
Agent in connection any such increases as set forth in the Administrative Agent’s Fee Letter. No
Lender shall be entitled to receive any portion of the foregoing fees. No Lender shall have any
obligation, express or implied, to offer to increase the amount of its Revolving Loan Commitment
and Term Loan Commitment (or Term Loans, as applicable).




(ii) The New Lender shall become an additional party hereto concurrently with the
effectiveness of the proposed increases in the amount of the Total Revolving Loan Commitment and
Total Term Loan Commitment (or Term Loans, as applicable) upon its execution of an instrument of
joinder (which may contain such modifications to this Agreement and terms and conditions relating
thereto as may be necessary to ensure that such Revolving Loan Commitment and Term Loan Commitment
(or Term Loans, as applicable) are treated as treated as a Revolving Loan Commitment and Term Loan
Commitment (or Term Loans, as applicable) for all purposes under the Credit Documents), in each
case prepared by the Administrative Agent and otherwise in form and substance reasonably
satisfactory to the Administrative Agent. The New Lender shall provide the documentation required
by Section 2.12(e).



(iii) Subject to the foregoing, any increases in the Total Revolving Loan Commitment and Total
Term Loan Commitment (or Term Loans, as applicable) requested by Borrower shall be effective as of
the date proposed by Borrower (the “Increase Effective Date”) and shall be in the principal
amounts set forth in Section 2.01(h)(i)(A) above.


 


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(iv) On or prior to the Increase Effective Date, with respect to any increase in the Total
Revolving Loan Commitment, the Administrative Agent shall notify each Lender of the amount required
to be paid by or to such Lender so that the Revolving Loans held by the Lenders on the Increase
Effective Date (before giving effect to any new Revolving Loans made on such date) shall be held by
each Lender pro rata in accordance with the Revolving Loan Commitments of the Lenders. Each Lender
which is required to reduce the amount of Revolving Loans held by it (each such Lender, a
“Decreasing Lender”) shall irrevocably assign, without recourse or warranty of any kind
whatsoever (except that each Decreasing Lender warrants that it is the legal and beneficial owner
of the Revolving Loans assigned by it under this Section 2.01(h)(iv) and that such
Revolving Loans are held by such Decreasing Lender free and clear of adverse claims), to the New
Lender participating in the applicable increase in the Total Revolving Loan Commitment, and the New
Lender shall irrevocably acquire from the Decreasing Lenders, a portion of the principal amount of
the Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”)
outstanding on the Increase Effective Date (before giving effect to any new Revolving Loans made on
such date) in an amount such that the principal amount of the Revolving Loans held by the New
Lender and Decreasing Lender as of the Increase Effective Date shall be held in accordance with
each such Lender’s Revolving Proportionate Share (if any) as of such date. Such assignment and
acquisition shall be effective on the Increase Effective Date automatically and without any action
required on the part of any party other than the payment by the New Lender to the Administrative
Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired
Portion, which amount shall be allocated and paid by the Administrative Agent at or before 12:00
p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective
reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase
Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the
Administrative Agent and the Lenders shall adjust its records accordingly to reflect the payment of
the Acquired Portion. The payments to be made in respect of the Acquired Portion shall be made by
the New Lender to the Administrative Agent in Dollars in immediately available funds at or before
11:00 a.m. on the Increase Effective Date, such payments to be made by the New Lender pro rata
based upon the respective increases in the amount of the Revolving Loan Commitments held by such
Lenders on the Increase Effective Date.



(v) To the extent any of the Revolving Loans acquired by the New Lender from the Decreasing
Lenders pursuant to Section 2.01(h)(iv) above are LIBOR Loans and the Increase Effective
Date is not the last day of an Interest Period for such LIBOR Loans, the Decreasing Lenders shall
be entitled to compensation from the Borrower as provided in Section 2.13 (as if the
Borrower had prepaid such Revolving Loans in an amount equal to the Acquired Portion on the
Increase Effective Date).


 


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2.02. Letters of Credit.



(a) The Letter of Credit Commitment.



(i) On the terms and subject to the conditions set forth herein (including the limitations set
forth in Section 2.02(a)(ii) and the conditions set forth in Section 3.01, 3.02 and
3.03), (A) the L/C Issuer (1) shall, in reliance upon the agreements of the Revolving Lenders
set forth in this Section 2.02, from time to time on any Business Day during
the period from the Initial Funding Date until the Letter of Credit Expiration Date, issue
Letters of Credit in Dollars for the account of the Borrower in support of the obligations of the
Borrower or any other Loan Party, and amend or renew Letters of Credit previously issued by it, in
accordance with Section 2.02(b) below, and (2) shall honor drafts under the Letters of
Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued
for the account of the Borrower in support of the obligations of the Borrower or any other Loan
Party; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Revolving Lender shall be obligated to participate in,
any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of
all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Total Revolving Loan
Commitment at such time, (y) the aggregate Effective Amount of the Revolving Loans of any Revolving
Lender, plus such Revolving Lender’s Revolving Proportionate Share of the Effective Amount
of all L/C Obligations, plus such Revolving Lender’s Revolving Proportionate Share of the
Effective Amount of all Swing Line Loans would exceed such Revolving Lender’s Revolving Loan
Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit. Each Letter of Credit shall be in a form acceptable to the L/C Issuer. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.



(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:



(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any
Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and
which the L/C Issuer in good faith deems material to it;



(B) subject to Section 2.02(b)(iii), (1) in the case of any Standby Letter of Credit,
the expiry date of such requested Letter of Credit would occur more than twelve months after the
date of issuance or last renewal or (2) in the case of any Commercial Letter of Credit, the expiry
date of such requested Letter of Credit would occur more than 180 days after the date of issuance
or last renewal, in either case unless the Required Lenders have approved such expiry date;



(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Revolving Lenders have approved such expiry date;


 


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(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer
or the terms and conditions of the applicable Letter of Credit Application;



(E) such Letter of Credit is in a face amount less than $25,000, in the case of a Commercial
Letter of Credit, or $50,000, in the case of any other type of Letter of Credit, or denominated in
a currency other than Dollars;



(F) such Letter of Credit is in violation of the ISP, the UCP or other applicable Governmental
Rule;



(G) a default of any Lender’s obligations to fund under Section 2.02(c) exists or any
Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into
arrangements satisfactory to the L/C Issuer with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender; or



(H) any Lender is at such time a Deteriorating Lender, unless the Administrative Agent has
received (as set forth below) Cash Collateral or similar security satisfactory to the L/C Issuer
(in its sole discretion) from either the Borrower or such Deteriorating Lender in respect of such
Deteriorating Lender’s obligation to fund under Section 2.02(c).



(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit.



(b) Procedures for Issuance and Amendment of Letters of Credit; Evergreen Letters of
Credit.



(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m., at least four (4) Business Days (or such later date
and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which date shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; (G) the account party thereunder, and (H)
such other matters as the L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which date shall be a Business Day); (C) the nature of the proposed amendment;
and (D) such other matters as the L/C Issuer may require.



 


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(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower
or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of
Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer a participation in such Letter of Credit in an amount equal to the
product of such Revolving Lender’s Revolving Proportionate Share times the amount of such
Letter of Credit. The Administrative Agent shall promptly notify each Revolving Lender upon the
issuance of a Letter of Credit.



(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may agree to issue a Letter of Credit that has automatic renewal provisions (each, an
“Evergreen Letter of Credit”); provided that any such Evergreen Letter of Credit
must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request
to the L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has been issued, the
Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the renewal of such Letter of Credit at any time to a date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit any such
renewal if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its renewed form under the terms hereof, or (B) it has received notice (which may be by
telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal Notice
Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Revolving Lender or the Borrower that one or more
of the applicable conditions specified in Section 3.02 is not then satisfied.



(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter
of Credit or amendment.




(c) Drawings and Reimbursements; Funding of Participations.



(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall notify the Borrower and
the Administrative Agent of the amount to be paid by the L/C Issuer as a result of such drawing and
the date on which payment is to be made by the L/C Issuer to the beneficiary of such Letter of
Credit in respect of such drawing. Not later than 11:00 a.m. on the



 


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date of any payment by the L/C Issuer under a Letter of Credit (each such date of payment, an
“Honor Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing, which may be effected through the debiting of one
or more deposit accounts maintained with the Administrative Agent. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and such Revolving Lender’s Revolving Proportionate Share thereof. In such event,
the Borrower shall be deemed to have requested a Revolving Loan Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.01 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Total Revolving Loan Commitment
and the conditions set forth in Section 3.02 (other than the delivery of a Notice of Loan
Borrowing for Revolving Loans). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.02(c)(i) may be given by telephone if immediately confirmed in
writing; provided, that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




(ii) Each Revolving Lender (including the Revolving Lender acting as L/C Issuer) shall upon
any notice pursuant to Section 2.02(c)(i) make funds available to the Administrative Agent
for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Revolving Proportionate Share of the Unreimbursed Amount not later than 11:00 a.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.02(c)(iii), each Revolving Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the L/C Issuer.



(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Loan
Borrowing because the conditions set forth in Section 3.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the rate applicable to
Revolving Loans upon the occurrence and during the continuance of an Event of Default. In such
event, each Revolving Lender’s payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.02(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Lender
in satisfaction of its participation obligation under this Section 2.02.



(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.02(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender’s Revolving Proportionate Share of such amount
shall be solely for the account of the L/C Issuer. For the avoidance of doubt, interest shall
accrue beginning on the Honor Date for any such draw under a Letter of Credit.



 


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(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse
the L/C Issuer for, or participate in, amounts drawn under Letters of
Credit, as contemplated by this Section 2.02(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Revolving Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event
of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing. Any such reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.



(vi) If any Revolving Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.02(c) by the time specified in Section
2.02(c)(ii), the L/C Issuer shall be entitled to recover from such Revolving Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is immediately available to the
L/C Issuer at a rate per annum equal to the daily Federal Funds Rate from time to time in effect.
A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this Section 2.02(c)(vi) shall be conclusive
absent manifest error.




(d) Repayment of Participations.



(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment
in accordance with Section 2.02(c), if the Administrative Agent receives for the account of
the L/C Issuer any payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), or
any payment of interest thereon, the Administrative Agent will distribute to such Revolving Lender
its Revolving Proportionate Share thereof in the same funds as those received by the Administrative
Agent.



(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.02(c)(i) is required to be returned, each Revolving Lender shall pay
to the Administrative Agent for the account of the L/C Issuer its Revolving Proportionate Share
thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Revolving Lender, at a rate per annum equal to the
daily Federal Funds Rate from time to time in effect.



(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit, and to repay each L/C Borrowing and each drawing
under a Letter of Credit that is refinanced by a Borrowing of Revolving Loans, shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and the other Credit Documents under all circumstances, including the following:



(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;


 


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(ii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the obligations of the Borrower in respect of any Letter of Credit or any other amendment or
waiver of, or any consent to departure from, all or any of the Credit Documents;



(iii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any other Loan Party may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;



(iv) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;



(v) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;



(vi) the existence, character, quality, quantity, condition, packing, value or delivery of any
Property purported to be represented by documents presented in connection with any Letter of Credit
or any difference between any such Property and the character, quality, quantity, condition, or
value of such Property as described in such documents;



(vii) the time, place, manner, order or contents of shipments or deliveries of Property as
described in documents presented in connection with any Letter of Credit or the existence, nature
and extent of any insurance relative thereto;



(viii) the solvency or financial responsibility of any party issuing any documents in
connection with a Letter of Credit;




(ix) any failure or delay in notice of shipments or arrival of any Property;



(x) any error in the transmission of any message relating to a Letter of Credit not caused by
the L/C Issuer, or any delay or interruption in any such message;



(xi) any error, neglect or default of any correspondent of the L/C Issuer in connection with a
Letter of Credit;


 


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(xii) any consequence arising from acts of God, war, insurrection, civil unrest, disturbances,
labor disputes, emergency conditions or other causes beyond the control of the L/C Issuer;



(xiii) the form, accuracy, genuineness or legal effect of any contract or document referred to
in any document submitted to the L/C Issuer in connection with a Letter of Credit; and



(xiv) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that
is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions
or other irregularity, the Borrower will promptly notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.



(f) Role of L/C Issuer. Each of the Borrower and the Revolving Lenders agrees that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. Neither the
Administrative Agent nor the L/C Issuer nor any of their respective affiliates, directors,
officers, employees, agents or advisors nor any of the correspondents, participants or assignees of
the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. Neither the
Administrative Agent nor the L/C Issuer nor any of their respective affiliates, directors,
officers, employees, agents or advisors nor any of the correspondents, participants or assignees of
the L/C Issuer shall be liable or responsible for any of the matters described in Sections
2.02(e)(i) — (xiv); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which are determined by a final,
non-appealable judgment of a court of competent jurisdiction to have arisen from the L/C Issuer’s
willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, without responsibility for further
investigation, regardless of



 


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any notice or information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.





(g) Cash Collateral.



(i) Upon the request of the Administrative Agent, (A) if the L/C Issuer has honored any full
or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing or (B) if, as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall immediately Cash
Collateralize the Obligations in an amount equal to 105% of the then Effective Amount of the L/C
Obligations. The Borrower hereby grants the Collateral Agent, for the benefit of the L/C Issuer
and the Revolving Lenders, a Lien on all such cash and deposit account balances described in the
definition of “Cash Collateralize” as security for the Obligations. The Lien held by the
Collateral Agent in such cash collateral to secure the Obligations shall be released upon the
satisfaction of each of the following conditions: (1) no Letters of Credit shall be outstanding,
(2) all L/C Obligations shall have been repaid in full and (3) no Default shall have occurred and
be continuing.



(ii) In addition to the provisions set forth in Section 2.02(a)(ii)(H), if at any time
during which one or more Letters of Credit are outstanding, any Lender is at such time a
Deteriorating Lender, then no later than five (5) Business Days of written demand thereof from the
L/C Issuer the Borrower and/or the Deteriorating Lender (or just the Borrower to the extent the
Deteriorating Lender fails to do so) shall provide the Collateral Agent with Cash Collateral or
similar security satisfactory to the L/C Issuer (in its sole discretion) in respect of such
Deteriorating Lender’s obligation to fund under Section 2.02(c) in an amount not less than
the aggregate amount of such obligations. The Borrower and/or such Deteriorating Lender hereby
grants to the Collateral Agent, for the benefit of the L/C Issuer, a security interest in all such
Cash Collateral (and the Cash Collateral described in Section 2.02(a)(ii)(H)) and all
proceeds of the foregoing. If at any time the Collateral Agent determines that any funds held as
Cash Collateral are subject to any right or claim of any Person other than the Collateral Agent or
that the total amount of such funds is less than the aggregate L/C Obligations in respect of such
Deteriorating Lender, the Borrower will, promptly upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be deposited as Cash
Collateral, an amount equal to the excess of (x) such aggregate L/C Obligations over (y) the total
amount of funds, if any, then held as Cash Collateral that the Collateral Agent determines to be
free and clear of any such right and claim. Upon the drawing of any for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under applicable
Governmental Rules, to reimburse the L/C Issuer. The Lien held by the Collateral Agent in such
Cash Collateral to secure the Obligations shall be released upon the earlier of (a) the date such
Deteriorating Lender is replaced with a replacement Lender pursuant to Section 2.15 and (b)
the date each of the following conditions is satisfied: (i) no Letters of Credit shall be
outstanding, (ii) all L/C Obligations shall have been repaid in full and (iii) no Default shall
have occurred and be continuing.


 


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(iii) Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at
Wells Fargo and may be invested in Cash Equivalents reasonably acceptable to the Administrative
Agent. Such accounts must be subject to control agreements pursuant to which the Administrative
Agent has “control,” as such term is used in the Uniform Commercial Code, sufficient to perfect on
a first priority basis a security interest in such cash collateral.



(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) (the “ISP”) shall apply
to each Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance (the “UCP”), shall apply to each Commercial Letter of Credit.




(i) Letter of Credit Fees.



(i) The Borrower shall pay, to the Administrative Agent for the account of each Revolving
Lender in accordance with its Revolving Proportionate Share, a Standby Letter of Credit fee for
each such Standby Letter of Credit for the period from the date of issuance of such Standby Letter
of Credit until the expiry thereof, at a per annum rate equal to the Applicable Margin for LIBOR
Loans (plus four percent (4.00%) during such time that the Default Rate is in effect with respect
to the Obligations pursuant to Section 2.07(c)) applicable from time to time during such
period multiplied by the actual daily maximum amount available to be drawn under such
Standby Letter of Credit. Such fee for each Standby Letter of Credit shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Standby Letter of Credit
and on the Letter of Credit Expiration Date. Each such fee, when due, shall be fully earned and
when paid, shall be non-refundable. If there is any change in the Applicable Margin for LIBOR
Loans during any quarter, the Applicable Margin used for the calculation of the Standby Letter of
Credit fee shall be the Applicable Margin for LIBOR Loans on each day during such quarter.



(ii) The Borrower shall pay, to the Administrative Agent for the account of each Revolving
Lender in accordance with its Revolving Proportionate Share, directly a Commercial Letter of Credit
fee for each such Commercial Letter of Credit in an amount equal to the greater of (i) $500 and
(ii) 1/4 of 1% per annum of the amount of such Commercial Letter of Credit, due and payable on the
last Business Day of each March, June, September and December, commencing with the first such date
to occur after the issuance of such Commercial Letter of Credit and on the Letter of Credit
Expiration Date; provided, that in the case of an increase in the amount of a Commercial
Letter of Credit after the issuance thereof, such Commercial Letter of Credit fee shall be payable
only on the increased amount thereof.


 


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(j) Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance, transfer, negotiation,
fronting, presentation, amendment, documentation and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as
from time to time in effect. Such fees and charges are due and payable on demand and are
nonrefundable.



(k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.




2.03. The Swing Line.



(a) The Swing Line. On the terms and subject to the conditions set forth herein, the
Swing Line Lender may in its sole and absolute discretion make loans (each such loan, a “Swing
Line Loan”) in Dollars to the Borrower from time to time on any Business Day during the period
from the Initial Funding Date up to but not including the Maturity Date in an aggregate amount not
to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Effective Amount of Revolving Loans of the
Swing Line Lender in its capacity as a Revolving Lender of Revolving Loans, may exceed the amount
of such Revolving Lender’s Revolving Loan Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the aggregate Effective Amount of all Revolving Loans,
Swing Line Loans and L/C Obligations shall not exceed the Total Revolving Loan Commitment at such
time, and (ii) the aggregate Effective Amount of the Revolving Loans of any Revolving Lender (other
than the Swing Line Lender), plus such Revolving Lender’s Revolving Proportionate Share of
the Effective Amount of all L/C Obligations, plus such Revolving Lender’s Revolving
Proportionate Share of the Effective Amount of all Swing Line Loans shall not exceed such Revolving
Lender’s Revolving Loan Commitment, and provided, further, that the Swing Line
Lender shall not make any Swing Line Loan to refinance an outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.03, prepay under Section 2.06, and reborrow under this
Section 2.03. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Revolving Lender’s Revolving Proportionate
Share times the amount of such Swing Line Loan. Furthermore, before making any Swing Line
Loans (if at such time any Lender is a Deteriorating Lender), the Swing Line Lender may condition
the provision of such Swing Line Loans on its receipt of Cash Collateral or similar security
satisfactory to the Swing Line Lender (in its sole discretion) from either the Borrower or such
Deteriorating Lender in respect of such Deteriorating Lender’s risk participation in such Swing
Line Loans as set forth below. The Borrower and/or such Deteriorating Lender hereby grants to the
Collateral Agent, for the benefit of the Swing Line Lender, a security interest in all such Cash
Collateral and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
deposit accounts at Wells Fargo and may be invested in Cash Equivalents reasonably acceptable to
the Administrative Agent. Such accounts must be subject to control agreements pursuant to which
the Collateral Agent has “control,” as such term is used in the Uniform Commercial Code, sufficient
to perfect on a first priority basis a security interest in such cash collateral. If at any time
the Collateral Agent determines that any funds held as Cash Collateral are subject to any right or
claim of any Person other than the Collateral Agent or that the total amount of such



 


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funds is less than the aggregate risk participation of such Deteriorating Lender in the
relevant Swing Line Loan, the Borrower and/or such Deteriorating Lender will, promptly upon demand
by the Administrative Agent or the Collateral Agent, pay to the Collateral Agent, as additional
funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate risk
participation over (y) the total amount of funds, if any, then held as Cash Collateral that the
Collateral Agent determines to be free and clear of any such right and claim. At such times there
are Swing Ling Loans outstanding for which funds are on deposit as Cash Collateral, such funds
shall be applied as and when determined by the Swing Line Lender, to the extent permitted under
applicable Governmental Rules, to reimburse and otherwise pay the applicable obligations owing to
the Swing Line Lender. The Lien held by the Collateral Agent in such Cash Collateral to secure the
Obligations shall be released upon the earlier of (a) the date such Deteriorating Lender is
replaced with a replacement Lender pursuant to Section 2.15 and (b) the date each of the
following conditions is satisfied: (i) no Swing Line Loans shall be outstanding, (ii) all Swing
Line Loan obligations shall have been repaid in full and (iii) no Default shall have occurred and
be continuing.




(b) Borrowing Procedures. Each Swing Line Borrowing shall be requested pursuant to
the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may
be given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m., on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which amount shall be a minimum amount of $500,000 or an integral
multiple of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by the delivery to the Swing
Line Lender and the Administrative Agent of a written Notice of Swing Line Borrowing, appropriately
completed and signed by a Responsible Officer of the Borrower, which notice may be delivered by
facsimile. Promptly after receipt by the Swing Line Lender of any telephonic Notice of Swing Line
Borrowing, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Notice of Swing Line Borrowing and,
if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of
the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to
2:00 p.m., on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.03(a), or (B) that one or more of the applicable conditions
specified in Section 3.02 is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 4:00 p.m., on the borrowing date specified in
such Notice of Swing Line Borrowing, make the amount of its Swing Line Loan available to the
Borrower at its office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.



(c) Refinancing of Swing Line Loans.



(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrower (which hereby irrevocably requests the Swing Line Lender to act on its
behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Revolving
Lender’s Revolving Proportionate Share of the amount of



 


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Swing Line Loans then outstanding. Such request shall be made in accordance with the
requirements of Section 2.01, without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Total
Revolving Loan Commitment and the conditions set forth in Section 3.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Notice of Loan Borrowing for
Revolving Loans promptly after delivering such notice to the Administrative Agent. Each Revolving
Lender shall make an amount equal to its Revolving Proportionate Share of the amount specified in
such Notice of Loan Borrowing for Revolving Loans available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 12:00 noon, on the day specified in such Notice of Loan Borrowing for
Revolving Loans, whereupon, subject to Section 2.03(c)(ii), each Revolving Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.




(ii) If for any reason any Revolving Loan Borrowing cannot be requested in accordance with
Section 2.03(c)(i) or any Swing Line Loan cannot be refinanced by such a Revolving Loan
Borrowing, the Notice of Loan Borrowing for Revolving Loans submitted by the Swing Line Lender
shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund
its participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.03(c)(i) shall be deemed payment in respect of such participation.



(iii) If any Revolving Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such Revolving Lender pursuant
to the foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(i), the Swing Line Lender shall be entitled to recover from such Revolving Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the daily Federal Funds Rate from
time to time in effect. A certificate of the Swing Line Lender submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts owing under this Section
2.03(c)(iii) shall be conclusive absent manifest error.



(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
participations in Swing Line Loans pursuant to this Section 2.03(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender may have against the
Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing. Any such purchase of participations shall not
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with
interest as provided herein.


 


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(d) Repayment of Participations.



(i) At any time after any Revolving Lender has purchased and funded a participation in a Swing
Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Revolving Lender its Revolving Proportionate Share of
such payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Revolving Lender’s participation was outstanding and funded) in the same
funds as those received by the Swing Line Lender.



(ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender, each Revolving Lender
shall pay to the Swing Line Lender its Revolving Proportionate Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the daily Federal Funds Rate from time to time in effect.
The Administrative Agent will make such demand upon the request of the Swing Line Lender.



(e) Interest for Account of Swing Line Lender. Subject to Section 2.07(c),
each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Margin for Base Rate Loans. The Swing Line Lender shall be responsible for invoicing the Borrower
for interest on the Swing Line Loans. Until each Revolving Lender funds its Base Rate Loan or
participation pursuant to this Section 2.03 to refinance such Revolving Lender’s Revolving
Proportionate Share of any Swing Line Loan, interest in respect of such Revolving Proportionate
Share shall be solely for the account of the Swing Line Lender. The Borrower shall pay accrued
interest on the unpaid principal amount of each Swing Line Loan on the last Business Day of each
March, June, September and December (commencing the last day of the first full fiscal quarter after
the Initial Funding Date) and at maturity.



(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



2.04. Amount Limitations, Commitment Reductions, Etc.



(a) Optional Reduction or Cancellation of Commitments. The Borrower may, upon three
(3) Business Days written notice to the Administrative Agent (each a “Reduction Notice”),
permanently reduce the Total Revolving Loan Commitment by the amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof or cancel the Total Revolving Loan Commitment in its
entirety; provided, however, that:



(i) The Borrower may not reduce the Total Revolving Loan Commitment prior to the Maturity
Date, if, after giving effect to such reduction, the Effective Amount of all Revolving Loans, L/C
Obligations and Swing Line Loans then outstanding would exceed the Total Revolving Loan Commitment;
and


 


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(ii) The Borrower may not cancel the Total Revolving Loan Commitment prior to the Maturity
Date, if, after giving effect to such cancellation, any Revolving Loan would then remain
outstanding.


Any Reduction Notice shall be irrevocable; provided that any Reduction Notice may state
that such notice is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or
prior to the specified effective date previously provided in the applicable Reduction Notice) if
such condition is not satisfied.




(b) Mandatory and Scheduled Reduction of Commitments.



(i) The Total Revolving Loan Commitment shall be automatically and permanently reduced by an
amount equal to the maximum amount that would be required to be applied as a mandatory prepayment
of the Revolving Loans pursuant to Section 2.06(c)(iii), (iv), (v), (vi) or (vii) or
Section 2.06(d) if the Effective Amount of the Revolving Loans was then equal to the amount
of the Total Revolving Loan Commitment (but without regard to the actual usage of the Total
Revolving Loan Commitment), such reduction to be effective on the date of the required prepayment.



(ii) The Total Revolving Loan Commitment shall be automatically and permanently reduced by
$236,842.10 (the “Reduction Amount”) on the last Business Day of each March, June,
September and December commencing the last Business Day of the first full fiscal quarter after the
Initial Funding Date (each, a “Reduction Date”); provided that if the Borrower
exercises its option to increase the Total Revolving Loan Commitment pursuant to Section
2.01(h), the Reduction Amount for each Reduction Date from such exercise date onwards shall be
increased by $13,157.90. In the case of any reduction in the amount of the Total Revolving Loan
Commitment pursuant to Section 2.04(a) or Section 2.04(b)(i), the amount of
reduction in the Total Revolving Loan Commitment determined by reference to this Section
2.04(b)(ii) shall not be affected and shall be in addition to any reduction in the amount of
the Total Revolving Loan Commitment pursuant to Section 2.04(a) or Section
2.04(b)(i).



(iii) The Total Revolving Loan Commitment shall be automatically and permanently reduced to
zero on the Maturity Date.



(iv) The Total Term Loan Commitment shall be automatically and permanently reduced to zero at
the close of business on the Initial Funding Date. Any agreement made pursuant to Section
2.01(h) to advance additional Term Loans after the Initial Funding Date shall terminate
immediately after such Term Loans are advanced.



(c) Effect of Revolving Loan Commitment Adjustments. From the effective date of any
reduction or increase of the Total Revolving Loan Commitment, the Commitment Fees payable pursuant
to Section 2.05(b) shall be computed on the basis of the Total Revolving Loan Commitment as
so reduced or increased. Once reduced or cancelled, the Total Revolving Loan Commitment may not be
increased or reinstated without the prior written consent of all Revolving Lenders (except as
permitted under Section 2.01(h)). Any reduction of the Total
Revolving Loan Commitment pursuant to Section 2.04(a) shall be applied ratably to
reduce each Lender’s Revolving Loan Commitment in accordance with Section 2.10(a)(i).


 


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2.05. Fees.



(a) Wells Fargo Parties’ Fee; Other Fees. The Borrower shall pay to the Wells Fargo
Parties, for their own account, agent’s fees and other compensation in the amounts and at the times
set forth in the Fee Letter (including any fees set forth in any fee letter or agreement executed
in connection with any increase in Section 2.01(h))



(b) Commitment Fees. The Borrower shall pay to the Administrative Agent, for the
ratable benefit of the Lenders (other than any Defaulting Lender with respect to the period during
which it is a Defaulting Lender) as provided in Sections 2.10(a)(v) and 2.10(a)(vi),
commitment fees (collectively, the “Commitment Fees”) equal to the Commitment Fee
Percentage of the sum of (i) the daily average Unused Revolving Commitment and (ii) prior to the
Initial Funding Date only, the Total Term Loan Commitment, for the period beginning on the date of
this Agreement and ending on the Maturity Date. The Borrower shall pay the Commitment Fees in
arrears on the last Business Day of each March, June, September and December (commencing on the
first such Day after the Effective Date), on the Initial Funding Date and on the Maturity Date (or
if the Total Revolving Commitment is cancelled on a date prior to the Maturity Date, on such prior
date).



2.06. Prepayments.



(a) Terms of All Prepayments. Upon the prepayment of any Loan (whether such
prepayment is an optional prepayment under Section 2.06(b), a mandatory prepayment required
by Section 2.06(c) or a mandatory prepayment required by any other provision of this
Agreement or the other Credit Documents, including a prepayment upon acceleration), the Borrower
shall pay (i) if a LIBOR Loan or LIBOR Portion is being prepaid under Section 2.06(b) or
Section 2.06(c), to the Administrative Agent for the account of the Lender that made such
LIBOR Loan or LIBOR Portion all accrued interest to the date of such prepayment on the amount
prepaid, (ii) if a prepayment is made upon acceleration, to the Administrative Agent for the
account of the Lender that made such Loan all accrued interest and fees to the date of such
prepayment on the amount prepaid and (iii) to such Lender if such prepayment is the prepayment of a
LIBOR Loan or of a LIBOR Portion on a day other than the last day of an Interest Period for such
LIBOR Loan or such LIBOR Portion, all amounts payable to such Lender pursuant to Section
2.13.



(b) Optional Prepayments.



(i) At their option, the Borrower may, without premium or penalty but subject to Section
2.13 in the case of LIBOR Loans and LIBOR Portions, upon one (1) Business Day’s notice from the
Borrower to the Administrative Agent in the case of Base Rate Loans or Base Rate Portions or three
(3) Business Days’ notice from the Borrower to the Administrative Agent in the case of LIBOR Loans
or LIBOR Portions, prepay the Loans or Portions in any Borrowing and all accrued but unpaid
interest thereon in part, in a minimum principal amount of $500,000 or an integral multiple of
$100,000 in excess thereof, or in whole. Each such notice



 


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shall specify the date and amount of such prepayment; provided that if such prepayment
is on any day other than on the last day of the Interest Period applicable to such LIBOR Loan or
LIBOR Portion, the Borrower shall be subject to the payments required by Section 2.13. If
such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Unless an
Event of Default has occurred and is continuing, all prepayments under this Section 2.06(b)
which are applied to reduce the principal amount of the Loans shall be applied, as between
Revolving Loans and Term Loans, in the manner directed by the Borrower. The principal amount of
any prepayment directed by the Borrower to be applied to the Term Loans pursuant to the preceding
sentence shall be applied to prepay the remaining installments of principal on the Term Loans as
directed by the Borrower. If the Borrower fails to direct the application of any such prepayments,
or if an Event of Default has occurred and is continuing, prepayments under this Section
2.06(b) shall be applied to prepay the principal amount of the outstanding Loans and L/C
Borrowings and to Cash Collateralize the remaining L/C Obligations on a pro rata basis in
accordance with the then outstanding principal amount of the Loans and L/C Obligations (with (x)
the portion allocated to the Revolving Loans, Swing Line Loans and L/C Obligations to be applied
first to prepay the Swing Line Loans in full, second to prepay the Revolving Loans in full and then
to Cash Collateralize the Obligations in an amount equal to the then Effective Amount of all L/C
Obligations and (y) the portion allocated to the Term Loans to be applied to prepay the remaining
installments of principal on the Term Loans (including the final installment) on a pro rata basis).




(ii) At their option, the Borrower may, upon notice by the Borrower to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided, that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $500,000 or an integral multiple of $100,000 in excess thereof. Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



(c) Mandatory Prepayments. The Borrower shall prepay (or Cash Collateralize, as
applicable) the Obligations as follows:



(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrower
shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient
amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a
sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an
amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount
equal to such excess.



(ii) The Borrower shall repay each Swing Line Loan on the earlier to occur of (A) the second
Swing Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.


 


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(iii) If, at any time after the Initial Funding Date, GEM receives any buy-out, termination
fee or similar payment in respect of the FireKeepers Management Agreement, the Borrower shall,
immediately after receipt by GEM of such payment, prepay (or Cash Collateralize, as applicable) the
outstanding Loans and other Obligations in the matter set forth in Section 2.06(d) in an
aggregate principal amount equal to such payment.



(iv) If, at any time after the Initial Funding Date, any Loan Party sells or otherwise
disposes of any assets (other than sales permitted under Section 5.02(c) (excluding
clauses (vi) and (vii) thereof)) in any single transaction or series of related
transactions and the Net Proceeds of such sale or other disposition exceed $100,000, the Borrower
shall, not later than five (5) Business Days after the completion of each such sale or other
disposition, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other
Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate
principal amount equal to one hundred percent (100%) of the Net Proceeds from any such sale or
disposition. Notwithstanding the foregoing, the Borrower shall not be required to make a
prepayment pursuant to this Section 2.06(c)(iv) with respect to any sale or other
disposition (a “Relevant Sale”) if the Borrower advises the Administrative Agent in writing
within four (4) Business Days after the time the Net Proceeds from such Relevant Sale are received
that the applicable Loan Party intends to reinvest all or any portion of such Net Proceeds in
replacement assets to the extent the acquisition of such replacement assets occurs within 180 days
from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and
prior to the acquisition of the related replacement assets, the 180-day period provided in the
preceding sentence shall elapse or an Event of Default shall occur, then the Borrower shall
immediately prepay (or Cash Collateralize, as applicable), the outstanding Loans and other
Obligations in the amount and in the manner described in the first sentence of this Section
2.06(c)(iv).



(v) If, at any time after the Initial Funding Date, any Loan Party issues or incurs any
Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or
other similar instruments but excluding Permitted Indebtedness, the Borrower shall, immediately
after such issuance or incurrence, prepay (or Cash Collateralize, as applicable) the outstanding
Loans and other Obligations in the manner set forth in Section 2.06(d), in each case, in an
aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such
Indebtedness.



(vi) If, at any time after the Initial Funding Date, any Loan Party issues or sells any Equity
Securities or receives any capital contribution from any other Person (other than through an
Exempted Equity Issuance), the Borrower shall, immediately after such issuance or sale, prepay (or
Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the manner set
forth in Section 2.06(d), in each case, in an aggregate principal amount equal to fifty
percent (50%) of the Net Proceeds of such Equity Securities.



(vii) Not later than five (5) Business Days after the date (the “Receipt Date”) of
receipt by a Loan Party (or the Collateral Agent) of any Net Insurance Proceeds or Net Condemnation
Proceeds which exceed $250,000, the Borrower shall prepay (or Cash Collateralize, as applicable)
the outstanding Loans and other Obligations in the manner set forth in Section 2.06(d) in
an amount equal to such Net Insurance Proceeds or Net Condemnation Proceeds. Notwithstanding the
foregoing, the Borrower shall not be required to make a



 


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prepayment pursuant to this Section 2.06(c)(vii) with respect to any particular Net
Insurance Proceeds or Net Condemnation Proceeds if (A) the Borrower advises the Administrative
Agent in writing within four (4) Business Days after the related Receipt Date that it or another
Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds
or Net Condemnation Proceeds were derived to the extent such repair, restoration or replacement is
completed within 180 days after the related Receipt Date and (B) the Net Insurance Proceeds or Net
Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or
replacement or if not, the Borrower has deposited with the Collateral Agent good funds equal to the
difference between the cost of such repair, restoration or replacement and the amount of Net
Insurance Proceeds or Net Condemnation Proceeds deposited with the Administrative Agent, and such
funds and proceeds will be held by the Administrative Agent and disbursed under procedures
established by the Administrative Agent in good faith. If, at any time after the occurrence of a
Receipt Date and prior to the completion of the corresponding repair, restoration or replacement,
the applicable 180-day period provided in the preceding sentence shall elapse without the
completion of the related repair, restoration or replacement, or the Borrower shall fail to provide
and deposit the funds and proceeds required under clause (B) above, or an Event of Default shall
occur, then the Borrower shall immediately prepay (or Cash Collateralize, as applicable) the
outstanding Loans and other Obligations in the amount and in the manner described in the first
sentence of this Section 2.06(c)(vii). If the Borrower has provided the written notice
contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation
Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall
be held by the Collateral Agent as Collateral. No right to apply proceeds to repair, restoration
or replacement shall exist if any such repair, restoration or replacement cannot reasonably be
completed prior to 180 days before the Maturity Date.




(viii) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.06(c), (A) a certificate signed by a Senior Finance Officer
of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment
and (B) to the extent practicable, at least three days prior written notice of such prepayment.
Each notice of prepayment shall specify the prepayment date and the Type and principal amount of
each Loan (or portion thereof) to be prepaid. In the event that the Borrower shall subsequently
determine that the actual amount was greater than the amount set forth in such certificate, the
Borrower shall promptly make an additional prepayment of the Loans (and/or, if applicable, the
Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such
excess, and the Borrower shall concurrently therewith deliver to the Administrative Agent a
certificate signed by the chief financial officer of the Borrower demonstrating the derivation of
the additional amount resulting in such excess.



(d) Application of Loan Prepayments. All prepayments required under Sections
2.06(c)(iii)-(vii) shall be applied: (A) first, to prepay the remaining installments of
principal on the Term Loans in inverse order of maturity, (B) then to prepay the Swing Line Loans
to the extent Swing Line Loans are then outstanding, (C) then to prepay the Revolving Loans to the
extent Revolving Loans are then outstanding and (D) otherwise, to Cash Collateralize the
Obligations in an amount equal to the then Effective Amount of the L/C Obligations. Without
modifying the order of application of prepayments set forth in the preceding sentence, all such
prepayments shall, to the extent possible, be first applied to prepay
Base Rate Loans and Base Rate Portions and then if any funds remain, to prepay LIBOR Loans and
LIBOR Portions. 


 


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2.07. Other Payment Terms.



(a) Place and Manner. All payments to be made by the Borrower under this Agreement or
any other Credit Document shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. The Borrower shall make all payments due to each Lender or the
Administrative Agent under this Agreement or any other Credit Document by payments to the
Administrative Agent at the Administrative Agent’s office located at the address specified in
Section 8.01, with each payment due to a Lender to be for the account of such Lender and
such Lender’s Applicable Lending Office. The Borrower shall make all payments under this Agreement
or any other Credit Document in lawful money of the United States and in same day or immediately
available funds not later than 12:00 noon on the date due. The Administrative Agent shall promptly
disburse to each Lender each payment received by the Administrative Agent for the account of such
Lender.



(b) Date. Whenever any payment due hereunder shall fall due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, as the case may be.



(c) Default Rate. Upon the occurrence and during the continuation of any Event of
Default other than an Event of Default described in Section 6.01(a), (f) or (g), at the
option of the Required Lenders, from and after the date of such Event of Default until the time
when such Event of Default shall have been cured or waived in writing by the Required Lenders or
all the Lenders (as may be required by this Agreement), the Borrower shall pay interest on the
aggregate, outstanding amount of all Obligations hereunder at a per annum rate equal to the
otherwise applicable interest rate plus four percent (4.00%) or, if no such per annum rate is
applicable to any such Obligations, at a per annum rate equal to the Base Rate, plus the Applicable
Margin for Base Rate Loans, plus four percent (4.00%) (the “Default Rate”) payable on
demand. Upon the occurrence and during the continuation of an Event of Default described in
Section 6.01(a), (f) or (g) until the time when such Event of Default shall have been cured
or waived in writing by the Required Lenders or all the Lenders (as may be required by this
Agreement), the Borrower shall pay interest on the aggregate, outstanding amount of all Obligations
hereunder at a per annum rate equal to the Default Rate (such Default Rate becoming effective on
such date of occurrence of such Event of Default without notice and shall be immediately due and
payable without notice or demand). Overdue interest shall itself bear interest at the Default
Rate, and shall be compounded with the principal Obligations daily, to the fullest extent permitted
by applicable Governmental Rules.



(d) Application of Payments. All payments hereunder shall be applied first to unpaid
fees, costs and expenses then due and payable under this Agreement or the other Credit Documents,
second to accrued interest then due and payable under this Agreement or the other Credit Documents
and finally to reduce the principal amount of outstanding Loans and L/C Borrowings.


 


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(e) Failure to Pay the Administrative Agent. Unless the Administrative Agent shall
have received notice from the Borrower at least one (1) Business Day prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the
Administrative Agent shall be entitled to assume that the Borrower has made or will make such
payment in full to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be paid to the Lenders on such due date an amount equal to
the amount then due such Lenders. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at a per annum rate equal to the daily Federal
Funds Rate from time to time in effect. A certificate of the Administrative Agent submitted to any
Lender with respect to any amount owing by such Lender under this Section 2.07(e) shall be
conclusive absent manifest error.



2.08. Loan Accounts; Notes.



(a) Loan Accounts. The obligation of the Borrower to repay the Loans made to it by
each Lender and to pay interest thereon at the rates provided herein shall be evidenced by an
account or accounts maintained by such Lender on its books (individually, a “Loan
Account”), except that any Lender may request that its Loans be evidenced by a note or notes
pursuant to Section 2.08(b), Section 2.08(c), and Section 2.08(d). Each
Lender shall record in its Loan Accounts (i) the date and amount of each Loan made by such Lender,
(ii) the interest rates applicable to each such Loan and each Portion thereof and the effective
dates of all changes thereto, (iii) the Interest Period for each LIBOR Loan and LIBOR Portion, (iv)
the date and amount of each principal and interest payment on each Loan and Portion and (v) such
other information as such Lender may determine is necessary for the computation of principal and
interest payable to it by the Borrower hereunder; provided, however, that any
failure by a Lender to make, or any error by any Lender in making, any such notation shall not
affect the Borrower’s Obligations. In addition to the Loan Accounts, each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control.



(b) Revolving Loan Notes. Each Revolving Lender’s Revolving Loans shall be evidenced
by a promissory note in the form of Exhibit E (individually, a “Revolving Loan
Note”) which note shall be (i) payable to the order of such Revolving Lender, (ii) in the
amount of such Revolving Lender’s Revolving Loan Commitment and (iii) otherwise appropriately
completed. The Borrower authorizes each Revolving Lender to record on the schedule annexed to such
Revolving Lender’s Revolving Loan Note the date and amount of each Revolving Loan made by such
Revolving Lender and of each payment or prepayment of principal thereon made by the Borrower. The
Borrower further authorizes each Revolving Lender to attach to and make a part of such Revolving
Lender’s Revolving Loan Note continuations of the schedule attached thereto as necessary. If,
because any Revolving Lender designates separate Applicable Lending Offices for Base Rate Loans and
LIBOR Loans, such Revolving Lender requests that separate



 


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promissory notes be executed to evidence separately such Revolving Loans, then each such note
shall be in the form of Exhibit E, mutatis mutandis to reflect such division, and shall be
(x) payable to the order of such Revolving Lender, (y) in the amount of such Revolving Lender’s
Revolving Loan Commitment and (z) otherwise appropriately completed. Such notes shall,
collectively, constitute a Revolving Loan Note.




(c) Term Loan Notes. Each Term Lender’s Term Loan shall be evidenced by a promissory
note in the form of Exhibit F (individually, a “Term Loan Note”) which note shall
be (i) payable to the order of such Term Lender, (ii) in the amount of such Term Lender’s Term Loan
and (iii) otherwise appropriately completed. If, because any Term Lender designates separate
Applicable Lending Offices for Base Rate Portions and LIBOR Portions, such Term Lender requests
that separate promissory notes be executed to evidence separately such Portions, then each such
note shall be in the form of Exhibit F, mutatis mutandis to reflect such division, and
shall be (x) payable to the order of such Term Lender, (y) in the amount of such Term Lender’s Term
Loan and (z) otherwise appropriately completed. Such notes shall, collectively, constitute a Term
Loan Note.



(d) Swing Line Notes. The Swing Line Lender’s Swing Line Loans shall be evidenced by
a promissory note in the form of Exhibit G (individually, a “Swing Line Note”)
which note shall be (i) payable to the order of the Swing Line Lender, (ii) in the amount of the
Swing Line Lender’s Swing Line Loans, (iii) dated the Initial Funding Date and (iv) otherwise
appropriately completed.



2.09. Loan Funding.



(a) Lender Funding and Disbursement to the Borrower. Each Lender shall, before 11:00
a.m. on the date of each Borrowing, make available to the Administrative Agent at the
Administrative Agent’s office specified in Section 8.01, in same day or immediately
available funds, such Lender’s Revolving Proportionate Share or Term Proportionate Share, as the
case may be, of such Borrowing. After the Administrative Agent’s receipt of such funds and upon
satisfaction of the applicable conditions set forth in Section 3.03 (and, if such Borrowing
is the initial Loan or Letter of Credit, Section 3.02), the Administrative Agent shall,
subject to Section 5.01(f), promptly make all funds so received available to the Borrower
in like funds as received by the Administrative Agent by crediting the account of the Borrower
maintained by the Borrower on the books of Wells Fargo with the amount of such funds in accordance
with instructions provided to the Administrative Agent by the Borrower; provided,
however, that if, on the date of the Borrowing there are Swing Line Loans and/or L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in full of any such
Swing Line Loans, and third, to the Borrower as provided above.



(b) Lender Failure to Fund. Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender’s Revolving Proportionate Share or Term Proportionate Share,
as the case may be, of such Borrowing, the Administrative Agent shall be entitled to assume that
such Lender has made or will make such portion available to the Administrative Agent on the date of
such Borrowing in accordance with Section 2.09(a), and the



 


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Administrative Agent may on such date, in reliance upon such assumption, disburse or otherwise
credit to the Borrower a corresponding amount. If any Lender does not make the amount of such
Lender’s Revolving Proportionate Share or Term Proportionate Share, as the case may be, of any
Borrowing available to the Administrative Agent on or prior to the date of such Borrowing, such
Lender shall pay to the Administrative Agent, on demand, interest which shall accrue on such amount
from the date of such Borrowing until such amount is paid to the Administrative Agent at per annum
rates equal to the daily Federal Funds Rate from time to time in effect. A certificate of the
Administrative Agent submitted to any Lender with respect to any amount owing by such Lender under
this Section 2.09(b) shall be conclusive absent manifest error with respect to such amount.
If the amount of any Lender’s Revolving Proportionate Share or Term Proportionate Share, as the
case may be, of any Borrowing is not paid to the Administrative Agent by such Lender within three
(3) Business Days after the date of such Borrowing, the Borrower shall repay such amount to the
Administrative Agent, on demand, together with interest thereon, for each day from the date such
amount was disbursed to the Borrower until the date such amount is repaid to the Administrative
Agent, at the interest rate applicable at the time to the Loans comprising such Borrowing.




(c) Lenders’ Obligations Several. The failure of any Lender to make the Loan to be
made by it as part of any Borrowing or to fund participations in Letters of Credit and Swing Line
Loans to be funded by it shall not relieve any other Lender of its obligation hereunder to make its
Loan as part of such Borrowing or fund its participations in Letters of Credit and Swing Line
Loans, but no Lender shall be obligated in any way to make any Loan or fund any participation in
Letters of Credit or Swing Line Loans which another Lender has failed or refused to make or
otherwise be in any way responsible for the failure or refusal of any other Lender to make any Loan
required to be made by such other Lender on the date of any Borrowing or to fund any participation
required to be funded by such other Lender.



2.10. Pro Rata Treatment.



(a) Borrowings, Commitment Reductions, Etc. Except as otherwise provided herein:



(i) Each Revolving Borrowing and reduction of the Total Revolving Loan Commitment shall be
made or shared among the Lenders pro rata according to their respective Revolving Proportionate
Shares;



(ii) The Term Loan Borrowing on the Initial Funding Date shall be made or shared among the
Lenders pro rata according to their respective Term Proportionate Shares;



(iii) Each payment of principal on Term Loans shall be shared among the Term Lenders which
made or funded such Loans pro rata according to the respective unpaid principal amount of such
Loans then owed to such Lenders;



(iv) Each payment of principal on the Revolving Loans shall be shared among the Lenders which
made or funded such Loans pro rata according to the respective unpaid principal amounts of such
Loans then owed to such Lenders;




 


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(v) Each payment of interest on Loans in any Borrowing shall be shared among the Lenders
which made or funded the Loans in such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such Lenders and (B) the dates on which such
Lenders so made or funded such Loans;



(vi) Prior to the Initial Funding Date, each payment of Commitment Fees shall be shared among
all of the Lenders pro rata according to their Proportionate Shares;



(vii) From and after the Initial Funding Date, each payment of Commitment Fees and Letter of
Credit fees payable under Section 2.02(i) shall be shared among the Revolving Lenders
(except for Defaulting Lenders) pro rata according to (A) their respective Revolving Proportionate
Shares and (B) in the case of each Lender which becomes a Revolving Lender hereunder after the date
hereof, the date upon which such Lender so became a Revolving Lender;



(viii) Each payment of interest (other than interest on Loans) shall be shared among the
Lenders and the Administrative Agent owed the amount upon which such interest accrues pro rata
according to (A) the respective amounts so owed such Lenders and the Administrative Agent and (B)
the dates on which such amounts became owing to such Lenders and the Administrative Agent; and



(ix) All other payments under this Agreement and the other Credit Documents (including,
without limitation, fees paid in connection with any amendment, consent, waiver or the like) shall
be for the benefit of the Person or Persons specified.



(b) Sharing of Payments, Etc. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of
the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it,
in excess of its ratable share of payments on account of the Loans and the L/C Obligations obtained
by all Lenders entitled to such payments, such Lender shall forthwith purchase from the other
Lenders such participations in the Loans and/or participations in L/C Obligations or in Swing Line
Loans as shall be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase shall be rescinded and
each other Lender shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such other Lender’s ratable share (according to the
proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.10(b) may, to
the fullest extent permitted by law, exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation.



 


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For the avoidance of doubt, the provisions of this Section 2.10(b) shall not be
construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or participations in L/C
Obligations or in Swing Line Loans to any assignee or participant, other than to any Loan Party or
any Affiliate of a Loan Party (as to which the provisions of this Section 2.10(b) shall
apply).




2.11. Change of Circumstances.



(a) Inability to Determine Rates. If, on or before the first day of any Interest
Period for any LIBOR Loan or LIBOR Portion, (i) any Lender shall advise the Administrative Agent
that the LIBOR Rate for such Interest Period cannot be adequately and reasonably determined due to
the unavailability of funds in or other circumstances affecting the London interbank market or (ii)
any Lender shall advise the Administrative Agent that the rate of interest for such Loan or
Portion, as the case may be, does not adequately and fairly reflect the cost to such Lender of
making or maintaining such LIBOR Loan or LIBOR Portion, the Administrative Agent shall immediately
give notice of such condition to the Borrower and the other Lenders. After the giving of any such
notice and until the Administrative Agent shall otherwise notify the Borrower that the
circumstances giving rise to such condition no longer exist, the Borrower’s right to request the
making of, conversion to or a new Interest Period for LIBOR Loans or LIBOR Portions shall be
suspended. Any LIBOR Loans or LIBOR Portions outstanding at the commencement of any such
suspension shall be converted at the end of the then current Interest Period for such LIBOR Loans
or LIBOR Portions into Base Rate Loans or Base Rate Portions, as the case may be, unless such
suspension has then ended.



(b) Illegality. If, after the date of this Agreement, the adoption of any
Governmental Rule, any change in any Governmental Rule or the application or requirements thereof
(whether such change occurs in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any Governmental Authority (a “Change of
Law”) shall make it unlawful or impossible for any Lender to make or maintain any LIBOR Loan or
LIBOR Portion, such Lender shall immediately notify the Administrative Agent and the Borrower in
writing of such Change of Law. Upon receipt of such notice, (i) the Borrower’s right to request
the making of, conversion to or a new Interest Period for LIBOR Loans or LIBOR Portions with
respect to such Lender shall be terminated, and (ii) the Borrower shall, at the request of such
Lender, either (A) pursuant to Section 2.01(e), as the case may be, convert any such then
outstanding LIBOR Loans or LIBOR Portions of such Lender into Base Rate Loans or Base Rate
Portions, as the case may be, at the end of the current Interest Period for such LIBOR Loans or
LIBOR Portions or (B) immediately repay or convert any such LIBOR Loans or LIBOR Portions of such
Lender if such Lender shall notify the Borrower that such Lender may not lawfully continue to fund
and maintain such LIBOR Loans or LIBOR Portions. Any conversion or prepayment of LIBOR Loans or
LIBOR Portions made pursuant to the preceding sentence prior to the last day of an Interest Period
for such LIBOR Loans or LIBOR Portions shall be deemed a prepayment thereof for purposes of
Section 2.13. After any Lender notifies the Administrative Agent and the Borrower of such
a Change of Law and until such Lender notifies the Administrative Agent and the Borrower that it is
no longer unlawful or impossible for such Lender to make or maintain a LIBOR Loan or LIBOR Portion,
all Revolving Loans and all Portions of the Term Loan of such Lender shall be Base Rate Loans and
Base Rate Portions, respectively.


 


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(c) Increased Costs. If, after the date of this Agreement, any Change of Law:



(i) Shall subject any Lender to any tax, duty or other charge with respect to any Loan or
Letter of Credit, or shall change the basis of taxation of payments by the Borrower to any Lender
under this Agreement (except for changes in the rate of taxation on the overall net income of any
Lender imposed by its jurisdiction of incorporation or the jurisdiction in which its principal
executive office is located); or



(ii) Shall impose, modify or hold applicable any reserve (excluding any Reserve Requirement or
other reserve to the extent included in the calculation of the LIBOR Rate for any Loans or
Portions), special deposit or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances or loans by, or any other acquisition of funds by
any Lender for any LIBOR Loan or LIBOR Portion; or



(iii) Shall impose on any Lender any other condition related to any LIBOR Loan or LIBOR
Portion or such Lender’s Commitments;



and the effect of any of the foregoing is to increase the cost to such Lender of making, renewing,
or maintaining any such LIBOR Loan or LIBOR Portion or its Commitments or to reduce any amount
receivable by such Lender hereunder; then the Borrower shall from time to time, within five (5)
Business Days after demand by such Lender, pay to such Lender additional amounts sufficient to
reimburse such Lender for such increased costs or to compensate such Lender for such reduced
amounts. A certificate setting forth in reasonable detail the amount of such increased costs or
reduced amounts, submitted by such Lender to the Borrower shall be conclusive absent manifest
error. The obligations of the Borrower under this Section 2.11(c) shall survive the
payment and performance of the Obligations and the termination of this Agreement.



(d) Capital Requirements. If, after the date of this Agreement, any Lender determines
that (i) any Change of Law affects the amount of capital required or expected to be maintained by
such Lender or any Person controlling such Lender (a “Capital Adequacy Requirement”) and
(ii) the amount of capital maintained by such Lender or such Person which is attributable to or
based upon the Loans, the Letters of Credit, the Commitments or this Agreement must be increased as
a result of such Capital Adequacy Requirement (taking into account such Lender’s or such Person’s
policies with respect to capital adequacy), the Borrower shall pay to such Lender or such Person,
within five (5) Business Days after demand of such Lender, such amounts as such Lender or such
Person shall determine are necessary to compensate such Lender or such Person for the increased
costs to such Lender or such Person of such increased capital. A certificate setting forth in
reasonable detail the amount of such increased costs, submitted by any Lender to the Borrower shall
be conclusive absent manifest error. The obligations of the Borrower under this Section
2.11(d) shall survive the payment and performance of the Obligations and the termination of
this Agreement.


 


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2.12. Taxes on Payments.



(a) Except as otherwise expressly provided in this Section 2.12, all payments by the
Borrower under this Agreement or any other Credit Document shall be made free and clear of, and
without deduction for, any and all present or future federal, state, local and foreign taxes,
levies, imposts, duties, deductions, fees, assessments, withholdings, or other charges of whatever
nature and all interest, penalties and other liabilities with respect thereto, including
withholding taxes imposed by any jurisdiction or any political subdivision thereof, but excluding
(except as provided in the second succeeding sentence) taxes imposed on a Lender’s overall net
income and franchise taxes imposed on such Lender, in each case, by the jurisdiction of such
Lender’s Applicable Lending Office or any political subdivision thereof (all such nonexcluded
taxes, levies, imposts, duties, deductions, fees, assessments, withholdings, or other charges of
whatever nature and all interest, penalties and other liabilities being referred to herein as
“Indemnifiable Taxes”). If Indemnifiable Taxes are imposed in respect of any sum payable
hereunder to any Lender, then (i) subject to the penultimate sentence of Section 2.12(e),
the sum payable shall be increased by the amount necessary so that after making all required
deductions such Lender shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all required deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxing authority or other Governmental Authority
in accordance with applicable law. In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any excise, transfer, sales and use, value added or property taxes,
charges or similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any other Credit
Document (hereinafter referred to as “Other Taxes”).



(b) Subject to the penultimate sentence of Section 2.12(e), the Borrower agrees to
indemnify the Administrative Agent and each Lender for the full amount of all Indemnifiable Taxes
and Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.12) paid by such Lender, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. Such indemnification shall be made within 30 days
following the date the Administrative Agent or such Lender makes written demand therefor.



(c) Within 30 days after the date of any payment of Taxes or Other Taxes withheld hereunder
(and, with respect to any Taxes or Other Taxes not so withheld, to the extent available), the
Borrower will furnish to the Administrative Agent, at the Administrative Agent’s Office, the
original or a certified copy of a receipt evidencing payment thereof.



(d) Without prejudice to the survival of any other agreement contained herein, the agreements
and obligations contained in this Section 2.12 shall survive the payment in full of
principal, interest and all other Obligations hereunder.



(e) On or prior to the date of the initial Loans or, if such date does not occur within thirty
(30) days after the date of this Agreement, by the end of such 30-day period, each Lender which is
not organized under the laws of the United States or a state thereof shall deliver to the Borrower
and the Administrative Agent (A) two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI (or successor applicable form), as the case may
be, certifying in each case that such Lender is entitled to receive payments of interest under this
Agreement without deduction or withholding of any United States federal income taxes, or (B) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the IRC and


 


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cannot deliver either United States Internal Revenue Service Form W-8BEN or Form W-8ECI (with
respect to a complete exemption under an income tax treaty) pursuant to clause (A) above (any such
lender, a “Non-Bank Lender”), (x) a certificate substantially in the form of Exhibit
K (any such certificate, a “Non-Bank Certificate”) and (y) two accurate and complete
original signed copies of United States Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of
such date to a complete exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement. Each such Lender further agrees (i) promptly to notify
the Borrower and the Administrative Agent of any change of circumstances which would prevent such
Lender from receiving payments hereunder without any deduction or withholding of Indemnifiable
Taxes and (ii) if such Lender has not so notified the Borrower and the Administrative Agent of any
change of circumstances which would prevent such Lender from receiving payments hereunder without
any deduction or withholding of Indemnifiable Taxes, then on or before the date that any
certificate or other form delivered by such Lender under this Section 2.12(e) expires or
becomes obsolete or after the occurrence of any event requiring a change in the most recent such
certificate or form previously delivered by such Lender, to deliver to the Borrower and the
Administrative Agent a new certificate or form, certifying that such Lender is entitled to receive
payments under this Agreement without deduction of Indemnifiable Taxes, but only if and to the
extent such Lender is legally entitled to do so. If a Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.15) fails to provide to the Borrower or the
Administrative Agent pursuant to the first sentence of this Section 2.12(e) (or, in the
case of an Assignee Lender, Section 8.05(c)) any certificates or other evidence required by
such provision to establish that such Lender is, at the time it becomes a Lender hereunder,
entitled to receive payments under this Agreement without deduction or withholding of any United
States federal income taxes, such Lender shall not be entitled to any indemnification under
Section 2.12(a) for any such Taxes imposed on such Lender primarily as a result of such
failure, except to the extent that such Lender (or its assignor, if any) was entitled, at the time
such Lender became a Lender hereunder, to receive additional amounts from the Borrower with respect
to such Tax pursuant to Section 2.12(a). Notwithstanding anything to the contrary
contained in this Section 2.12, the Borrower agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in Section 2.12(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as a result of any
changes after the Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting or withholding of
income or similar Taxes.




(f) Any Lender claiming any additional amounts in respect of Indemnifiable Taxes payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent with legal and
regulatory restrictions and such Lender’s internal policies) to file any certificate or document
reasonably requested by the Borrower, if the making of such a filing would avoid the need for or
reduce the amount of any such Indemnifiable Taxes attributable to the Loans and would not, in the
sole determination of such Lender, result in any unreimbursed loss, cost or expense or otherwise be
disadvantageous to such Lender.


 


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(g) Nothing contained in this Section 2.12 shall require the Administrative Agent or
any Lender to make available any of its Tax Returns or any other information that it deems to be
confidential or proprietary.



2.13. Funding Loss Indemnification. If the Borrower shall (a) repay, prepay or
convert any LIBOR Loan or LIBOR Portion on any day other than the last day of an Interest Period
therefor (whether a scheduled payment, an optional prepayment or conversion, a mandatory prepayment
or conversion, a payment upon acceleration or otherwise), (b) fail to borrow any LIBOR Loan or
LIBOR Portion for which a Notice of Loan Borrowing has been delivered to the Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or otherwise), (c) fail to
convert any Revolving Loans into LIBOR Loans or any Portion of a Term Loan Borrowing into a LIBOR
Portion in accordance with a Notice of Conversion delivered to the Administrative Agent, or (d)
fail to continue LIBOR Loan or LIBOR Portion for which a Notice of Interest Period Selection has
been delivered to the Administrative Agent, the Borrower shall pay to the appropriate Lender within
five (5) Business Days after demand a prepayment fee, failure to borrow fee, failure to convert fee
or fail to continue fee, as the case may be (determined as though 100% of the LIBOR Loan or LIBOR
Portion had been funded in the London interbank eurodollar currency market), equal to the
sum of:



(a) $250; plus



(b) the amount, if any, by which (i) the additional interest would have accrued on the amount
prepaid or not borrowed at the LIBOR Rate plus the Applicable Margin for LIBOR Loans and LIBOR
Portions if that amount had remained or been outstanding through the last day of the applicable
Interest Period exceeds (ii) the interest that such Lender could recover by placing such amount on
deposit in the London interbank eurodollar currency market for a period beginning on the date of
the prepayment or failure to borrow and ending on the last day of the applicable Interest Period
(or, if no deposit rate quotation is available for such period, for the most comparable period for
which a deposit rate quotation may be obtained); plus



(c) all out-of-pocket expenses incurred by such Lender reasonably attributable to such
payment, prepayment or failure to borrow.



Each Lender’s determination of the amount of any prepayment fee payable under this Section
2.13 shall be conclusive in the absence of manifest error. The obligations of the Borrower
under this Section 2.13 shall survive the payment and performance of the Obligations and
the termination of this Agreement.




2.14. Security.



(a) Security Documents. The Loans, together with all other Obligations, shall be
secured by the Liens granted by the Borrower under the Security Documents (or, in the case of any
Real Property Security Document, the Obligations described in such Real Property Security Document
and subject to any limitation specifically set forth therein). All obligations of a Guarantor
under the Credit Documents shall be secured by the Liens granted by such Guarantor under the
Security Documents. So long as the terms thereof are in compliance with
this Agreement, each Lender Rate Contract shall be secured by the Lien of the Security
Documents with the priority relative to the other Obligations as set forth in Section 6.02.


 


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(b) Further Assurances. The Borrower shall deliver, and shall cause each Guarantor to
deliver, to the Administrative Agent such mortgages, deeds of trust, security agreements, pledge
agreements, lessor consents and estoppels (containing appropriate mortgagee and lender protection
language), control agreements, and other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing statements and fixture filings) as the
Administrative Agent, the Collateral Agent or the Security Trustee may reasonably request to:



(i) grant, perfect, maintain, protect and evidence security interests in favor of the
Collateral Agent or the Security Trustee, for the benefit of the Secured Parties, in any or all
present and future property of the Borrower and the Guarantors prior to the Liens or other
interests of any Person, except for Permitted Liens; and



(ii) otherwise establish, maintain, protect and evidence the rights provided to the Collateral
Agent or the Security Trustee, for the benefit of the Secured Parties, pursuant to the Security
Documents.



The Borrower shall fully cooperate with the Administrative Agent, the Collateral Agent, the
Security Trustee and the Lenders and perform all additional acts reasonably requested by the
Administrative Agent, the Security Trustee, the Collateral Agent or any Lender to effect the
purposes of this Section 2.14.




2.15. Replacement of the Lenders. If (a) any Lender shall become a Deteriorating
Lender, (b) any Lender shall suspend its obligation to make or maintain LIBOR Loans or LIBOR
Portions pursuant to Section 2.11(b) for a reason which is not applicable to any other
Lender, or (c) any Lender shall demand any payment under Section 2.11(c), 2.11(d)
or 2.12(a) for a reason which is not applicable to any other Lender, then the
Administrative Agent may (or upon the written request of the Borrower if the Borrower has located
or identified a replacement Lender that is an Eligible Assignee and is reasonably acceptable to the
Administrative Agent as contemplated below, shall use commercially reasonable efforts to) replace
such Lender (the “affected Lender”), or cause such affected Lender to be replaced, with
another lender (the “replacement Lender”) satisfying the requirements of an Assignee Lender
under Section 8.05(c), by having the affected Lender sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
Section 2.15, participations in L/C Obligations and in Swing Line Loans) to the replacement
Lender pursuant to Section 8.05(c); provided, however, that if the Borrower
seeks to exercise such right, it must do so within sixty (60) days after it first knows or should
have known of the occurrence of the event or events giving rise to such right, and neither the
Administrative Agent nor any Lender shall have any obligation to identify or locate a replacement
Lender for the Borrower (it being expressly agreed that in such circumstances it is the Borrower’s
obligation to identify or locate a replacement Lender that is an Eligible Assignee and is
acceptable to the Administrative Agent). Upon receipt by any affected Lender of a written notice
from the Administrative Agent stating that the Administrative Agent is exercising the replacement
right set forth in this Section 2.15, such affected Lender shall sell and assign all of its
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and the other Credit Documents (including for purposes of this Section 2.15, participations
in L/C Obligations and in Swing Line Loans) to the replacement Lender pursuant to an Assignment
Agreement and Section 8.05(c) for a purchase price equal to the sum of the principal amount
of the affected Lender’s Loans so sold and assigned or such other amount is agreed to by such
affected Lender and such replacement Lender), all accrued and unpaid interest thereon and its
ratable share of all fees to which it is entitled.




ARTICLE III. CONDITIONS PRECEDENT.




3.01. Conditions Precedent to Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction or waiver of the conditions set forth on Schedule 3.01.



3.02. Conditions Precedent to Initial Funding. The obligations of the Lenders to make
the Loans comprising the initial Borrowings are subject to the satisfaction or waiver of the
conditions set forth on Schedule 3.02.



3.03. Conditions Precedent to each Credit Event. The occurrence of each Credit Event
(including the initial Borrowings occurring on the Initial Funding Date) is subject to the further
conditions that:



(a) The Borrower shall have delivered to the Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender, the Notice of Borrowing or Letter of Credit Application, as the
case may be, for such Credit Event in accordance with this Agreement; and



(b) On the date such Credit Event is to occur and after giving effect to such Credit Event,
the following shall be true and correct:



(i) The representations and warranties of the Loan Parties set forth in Article IV and
in the other Credit Documents are true and correct in all material respects (except to the extent
that such representation and warranty is qualified by materiality, in which case such
representation and warranty must be true in all respects) as if made on such date (except for
representations and warranties expressly made as of a specified date, which shall be true and
correct in all material respects (except to the extent that such representation and warranty is
qualified by materiality, in which case such representation and warranty must be true in all
respects) as of such date);



(ii) No Default has occurred and is continuing or will result from such Credit Event; and



(iii) No material adverse change in the business, operations, condition (financial or
otherwise), assets or liabilities (whether actual or contingent) of the Borrower Parties taken as a
whole (including the Purchased Assets as if they were owned on December 31, 2009 and for the twelve
months prior thereto), having occurred since December 31, 2009.



The submission by the Borrower to the Administrative Agent of each Notice of Borrowing and
each Letter of Credit Application shall be deemed to be a representation and warranty by the
Borrower that each of the statements set forth above in this Section 3.02(b) is true and
correct as of the date of such notice.


 


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ARTICLE IV. REPRESENTATIONS AND WARRANTIES.




4.01. Representations and Warranties of the Borrower. In order to induce the
Administrative Agent, the Collateral Agent, the Security Trustee and the Lenders to enter into this
Agreement, the Borrower hereby represents and warrants to the Administrative Agent, the Collateral
Agent, the Security Trustee and the Lenders for itself and each of the other Loan Parties as set
forth in this Article IV and agrees that each of such representations and warranties shall
be deemed to survive until full payment of the Obligations and shall apply anew to each Borrowing
hereunder.



(a) Due Incorporation, Qualification, etc. Each Borrower Party (i) is a corporation,
partnership or limited liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or formation; (ii) has the power and authority
to own, lease and operate its properties and carry on its business as now conducted; and (iii) is
duly qualified, licensed to do business and in good standing as a foreign corporation, partnership
or limited liability company, as applicable, in each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such qualification or license and
where the failure to be so qualified or licensed, individually or in the aggregate could have a
Material Adverse Effect.



(b) Authority. The execution, delivery and performance by each Loan Party of each
Credit Document executed, or to be executed, by such Loan Party and the consummation of the
transactions contemplated thereby (i) are within the power of such Loan Party and (ii) have been
duly authorized by all necessary actions on the part of such Loan Party.



(c) Enforceability. Each Credit Document executed, or to be executed, by each Loan
Party has been, or will be, duly executed and delivered by such Loan Party and constitutes, or will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors’ rights generally and
general principles of equity.



(d) Non-Contravention. The execution and delivery by each Loan Party of the Credit
Documents executed by such Loan Party and the performance and consummation of the transactions
(including the use of Loan and Letter of Credit proceeds) contemplated thereby do not (i) violate
any Requirement of Law applicable to such Loan Party; (ii) violate any provision of, or result in
the breach or the acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any Contractual Obligation of such Loan Party; (iii)
result in the creation or imposition of any Lien (or the obligation to create or impose any Lien)
upon any Property, asset or revenue of such Loan Party (except such Liens as may be created in
favor of the Collateral Agent or the Security Trustee for the benefit of the Secured Parties
pursuant to the Security Documents) or (iv) violate any provision of any existing law, rule,
regulation, order, writ, injunction or decree of any court or Governmental Authority to which it is
subject.


 


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(e) Approvals.



(i) Except as provided in Nevada Gaming Commission Regulation 8.130 with respect to Stockman’s
Casino, no consent, approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority or other Person (including, without limitation, the equity holders
of any Person) is required in connection with the borrowing of the Loans, the granting of Liens
under the Credit Documents, the execution and delivery of the Credit Documents executed by any Loan
Party or the performance or consummation of the transactions contemplated thereby, except for those
which have been made or obtained and are in full force and effect.



(ii) No consent, approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority or other Person (including, without limitation, the equity holders
of any Person) is required in connection with the execution and delivery of the Acquisition
Documents executed by any Loan Party or the performance or consummation of the transactions
contemplated thereby (including the Acquisition), except for those which have been made or obtained
and are in full force and effect.



(iii) All Governmental Authorizations required for the activities and operations of the
Borrower Parties (including gaming, video lottery and horse racing operations, as applicable) and
the ownership of all property owned, operated or leased by the Borrower Parties and, from and after
the Initial Funding Date, the operation of the Grand Victoria Vessel, have been duly obtained and
are in full force and effect without any known conflict with the rights of others and free from any
unduly burdensome restrictions, except where any such failure to obtain such Governmental
Authorizations or any such conflict or restriction could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. No Borrower Party has received any
written notice or other written communications from any Governmental Authority regarding (A) any
revocation, withdrawal, suspension, termination or modification of, or the imposition of any
material conditions with respect to, any Governmental Authorization, or (B) any other limitations
on the conduct of business by any Loan Party, except where any such revocation, withdrawal,
suspension, termination, modification, imposition or limitation could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.



(iv) Except as set forth on Schedule 4.01(e)(iv), no Governmental Authorization is
required for either (x) the pledge or grant by any Loan Party as applicable of the Liens purported
to be created in favor of the Collateral Agent or the Security Trustee under the Security Documents
or (y) the exercise by the Collateral Agent or the Security Trustee of any rights or remedies in
respect of any Collateral (whether specifically granted or created pursuant to any of the Security
Documents or created or provided for by any Governmental Rule), except for (1) such Governmental
Authorizations that have been obtained and are in full force and effect and fully disclosed to
Administrative Agent in writing, and (2) filings or recordings contemplated in connection with this
Agreement or any Security Document.


 


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(f) No Violation or Default. No Borrower Party is in violation of or in default with
respect to (i) any Requirement of Law applicable to such Person (including, as applicable, IGRA,
any Gaming Laws or tribal, horse racing or video lottery laws) or (ii) any Contractual Obligation
of such Person, where, in each case, such violation or default could reasonably be expected to have
a Material Adverse Effect (nor is there any waiver in effect which, if not in effect, could
reasonably be expected to result in such a violation or default). No Default has occurred and is
continuing.



(g) Litigation. Except as set forth in Schedule 4.01(g), no actions
(including derivative actions), suits, proceedings (including arbitration proceedings or mediation
proceedings) or, to the Borrower’s knowledge, investigations are pending or overtly threatened
against any Borrower Party at law or in equity in any court, arbitration proceeding or before any
other Governmental Authority which (i) could reasonably be expected to (alone or in the aggregate)
have a Material Adverse Effect or (ii) seek to enjoin, either directly or indirectly, the
execution, delivery or performance by any Loan Party of the Credit Documents, the Acquisition
Documents or the transactions contemplated thereby (including the Transactions) or any documents
executed in connection therewith.



(h) Real Property, Grand Victoria Vessel, Etc.



(i) All real property owned or leased by the Borrower Parties is described (including, as to
real property owned, a legal description) in Schedule 4.01(h) (as supplemented from time to
time by the Borrower in a notice delivered pursuant to Section 5.01(a)(xiii)). As of the
Initial Funding Date, the Grand Victoria Vessel is the only vessel owned by any Borrower Party and
has been duly documented under the laws of the United States of America in the name of Gaming
Entertainment (Indiana), LLC as the owner thereof, and no other action is necessary to establish
and perfect Gaming Entertainment (Indiana), LLC’s title to and interest in the Grand Victoria
Vessel. The Borrower Parties own and have good and marketable title, or a valid leasehold interest
in, all their respective properties and assets as reflected in the most recent Financial Statements
delivered to the Administrative Agent (except those assets and properties disposed of in the
ordinary course of business or otherwise in compliance with this Agreement since the date of such
Financial Statements) and all respective assets and properties acquired by the Borrower Parties
since such date (except those disposed of in the ordinary course of business or otherwise in
compliance with this Agreement), except, in each case, such defects in title that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect. Such assets and
properties are subject to no Lien, except for Permitted Liens. Each of the Borrower Parties has
complied in all material respects with all material obligations under all material leases to which
it is a party and enjoys peaceful and undisturbed possession under such leases. The real
properties owned by the Borrower Parties are taxed separately and do not include any other
property, and for all purposes the real properties may be mortgaged, conveyed and otherwise dealt
with as a separate legal parcel.



(ii) No Borrower Party (A) has violated any Environmental Laws, (B) has any liability under
any Environmental Laws or (C) has received notice or other communication of an investigation or, to
the Borrower’s knowledge, is under investigation by
any Governmental Authority having authority to enforce Environmental Laws, where such
violation, liability or investigation could have, individually or in the aggregate, a Material
Adverse Effect. Each Borrower Party’s use and operation of its business properties are in
compliance with all applicable Governmental Rules, including all applicable land use and zoning
laws, except to the extent that non-compliance could not reasonably be expected to have a


 


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Material Adverse Effect. The Borrower Parties are in compliance with the Maritime Transportation
Security Act of 2002, as amended (including having vessel and waterfront facility security plans
submitted to and approved by the United States Coast Guard), except to the extent that
non-compliance could not reasonably be expected to have a Material Adverse Effect.




(i) Financial Statements. The Financial Statements of the Borrower Parties which have
been delivered to the Administrative Agent, (i) are in accordance with the books and records of the
Borrower Parties, which have been maintained in accordance with good business practice; (ii) except
as indicated in the accountant’s report, have been prepared in conformity with GAAP; and (iii)
fairly present in all material respects the financial conditions and results of operations of the
Borrower Parties as of the date thereof and for the period covered thereby. No Borrower Party has
any Contingent Obligations, liability for taxes or other outstanding obligations which, in any such
case, are material in the aggregate, except as disclosed in the Financial Statements of the
Borrower Parties and those relating to the Purchased Assets furnished to the Administrative Agent
and the Lenders pursuant to item (d)(i) of Schedule 3.01, or in the Financial
Statements delivered to the Administrative Agent pursuant to Section 5.01(a)(i) or (ii).



(j) Creation, Perfection and Priority of Liens; Equity Interests.



(i) The execution and delivery of the Security Documents by the Loan Parties party thereto,
together with the filing of any Uniform Commercial Code financing statements and the recording of
the U.S. Patent and Trademark Office filings and U.S. Copyright Office filings delivered to the
Collateral Agent for filing and recording, and as of the date delivered, the recording of any
mortgages or deeds of trust delivered to the Collateral Agent or the Security Trustee for recording
(but not yet recorded), are effective to create in favor of the Collateral Agent or the Security
Trustee, for the benefit of the Secured Parties, as security for the Obligations, a valid and
perfected first priority Lien on all of the Collateral existing as of the date of such execution
and delivery (subject only to Permitted Liens). All outstanding Equity Securities of the Loan
Parties are duly authorized, validly issued, fully paid and non-assessable. There are no
outstanding subscriptions, options, conversion rights, warrants or other agreements or commitments
of any nature whatsoever (firm or conditional) obligating the Loan Parties or to issue, deliver or
sell, or cause to be issued, delivered or sold, any additional Equity Securities of the Loan
Parties, or obligating the Loan Parties to grant, extend or enter into any such agreement or
commitment. All Equity Securities of the Loan Parties have been offered and sold in compliance
with all federal and state securities laws and all other Requirements of Law, except where any
failure to comply could not reasonably be expected to have a Material Adverse Effect.



(ii) Upon execution and delivery of the Real Property Security Documents, the Real Property
Security Documents shall create in favor of the Collateral Agent, for the benefit of the Secured
Parties, a legal, valid, binding and enforceable Lien on, and security interest in, the respective
Loan Party’s right, title and interest in and to the real property subject thereto and proceeds
thereof, and, each such Real Property Security Document shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors thereof in such real
property and proceeds thereof, as security for the Obligations, in each case prior and superior in
right to any other Person (except with respect to Permitted Liens).


 


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(iii) Upon execution and delivery by Gaming Entertainment (Indiana), LLC of the Grand Victoria
Vessel Security Document, the Grand Victoria Vessel Security Document will be a first “preferred
mortgage” within the meaning of the Ship Mortgage Act and will qualify for the benefits accorded a
“preferred mortgage” thereunder and no other filing or recording or refiling or rerecording or any
other act is necessary or advisable to create or perfect such security interest under the Grand
Victoria Vessel Security Document or in the mortgaged property described therein.



(k) Employee Benefit Plans. Except as set forth on Schedule 4.01(k):



(i) Based upon the actuarial assumptions specified for funding purposes in the latest
valuation of each Pension Plan that any Borrower Party or any ERISA Affiliate maintains or
contributes to, or has any obligation under, the aggregate benefit liabilities of such Pension Plan
within the meaning of Section 4001 of ERISA did not exceed the aggregate value of the assets of
such Pension Plan. Neither any Borrower Party nor any ERISA Affiliate has any liability with
respect to any post-retirement benefit under any employee welfare plan (as defined in Section 3(1)
of ERISA), other than liability for health plan continuation coverage described in Part 6 of Title
I(B) of ERISA, which liability for health plan continuation coverage could not have a Material
Adverse Effect.



(ii) Each Pension Plan complies, in both form and operation, in all material respects, with
its terms, ERISA and the IRC, and no condition exists or event has occurred with respect to any
such Pension Plan which would result in the incurrence by any Borrower Party or any ERISA Affiliate
of any material liability, fine or penalty. Each Pension Plan, related trust agreement,
arrangement and commitment of any Borrower Party or any ERISA Affiliate is legally valid and
binding and in full force and effect. No Pension Plan is being audited or investigated by any
government agency or is subject to any pending or threatened claim or suit. No Borrower Party or
ERISA Affiliate has engaged in a prohibited transaction under Section 406 of ERISA or Section 4975
of the IRC with respect to any Pension Plan which would result in the incurrence by any Borrower
Party or ERISA Affiliate of any material liability.



(iii) No Borrower Party or ERISA Affiliate contributes to or has any material contingent
obligations to any Multiemployer Plan. No Borrower Party or ERISA Affiliate has incurred any
material liability (including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as a
result of a sale of assets described in Section 4204 of ERISA. No Borrower Party or ERISA
Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or that any Multiemployer Plan intends
to terminate or has been terminated under Section 4041A of ERISA.



(iv) No Borrower Party has (A) engaged in any transaction prohibited by any Governmental Rule
applicable to any Foreign Plan; (B) failed to make full payment when due of all amounts due as
contributions to any Foreign Plan; or (C) otherwise failed to comply with the requirements of any
Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could
have a Material Adverse Effect.


 


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(l) Margin Stock; Other Regulations. No Loan Party owns any Margin Stock which, in
the aggregate, would constitute a substantial part of the assets of the Borrower or the Loan
Parties (taken as a whole), and not more than 25% of the value (as determined by any reasonable
method) of the assets of any Loan Party is represented by Margin Stock, and no proceeds of any Loan
or any Letter of Credit will be used, whether directly or indirectly, to purchase, acquire or carry
any Margin Stock or to extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock. No Loan Party is subject to regulation under the
Investment Company Act of 1940, the Federal Power Act, the Interstate Commerce Act, any state
public utilities code or to any other Governmental Rule limiting its ability to incur indebtedness.



(m) Trademarks, Patents, Copyrights and Licenses. The Borrower Parties each possess
and either own, or have the right to use to the extent required, all necessary trademarks, trade
names, copyrights, patents, patent rights and licenses which are material to the conduct of their
respective businesses as now operated. The Borrower Parties each conduct their respective
businesses without infringement or claim of infringement of any trademark, trade name, trade
secret, service mark, patent, copyright, license or other intellectual property rights of any other
Person (which is not a Borrower Party), except where such infringement or claim of infringement
could not reasonably be expected to have a Material Adverse Effect. There is no infringement or,
to the Borrower’s knowledge, claim of infringement by others of any trademark, trade name, trade
secret, service mark, patent, copyright, license or other intellectual property right of the
Borrower or any of the other Borrower Parties, except when such infringement or claim of
infringement by others could not reasonably be expected to have a Material Adverse Effect. Each of
the patents, trademarks, trade names, service marks and copyrights owned by the Borrower or any
Guarantor which is registered with any Governmental Authority is set forth on the schedules to the
Security Agreement.



(n) Governmental Charges. The Borrower Parties have timely filed or caused to be
timely filed with the appropriate taxing authorities all Tax Returns which are required to be filed
by them. Subject to any adjustment in an amount less than $500,000 in connection with the audit
being undertaken by the Internal Revenue Service on the date hereof, the Tax Returns accurately
reflected all liability for Taxes of the Borrower Parties for the periods covered thereby and the
Borrower Parties have paid, or made provision for the payment of, all Taxes and other Governmental
Charges which have or may have become due pursuant to said returns or otherwise and all other
indebtedness, except such Governmental Charges or indebtedness, if any, which are being contested
in good faith by appropriate proceedings and as to which adequate reserves (determined in
accordance with GAAP) have been established. All Taxes which the Borrower Parties were required by
law to withhold or collect in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party have been duly withheld or collected, and
have been timely paid over to the proper authorities to the extent due and payable. No Borrower
Party has executed or filed with the Internal Revenue Service or any other Governmental Authority
any agreement or other document extending, or having the effect of extending, the period for
assessment or collection of any taxes or Governmental Charges.



 


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(o) Subsidiaries, Etc. Schedule 4.01(o) (as supplemented by the Borrower in a
notice delivered pursuant to Section 5.01(a)(vii)) sets forth each of the Subsidiaries of
each
Loan Party, its jurisdiction of organization, the classes of its Equity Securities, the number
of Equity Securities of each such class issued and outstanding, the percentages of Equity
Securities of each such class owned directly or indirectly by each Loan Party and whether such Loan
Party owns such Equity Securities directly or, if not, the Subsidiary of such Loan Party that owns
such Equity Securities and the number of Equity Securities and percentages of Equity Securities of
each such class owned directly or indirectly by such Loan Party. Except as set forth on
Schedule 4.01(o) (as supplemented as set forth above), none of the Loan Parties currently
has any Subsidiaries. All of the outstanding Equity Securities of each such Subsidiary indicated
on Schedule 4.01(o) as owned by each Loan Party are owned beneficially and of record by
such Loan Party free and clear of all adverse claims. Each of the Subsidiaries of each Loan Party
is organized under the laws of the United States or any state thereof.




(p) Solvency, Etc. Each of the Borrower Parties is Solvent and, after the execution
and delivery of the Credit Documents and the consummation of the Transactions, will be Solvent.



(q) Labor Matters. There are no disputes presently subject to grievance procedure,
arbitration or litigation under any of the collective bargaining agreements, employment contracts
or employee welfare or incentive plans to which any Borrower Party is a party, and there are no
strikes, lockouts, work stoppages or slowdowns, or, to the knowledge of the Borrower,
jurisdictional disputes or organizing activities occurring or threatened which alone or in the
aggregate could have a Material Adverse Effect.



(r) No Material Adverse Effect. Since December 31, 2009, no event has occurred and no
condition exists which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



(s) Accuracy of Information Furnished; Material Documents.



(i) The Credit Documents and the other certificates, statements and information (excluding
projections) furnished by the Loan Parties to the Administrative Agent, the Security Trustee and
the Lenders in connection with the Credit Documents and the transactions contemplated thereby,
taken as a whole, do not contain any untrue statement of a material fact and do not omit to state
any material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. All projections furnished by the Loan Parties to the
Administrative Agent and the Lenders in connection with the Credit Documents and the transactions
contemplated thereby have been prepared on a basis consistent with the historical Financial
Statements described above, except as described therein, have been based upon reasonable
assumptions and represent, as of their respective dates of presentations, the Loan Parties’ good
faith and reasonable estimates of the future performance of the Loan Parties, and the Borrower has
no reason to believe that such estimates and assumptions are not reasonable.



(ii) The copies of the Material Documents which have been delivered to the Administrative
Agent in accordance with Section 3.01 and Section 3.02 are true, correct and
complete copies of the respective originals thereof, as in effect on the Effective Date or the
Initial Funding Date, as applicable, and no amendments or modifications have been made to the


 


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Material Documents, except as set forth by documents delivered to the Administrative Agent in
accordance with Section 3.01 or Section 3.02 or otherwise as permitted by
Section 5.02(m). None of the Material Documents has been terminated and each of the
Material Documents is in full force and effect. No Borrower Party is in default in the observance
or performance of any of its material obligations under the Material Documents and each Loan Party
has taken all action required to be taken to keep unimpaired its rights thereunder (other than
possible defaults which may be the subject of any litigation referred to in Schedule
4.01(g)). No event has occurred (a “GEM Termination Event”) that gives the
Nottawaseppi Tribe the ability (after the giving of notice and/or the expiration of any applicable
time period) to terminate the FireKeepers Management Agreement pursuant to the terms thereof.




(t) Brokerage Commissions. No person is entitled to receive any brokerage commission,
finder’s fee or similar fee or payment in connection with the extensions of credit contemplated by
this Agreement as a result of any agreement entered into by any Loan Party (except for fees payable
to Regal Capital Advisors of approximately $360,000, which fees will be paid on or prior to the
Initial Funding Date from the Borrower’s own funds). No brokerage or other fee, commission or
compensation is to be paid by the Lenders with respect to the extensions of credit contemplated
hereby as a result of any agreement entered into by any Loan Party, and the Borrower agrees to
indemnify the Administrative Agent, the Security Trustee and the Lenders against any such claims
for brokerage fees or commissions and to pay all expenses including, without limitation, reasonable
attorney’s fees incurred by the Administrative Agent, the Security Trustee and the Lenders in
connection with the defense of any action or proceeding brought to collect any such brokerage fees
or commissions. No person is entitled to receive any brokerage commission, finder’s fee or similar
fee or payment in connection with the Acquisition Documents except any such fee that is being paid
in full on the Initial Funding Date.



(u) Policies of Insurance. The properties of the Borrower Parties are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower Parties, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower
Parties operate. The Insurance Disclosure Statement sets forth a true and complete listing of all
insurance maintained by the Borrower Parties as of the Initial Funding Date. Such insurance has
not been terminated and is in full force and effect, and each of the Borrower Parties has taken all
action required to be taken as of the date of this Agreement to keep unimpaired its rights
thereunder.



(v) Agreements with Affiliates and Other Agreements. Except as disclosed on
Schedule 4.01(v), no Borrower Party has entered into and, as of the date of the applicable
Credit Event does not contemplate entering into, any material agreement or contract with any
Affiliate of any Borrower Party, except upon terms at least as favorable to such Borrower Party as
an arms-length transaction with unaffiliated Persons, based on the totality of the circumstances.
No Borrower Party is a party to or is bound by any Contractual Obligation or is subject to any
restriction under its respective charter or formation documents, which could not reasonably be
expected to have a Material Adverse Effect.



 


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(w) Foreign Assets Control, Etc.



(i) No Borrower Party (i) is, or is controlled by, a Designated Person; (ii) has received
funds or other property from a Designated Person; or (iii) is in breach of or is the subject of any
action or investigation under any Anti-Terrorism Law. No Borrower Party engages or will engage in
any dealings or transactions, or is or will be otherwise associated, with any Designated Person.
Each Borrower Party is in compliance, in all material respects, with the Patriot Act. Each
Borrower Party has taken reasonable measures to ensure compliance with the Anti-Terrorism Laws
including the requirement that (i) no Person who owns any direct or indirect interest in any
Borrower Party is a Designated Person, (ii) funds invested directly or indirectly in any Borrower
Party by are derived from legal sources.



(ii) No portion of the proceeds of any Loan, L/C Credit Extension or other credit made
hereunder has been or will be used, directly or indirectly for, and no fee, commission, rebate or
other value has been or will be paid to, or for the benefit of, any governmental official,
political party, official of a political party or any other Person acting in an official capacity
in violation of any applicable Governmental Rules, including the U.S. Foreign Corrupt Practices Act
of 1977, as amended.



(x) Acquisition. The Acquisition has been and will be conducted in compliance with
all Requirements of Law.



(y) Gaming. The lands on which the FireKeepers Casino is located are “Indian lands”
as defined in the IGRA.



4.02. Reaffirmation of Borrower’s Representations and Warranties. The Borrower shall
be deemed to have reaffirmed, for the benefit of the Lenders, the Administrative Agent and the
Security Trustee, each representation and warranty contained in Article IV on and as of the
date of each Credit Event (including the initial Borrowings occurring on the Initial Funding Date),
except for representations and warranties expressly made as of a specified date, which shall be
true as of such date.



4.03. Representations and Warranties of each Lender. Each Lender, as to itself only,
represents and warrants to each other party hereto that it is not a “public-side” Lender (i.e. a
Lender that does not wish to receive non-public information with respect to the Borrower Parties or
their securities) (each, a “Public Lender”) unless it has delivered a written notice (a
“Public Lender Notice”) to the Administrative Agent and the Borrower indicating it is a
Public Lender.



ARTICLE V. COVENANTS.




5.01. Affirmative Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid, or any portion of any Commitment remains in force, the
Borrower will comply, and will cause compliance by the other Loan Parties with the affirmative
covenants set forth in this Section 5.01, unless the Required Lenders shall otherwise
consent in writing.



(a) Financial Statements, Reports, etc. The Borrower shall furnish to the
Administrative Agent and each Lender the following, each in such form and such detail as the
Administrative Agent or the Required Lenders shall reasonably request:


 


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(i) As soon as available and in no event later than forty-five (45) days after the last day of
each fiscal quarter, a copy of the Financial Statements of the Borrower Parties (prepared on a
consolidated and consolidating basis) for such fiscal quarter (beginning with the fiscal quarter
ending December 31, 2010 and thereafter) and for the fiscal year to date, certified by a Senior
Finance Officer of the Borrower to present fairly in all material respects the financial condition,
results of operations and other information reflected therein and to have been prepared in
accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);



(ii) As soon as available and in no event later than ninety (90) days after the close of each
fiscal year (beginning with the fiscal year ending December 31, 2010), copies of the consolidated
and consolidating Financial Statements of the Borrower Parties for such year, audited (as to the
consolidated Financial Statements) by an independent certified public accountants of recognized
national standing or otherwise reasonably acceptable to Administrative Agent, which Financial
Statements shall be accompanied by a narrative from management of the Borrower which discusses
results and copies of the unqualified opinion of such accountants and, to the extent delivered to
the Borrower, management letters delivered by such accountants in connection with such Financial
Statements;



(iii) Contemporaneously with the Financial Statements for each fiscal quarter and each fiscal
year required by the foregoing clauses (i)and (ii), a compliance certificate of a Senior Finance
Officer of the Borrower in substantially the form of Exhibit I (a “Compliance
Certificate”);



(iv) As soon as possible and in no event later than five (5) Business Days after the Borrower
knows of the occurrence or existence of (A) any ERISA Event, (B) any actual or threatened
litigation, suits, claims, disputes or investigations against any Borrower Party involving
potential monetary damages payable by any Borrower Party of $250,000 or more (alone or in the
aggregate) or in which injunctive relief or similar relief is sought, which relief, if granted,
could have a Material Adverse Effect, (C) the occurrence of any GEM Termination Event, (D) any
other event or condition which, either individually or in the aggregate, could have a Material
Adverse Effect, including (I) breach or non-performance of, or any default under, a Contractual
Obligation of a Borrower Party; (II) any dispute, litigation, investigation, proceeding or
suspension between a Borrower Party and any Governmental Authority; or (III) the commencement of,
or any material development in, any litigation or proceeding affecting a Borrower Party, including
pursuant to any applicable Environmental Laws; or (E) any Default or any default under any
Subordinated Obligations, the statement of a Responsible Officer of the Borrower setting forth
details of such event, condition, Default or default and the action which the Borrower proposes to
take with respect thereto. Each notice pursuant to this Section 5.01(a)(iv) shall describe
with particularity any and all provisions of this Agreement or other Credit Document that have been
breached;



(v) As soon as available, and in any event not later than thirty (30) days after the
commencement of each fiscal year, the budget and projected financial statements of the Borrower
Parties for such fiscal year (detailed on a quarterly basis), including, in each case, projected
balance sheets, statements of income and retained earnings and statements of cash flow of the
Borrower Parties, all in reasonable detail and in any event to include projected
Capital Expenditures and quarterly projections of the Borrower Parties’ compliance with each
of the covenants set forth in Section 5.03 of this Agreement;


 


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(vi) As soon as possible and in no event later than five (5) Business Days prior to the
occurrence of any event or circumstance that would require a prepayment pursuant to Section
2.06(c), the statement of a Responsible Officer of the Borrower setting forth the details
thereof;



(vii) As soon as possible and in no event later than ten (10) days prior thereto, written
notice of the establishment or acquisition by a Loan Party of any new Subsidiary or the issuance of
any new Equity Securities of the Borrower or any Subsidiary;



(viii) As soon as possible and in no event later than five (5) Business Days after the receipt
thereof by the Borrower, a copy of any notice, summons, citations or other written communications
concerning any actual, alleged, suspected or threatened violation of any Environmental Law, or any
liability of a Loan Party for Environmental Damages;



(ix) As soon as possible and in no event later than five (5) days after the sending or filing
thereof, copies of any proxy statements, financial statements or reports that the Borrower has made
generally available to its shareholders; copies of any regular, periodic and special reports or
registration statements or prospectuses that the Borrower files with the United States Securities
and Exchange Commission;



(x) During the period commencing on the Effective Date and ending on the Initial Funding Date,
as soon as available and in no event later than forty-five (45) days after the last day of each
fiscal quarter, a copy of the Financial Statements of the Purchased Assets (prepared on a
consolidated and consolidating basis) for such fiscal quarter and for the fiscal year to date;



(xi) During the period commencing on the Effective Date and ending on the Initial Funding
Date, as soon as available and in no event later than ninety (90) days after the close of each
fiscal year, copies of the consolidated and consolidating Financial Statements of the Purchased
Assets for such year, audited (as to the consolidated Financial Statements) by an independent
certified public accountants of recognized national standing;



(xii) During the period commencing on the Effective Date and ending on the Initial Funding
Date, as soon as available and in no event later than thirty (30) days after the last day of each
fiscal month, a copy of the consolidated and consolidating Financial Statements of the Purchased
Assets for such month and for the fiscal year to date;



(xiii) As soon as possible and in no event later than ten (10) days prior to the acquisition
by any Borrower Party of any leasehold or ownership interest in real property, a written supplement
to Schedule 4.01(h);



(xiv) Without derogation of the Borrower’s obligation under Section 5.02(k), as soon
as possible and in no event later than five (5) Business Days after the effectiveness thereof, any
material change in accounting policies of or financial reporting practices by the Borrower Parties;
and


 


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(xv) Such other instruments, agreements, certificates, opinions, statements, documents and
information relating to the Properties, operations or condition (financial or otherwise) of the
Loan Parties, and compliance by the Borrower with the terms of this Agreement and the other Credit
Documents as the Administrative Agent, the Security Trustee or any Lender may from time to time
reasonably request.



The Borrower hereby acknowledges that the Administrative Agent will make available to the Lenders
and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder
(the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms.
From and after the date of receipt of any Public Lender Notice, the Borrower agrees that (w) all
Borrower Material that may be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrower shall be deemed to
have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information (although it may be
sensitive and proprietary) with respect to the Borrower Parties or their securities for purposes of
United States Federal and state security laws; (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and
(z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor”.




(b) Books and Records. The Loan Parties shall at all times keep proper books of
record and account in which full, true and correct entries will be made of their transactions in
accordance with GAAP.



(c) Inspections. Except as limited by Nevada Gaming Commission Regulation 6.130 or
the Borrower’s approved system of internal controls governing mandatory count procedures and the
persons who may participate therein, the Loan Parties shall permit the Administrative Agent, the
Security Trustee and each Lender, or any agent or representative thereof, upon reasonable notice
and during normal business hours so long as no Event of Default shall have occurred and be
continuing and otherwise at any time as the Administrative Agent, the Security Trustee and any
Lender may determine with or without prior notice to the Borrower, to visit and inspect any of the
properties and offices of the Loan Parties, to conduct audits of any or all of the Collateral, to
examine the books and records of the Loan Parties and make copies thereof, and to discuss the
affairs, finances and business of the Loan Parties with, and to be advised as to the same by, their
officers, auditors and accountants, all at such times and intervals as the Administrative Agent,
the Security Trustee or any Lender may request, all at the Borrower’s expense.



(d) Insurance. The Loan Parties shall:



(i) Carry and maintain (A) insurance during the term of this Agreement of the types and in the
amounts customarily carried from time to time by others engaged in substantially the same business
as such Person and operating in the same geographic area as such Person, including, but not limited
to, business interruption, fire, liability, property damage and worker’s compensation, (B) if
requested by the Administrative Agent, flood


 


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insurance with respect to real property Collateral in amounts and subject to deductibles and
other terms as may be reasonably acceptable to the Administrative Agent, (C) insurance required by
any Real Property Security Documents or the Grand Victoria Vessel Security Document, (D) fire and
usual marine risks (including hull and machinery and excess risks), (E) protection and indemnity
risks and (F) any other risks against which the Administrative Agent considers, having regards to
practices and other circumstances prevailing at the relevant time, it would in the reasonable
opinion of the Administrative Agent be reasonable for the Borrower Parties to insure and which are
specified by the Administrative Agent by notice to the Borrower;




(ii) Furnish to any Lender, upon written request, full information as to the insurance
carried;



(iii) Carry and maintain each policy for such insurance with (A) a company which is rated A or
better by A.M. Best and Company at the time such policy is placed and at the time of each annual
renewal thereof or (B) any other insurer which is satisfactory to the Administrative Agent; and



(iv) Obtain and maintain endorsements acceptable to the Administrative Agent for such
insurance (including form CF1218) naming the Collateral Agent, the Administrative Agent, the
Security Trustee and the Lenders as additional insureds and the Collateral Agent as mortgagee and
lender’s loss payee and including mortgagee’s and lender’s loss payable endorsements;



provided, however, that if any Loan Party shall fail to maintain insurance in
accordance with this Section 5.01(d), or if any Loan Party shall fail to provide the
required endorsements with respect thereto, the Administrative Agent shall have the right (but
shall be under no obligation) to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent for all costs and expenses of procuring such insurance.




(e) Governmental Charges and Other Indebtedness. Each Loan Party shall promptly pay
and discharge when due (i) all Taxes and other Governmental Charges, (ii) all Indebtedness which,
if unpaid, could become a Lien upon the property of such Loan Party and (iii) subject to any
subordination provisions applicable thereto, all other Indebtedness which in each case, if unpaid,
could be reasonably likely to have a Material Adverse Effect, except such Taxes, Governmental
Charges and Indebtedness as may in good faith be contested or disputed, or for which arrangements
for deferred payment have been made; provided that in each such case appropriate reserves
are maintained in accordance with GAAP and no material property of any Loan Party is at impending
risk of being seized, levied upon or forfeited.



(f) Use of Proceeds. The Borrower shall use the proceeds of the Loans (i) to provide
a portion of the financing for the Acquisition, (ii) to refinance certain existing Indebtedness of
the Loan Parties, (iii) to pay fees and expenses incurred in connection with the Transactions and
(iv) to provide for the ongoing working capital and other general corporate purposes of the Loan
Parties.


 


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(g) General Business Operations. Each of the Loan Parties shall (i) preserve, renew
and maintain in full force its corporate, partnership or limited liability company existence and
good standing under the Governmental Rules of the jurisdiction of its organization and all of its
rights, licenses and permits (including all tribal, gaming, horse racing and video lottery licenses
and permits), leases, qualifications, privileges franchises and other authority reasonably
necessary to the conduct of its business, (ii) conduct its business activities in compliance with
all Requirements of Law (including all Gaming Laws and tribal, horse racing and video lottery laws)
and Contractual Obligations applicable to such Person except, in each case, where any failure,
either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (iii) keep all property useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted and from time to time make, or cause to be made, all
necessary and proper repairs, except, in each case, where any failure, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect, (iv) subject to
the Borrower’s commercially reasonable judgment, maintain, preserve and protect all of its rights
to enjoy and use material trademarks, trade names, service marks, patents, copyrights, licenses,
leases, franchise agreements and franchise registrations and (v) conduct its business in an orderly
manner without voluntary interruption except where any failure could not reasonably be expected to
have a Material Adverse Effect. No Loan Party shall change its jurisdiction of formation.



(h) Compliance with Laws. Each Loan Party shall comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority (including, without
limitation, all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and the inventory of each Loan Party
shall comply with the Fair Labor Standards Act.



(i) New Subsidiaries. The Borrower shall, at its own expense promptly, and in any
event within ten (10) Business Days, after the formation of or as of the date of the acquisition of
any Subsidiary (A) notify the Administrative Agent of such event in writing (to the extent notice
has not already been provided in accordance with Section 5.01(a)(vii)), (B) cause such
Subsidiary to become a party to the Guaranty, the Security Agreement and each other applicable
Security Document in accordance with the terms thereof, (C) deliver (or cause the appropriate
Person to deliver) to the Collateral Agent all stock certificates and other instruments
constituting Collateral thereunder free and clear of all adverse claims, accompanied by undated
stock powers or other instruments of transfer executed in blank (and take such other steps as may
be requested by the Collateral Agent or the Administrative Agent to perfect the Collateral Agent’s
first priority Lien in such Collateral consisting of Equity Securities in compliance with any
applicable laws of jurisdictions outside of the United States), (D) cause each document (including
each Uniform Commercial Code financing statement and each filing with respect to intellectual
property owned by each new Subsidiary) required by law or requested by the Collateral Agent or the
Administrative Agent to be filed, registered or recorded in order to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a valid, legal and perfected
first-priority security interest in and lien on the Collateral subject to the Security Documents to
be so filed, registered or recorded and evidence thereof delivered to the Collateral Agent, (E)
deliver (or cause the appropriate Person to deliver) the Organizational Documents,
certificates, resolutions and other documents that would have been required of such Subsidiary
under clause (b) of Schedule 3.01 if such Subsidiary had been the Borrower on the Effective
Date and (F) deliver an opinion of counsel in form and substance reasonably satisfactory to the
Administrative Agent with respect to each new Guarantor, the pledge of the Equity Securities of
each Subsidiary, and the other matters set forth in this Section 5.01(i).


 


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(j) Appraisals. During the existence of an Event of Default or upon the written
request of the Administrative Agent (for itself or upon request of any Lender, without duplication)
acting pursuant to any Requirement of Law, the Borrower agrees that the Administrative Agent may,
at the expense of the Borrower, commission an appraisal of any property (i) to which any Loan Party
holds legal title and (ii) which is encumbered by any Security Document.



(k) Additional Collateral. If at any time from and after the Effective Date, the
Borrower or any Subsidiary acquires any fee or leasehold interest in real property, the Borrower or
such Subsidiary shall promptly deliver to the Administrative Agent, at its own expense, all
documentation and information in form and substance reasonably satisfactory to the Collateral Agent
(including any appraisals, surveys and environmental reports) to assist the Collateral Agent in
obtaining deeds of trust or mortgages on such additional real property and ALTA policies of title
insurance, with such endorsements as the Collateral Agent may reasonably require, issued by a
company and in form and substance satisfactory to the Administrative Agent, in an amount equal to
the principal amount of the Total Revolving Loan Commitment on the Initial Funding Date plus the
then outstanding aggregate principal amount of the Terms Loans, insuring the Collateral Agent’s
Lien on such additional real property Collateral to be of first priority, subject only to such
exceptions as the Collateral Agent shall approve in its reasonable discretion, with all costs
thereof to be paid by the Borrower or such Subsidiary. If at any time from and after the Effective
Date, the Borrower or any Subsidiary acquires any vessel (including the Grand Victoria Vessel), the
Borrower or such Subsidiary shall execute, deliver and record, at its own expense, as soon as
possible all documentation and information necessary or appropriate, as determined by the Security
Trustee, in form and substance reasonably satisfactory to the Collateral Agent to provide the
Security Trustee a first preferred mortgage on such vessel, subject only to such exceptions as the
Administrative Agent shall approve in its reasonable discretion, with all costs thereof to be paid
by the Borrower or such Subsidiary.



(l) Rate Contracts. No later than 90 days after the Initial Funding Date, the
Borrower shall enter into, and shall maintain in full force and effect, one or more Lender Rate
Contracts with respect to the Indebtedness evidenced by this Agreement reasonably satisfactory to
the Administrative Agent, which agreements shall provide coverage in a notional amount equal to at
least 50% of the Effective Amount of the Term Loans (as the same may be reduced from time to time
pursuant to repayments under Section 2.01(g)(iii) and prepayments under Section
2.06).



(m) Acquisition. The Loan Parties shall use commercially reasonable efforts to
consummate the Acquisition as soon as possible, and, in any event, the Loan Parties shall cause the
Acquisition to be consummated no later than June 30, 2011.



5.02. Negative Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of any Commitment remains in
force, the Borrower will comply, and will cause compliance by the other Loan Parties,
with the negative covenants set forth in this Section 5.02, unless the Required Lenders
shall otherwise consent in writing.


 


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(a) Indebtedness. None of the Loan Parties shall create, incur, assume or permit to
exist any Indebtedness or engage in any off-balance sheet finance transaction or other similar
transaction except for the following (“Permitted Indebtedness”):



(i) Indebtedness of the Loan Parties under the Credit Documents;



(ii) Indebtedness of the Loan Parties listed in Schedule 5.02(a) and existing on the
date of this Agreement and any Indebtedness of the Loan Parties under initial or successive
refinancings of any Indebtedness permitted by this Section 5.02(a)(ii); provided
that (A) the principal amount of any such refinancing does not exceed the principal amount of the
Indebtedness being refinanced and (B) the material terms and provisions of any such refinancing
(including maturity, redemption, prepayment, default and subordination provisions) are no less
favorable to the applicable Loan Party and the Lenders than the Indebtedness being refinanced;



(iii) Indebtedness of the Loan Parties under Rate Contracts permitted by Section
5.02(l);



(iv) Indebtedness of the Loan Parties with respect to surety, appeal, indemnity, performance
or other similar bonds in the ordinary course of business (including surety or similar bonds issued
in connection with the stay of a proceeding of the type described in Section 6.01(h));



(v) Guaranty Obligations of any Loan Party in respect of Permitted Indebtedness of any other
Loan Party;



(vi) Indebtedness owing to any other Loan Parties; provided that the Investment
constituting such Indebtedness is permitted by Section 5.02(e)(iii);



(vii) purchase money Indebtedness and Capital Lease obligations in an aggregate principal
amount not to exceed $750,000 at any one time outstanding;



(viii) During the period commencing on the Effective Date and ending on the earlier of (A)
June 30, 2011 and (B) two Business Days prior to Initial Funding Date, Indebtedness in an aggregate
amount not to exceed $7,900,000 owing by any Loan Party to Nevada State Bank; and



(ix) Subordinated Obligations incurred after the Effective Date; provided that such
Subordinated Obligations and the documentation for such Subordinated Obligations are reasonably
satisfactory to the Required Lenders (but in any event, the maturity of such Subordinated
Obligations shall be no earlier than a date that is six (6) months after the Maturity Date and such
Indebtedness shall have no principal payments prior to a date that is six (6) months after the
Maturity Date).



 


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(b) Liens. No Loan Party shall create, incur, assume or permit to exist any Lien
or Negative Pledge on or with respect to any of its Property, whether now owned or hereafter
acquired, except for the following (“Permitted Liens”):



(i) Liens in favor of the Collateral Agent, the Administrative Agent, the Security Trustee or
any Lender securing the Obligations and Negative Pledges under the Credit Documents;



(ii) Liens listed in Schedule 5.02(b) and existing on the date of this Agreement and
any replacement Liens (covering the same or a lesser scope of Property) in respect of replacement
Indebtedness permitted under Section 5.02(a)(ii);



(iii) Liens for Taxes or other Governmental Charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate proceedings and have not
proceeded to judgment; provided that adequate reserves for the payment thereof have been
established in accordance with GAAP and no Property of any Loan Party is subject to impending risk
of loss or forfeiture by reason of nonpayment of the obligations secured by such Liens;



(iv) statutory Liens, possessory liens of carriers and warehousemen, materialmen Liens,
mechanic’s Liens and landlord Liens, in each case arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested in good faith by appropriate
proceedings, provided that, if delinquent, adequate reserves have been set aside with
respect thereto in accordance with GAAP and, by reason of nonpayment, no Property of any Loan Party
is subject to a material impending risk of loss or forfeiture;



(v) Deposits under workers’ compensation, unemployment insurance and social security laws or
to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety, appeal or customs bonds or to
secure indemnity, performance or other similar bonds in the ordinary course of business; and



(vi) Purchase money Liens and associated Negative Pledges incurred with respect to property
acquired using the proceeds of Indebtedness and Capital Leases permitted under Section
5.02(a)(vii);



(vii) Liens incurred in connection with the extension, renewal or refinancing of the
Indebtedness secured by the Liens described in Section 5.02(b)(ii) or (vi) above;
provided that any extension, renewal or replacement Lien (A) is limited to the Property
covered by the existing Lien and (B) secures Indebtedness which is no greater in amount and has
material terms no less favorable to the Lenders than the Indebtedness secured by the existing Lien;



(viii) leases or subleases granted to others (in the ordinary course of business consistent
with past practices) not interfering in any material respect with the ordinary conduct of the
business or operations of any Loan Party;


 


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(ix) easements, rights-of-way, restrictions, minor defects, encroachments or irregularities in
title and other similar charges or encumbrances not interfering in any material respect with the
ordinary conduct of the business of any Loan Party;



(x) deposits in the ordinary course of business to secure liabilities to insurance carriers,
lessor, utilities and other service providers;



(xi) Liens on the real property subject to any of the Real Property Security Documents
identified in the ALTA title policy received by the Administrative Agent (in form and substance
reasonably satisfactory to the Administrative Agent) relating to such real property;



(xii) Liens in favor of Nevada State Bank in connection with Indebtedness permitted by
Section 5.02(a)(viii);



(xiii) bankers liens and rights of setoff with respect to customary depository arrangements
entered into in the ordinary course of business; and



(xiv) Liens arising by reason of security for surety or appeal bonds in the ordinary course of
business of any Loan Party;



provided, however, that the foregoing exceptions shall not permit any Lien on any
Equity Securities issued by any Loan Party, except for Liens in favor of the Collateral Agent
securing the Obligations (or any guaranty thereof).




(c) Asset Dispositions. No Loan Party shall, directly or indirectly, sell, lease,
convey, transfer or otherwise dispose (including, without limitation, via any sale and leaseback
transaction) of any of its Property, whether now owned or hereafter acquired, except for the
following:



(i) Sales by the Loan Parties of inventory in the ordinary course of their businesses
(excluding sales of inventory by any Loan Party, directly or indirectly, to another Loan Party);



(ii) Sales or disposals by the Loan Parties of damaged, worn-out or obsolete equipment in the
ordinary course of their businesses for not less than fair market value, if any;



(iii) Sales or other dispositions by any Loan Party of Investments permitted by Section
5.02(e)(ii) for not less than fair market value; provided that no Event of Default
shall have occurred and be continuing and the proceeds of such sale or other disposition are
retained as working capital with such Loan Party;



(iv) Sales or other dispositions of assets and property (A) by the Borrower to any Guarantor
or any other Borrower and (B) by any Guarantor to the Borrower or any other Guarantor;


 


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(v) Transfers permitted by Section 5.02(b), Section 5.02(d), Section
5.02(e) and Section 5.02(f);



(vi) Sales or other dispositions the Net Proceeds of which (x) do not exceed $500,000 in the
aggregate in any fiscal year and (y) are applied to the prepayment of the Obligations or otherwise
utilized to the extent required by Section 2.06(c)(iv); and



(vii) Sale or condemnation by City of the Rising Sun of approximately twenty-five (25) acres
of land of the Grand Victoria Casino & Resort delineated as “24-Acres Excess Land” in the map
attached as Exhibit N, the Net Proceeds of which are applied to the prepayment of the
Obligations or otherwise utilized to the extent required by Section 2.06(c)(iv) or
Section 2.06(c)(vii);



provided that nothing herein shall be construed to permit the sale, conveyance, transfer or
other disposition of (x) any Equity Securities of any of the Borrower’s Subsidiaries (other than in
the creation of the Lien thereon in favor of the Collateral Agent pursuant to the Security
Documents).




(d) Mergers, Acquisitions, Etc. No Loan Party shall reorganize, recapitalize or
consolidate with or merge into any other Person or permit any other Person to merge into it,
acquire any Person as a new Subsidiary or acquire all or substantially all of the assets, or any
identifiable business unit or division, of any other Person, except for the following:



(i) the Borrower and the other Loan Parties may merge with each other; provided that
(A) no Event of Default shall have occurred and be continuing or would result after giving effect
to any such merger and (B) in any such merger involving the Borrower and another Loan Party, the
Borrower is the surviving Person;



(ii) a merger or consolidation of a Person into the Borrower or into a Guarantor which
constitutes an acquisition permitted by Section 5.02(d)(iv); provided that no
Default shall have occurred and be continuing or would result after giving effect to any such
merger;



(iii) the Acquisition; and



(iv) Acquisitions by the Borrower or a Guarantor of any Person or the assets of a Person as a
new Subsidiary or of all or substantially all of the assets of any other Person or identifiable
business unit or division of any other Person (in each case, the “Proposed Target”);
provided that:



(A) No Default has occurred and is continuing on the date of, or will result after giving
effect to, any such acquisition (actually and on a pro forma basis);



(B) The Proposed Target is in the same or similar line of business as the Borrower;



(C) The acquisition of the Proposed Target shall be completed as a result of an arm’s length
negotiation (i.e. on a non-hostile basis);


 


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(D) The acquisition of the Proposed Target shall be consummated, in all material respects, in
accordance with all applicable Governmental Rules;



(E) The Proposed Target’s earnings before interest, taxes, depreciation and amortization
(calculated in the same manner as Adjusted EBITDA) for the last twelve months ending as of closing
of such acquisition is not less than zero;



(F) The Borrower has delivered to the Administrative Agent, (1) financial statements of the
subject of such acquisition (or, in the case of assets constituting less than all of the assets of
a Person, the equivalent of financial statements with respect to such assets) to the extent
available, but in no event for less than the immediately preceding twelve months (or such other
period of time agreed to by the Administrative Agent in its sole discretion), and (2) pro forma
financial statements reflecting the combined projected performance of the Borrower Parties during
the 12 months immediately following consummation of such transaction, certified to the
Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form
and detail reasonably acceptable to the Administrative Agent, which projections shall show that
such acquisition will not result in any Default hereunder;



(G) No Proposed Target shall be organized or domiciled under the law of any jurisdiction
outside the United States, and no Proposed Target shall have more than 15% of its assets or annual
revenues based in or from outside of the United States or Canada (as determined from the most
recently available financial information for the Proposed Target);



(H) The Collateral Agent and the Security Trustee (as applicable) shall hold a perfected,
first priority security interest in and lien on all of the assets directly or indirectly acquired
by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the
Proposed Target and, if the Proposed Target survives such transaction as a separate Subsidiary, any
Equity Securities in the Proposed Target) to the extent required by Section 5.01(i);



(I) If such Proposed Target remains a separate Subsidiary, all action required of such
Subsidiary and of Loan Parties under Section 5.01(i) shall be completed substantially
concurrently with the consummation of such Acquisition; and



(J) The consideration paid or payable in cash (including any earn-out or similar contingent
consideration) in connection with such acquisition, when taken together with each other Permitted
Acquisition consummated after the Effective Date shall not exceed $2,500,000 in the aggregate.



(e) Investments. None of the Loan Parties shall make any Investment except for
Investments in the following:



(i) Investments by the Loan Parties in cash and Cash Equivalents;



(ii) Investments listed in Schedule 5.02(e) existing on the date of this Agreement;


 


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(iii) Investments by the Loan Parties in each other; provided that any Investments by
the Borrower or a Subsidiary constituting Indebtedness of another Loan Party shall be evidenced by
one or more Pledged Intercompany Notes subject to a first perfected security interest in favor of
the Administrative Agent and in the Administrative Agent’s possession; and



(iv) Investments consisting of loans to employees, officers and directors in the ordinary
course of business in an aggregate amount not exceeding $100,000 at any one time outstanding;



(v) Investments permitted by Section 5.02(d);



(vi) Deposit accounts; provided that such Investments are subject to a Control
Agreement;



(vii) Extensions of trade credit in the ordinary course of business to customers of the Loan
Parties;



(viii) Investments received in connection with the settlement of a bona fide dispute with
another Person after making reasonable efforts to collect cash in respect thereof; and



(ix) Investments not exceeding $2,500,000 in the aggregate during the term of this Agreement
in connection with entities formed by any Loan Party for purposes of entering into any management
agreement for gaming facilities.



(f) Dividends, Redemptions, Etc. No Loan Party shall make any Distributions or set
apart any sum for any such purpose except as follows:



(i) Any Subsidiary of the Borrower may pay dividends on its Equity Securities to the Borrower
or any intervening Subsidiary;



(ii) The Borrower may declare and pay dividends or make other Distributions with respect to
its Equity Securities payable solely in shares of Qualified Equity Securities;



(iii) The Borrower may purchase fractional shares of its capital stock arising out of stock
dividends, splits or combinations or mergers, consolidations or other acquisitions and pay cash in
lieu of fractional shares upon the exercise of warrants, options or other securities convertible
into or exercisable for capital stock of the Borrower;



(iv) The Borrower may make any Distribution made in connection with the withholding of Equity
Securities of the Borrower or other withholdings to allow any future, present or former employee,
director or consultant of the Loan Parties to meet his or her tax withholding obligations that
arise in connection with an award pursuant to any management equity plan or stock option plan or
any other management or employee benefit plan or agreement; and


 


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(v) The Borrower may repurchase Equity Securities or Indebtedness of any Borrower Party to the
extent required by a Gaming Board for not more than the fair market value thereof in order to avoid
the suspension, revocation or denial by a Gaming Board of a gaming license or other authorization
necessary to the ownership, construction, maintenance, lease, financing or operation of a gaming
business by a Borrower Party.



(g) Change in Business. No Loan Party shall engage, either directly or indirectly
through Affiliates, in any business different from the business of the Borrower as of the Effective
Date.



(h) Payments of Indebtedness, Etc. No Loan Party shall:



(i) prepay, redeem, purchase, defease, acquire or otherwise satisfy (or offer to redeem,
purchase, acquire or otherwise satisfy) in any manner prior to the scheduled payment thereof any
Indebtedness (including any Subordinated Obligations) or lease obligations of any Loan Party (other
than the Obligations); or make any payment or deposit any monies, securities or other property with
any trustee or other Person that has the effect of providing for the satisfaction (or assurance of
any satisfaction) of any Indebtedness (including any Subordinated Obligations) of any Loan Party
prior to the date when due or otherwise to provide for the defeasance of any such Indebtedness;



(ii) pay or prepay any principal, premium, interest or any other amount (including sinking
fund payments) with respect to any Subordinated Obligation (except in each case payments expressly
permitted by the subordination provisions approved by the Administrative Agent and the Required
Lenders pursuant to Section 5.02(a)(ix) and payments expressly approved in writing by the
Required Lenders), or redeem purchase, defease, acquire or otherwise satisfy (or offer to redeem,
purchase, acquire or otherwise satisfy) any Subordinated Obligations (except in each case payments
expressly permitted by the subordination provisions approved by the Administrative Agent and the
Required Lenders pursuant to Section 5.02(a)(ix) and payments expressly approved in writing
by the Required Lenders); or make any payment or deposit any monies, securities or other property
with any trustee or other Person that has the effect of providing for the satisfaction (or
assurance of any satisfaction) of any Subordinated Obligations prior to the date when due or
otherwise to provide for the defeasance of any Subordinated Obligations; or



(iii) Supplement, amend, modify or otherwise change the terms of any document, instrument or
agreement evidencing or governing any Subordinated Obligations.



(i) ERISA.



(i) No Loan Party or any ERISA Affiliate shall (A) adopt or institute any Pension Plan; (B)
take any action which will result in the partial or complete withdrawal, within the meanings of
Sections 4203 and 4205 of ERISA, from a Multiemployer Plan; (C) engage or permit any Person to
engage in any transaction prohibited by Section 406 of ERISA or Section 4975 of the IRC involving
any Pension Plan or Multiemployer Plan which would subject a Loan Party or any ERISA Affiliate to
any tax, penalty or other liability including a liability to indemnify; (D) incur or allow to exist
any accumulated funding deficiency (within


 


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the meaning of Section 412 of the IRC or Section 302 of ERISA); (E) fail to make full payment when due of
all amounts due as contributions to any Pension Plan or Multiemployer Plan; (F) fail to comply with
the requirements of Section 4980B of the IRC or Part 6 of Title I(B) of ERISA; or (G) adopt any
amendment to any Pension Plan which would require the posting of security pursuant to Section
401(a)(29) of the IRC, where singly or cumulatively, the above could have a Material Adverse
Effect; provided, that the Borrower may terminate some or all of the existing employee
benefit plans in respect of the Grand Victoria Casino & Resort and may reinstitute similar benefit
plans for employees of the Grand Victoria Casino & Resort or modify its existing benefit plans to
include such employees.




(ii) No Loan Party shall (A) engage in any transaction prohibited by any Governmental Rule
applicable to any Foreign Plan; (B) fail to make full payment when due of all amounts due as
contributions to any Foreign Plan; or (C) otherwise fail to comply with the requirements of any
Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could
have a Material Adverse Effect.



(j) Transactions With Affiliates. No Loan Party shall enter into or permit to exist
any Contractual Obligation with any Affiliate (other than any other Borrower Party) or engage in
any other transaction with any Affiliate (other than any other Borrower Party) except:



(i) upon terms at least as favorable to such Loan Party as an arms-length transaction with
unaffiliated Persons;



(ii) any Distribution permitted by Section 5.02(f) hereof; and



(iii) the payment of reasonable fees to directors of the Loan Parties who are not employees of
the Loan Parties.



(k) Accounting Changes. No Loan Party shall change (i) its fiscal year (currently
January 1 through December 31) or (ii) its accounting practices or principles except as required by
GAAP.



(l) Rate Contracts. No Loan Party shall enter into any Rate Contract, except (i) Rate
Contracts entered into to hedge or mitigate risks to which such Loan Party has actual exposure
(other than those in respect of Equity Securities of any Loan Party), and (ii) Rate Contracts
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of a Loan Party.



(m) Amendment of Material Documents. No Loan Party shall agree to amend, modify,
supplement or replace any Material Document or any document executed and delivered in connection
therewith, in each case in a manner which could reasonably be expected to adversely affect the
interests of the Administrative Agent, the Security Trustee and the Lenders.



(n) Restrictive Agreements. No Loan Party shall agree to any restriction or
limitation (other than as set forth in this Agreement or the other Credit Documents) on the making
of Distributions or the transferring of assets from any Loan Party to another Loan Party.


 


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(o) Joint Ventures; Non-Wholly-Owned Subsidiaries. No Loan Party shall enter into any
Joint Venture or own any Non-Wholly Owned Subsidiaries (other than GEM and GED).



(p) Sales and Leaseback; Off-Balance Sheet Financing. No Loan Party shall engage in
(i) any Sale and Leaseback transaction with respect to any of its Property of any character,
whether now owned or hereafter acquired or (ii) any off-balance sheet financing or similar
transaction.



(q) Capital Expenditures. No Loan Party shall permit the aggregate amount of Capital
Expenditures made by the Loan Parties in any fiscal year to (i) exceed 5% of total revenues for the
immediately preceding fiscal year or (ii) be less than 1.5% of the total revenues of the
immediately preceding fiscal year; provided that up to $2,000,000 spent to convert hotel
rooms at the Grand Victoria Casino & Resort to suites shall not be included in the calculation of
Capital Expenditures under this Section 5.02(q).



(r) Designated Senior Debt. The Borrower shall not fail to designate the obligations
as senior indebtedness or any equivalent designation pursuant to the documentation for any
Subordinated Obligations.



(s) Subsidiaries. No Loan Party shall form or acquire any Subsidiary or take any
other action that would result in the Borrower or any of its Subsidiaries being organized or
domiciled under the law of any jurisdiction outside the United States.



5.03. Financial Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid, or any portion of any Commitment remains in force, the
Borrower will comply, and will cause compliance, with the following financial covenants, unless the
Required Lenders shall otherwise consent in writing:



(a) Total Leverage Ratio. The Borrower shall not permit the Total Leverage Ratio at
any time from and after the Initial Funding Date to be greater than the ratio set forth opposite
the applicable period below:



	 	 	 	 	 
	 	 	Maximum Total	 
	Period	 	Leverage Ratio	 
	Initial Funding Date through and including
December 31, 2011
	 	 	2.00:1.00	 
	January 1, 2012 through and including
December 31, 2012
	 	 	1.75:1.00	 
	January 1, 2013 and thereafter
	 	 	1.50:1.00	 





 


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(b) Fixed Charge Coverage Ratio. The Borrower shall not permit the Fixed Charge
Coverage Ratio as of the last day of any fiscal quarter, commencing with the first full fiscal
quarter after the Initial Funding Date, to be less than the ratio set opposite the applicable
fiscal quarter below:



	 	 	 	 	 
	 	 	Minimum Fixed	 
	Any Fiscal Quarter Ending	 	Charge Coverage Ratio	 
	Initial Funding Date through and
including December 31, 2013
	 	 	1.10:1.00	 
	March 31, 2014 and thereafter
	 	 	1.20:1.00	 






(c) Minimum Adjusted EBITDA. The Borrower shall not permit, as of the last day of any
fiscal quarter, commencing with the first full fiscal quarter after the Initial Funding Date,
Adjusted EBITDA for the two (2) consecutive fiscal quarter period ending thereon, to be less than
the amount set opposite the applicable fiscal quarter below:



	 	 	 	 	 
	Any Fiscal Quarter Ending	 	Adjusted EBITDA	 
	Initial Funding Date through and including June 30, 2012
	 	$	7,500,000	 
	September 30, 2012 and thereafter
	 	$	9,000,000	 






ARTICLE VI. EVENTS OF DEFAULT.




6.01. Events of Default. The occurrence or existence of any one or more of the
following events set forth in this Section 6.01 shall constitute an “Event of Default”
hereunder.



(a) Non-Payment. Any Loan Party shall (i) fail to pay when due any principal of any
Loan or any L/C Obligation (including any amount due in respect thereof under the Guaranty) or (ii)
fail to pay within three (3) days after the same becomes due, any interest, fees or other amounts
payable under the terms of this Agreement or any of the other Credit Documents (including any
amount due under any Lender Rate Contract and, to the extent not included in clause (i), the
Guaranty); or



(b) Specific Defaults. Any Loan Party shall fail to observe or perform any covenant,
obligation, condition or agreement set forth in Section 5.01(a), Section 5.01(f),
Section 5.01(g), Section 5.01(h), Section 5.01(i), Section 5.01(k),
Section 5.01(l), Section 5.01(m), Section 5.02 or Section 5.03; or



(c) Other Defaults.


 


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(i) Any default shall occur under the Guaranty or any Security Document and such default shall
continue beyond any period of grace provided with respect thereto; or



(ii) any Loan Party shall fail to observe or perform any other covenant, obligation, condition
or agreement contained in this Agreement or any other Credit Document and such failure shall
continue for thirty (30) days after the date of such failure; provided that if such Loan
Party shall have commenced and is diligently pursuing efforts to cure such failure within thirty
(30) days after the date of such failure, such failure shall not constitute an Event of Default
until the earlier of (x) the date such Loan Party is no longer diligently pursuing efforts to cure
such failure and (y) the date sixty (60) days after the date of such failure; or



(d) Representations and Warranties. Any representation, warranty, certificate,
information or other statement (financial or otherwise) made or furnished by or on behalf of any
Loan Party to the Administrative Agent, the Security Trustee or any Lender in or in connection with
this Agreement or any of the other Credit Documents, or as an inducement to the Administrative
Agent, the Security Trustee or any Lender to enter into this Agreement, shall be false, incorrect,
incomplete or misleading in any material respect (or if such representation, warranty, certificate,
information or other statement (financial or otherwise) is qualified by materiality, in any
respect) when made or furnished; or



(e) Cross-Default. (i) Any Borrower Party shall fail to make any payment on account
of any Indebtedness or Contingent Obligation of such Person (other than the Obligations) when due
(whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such
failure shall continue beyond any period of grace provided with respect thereto, if the amount of
such Indebtedness or Contingent Obligation exceeds $750,000 or the effect of such failure is to
cause, or permit the holder or holders thereof to cause, Indebtedness and/or Contingent Obligations
of any Borrower Party (other than the Obligations) in an aggregate amount exceeding $750,000 to
become redeemable, due, liquidated or otherwise payable (whether at scheduled maturity, by required
prepayment, upon acceleration or otherwise) and/or to be secured by cash collateral or (ii) any
Borrower Party shall otherwise fail to observe or perform any agreement, term or condition
contained in any agreement or instrument relating to any Indebtedness or Contingent Obligation of
such Person (other than the Obligations), or any other event shall occur or condition shall exist,
if the effect of such failure, event or condition is to cause, or permit the holder or holders
thereof to cause, Indebtedness and/or Contingent Obligations of any Borrower Party (other than the
Obligations) in an aggregate amount exceeding $750,000 to become redeemable, due, liquidated or
otherwise payable (whether at scheduled maturity, by required prepayment, upon acceleration or
otherwise) and/or to be secured by cash collateral; or



(f) Insolvency; Voluntary Proceedings. Any Borrower Party shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property (other than the appointment of a supervisor pursuant to Chapter
463B of the Nevada Revised Statutes), (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit of its or any of
its creditors, (iv) be dissolved or liquidated in full or in part, (v) become insolvent (as such
term may be defined or interpreted under any applicable statute), or (vi) commence a voluntary


 


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case or other proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or consent to any such relief or to the appointment of or taking possession of its property
by any official in an involuntary case or other proceeding commenced against it, or, in each case,
any analogous procedure or step is taken in any jurisdiction; or




(g) Involuntary Proceedings. Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of any Borrower Party or of all or a substantial part of the property
thereof (other than the appointment of a supervisor pursuant to Chapter 463B of the Nevada Revised
Statutes), or an involuntary case or other proceedings seeking liquidation, reorganization or other
relief with respect to any Borrower Party or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for relief entered or
such proceeding shall not be dismissed or discharged within sixty (60) days of commencement, or, in
each case, any analogous procedure or step is taken in any jurisdiction; or



(h) Judgments. (i) One or more judgments, orders, decrees or arbitration awards
requiring any Borrower Party to pay an aggregate amount of $1,000,000 or more (exclusive of amounts
covered by insurance issued by an insurer not an Affiliate of the Borrower and otherwise satisfying
the requirements set forth in Section 5.01(d)) shall be rendered against any Borrower Party
in connection with any single or related series of transactions, incidents or circumstances and the
same shall not be satisfied, vacated or stayed for a period of twenty (20) consecutive days;
provided that if one or more judgments, orders, decrees or arbitration awards requiring any
Borrower Party to pay an aggregate amount of $2,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of the Borrower and otherwise satisfying the
requirements set forth in Section 5.01(d)) shall be rendered against any Borrower Party in
connection with any single or related series of transactions, incidents or circumstances such
circumstance shall be an Event of Default whether or not the same has been satisfied, vacated or
stayed; (ii) any judgment, writ, assessment, warrant of attachment, Tax lien or execution or
similar process shall be issued or levied against a part of the property of any Borrower Party with
an aggregate value in excess of $1,000,000 and the same shall not be released, stayed, vacated or
otherwise dismissed within sixty (60) days after issue or levy; or (iii) any other judgments,
orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens,
executions or similar processes which, alone or in the aggregate, could reasonably be expected to
have a Material Adverse Effect are rendered, issued or levied; or



(i) Credit Documents. Any of this Agreement, the Notes, the Guaranty, the Fee Letter,
the Security Documents or any other material Credit Document, or any material term thereof shall
cease to be, or be asserted by any Loan Party not to be, a legal, valid and binding obligation of
such Loan Party enforceable in accordance with its terms or shall otherwise cease to be in full
force and effect; or



(j) Security Documents. Any Lien intended to be created by any Security Document on
any asset (other than immaterial assets) shall at any time be invalidated, subordinated or
otherwise cease to be in full force and effect, for whatever reason, or any security interest
purported to be created by any Security Document shall cease to be, or shall be asserted by any
Loan Party not to be, a valid, first priority (except as expressly otherwise

 


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provided in this Agreement or such Security Document) perfected Lien in the
 Collateral covered
thereby, or any Loan Party shall issue, create or permit to be outstanding any Equity Securities
which shall not be subject to a first priority perfected Lien under the Security Documents (other
than Equity Securities not required to be pledged under the Credit Documents); or




(k) ERISA. Any Reportable Event which the Administrative Agent reasonably believes in
good faith constitutes grounds for the termination of any Pension Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Pension Plan shall occur and be continuing
for a period of thirty (30) days or more after notice thereof is provided to the Borrower by the
Administrative Agent, or any Pension Plan shall be terminated within the meaning of Title IV of
ERISA or a trustee shall be appointed by the PBGC to administer any Pension Plan; or



(l) Change of Control. Any Change of Control shall occur; or



(m) Involuntary Dissolution or Split Up. Any order, judgment or decree shall be
entered against any Borrower Party decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of ninety (90) days; or



(n) Other Default. The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Credit Document) under any other Credit Document; or



(o) Guarantors. Any Guarantor shall repudiate or purport to revoke the Guaranty; or



(p) Designated Person. Any Borrower Party shall become a Designated Person; or



(q) Subordinated Obligations. Any trustee for, or any holder of, any of the
Subordinated Obligations asserts in writing that any such Subordinated Obligations (or any portion
thereof) is not subordinated to the Obligations in accordance with its terms or the applicable
subordination agreement (in the case of such other Subordinated Obligations); or any event occurs
which gives the holder or holders of any such Subordinated Obligations (or an agent or trustee on
its or their behalf) the right to declare such Subordinated Obligations due before the date on
which it otherwise would become due, or the right to require the issuer thereof, to redeem,
purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or any
portion of any Subordinated Obligations, or a final judgment is entered by a court of competent
jurisdiction that any such Subordinated Obligations (or any portion thereof) is not subordinated in
accordance with its terms or the applicable subordination agreement (in the case of such other
Subordinated Obligations) to the Obligations; or



(r) Uninsured Loss. The occurrence of any uninsured loss with respect to any property
of any Borrower Party in excess of $1,000,000; or



(s) Unfunded Pension Liabilities. The aggregate amount of Unfunded Pension
Liabilities of the Borrower Parties shall exceed $1,000,000; or


 


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(t) FireKeepers Indenture. The occurrence of any “Default” or “Event of Default”
under the FireKeepers Indenture (as such terms are defined therein); or



(u) Indian Lands. A court of competent jurisdiction shall hold that the real property
on which the FireKeepers Casino is situated is not “Indian lands” as defined in the IGRA; or



(v) Gaming Operations. The loss of or failure to obtain any operating licenses or
other material licenses or permits or the occurrence of any event or circumstance which in any such
case results in the failure to have any material portion of Stockman’s Casino, Grand Victoria
Casino & Resort or FireKeeper’s Casino open to conduct gaming activities for any reason for more
than five (5) consecutive days or which results in the prohibition of the conduct gaming activities
at any of Stockman’s Casino, Grand Victoria Casino & Resort or FireKeeper’s Casino for a period in
excess of five (5) consecutive days; or



(w) Material Contracts. The occurrence of any default under or material breach
(subject to applicable notice and cure provisions) of any Material Contract or the termination of
any Material Contract.



6.02. Remedies. At any time after the occurrence and during the continuance of any
Event of Default (other than an Event of Default referred to in Section 6.01(f) or
6.01(g)), the Administrative Agent may or shall, upon instructions from the Required
Lenders, by written notice to the Borrower, (a) terminate the Commitments, any obligation of the
L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to make Loans, (b)
declare all or a portion of the outstanding Obligations (other than in connection with Lender Rate
Contracts) payable by the Borrower to be immediately due and payable and/or (c) require that the
Borrower Cash Collateralize the Obligations in an amount equal to 105% of the then Effective Amount
of the L/C Obligations, in each case, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived, anything contained herein or in the Notes to
the contrary notwithstanding. Upon the occurrence or existence of any Event of Default described
in Section 6.01(f) or 6.01(g), immediately and without notice, (1) the Commitments,
any obligation of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders
to make Loans shall automatically terminate, (2) the obligation of the Borrower to Cash
Collateralize the Obligations in an amount equal to 105% of the then Effective Amount of the L/C
Obligations shall automatically become effective, which amounts shall be immediately pledged and
delivered to the Administrative Agent as security for the Obligations and (3) all outstanding
Obligations payable by the Borrower hereunder shall, to the extent permitted by applicable law,
automatically become immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, to the extent permitted by applicable
law, anything contained herein or in the Notes to the contrary notwithstanding. In addition to the
foregoing remedies, upon the occurrence or existence of any Event of Default, the Administrative
Agent, the Security Trustee and the Collateral Agent may exercise any other right, power or remedy
available to it under any of the Credit Documents or otherwise by law. Notwithstanding anything to
the contrary in the Credit Documents, all Cash Collateral pledged by the Borrower as contemplated
by the last sentence of Section 2.02(a)(ii)(H), shall first be applied to reimburse the L/C
Issuer in respect of any amounts that a
Lender has failed to fund under Section 2.02(c), then to the remaining L/C Obligations
and then to the remaining Obligations in the manner set forth below:


 


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The proceeds of any sale, disposition or other realization upon all or any part of the Collateral
shall be distributed by the Collateral Agent in the following order of priorities:





First, to the Administrative Agent and the Collateral Agent, pari passu
and ratably, in an amount sufficient to pay in full the costs and expenses
of the Administrative Agent and the Collateral Agent in connection with such
sale, disposition or other realization, including all fees, costs, expenses,
liabilities and advances incurred or made by the Administrative Agent and
the Collateral Agent in connection therewith, including, without limitation,
attorneys’ fees and costs;




Second, to the Lenders in an amount equal to accrued interest then due
and payable under this Agreement and the other Credit Documents (except for
Lender Rate Contracts);




Third, pari passu and ratably, to (i) the Lenders in an amount equal to
the principal amount of the outstanding Loans and L/C Borrowings and to Cash
Collateralize the remaining L/C Obligations on a pro rata basis in
accordance with the then outstanding principal amount of the Loans and L/C
Obligations (with the portion allocated to the Revolving Loans, Swing Line
Loans and L/C Obligations to be applied first to repay the Swing Line Loans
in full, second to repay the Revolving Loans in full and then to Cash
Collateralize the Obligations in an amount equal to the then Effective
Amount of all L/C Obligations) and (ii) to the Lender(s) or their Affiliates
to whom obligations are owed in connection with any Lender Rate Contracts to
the extent of the associated Termination Values of such Lender Rate
Contracts and any interest owing thereon;




Fourth, to the Lenders in an amount equal to any other Obligations
(other than the Obligations related to Lender Rate Contracts not paid under
clause Third above) which are then unpaid;




Fifth, to the Lender Parties in an amount equal to any other
Obligations related to Lender Rate Contracts the terms of which comply with
the Credit Agreement, which are then unpaid; and




Finally, upon payment in full of all of the Obligations, to the
Person(s) legally entitled thereto.



No application of payments will cure any Event of Default, or prevent acceleration, or
continued acceleration, of amounts payable under the Credit Documents, or prevent the
exercise, or continued exercise, of rights or remedies of the Administrative Agent, the
Collateral Agent and the Lenders hereunder or thereunder or at law or in equity.



 


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ARTICLE VII. ADMINISTRATIVE AGENT, COLLATERAL AGENT, SECURITY

TRUSTEE AND RELATIONS AMONG LENDERS.




7.01. Appointment, Powers and Immunities.



(a) Each Lender (on its own behalf or on behalf of any Affiliate of such Lender that is party
to a Lender Rate Contract) hereby appoints and authorizes Wells Fargo Bank, National Association,
as the Administrative Agent, the Collateral Agent and the Security Trustee to act as its agent
hereunder and under the other Credit Documents and as security trustee under the Grand Victoria
Vessel Security Document with such powers as are expressly delegated to the Administrative Agent,
the Collateral Agent and the Security Trustee by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto, and Wells Fargo
Bank, National Association hereby accepts such appointment as Administrative Agent, as Collateral
Agent and as Security Trustee. Each Lender (on its own behalf and on behalf of any Affiliate of
such Lender that is party to a Lender Rate Contract) hereby authorizes the Administrative Agent,
the Collateral Agent and the Security Trustee to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such powers as are set
forth herein or therein, together with such other powers as are reasonably incidental thereto. The
Lead Arranger shall not have any duties or responsibilities or any liabilities under this Agreement
or any other Credit Documents and any amendments, consents, waivers or any other actions taken in
connection with this Agreement or the other Credit Documents shall not require, except to the
extent expressly set forth in Section 8.04(f), the consent of the Lead Arranger, in such
capacity. Neither the Administrative Agent, the Collateral Agent nor the Security Trustee shall
have any duties or responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender (or any Affiliate of such Lender that is party
to a Lender Rate Contract) or have any fiduciary duty to any Lender (or any Affiliate of such
Lender that is party to a Lender Rate Contract). Notwithstanding anything to the contrary
contained herein, neither the Administrative Agent, the Collateral Agent nor the Security Trustee
shall be required to take any action which is contrary to this Agreement or any other Credit
Document or any applicable Governmental Rules. None of the Administrative Agent, the Collateral
Agent, the Security Trustee or any Lender shall be responsible to any other Lender for any
recitals, statements, representations or warranties made by any Loan Party contained in this
Agreement or in any other Credit Document, for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or for any failure by
any Loan Party to perform its obligations hereunder or thereunder. The Administrative Agent, the
Collateral Agent and the Security Trustee may employ agents and attorneys-in-fact and shall not be
responsible to any Lender for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither the Administrative Agent, the Collateral Agent nor
the Security Trustee nor any of their respective directors, officers, employees, agents or advisors
shall be responsible to any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Credit Document or in connection herewith or therewith, except to the
extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have
arisen from its or their own gross negligence or willful misconduct. Except as otherwise provided
under this Agreement, the Administrative Agent, the Collateral Agent and the Security Trustee shall
take such action with respect to the Credit Documents as shall be directed by the Required Lenders
or in the absence of such direction, such action as the
Administrative Agent, the Collateral Agent or the Security Trustee in good faith deems
advisable under the circumstances.


 


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(b) The Collateral Agent, the Security Trustee and any co-agents, co-trustees, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section 7.01(a) for
purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Security Documents, or for exercising any rights and remedies thereunder and hereunder at the
direction of the Collateral Agent or the Security Trustee, shall be entitled to the benefits of all
provisions of this Article VII, Section 8.02 and Section 8.03 as if set
forth in full herein with respect thereto.



(c) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith until such time (and except for so long)
as the Administrative Agent may agree at the request of the Required Lenders to act for the L/C
Issuer with respect thereto; provided, however, that the L/C Issuer shall have all
of the benefits and immunities (i) provided to the Administrative Agent in this Article VII with
respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and agreements for letters
of credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as
used in this Article VII included the L/C Issuer with respect to such acts or omissions, and (ii)
as additionally provided herein with respect to the L/C Issuer.



(d) The Security Trustee shall act on behalf of the Lenders with respect to the Grand Victoria
Vessel and Grand Victoria Vessel Security Document; provided, however, that the
Security Trustee shall have all of the benefits and immunities (i) provided to the Administrative
Agent in this Article VII with respect to any acts taken or omissions suffered by the Security
Trustee as fully as if the term “Administrative Agent” as used in this Article VII included the
Security Trustee with respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the Security Trustee.



7.02. Reliance by the Administrative Agent, Collateral Agent, L/C Issuer and Swing Line
Lender. The Administrative Agent, the Collateral Agent, the Security Trustee, the L/C Issuer
and the Swing Line Lender shall be entitled to rely upon any certificate, notice or other document
(including any cable, telegram, facsimile, e-mail or telex) believed by it in good faith to be
genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons
(including any certificate, notice or other document from a Loan Party that a sale, transfer, or
other disposition of Collateral is permitted by Section 5.02(c)), and upon advice and
statements of legal counsel, independent accountants and other experts selected by the
Administrative Agent, the Collateral Agent and the Security Trustee with reasonable care. As to
any other matters not expressly provided for by this Agreement, the Administrative Agent, the
Collateral Agent and the Security Trustee shall not be required to take any action or exercise any
discretion, but shall be required to act or to refrain from acting upon instructions of the
Required Lenders and shall in all cases be fully protected by the Lenders in acting, or in
refraining from acting, hereunder or under any other Credit Document in accordance with the
instructions of the Required Lenders (or all Lenders if required by Section 8.04), and such
instructions of the Required Lenders (or all the Lenders as the case may be) and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders.


 


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7.03. Defaults. Neither the Administrative Agent, the Collateral Agent nor the
Security Trustee shall be deemed to have knowledge or notice of the occurrence of any Default
unless the Administrative Agent, the Collateral Agent or the Security Trustee has received a
written notice from a Lender or the Borrower, referring to this Agreement, describing such Default
and stating that such notice is a “Notice of Default”. If the Administrative Agent, the Collateral
Agent or the Security Trustee receives such a notice of the occurrence of a Default, the
Administrative Agent, the Collateral Agent or the Security Trustee, as the case may be, shall give
prompt notice thereof to the Lenders. The Administrative Agent, the Collateral Agent and the
Security Trustee shall take such action with respect to such Default as shall be reasonably
directed by the Required Lenders; provided, however, that until the Administrative
Agent, the Collateral Agent or the Security Trustee shall have received such directions, the
Administrative Agent, the Collateral Agent and the Security Trustee may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interest of the Lenders. Notwithstanding anything in the contrary
contained herein, the order and manner in which the Lenders’ rights and remedies are to be
exercised (including, without limitation, the enforcement by any Lender of its Note) shall be
determined by the Required Lenders in their sole discretion.



7.04. Indemnification. Without limiting the Obligations of the Borrower hereunder,
each Lender agrees to indemnify the Administrative Agent, the Collateral Agent and the Security
Trustee, ratably in accordance with its Proportionate Share of all Obligations and Commitments, for
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against the Administrative Agent, the Collateral Agent or the Security
Trustee in any way relating to or arising out of this Agreement or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement
of any of the terms hereof or thereof; provided, however, that no Lender shall be
liable for any of the foregoing to the extent determined by a final, non-appealable judgment of a
court of competent jurisdiction to have arisen from the Administrative Agent’s, the Collateral
Agent’s or the Security Trustee’s gross negligence or willful misconduct. The Administrative
Agent, the Collateral Agent and the Security Trustee shall be fully justified in refusing to take
or in continuing to take any action hereunder unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The obligations of each Lender under
this Section 7.04 shall survive the payment and performance of the Obligations, the
termination of this Agreement and any Lender ceasing to be a party to this Agreement (with respect
to events which occurred prior to the time such Lender ceased to be a Lender hereunder).



7.05. Non-Reliance. Each Lender represents that it has, independently and without
reliance on the Administrative Agent, the Collateral Agent, the Security Trustee or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of the business, prospects, management, financial condition and affairs of the Borrower
Parties and its own decision to enter into this Agreement and agrees that it will, independently
and without reliance upon the Administrative Agent, the Collateral Agent, the Security Trustee or
any other Lender, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own appraisals and decisions in taking or not taking action under this
Agreement. Neither the Administrative Agent, the Collateral Agent nor


 


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the Security Trustee, nor any of their respective Affiliates, directors, officers,
employees,
agents or advisors shall (a) be required to keep any Lender informed as to the performance or
observance by any Loan Party of the obligations under this Agreement or any other document referred
to or provided for herein or to make inquiry of, or to inspect the properties or books of any Loan
Party; (b) have any duty or responsibility to disclose to or otherwise provide any Lender, and
shall not be liable for the failure to disclose or otherwise provide any Lender, with any credit or
other information concerning any Loan Party which may come into the possession of the
Administrative Agent, the Collateral Agent or the Security Trustee or that is communicated to or
obtained by the bank serving as Administrative Agent, Collateral Agent or Security Trustee or any
of their respective Affiliates in any capacity, except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Administrative Agent, the
Collateral Agent or the Security Trustee hereunder or the other Credit Documents; or (c) be
responsible to any Lender for (i) any recital, statement, representation or warranty made by any
Loan Party or any officer, employee or agent of any Loan Party in this Agreement or in any of the
other Credit Documents, (ii) the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any Credit Document, (iii) the value or sufficiency of the
Collateral or the validity or perfection of any of the liens or security interests intended to be
created by the Credit Documents, or (iv) any failure by any Loan Party to perform its obligations
under this Agreement or any other Credit Document.




7.06. Resignation of the Administrative Agent or Collateral Agent. Each of the
Administrative Agent, the Collateral Agent and the Security Trustee may resign at any time by
giving thirty (30) days prior written notice thereof to the Borrower and the Lenders. Upon any
such resignation, the Required Lenders shall have the right to appoint a successor Administrative
Agent, Collateral Agent or Security Trustee, as applicable, which successor Administrative Agent or
Collateral Agent, if not a Lender, shall be reasonably acceptable to the Borrower;
provided, however, that the Borrower shall have no right to approve a successor
Administrative Agent, Collateral Agent or Security Trustee if an Event of Default has occurred and
is continuing. Upon the acceptance of any appointment as the Administrative Agent, the Collateral
Agent or the Security Trustee hereunder by a successor Administrative Agent, Collateral Agent or
Security Trustee, as applicable, such successor Administrative Agent, Collateral Agent or Security
Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, Collateral Agent or Security Trustee, as applicable,
and the retiring Administrative Agent, Collateral Agent or Security Trustee shall be discharged
from the duties and obligations thereafter arising hereunder; provided that the retiring
Administrative Agent, Collateral Agent or Security Trustee shall be discharged from the duties and
obligations arising hereunder from and after the end of such thirty (30) day period even if no
successor has been appointed. If no such successor has been appointed, the Required Lenders shall
act as the Administrative Agent, Collateral Agent or Security Trustee, as applicable, hereunder and
under the other Credit Documents. After any retiring Administrative Agent’s, Collateral Agent’s or
Security Trustee’s resignation hereunder as the Administrative Agent, the Collateral Agent or the
Security Trustee, as applicable, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent, the Collateral Agent or the Security Trustee, as applicable.
In the case of the replacement of the Administrative Agent, the successor Administrative Agent (or
if there is no successor, one of the Lenders appointed by the Required Lenders that accepts such
appointment) shall also simultaneously replace the then existing
Administrative Agent and the then existing Administrative Agent shall be fully released as
“L/C Issuer” and “Swing Line Lender” hereunder pursuant to documentation in form and substance
reasonably satisfactory to the then existing Administrative Agent.


 


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7.07. Collateral Matters.



(a) The Collateral Agent and the Security Trustee are hereby authorized by each Lender,
without the necessity of any notice to or further consent from any Lender, and without the
obligation to take any such action, to take any action with respect to any Collateral or any
Security Document which may from time to time be necessary to perfect and maintain perfected the
Liens of the Security Documents.



(b) The Lenders irrevocably authorize each of the Collateral Agent and the Security Trustee,
at its option and in its discretion, to release (and to execute and deliver such documents,
instruments and agreements as the Collateral Agent may deem necessary to release) any Lien granted
to or held by the Collateral Agent or the Security Trustee upon any Collateral (i) upon termination
of the Commitments and the full Cash Collateralization of the then outstanding L/C Obligations and
the payment in full of all Loans and all other Obligations payable under this Agreement and under
the other Credit Documents (other than contingent indemnification obligations and Obligations in
respect of Lender Rate Contracts); (ii) constituting property of the Loan Parties which is sold,
transferred or otherwise disposed of in connection with any transaction not prohibited by this
Agreement or the Credit Documents; (iii) constituting property leased to the Loan Parties under an
operating lease which has expired or been terminated in a transaction not prohibited by this
Agreement or the Credit Documents or which will concurrently expire and which has not been and is
not intended by the Loan Parties to be, renewed or extended; (iv) consisting of an instrument, if
the Indebtedness evidenced thereby has been paid in full; or (v) if approved or consented to by
those of the Lenders required by Section 8.04. Upon request by the Collateral Agent or the
Security Trustee, the Lenders will confirm in writing the Collateral Agent’s or the Security
Trustee’s authority to release particular types or items of Collateral pursuant to this Section
7.07.



(c) Unless all the Lenders otherwise consent in writing, any and all cash collateral for the
Obligations shall be released to the Borrower, to the extent not applied to the Obligations, only
if (i) the Commitments have been terminated (ii) all Obligations (other than contingent
indemnification obligations and Obligations in respect of Lender Rate Contracts) have been paid in
full and are no longer outstanding, including, without limitation, any L/C Obligations or any other
contingent obligations.



7.08. Performance of Conditions. For the purpose of determining fulfillment by the
Borrower and the other Loan Parties of conditions precedent specified in Sections 3.01 and
3.02 only, each Lender shall be deemed to have consented to, and approved or accepted, or to be
satisfied with each document or other matter sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required under Article III to be
consented to, or approved by or acceptable or satisfactory to, that Lender, unless an officer of
the Administrative Agent who is responsible for the transactions contemplated by the Credit
Documents shall have received written notice from that Lender prior to the making of the requested
Loan or the issuance of the requested Letter of Credit specifying its objection thereto and either
(i) such objection shall not have been withdrawn by written notice to the Administrative Agent or (ii)
in the case of any condition to the making of a Loan, that Lender shall not have made available to
the Administrative Agent that Lender’s Proportionate Share of such Loan or Letter of Credit.


 


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7.09. The Administrative Agent, the Collateral Agent and the Security Trustee in their
Individual Capacities. Each of the Administrative Agent, the Collateral Agent and the Security
Trustee and their respective Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from and generally engage in any kind of banking or other business with any
Loan Party and its Affiliates as though the Administrative Agent were not the Administrative Agent,
L/C Issuer or Swing Line Lender hereunder and as though the Collateral Agent were not the
Collateral Agent hereunder and as though the Security Trustee were not the Security Trustee
hereunder. With respect to Loans, if any, made by the Administrative Agent, the Collateral Agent
or the Security Trustee in its capacity as a Lender, the Administrative Agent, the Collateral Agent
or the Security Trustee, as applicable, in its capacity as a Lender shall have the same rights and
powers under this Agreement and the other Credit Documents as any other Lender and may exercise the
same as though it were not the Administrative Agent, L/C Issuer or Swing Line Lender or the
Collateral Agent, as applicable, and the terms “Lender” or “Lenders” shall include the
Administrative Agent, the Collateral Agent or the Security Trustee, as applicable, in its capacity
as a Lender. Neither the Administrative Agent, the Collateral Agent nor the Security Trustee shall
be deemed to hold a fiduciary, trust or other special relationship with any Lender and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent, the Collateral Agent or the Security
Trustee.



7.10. Collateral Matters/Lender Rate Contracts. Each Lender on its own behalf on
behalf of its Affiliates understands and agrees that (a) counterparties to Lender Rate Contracts
will have the benefits of the Collateral as set forth in the Credit Documents and (b) if the
Obligations are repaid as described in Section 7.07, the Collateral will be released as
described in Section 7.07 and such Lender and its Affiliates will no longer have the
benefits of the Collateral.



7.11. Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower,
the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under Sections 2.02(i), 2.02(j), 2.05, 8.02 and 8.03) allowed in such
judicial proceeding; and


 


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(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.05,
8.02 and 8.03.




7.12. Application of Gaming Laws.



(a) This Agreement, the Security Agreement and the other Credit Documents are subject to
Gaming Laws and approval, if so required, of the applicable Gaming Board. Without limiting the
foregoing, each of the Collateral Agent, the Administrative Agent and the Lender Parties
acknowledges that (i) it is subject to being called forward by the Gaming Board in their
discretion, for licensing or a finding of suitability or to file or provide other information, and
(ii) all rights, remedies and powers in or under this Agreement and the other Credit Documents,
including with respect to the Collateral (including Equity Securities), may be exercised only to
the extent that the exercise thereof does not violate any applicable provisions of the Gaming Laws
and only to the extent that required approvals are obtained from the requisite Gaming Boards.



(b) Each of the Administrative Agent, the Collateral Agent and the Lender Parties agrees to
cooperate with all Gaming Boards in connection with the provision of such documents or other
information as may be requested by such Gaming Boards relating to the Borrower Parties or to the
Credit Documents. The Borrower hereby consents to any such disclosure by the Collateral Agent, the
Administrative Agent and the Lender Parties to any Gaming Board and releases such parties from any
liability for any such disclosure.



(c) If during the existence of an Event of Default hereunder or under any of the other Credit
Documents it shall become necessary, or in the opinion of the Required Lenders advisable, for an
agent, supervisor, receiver or other representative of the Administrative Agent, the Collateral
Agent and the Lender Parties to become licensed under any Governmental Rule as a condition to
receiving the benefit of any Collateral encumbered by the Security Documents or other Credit
Documents or to otherwise enforce the rights of the Administrative Agent and the Lenders under the
Credit Documents, the Borrower hereby agrees to assist the Collateral Agent and the Lender Parties
and any such agent, supervisor, receiver or other representative obtain licenses and to execute
such further documents as may be required in connection therewith.


 


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ARTICLE VIII. MISCELLANEOUS.




8.01. Notices.



(a) Except as otherwise provided herein, all notices, requests, demands, consents,
instructions or other communications to or upon the Borrower, any Lender or the Administrative
Agent or the Collateral Agent under this Agreement or the other Credit
Documents shall be in writing and faxed, mailed, e-mailed or delivered, if to the Borrower or
to the Administrative Agent, the Collateral Agent, the L/C Issuer or the Swing Line Lender, at its
respective facsimile number or address set forth below or, if to any Lender, at the address or
facsimile number specified for such Lender in Part B of Schedule I (or to such
other facsimile number or address for any party as indicated in any notice given by that party to
the other parties). All such notices and communications shall be effective (i) when sent by an
overnight courier service of recognized standing, on the second Business Day following the deposit
with such service; (ii) when mailed, first-class postage prepaid and addressed as aforesaid through
the United States Postal Service, upon receipt; (iii) when delivered by hand, upon delivery; and
(iv) when sent by facsimile transmission or e-mail, upon confirmation of receipt; provided,
however, that any notice delivered to the Administrative Agent, the L/C Issuer or the Swing
Line Lender under Article II shall not be effective until actually received by such Person.



	 	 	 

	The Administrative Agent,
the Collateral Agent, the Security
Trustee, the L/C Issuer and the
Swing Line Lender

	 	For Notices of Borrowing, Notices of Conversion and Notices of Interest
Period Selection:
	 
	 	 
	 

	 	Wells Fargo Bank, National Association

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, California 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com

	 
	 	 
	 

	 	For all other notices:
	 
	 	 
	 

	 	Wells Fargo Bank, National Association

5340 Kietzke Lane

Reno, Nevada 89511

Attention: Erna Stuckey

Tel. No. 775-689-6018

Fax No. 775-689-6026

E-mail: Erna.F.Stuckey@wellsfargo.com





 


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	The Borrower:

	 	Full House Resorts, Inc.

4670 S. Fort Apache Road

Suite 190

Las Vegas, NV 89147

Attention: Mark Miller

Chief Financial Officer/Chief Operating Officer


Tel. No. (702) 221-7800

Fax No. (702) 221-8101

E-mail: mmiller@fullhouseresorts.com
	 
	 	 
	With a Copy to:

	 	Greenberg Traurig, LLP

2375 East Camelback Road, Suite 700

Phoenix, AZ 85016

Attention: Jeffrey H. Verbin

Tel. No. (602) 445-8202

Fax No. (602) 445-8630

E-mail: VerbinJ@GTLaw.com






Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be
given by the Borrower to the Administrative Agent’s office located at the address referred to above
during the Administrative Agent’s normal business hours; provided, however, that
any such notice received by the Administrative Agent after 11:00 a.m. on any Business Day shall be
deemed received by the Administrative Agent on the next Business Day. In any case where this
Agreement authorizes notices, requests, demands or other communications by the Borrower to the
Administrative Agent, the Collateral Agent, the Security Trustee or any Lender to be made by
telephone or facsimile, the Administrative Agent, the Collateral Agent, the Security Trustee or any
Lender may conclusively presume that anyone purporting to be a person designated in any incumbency
certificate or other similar document received by the Administrative Agent, the Collateral Agent,
the Security Trustee or a Lender is such a person.




(b) The Borrower agrees that the Administrative Agent, the Security Trustee and the Collateral
Agent may make any material delivered by the Borrower to the Administrative Agent, the Security
Trustee or the Collateral Agent, as well as any amendments, waivers, consents, and other written
information, documents, instruments and other materials relating to the Borrower or any of its
Subsidiaries, or any other materials or matters relating to this Agreement, the other Credit
Documents or any of the transactions contemplated hereby (collectively, the
“Communications”) available to the Lenders by posting such notices on an electronic
delivery system (which may be provided by the Administrative Agent, the Security Trustee, the
Collateral Agent, an Affiliate of the Administrative Agent, the Security Trustee or the Collateral
Agent, or any Person that is not an Affiliate of the Administrative Agent, the Security Trustee or
the Collateral Agent), such as IntraLinks, The Debt Exchange, Inc, DXSyndicate. or a substantially
similar electronic system (the “Platform”). The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the Platform is provided
“as is” and “as available” and (iii) none of the Administrative Agent, the Security Trustee or the
Collateral Agent nor any of their respective Affiliates warrants the



 


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accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications posted on
the Platform. The Administrative Agent, the Security Trustee and the Collateral Agent and their
respective Affiliates expressly disclaim with respect to the Platform any liability for errors in
transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems
accessing the Communications posted on the Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with the Platform except for
liability determined by a final, non-appealable judgment of a court of competent jurisdiction to be
due to the Administrative Agent’s, the Security Trustee’s or the Collateral Agent’s gross
negligence or willful misconduct. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code defects, is made by
the Administrative Agent, the Security Trustee, the Collateral Agent or any of their respective
Affiliates in connection with the Platform. Each Lender agrees that notice to it (as provided in
the next sentence) (a “Notice”) specifying that any Communication has been posted to the
Platform shall for purposes of this Agreement constitute effective delivery to such Lender of such
information, documents or other materials comprising such Communication. Each Lender agrees (i) to
notify, on or before the date such Lender becomes a party to this Agreement, the Administrative
Agent, the Security Trustee and the Collateral Agent in writing of such Lender’s e-mail address to
which a Notice may be sent (and from time to time thereafter to ensure that the Administrative
Agent, the Security Trustee and the Collateral Agent has on record an effective e-mail address for
such Lender) and (ii) that any Notice may be sent to such e-mail address.




8.02. Expenses. The Borrower shall pay on demand, whether or not any Credit Event
occurs hereunder, (a) all reasonable fees and expenses, including syndication expenses, travel
expenses, attorneys’, consultants’ and experts’ fees and expenses incurred by the Administrative
Agent, the Collateral Agent, the Security Trustee and the Lead Arranger in connection with the
syndication of the facilities provided hereunder, due diligence, the preparation, negotiation,
execution and delivery of, and the exercise of its duties under, this Agreement and the other
Credit Documents, and the preparation, negotiation, execution and delivery of amendments, waivers,
consents, modifications and supplements related to the Credit Documents, (b) all reasonable fees
and expenses of the Administrative Agent, the Collateral Agent, the Security Trustee and the Lead
Arranger in connection with the use of any Platform and (c) all fees and expenses, including
attorneys’ fees and expenses, incurred by the Administrative Agent, the Collateral Agent, the
Security Trustee and the Lenders in the enforcement or attempted enforcement of any of the
Obligations or in preserving any of the Administrative Agent’s, the Collateral Agent’s, the
Security Trustee’s or the Lenders’ rights and remedies (including, without limitation, all such
fees and expenses incurred in connection with any “workout” or restructuring affecting the Credit
Documents or the Obligations or any bankruptcy or similar proceeding involving any Borrower Party).
The obligations of the Borrower under this Section 8.02 shall survive the payment of the
Obligations and the termination of this Agreement.



8.03. Indemnification. To the fullest extent permitted by law, and in addition to any
other indemnity set forth in the Credit Documents, the Borrower agrees to (a) protect, indemnify,
defend and hold harmless the Administrative Agent, the Collateral Agent, the Security Trustee, the
L/C Issuer, the Lead Arranger, the Swing Line Lender, the Lenders and their Affiliates and their
respective directors, officers, employees, attorneys, agents, trustees and advisors (collectively,
“Indemnitees”) from and against any and all liabilities, obligations, losses,


 


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damages, penalties, judgments, costs, disbursements, or expenses of any kind or nature and
from any suits, claims or demands (including in respect of or for reasonable attorneys’ fees and
other expenses) arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to (i) the Credit
Documents or any transaction contemplated thereby or related thereto, including the making of any
Loans, the funding of any Unreimbursed Amounts and any use by the Borrower of any proceeds of the
Loans or the Letters of Credit, (ii) any Environmental Damages, (iii) the Acquisition Documents or
any transaction contemplated thereby or related thereto, including the Acquisition, (iv) any claims
for brokerage fees or commissions in connection with the Credit Documents or the Acquisition
Documents or any transaction contemplated thereby or in connection with the Borrower’s failure to
conclude any other financing, and to reimburse each Indemnitee on demand for all legal and other
expenses incurred in connection with investigating or defending any of the foregoing, (v) the use
of any Platform or (vi) any and all excise, sales or other similar taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Security Documents, including any penalties, claims or other
losses resulting from any delay in paying such excise, sales or other similar taxes and (b)
reimburse each Indemnitee for all reasonable legal fees and other expenses in connection with such
Indemnitee’s investigation or defense of any of the foregoing; provided, however,
that nothing contained in this Section 8.03 shall obligate the Borrower to protect,
indemnify, defend or hold harmless any Indemnitee against any liabilities, obligations, losses,
damages, penalties, judgments, costs, disbursements, or expenses to the extent arising out of the
gross negligence or willful or reckless misconduct of such Indemnitee as determined by a final,
non-appealable judgment of a court of competent jurisdiction. In the case of any investigation,
litigation or proceeding to which the indemnity set forth in this Section 8.03 applies,
such indemnity shall be effective whether or not such investigation, litigation or proceeding is
brought by the Borrower, the holders of the Borrower’s Equity Securities, any creditor of the
Borrower or an Indemnitee and whether not an Indemnitee is otherwise a party thereto. Upon
receiving knowledge of any suit, claim or demand asserted by a third party that the Administrative
Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or any Lender believes is
covered by this indemnity, the Administrative Agent, the Collateral Agent, the Security Trustee,
the Lead Arranger or such Lender, as applicable, shall give the Borrower notice of the matter with
reasonable promptness; provided, however, that the failure of the Administrative
Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or such Lender to so notify
the Borrower shall not relieve the Borrower from its obligations under this Section 8.03 or
result in any liability of the Administrative Agent, Collateral Agent, the Security Trustee, the
Lead Arranger or the Lenders. In connection with any such suit, claim or demand, the
Administrative Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or such Lender
may select its own counsel or request that the Borrower defend such suit, claim or demand, with
legal counsel reasonably satisfactory to the Administrative Agent, the Collateral Agent, the
Security Trustee, the Lead Arranger or such Lender as the case may be, at the Borrower’s sole cost
and expense; provided, however, that the Administrative Agent, the Collateral
Agent, the Security Trustee, the Lead Arranger or such Lender shall have the right to defend, at
the Borrower’s sole cost and expense, any such matter that is in connection with a formal
proceeding instituted by any Governmental Authority having authority to regulate or oversee any
aspect of the Administrative Agent’s, the Collateral Agent’s, the Security Trustee’s, the Lead
Arranger’s or such Lender’s business or that of its Affiliates. The Administrative



 


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Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or such Lender may also
require the Borrower to defend the matter. In the event an Indemnitee (or any of its officers,
directors or employees) appears as a witness in any action or proceeding brought against the
Borrower in which an Indemnitee is not named as a defendant, the Borrower agrees to reimburse such
Indemnitee for all out-of-pocket expenses incurred by it (including reasonable fees and expenses of
counsel) in connection with its appearing as a witness. Any failure or delay of the Administrative
Agent, the Collateral Agent, the Security Trustee, the Lead Arranger or any Lender to notify the
Borrower of any such suit, claim or demand shall not relieve the Borrower of its obligations under
this Section 8.03. No Indemnitee referred to above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Credit Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful or reckless misconduct of such Indemnitee. The Borrower shall
not, without the prior written consent of each Indemnitee affected thereby (which consent will not
be unreasonably withheld), settle any threatened or pending claim or action that would give rise to
the right of any Indemnitee to claim indemnification hereunder unless such settlement (x) includes
a full and unconditional release of all liabilities arising out of such claim or action against
such Indemnitee and (y) does not include any statement as to or an admission of fault, culpability
or failure to act by or on behalf of any Indemnitee. The Borrower shall not be liable for any
settlement of any claim against any of the Indemnitees made without the Borrower’s prior written
consent, which consent shall not be unreasonably withheld or delayed. The obligations of the
Borrower under this Section 8.03 shall survive the payment of the Obligations and the
termination of this Agreement. The obligations of the Loan Parties with respect to Environmental
Damages are (1) separate and distinct from the Obligations described within the Real Property
Security Documents and the Liens and security interests created in the Real Property Security
Documents, and (2) may be enforced against the Loan Parties without regard to the existence of the
Real Property Security Documents and independently of any action with respect to the Real Property
Security Documents.




8.04. Waivers; Amendments. Any term, covenant, agreement or condition of this
Agreement or any other Credit Document may be amended or waived, and any consent under this
Agreement or any other Credit Document may be given, if such amendment, waiver or consent is in
writing and is signed by the Borrower and the Required Lenders (or the Administrative Agent or the
Collateral Agent, in each case on behalf of the Required Lenders with the written approval of the
Required Lenders); provided, however, that:



(a) Any amendment, waiver or consent which would (i) amend the definition of “Required
Lenders”, or modify in any other manner the number or percentage of the Lenders required to make
any determinations or to waive any rights under, or to modify any provision of, this Agreement,
(ii) amend this Section 8.04, (iii) release all or substantially all of the Collateral,
(iv) increase the dollar amounts in Section 2.01(h) or (v) release any Guarantor must be in
writing and signed or approved in writing by all of the Lenders (provided that any
Guarantor may be released without any Lender approval in connection with a sale or other
disposition of the Equity Securities of such Guarantor that is permitted under Section
5.02(c) or (d) or is consented to by the Required Lenders in writing);


 


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(b) Any amendment, waiver or consent which would (i) reduce the principal of or interest on
any Loans or L/C Borrowings or any fees or other amounts payable for the account of the Lenders
hereunder, (ii) extend any date (including the Maturity Date) fixed for any payment of the
principal of or interest on any Loans or any fees or other amounts payable for the account of a
Lender (excluding mandatory prepayments required by Sections 2.06(c)(iii) — (vii)), (iii)
increase the Total Revolving Loan Commitment or the Total Term Loan Commitment (except in each case
as contemplated by Section 2.01(h)) or (iv) amend Section 2.10, must be in writing
and signed or approved in writing by each Lender directly adversely affected thereby;



(c) Any amendment, waiver or consent which increases the Proportionate Share of any Lender
must be in writing and signed by such Lender;



(d) Any amendment, waiver or consent which affects the rights or duties of the Swing Line
Lender under this Agreement must be in writing and signed by the Swing Line Lender;



(e) Any amendment, waiver or consent which affects the rights of any Lead Arranger under
Section 8.02 or Section 8.03 must be in writing and signed by such Lead Arranger;



(f) Any amendment, waiver or consent which affects the rights or duties of the L/C Issuer
under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or
to be issued by it must be in writing and signed by the L/C Issuer;



(g) Any amendment, waiver or consent which affects the rights or obligations of the Security
Trustee must be in writing and signed by the Security Trustee;



(h) Any amendment, waiver or consent which affects the rights or obligations of the
Administrative Agent must be in writing and signed by the Administrative Agent; and



(i) Any amendment, waiver or consent which affects the rights or obligations of the Collateral
Agent must be in writing and signed by the Collateral Agent.



For the avoidance of doubt, the application of the provisions of Section 2.01(b) of the Guaranty or
any similar provisions in any other Credit Document: (1) is automatic to the extent applicable, (2)
is not an amendment or modification of the Guaranty or any other Credit Document and (3) does not
require the consent or approval of any Person.




No failure or delay by the Administrative Agent, the Collateral Agent, the Security Trustee or any
Lender in exercising any right under this Agreement or any other Credit Document shall operate as a
waiver thereof or of any other right hereunder or thereunder nor shall any single or partial
exercise of any such right preclude any other further exercise thereof or of any other right
hereunder or thereunder. Unless otherwise specified in such waiver or consent, a waiver or consent
given hereunder shall be effective only in the specific instance and for the specific purpose for
which given. The Lenders may condition the giving or making of any amendment, waiver or consent of
any term, covenant, agreement or condition of this Agreement or any other Credit Document on
payment of a fee by the Borrower (which may be payable only to the Lenders that consent to such
matters within specified periods).



 


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In connection with any such proposed amendment, modification, waiver or termination requiring the
consent of all Lenders (such proposed amendment, modification, waiver or termination, a
“Proposed Change”), if the consent of the Required Lenders is obtained, but the consent of
other Lenders whose consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 8.04 being referred to as a “Non-Consenting
Lender”), then, so long as the Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower’s request, the Lender that is acting as the Administrative
Agent or an Eligible Assignee that is acceptable to the Administrative Agent shall have the right
with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but
shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting
Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender
that is acting as the Administrative Agent or such Eligible Assignee, all of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
paragraph, the Revolving Loan Commitments, the Revolving Loans, the Term Loan Commitments, the Term
Loans, L/C Advances and participations in Swing Line Loans) for an amount equal to the principal
balance of all Revolving Loans, Term Loans and L/C Advances, and aggregate amounts funded under
Section 2.03(c)(ii) in respect of Swing Line Loans, by the Non-Consenting Lender and all
accrued interest and fees with respect thereto through the date of sale (or such other amounts as
may be agreed upon by the Non-Consenting Lender and the assignee). In such event, such
Non-Consenting Lender agrees to execute an Assignment Agreement to reflect such purchase and sale,
but regardless of whether such Assignment Agreement is executed, such Non-Consenting Lender’s
rights hereunder, except rights under Section 8.03 with respect to actions prior to such
date, shall cease from and after the date of tender by the purchaser of the amount of the purchase
price.




In addition, notwithstanding the foregoing, (x) the Fee Letter may only be amended, modified or
changed, or rights or privileges thereunder waived, only by the parties thereto in accordance with
the respective provisions thereof and (y) each Lender Rate Contract may only be amended, modified
or changed, or rights or privileges thereunder waived, only by the parties thereto in accordance
with the respective provisions thereof.




Any amendment, modification, supplement, termination, waiver or consent pursuant to this
Section 8.04 shall apply equally to, and shall be binding upon, each of the Administrative
Agent, the Collateral Agent, the Security Trustee and the Lenders. Notwithstanding anything to the
contrary herein, any Defaulting Lender shall not have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Proportionate Share of such Defaulting
Lender may not be increased without the consent of such Defaulting Lender.




Notwithstanding anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit Documents against the
Borrower or any of them shall be vested exclusively in, and all actions and proceedings at law in
connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent, the Security Trustee and the Collateral Agent in accordance with Section
6.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent, the Security Trustee or the Collateral Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent, the Security Trustee or the Collateral Agent, as applicable) hereunder and



 


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under the other Credit Documents, (b) the L/C Issuer from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Credit
Documents or (c) any Lender from exercising setoff rights in accordance with Section 8.06
(subject to the terms of Section 2.10); and provided, further, that if at any time there is
no Person acting as Administrative Agent, the Security Trustee or the Collateral Agent hereunder
and under the other Credit Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent, the Security Trustee or the Collateral Agent pursuant to
Section 6.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.10, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.




8.05. Successors and Assigns.



(a) Binding Effect. This Agreement and the other Credit Documents shall be binding
upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, the
Collateral Agent, the Security Trustee, all future holders of the Notes and their respective
successors and permitted assigns, except that no Loan Party may assign or transfer any of its
rights or obligations under any Credit Document (except in connection with a merger or
consolidation permitted by Section 5.02(d)) without the prior written consent of the
Administrative Agent, the Collateral Agent, the Security Trustee and each Lender. Any purported
assignment or transfer by a Loan Party in violation of the foregoing shall be null and void.



(b) Participations. Any Lender may, without notice to or consent of the Borrower, at
any time sell to one or more banks or other financial institutions (“Participants”)
participating interests in all or a portion of any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under this Agreement and
the other Credit Documents (including for purposes of this Section 8.05(b), participations
in L/C Obligations and in Swing Line Loans). In the event of any such sale by a Lender of
participating interests, such Lender’s obligations under this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall remain
the holder of its Notes for all purposes under this Agreement and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any
such sale is effected may require the selling Lender to obtain the consent of the Participant in
order for such Lender to agree in writing to any amendment, waiver or consent of a type specified
in Section 8.04(a)(i), (iv) or (v) or Section 8.04(b)(i) or (ii) but may not
otherwise require the selling Lender to obtain the consent of such Participant to any other
amendment, waiver or consent hereunder. The Borrower agrees that if amounts outstanding under this
Agreement and the other Credit Documents are not paid when due (whether upon acceleration or
otherwise), each Participant shall, to the fullest extent permitted by law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under this Agreement and
any other Credit Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any other Credit Documents;
provided, however, that (i) no Participant shall exercise any rights under this
sentence without the consent of the Administrative Agent, (ii) no Participant shall


 


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have any rights under this sentence which are greater than those of the selling Lender and
(iii) such rights of setoff shall be subject to the obligation of such Participant to share the
payment so obtained with all of the Lenders as provided in Section 2.10(b). The Borrower
also agrees that any Lender which has transferred any participating interest in its Commitment or
Loans shall, notwithstanding any such transfer, be entitled to the full benefits accorded such
Lender under Sections 2.11, 2.12 and 2.13, as if such Lender had not made such transfer.




(c) Assignments. Any Lender may, at any time, sell and assign to any Lender or any
Eligible Assignee (individually, an “Assignee Lender”) all or a portion of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
Section 8.05(c), participations in L/C Obligations and in Swing Line Loans) (such a sale
and assignment to be referred to herein as an “Assignment”) pursuant to an assignment
agreement in substantially the form of Exhibit H (an “Assignment Agreement”),
executed by each Assignee Lender and such assignor Lender (an “Assignor Lender”) and
delivered to the Administrative Agent for its acceptance and recording in the Register;
provided, however, that:



(i) Each Assignee Lender that is a Revolving Lender shall provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer and the Swing Line Lender as
each may require with respect to any continuing obligation to purchase participation interests in
any L/C Obligations or any Swing Line Loans then outstanding;



(ii) Without the written consent of the Administrative Agent and, if no Event of Default has
occurred and is continuing, the Borrower (which consent of the Administrative Agent and the
Borrower shall not be unreasonably withheld), no Lender may make any Assignment (x) of Term Loans
to any Assignee Lender which is not, immediately prior to such Assignment, a Lender hereunder or an
Affiliate thereof or Approved Fund as to such Lender or (y) of Revolving Loan Commitments,
Revolving Loans, L/C Advances and Swing Line Loans to any Assignee Lender which is not, immediately
prior to such Assignment, a Revolving Lender hereunder; and



(iii) Without the written consent of (1) the Administrative Agent, (2) if such Assignment
would result in the Assignee Lender becoming a Revolving Lender, the L/C Issuer, and (3) if no
Event of Default has occurred and is continuing, the Borrower (which consent shall not be
unreasonably withheld or delayed), no Lender may make any Assignment to any Assignee Lender (I)
with respect to any Assignment of a Term Loan (or, to the extent such Assignment is made prior to
the Initial Funding Date, a Term Loan Commitment) and Revolving Loan Commitment, that is less than
One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate or (II) if, after giving
effect to such Assignment, the Term Loan (or, to the extent such Assignment is made prior to the
Initial Funding Date, the Term Loan Commitment) and Revolving Loan Commitment of such Lender or
such Assignee Lender would be less than One Million Five Hundred Thousand Dollars ($1,500,000) in
the aggregate (except that, in each case, a Lender may make an Assignment which reduces its
Revolving Loan Commitment or Term Loan (or, to the extent such Assignment is made prior to the
Initial Funding Date, Term Loan Commitment) to zero without the written consent of the Borrower and
the Administrative Agent except to the extent such written consent is required by Section
8.05(c)(ii) above.


 


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Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from and
after the Assignment Effective Date determined pursuant to such Assignment Agreement, (A) each
Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan Commitment and Loans
as set forth on Attachment 1 to such Assignment Agreement and shall have the rights, duties and
obligations of such a Lender under this Agreement and the other Credit Documents, and (B) the
Assignor Lender thereunder shall be a Lender with a Revolving Loan Commitment and Loans as set
forth on Attachment 1 to such Assignment Agreement or, if the Revolving Loan Commitment and Loans
of the Assignor Lender have been reduced to $0, the Assignor Lender shall cease to be a Lender and
to have any obligation to make any Loan; provided, however, that any such Assignor
Lender which ceases to be a Lender shall continue to be entitled to the benefits of any provision
of this Agreement which by its terms survives the termination of this Agreement. Each Assignment
Agreement shall be deemed to amend Schedule I to the extent, and only to the extent,
necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender
which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of
Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of all or a
portion of the rights and obligations of an Assignor Lender under this Agreement and the other
Credit Documents. On or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Revolving Loan Note or Term Loan Note, if
any, of the Assignor Lender thereunder, a new Revolving Loan Note or Term Loan Note to the order of
each Assignee Lender thereunder that requests such a note (with each new Revolving Loan Note to be
in an amount equal to the Revolving Loan Commitment assumed by such Assignee Lender and each new
Term Loan Note to be in the original principal amount of the Term Loan then held by such Assignee
Lender) and, if the Assignor Lender is continuing as a Lender hereunder, a new Revolving Loan Note
or Term Loan Note to the order of the Assignor Lender if so requested by such Assignor Lender (with
the new Revolving Loan Note to be in an amount equal to the Revolving Loan Commitment retained by
it and the new Term Loan Note to be in the original principal amount of the Term Loan retained by
it. Each such new Revolving Loan Note and Term Loan Note shall be dated the Initial Funding Date,
and each such new Note shall otherwise be in the form of the Note replaced thereby. The Notes
surrendered by the Assignor Lender shall be returned by the Administrative Agent to the Borrower
marked “Replaced”. Each Assignee Lender which was not previously a Lender hereunder and which is
not organized under the laws of the United States or a state thereof shall, within three (3)
Business Days of becoming a Lender, deliver to the Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor
applicable form), as the case may be, certifying in each case that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any United States federal
income taxes or (B) in the case of a Lender that is a Non-Bank Lender, (i) a Non-Bank Certificate
and (ii) two accurate and complete original signed copies of United States Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to
such Lender’s entitlement as of such date to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement, but only if and to the
extent such Lender is legally entitled to do so and if such Lender is unable to, such Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.15) shall not be
entitled to indemnification for such
Taxes under Section 2.12 greater than that to which its assignor was entitled immediately
preceding such Assignment.



 


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Notwithstanding anything to the contrary contained herein, if at any time Wells Fargo assigns all
of its Commitments and Loans pursuant to Section 8.05(c) above, Wells Fargo may, (i) upon
30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five
Business Days’ notice to the Borrower, terminate the Swing Line. In the event of any such
resignation as L/C Issuer or termination of the Swing Line, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Wells Fargo as L/C Issuer or the termination of the Swing Line, as
the case may be. Wells Fargo shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant
to Section 2.02(c)). If Wells Fargo terminates the Swing Line, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such termination, including the right to require the
Lenders to make Base Rate Loans or fund participations in outstanding Swing Line Loans pursuant to
Section 2.03(c).




(d) Register. The Borrower hereby designates the Administrative Agent (the
“Agent”), and the Agent agrees, to serve as the Borrower’s agent, solely for purposes of
this Section 8.05(d), to maintain a register at its address referred to in Section
8.01 (the “Register”) on which it will record the Commitments from time to time of each
of the Lenders, the Loans made by, and Letters of Credit of, each of the Lenders and each repayment
in respect of the principal amount of the Loans and Letters of Credit of each Lender. Failure to
make any such recordation, or any error in such recordation shall not affect the Borrower’s
obligations in respect of such Loans or Letters of Credit. With respect to any Lender, the
transfer of the Commitment of such Lender and the rights to the principal of, and interest on, any
Loan or Letter of Credit made pursuant to such Commitment shall not be effective until such
transfer is recorded on the Register maintained by the Agent. The ownership of such Commitment,
Loans and Letters of Credit prior to such recordation and all amounts owing to the transferor with
respect to such Commitment, Loans and Letters of Credit shall remain owing to the transferor. The
registration of an assignment or transfer of all or part of any Commitment, Loan or Letter of
Credit shall be recorded by the Agent on the Register only upon the acceptance by the Agent of a
properly executed and delivered Assignment Agreement pursuant to Section 8.05(c).
Coincident with the delivery of such an Assignment Agreement to the Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note evidencing such Loan, and
thereupon one or more new Notes in the same aggregate principal amount shall be issued to assigning
or transferor Lender. The Borrower agrees to indemnify the Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties under this Section 8.05(d),
except to the extent caused by the gross negligence or willful misconduct of the Agent.


 


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(e) Registration. Upon its receipt of an Assignment Agreement executed by an Assignor
Lender and an Assignee Lender (and, to the extent required by Section 8.05(c), by
the Borrower and the Administrative Agent) together with payment to the Administrative Agent
by Assignor Lender of a registration and processing fee of $3,500, the Administrative Agent shall
(i) promptly accept such Assignment Agreement and (ii) on the Assignment Effective Date determined
pursuant thereto record the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower. The Administrative Agent may, from
time to time at its election, prepare and deliver to the Lenders and the Borrower a revised
Schedule I reflecting the names, addresses and respective Commitments or Loans of all
Lenders then parties hereto (and in any event Schedule I shall be deemed amended to reflect any
assignment consummated pursuant to the terms of this Agreement or upon any Lender becoming a party
to this Agreement by any other means (including pursuant to a joinder as contemplated by
Section 2.01(h)).



(f) Confidentiality. Subject to Section 8.10, the Administrative Agent and
the Lenders may disclose the Credit Documents and any financial or other information relating to
the Loan Parties to each other or to any potential Participant or Assignee Lender.



(g) Pledges to Federal Reserve Banks; Other Pledges of Notes. Notwithstanding any
other provision of this Agreement, any Lender may at any time assign all or a portion of its rights
under this Agreement and the other Credit Documents to a Federal Reserve Bank. No such assignment
shall relieve the assigning Lender from its obligations under this Agreement and the other Credit
Documents. In the case of any Lender that is a Fund, such Lender may (i) assign or pledge all or
any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any
indenture to which such Lender is a party in support of its obligations to the trustee for the
benefit of the applicable trust beneficiaries, or (ii) pledge all or any portion of the Loans held
by it (and Notes evidencing such Loans) to its lenders for collateral security purpose; provided,
however, no such pledgee under clause (i) or (ii) shall become a Lender hereunder (by foreclosure,
transfer in lieu of foreclosure or otherwise) unless and until it complies with the assignment
provisions of this Agreement to become a Lender hereunder and has received all consents required
hereunder.



(h) True Sale. All participations in the Obligations or any portion thereof, whether
pursuant to provisions hereof or otherwise, are intended to be “true sales” for purposes of
financial reporting in accordance with Statement of Financial Accounting Standards No. 140.
Accordingly, the L/C Issuer or any Lender that sells or is deemed to have sold a participation in
the Obligations (including any participations in Letters of Credit and/or Loans, any participations
described in Section 8.05(b) above and any participations under Section 2.10(b))
(each a “Participation Seller”) hereby agrees that if such Participation Seller receives
any payment in respect of the Obligations to which such participation relates through the exercise
of setoff by such Participation Seller against the Borrower or any other obligor, then such
Participation Seller agrees to promptly pay to the participating party in such participation such
participant’s pro rata share of such setoff (after giving effect to any sharing with the Lenders
under Section 2.10(b) hereof).



(i) Additional Forms. If required by applicable Governmental Rules or otherwise
deemed prudent by the Administrative Agent, the Borrower and each Lender shall prepare, execute and
deliver a completed Form U-1 (or Form G-3, as applicable) for each Lender
(and, if applicable, for each Participant, in which case the applicable Lender shall cause its
Participant to satisfy the requirements of this Section).


 


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8.06. Setoff; Security Interest.



(a) Setoffs By Lenders. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, with the prior consent of the Administrative
Agent but without prior notice to or consent of the Borrower, any such notice and consent being
expressly waived by the Borrower to the extent permitted by applicable Governmental Rules, upon the
occurrence and during the continuance of an Event of Default, to set-off and apply against the
Obligations any amount owing from such Lender to the Borrower. The aforesaid right of set-off may
be exercised by such Lender against the Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment
creditor of the Borrower or against anyone else claiming through or against the Borrower or such
trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off may
not have been exercised by such Lender at any prior time. Each Lender agrees promptly to notify
the Borrower after any such set-off and application made by such Lender; provided, that the
failure to give such notice shall not affect the validity of such set-off and application.



(b) Security Interest. As security for the Obligations, the Borrower hereby grants to
the Administrative Agent and each Lender, for the benefit of the Administrative Agent and the
Lenders, a continuing security interest in any and all deposit accounts or moneys of the Borrower
now or hereafter maintained with such Lender. Each Lender shall have all of the rights of a
secured party with respect to such security interest.



8.07. No Third Party Rights. Nothing expressed in or to be implied from this
Agreement is intended to give, or shall be construed to give, any Person, other than the parties
hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable
right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision
herein.



8.08. Partial Invalidity. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law or any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions of this Agreement nor the
legality, validity or enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.



8.09. Jury Trial. EACH OF THE BORROWER, THE LENDERS, THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT AND THE SECURITY TRUSTEE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
GOVERNMENTAL RULES, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING
HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT.


 


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8.10. Confidentiality. None of the Administrative Agent, the Lead Arranger, the
Collateral Agent, the Security Trustee or any Lender shall disclose to any Person any Confidential
Information, except that the Administrative Agent, the Lead Arranger, the Collateral Agent, the
Security Trustee and any Lender may disclose any such information (a) to its own directors,
officers, employees, auditors, counsel and other advisors and to its Affiliates; (b) to the
Administrative Agent, the Lead Arranger, the Collateral Agent, the Security Trustee or any other
Lender; (c) which is otherwise known or available to the public or which is otherwise known to the
receiving party prior to the time such Confidential Information was delivered to the Administrative
Agent, the Lead Arranger, the Collateral Agent, the Security Trustee or any Lender; (d) if required
or appropriate in any report, statement or testimony submitted to any Governmental Authority having
or claiming to have jurisdiction over the Administrative Agent, the Lead Arranger, the Collateral
Agent, the Security Trustee or such Lender; (e) if required in response to any summons or subpoena;
(f) in connection with any enforcement by the Administrative Agent, the Lead Arranger, the
Collateral Agent, the Security Trustee or the Lenders of their rights under this Agreement or the
other Credit Documents or any litigation among the parties relating to the Credit Documents or the
transactions contemplated thereby; (g) to comply with any Requirement of Law applicable to the
Administrative Agent, the Lead Arranger, the Collateral Agent, the Security Trustee or such Lender;
(h) to any Assignee Lender or Participant or any prospective Assignee Lender or Participant;
provided that such Assignee Lender or Participant or prospective Assignee Lender or
Participant agrees to be bound by the provisions of (or provisions substantially similar to) this
Section 8.10; or (i) otherwise with the prior consent of such Loan Party; provided,
however, that any disclosure made in violation of this Agreement shall not affect the
obligations of the Loan Parties under this Agreement and the other Credit Documents. Nothing in
this Section 8.10 shall limit the use of any Platform as described in Section
8.01(b).



8.11. Counterparts. This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes. Transmission by facsimile, “pdf” or similar
electronic copy of an executed counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart. Any party hereto may request an original counterpart of
any party delivering such electronic counterpart.



8.12. Consent to Jurisdiction. Each of the parties to this Agreement irrevocably
submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of
the United States located in New York, New York and agrees that any legal action, suit or
proceeding arising out of or relating to this Agreement or any of the other Credit Documents may be
brought against such party in any such courts. In addition, the Borrower irrevocably submits to
the non-exclusive jurisdiction of the courts of any State (each a “Real Property State”)
where any real property described in any Real Property Security Agreement is located and the courts
of the United States located in any such Real Property State and agrees that any legal action, suit
or proceeding arising out of or relating to any Real Property Security Agreement related to real
property located in a Real Property State may be brought against such party in any such courts in
such Real Property State. Final judgment against any party in any such action, suit or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the judgment, or in any
other manner provided by law. Nothing in this Section 8.12 shall affect the right of any
party to


 


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commence legal proceedings or otherwise sue any other party in any other appropriate
jurisdiction, or concurrently in more than one jurisdiction, or to serve process, pleadings and
other papers upon any other party in any manner authorized by the laws of any such jurisdiction.
The Borrower agrees that process served either personally or by registered mail shall, to the
extent permitted by law, constitutes adequate service of process in any such suit. Each of the
parties to this Agreement irrevocably waives to the fullest extent permitted by applicable
Governmental Rules (a) any objection which it may have now or in the future to the laying of the
venue of any such action, suit or proceeding in any court referred to in the first sentence above;
(b) any claim that any such action, suit or proceeding has been brought in an inconvenient forum;
(c) its right of removal of any matter commenced by any other party in the courts of the State of
New York or any Real Property State or to any court of the United States; (d) any immunity which it
or its assets may have in respect of its obligations under this Agreement or any other Credit
Document from any suit, execution, attachment (whether provisional or final, in aid of execution,
before judgment or otherwise) or other legal process; and (e) any right it may have to require the
moving party in any suit, action or proceeding brought in any of the courts referred to above
arising out of or in connection with this Agreement or any other Credit Document to post security
for the costs of any party or to post a bond or to take similar action.




8.13. Relationship of Parties. The relationship between the Borrower, on the one
hand, and the Lenders, the Collateral Agent, the Security Trustee and the Administrative Agent, on
the other, is, and at all times shall remain, solely that of borrower and lenders. None of the
Lenders, the Security Trustee, the Collateral Agent or the Administrative Agent shall under any
circumstances be construed to be partners or joint venturers of the Borrower or any of its
Affiliates; nor shall the Lenders, the Collateral Agent, the Administrative Agent nor the Security
Trustee under any circumstances be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with the Borrower or any of its Affiliates, or to owe any fiduciary duty to
the Borrower or any of its Affiliates. The Lenders, the Administrative Agent, the Security Trustee
and the Collateral Agent do not undertake or assume any responsibility or duty to the Borrower or
any of its Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform
the Borrower or any of its Affiliates of any matter in connection with its or their property, any
security held by the Administrative Agent, the Collateral Agent, the Security Trustee or any Lender
or the operations of the Borrower or any of its Affiliates. The Borrower and each of its
Affiliates shall rely entirely on their own judgment with respect to such matters, and any review,
inspection, supervision, exercise of judgment or supply of information undertaken or assumed by any
Lender, the Administrative Agent, the Security Trustee or the Collateral Agent in connection with
such matters is solely for the protection of the Lenders, the Administrative Agent, the Security
Trustee and the Collateral Agent and neither the Borrower nor any of its Affiliates is entitled to
rely thereon.



8.14. Time. Time is of the essence as to each term or provision of this Agreement and
each of the other Credit Documents.



8.15. Waiver of Punitive Damages. Notwithstanding anything to the contrary contained
in this Agreement, each party to this Agreement hereby agrees that it shall not seek from any other
party to this Agreement or from the Lead Arranger any punitive, exemplary or consequential damages
under any theory of liability.


 


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8.16. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Patriot
Act.



8.17. Clarification. Notwithstanding anything to the contrary, the parties hereto
understand and agree that Wells Fargo is acting in various capacities under this Agreement and the
other Credit Documents and therefore shall be permitted to fulfill its roles and manage its various
duties hereunder in such manner as Wells Fargo sees fit and, for the avoidance of doubt, in lieu of
sending notices to itself when acting in different capacities Wells Fargo may keep internal records
regarding all such communications, notices and actions related to this Agreement and the other
Credit Documents in accordance with its past practice.



8.18. NO MANAGEMENT. NOTWITHSTANDING ANY OTHER POSSIBLE CONSTRUCTION OF ANY
PROVISION(S) CONTAINED IN THIS AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT, IT IS AGREED THAT WITHIN
THE MEANING OF IGRA: (A) THE CREDIT DOCUMENTS, INDIVIDUALLY AND COLLECTIVELY, DO NOT AND SHALL NOT
PROVIDE FOR THE MANAGEMENT OF ALL OR ANY PART OF THE GAMING OPERATIONS OF THE NOTTAWASEPPI TRIBE BY
ANY PERSON OTHER THAN THE NOTTAWASEPPI TRIBE OR DEPRIVE THE NOTTAWASEPPI TRIBE OF THE SOLE
PROPRIETARY INTEREST AND RESPONSIBILITY FOR THE CONDUCT OF ITS GAMING OPERATIONS; AND (B) NO LENDER
PARTY (NOR ANY SUCCESSOR, ASSIGN OR AGENT OF ANY LENDER PARTY) WILL EXERCISE ANY REMEDY OR
OTHERWISE TAKE ANY ACTION UNDER OR IN CONNECTION WITH ANY CREDIT DOCUMENTS IN A MANNER THAT WOULD
CONSTITUTE MANAGEMENT OF ALL OR ANY PART OF THE GAMING OPERATIONS OF THE NOTTAWASEPPI TRIBE OR THAT
WOULD DEPRIVE THE NOTTAWASEPPI TRIBE OF THE SOLE PROPRIETARY INTEREST AND RESPONSIBILITY FOR THE
CONDUCT OF ITS GAMING OPERATIONS.



8.19. Gaming Law Limitations. Notwithstanding any provision in any Credit Document,
none of the Lender Parties shall engage in any of the following: planning, organizing, directing,
coordinating, or controlling all or any portion of the Nottawaseppi Tribe’s gaming operations
(collectively, “Management Activities”), including, but not limited to:



(i) the training, supervision, direction, hiring, firing, retention, compensation (including
benefits) of any employee (whether or not a management employee) or contractor;



(ii) any employment policies or practices;



(iii) the hours or days of operation;



(iv) any accounting systems or procedures;



(v) any advertising, promotions or other marketing activities;


 


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(vi) the purchase, lease, or substitution of any gaming device or related equipment or
software, including player tracking equipment;



(vii) the vendor, type, theme, percentage of pay-out, display or placement of any gaming
device or equipment; or



(viii) budgeting, allocating, or conditioning payments of the Nottawaseppi Tribe’s operating
expenses; provided, however, that upon the occurrence of a default, a Lender Party
will not be in violation of the foregoing restriction solely because a Lender Party:



(A) enforces compliance with any term in any Credit Document that does not require the gaming
operation to be subject to any third-party decision-making as to any Management Activities; or



(B) requires that all or any portion of the revenues securing the Loans and other Obligations
be applied to satisfy valid terms of the Credit Documents; or



(C) otherwise forecloses on all or any portion of the property securing the Loans and other
Obligations.



[The first signature page follows.]



 


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IN WITNESS WHEREOF, the Borrower, the Lenders, the Administrative Agent, the Collateral Agent,
the L/C Issuer and the Swing Line Lender have caused this Agreement to be executed as of the day
and year first above written.



	 	 	 	 	 
	 	BORROWER:



FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Mark Miller 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page to Credit Agreement — Full House



 


 









 








	 	 	 	 	 
	 	ADMINISTRATIVE AGENT, COLLATERAL
 AGENT, L/C ISSUER
AND SWING LINE
 LENDER:



WELLS FARGO BANK, NATIONAL
 ASSOCIATION, as
Administrative Agent,
 Collateral Agent, Security
Trustee, L/C Issuer
 and Swing Line Lender

 	 
	 	By:  	/s/ Erna Stuckey
 	 
	 	Name:  	Erna Stuckey 	 
	 	Title:  	Vice President 	 
	 
	 	THE LENDERS:




WELLS FARGO BANK, NATIONAL

ASSOCIATION

 	 
	 	By:  	/s/ Erna Stuckey
 	 
	 	Name:  	Erna Stuckey 	 
	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement — Full House



 


 









 








	 	 	 	 	 
	 	CAPITAL ONE, N.A.

 	 
	 	By:  	/s/ Ross Wales
 	 
	 	Name:  	Ross Wales 	 
	 	Title:  	Sr. Vice President 	 
	 
	 	NEVADA STATE BANK

 	 
	 	By:  	 	 
	 	Name: 	 	 
	 	Title:  	 	 
	 



Signature Page to Credit Agreement — Full House



 


 









 








	 	 	 	 	 
	 	CAPITAL ONE, N.A.

 	 
	 	By:  	 	 
	 	Name:	 	 
	 	Title:	 	 
	 
	 	NEVADA STATE BANK

 	 
	 	By:  	/s/ Rick Thomas
 	 
	 	Name:  	Rick Thomas 	 
	 	Title:  	V.P. 	 
	 



Signature Page to Credit Agreement — Full House




 


 











 




SCHEDULE I




THE LENDERS




Part A






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Revolving	 	 	 	 	 	 	Term	 
	 	 	Revolving Loan	 	 	Proportionate	 	 	Term Loan	 	 	Proportionate	 
	Name of Lender	 	Commitment	 	 	Share	 	 	Commitment	 	 	Share	 
	Wells Fargo Bank,
National
Association
	 	$	2,171,052.63	 	 	 	45.83333333	%	 	$	14,328,947.37	 	 	 	45.83333333	%
	Capital One, N.A.
	 	$	1,907,894.74	 	 	 	40.27777778	%	 	$	12,592,105.26	 	 	 	40.27777778	%
	Nevada State Bank
	 	$	657,894.74	 	 	 	13.88888889	%	 	$	4,342,105.26	 	 	 	13.88888889	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total
	 	$	4,736,842.11	 	 	 	100.00	%	 	$	31,263,157,89	 	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 






 


1









 





Part B




WELLS FARGO BANK, NATIONAL ASSOCIATION

as a Lender



Notices:




Wells Fargo Bank, National Association

5340 Kietzke Lane

Reno, Nevada 89511

Attention: Erna Stuckey

Tel. No. (775) 689-6018

Fax No. (775) 689-6026

E-mail: Erna.F.Stuckey@wellsfargo.com




Domestic and Euro-Dollar Lending Office:




Wells Fargo Bank, National Association

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, California 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com




CAPITAL ONE, N.A.

as a Lender



Notices:




Capital One, N.A.

201 St. Charles Ave, 29th Floor

New Orleans, LA 70130

Attention: Ross S. Wales

Telephone: (504) 533-5719

Facsimile: (504) 533-2060

E-mail: ross.wales@capitalonebank.com



 


2









 





Domestic and Euro-Dollar Lending Office:




Capital One, N.A.

201 St. Charles Ave, 29th Floor

New Orleans, LA 70130

Attention: Lorie Ferguson

Telephone: (504) 533-5718

Facsimile: (504) 533-2060

E-mail: lorie.ferguson@capitalonebank.com




NEVADA STATE BANK

as a Lender



Notices:




Nevada State Bank

One West Liberty St.

Reno, NV 89501

Attention: Rick Thomas

Telephone: (775) 688-6959

Facsimile: (775) 688-6960

E-mail: richard.thomas@nsbank.com





Domestic and Euro-Dollar Lending Office:




Nevada State Bank

600 White Drive 1st 71

Las Vegas, NV 89119

Attention: Aimee Blutt

Telephone: (702) 642-7421

Facsimile: (702) 657-3534

E-mail: aimee.blutt@nsbank.com



 


3









 





SCHEDULE 1.01(a)




Real Property Security Documents




Deed of Trust on real property of Stockman’s Casino in Fallon, Nevada




Mortgage on real property of Gaming Entertainment (Indiana) LLC in Rising Sun, Indiana





 


 









 







SCHEDULE 3.01




Conditions Precedent to Effectiveness



The effectiveness of this Credit Agreement is subject to: (i) in the case of all conditions listed
below which can be satisfied by the delivery of documentation or other items by the Borrower,
receipt by the Administrative Agent of such documentation or other items, each in form and
substance reasonably satisfactory to the Administrative Agent (and, where expressly indicated, the
Collateral Agent) and each Lender and with sufficient copies for the Administrative Agent and each
Lender, and (ii) in the case of all other conditions listed below, the Administrative Agent’s (and,
where expressly indicated, the Collateral Agent’s) reasonable determination that such conditions
have been satisfied.




(a) Credit Agreement. This Agreement, duly executed by the Borrower, each Lender, the
Administrative Agent, the Collateral Agent and the Security Trustee;



(b) Borrower’s Organizational Documents. A certificate of the Secretary or an
Assistant Secretary of the Borrower, dated the Effective Date, certifying (A) that attached thereto
is a true and correct copy of the certificate or articles of incorporation and bylaws of the
Borrower as in effect on the Effective Date; (B) that attached thereto are true and correct copies
of resolutions duly adopted by the board of directors of the Borrower and continuing in effect,
which authorize the execution, delivery and performance by the Borrower of this Agreement and the
other Credit Documents executed or to be executed by the Borrower and the consummation of the
transactions contemplated hereby and thereby; (C) that there are no proceedings for the dissolution
or liquidation of the Borrower; and (D) the incumbency, signatures and authority of the officers of
the Borrower authorized to execute, deliver and perform this Agreement, the other Credit Documents
and all other documents, instruments or agreements related thereto executed or to be executed by
the Borrower;



(c) Guarantor Organizational Documents. A certificate of the Secretary or an
Assistant Secretary (or comparable officer) of each Guarantor, dated the Effective Date, certifying
(A) that attached thereto is a true and correct copy of the Organizational Documents of such Person
as in effect on the Effective Date; (B) that attached thereto are true and correct copies of
resolutions duly adopted by the board of directors or other governing body of such Person and
continuing in effect, which authorize the execution, delivery and performance by such Person each
Credit Document executed or to be executed by such Person and the consummation of the transactions
contemplated thereby; (C) that there are no proceedings for the dissolution or liquidation of such
Person; and (D) the incumbency, signatures and authority of the officers of such Person authorized
to execute, deliver and perform the Credit Documents to be executed by such Person.




(d) Financial Statements, Financial Condition, Etc.



(i) A copy of the (A) audited consolidated Financial Statements of each of (1) the Borrower
Parties and (2) Grand Victoria Casino & Resort for the fiscal years ending December 31, 2007,
December 31, 2008 and December 31, 2009 and (B) unaudited
consolidated and consolidating Financial Statements of (1) the Borrower Parties and (2) Grand
Victoria Casino & Resort for the fiscal quarters ending March 31, 2010 and June 30, 2010.



 


1









 






(e) Opinion. Favorable written opinion that the real property underlying the
FireKeepers Casino constitutes “Indian lands” as defined in IGRA, dated the Effective Date and in
form and substance satisfactory to the Administrative Agent, from Greenberg Traurig, LLP, special
counsel for the Borrower and the Guarantors.




(f) Other Items.



(i) A copy of the Acquisition Agreement and each other Acquisition Document (including all
exhibits, appendices, schedules, annexes and attachments thereto and amendments thereof), duly
executed by each party thereto, and a copy of each agreement, certificate, opinion of counsel (with
a letter from the Person delivering such opinions of counsel authorizing reliance thereon by the
Administrative Agent and the Lenders) and other material writing delivered by or on behalf of each
party to such documents in connection therewith;



(ii) Since December 31, 2009, no event or circumstance shall have occurred that has resulted
or could result in a material adverse change in the business, operations, condition (financial or
otherwise), assets or liabilities (whether actual or contingent) of the Borrower Parties taken as a
whole;



(iii) There shall not exist any pending or overtly threatened action, suit, investigation or
proceeding, which, if adversely determined, could materially and adversely affect the Borrower
Parties, any transaction contemplated hereby (including the Transactions) or the ability of any
Loan Party to perform its obligations under the Credit Documents or the ability of the Lenders to
exercise their rights thereunder;



(iv) The Administrative Agent, shall not have become aware of any material information or
other matter that is inconsistent in a material and adverse manner with any previous due diligence,
information or matter (including any financial statements and projections previously delivered to
the Administrative Agent;




(v) On the Effective Date:



(A) the representations and warranties set forth in Sections 4.01(a), (b), (c), (d), (e)
(other than (e)(ii) and (e)(iv)), (f), (i), (l), (m), (n), (p), (q), (r), (s), (w) and (x) of
this Agreement shall be true and correct in all material respects (except to the extent that such
representation and warranty is qualified by materiality, in which case such representation and
warranty must be true in all respects) as if made on the Effective Date (except for representations
and warranties expressly made as of a specified date, which shall be true and correct as of such
date); and




(B) No Default shall have occurred and be continuing.



(vi) A certificate of a Senior Finance Officer of the Borrower certifying, on behalf of the
Borrower, as to the matters set forth in clause (v);


 


2









 





(vii) To the extent not included in clause (b), clause (c) or clause
(f)(i) above, a copy of each of the Material Documents (including all exhibits, appendices,
schedules, annexes and attachments thereto and amendments and assignments thereof), duly executed
by each party thereto;



(viii) The Borrower and the Guarantors shall have provided such documentation and other
information requested by the Administrative Agent (on behalf of itself and any Lender) that is
required by regulatory authorities under applicable “know your customer” and anti-money-laundering
rules and regulations, including, without limitation, the Patriot Act;



(ix) The Borrower shall have provided to the Administrative Agent excerpts from the Federal
Register for November 13, 2007 “Proclaiming Certain Lands as Reservation for the Nottawaseppi Huron
Bank of Potawatomi Indians of Michigan”, Federal Register for November 24, 2009 “Proclaiming
Certain Lands as a Reservation for the Nottawaseppi Huron Band of Potawatomi Indians of Michigan”,
which corrects the legal description in the Proclamation and the Opinion of the Office of the
Solicitor, dated December 13, 2000, advising the Regional Director, Midwest Regional Office, Bureau
of Indian Affairs of the Trust Acquisition for the Huron Potawatomi, Inc, as evidence that the real
property underlying the FireKeepers Casino constitutes “Indian lands”;



(x) All fees and expenses payable to the Wells Fargo Parties (including reasonable fees and
expenses of counsel to the Wells Fargo Parties invoiced through the Effective Date) and the Lenders
on or prior to the Effective Date (including all fees payable to the Wells Fargo Parties pursuant
to the Fee Letter); and



(xi) Such other evidence as the Administrative Agent may reasonably request to establish the
accuracy and completeness of the representations and warranties and the compliance with the terms
and conditions contained in this Agreement and the other Credit Documents.


 


3









 





SCHEDULE 3.02




Conditions Precedent to Initial Credit Events




The occurrence of the initial Credit Events under the Credit Agreement, in addition to the
conditions set forth on Schedule 3.01 and in Section 3.03, is subject to: (i) in
the case of all conditions listed below which can be satisfied by the delivery of documentation or
other items by the Borrower, receipt by the Administrative Agent of such documentation or other
items, each in form and substance reasonably satisfactory to the Administrative Agent (and, where
expressly indicated, the Collateral Agent) and each Lender and with sufficient copies for the
Administrative Agent and each Lender, and (ii) in the case of all other conditions listed below,
the Administrative Agent’s (and, where expressly indicated, the Collateral Agent’s) reasonable
determination that such conditions have been satisfied.




(a) Principal Credit Documents.



(i) A Revolving Loan Note payable to each Revolving Lender, each duly executed by the
Borrower;




(ii) A Term Loan Note payable to each Term Lender, each duly executed by the Borrower;



(iii) A Swing Line Note payable to the Swing Line Lender in the principal amount of the Swing
Line Sublimit, duly executed by the Borrower;



(iv) The Guaranty, in substantially the form of Exhibit L, duly executed by the
Guarantors;



(v) The Security Agreement, in substantially the form of Exhibit M, duly executed by
the Borrower and the Guarantors, together with (A) original demand promissory evidencing
intercompany advances pledged to the Collateral Agent pursuant to the Security Agreement
(collectively, the “Pledged Intercompany Notes”), together with accompanying allonges or
indorsements in blank and attached thereto, (B) the original certificates (if any) representing all
of the outstanding Equity Securities of each Subsidiary that are pledged to the Collateral Agent
pursuant to the Security Agreement (or any other Security Document), together with undated stock
powers duly executed by the appropriate Loan Party, as applicable, in blank and attached thereto;
and (C) all other collateral listed on Schedule I of the Security Agreement;



(vi) Each Real Property Security Document listed on Schedule 1.01(a), duly executed by
the applicable Loan Party and notarized and in form suitable for recording in the appropriate
jurisdictions; and



(vii) The completed Collateral Certificate, duly executed by the Borrower; and


 


4









 






(viii) The Grand Victoria Vessel Security Document duly executed by the parties thereto.




(b) Borrower’s Organizational Documents.



(i) The certificate of incorporation, articles of incorporation or comparable document of the
Borrower, certified as of a recent date prior to the Initial Funding Date by the Secretary of State
(or comparable public official) of the Borrower’s jurisdiction of incorporation or formation;



(ii) Certificates of good standing (or comparable certificates) for the Borrower, certified as
of a recent date prior to the Initial Funding Date by the Secretaries of State (or comparable
official) of the Borrower’s jurisdiction of incorporation and each jurisdiction in which the
Borrower is qualified to do business; and



(iii) Certificates of the Franchise Tax Board, Secretary of State or comparable official of
the same jurisdictions referenced in clause (ii) above for the Borrower (to the extent that such
Governmental Authority customarily makes available such certificates with respect to entities of
the same type as the Borrower), certified as of a recent date prior to the Effective Date, stating
that the Borrower is in good tax standing under the laws of such jurisdiction.



(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated the
Initial Funding Date, certifying that (A) there have been no amendments or modifications to the
certificate or articles of incorporation and bylaws of the Borrower delivered on the Effective Date
(or if there have been, they are attached thereto), (B) the resolutions duly adopted by the board
of directors of the Borrower delivered on the Effective Date are continuing in effect and have not
been modified or revoked and (C) there are no proceedings for the dissolution or liquidation of the
Borrower;




(c) Guarantor Organizational Documents.



(i) A certificate of good standing (or comparable certificate) for each Guarantor, certified
as of a recent date prior to the Initial Funding Date by the Secretary of State (or comparable
public official) of such Person’s jurisdiction of incorporation or formation and jurisdiction in
which the Guarantor is qualified to do business;



(ii) The certificate of incorporation, articles of incorporation, certificate of limited
partnership, articles of organization or comparable document of each Guarantor, certified as of a
recent date prior to the Initial Funding Date by the Secretary of State (or comparable public
official) of such Person’s jurisdiction of incorporation or formation;



(iii) Certificates of the Franchise Tax Board, Secretary of State or comparable official of
the jurisdiction of incorporation or formation of each Guarantor (to the extent that such
Governmental Authority customarily makes available such certificates with respect to entities of
the same type as such Guarantor) and each state in which such Guarantor is qualified to do
business, dated as of a date close to the Initial Funding Date, stating that such Person is in good
tax standing under the laws of such jurisdiction.


 


5









 





(iv) A certificate of the Secretary or an Assistant Secretary of each Guarantor, dated the
Initial Funding Date, certifying that (A) there have been no amendments or modifications to
Organizational Documents of such Guarantor delivered on the Effective Date (or if there have been,
they are attached thereto), (B) the resolutions duly adopted by the board of directors or other
governing body of such Guarantor delivered on the Effective Date are continuing in effect and have
not been modified or revoked and (C) there are no proceedings for the dissolution or liquidation of
such Guarantor;




(d) Financial Statements, Financial Condition, Etc.



(i) A copy of (A) the Financial Statements required to be delivered by Sections
5.01(a)(i), (ii), (x), (xi) and (xii) for the period commencing on the Effective Date and
ending on the Initial Funding Date and (B) the pro forma balance sheet of the Borrower Parties
based on the most recent balance sheet provided to the Administrative Agent and the Lenders and
giving effect to the transactions occurring as of the Initial Funding Date (including the
Transactions);



(ii) A certificate of a Senior Finance Officer of the Borrower certifying that as of the
Initial Funding Date (and after giving pro forma effect to the Transactions), (A) the Total
Leverage Ratio is less than or equal to 2.00:1.00 and (B) the aggregate management fees of GEM for
the twelve month period ended as of the most recent month end prior to the Initial Funding Date for
which financial statements are available is greater than or equal to $20,000,000, and attaching
calculations demonstrating the same to the reasonable satisfaction of the Administrative Agent;



(iii) A certificate of the Borrower and each Guarantor as to the financial condition and
solvency of such Person(s) on a pro forma basis after giving effect to the Transactions, in form
and substance satisfactory to the Administrative Agent certified by a Senior Finance Officer of
each such Person(s); and



(iv) A copy of (and the Administrative Agent’s and Required Lenders’ satisfactory review of)
the projected financial statements of the Borrower Parties for each of the fiscal years through the
Maturity Date (on a year by year basis) together with narrative assumptions, including, in each
case, projected balance sheets, statements of income and retained earnings and statements of cash
flow of the Loan Parties, all in reasonable detail and in any event to include quarterly
projections for the first year after the Initial Funding Date reflecting the Borrower’s compliance
with each of the covenants set forth in Section 5.03 of this Agreement; and



(v) Such other financial, business and other information regarding the Borrower or any of its
Subsidiaries or the Purchased Assets as the Administrative Agent may reasonably request.




(e) Collateral Documents.



(i) A Control Agreement with each bank with which any Borrower or any Guarantor maintains a
deposit account, each appropriately completed and duly executed by such Loan Party, the Collateral
Agent and such bank;


 


6









 





(ii) A Control Agreement with each securities intermediary with which any Borrower or any
Guarantor maintains a securities account, each appropriately completed and duly executed by such
Loan Party, the Collateral Agent and such securities intermediary;



(iii) A Control Agreement with each commodity intermediary with which any Borrower or any
Guarantor maintains a commodity account, each appropriately completed and duly executed by such
Loan Party, the Collateral Agent and such commodity intermediary;



(iv) Appropriate documents for filing with the United States Patent and Trademark Office, the
United States Copyright Office and all other filings necessary to perfect the security interests
granted to the Collateral Agent by the Security Documents, all appropriately completed and duly
executed by the applicable Loan Party and, where appropriate, notarized; and



(v) A Power of Attorney in the form of attached to the Security Agreement, dated the Effective
Date and otherwise appropriately completed, duly executed by the Borrower and the Guarantors and
notarized.



(vi) Evidence that upon the filing of appropriate Uniform Commercial Code financing statements
the Collateral Agent will have a valid, perfected first priority Lien on all Collateral in which a
Lien may be perfected by the filing of such Uniform Commercial Code financing statements, subject
only to Permitted Liens;



(vii) Based on available information as of closing (which shall include representations,
warranties and disclosures from the Borrower), the Collateral Agent shall be satisfied that (A)
upon the filing and recording of the Grand Victoria Vessel Security Document the Security Trustee
will have a valid, perfected first priority Lien on the Grand Victoria Vessel and (B) the Grand
Victoria Vessel Security Document will qualify for the benefits accorded a “preferred mortgage”
under the Ship Mortgage Act;



(viii) Evidence that all existing Indebtedness of the Loan Parties has been or concurrently
with the Initial Funding Date is being repaid in full and a satisfactory arrangement concerning the
termination of the Liens securing such Indebtedness (including payoff letter(s), as applicable);



(ix) Uniform Commercial Code search certificates from the jurisdictions in which Uniform
Commercial Code financing statements are to be filed pursuant to subsection (e)(vi) above
reflecting no other financing statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to the Collateral Agent in this Agreement, the
Security Documents and the other Credit Documents, except for any such prior Liens (a) which are
expressly permitted by this Agreement to be prior or (b) for which the Administrative Agent has
received a termination statement or and has made a satisfactory arrangement concerning the
termination of the Liens securing such Indebtedness pursuant to subsection (e)(viii) above;


 


7









 






(x) Additional documents for filing with the United States Patent and Trademark Office, the
United States Copyright Office and all other filings necessary to perfect
the security interests granted to the Collateral Agent by the Security Documents, as
necessary, all appropriately completed and duly executed by the applicable Loan Party and, where
appropriate, notarized;



(xi) An ALTA extended coverage lender’s policy of title insurance (or a commitment therefor)
insuring the validity and priority of the Grand Victoria Vessel Security Document (subject only to
such exceptions as the Collateral Agent may approve), in such amounts and with such endorsements as
the Collateral Agent may require, issued by a title insurer acceptable to the Collateral Agent,
together with such policies of co-insurance or re-insurance (or commitments therefor) as the
Collateral Agent may require;



(xii) A marine insurance brokers opinion satisfactory to it opining as to the adequacy of the
insurance on the Grand Victoria Vessel;



(xiii) a Certificate of Ownership (CG-1330) issued by the National Vessel Documentation Center
no earlier than seven days prior to the Initial Funding Date showing Grand Victoria Casino &
Resort, L.P. to be the sole owner of the Grand Victoria Vessel, that the Grand Victoria Vessel is
free and clear of all Liens of record and that the Grand Victoria Vessel is currently documented;



(xiv) a certified Abstract of Title issued by the National Vessel Documentation Center no
earlier than three days prior to the Initial Funding Date showing Grand Victoria Casino & Resort,
L.P. to be the sole owner of the Grand Victoria Vessel and that the Grand Victoria Vessel is free
and clear of all Liens of record;



(xv) a copy of the current certificate of inspection issued by the United States Coast Guard
for the Grand Victoria Vessel, reflecting no outstanding conditions affecting operation of the
Grand Victoria Vessel;



(xvi) a Confirmation of Class certificate for the Grand Victoria Vessel issued by the American
Bureau of Shipping, reflecting that the Grand Victoria Vessel has the highest classification for
vessels of its type, free from recommendations affecting class;



(xvii) an Assignment of Entitlements and Certificate and Indemnification for Hazardous
Substances with respect to the real property subject to each Real Property Security Document; and



(xviii) Such other evidence as the Collateral Agent may reasonably request to establish that
the Liens granted to the Collateral Agent and the Security Trustee for the benefit of the Secured
Parties under the Security Documents and the other Credit Documents are or upon the proper filings
shall be perfected and prior to the Liens of other Persons in the Collateral, except for any such
Liens which are expressly permitted by this Agreement to be prior to the Liens granted to the
Collateral Agent and the Security Trustee.




 


8









 




(f) Opinions.



(i) Favorable written opinions, dated the Initial Funding Date and covering such legal matters
as the Administrative Agent may reasonably request and otherwise
in form and substance reasonably satisfactory to the Administrative Agent, from Greenberg
Traurig, LLP, special counsel for the Borrower and the Guarantors, including an opinion that none
of the Credit Documents constitutes a “management contract” as defined in IGRA and that the real
property underlying the FireKeepers Casino constitutes “Indian lands” as defined in IGRA.; and




(ii) Vessel Opinion with respect to the Grand Victoria Vessel Security Document.




(g) Other Items.



(i) A duly completed and timely delivered Notice of Loan Borrowing for Revolving Loans, to the
extent any Revolving Loans are requested to be made to the Borrower on the Initial Funding Date;




(ii) A duly completed and timely delivered Notice of Loan Borrowing for the Term Loans;



(iii) A funds flow statement detailing the disbursement of the Borrowings to occur on the
Initial Funding Date, in form and substance reasonably acceptable to the Administrative Agent;



(iv) Certificates of insurance and endorsements (including a lender’s loss payable
endorsement) naming the Collateral Agent as mortgagee and loss payee and the Collateral Agent, the
Security Trustee, the Administrative Agent and the Lenders as additional insureds, as required by
Section 5.01(d) of this Agreement and an insurance analysis and review from a consultant
acceptable to the Administrative Agent; along with an a disclosure statement in form and substance
reasonably acceptable to the Administrative Agent setting forth a true and complete listing of all
insurance maintained by the Borrowers as of the Initial Funding Date (the “Insurance Disclosure
Statement”);



(v) The Borrower shall not have entered into any amendment, supplement or other modification
to, or any consent or waiver with respect to, the Acquisition Agreement or any other Acquisition
Document that materially adversely affects the interests of the Lenders (as reasonably determined
by the Administrative Agent) or increases the Purchase Price (as defined in the Acquisition
Agreement), unless such amendment, supplement, modification or waiver shall have been consented to
in writing by the Administrative Agent (such consent not to be unreasonably withheld);



(vi) Evidence that the Borrower has available cash of no less than $19,000,000 as of the
Initial Funding Date;



(vii) Evidence that the directors of the Borrower (and any necessary third party and
governmental approvers) have approved the Transactions by the Borrower at a purchase price not to
exceed (after giving effect to expected post-closing adjustments and fees and expenses)
$55,000,000;


 


9









 





(viii) The absence of any material adverse change or material disruption in the loan
syndication, financial, banking or capital markets that, in the reasonable judgment of the
Administrative Agent, (A) has materially impaired the syndication of any component of the credit
facilities provided hereunder or (B) could reasonably be expected to materially impair the
syndication of any component of the credit facilities provided hereunder for a period extending
beyond the then proposed Initial Funding Date (as such Initial Funding Date may be extended in
accordance with the terms hereof);



(ix) Since December 31, 2009, no event or circumstance shall have occurred that has resulted
or could result in a material adverse change in the business, operations, condition (financial or
otherwise), assets or liabilities (whether actual or contingent) of the Borrower Parties taken as a
whole;



(x) There shall not exist any pending or threatened action, suit, investigation or proceeding,
which, if adversely determined, could reasonably be expected to materially and adversely affect the
Borrower Parties, any transaction contemplated hereby (including the Transactions) or the ability
of any Loan Party to perform its obligations under the Credit Documents or the ability of the
Lenders to exercise their rights thereunder;



(xi) The Administrative Agent shall not have become aware of any material information or other
matter that is inconsistent in a material and adverse manner with any previous due diligence,
information or matter (including any financial statements and projections previously delivered to
the Administrative Agent;



(xii) No Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred
since December 31, 2009;



(xiii) There shall not exist (A) any order, decree, judgment, ruling or injunction which
restrains the consummation of the Transactions in the manner contemplated by the Transaction
Documents; or (B) any litigation that shall be pending or threatened against any Borrower Party as
of the Initial Funding Date which could reasonably be expected to have a Material Adverse Effect;




(xiv) On the Initial Funding Date, after giving effect to such initial Borrowings:



(A) The Borrower shall have obtained all Governmental Authorizations (including all applicable
tribal, gaming, horse racing and video lottery licenses and permits) and all consents of other
Persons in each case that are necessary to have been obtained prior to the Initial Funding Date in
connection with the Transactions and the continued operation of the business conducted by the
Borrower Parties in substantially the same manner as conducted prior to the Initial Funding Date.
Each such Governmental Authorization or consent shall be in full force and effect, except in a case
where the failure to obtain or maintain a Governmental Authorization or consent, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect; and



 


10









 





(B) No temporary restraining order, preliminary or permanent injunction or other order
preventing the Borrower and the Guarantors, the Administrative Agent
or any Lender Party from entering into this Agreement or the other Credit Documents or
consummating the transactions contemplated hereby or thereby shall have been issued by any court of
competent jurisdiction or other Governmental Authority having authority over any such Person and
remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to
the Credit Documents by a Governmental Authority having authority over any such Person that makes
the closing of the Credit Documents or any extensions of credit thereunder illegal;



(xv) A certificate of a Senior Finance Officer of the Borrower, on behalf of the Borrower,
certifying as to the matters set forth in clause (xiv);



(xvi) To the extent not included in clause (b), clause (c), or clause
(g)(v) above and not previously delivered pursuant to Section 3.01, a copy of each of
the Material Documents (including all exhibits, appendices, schedules, annexes and attachments
thereto and amendments and assignments thereof), duly executed by each party thereto;



(xvii) A “declination” letter from the NIGC as to whether or not any of the Credit Documents
is a “management agreement” within the meaning of IGRA;



(xviii) The Administrative Agent shall have certified to the Lenders that either (i) prior to
the Initial Funding Date, the Borrower obtained and provided the Administrative Agent with written
evidence of flood insurance coverage meeting the minimum requirements of the National Flood
Insurance Program (the “NFIP”) for all improved real estate and any personal property
therein that constitutes Collateral that is located within a Special Flood Hazard Area
(“SFHA”) in a community that participates in the Program; or (ii) the determination(s)
using the Special Flood Hazard Determination Form indicate that no improved real estate that
constitutes Collateral is located in a SFHA in a community that participates in the Program;



(xix) All fees and expenses payable to the Wells Fargo Parties (including reasonable fees and
expenses of counsel to the Wells Fargo Parties invoiced through the Initial Funding Date) and the
Lenders on or prior to the Initial Funding Date (including all fees payable to the Wells Fargo
Parties pursuant to the Fee Letter); and



(xx) Such other evidence as the Administrative Agent or any Lender may reasonably request to
establish the accuracy and completeness of the representations and warranties and the compliance
with the terms and conditions contained in this Agreement and the other Credit Documents.


 


11









 





SCHEDULE 4.01(e)(iv)




Governmental Authorizations



1. Pledge of Securities of Stockman’s Casino to be obtained prior to effectiveness of Pledge.



2. Pledge of Securities of Rising Sun.



3. Administrative Agent will be required to obtain gaming approvals prior to exercise of remedies
in gaming collateral following an event of default.





 


 









 







SCHEDULE 4.01(g)




Litigation




None





 


 









 







SCHEDULE 4.01(h)




Real Property



1. Owned Real Property.





The land situated in the State of Nevada, County of CHURCHILL, described as follows:


Parcels 1 and 2 of the Parcel Map for James R. Peters, as trustee under the James R. Peters Family

Trust Agreement recorded March 1, 2005, under Document No. 368694, Official Records, Churchill
County, Nevada



2. Property to be Owned Upon Closing of Acquisition With Grand Victoria Casino & Resort,
L.P.





The land situated in the State of Indiana, County of Ohio, described as follows:



Tract I



Being part of the South One-half of Section 35, Township 4 North, Range I West of the First
Principal Meridian located in the City of Rising Sun, Ohio County, Indiana, described as follows:
Commencing at the Southwest corner of Section 35, T4N, RIW; thence South 89 degrees 35 minutes 45
seconds East, 1679 feet (Deed) to a P.K. nail in the center of S.R. 56; thence North 00 degrees 28
minutes 51 seconds East along the centerline of said S.R. 56, 525.02 feet to the point of
beginning; thence continuing along the centerline of said road the following five courses; thence
North 00 degrees 30 minutes 25 seconds East, 25.03 feet to a P.K. nail;

thence North 01 degrees 50 minutes 05 seconds East, 80.47 feet to a P.K. nail; thence North 06
degrees 37 minutes 21 seconds East, 71.69 feet to a PK. nail; thence North 11 degrees 58 minutes 14
seconds East, 87.16 feet to a P.K. nail; thence North 15 degrees 01 minutes 26 seconds East, 35.65
feet; thence South 89 degrees 25 minutes 33 seconds East, 415.33 feet to a re-bar; thence South 00
degrees 34 minutes 27 seconds West, 296.73 feet to a re-bar; thence North 89 degrees 25 minutes 33
seconds West, 450.74 feet to the point of beginning.




Tract II



Being part of the South One-half of Section 35, Township 4 North, Range 1 West of the First
Principal Meridian located in the City of Rising Sun, Ohio County; Indiana, described as follows:
Commencing at the Southwest corner of Section 35, Township 4 North, Range 1 West; thence South 89
degrees 35 minutes 45 seconds East, 1679 feet (Deed) to a P.K. nail in the center of S.R. 56 and
the point of beginning; thence North 00 degrees 28 minutes 51 seconds East along the centerline of
said S.R. 56, 525.02 feet to the Southwest corner of a 3.000 acre tract of land; thence along the
boundary of said 3.000 acre tract of land the following three courses; thence South 89 degrees 25
minutes 33 seconds East, 450.74 feet to a re-bar; thence North 00 degrees 34 minutes 27 seconds
East, 296.73 feet to a re-bar; thence North 89 degrees 25 minutes 33 seconds West, 415.33 feet to
the center of said S.R. 56; thence along the centerline of said S.R. 56 the following three
courses; thence North 15 degrees 01 minutes 26 seconds East, 216.13 feet; thence North 11 degrees
46 minutes 07 seconds East, 92.47 feet; thence North 10 degrees




 


 









 







12 minutes 32 seconds East, 919 feet to the South right-of way line of 40 feet wide McConnel Lane
(relocated); thence South 89 degrees 26 minutes 48 seconds East along said right-of-way line,
180.43 feet to a re-bar; thence along the boundary of a tract of land owned by the City of Rising
Sun (D.R. 17. P. 171) following three courses; thence South 10 degrees 12 minutes 32 seconds West,
110.00 feet to a re-bar; thence South 89 degrees 26 minutes 48 seconds East, 200.00 feet to a
rebar; thence North 10 degrees 12 minutes 32 seconds East, 99.86 feet to a re-bar in the South
right-of-way line of 50 feet wide McConnel Lane (relocated); thence South 89 degrees 26 minutes 48
seconds East along the South right-of-way line of said 50 foot wide McConnel Lane (relocated),
1450.93 feet to a re-bar; thence North 02 degrees 17 minutes 32 seconds East along the East
right-of way line of said McConnel Lane, 278.70 feet to a re-bar marking the Southwest corner of a
4.938 acre tract of land; thence along the boundary of said 4.938 acre tract of land the following
two courses; thence South 89 degrees 26 minutes 48 seconds East, 416.15 feet to a re-bar; thence
North 00 degrees 33 minutes 12 seconds East 637.20 feet to a re-bar; thence South 89 degrees 26
minutes 48 seconds East along the South right-of-way line of original 30 feet wide McConnel Lane,
100.00 feet to a re-bar marking the Northwest corner of 6.762 acre tract of land; thence along the
boundary of said 6.762 acre tract of land the following five courses: thence South 00 degrees 33
minutes 12 seconds West, 637.20 feet to a re-bar; thence South 89 degrees 26 minutes 48 seconds
East, 561.86 feet to a re-bar; thence North 00 degrees 28 minutes 29 seconds West, 107.61 feet to
a re-bar; thence North 07 degrees 13 minutes 39 seconds East, 330.81 feet to a rebar; thence North
89 degrees 26 minutes 48 seconds West, 147.39 feet to the Southeast corner of a 1.044 acre tract of
1aid; thence North 03 degrees 03 minutes 51 seconds West along the East line of said lot, 2011.44
feet to a re-bar in the South right-of-way line of said original McConnel Lane; thence South 89
degrees 26 minutes 48 seconds East along the South right-of-way line of said original lane, 323.12
feet to a rebar in the West bank of a drainage ditch; thence along the West bank of said drainage
ditch the following six courses; thence South 00 degrees 20 minutes 03 seconds East, 128.24 feet to
a re-bar; thence South 02 degrees 25 minutes 41 seconds West, 132.64 feet to a re-bar; thence South
04 degrees 23 minutes 32 seconds West, 307.98 feet to a re-bar; thence South 05 degrees 05 minutes
58 seconds West, 547.73 feet to a re-bar; thence South 06 degrees 53 minutes 48 seconds West,
472.38 feet to a re-bar; thence South 06 degrees 42 minutes 25 seconds West, 448.27 feet to a
re-bar; thence North 89 degrees 35 minutes 45 seconds West along the South line of said Section
35,3057.55 feet to the point of beginning.



EXCEPTING THEREFROM: The following described tract: Being part of the south one-half of Section 35,
Township 4 North, Range I West of the First Principal Meridian located in the City of Rising Sun,
Ohio County, Indiana, described as follows: Commencing at the southwest corner of Section 35, T4N,
RI W; thence 5 89 Degrees 35’ 45” E, 1679 feet (Deed) to a p.k. nail in the center of S.R. 56;
thence N 00 degrees 28’ 51” E along the centerline of said S.R. 56, 525.02 feet to the southwest
corner of a 3.000 acre tract of land; thence continuing along the centerline of said road and along
the boundary of said 3.000 acre tract of land the following five courses: thence N 00 degrees 30’
25” e, 25.03 feet to a p.k nail; thence N 01 degrees 50’ 05” E, 80.47 feet to a p.k. nail; thence N
05 degrees 37’ 21” E, 71.69 feet to a p.k. nail; thence N 11 degrees 58’ 14” E, 87.16 feet to a
p.k. nail; thence N 15 degrees 01’ 25” E, 35.65 feet to the northwest corner of said 3.000 acre
tract of land; thence continuing along the centerline of said road the following four courses:
thence N 15 degrees 01’ 16” E, 216.13 feet; thence N 11 degrees 46 07” E, 92.12 feet to the point
of beginning; thence continuing N 11 degrees 46’ 07” E, 0.26 feet; thence N 10


 


 









 





degrees 12’ 32” E, 9.89 feet; thence 5 89 degrees 26’ 48” E along the south right-of-way line of an
Easement for Ingress and Egress (D.R. 17, p. 171), also the Southline of 40’ relocated McConnell
Lane, 180.43 feet to a re-bar; thence 5 10 degrees 12’ 32” W 10.14 feet; thence N 89 degrees 26’
48” W, 180.44 feet to the point of beginning.



ALSO EXCEPTING THEREFROM: A part of the Southwest Quarter of Section 35 Township 4 North Range I
West of the First Principal Meridian, Randolph Township, Ohio County, Indiana, more particularly
described as follows:



Commencing at the Southwest corner of the Southwest Quarter of said Section 35 thence South 89
degrees 35 minutes 4 seconds East along the South Line of said Southwest Quarter 1 679 (deed) to a
point on the centerline of State Route 56; thence the following eight (8) courses along the
centerline of State Route 56 (1) North 00 degrees 28 minutes 51 seconds East 252.02 feet (2) North
00 degrees 30 minutes 25 seconds East 25.03 feet (3) North 01 degrees 50 minutes 05 seconds East
80.47 feet (4) North 06 degrees 37 minutes 21 seconds East 71.69 feet (5) North Ii degrees 58
minutes 14 seconds East 87.16 feet (6) North 15 degrees 01 minutes 26 seconds East 251.78 feet (7)
North II degrees 46 minutes 07 seconds East 92.47 feet (8) North 10 degrees 12 minutes 32 seconds
East 9.89 feet to a point on the South Line of an Easement for Ingress & Egress recorded in Deed
Record 17, p 171; thence South 89 degrees 26 minutes 48 seconds East along the South Line of said
Deed Record 180.43 feet to the Northwest corner of a parcel of ground recorded in Deed Record 17
page 171 thence the following three (3) courses along the West, South, and East boundary of said
parcel (1) South 10 degrees 12 minutes 32 seconds West 110.00 feet (2) South 89 degrees 26 minutes
48 seconds East 200.00 feet to the Point of Beginning (3) North 10 degrees 12 minutes 32 seconds
East 99.86 to a point on the South Line of said Easement for Ingress and Egress; thence South 89
degrees 26 minutes 48 seconds East 200.00 feet along the said South Line; thence South 10 degrees.
12 minutes 32 seconds West 99.86 feet thence North 89 degrees 26 minutes 48 seconds West 200.00
feet to the Point of Beginning containing 0.45 acres more or less subject to public rights of ways
and easements of record.



ALSO EXCEPTING THEREFROM: A part of the Southwest Quarter of Section 35 Township 4 North Range 1
West of the First Principal Meridian Randolph Township, Ohio County, Indiana, more particularly
described as follows:



Commencing at the Southwest corner of the Southwest Quarter of said Section 35 thence South 89
degrees 35 minutes 45 seconds East along the South Line of said Southwest Quarter 1679’ (deed) to a
point on the centerline of State Route 56; thence the following eight (8) courses along the
centerline of State Route 56 (1) North 00 degrees 28 minutes 51 seconds East 252.02 feet (2) North
00 degrees 30 minutes 25 seconds East 25.03 feet (3) North 01 degrees 50 minutes 05 seconds East
80.47 feet (4) North 06 degrees 37 minutes 21 seconds East 71.69 feet (5) North 11 degrees 58
minutes 14 seconds East 87.16 feet (6) North 15 degrees 01 minutes 26 seconds East 251.78 feet (7)
North 11 degrees 46 minutes 07 seconds East 92.47 feet(8) North 10 degrees 12 minutes 32 seconds
East 9.89 feet to a point on the South Line of an Easement for Ingress & Egress recorded in Deed
Record 17, p 171; thence South 89 degrees 26 minutes 48 seconds East along the South Line of said
Deed Record 180.43 feet to the Northwest corner of a parcel of ground recorded in Deed Record 17
page 171; thence South 10 degrees 12 minutes 32 seconds


 


 









 





West along the West line of said parcel 10.14 feet; thence South 89 degrees 26 minutes 48 seconds
East 433.60 feet to the Point of Beginning; thence continuing South 89 degrees 26 minutes 48
seconds East 100.42 feet; thence South 00 degrees 00 minutes 00 seconds East 111.09 feet; thence
North 90 degrees 00 minutes 00 seconds West 100.42; thence North 00 degrees 00 minutes 00 seconds
East 112.06 feet to the Point of Beginning containing 0.26 acres more or less subject to public
rights of ways and easements of record.



ALSO: Being part of the South One-half of Section 35, Township 4 North, Range 1 West of the First
Principal Meridian located in the City of Rising Sun, Ohio County, Indiana, described as follows:



Commencing at the Southwest corner of Section 35, T4N, RI W, thence South 89 degrees 35 minutes 45
seconds East, 1679 feet (Deed) to a P.K. nail in the center of S.R. 56; thence North 00 degrees 28
minutes 51 seconds East along the centerline of said SR. 56, 525.02 feet to the Southwest corner of
a 3.000 acre tract of land; thence along the boundary of said 3.000 acre tract of land the
following three courses; thence South 89 degrees 25 minutes 33 seconds East, 450.74 feet to a
re-bar; thence North 00 degrees 34 minutes 27 seconds East, 296.73 feet to a rebar; thence North 89
degrees 25 minutes 33 seconds West, 415.33 feet to the center of said S.R. 56; thence along the
centerline of said S.R. 56 the following three courses; thence North 15 degrees 01 minutes 26
seconds East, 216.13 feet; thence North 11 degrees 46 minutes 07 seconds East, 92.47 feet; thence
North 10 degrees 12 minutes 32 seconds East, 9.89 feet to the South right-of-way line of 40 feet
wide McConnel Lane (relocated); thence South 89 degrees 26 minutes 48 seconds East along said
right-of-way line, 180.43 feet to a re-bar; thence along the boundary of a tract of land owned by
the City of Rising Sun (DR. 17, P 171) following three courses: thence South 10 degrees 12 minutes
32 seconds West, 110.00 feet to a rebar; thence South 89 degrees 26 minutes 48 seconds East, 200.00
feet to a re-bar; thence North 10 degrees 12 minutes 32 seconds East, 9986 feet to a re-bar in the
South right-of-way line of 50 feet wide McConnel Lane (relocated); thence South 89 degrees 26
minutes 48 seconds East along the South right-of-way line of said 50 foot wide McConnel Lane
(relocated), 1450.93 feet to a re-bar; thence North 02 degrees 17 minutes 32 seconds East along
the East right-of-way line of said McConnel Lane, 278.70 feet to a re-bar and the point of
beginning; thence continuing North 02 degrees 17 minutes 32 seconds East, 637.49 feet to a rebar;
thence South 89 degrees 26 minutes 48 seconds East along the South right-of-way line of original 30
feet wide McConnel Lane, 43.33 feet to a re-bar marking the Northwest corner of a 1.007 acre tract
of land; thence along the boundary of said 1 .007 acre tract of land the following three courses;
thence South 00 degrees 33 minutes 12 seconds West 325.00 feet to a re-bar; thence South 89 degrees
26 minutes 48 seconds East, 135.00 feet to a re-bar; thence North 00 degrees 33 minutes 12 seconds
East, 325.00 feet to a re-bar; thence South 89 degrees 26 minutes 48 seconds East along the South
line of said 30 feet wide McConnel lane, 218.48 feet to a re-bar; thence South 00 degrees 33
minutes 12 seconds West, 637.20 feet to a re-bar; thence North 89 degrees 26 minutes 48 seconds
West, 416.15 feet to the point of beginning.



ALSO: Being part of the South One-half of Section 35, Township 4 North, Range 1 West, of the First
Principal Meridian located in the City of Rising Sun, Ohio County, Indiana, described as follows:




 


 









 






Commencing at the Southwest corner of Section 35, T4N, RI W; thence South 89 degrees 35 minutes 45
seconds East, 1679 feet (Deed) to a P.K. nail in the center of S.R. 56; thence North
00 degrees 28 minutes 51 seconds East along the centerline of said S.R. 56, 52502 feet to the
Southwest corner of a 3.000 acre tract of land; thence along the boundary of said 3.000 acre tract
of land the following three courses; thence South 89 degrees 25 minutes 33 seconds East, 450.74
feet to a re-bar; thence North 00 degrees 34 minutes 27 seconds East, 296.73 feet to a re-bar;
thence North 89 degrees 25 minutes 33 seconds West, 41533 feet to the center of said S.R. 56;
thence along the centerline of said S.R. 56 the following three courses; thence North 15 degrees 01
minutes 26 seconds East, 216.13 feet; thence North 11 degrees 46 minutes 07 seconds East, 92.47
feet; thence North 10 degrees 12 minutes 32 seconds East, 9.89 feet to the South right-of way line
of 40 feet wide McConnel Lane (relocated); thence South 89 degrees 26 minutes 48 seconds East along
said right-of-way line, 180.43 feet to a re-bar; thencc along the boundary of a tract of land owned
by the City of Rising Sun (D.R. 17, p.l7l) following three courses; thence South 10 dcgrees 12
minutes 32 seconds West, 110.00 feet to a re-bar; thence South 89 degrees 26 minutes 48 seconds
East, 200.00 feet to a rebar; thence North 10 degrees 12 minutes 32 seconds East, 99.86 feet to a
re-bar in the South right-of-way line of 50 feet wide McConnel Lane (relocated); thence South 89
degrees 26 minutes 48 seconds East along the South right-of-way line of said 50 feet wide McConnel
Lane (relocated), 1450.93 feet to a re-bar; thence North 02 degrees 17 minutes 32 seconds East
along the East right-of-way line of said McConnel Lane, 278.70 feet to a re-bar marking the
Southwest corner of a 4.938 acre tract of land; thence along the boundary of said 4.938 acre iract
of land the following two courses; thence South 89 degrees 26 minutes 48 seconds East, 416.1 5 feet
to a re-bar; thence North 00 degrees 33 minutes 12 seconds East, 637.20 feet to a re-bar; thence
South 89 degrees 26 minutes 48 seconds East along the South right-of-way line of original 30 feet
wide McConnel Lane, 100.00 feet to a re-bar and the point of beginning; thence continuing South 89
degrees 26 minutes 48 seconds East along the South right-of-way line of said original McConnel
Lane, 218.48 feet to a rebar marking the Northwest corner of a 1.044 acre tract of land; thence
along the boundary of said 1.044 acre tract of land the following two courses: thence South 00
degrees 33 minutes 12 seconds West, 201.04 feet; thence South 89 degrees 26 minutes 48 seconds
East, 379.90 feet to a rebar; thence South 07 degrees 13 minutes 39 seconds West, 330.81 feet to a
re-bar; thence South 00 degrees 28 minutes 29 seconds East, 107.61 feet to a re-bar; thence North
89 degrees 26 minutes 48 seconds West, 561.86 feet to a re-bar; thence North 00 degrees 33 minutes
12 seconds East, 637.20 feet to the point of beginning.



ALSO: Being part of the North One-half of Section 2 AND part of the Northwest Quarter of Section 1,
Township 3 North, Range 1 West of the First Principal Meridian located in the City of Rising Sun,
Ohio County, Indiana, described as follows:



Commencing at the Northwest corner of Section 2, T3N, R1 W; thence South 89 degrees 35 minutes 45
seconds East along the North line of said Section 2, 1679 +1- feet (Deed) to the center of S.R. 56
and the point of beginning; thence continuing South 89 degrees 35 minutes 45 seconds East along
said Section line 4830.42 feet to the Indiana Kentucky border in the Ohio River; thence along said
Indiana- Kentucky border the following twelve courses:




South 33 degrees 52 minutes 05 seconds West, 275.89 feet;

South 40 degrees 00 minutes 00 seconds West, 457.19 feet;

South 45 degrees 32 minutes 47 seconds West, 493.77 feet;

South SO degrees 00 minutes 09 seconds West, 188.26 feet;



 


 









 





South 45 degrees 01 minutes 33 seconds West, 210.94 feet;

South 47 degrees 32 minutes 14 seconds West, 226.52 feet;

South 51 degrees 55 minutes 30 seconds West, 241.36 feet;

South 52 degrees 34 minutes 03 seconds West, 212.45 feet;

South 56 degrees 55 minutes 05 seconds West, 177.71 feet;

South 48 degrees 21 minutes 24 seconds West, 131.52 feet;

South 32 degrees 36 minutes 56 seconds West, 94.74 feet;

South 28 degrees 00 minutes 21 seconds West, 67.59 feet to the most Southeasterly corner lands
owned by Gregory H. Anderson and Barbara A. Anderson (D. R. 24, p. 195); thence along said
Andersons’ boundary the following five courses:

North 48 degrees 02 minutes 03 seconds West, 492.80 feet to a re-bar;

North 20 degrees 18 minutes 57 seconds East, 353.90 feet to a re-bar;

North 68 degrees 46 minutes 03 seconds West, 34.53 feet to a re-bar;

North 16 degrees 05 minutes 27 seconds East, 237.36 feet to a re-bar;

North 19 degrees 07 minutes 17 seconds East, 265.01 feet to a re-bar marking the most Southeasterly
corner of lands of David H. Hamilton and Delberta A. Hamilton (D.R. 18, p. 59); thence along said
Hamiltons’ boundary the following three courses:


North 20 degrees 04 minutes 27 seconds East, 380.42 feet to a re-bar;

North 89 degrees 51 minutes 1 3 seconds West, 373.43 feet to a re-bar;

South 20 degrees 04 minutes 27 seconds West, 380.42 feet to an iron pipe marking said Hamiltons’
most Southwesterly corner; thence continuing along said Andersons’ boundary the following two
courses: North 89 degrees 51 minutes 14 seconds West, 299.09 feet to a re-bar; South 02 degrees 08
minutes 02 seconds West, 838.95 feet to a re-bar; thence North 89 degrees 56 minutes 53 seconds
West along the boundary of lands of the Detmer Family Limited Partnership and the centerline of
formerly Rabb’s Lane 1350.69 feet to a re-bar; thence North 00 degrees 28 minutes 40 seconds East,
847.33 feet to the Southerly boundary of a 1 .15 acre tract of land (D.R. 19, p. 598) and the South
right of way line of Industrial Drive; thence South 89 degrees 40 minutes 20 seconds East along
said 1.15 acre tract of land and the extended right-of-way line 280.00 feet to a re-bar; thence
North 00 degrees 1 9 minutes 40 seconds East, 50.00 feet to the Northeasterly corner of said 1.15
acre tract; thence North 89 degrees 40 minutes 20 seconds West along the Northerly line of said
1.15 acre tract and the extended right-of-way line of said Industrial Drive 730.00 feet to a
re-bar; thence North 00 degrees 19 minutes 40 seconds East, 150.00 feet to a re-bar; thence North
89 degrees 40 minutes 20 seconds West, 269.05 feet to a P.K. nail in the center of said S.R. 56;
thence along the centerline of said road North 00 degrees 41 minutes 30 seconds East, 615.73 feet
to the point of beginning.




Tract III



Being part of Section 2, Township 3 North, Range I West of the First Principal Meridian located in
the City of Rising Sun, Ohio County, Indiana, described as follows:



Commencing at an iron pin in the Southerly right-of-way line of Sixth Street marking the most
Northerly corner of Pinkney James Addition to the City of Rising Sun; thence North 36 degrees 12
minutes 52 seconds East along the Westerly line of said Pinkney James Addition 82.50 feet to a
railroad spike in the Northerly right-of way line of said Sixth Street and the point of beginning;
thence South 53 degrees 47 minutes 08 seconds East along said right-of-way line 459.26 feet to a
re-bar; thence along the boundary of a 0.466 + acre tract of land owned by John Richards (DR.




 


 









 






18, P. 460) the following nine courses; thence North 41 degrees 14 minutes 03 seconds East, 106.67
feet to a re-bar; thence South 55 degrees 33 minutes 57 seconds East, 1 13.00 feet to an iron pin;
thence South 35 degrees 41 minutes 02 seconds West, 32.45 feet to a re-bar; thence North 55 degrees
46 minutes 17 seconds West, 44.55 feet to a re-bar; thence South 34 degrees 13 minutes 43 seconds
West, 35.00 feet to a re-bar; thence South 55 degrees 46 minutes 17 seconds East, 44.55 feet to a
re-bar; thence South 34 degrees 13 minutes 43 seconds West, 19.95 feet to a rebar; thence South 49
degrees 09 minutes 17 seconds East, 32.80 feet to a re-bar; thence South 40 degrees 50 minutes 43
seconds West, 19.82 feet to a re-bar in said Northerly right-of-way of Sixth Street; thence South
53 degrees 47 minutes 08 seconds East along said right-of way line 581 .42 feet to a re-bar; thence
along the boundary of a 0.920 acre tract of land owned by John D. and Janet C. Mitchell (D.R. 25,
P. 312) the following two courses; thence North 36 degrees 12 minutes 52 seconds East, 120.00 feet
to a re-bar; thence South 53 degrees 47 minutes 08 seconds East, 359.14 feet to a rebar at the edge
of the Ohio River; thence along the edge of said river the following four courses; thence North 59
degrees 00 minutes 00 seconds East, 154.19 feet; thence North 53 degrees 29 minutes 16 seconds
East, 458.01 feet; thence North 47 degrees 06 minutes 00 seconds East, 362.74 feet; thence North 48
degrees 48 minutes 00 East, 896.54 feet; thence leaving said river North 50 degrees 51 minutes 37
seconds West along the boundary of a 10.21 acre tract of land owned by Gregory H. Anderson and
Barbara Anderson (D. R. 24, P. 195-196), 395.74 feet to a re-bar; thence North 89 degrees 56
minutes 53 seconds West along a line formerly known as the center of Rabb’s Lane, 1801.12 feet to a
re-bar; thence North 89 degrees 39 minutes 00 seconds West along the extended Southerly line of a
0.42 acre tract of land, 285.87 feet to the center of S.R. 56; thence along the centerline of said
S.R. 56 the following three courses; thence South 22 degrees 02 minutes 46 seconds West, 5608 feet
to a P.K. nail; thence South 32 degrees 15 minutes 46 seconds West, 1 12.99 feet to a P.K. nail;
thence South 35 degrees 51 minutes 08 seconds West, 553.55 feet to the intersection of said
centerline with the extended Northerly right-of-way of said Sixth Street; thence South 53 degrees
47 minutes 08 seconds East along said right-of-way line, 41 .04 feet to the point of beginning.



EXCEPTING THEREFROM: Being a part of Section 2, Township 3 North, Range 1 West of the First
Principal Meridian located in the City of Rising Sun, Ohio County, Indiana, described as follows:



Commencing at an iron pin in the southerly right-of-way line of Sixth Street marking the most
northerly corner of Pinkney James Addition to the City of Rising Sun; thence north 36 degrees 12
minutes 52 seconds east along the westerly line of said Pinkney James Addition 8250 feet to the
northerly right-of-way line of said Sixth Street, thence south 53 degrees 47 minutes 08 seconds
east along said right-of-way line and along the boundary of a 57.820 acre tract of land 329.26 feet
to a re-bar and the point of beginning; thence north 34 degrees 47 minutes 10 seconds east 108.10
feet to a re-bar; thence south 55 degrees 33 minutes 55 seconds east 191.79 feet to a re-bar;
thence south 36 degrees, 12 minutes 52 seconds west 114.02 feet to a re-bar in the northerly
right-of-way line of said Sixth Street; thence north 53 degrees 47 minutes 08 seconds west along
said right of-way 189.00 feet to the point of beginning. Containing 0.485 acres.



ALSO: Being part of Section 2, Township 3 North, Range 1 West of the First Principal Meridian
located in the City of Rising Sun, Ohio County, Indiana, described as follows:




 


 









 






Commencing at an iron pin in the Southerly right-of-way line of Sixth Street marking the most
Northerly corner of Pinkney James Addition to the City of Rising Sun; thence North 36 degrees 12
minutes 52 seconds East along the Westerly line of said Pinkney James Addition 82.50 feet to a
railroad spike in the Northerly right-of-way line of said Sixth Street; 553.55 feet to a P.K. nail;
thence North 32 degrees 15 minutes 46 seconds East, 112.99 feet to a P. K. nail; thence North 22
degrees 02 minutes 46 seconds East, 56.08 feet to a P.K. a nail; thence leaving said road South 89
degrees 3, minutes 00 seconds East along the extended Southerly line of a 0.42 acre tract of land
285.87 feet to a re-bar; thence South 89 degrees 56 minutes 53 seconds East along a line formerly
known as the center of Rabb’s Lane, also being the extended Southerly line of a 128.249 acre tract
of land 1801 .1 2 feet to a re-bar; thence South 50 degrees 51 minutes 37 seconds East along the
boundary of a 10.2! +1- acre tract of land owned by Gregory H. Anderson and Barbara Anderson (D.R.
24, P. 195-196), 395.74 feet to the edge of the Ohio River and the point of beginning; thence
continuing South 50 degrees 51 minutes 37 seconds East, 490.67 feet to the Indiana-Kentucky border
in the Ohio River; thence along said Indiana-Kentucky border the following seven courses; thence
South 35 degrees 39 minutes 30 seconds West, 178.10 feet; thence South 41 degrees 57 minutes 54
seconds West, 267.61 feet; thence South 45 degrees 39 minutes 22 seconds West, 236.12 feet; thence
South 52 degrees 10 minutes 43 seconds West, 58.09 feet; thence South 43 degrees 14 minutes 30
seconds West, 76.63 feet; thence South 49 degrees 29 minutes 45 seconds West, 241.34 feet; thence
South 54 degrees 20 minutes 17 seconds West, 780.32 feet; thence leaving said state border North 53
degrees 47 minutes 08 seconds West, 562.26 feet to a re-bar at the edge of said Ohio River marking
the most Easterly corner of lands owned by John D. Mitchell and Janet C. Mitchell (D.R. 25, P.
312); thence along the edge of said river and the boundary of a 57.820 acre tract of land the
following four courses: thence North 59 degrees 00 minutes 00 seconds East, 154.19 feet; thence
North 53 degrees 29 minutes 16 seconds East, 458.01 feet; thence North 47 degrees 06 minutes 00
seconds East, 362.74 feet; thence North 48 degrees 48 minutes 00 seconds East, 896.54 feet to the
point of beginning.




Tract IV



A part of the Northeast Quarter of Fractional Section 2, Township 3 North, Range I West, more fully
described as follows: Commencing at an iron pin 233.15 feet S 56“OO’ East of the intersection of
Walnut Street and Sixth Street in said Town: Thence N 56” 00’ West along the centerline of Sixth
Street 50.00 feet to a P.K. nail, which is the true point of beginning; Thence continuing along the
centerline of Sixth Street N 56” 00’ West 156.65 feet to a P.K. nail, thence N 34” 15’ East 153.65
feet to a stake; thence S 62“33’ East, 113.00 feet to a stake, thence S 27’23’ West 32.45 feet,
thence N 62“37’ West 44.55 feet, thence S 27“33’ West 35.00 feet, Thence S 62“37’ East 44.55 feet,
thence S 27“23’ West 19.95 feet; thence 5 56” 00’ East 32.80 feet, thence S 34“00’ West 78.50 feet
to the true point of beginning.



EXCEPTING THEREFROM: Being a part of Section 2, Township 3 North, Range I West of the First
Principal Meridian located in the City of Rising Sun, Ohio County, Indiana, described as follows:





 


 









 






Commencing at an iron pin in the southerly right-of-way line of Sixth Street marking the most
northerly corner of Pinkney James Addition to the City of Rising Sun; thence north 36 degrees 12
minutes 52 seconds east along the westerly line of said Pinkney James Addition 82.50 feet to the
northerly right-of-way line of said Sixth Street thence south 53 degrees 47 minutes 08
seconds east along said right-of-way line and along the boundary of a 57.820 acre tract of land
529.26 feet to a re-bar and the point of beginning; thence north 34 degrees 47 minutes 10 seconds
east 108.10 feet to a re-bar; thence south 55 degrees 33 minutes 55 seconds east 19 1.79 feet to a
re-bar; thence south 36 degrees, 12 minutes 52 seconds west 114.02 feet to a re-bar in the
northerly right-of-way line of said Sixth Street; thence north 53 degrees 47 minutes 08 seconds
west along said right-of-way 189.00 feet to the point of beginning. Containing 0.485 acres.



2, Leased Real Property.





Office Lease located at 4670 South Fort Apache, Suite 190, Las Vegas, Nevada 89147.


 


 









 





SCHEDULE 4.01(k)




Multiemployer Plans




None.





 


 











 




SCHEDULE 4.01(o)




Subsidiaries




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction	 	 	 	Number of	 	 	Percentage	 	 	 
	 	 	of	 	Class of	 	Securities	 	 	owned by	 	 	 
	Name	 	Organization	 	Security	 	issued	 	 	Loan Party	 	 	Ownership
	Full House Resorts
	 	Delaware	 	Common Stock	 	 	18,001,681	 	 	 	0	 	 	n/a
	Full House Subsidiary, Inc
	 	Delaware	 	Common Stock	 	 	1,000	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Full House Subsidiary II, Inc.
	 	Nevada	 	Common Stock	 	 	1,000	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Gaming Entertainment (Montana) LLC
	 	Nevada	 	Membership	 	 	N/A	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Gaming Entertainment (Santa Fe) LLC
	 	Nevada	 	Membership	 	 	N/A	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Gaming Entertainment (Indiana) LLC
	 	Nevada	 	Membership	 	 	N/A	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Stockman’s Casino
	 	Nevada	 	Common Stock	 	 	2,000	 	 	 	100	%	 	Wholly owned by Full House Resorts
	Gaming Entertainment (Michigan) LLC
	 	Delaware	 	Membership	 	 	N/A	 	 	 	50	%	 	49% directly owned by Full House Resorts, 1% owned by Full House Subsidiary, Inc, 50% owned by third-party
	Gaming Entertainment (Delaware) LLC
	 	Delaware	 	Membership	 	 	N/A	 	 	 	50	%	 	50% owned by Full House Subsidiary, Inc.







 


 









 





SCHEDULE 4.01(v)




Agreements With Affiliates




1. Investor Agreement by and between Full House Resorts, Inc. and RAM Entertainment, LLC, dated
February 15, 2002.



2. Amendment to Investor Agreement by and between Full House Resorts, Inc. and RAM Entertainment,
LLC, dated May 31, 2005.



3. 2006 Incentive Compensation.



4. Employment Agreement, dated July 17, 2007, between Full House Resorts, Inc. and Andre Hilliou.



5. Employment Agreement, dated July 17, 2007, between Full House Resorts, Inc. and Mark J. Miller.



6. Employment Agreement, dated April 10, 2007, between Full House Resorts, Inc. and Wes Elam.



7. Employment Agreement, dated April 10, 2007, between Full House Resorts, Inc. and Barth F. Aaron




 


 









 







SCHEDULE 5.02(a)




Existing Indebtedness




None





 


 









 







SCHEDULE 5.02(b)




Existing Liens




The purchase money security interests in gaming equipment and systems created by the following
agreements:



1. Aristocrat Corporate Purchase Agreement dated January 19, 2010



2. Bally Sales and Security Agreement dated September 7, 2007



3. Bally Sales and Security Agreement dated February 28, 2008



4. Bally Sales and Security Agreement dated January 19, 2009



5. Bally Sales and Security Agreement dated September 11, 2009



6. IGT Equipment Sales and Software License Agreement dated October 19, 2010


 


 









 





SCHEDULE 5.02(e)




EXISTING INVESTMENTS




1. Amended and Restated Class III Management Agreement dated November 18, 1996 between Nottawaseppi
Huron Band of Potawatomi and Gaming Entertainment (Michigan) LLC.



2. Management Agreement by and between Gaming Entertainment (Delaware), LLC and Harrington Raceway,
Inc. dated January 31,1996.



3. Amendment to Management Agreement by and between Gaming Entertainment (Delaware), LLC and
Harrington Raceway, Inc. dated March 18, 1998.



4. Amendment to Management Agreement by and between Gaming Entertainment (Delaware), LLC and
Harrington Raceway, Inc. dated July 1, 1999.



5. Amendment to Management Agreement by and between Gaming Entertainment (Delaware), LLC and
Harrington Raceway, Inc. dated February 4, 2002.



6. Economic Development Agreement between Full House Resorts, Inc. and Northern Cheyenne Tribe
dated May 24, 2005.



7. Development Agreement by and among Pueblo of Nambé, Nambé Pueblo Gaming Enterprise Board and
Gaming Entertainment (Santa Fe), LLC dated as of September 20, 2005,



8. Security and Reimbursement Agreement by and among the Nambé Pueblo Gaming Enterprise Board,
Gaming Entertainment (Santa Fe), LLC and the Pueblo of Nambé dated as of September 20, 2005.



9. Class III Gaming Management Agreement between the Northern Cheyenne Tribe and Gaming
Entertainment (Montana), LLC dated January 20, 2006.



10. Development Agreement by and between the Northern Cheyenne Tribe and Full House Resorts, Inc.
dated May 24, 2005.



11. Security and Reimbursement Agreement by and between the Northern Cheyenne Tribe and Full House
Resorts, Inc. dated August 23, 2005.



12. Management Agreement between Nottawaseppi Huron Band of Potawatomi and Gaming Entertainment
(Michigan), LLC dated June 12, 2006.



13. Management Reorganization Agreement, dated June 18, 2007 by Gaming Entertainment (Delaware),
LLC and Harrington Raceway, Inc.



14. Management Reorganization Agreement, dated June 18, 2007 by Gaming Entertainment (Delaware),
LLC and Harrington Raceway, Inc.




 


 











 





EXHIBIT A




NOTICE OF LOAN BORROWING



[Date]




Wells Fargo Bank, National Association

   as the Administrative Agent

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, CA 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com




1. Reference is made to that certain Credit Agreement, dated as of October 29, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among: (1) FULL HOUSE RESORTS, INC., a Delaware corporation (“Borrower”);
(2) each of the financial institutions from time to time listed in Schedule I to the Credit
Agreement, as amended, restated, supplemented or otherwise modified from time to time
(collectively, the “Lenders”); and (3) WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells
Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), as Collateral Agent, as Security Trustee, as L/C Issuer and as Swing Line Lender.
Unless otherwise indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.



2. Pursuant to Section 2.01(c) of the Credit Agreement, the Borrower hereby
irrevocably requests a



Revolving Loan Borrowing



Term Loan Borrowing



upon the following terms1:




(a) The principal amount of the requested Borrowing is to be $_____;



(b) The requested Revolving Loan Borrowing is to consist of [“Base Rate”] [“LIBOR”] Loans;



(c) If the requested Revolving Loan Borrowing is to consist of LIBOR Loans, the initial
Interest Period for such Loans will be __________ month[s]; and





 




	 	 	 
	1	 	Paragraphs 2(b) and 2(c) below need only be
completed in the case of a Notice of Loan Borrowing for a Revolving Loan
Borrowing. Per Section 2.01(c) of the Credit Agreement, the Term Loan
Borrowing shall be initially made as a Base Rate Portion.



 


A-1









 










(d) The date of the requested Borrowing is to be _______, ______.



3. The Borrower hereby certifies to the Administrative Agent and the Lenders that, on the date
listed in Section 2(d) above and after giving effect to the requested Borrowing:



(a) The representations and warranties of the Loan Parties set forth in Article IV of
the Credit Agreement and in the other Credit Documents are true and correct in all material
respects (except to the extent that such representation and warranty is qualified by materiality,
in which case such representation and warranty must be true in all respects) as if made on such
date (except for representations and warranties expressly made as of a specified date, which shall
be true and correct in all material respects (except to the extent that such representation and
warranty is qualified by materiality, in which case such representation and warranty must be true
in all respects) as of such date);



(b) No Default has occurred and is continuing or will result from the requested Borrowing; and



(c) No material adverse change in the business, operations, condition (financial or
otherwise), assets or liabilities (whether actual or contingent) of the Borrower Parties taken as a
whole (including the Purchased Assets as if they were owned on December 31, 2009 and for the twelve
months prior thereto), having occurred since December 31, 2009.



4. Please disburse the proceeds of the requested Borrowing to:


 


A-2









 





IN WITNESS WHEREOF, the Borrower has executed this Notice of Loan Borrowing on the date set
forth above.



	 	 	 	 	 
	 	



FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


A-3









 






	 	 	 	 	 



EXHIBIT B




NOTICE OF CONVERSION



[Date]




Wells Fargo Bank, National Association

   as the Administrative Agent

201 Third Street, 11th Floor

MAC Mail A0187-110

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com





1. Reference is made to that certain Credit Agreement, dated as of October 29, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among: (1) FULL HOUSE RESORTS, INC., a Delaware corporation (“Borrower”);
(2) each of the financial institutions from time to time listed in Schedule I to the Credit
Agreement, as amended, restated, supplemented or otherwise modified from time to time
(collectively, the “Lenders”); and (3) WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells
Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), as Collateral Agent, as Security Trustee, as L/C Issuer and as Swing Line Lender.
Unless otherwise indicated, all terms defined in the Credit Agreement have the same respective
meanings when used herein.



2. Pursuant to Section 2.01(e) of the Credit Agreement, the Borrower hereby
irrevocably requests to convert a



Revolving Loan Borrowing



Term Loan Borrowing



as follows:




(a) The Revolving Loan Borrowing to be converted consists of [“Base Rate”] [“LIBOR”] Loans
in the aggregate principal amount of $_________ which were initially advanced to the Borrower on
_______, _______;



(a) The Portion of the Term Loan Borrowing to be converted is the [“Base Rate”] [“LIBOR”]
Portion in the aggregate principal amount of $_________ [which has a current Interest Period of
[one (1)] [three (3)] [six (6)] month[s] expiring on _______, ________];



(b) Such Borrowing is to be converted into a Borrowing consisting of the following type(s),
amount(s) and, for each LIBOR Loan or Portion, Interest Period:



	 	 	 	 	 

	Type
	 	Amount
	 	Interest Period





 


B-1









 






The Loans or Portions of the Borrowing are to be converted into [“Base Rate”] [“LIBOR”] Loans
or Portions, as applicable;



(c) If such Loans or Portions are to be converted into LIBOR Loans or Portions, the initial
Interest Period for such Loans or Portions commencing upon conversion will be _______ months;
and



(d) The date of the requested conversion is to be _______, _______.



3. For each conversion of a Borrowing consisting of Base Rate Loans to LIBOR Loans, the
Borrower hereby certifies to the Administrative Agent and the Lenders that, on the date of this
Notice of Conversion, and after giving effect to the requested conversion, no Event of Default has
occurred and is continuing.



[This Space Intentionally Left Blank]



 


B-2









 








IN WITNESS WHEREOF, the Borrower has executed this Notice of Conversion on the date set
forth above.




	 	 	 	 	 
	 	



FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


B-3









 






	 	 	 	 	 



EXHIBIT C




NOTICE OF INTEREST PERIOD SELECTION



[Date]




Wells Fargo Bank, National Association

   as the Administrative Agent

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, CA 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com:





1. Reference is made to that certain Credit Agreement, dated as of October 29, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among: (1) FULL HOUSE RESORTS, INC., a Delaware corporation (the
“Borrower”); (2) each of the financial institutions from time to time listed in
Schedule I to the Credit Agreement, as amended, restated, supplemented or otherwise
modified from time to time (collectively, the “Lenders”); and (3) WELLS FARGO BANK,
NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as Collateral Agent, as Security Trustee, as L/C
Issuer and as Swing Line Lender. Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.



2. Pursuant to Section 2.01(f) of the Credit Agreement, the Borrower hereby
irrevocably selects a new Interest Period for a



Revolving Loan Borrowing



Term Loan Borrowing



as follows:




(a) The Revolving Loan Borrowing for which a new Interest Period is to be selected consists
of LIBOR Loans in the aggregate principal amount of $_______ which were initially advanced to
the Borrower on _______, _______;



(a) The Portion of the Term Loan Borrowing for which a new Interest Period is to be
selected consists of LIBOR Portions in the aggregate principal amount of $________ which were
initially [advanced to] [converted by] the Borrower on ____________, ________;



(b) The last day of the current Interest Period for such Loans or Portion(s) is _____,
________; and


 


C-1









 





(c) The next Interest Period for such Loans or Portion(s) commencing upon the last day of the
current Interest Period is to be [one (1)] [three (3)] [six (6)] month[s].



3. The Borrower hereby certifies to the Administrative Agent and the Lenders that on the date
of this Notice of Interest Period Selection, after giving effect to the requested selection, no
Event of Default has occurred and is continuing.



[This Space Intentionally Left Blank]



 


C-2









 








IN WITNESS WHEREOF, the Borrower has executed this Notice of Interest Period Selection on the
date set forth above.




	 	 	 	 	 
	 	



FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


C-3









 






	 	 	 	 	 



EXHIBIT D




NOTICE OF SWING LINE BORROWING



[Date]




Wells Fargo Bank, National Association

   as the Administrative Agent

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, CA 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com





1. Reference is made to that certain Credit Agreement, dated as of October 29, 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among: (1) FULL HOUSE RESORTS, INC., a Delaware corporation (the
“Borrower”); (2) each of the financial institutions from time to time listed in
Schedule I to the Credit Agreement, as amended, restated, supplemented or otherwise
modified from time to time (collectively, the “Lenders”); and (3) WELLS FARGO BANK,
NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as Collateral Agent, as Security Trustee, as L/C
Issuer and as Swing Line Lender. Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.



2. Pursuant to Section 2.03(b) of the Credit Agreement, the Borrower hereby
irrevocably requests the Swing Line Borrowing upon the following terms:



(a) The principal amount of the Swing Line Borrowing is to be $_______; and



(b) The date of the Swing Line Borrowing is to be ________, _________.



3. The Borrower hereby certifies to the Administrative Agent and the Lenders that, on the date
listed in Section 2(b) above and after giving effect to the requested Swing Line Borrowing:



(a) The representations and warranties of the Loan Parties set forth in Article IV of
the Credit Agreement and in the other Credit Documents are true and correct in all material
respects (except to the extent that such representation and warranty is qualified by materiality,
in which case such representation and warranty must be true in all respects) as if made on such
date (except for representations and warranties expressly made as of a specified date, which shall
be true and correct in all material respects (except to the extent that such representation and
warranty is qualified by materiality, in which case such representation and warranty must be true
in all respects) as of such date);


 


D-1









 





(b) No Default has occurred and is continuing or will result from the Borrowing; and



(c) No material adverse change in the business, operations, condition (financial or
otherwise), assets, liabilities (whether actual or contingent) or prospects of the Borrower Parties
taken as a whole (including the Purchased Assets as if they were owned on December 31, 2009 and for
the twelve months prior thereto), having occurred since December 31, 2009.



4. Please disburse the proceeds of the Swing Line Borrowing to:



[This Space Intentionally Left Blank]



 


D-2









 








IN WITNESS WHEREOF, the Borrower has executed this Notice of Swing Line Borrowing on the date
set forth above.



	 	 	 	 	 
	 	


FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


D-3









 






	 	 	 	 	 



EXHIBIT E




REVOLVING LOAN NOTE



			
	 	 	 
	$________
	 	_________________________, _____






FOR VALUE RECEIVED, FULL HOUSE RESORTS, INC., a Delaware corporation (the “Borrower”)
hereby promise to pay to the order of ________, a _________ (the
“Lender”), the principal sum of ________ DOLLARS ($___________) or such lesser
amount as shall equal the aggregate outstanding principal balance of the Revolving Loans made by
the Lender to the Borrower pursuant to that certain Credit Agreement, dated as of October 29, 2010,
among the Borrower, the financial institutions listed in Schedule I thereto, Wells Fargo Bank,
National Association, as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”), as Collateral Agent, as Security Trustee, as L/C Issuer and as
Swing Line Lender (as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), on or before the Maturity Date specified in the Credit Agreement; and
to pay interest on said sum, or such lesser amount, at the rates and on the dates provided in the
Credit Agreement.



The Borrower shall make all payments hereunder, for the account of the Lender’s Applicable
Lending Office, to the Administrative Agent as indicated in the Credit Agreement, in lawful money
of the United States and in same day or immediately available funds.



The Borrower hereby authorizes the Lender to record on the schedule(s) annexed to this Note
the date and amount of each Revolving Loan and of each payment or prepayment of principal made by
the Borrower; provided, however, that the failure of the Lender to make, or any
error in making, any such notation shall not affect the Borrower’s obligations hereunder.



This Note is one of the Revolving Loan Notes referred to in the Credit Agreement. This Note
is subject to the terms of the Credit Agreement, including the rights of prepayment and the rights
of acceleration of maturity set forth therein, and is secured by the Security Documents. Terms
used herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise
defined herein.



The transfer, sale or assignment of any rights under or interest in this Note is subject to
certain restrictions contained in the Credit Agreement, including Section 8.05 thereof.


 


E-1









 





The Borrower shall pay all fees and expenses, including attorneys’ fees, incurred by the
Lender in the enforcement or attempt to enforce any of the Borrower’s obligations hereunder not
performed when due. Except as otherwise provided in the Credit Documents, the Borrower hereby
waives notice of presentment, demand, protest or notice of any kind.



This Note shall be governed by and construed in accordance with the laws of the State of New
York without reference to conflicts of law rules other than Section 5-1401 of the General
Obligations Law of the State of New York.



[This Space Intentionally Left Blank]



 


E-2









 








IN WITNESS WHEREOF, the Borrower has executed this Revolving Loan Note on the date set forth
above.



	 	 	 	 	 
	 	FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


E-3









 






	 	 	 	 	 



LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Interest Period	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Unpaid	 	 	 	 
	 	 	 	 	Type of	 	 	Amount of	 	 	Principal Paid or	 	 	Principal	 	 	Notation	 
	Date	 	 	Loan	 	 	Loan	 	 	Prepaid	 	 	Balance	 	 	Made By	 




 


E-4









 






EXHIBIT F




TERM LOAN NOTE



			
	 	 	 
	$_______
	 	_________________________, _____






FOR VALUE RECEIVED, FULL HOUSE RESORTS, INC., a Delaware corporation (the “Borrower”)
hereby promise to pay to the order of ________, a ________ (the
“Lender”), the principal sum of ________ DOLLARS ($________) in the amounts
and on such dates provided in the Credit Agreement (referred to below); and to pay interest on the
outstanding balance of said sum at the rates and on the dates provided in that certain Credit
Agreement, dated as of October 29, 2010, among the Borrower, the financial institutions listed in
Schedule I thereto, Wells Fargo Bank, National Association, as administrative agent for the Lenders
(in such capacity, the “Administrative Agent”), as Collateral Agent, as Security Trustee,
as L/C Issuer and as Swing Line Lender (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”); provided, however, that all
principal and accrued interest remaining unpaid shall be payable in full on the Maturity Date.



The Borrower shall make all payments hereunder, for the account of the Lender’s Applicable
Lending Office, to the Administrative Agent as indicated in the Credit Agreement, in lawful money
of the United States and in same day or immediately available funds.



This Note is one of the Term Loan Notes referred to in the Credit Agreement. This Note is
subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used
herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise defined
herein.



The transfer, sale or assignment of any rights under or interest in this Note is subject to
certain restrictions contained in the Credit Agreement, including Section 8.05 thereof.



The Borrower shall pay all fees and expenses, including attorneys’ fees, incurred by the
Lender in the enforcement or attempt to enforce any of the Borrower’s obligations hereunder not
performed when due. The Borrower hereby waives notice of presentment, demand, protest or notice of
any kind.



This Note shall be governed by and construed in accordance with the laws of the State of New
York without reference to conflicts of law rules other than Section 5-1401 of the General
Obligations Law of the State of New York.



[This Space Intentionally Left Blank]



 


F-1









 








IN WITNESS WHEREOF, the Borrower has executed this Term Loan Note on the date set forth above.



	 	 	 	 	 
	 	
FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


F-2









 






	 	 	 	 	 



EXHIBIT G




SWING LINE NOTE



			
	 	 	 
	$1,000,0000
	 	_________________________, _____






FOR VALUE RECEIVED, FULL HOUSE RESORTS, INC., a Delaware corporation (the “Borrower”),
hereby promise to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (the
“Lender”), the principal sum of ONE MILLION DOLLARS AND 00/100 ($1,000,000) or such lesser
amount as shall equal the aggregate outstanding principal balance of the Swing Line Loans made by
the Lender to the Borrower pursuant to that certain Credit Agreement, dated as of October 29, 2010,
among the Borrower, the financial institutions listed in Schedule I thereto, Wells Fargo Bank,
National Association, as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”), as Collateral Agent, as Security Trustee, as L/C Issuer and as
Swing Line Lender (as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), on or before the Maturity Date specified in the Credit Agreement; and
to pay interest on said sum, or such lesser amount, at the rates and on the dates provided in the
Credit Agreement.



The Borrower shall make all payments hereunder, for the account of the Lender’s Applicable
Lending Office, to the Administrative Agent as indicated in the Credit Agreement, in lawful money
of the United States and in same day or immediately available funds.



The Borrower hereby authorizes the Lender to record on the schedule(s) annexed to this Note
the date and amount of each Swing Line Loan and of each payment or prepayment of principal made by
the Borrower; provided, however, that the failure of the Lender to make, or any
error in making, any such notation shall not affect the Borrower’s obligations hereunder.



This Note is one of the Swing Line Notes referred to in the Credit Agreement. This Note is
subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used
herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise defined
herein.



The transfer, sale or assignment of any rights under or interest in this Note is subject to
certain restrictions contained in the Credit Agreement, including Section 8.05 thereof.



The Borrower shall pay all fees and expenses, including attorneys’ fees, incurred by the
Lender in the enforcement or attempt to enforce any of the Borrower’s obligations hereunder not
performed when due. Except as otherwise provided in the Credit Documents, the Borrower hereby
waives notice of presentment, demand, protest or notice of any other kind.


 


G-1









 





This Note shall be governed by and construed in accordance with the laws of the State of New
York without reference to conflicts of law rules other than Section 5-1401 of the General
Obligations Law of the State of New York.



[This Space Intentionally Left Blank]



 


G-2









 








IN WITNESS WHEREOF, the Borrower has executed this Swing Line Note on the date set forth
above.



	 	 	 	 	 
	 	
FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



 


G-3











 





EXHIBIT H




ASSIGNMENT AGREEMENT



THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of Attachment 1 hereto,
by and among:



(1) The financial institution designated under item A of Attachment 1 hereto as the Assignor
Lender (“Assignor Lender”); and



(2) The financial institution designated under item B of Attachment 1 hereto as the Assignee
Lender (“Assignee Lender”).



RECITALS




A. Assignor Lender is one of the Lenders which is a party to the Credit Agreement, dated as of
October 29, 2010 (as amended, supplemented or otherwise modified in accordance with its terms from
time to time, the “Credit Agreement”), by and among FULL HOUSE RESORTS, INC., a Delaware
corporation (the “Borrower”), the financial institutions listed in Schedule I to the Credit
Agreement (the “Lenders”), Wells Fargo Bank, National Association, as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”), as Collateral Agent, as
Security Trustee, as L/C Issuer and as Swing Line Lender.



B. Assignor Lender wishes to sell, and Assignee Lender wishes to purchase, all or a portion of
Assignor Lender’s rights under the Credit Agreement pursuant to Section 8.05(c) of the
Credit Agreement.



AGREEMENT




Now, therefore, the parties hereto hereby agree as follows:



1. Definitions. Except as otherwise defined in this Assignment Agreement, all
capitalized terms used herein and defined in the Credit Agreement have the respective meanings
given to those terms in the Credit Agreement.



2. Sale and Assignment. On the terms and subject to the conditions of this Assignment
Agreement, Assignor Lender hereby agrees to sell, assign and delegate to Assignee Lender and
Assignee Lender hereby agrees to purchase, accept and assume the rights, obligations and duties of
a Lender under the Credit Agreement and the other Credit Documents having a Revolving Loan
Commitment, Term Loan and corresponding Proportionate Shares as set forth under Column 1 opposite
Assignee Lender’s name on Attachment 1 hereto. Such sale, assignment and delegation shall become
effective on the date designated in Attachment 1 hereto (the “Assignment Effective Date”),
which date shall be, unless the Administrative Agent shall otherwise consent, at least five (5)
Business Days after the date following the date counterparts of this Assignment Agreement are
delivered to the Administrative Agent in accordance with Section 3 hereof.


 


H-1









 





3. Assignment Effective Notice. Upon (a) receipt by the Administrative Agent of
counterparts of this Assignment Agreement (to each of which is attached a fully completed
Attachment 1), each of which has been executed by Assignor Lender and Assignee Lender (and, to the
extent required by Section 8.05(c) of the Credit Agreement, by the Borrower and the
Administrative Agent) and (b) payment to the Administrative Agent of the registration and
processing fee specified in Section 8.05(e) of the Credit Agreement by Assignor Lender, the
Administrative Agent will transmit to the Borrower, Assignor Lender and Assignee Lender an
Assignment Effective Notice substantially in the form of Attachment 2 hereto, fully completed (an
“Assignment Effective Notice”).



4. Assignment Effective Date. At or before 12:00 noon (local time of Assignor Lender)
on the Assignment Effective Date, Assignee Lender shall pay to Assignor Lender, in immediately
available or same day funds, an amount equal to the purchase price, as agreed between Assignor
Lender and Assignee Lender (the “Purchase Price”), for the Revolving Loan Commitment (and
related Loans and participations in L/C Obligations), Term Loan and corresponding Proportionate
Shares purchased by Assignee Lender hereunder. Effective upon receipt by Assignor Lender of the
Purchase Price payable by Assignee Lender, the sale, assignment and delegation to Assignee Lender
of such Revolving Loan Commitment (and related Loans and participations in L/C Obligations), Term
Loan and corresponding Proportionate Shares as described in Section 2 hereof shall become
effective.



5. Payments After the Assignment Effective Date. Assignor Lender and Assignee Lender
hereby agree that the Administrative Agent shall, and hereby authorize and direct the
Administrative Agent to, allocate amounts payable under the Credit Agreement and the other Credit
Documents as follows:



(a) All principal payments made after the Assignment Effective Date with respect to each
Revolving Loan Commitment, Term Loan and corresponding Proportionate Shares assigned to Assignee
Lender pursuant to this Assignment Agreement shall be payable to Assignee Lender.



(b) All interest, fees and other amounts accrued after the Assignment Effective Date with
respect to the Revolving Loan Commitment, Term Loan and corresponding Proportionate Shares assigned
to Assignee Lender pursuant to this Assignment Agreement shall be payable to Assignee Lender.



Assignor Lender and Assignee Lender shall make any separate arrangements between themselves
which they deem appropriate with respect to payments between them of amounts paid under the Credit
Documents on account of the Revolving Loan Commitment, Term Loan and corresponding Proportionate
Shares assigned to Assignee Lender, and neither the Administrative Agent nor the Borrower shall
have any responsibility to effect or carry out such separate arrangements.



6. Delivery of Notes. On or prior to the Assignment Effective Date, Assignor Lender
will deliver to the Administrative Agent the Notes (if any) payable to Assignor Lender. On or
prior to the Assignment Effective Date, if requested, the Borrower will deliver to the
Administrative Agent new Notes for Assignee Lender and Assignor Lender, in each case in


 


H-2









 





principal amounts reflecting, in accordance with the Credit Agreement, their respective
Revolving Loan Commitments and Term Proportionate Share of the Term Loan (as adjusted pursuant to
this Assignment Agreement). As provided in Section 8.05(c) of the Credit Agreement, each
such new Note shall be dated the Initial Funding Date or such other date as may be agreed to by the
Assignee Lender. Promptly after the Assignment Effective Date, if new Notes are requested the
Administrative Agent will send to each of Assignor Lender and Assignee Lender, as applicable, its
new Notes and, if applicable, will send to the Borrower the superseded Notes payable to Assignor
Lender, marked “Replaced.”




7. Delivery of Copies of Credit Documents. Concurrently with the execution and
delivery hereof, Assignor Lender will provide to Assignee Lender (if it is not already a Lender
party to the Credit Agreement) conformed copies of all documents delivered to Assignor Lender on or
prior to the Initial Funding Date in satisfaction of the conditions precedent set forth in the
Credit Agreement.



8. Further Assurances. Each of the parties to this Assignment Agreement agrees that
at any time and from time to time upon the written request of any other party, it will execute and
deliver such further documents and do such further acts and things as such other party may
reasonably request in order to effect the purposes of this Assignment Agreement.



9. Further Representations, Warranties and Covenants. Assignor Lender and Assignee
Lender further represent and warrant to and covenant with each other, the Administrative Agent and
the Lenders as follows:



(a) Other than the representation and warranty that it is the legal and beneficial owner of
the interest being assigned hereby free and clear of any adverse claim, Assignor Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with the Credit Agreement or the other Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or the other Credit Documents furnished or the Collateral or any security interest
therein.



(b) Assignor Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any of the Guarantors or any of their
obligations under the Credit Agreement or any other Credit Documents.



(c) Assignee Lender confirms that it has received a copy of the Credit Agreement and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement.



(d) Assignee Lender will, independently and without reliance upon the Administrative Agent,
Assignor Lender or any other Lender and based upon 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 the Credit Agreement and the other Credit Documents.


 


H-3









 





(e) Assignee Lender appoints and authorizes the Administrative Agent to take such action as
the Administrative Agent on its behalf and to exercise such powers under the Credit Agreement and
the other Credit Documents as the Administrative Agent is authorized to exercise by the terms
thereof, together with such powers as are reasonably incidental thereto, all in accordance with
Article VII of the Credit Agreement.



(f) Assignee Lender agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and the other Credit Documents are required
to be performed by it as a Lender.



(g) Attachment 1 hereto sets forth administrative information with respect to Assignee Lender.



10. Effect of this Assignment Agreement. On and after the Assignment Effective Date,
(a) Assignee Lender shall be a Lender with a Revolving Loan Commitment, Term Loan and corresponding
Proportionate Shares equal to that set forth under Column 2 opposite Assignee Lender’s name on
Attachment 1 hereto and shall have the rights, duties and obligations of such a Lender under the
Credit Agreement and the other Credit Documents and (b) Assignor Lender shall be a Lender with a
Revolving Loan Commitment, Term Loan and corresponding Proportionate Shares equal to that set forth
under Column 2 opposite Assignor Lender’s name on Attachment 1 hereto, and shall have the rights,
duties and obligations of such a Lender under the Credit Agreement and the other Credit Documents
or, if the Revolving Loan Commitment or any Term Loan of Assignor Lender has been reduced to $0,
Assignor Lender shall cease to be a Lender and shall have no further obligation to make any Loans.



11. Miscellaneous. This Assignment Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without reference to conflicts of law rules
other than Section 5-1401 of the General Obligations Law of the State of New York. Section
headings in this Assignment Agreement are for convenience of reference only and are not part of the
substance hereof.



[This Space Intentionally Left Blank]



 


H-4









 








IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be executed by
their respective duly authorized officers as of the date set forth in Attachment 1 hereto.



	 	 	 	 	 
	 	



              
              
              
              
              
  , as

Assignor Lender



 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	 	


              
              
              
              
              
    , as

Assignee Lender


 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


H-5









 






	 	 	 	 	 
	CONSENTED TO AND ACKNOWLEDGED BY:




FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 	 
	By:  	 	 	 
	Name:  	 	 	 
	Title:  	 	 	 


 


H-6









 






	 	 	 	 	 
	CONSENTED TO, ACKNOWLEDGED BY,

AND ACCEPTED FOR RECORDATION

IN REGISTER:



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as the Administrative Agent

 	 	 
	By:  	 	 	 
	Name:  	 	 	 
	Title:  	 	 	 


 


H-7









 





ATTACHMENT 1




TO ASSIGNMENT AGREEMENT

NAMES, ADDRESSES, REVOLVING LOAN COMMITMENTS, TERM LOANS AND

PROPORTIONATE SHARES OF ASSIGNOR LENDER
AND ASSIGNEE LENDER

AND ASSIGNMENT EFFECTIVE DATE



                    , 20     




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Column 1	 	 	Column 2	 
	 	 	 	 	 	 	Revolving Loan	 	 	Revolving Loan	 
	 	 	 	 	 	 	Commitment,	 	 	Commitment,	 
	 	 	 	 	 	 	Term Loan	 	 	Term Loan	 
	 	 	 	 	 	 	Principal and	 	 	Principal and	 
	 	 	 	 	 	 	Proportionate	 	 	Proportionate	 
	 	 	 	 	 	 	Shares	 	 	Shares After	 
	A.	 	ASSIGNOR LENDER	 	 	Transferred1, 2	 	 	Assignment1	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	%	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Applicable Lending Office:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	Address for Notices:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Telephone No.:	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	 	 
	 
	 	Telecopier No.:	 	 	 	 	 	 	 	 
	 
	 	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Wiring Instructions:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 







 




	 	 	 
	1	 	To be expressed by a percentage rounded to
the eighth digit to the right of the decimal point.
	 
	2	 	Proportionate Share of Total Revolving Loan
Commitment and/or aggregate Effective Amount of all Term Loans outstanding, in
each case as contemplated to be sold by Assignor Lender and purchased by
Assignee Lender pursuant to this Assignment Agreement.



 


H-8









 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Column 1	 	 	Column 2	 
	 	 	 	 	 	 	Revolving Loan	 	 	Revolving Loan	 
	 	 	 	 	 	 	Commitment, 	 	 	Commitment, 	 
	 	 	 	 	 	 	Term Loan	 	 	Term Loan	 
	 	 	 	 	 	 	Principal and	 	 	Principal and	 
	 	 	 	 	 	 	Proportionate	 	 	Proportionate	 
	 	 	 	 	 	 	Shares	 	 	Shares After	 
	B.	 	ASSIGNEE LENDER	 	 	Transferred1, 2	 	 	Assignment1	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	%	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Applicable Lending Office:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Address for Notices:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	Telephone No.:	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	 	 
	 
	 	Telecopier No.:	 	 	 	 	 	 	 	 
	 
	 	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Wiring Instructions:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	%	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Applicable Lending Office:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 







 




	 	 	 
	1	 	To be expressed by a percentage rounded to
the eighth digit to the right of the decimal point.
	 
	2	 	Proportionate Share of Total Revolving Loan
Commitment and/or aggregate Effective Amount of all Term Loans outstanding, in
each case as contemplated to be sold by Assignor Lender and purchased by
Assignee Lender pursuant to this Assignment Agreement.



 


H-9









 










	 	 	 	 	 	 	 	 	 	 	 	 	 

	 
	 	Address for Notices:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	Telephone No.:	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	 	 
	 
	 	Telecopier No.:	 	 	 	 	 	 	 	 
	 
	 	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Wiring Instructions:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	C.
	 	ASSIGNMENT EFFECTIVE DATE:	 	 	 	 	 	 	 	 
	 
	 	 	                                        , 20     	 	 	 	 	 	 	 	 	 






 


H-10











 




ATTACHMENT 2




TO ASSIGNMENT AGREEMENT

FORM OF

ASSIGNMENT EFFECTIVE NOTICE




Reference is made to that certain Credit Agreement, dated as of October 29, 2010 (as amended,
supplemented or otherwise modified in accordance with its terms from time to time, the “Credit
Agreement”), by and among FULL HOUSE RESORTS, INC., a Delaware corporation (the
“Borrower”), the financial institutions listed in Schedule I to the Credit Agreement (the
“Lenders”), Wells Fargo Bank, National Association, as administrative agent for the Lenders
(in such capacity, the “Administrative Agent”), as Collateral Agent, as Security Trustee,
as L/C Issuer and as Swing Line Lender. The Administrative Agent hereby acknowledges receipt of
five executed counterparts of a completed Assignment Agreement, a copy of which is attached hereto.
Terms defined in such Assignment Agreement are used herein as therein defined.



1. Pursuant to such Assignment Agreement, you are advised that the Assignment Effective Date
will be                     .



2. Pursuant to such Assignment Agreement, Assignor Lender is required to deliver to the
Administrative Agent on or before the Assignment Effective Date the Note, if any, payable to
Assignor Lender.



3. Pursuant to such Assignment Agreement and the Credit Agreement, the Borrower is required to
deliver to the Administrative Agent on or before the Assignment Effective Date the following Notes,
each dated                      [Insert appropriate date]:



[Describe each new Note for Assignor Lender and Assignee Lender as to
principal amount, to the extent that each such Note is requested by Assignor
Lender and/or Assignee Lender.]



4. Pursuant to such Assignment Agreement, Assignee Lender is required to pay its Purchase
Price to Assignor Lender at or before 12:00 noon (local time of Assignor Lender) on the Assignment
Effective Date in immediately available funds.



	 	 	 	 	 
	 	Very truly yours,

WELLS FARGO BANK, NATIONAL ASSOCIATION, as the
Administrative Agent

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



 


H-11









 





	 	 	 	 	 



EXHIBIT I




COMPLIANCE CERTIFICATE




(See attached)




 


 









 







EXHIBIT I




COMPLIANCE CERTIFICATE




___________________ ___, 20__




Wells Fargo Bank, National Association,

as Administrative Agent

201 Third Street, 11th Floor

MAC Mail A0187-110

San Francisco, California 94103

Attention: Deal Administrator

Tel. No. (415) 477-5314

Fax No. (415) 546-6353

E-mail: agentsf@wellsfargo.com





This Compliance Certificate is delivered pursuant to Section 5.01(a)(iii) of that
certain Credit Agreement, dated as of October 29, 2010 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among (1) FULL HOUSE
RESORTS, INC., a Delaware corporation (the “Borrower”); (2) each of the financial
institutions from time to time listed in Schedule I to the Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to time (collectively, the
“Lenders”); and (3) WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as
Collateral Agent, as Security Trustee, as L/C Issuer and as Swing Line Lender.



Terms defined in the Credit Agreement and not otherwise defined in this Compliance Certificate
(this “Certificate”) shall have the meanings defined for them in the Credit Agreement.
Section references herein relate to the Credit Agreement unless stated otherwise. In the event of
any conflict between the calculations set forth in this Compliance Certificate and the manner of
calculation required by the Credit Agreement, the terms of the Credit Agreement shall govern and
control.



This Compliance Certificate is delivered in accordance with Section 5.01(a)(iii) of
the Credit Agreement by the undersigned Senior Finance Officer of the Borrower, on behalf of the
Borrower. This Compliance Certificate is delivered for the fiscal [quarter/year] ended
 ____________,
 ____
(the “Test Date”). Computations indicating compliance with respect to
the covenants in Sections 5.01(i), 5.02(a), 5.02(c), 5.02(d), 5.02(q) and 5.03 of the
Credit Agreement are set forth below:



1. Section 5.01(i) — Updated Schedules for New Subsidiaries.



During the fiscal quarter ended on the Test Date, no Loan Party has reorganized, recapitalized
or consolidated with or merged into any other Person or permitted any other Person to merge into
it, acquired any Person as a new Subsidiary or acquired all or
substantially all of the assets of any other Person, except as previously disclosed to the
Administrative Agent in accordance with the Credit Agreement.


 


1









 





2. Section 5.02(a) — Indebtedness.



(a) Section 5.02(a)(vii). The aggregate principal amount of purchase money
Indebtedness and Capital Lease obligations is $___________. The aggregate principal amount of such
Indebtedness shall not exceed and since the Effective Date has never exceeded $750,000 at any one
time outstanding.



(b) Section 5.02(a)(viii). The aggregate principal amount of Indebtedness owing by
the Loan Parties to Nevada State Bank contemplated by Section 5.02(a)(viii) is
$________. The aggregate principal amount of such Indebtedness shall not exceed (i) $7,900,000
during the period commencing on the Effective Date and ending on the earlier of (x) June 30, 2011
and (y) two Business Days prior to the Initial Funding Date and (ii) zero dollars ($0) thereafter.



3. Section 5.02(c) — Asset Dispositions.




(a) Section 5.02(c)(vi). The aggregate principal amount of all sales or other
dispositions not contemplated by Sections 5.02(c)(i) — (v) and (vii) to date for fiscal
year [20
 __
] is $________. The aggregate Net Proceeds of all such dispositions shall not exceed
$500,000 in any fiscal year and in any event have all been applied to the prepayment of Obligations
or otherwise utilized to the extent required by Section 2.06(c)(iv).



(b) Section 5.02(c)(vii). The aggregate principal amount of Net Proceeds of any sale
or condemnation by the City of the Rising Sun of approximately twenty-five (25) acres of land of
the Grand Victoria Casino & Resort as contemplated by Section 5.02(c)(vii) is
$________. Such Net Proceeds have been applied to the prepayment of the Obligations or
otherwise utilized to the extent required by Section 2.06(c)(iv) or Section
2.06(c)(vii).



4. Section 5.02(d) — Mergers, Acquisitions, etc.



As of the Test Date, the Borrower has delivered to the Administrative Agent all information
required to be delivered pursuant to Section 5.02(d) and all acquisitions by the Loan
Parties were consummated in accordance with Section 5.02(d), including, but not limited to
the following: the consideration paid or payable in cash (including any earn-out or similar
contingent consideration) in connection with any such acquisition, when taken together with each
other Permitted Acquisition consummated after the Effective Date does not exceed $2,500,000 in the
aggregate.


 


2









 





5. Section 5.02(e) — Investments.



(a) Section 5.02(e)(iv). The aggregate amount of Investments consisting of loans to
the employees, officers and directors in the ordinary course of business is
$_________________. The aggregate amount of such Investments shall not exceed and since the
Effective Date has never exceeded $100,000 at any one time outstanding.



(b) Section 5.02(e)(ix). The aggregate amount of Investments in connection with
entities formed by any Loan Party for purposes of entering into any management agreement for gaming
facilities is $___________. The aggregate amount of such Investments shall not exceed $2,500,000 in
the aggregate during the term of this Agreement..



6. Section 5.02(f) — Dividends.



As of the Test Date, the Borrower has delivered to the Administrative Agent all information
required to be delivered pursuant to Section 5.02(f) of the Credit Agreement and all
Distributions by the Loan Parties were consummated in accordance with Section 5.02(f) of
the Credit Agreement.



7. Section 5.02(q) — Maximum Capital Expenditures. As of the Test Date, the aggregate
amount of Capital Expenditures made by the Loan Parties for the fiscal year to date is
$________. The aggregate amount of Capital Expenditures made by the Loan Parties to convert
hotel rooms at the Grand Victoria Casino & Resort to suites for the fiscal year to date is
$________. The aggregate amount of Capital Expenditures made by the Loan Parties to convert
hotel rooms at the Grand Victoria Casino & Resort to suites is $_________. The aggregate
amount of Capital Expenditures made by the Loan Parties (excluding up to $2,000,000 in the
aggregate spent to convert hotel rooms at the Grand Victoria Casino & Resort to suites) for the
fiscal year to date is $________
(the “Net Capital Expenditures”).



The aggregate amount of Net Capital Expenditures shall not (i) exceed 5% of total revenues for the
immediately preceding fiscal year or (ii) be less than 1.5% of the total revenues of the
immediately preceding fiscal year.



Maximum permitted Net Capital Expenditures and minimum required Net Capital Expenditures were
computed as follows:



	 	 	 	 	 
	(a) Total revenues for fiscal year 20__1
	 	$	 	 
	 
	 	 	 
	(b) Maximum permitted Net Capital Expenditures for fiscal
year [20__]2 — equals
	 	 	 	 
	[(a) * 5%]
	 	$	 	 
	 
	 	 	 
	In compliance:
	 	[YES][NO]	 
	 
	 	 	 
	(c) Minimum required Net Capital Expenditures for fiscal year
[20__]3 — equals
	 	 	 	 
	[(a) * 1.5%]
	 	$	 	 
	 
	 	 	 
	In compliance:
	 	[YES][NO]	 
	 
	 	 	 






 








	 	 	 
	1	 	Insert fiscal year immediately preceding the Test Date
	 
	2	 	Insert fiscal year in which Test Date occurs
	 
	3	 	Insert fiscal year in which Test Date occurs



 


3









 









8. Section 5.03(a) — Total Leverage Ratio.




	 	 	 	 	 
	The Total Leverage Ratio as of the Test Date was
computed as follows:
	 	 	 	 
	 
	 	 	 	 
	(a) Total Funded Debt of or attributed to the Borrower Parties on a
consolidated basis as of the Test Date4
	 	 	 	 
	(i) all obligations evidenced by notes, bonds, debentures
or other similar instruments and all other obligations for
borrowed money (including obligations to repurchase
receivables and other assets sold with recourse)
	 	$	 	 
	 
	 	 	 
	(ii) all obligations for the deferred purchase price of
property or services (including obligations under letters
of credit and other credit facilities which secure or
finance such purchase price), except for (i) trade
accounts payable, provided that (A) such trade accounts
payable arise in the ordinary course of business and (B)
no material part of any such account is more than sixty
(60) days past due and (ii) time-based licenses
	 	$	 	 
	 
	 	 	 
	(iii) all obligations under conditional sale or other
title retention agreements with respect to acquired
property acquired (to the extent of the value of such
property if the rights and remedies of the seller or the
lender under such agreement in the event of default are
limited solely to repossession or sale of such property)
	 	$	 	 
	 
	 	 	 
	(iv) all obligations arising as lessee under or with
respect to Capital Leases and synthetic leases and all
other off-balance sheet financing
	 	$	 	 
	 
	 	 	 
	(v) all obligations, contingent or otherwise, under or
with respect to Surety Instruments
	 	$	 	 
	 
	 	 	 
	(vi) all Unfunded Pension Liabilities
	 	$	 	 
	 
	 	 	 
	(vii) all obligations arising under acceptance facilities
or under facilities for the discount of accounts
receivable
	 	$	 	 
	 
	 	 	 






 








	 	 	 
	4	 	Total Funded Debt for any period that includes any
fiscal quarter ending prior to the Initial Funding Date shall be deemed to
include the Total Funded Debt of or attributable to the Purchased Assets.



 


4









 









	 	 	 	 	 
	(viii) all Contingent Obligations of such Person
	 	$	 	 
	 
	 	 	 
	(ix) all Disqualified Securities of such Person
	 	$	 	 
	 
	 	 	 
	(x) with respect to any Rate Contracts, the Termination
Value thereof
	 	$	 	 
	 
	 	 	 
	(xi) all obligations with respect to letters of credit,
whether drawn or undrawn, contingent or otherwise
	 	$	 	 
	 
	 	 	 
	(xii) all Guaranty Obligations with respect to the
obligations of other Persons of the types described in
clauses (i) — (xi) above
	 	$	 	 
	 
	 	 	 
	(xiii) all obligations of other Persons (“primary
obligors”) of the types described in clauses (i) — (xii)
above to the extent secured by (or for which any holder
of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien on any property
(including accounts and contract rights), even though
such Person has not assumed or become liable for the
payment of such obligations (and, for purposes of this
clause (xiii), the amount of the Indebtedness shall be
deemed to be the lesser of (1) the amount of all
obligations of such primary obligors so secured by (or
for which any holder of such obligations has an existing
right, contingent or otherwise, to be secured by) such
property and (2) the value of such property)
	 	$	 	 
	 
	 	 	 
	(a) — Total Funded Debt — equals
	 	 	 	 
	[(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)+(ix)+(x)+(xi)+(xii)+(xiii)]
	 	$	 	 
	 
	 	 	 
	(b) Adjusted EBITDA for the four consecutive fiscal quarter period
ending on the Test Date
	 	 	 	 
	(i) Net Income
	 	$	 	 
	 
	 	 	 
	(ii) Interest Expenses
	+	$	 	 
	 
	 	 	 
	(iii) provisions for income taxes
	+	$	 	 
	 
	 	 	 
	(iv) depreciation and amortization expenses
	+	$	 	 
	 
	 	 	 
	(v) the aggregate amount of extraordinary losses
(including non-cash impairment charges)
	+	$	 	 
	 
	 	 	 
	(vi) acquisition costs required to be expensed in
accordance with GAAP in any quarter in fiscal years 2010
and 2011 in an aggregate amount not to exceed $800,000
	+	$	 	 
	 
	 	 	 
	(vii) rebranding costs in an aggregate amount not to
exceed $800,000
	+	$	 	 
	 
	 	 	 






 


5









 





	 	 	 	 	 
	(viii) costs incurred in connection with Grand Victoria
Casino & Resort compliance with the Sarbanes-Oxley Act of
2002 in an aggregate amount not to exceed $100,000
	+	$	 	 
	 
	 	 	 
	(ix) the aggregate amount of extraordinary gains
	-	$	 	 
	 
	 	 	 
	(x) the portion of Net Income for such period attributable
to GEM, GED or any other Non-Wholly-Owned Subsidiary
relating to Equity Interests held by Persons other than
the Borrower
	-	$	 	 
	 
	 	 	 
	Items (ii) through (viii) are included to the extent deducted in
determining such Net Income for such period (without duplication).
	 	 	 	 
	Items (ix) through (x) are included to the extent added in determining
such Net Income for such period (without duplication).
	 	 	 	 
	 
	 	 	 	 
	(b) — Adjusted EBITDA — equals
	 	 	 	 
	[(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)-(ix)-(x)]
	 	$	 	 
	 
	 	 	 
	Total Leverage Ratio equals [(a) ̧(b)]
	 	 	________:1.00	 
	The maximum permitted Total Leverage Ratio as of the Test Date is:
	 	 	________:1.00	 
	In compliance:
	 	[YES][NO]	 
	 
	 	 	 
	 
	 	 	 	 
	9. Section 5.03(b) — Minimum Fixed Charge Coverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	The Fixed Charge Coverage Ratio was computed as follows:
	 	 	 	 
	 
	 	 	 	 
	(a) (i) Adjusted EBITDA for the four consecutive fiscal quarter
period ending on the Test Date (as calculated in paragraph 8(b)
above)
	 	$	 	 
	 
	 	 	 
	Minus
	 	 	 	 
	(ii) the aggregate amount of Capital Expenditures
made during such period (excluding up to $2,000,000
in the aggregate spent to convert hotel rooms at the
Grand Victoria Casino & Resort to suites)
	 	$	 	 
	 
	 	 	 
	Minus
	 	 	 	 
	(iii) the aggregate amount of dividends made during
such period
	 	$	 	 
	 
	 	 	 






 


6









 





	 	 	 	 	 
	Minus
	 	 	 	 
	(iv) cash taxes required to be paid during such
period
	 	$	 	 
	 
	 	 	 
	(a) — equals
	 	 	 	 
	[(i)-(ii)-(iii)-(iv)]
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Divided by
	 	 	 	 
	(b) Fixed Charges for the Borrower Parties (determined on a
consolidated basis without duplication) for the four consecutive
fiscal quarter period ending on the Test Date
	 	 	 	 
	(i) Interest Expense paid in cash during such period
	 	$	 	 
	 
	 	 	 
	(ii) payments of principal on Indebtedness scheduled
to be paid during such period; provided, however,
that for purposes of this clause (ii), any optional
prepayments made during such period that are applied
pursuant to Section 2.06(b) of the Credit Agreement
to payments on the Term Loans scheduled to be made
during such period shall be disregarded, and such
scheduled payments on the Term Loans during such
period shall be included in this clause (ii)
notwithstanding the prior application of such
prepayments to such scheduled payments
	 	$	 	 
	 
	 	 	 
	(iii) the portion of payments under Capital Leases
that should be treated as payment of principal in
accordance with GAAP required to be paid during such
period
	 	$	 	 
	 
	 	 	 
	(b) Fixed Charges  — equal
	 	 	 	 
	[(i)+(ii)+(iii)]5
	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	Fixed Charge Ratio — equals
	 	 	 	 
	[a ̧b]
	 	 	________:1.00	 
	The Minimum Fixed Charge Ratio is:
	 	 	________:1.00	 
	In compliance
	 	[YES][NO]	 
	 
	 	 	 






 








	 	 	 
	5	 	With respect to calculation of the Fixed Charges: for
each of the four fiscal quarter periods ending with the first full fiscal
quarter after the Initial Funding Date, the second full fiscal quarter after
the Initial Funding Date and the third full fiscal quarter after the Initial
Funding Date, Fixed Charges for each such four fiscal quarter period shall be
deemed equal to the sum of clauses (i) through (iii) for the full quarters
after the Initial Funding Date ending thereon multiplied by 4, by 2 and by
4/3rds, respectively.



 


7









 









	 	 	 	 	 
	10. Section 5.03(c) — Minimum Adjusted EBITDA.
	 	 	 	 
	 
	 	 	 	 
	Adjusted EBITDA was computed as follows:
	 	 	 	 
	 
	 	 	 	 
	(a) Adjusted EBITDA for the two consecutive fiscal quarter
period ending on the Test Date 6
	 	 	 	 
	(i) Net Income
	 	$	 	 
	 
	 	 	 
	(ii) Interest Expenses
	+	$	 	 
	 
	 	 	 
	(iii) provisions for income taxes
	+	$	 	 
	 
	 	 	 
	(iv) depreciation and amortization expenses
	+	$	 	 
	 
	 	 	 
	(v) the aggregate amount of extraordinary
losses (including non-cash impairment charges)
	+	$	 	 
	 
	 	 	 
	(vi) acquisition costs required to be expensed
in accordance with GAAP in any quarter in
fiscal years 2010 and 2011 in an aggregate
amount not to exceed $800,000
	+	$	 	 
	 
	 	 	 
	(vii) rebranding costs in an aggregate amount
not to exceed $800,000
	+	$	 	 
	 
	 	 	 
	(viii) costs incurred in connection with Grand
Victoria Casino & Resort compliance with the
Sarbanes-Oxley Act of 2002 in an aggregate
amount not to exceed $100,000
	+	$	 	 
	 
	 	 	 
	(ix) the aggregate amount of extraordinary gains
	-	$	 	 
	 
	 	 	 
	(x) the portion of Net Income for such period
attributable to GEM, GED or any other
Non-Wholly-Owned Subsidiary relating to Equity
Interests held by Persons other than the
Borrower
	-	$	 	 
	 
	 	 	 






 








	 	 	 
	6	 	Adjusted EBITDA for any period that includes any
fiscal quarter ending prior to the Initial Funding Date shall be deemed to
include the Total Funded Debt of or attributable to the Purchased Assets.
	 
	
    Pro forma credit shall be given for an Acquired Person’s Adjusted EBITDA as if
owned on the first day of the applicable period; companies (or identifiable
business units or divisions) sold, transferred or otherwise disposed of during
any period will be treated as if not owned during the entire applicable period.



 


8









 









	 	 	 	 	 
	Items (ii) through (viii) are included to the extent
deducted in determining such Net Income for such period
(without duplication).
	 	 	 	 
	Items (ix) through (x) are included to the extent added in
determining such Net Income for such period (without
duplication).
	 	 	 	 
	 
	 	 	 	 
	(a) — Adjusted EBITDA — equals
	 	 	 	 
	[(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)-(ix)-(x)]
	 	$	 	 
	 
	 	 	 
	The Minimum Adjusted EBITDA is:
	 	$	 	 
	 
	 	 	 
	In compliance
	 	[YES][NO]	 
	 
	 	 	 






11. No Default. During the fiscal quarter ending on the Test Date, no Default has occurred
and is continuing, with the exceptions set forth below in response to which the Borrower has taken
(or caused to be taken) or propose to take (or cause to be taken) the following actions (if none,
so state).



[This Space Intentionally Left Blank]




 


9









 







The undersigned Senior Finance Officer, on behalf of the Borrower certifies that the calculations
made and the information contained herein are derived from the books and records of the Borrower
and that each and every matter contained herein correctly reflects those books and records.



	 	 	 	 	 
	 	Dated:                     , 20__



BORROWER:



Full House Resorts, Inc.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 


 


10









 





EXHIBIT J




COLLATERAL CERTIFICATE




(See attached)





 


J-1











 





PLEASE COMPLETE AND RETURN

AS SOON AS POSSIBLE TO:




David Lin, Esq.

Orrick, Herrington & Sutcliffe, LLP

777 S. Figueroa Street, Suite 3200

Los Angeles, CA 90017

Tele: 213-612-2343

Fax: 213-612-2499

dlin@orrick.com




COLLATERAL CERTIFICATE




The undersigned,                                          (the “COMPANY”), hereby represents and warrants to
Wells Fargo Bank, National Association, as administrative agent and a lender (“AGENT”) that the
following information is true, accurate and complete:



1. NAMES OF THE COMPANY.




(a) The exact legal name of the COMPANY as it appears in its Articles or Certificate
of Incorporation, including any amendments thereto, is as follows:





..




(b) The federal employer identification number of the COMPANY is as follows:





..




(c) The COMPANY was formed on                     ,           , under the laws of
                         and is in good standing under those laws.




(d) The following is a list of all other names (including fictitious names, d/b/a’s,
trade names or similar appellations) used by the COMPANY or any of its divisions or other
unincorporated business units during the past five (5) years:





..


 


 









 






(e) The following are the names of all entities which have been merged into the
COMPANY during the past five (5) years:





..




(f) The following are the names and addresses of all entities from whom the COMPANY
has acquired any personal property in a transaction not in the ordinary course of business
during the past five (5) years, together with the date of such acquisition and the type of
personal property acquired (e.g., equipment, inventory, etc.):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Street and	 	 	Date of	 	 	 	 
	 	 	Name	 	 	Mailing Address	 	 	Acquisition	 	 	Type of Property	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 





2. NAMES OF SUBSIDIARIES OF THE COMPANY. Complete this section for any subsidiary of
the COMPANY now existing.




(a) The exact legal name of each subsidiary of the COMPANY as it appears in its
Articles or Certificate of Incorporation (or comparable formation document), including any
amendments thereto and the percentage interest of each such subsidiary owned by the
COMPANY, is as follows:



	 	 	 	 	 

	(i)
	 	 	(     %).	 
	 
	 	 	 
	(ii)
	 	 	(     %).	 
	 
	 	 	 
	(iii)
	 	 	(     %).	 
	 
	 	 	 
	(iv)
	 	 	(     %).	 
	 
	 	 	 




 


-2-









 







(b) The federal employer identification number of each subsidiary of the COMPANY is as
follows:



	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Number	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 






(c) The following is a list of the jurisdiction and date of incorporation of each
subsidiary of the COMPANY:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Date of	 
	 	 	Name	 	 	Jurisdiction	 	 	Incorporation	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 






(d) The following is a list of all other names (including fictitious names, d/b/a’s,
trade names or similar appellations) used by each subsidiary of the COMPANY during the past
five (5) years:



	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 




 


-3-









 







(e) The following are the names of all entities which have been merged into a
subsidiary of the COMPANY during the past five (5) years:



	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 






(f) The following are the names and addresses of all entities from whom each
subsidiary of the COMPANY has acquired any personal property in a transaction not in the
ordinary course of business during the past five (5) years, together with the date of such
acquisition and the type of personal property acquired (e.g., equipment, inventory, etc.):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Mailing Address	 	 	Date of Acquisition	 	 	Type of Property	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





3. LOCATIONS OF COMPANY AND ITS SUBSIDIARIES.




(a) The chief executive offices of the COMPANY and its subsidiaries are located at the
following addresses:



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 




 


-4-









 







(b) During the past five (5) years, the COMPANY’s chief executive office and the chief
executive offices of its subsidiaries have been located at the following additional
addresses:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	Dates	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Used	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 






(c) The following are all the locations in the United States of America where the
COMPANY and its subsidiaries maintain any books or records relating to any of their
accounts receivable (attach legal descriptions for all locations noted below):



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(d) The following are all of the locations in the United States of America where the
COMPANY and its subsidiaries maintain any equipment, fixtures or inventory (attach legal
descriptions for all locations noted below):



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 




 


-5-









 






Record Owners of above:



	 	 	 	 	 

	(i)
	 	 	 	.
	 
	 	 	 
	(ii)
	 	 	 	.
	 
	 	 	 
	(iii)
	 	 	 	.
	 
	 	 	 
	(iv)
	 	 	 	.
	 
	 	 	 






(e) The following are all of the locations outside of the United States of America
where the COMPANY and its subsidiaries maintain any equipment, fixtures or inventory
(attach legal descriptions for all locations noted below):



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Postal Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 





Record Owners of above:



	 	 	 	 	 

	(v)
	 	 	 	.
	 
	 	 	 
	(vi)
	 	 	 	.
	 
	 	 	 
	(vii)
	 	 	 	.
	 
	 	 	 






(f) The following are all the locations in the United States of America where the
COMPANY and its subsidiaries own, lease, or occupy any real property (attach legal
descriptions for all locations noted below):



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 




 


-6-









 






Record Owners of above:



	 	 	 	 	 

	(v)
	 	 	 	.
	 
	 	 	 
	(vi)
	 	 	 	.
	 
	 	 	 
	(vii)
	 	 	 	.
	 
	 	 	 
	(viii)
	 	 	 	.
	 
	 	 	 
	(ix)
	 	 	 	.
	 
	 	 	 






(g) The following are all the locations outside of the United States of America where
the COMPANY and its subsidiaries own, lease, or occupy any real property:



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 





Record Owners of above:



	 	 	 	 	 

	(v)
	 	 	 	.
	 
	 	 	 
	(vi)
	 	 	 	.
	 
	 	 	 
	(vii)
	 	 	 	.
	 
	 	 	 






(h) The following are the names and addresses of all consignees of the COMPANY and its
subsidiaries:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Street and Mailing Address,	 	 	COMPANY/	 
	 	 	Names	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 




 


-7-









 







(i) The following are the names and addresses of all warehousemen or bailees who have
possession of any of the COMPANY’s inventory and the inventory of its subsidiaries:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Street and Mailing Address,	 	 	COMPANY/	 
	 	 	Names	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 






Are
Documents of Title Issued?


If So, Are They Negotiable?



	 	 	 	 	 

	(v)
	 	 	 	.
	 
	 	 	 
	(vi)
	 	 	 	.
	 
	 	 	 
	(vii)
	 	 	 	.
	 
	 	 	 
	(viii)
	 	 	 	.
	 
	 	 	 






(j) The following are the names and addresses of all customs brokers or similar
persons who act as agent for the COMPANY or any of COMPANY’s subsidiaries for the purpose
of receiving bills of lading and other documents of title for goods or inventory and for
receiving goods or inventory for which such bills of lading or documents of title have been
issued:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Street and Mailing Address,	 	 	COMPANY/	 
	 	 	Names	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 






(k) The following are any locations in the United States of America at which the
COMPANY and its subsidiaries do business in addition to locations listed above:


 


-8-









 





	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(l) The following are any locations outside of the United States of America at which
the COMPANY and its subsidiaries do business in addition to locations listed above:



	 	 	 	 	 	 	 	 	 
	 	 	Complete Street and Mailing Address,	 	 	COMPANY/	 
	 	 	including County and Zip Code	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(m) The following are the States of the United States of America in which the COMPANY
and its subsidiaries transact business:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	COMPANY/	 
	 	 	State	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(n) The following are the States of the United States of America in which the COMPANY
and its subsidiaries are duly qualified and in good standing to transact business as a
foreign corporation:


 


-9-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	COMPANY/	 
	 	 	State	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(o) The following are countries or territories outside of the United States of America
in which the COMPANY and its subsidiaries are duly qualified and in good standing to
transact business as a foreign corporation:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	COMPANY/	 
	 	 	Country/Territory	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 





4. ORGANIZATIONAL
DOCUMENTS




(a) The COMPANY’s and its subsidiaries’ Articles or Certificate of Incorporation,
By-Laws (or comparable organization documents) and minutes (or comparable records) are
available and complete at the following address(es):




 





 





 





(b) There is no provision in the Articles or Certificates of Incorporation or By Laws
(or comparable organizational documents) of the COMPANY or its subsidiaries, or in the laws
of the state of its organization, requiring any vote or consent of shareholders to borrow
money, obtain financial
accommodations or mortgage, pledge, or create a security interest in any asset of the
COMPANY or any subsidiary. Such power is vested exclusively in its officers and directors:



YES                      NO                     




5. SPECIAL TYPES OF COLLATERAL.




(a) The following are all of the trademarks or trademark applications of the COMPANY
and its subsidiaries (including any service marks, collective marks and certification
marks), together with the trademark numbers and dates of registration with the U.S. Patent
and Trademark Office or similar foreign office, if applicable:


 


-10-









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	If Foreign Trademark,	 	 	COMPANY/	 
	 	 	Trademark	 	 	Number	 	 	Date	 	 	What Country?	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






(b) The following are all of the patents or patent applications of the COMPANY and its
subsidiaries, together with the patent numbers, names of inventors and dates of
registration with the U.S. Patent and Trademark Office or similar foreign office, if
applicable:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	If Foreign Patent,	 	 	COMPANY/	 
	 	 	Patent Name	 	 	Number	 	 	Date	 	 	Inventor	 	 	What Country?	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






(c) The following are all of the copyrights or copyright applications of the COMPANY
and its subsidiaries, together with the copyright numbers and dates of registration with
the U.S. Copyright Office or similar foreign office, if applicable:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	If Foreign	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Copyright,	 	 	COMPANY/	 
	 	 	Copyright	 	 	Number	 	 	Date	 	 	What Country?	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






(d) The following are all licenses or similar agreements to use trademarks (including
any service marks, collective marks and certification marks), patents, and copyrights of
others of the COMPANY and its subsidiaries:


 


-11-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	COMPANY/	 
	 	 	Description of License Agreement	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(e) The following are all governmental permits and/or licenses held by the COMPANY
and/or its subsidiaries:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	COMPANY/	 
	 	 	Description of License	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 .	 
	 
	 	 	 	 	 	 






(f) Attached hereto as Schedule F is list of all deposit accounts, brokerage accounts,
commodity accounts and similar accounts including account numbers, where the accounts are
maintained and how title in such accounts is held. [Company to provide Schedule F].




(g) The COMPANY and its subsidiaries own the following kinds of assets, and attached
hereto is a schedule describing each such
asset owned by the COMPANY or its subsidiaries and identifying by which party such
asset is owned:



	 	 	 	 	 	 	 	 	 

	Franchises, marketing agreements
or similar agreements:
	 	Yes      	 	No      
	Stocks, Bonds or other securities:
	 	Yes      	 	No      
	Promissory notes, or other
instruments or evidence of
indebtedness in favor of such
person:
	 	Yes      	 	No      
	Leases of equipment, security
agreements naming such person as
secured party, or other chattel
paper:
	 	Yes      	 	No      
	Aircraft:
	 	Yes      	 	No      
	Vessels, Boats or Ships:
	 	Yes      	 	No      
	Railroad Rolling Stock:
	 	Yes      	 	No      





 


-12-









 







(h) The following are all letters of credit issued for the benefit of the COMPANY and
its subsidiaries, together with the name of the issuer, the face amount of each letter of
credit, the expiration date of each letter of credit and the account party for each letter
of credit:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	COMPANY/	 
	 	 	Name of Issuer	 	 	Face Amount	 	 	Expiration Date	 	 	Account Party	 	 	Subsidiary	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






(i) The following is a list of all commercial tort claims in which COMPANY or its
domestic subsidiaries are a plaintiff:



(i)  
                    vs.                      Court of                      [Docket No.  
         ] filed                     , 200_



(ii)                      vs.                      Court of                     
[Docket No.           ] filed                     ,
200_.



6. OFFICERS AND/OR DIRECTORS OF THE COMPANY AND ITS
SUBSIDIARIES.




(a) The following are the respective titles and signatures of the officers and
directors of the COMPANY and its Subsidiaries (indicate if also a director):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Office	 	 	Name of Officer or	 	 	 	 	 	 	 	 	 	 	% of Ownership
	 	 	Title	 	 	Director	 	 	COMPANY/Subsidiary	 	 	Signature	 	 	Interest Held
	(i)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




 


-13-









 







(b) Each of the officers and directors set forth in Paragraph 6.a. above have
signatory powers as to all of AGENT’s transactions individually unless the COMPANY limits
the signatory powers to the following officers or directors:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Title	 	 	Signature	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 






(c) In addition to the above named officers directors, the following individuals or
entities own 10% or more of the voting stock of the COMPANY:



	 	 	 	 	 	 	 	 	 
	 	 	NAME/ADDRESS	 	 	% of Ownership Interest Held	 
	(i)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 
	(iv)
	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 






(d) With respect to the officers and directors noted above, such officers and
directors are affiliated with, or have ownership in the following closely held entities:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	% OF OWNERSHIP	 	 	 	 
	NAME/ADDRESS	 	TYPE OF OPERATION	 	 	INTEREST HELD	 	 	RELATIONSHIP	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 






 


-14-









 




(e) The following are the shareholders of the COMPANY:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name	 	 	Title	 	 	Address	 
	(i)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(ii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 
	(iii)
	 	 	 	 	 	 	 	 	 	 	 	.
	 
	 	 	 	 	 	 	 	 	 





7. OTHER




(a) Attached hereto are copies of the front page (or if the name of the Company or its
subsidiaries is not on the front page, the first page where each such name appears) of the
federal income tax returns filed by the Company and its Subsidiaries in the United States
for the last THREE tax years.




(b) The COMPANY has never been involved in a bankruptcy, reorganization or Assignment
for the Benefit of Creditors except (explain):




 





 





 





(c) At the present time, there are not delinquent taxes owed by the COMPANY
(including, but not limited to, all payroll taxes, real estate or income taxes) except as
follows:




 





 





 





(d) There are no tax liens, judgments or lawsuits pending against the COMPANY, its
subsidiaries and/or affiliates or any of its officers or directors except as follows:




 





 





 





(e)




	 	i.	 	The COMPANY participates
in, maintains or provides a deferred compensation plan for
the benefit of the COMPANY’s employees or a multi-employer
plan as described in Section 4001(2)3 of the Employee
Retirement Income Security Act (“ERISA”) of 1974 as amended.
Yes                      No                     



 


-15-









 












	 	ii.	 	A determination as to qualifications of this plan has been issued. Yes                      No                     
	 
	 	iii.	 	Funding is current and in compliance with established requirements. Yes                      No                     






(f) The Insurance Broker/Agent for the COMPANY is as follows:



Name of the Firm:                                                             
      
                    



Address:                                                                                              
             



Broker/Agent Relationship:                                                                 
          



[This Space Intentionally Left Blank]



 


-16-









 








The undersigned undertakes to advise the AGENT of any change or modification whatsoever with
respect to any of the foregoing matters. Until such notice is received by the AGENT, the AGENT
shall be entitled to rely upon all of the foregoing and presume they are correct and accurate in
all respects.



DATED:                           , 2010.



	 	 	 	 	 
	 	Company: 
                           
                               
                    



	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 


-17-









 






	 	 	 	 	 



EXHIBIT K




NON-BANK CERTIFICATE




Reference is hereby made to the Credit Agreement, dated as of October 29, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by
and among: (1) Full House Resorts, Inc., a Delaware corporation (the “Borrower”); (2) each
of the financial institutions from time to time listed in Schedule I to the Credit
Agreement, as amended, restated, supplemented or otherwise modified from time to time
(collectively, the “Lenders”); and (3) Wells Fargo Bank, National Association (“Wells
Fargo”), as administrative agent for the Lenders, as Collateral Agent, as Security Trustee, as
L/C Issuer and as Swing Line Lender. Pursuant to the provisions of Section 2.12(e) and Section
8.05(c) of the Credit Agreement, the undersigned hereby certifies that it is not a “bank” as such
term is used in Section 881(c)(3)(A) of the United States Internal Revenue Code of 1986, as
amended. The undersigned shall promptly notify the Borrower and the Administrative Agent if any of
the representations and warranties made herein are no longer true and correct.




	 	 	 	 	 
	 	[NAME OF FINANCIAL INSTITUTION]

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


K-1









 






	 	 	 	 	 



EXHIBIT L




FORM OF GUARANTEE



(See attached)



 


L-1











 




GUARANTY AGREEMENT




This GUARANTY AGREEMENT (this “Guaranty”), dated as of [                    ], 20__
, is made by
FULL HOUSE SUBSIDIARY, INC., a Delaware corporation, FULL HOUSE SUBSIDIARY II, INC., a Nevada
corporation, GAMING ENTERTAINMENT (INDIANA), LLC, a Nevada limited liability company, GAMING
ENTERTAINMENT (SANTA FE), LLC, a Nevada limited liability company, GAMING ENTERTAINMENT (MONTANA),
LLC, a Nevada limited liability company, STOCKMAN’S CASINO, a Nevada corporation, and each of the
other entities which becomes a party hereto pursuant to Section 4.15 hereof (each a
“Guarantor” and collectively, the “Guarantors”) in favor of WELLS FARGO BANK,
NATIONAL ASSOCIATION, as administrative agent for the Lenders as defined in the Credit Agreement
referred to below (in such capacity, together with its successors in such capacity, the
“Administrative Agent”) and as collateral agent for the other Lender Parties (as defined in
the Credit Agreement).



A. Each of the Guarantors is a direct or indirect subsidiary of Full House Resorts, Inc., a
Delaware corporation (the “Borrower”).



B. The Borrower has entered into that certain Credit Agreement, dated of the date hereof (as
the same from time to time hereafter may be amended, modified, supplemented or restated, the
“Credit Agreement”), by and among the Borrower, the financial institutions party thereto
from time to time, the Administrative Agent and the Collateral Agent, pursuant to which the Lenders
have agreed to extend loans and other financial accommodations to the Borrower for the purposes,
and on the terms and subject to the conditions, set forth in the Credit Agreement. In addition,
certain of the Lender Parties may, from time to time, enter into Lender Rate Contracts with the
Borrower.



C. The Lender Parties are willing to make and maintain loans and other financial
accommodations to the Borrower on and after the date of the Credit Agreement, but only upon the
condition, among others, that the Guarantors shall have executed and delivered this Guaranty to the
Administrative Agent.



D. To induce the Administrative Agent and the Lender Parties to enter into, and to extend
credit under, the Credit Agreement and the other Credit Documents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor has
agreed to guarantee the Guaranteed Obligations upon the terms and conditions of this Guaranty.



E. Each Guarantor expects to realize direct and indirect benefits as the result of the
availability of the aforementioned credit facilities to the Borrower.



AGREEMENT




NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:


 


 









 






SECTION 1. DEFINITIONS.



1.01. Definitions. Unless otherwise defined herein, all capitalized terms used in
this Guaranty that are defined in the Credit Agreement (including those terms incorporated by
reference) shall have the respective meanings assigned to them in the Credit Agreement. In
addition, the following terms shall have the following meanings under this Guaranty:




“Bankruptcy Code” shall mean Title 11 of the United States Code.



“Collateral Agent” shall mean Wells Fargo, in its capacity as the collateral agent for
and on behalf of the Administrative Agent and the Lender Parties under the Security Documents
(together with its successors and assigns in such capacity as the collateral agent under the
Security Documents).



“Guaranteed Obligations” shall mean (a) any and all Obligations of the Borrower, (b)
any and all other obligations of the Borrower for the performance of its agreements, covenants and
undertakings under or in respect of the Credit Documents, and (c) any and all other obligations of
the Borrower for the payment of all amounts, liabilities and indebtedness (whether for principal,
interest, reimbursement, fees, charges, indemnification or otherwise) now or in the future owed to
the Collateral Agent, the Administrative Agent, any Lender Party or any such Person individually,
and for the performance by the Borrower of its agreements, covenants and undertakings, in each case
under or in respect of any and all of the Credit Documents and the Lender Rate Contracts, it being
acknowledged by each Guarantor that such other obligations may arise or be created, incurred or
assumed at any time and from time to time and in such manner and such circumstances and with such
terms and provisions as the Borrower, the Collateral Agent, the Administrative Agent, any Lender
Party or any such Person individually may agree without notice or demand of any kind or nature
whatsoever to the Guarantors. The Guaranteed Obligations shall include interest accruing at the
then applicable rate provided in the Credit Agreement or in the other Credit Documents after the
maturity thereof and interest accruing at the then applicable rate provided in the Credit Agreement
or in the other Credit Documents after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to any Loan Party
thereunder or any Obligor whether or not a claim for post-filing or post-petition interest is
allowed or allowable in such proceeding. Each Guarantor acknowledges that some extensions of
credit under the Credit Agreement and the other Credit Documents may be available on a revolving
basis.



“Obligor” shall mean any additional or separate guarantor, surety or other Person that
is directly or indirectly liable for all or a portion of the Guaranteed Obligations or who has
provided security for the Guaranteed Obligations.



1.02. Interpretation. The rules of interpretation set forth in Article I of the
Credit Agreement shall, to the extent not inconsistent with the terms of this Guaranty, apply to
this Guaranty and are hereby incorporated by reference.



SECTION 2. THE GUARANTEE.



2.01. Guarantee Provisions.


 


-2-









 





(a) Guarantee. Each Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to the Administrative Agent and each Lender Party the timely payment in full when due
(whether at stated maturity, by acceleration or otherwise) and performance of the Guaranteed
Obligations in each case in accordance with their terms. Each Guarantor hereby further agrees that
if the Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) all or any part of the Guaranteed Obligations, such Guarantor will immediately pay the
same, without any demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of all or any part of the Guaranteed Obligations, the same will be timely paid
in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal. This Guaranty is absolute, irrevocable and unconditional
in nature and is made with respect to any and all Guaranteed Obligations now existing or in the
future arising. Each Guarantor’s liability under this Guaranty shall continue until payment in
cash of all Guaranteed Obligations. This Guaranty is a guarantee of due and punctual payment and
performance and not of collectibility.



(b) Savings Clause. As to any Guarantor, if under any applicable law (including
without limitation state and Federal fraudulent transfer laws) the obligations of such Guarantor
under Section 2.01(a) would otherwise be held or determined to be void, invalid or
unenforceable or if the claims of the Lender Parties in respect of such obligations would be
subordinated to the claims of any other creditors on account of such Guarantor’s liability under
Section 2.01(a), then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of the liability of such Guarantor shall, without any further action by the
Guarantors, any Lender Party, the Collateral Agent, the Administrative Agent or any other Person,
be automatically limited and reduced to the highest amount which is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or proceeding. In
addition, all Guarantors expect to realize direct and indirect benefits as the result of the
availability of the aforementioned credit facilities to the Borrower, as the result of financial or
business support which will be provided to the Guarantors by the Borrower.



(c) Joint and Several Obligations. The obligations and liability of the Guarantors
under this Guaranty are joint and several. Except as expressly set forth in Section
2.01(b), the liability of the Guarantors is not limited in any respect.



2.02. Acknowledgments, Agreements; Waivers and Consents. Each Guarantor acknowledges
that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of
Persons other than such Guarantor and that such obligations of each Guarantor are absolute,
irrevocable and unconditional under any and all circumstances. In full recognition and in
furtherance of the foregoing, each Guarantor agrees that:



(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with
its terms and without affecting, limiting, reducing, discharging or terminating the liability of
such Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the
Lender Parties under this Guaranty, the Collateral Agent, the Administrative Agent and the Lender
Parties may, at any time and from time to time and without notice or demand of any kind or nature
whatsoever:


 


-3-









 





(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time
for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations
(including any increase or decrease in the principal portion of, or rate or rates of interest on,
all or any part of the Guaranteed Obligations);



(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or
give, any Credit Document or any agreement, security document, guarantee, approval, consent or
other instrument with respect to all or any part of the Guaranteed Obligations, any Credit Document
or any such other instrument or any term or provision of the foregoing;



(iii) accept or enter into new or additional agreements, security documents, guarantees
(including letters of credit) or other instruments in addition to, in exchange for or relative to
any Credit Document, all or any part of the Guaranteed Obligations or any collateral now or in the
future serving as security for the Guaranteed Obligations;



(iv) accept or receive (including from any Obligor) partial payments or performance on the
Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or
privilege or otherwise);



(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed
Obligations (including from any Obligor);



(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect,
subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security
documents or guarantees (including letters of credit or the obligations of any Obligor) for or
relative to all or any part of the Guaranteed Obligations;



(vii) apply any collateral or the proceeds of any collateral or guarantee (including any
letter of credit or the obligations of any Obligor) to all or any part of the Guaranteed
Obligations in such manner and extent as the Administrative Agent or any Lender Party may in its
sole discretion determine;



(viii) release any Person (including any Obligor or other Guarantor) from any liability with
respect to all or any part of the Guaranteed Obligations;



(ix) settle, compromise, release, waive, liquidate or enforce upon such terms and in such
manner as the Collateral Agent, the Administrative Agent or any Lender Party may determine or as
applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or
guarantee of (including any letter of credit issued with respect to) all or any part of the
Guaranteed Obligations (including with any Obligor);



(x) consent to the merger or consolidation of, the sale of substantial assets by, or other
restructuring or termination of the existence of the Borrower, any Loan Party or any other Person
(including any Obligor);


 


-4-









 





(xi) proceed against the Borrower, such Guarantor, any other Guarantor or any Obligor of
(including any issuer of any letter of credit issued with respect to) all or any
part of the Guaranteed Obligations or any collateral provided by any Person and exercise the
rights, remedies, powers and privileges of the Collateral Agent, the Administrative Agent and the
Lender Parties under the Credit Documents or otherwise in such order and such manner as the
Collateral Agent, the Administrative Agent or any Lender Party may, in its discretion, determine,
without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or
privilege before proceeding to call upon or otherwise enforce this Guaranty as to such Guarantor;



(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting
liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of
foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of
remedies with respect to such liens or exercise any right of set-off;



(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part
of the Guaranteed Obligations and apply the proceeds of such receivership as the Administrative
Agent or any Lender Party may in its discretion determine (it being agreed that nothing in this
clause (xiii) shall be deemed to make the Collateral Agent, the Administrative Agent or any Lender
Party a party in possession in contemplation of law, except at its option);



(xiv) enter into such other transactions or business dealings with the Borrower, any other
Loan Party, any Obligor or Affiliate thereof of all or any part of the Guaranteed Obligations as
the Collateral Agent, the Administrative Agent or any Lender Party may desire; and




(xv) do all or any combination of the actions set forth in this Section 2.02(a).



(b) The enforceability and effectiveness of this Guaranty and the liability of such Guarantor,
and the rights, remedies, powers and privileges of the Collateral Agent, the Administrative Agent
and the Lender Parties, under this Guaranty shall not be affected, limited, reduced, discharged or
terminated, and each Guarantor hereby expressly waives any defense now or in the future arising
(other than a defense that the Guaranteed Obligations have been paid in full in cash), by reason
of:



(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed
Obligations, any Credit Document or any agreement, security document, guarantee or other instrument
relative to all or any part of the Guaranteed Obligations;



(ii) any disability or other defense with respect to all or any part of the Guaranteed
Obligations of the Borrower, or any Obligor with respect to all or any part of the Guaranteed
Obligations (including any issuer of any letters of credit), including the effect of any statute of
limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the
obligations of any such Obligor;



(iii) the illegality, invalidity or unenforceability of any security or guarantee (including
any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection
or continuing perfection or failure of the priority of any lien on any collateral for all or any
part of the Guaranteed Obligations;


 


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(iv) the cessation, for any cause whatsoever (including, without limitation, release,
expiration, termination or the unenforceability of the underlying documentation), of the liability
of the Borrower, any other Loan Party or any Obligor of all or any part of the Guaranteed
Obligations (other than, subject to Section 2.05, by reason of the full payment and
performance of all Guaranteed Obligations);



(v) any failure of the Collateral Agent, the Administrative Agent or any Lender Party to
marshal assets in favor of the Borrower or any other Person (including any Obligor), to exhaust any
collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right,
remedy, power or privilege it may have against the Borrower, any other Loan Party, any Obligor with
respect to all or any part of the Guaranteed Obligations (including any issuer of any letter of
credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any
other liability of such Guarantor under this Guaranty, none of the Collateral Agent, the
Administrative Agent or any Lender Party being under any obligation to take any such action
notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable
and that the Borrower may be in default of its obligations under any Credit Document;



(vi) any failure of the Collateral Agent, the Administrative Agent or any Lender Party to give
notice of sale or other disposition of any collateral (including any notice of any judicial or
nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or
any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the
Borrower, such Guarantor or any other Person (including any Obligor) or any defect in, or any
failure by such Guarantor or any other Person to receive, any notice that may be given in
connection with any sale or disposition of any collateral;



(vii) any failure of the Collateral Agent, the Administrative Agent or any Lender Party to
comply with applicable laws in connection with the sale or other disposition of any collateral for
all or any part of the Guaranteed Obligations;



(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with
respect to, any interest in real property or other collateral serving as security for all or any
part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may
impair the subrogation rights of such Guarantor or may preclude such Guarantor from obtaining
reimbursement, contribution, indemnification or other recovery from the Borrower, any Obligor or
any other Person and even though the Borrower may not, as a result of such foreclosure, sale or
election of remedies, be liable for any deficiency;



(ix) any act or omission of the Collateral Agent, the Administrative Agent, any Lender Party
or any other Person that directly or indirectly results in or aids the discharge or release of the
Borrower, any Loan Party or any Obligor of all or any part of the Guaranteed Obligations or any
security or guarantee for all or any part of the Guaranteed Obligations by operation of law or
otherwise;



(x) any law which provides that the obligation of a surety or guarantor must neither be larger
in amount nor in other respects more burdensome than that of the principal or which reduces a
surety’s or guarantor’s obligation in proportion to the principal obligation;


 


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(xi) the possibility that the obligations of the Borrower to the Administrative Agent and the
Lender Parties may at any time and from time to time exceed the aggregate liability of such
Guarantor under this Guaranty;



(xii) any counterclaim, set-off or other claim which the Borrower, any Loan Party, any Obligor
or any other Person has or alleges to have with respect to all or any part of the Guaranteed
Obligations;



(xiii) any failure of the Collateral Agent, the Administrative Agent or any Lender Party to
file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;



(xiv) the election by the Collateral Agent, the Administrative Agent or any Lender Party in
any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2)
of the Bankruptcy Code;



(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy
Code;




(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;



(xvii) any agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person;



(xviii) the avoidance of any Lien in favor of the Collateral Agent, the Administrative Agent
or any Lender Party for any reason;



(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against any Person, including any discharge
of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any
interest on all or any part of the Guaranteed Obligations) in or as a result of any such
proceeding;



(xx) any change in the corporate existence, structure or ownership of the Borrower, any other
Loan Party or any Obligor;



(xxi) any action taken by the Collateral Agent, the Administrative Agent or any Lender Party,
whether similar or dissimilar to any of the foregoing, that is authorized by this Section
2.02 or otherwise in this Guaranty or by any other provision of any Credit Document or any
omission to take any such action; or



(xxii) any other circumstance whatsoever, whether similar or dissimilar to any of the
foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (other than, subject to Section 2.05, by reason of the full payment and
performance of all Guaranteed Obligations).


 


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(c) Each Guarantor hereby waives (i) any right of redemption with respect to the collateral or
security for the Guaranteed Obligations or for this Guaranty after the sale thereof, and all
rights, if any, of marshalling of the collateral or security for the Guaranteed Obligations or for
this Guaranty, (ii) any right (except as shall be required by applicable statute and cannot be
waived) to require the Collateral Agent, the Administrative Agent or any Lender Party to pursue any
remedy in the Collateral Agent’s, the Administrative Agent’s or any Lender Party’s power
whatsoever, (iii) presentment, demand, notice of dishonor, protest, notice of protest and all other
notices whatsoever with respect to the payment or performance of the Guaranteed Obligations or the
amount thereof or any payment or performance by any Guarantor hereunder and (iv) all rights to
revoke this Guaranty at any time, and all rights to revoke any agreement executed by such Guarantor
at any time to secure the payment and performance of such Guarantor’s obligations under this
Guaranty.



(d) Each Guarantor waives all rights and defenses arising out of an election of remedies by
the Collateral Agent, the Administrative Agent and the Lender Parties, even though that election of
remedies, such as a nonjudicial foreclosure with respect to collateral or security for the
Guaranteed Obligations, has destroyed such Guarantor’s rights of subrogation and reimbursement
against the principal.



(e) Each Guarantor expressly waives, for the benefit of the Collateral Agent, the
Administrative Agent and the Lender Parties, all set-offs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with
respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the
existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each
Guarantor further expressly waives the benefit of any and all statutes of limitation and any and
all laws providing for the exemption of property from execution or for valuation and appraisal upon
foreclosure, to the maximum extent not prohibited by applicable law.



(f) Each Guarantor represents and warrants to the Collateral Agent, the Administrative Agent
and the Lender Parties that it has established adequate means of obtaining financial and other
information pertaining to the business, operations and condition (financial and otherwise) of the
Borrower and its properties on a continuing basis and that such Guarantor is now and will in the
future remain fully familiar with the business, operations and condition (financial and otherwise)
of the Borrower and its properties. Each Guarantor further represents and warrants that it has
reviewed and approved each of the Credit Documents and is fully familiar with the transaction
contemplated by the Credit Documents and that it will in the future remain fully familiar with such
transaction and with any new Credit Documents and the transactions contemplated by such Credit
Documents. Each Guarantor hereby expressly waives and relinquishes any duty on the part of the
Administrative Agent or the Lender Parties (should any such duty exist) to disclose to the such
Guarantor or any other Obligor any matter of fact or other information related to the business,
operations or condition (financial or otherwise) of the Borrower or its properties or to any Credit
Document or the transactions undertaken pursuant to, or contemplated by, any such Credit Document,
whether now or in the future known by the Administrative Agent or any Lender Party.


 


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(g) Each Guarantor acknowledges and agrees that there may be additional guaranty or security
agreements or similar documents executed by other Obligors in respect of all or a portion of the
Guaranteed Obligations and the existence of any such guaranty or security agreement or similar
document shall not in any way impair, reduce or limit such Guarantor’s obligations hereunder.



(h) Without limiting the generality of any other provision hereof, each Guarantor agrees that,
in the event of the dissolution or insolvency of the Borrower, any Guarantor or any Obligor or the
inability of the Borrower, any Guarantor or any Obligor to pay its debts as they mature, or an
assignment by the Borrower, any Guarantor or any Obligor for the benefit of creditors, or the
institution of any proceeding by or against the Borrower, any Guarantor or any Obligor alleging
that the Borrower, any Guarantor or any Obligor is insolvent or unable to pay its debts as they
mature (including any bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding), or the appointment of a receiver for, or the attachment, restraint of or making or
levying of any order of court or legal process affecting, the property of the Borrower, any
Guarantor or any Obligor, each Guarantor will pay to the Administrative Agent for the benefit of
itself and the Lender Parties forthwith the full amount which would be payable hereunder by such
Guarantor if all of the Guaranteed Obligations were then due and payable, whether or not such event
occurs at a time when any of the Guaranteed Obligations are otherwise due and payable.



2.03. Understanding With Respect to Waivers and Consents. Each Guarantor represents,
warrants and agrees that each of the waivers and consents set forth in this Guaranty is made
voluntarily and unconditionally after consultation with outside legal counsel and with full
knowledge of its significance and consequences, with the understanding that events giving rise to
any defense or right waived may diminish, destroy or otherwise adversely affect rights which such
Guarantor or any other Obligor otherwise may have against the Borrower, the Collateral Agent, the
Administrative Agent, any Lender Party or any other Person or against any collateral. If,
notwithstanding the intent of the parties that the terms of this Guaranty shall control in any and
all circumstances, any such waivers or consents are determined to be unenforceable under applicable
law, such waivers and consents shall be effective to the maximum extent not prohibited by law.



2.04. Subrogation. Each Guarantor hereby agrees that, until the payment in cash and
satisfaction in full of all of the Guaranteed Obligations and the expiration and termination of the
commitments of the Lenders under the Credit Documents, it shall not exercise any right, remedy,
power or privilege, such as any right of subrogation, contribution or indemnity or related remedy,
power or privilege, arising (whether by contract or operation of law, including under the
Bankruptcy Code) against the Borrower, any other Guarantor or any Obligor of all or any part of the
Guaranteed Obligations or any collateral or security for all or any part of the Guaranteed
Obligations by reason of any payment or other performance pursuant to the provisions of this
Guaranty and, if any amount shall be paid to such Guarantor on account of such rights, remedies,
powers or privileges, it shall hold such amount in trust for the benefit of, and pay the same over
to, the Administrative Agent (for the benefit of the Lender Parties) on account of the Guaranteed
Obligations. Each Guarantor understands that the exercise by the Collateral Agent, the
Administrative Agent or any Lender Party of any right, remedy, power or privilege that it may have
under the Credit Documents, any agreement, collateral or security



 


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document, guarantee or other instrument relative to all or any part of the Guaranteed
Obligations or otherwise may affect or eliminate such Guarantor’s or any Obligor’s right of
subrogation or similar recovery against the Borrower, any other Guarantor, any Obligor or any
collateral or security and that such Guarantor may therefore incur partially or totally
nonreimbursable liability under this Guaranty. Nevertheless, each Guarantor hereby authorizes and
empowers the Collateral Agent, the Administrative Agent and the Lender Parties to exercise, in its
or their sole discretion, any combination of such rights, remedies, powers and privileges.
Notwithstanding anything to the contrary contained in this Guaranty or any other Credit Document,
no Guarantor shall exercise any rights of subrogation, contribution, indemnity, reimbursement or
other similar rights against, and no Guarantor shall proceed or seek recourse against or with
respect to any property or asset of, the Borrower or any other Guarantor or Obligor (including
after payment in full of the Guaranteed Obligations), and each Guarantor shall be deemed to have
waived all such rights and remedies if all or any portion of the Obligations have been satisfied in
connection with an exercise of remedies in respect of the Equity Securities of the Borrower or such
other Guarantor or Obligor whether pursuant to the Security Documents or otherwise.



2.05. Reinstatement. The obligations of each Guarantor under this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment by or on behalf of
the Borrower, any other Guarantor, any Obligor or any other Person or any other application of
funds (including the proceeds of any collateral for all or any part of the Guaranteed Obligations)
in respect of all or any part of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of such Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy, reorganization or otherwise and each Guarantor agrees that it will indemnify the
Collateral Agent, the Administrative Agent and each Lender Party on demand for all costs and
expenses (including reasonable fees and expenses of counsel) incurred by the Collateral Agent, the
Administrative Agent or such Lender Party in connection with such rescission or restoration.



2.06. Remedies. Each Guarantor hereby agrees that, between it on the one hand and the
Collateral Agent, the Administrative Agent and the Lender Parties on the other, the obligations of
the Borrower under the Credit Agreement and the other Credit Documents may be declared to be
forthwith (or may become automatically) due and payable as provided in the Credit Agreement for
purposes of Section 2.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations becoming due and payable as against the Borrower)
and that, in the event of such declaration (or such obligation being deemed due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable
for purposes of Section 2.01.



2.07. Separate Action. The Collateral Agent and the Administrative Agent may bring
and prosecute a separate action or actions against each Guarantor (or any one or more of them)
whether or not the Borrower, any other Guarantor, any Loan Party, any other Obligor or any other
Person is joined in any such action or a separate action or actions are brought against the
Borrower, any other Guarantor, any Loan Party, any other Obligor, any other Person, or any
collateral or security for all or any part of the Guaranteed Obligations. The obligations of each
Guarantor under, and the effectiveness of, this Guaranty are not conditioned upon the existence or
continuation of any other guarantee (including any letter of credit) of or collateral or security
for all or any part of the Guaranteed Obligations.


 


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2.08. Subordination.



(a) Each Guarantor agrees that the payment by the Borrower, any other Loan Party or any
Obligor of any indebtedness in favor of such Guarantor (the “Subordinated Lender”) shall be
subordinated and subject to the prior payment in cash in full of all amounts payable by the
Borrower, such other Loan Party or such Obligor under the Credit Agreement or this Guaranty, as the
case may be, and any other Credit Document to which the Borrower, such other Loan Party or such
Obligor is a party (“Senior Debt”) upon the terms of this Section.



(b) Upon any distribution of assets of the Borrower, a Loan Party or an Obligor to creditors
upon a liquidation or dissolution of the Borrower, such Loan Party or such Obligor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the
Borrower, such Loan Party or such Obligor or its property, (i) the Administrative Agent and the
Lender Parties shall be entitled to receive payment in full of all Senior Debt before the
Subordinated Lender shall be entitled to receive any payment of principal of or interest on or any
other amounts in respect of Indebtedness of the Borrower, such Loan Party or such Obligor in favor
of the Subordinated Lender (the “Subordinated Debt”); and (ii) until payment in cash in
full of the Senior Debt and the Commitments under the Credit Documents shall have terminated, any
distribution of assets of any kind or character to which the Subordinated Lender would otherwise be
entitled shall be paid by the Borrower, such Loan Party or such Obligor or by any receiver, trustee
in bankruptcy, liquidating trustee, agents or other person making such payment or distribution to,
or if received by the Borrower, such Loan Party or such Obligor, shall be held for the benefit of
and shall be forthwith paid or delivered to, the Administrative Agent for distribution to the
Administrative Agent and the Lender Parties, as applicable.



(c) If the Subordinated Lender does not file proper claims or proofs of claim in the form
required in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to the Borrower, a Loan Party or an Obligor or its property prior to 45 days before the expiration
of the time to file such claims, then (a) upon the request of the Administrative Agent, the
Subordinated Lender shall file such claims and proofs of claim in respect of this instrument and
execute and deliver such powers of attorney, assignments and other instruments as are required to
enable the Administrative Agent and the Lender Parties to enforce any and all claims upon or in
respect of the Subordinated Debt and to collect and receive any and all payments or distributions
which may be payable or deliverable at any time upon or in respect of Subordinated Debt, and (b)
whether or not the Subordinated Lender shall take the action described in the preceding clause (a)
the Administrative Agent and the Lender Parties shall nevertheless be deemed to have such powers of
attorney as may be necessary for them to file appropriate claims and proofs of claim and otherwise
exercise the powers described above.



(d) No right of the Administrative Agent or any Lender Party to enforce the terms of this
Section shall be impaired by any act or failure to act by the Borrower, a Loan Party or an Obligor.
Neither the terms of this Section nor the rights of the Administrative Agent and the Lender
Parties hereunder shall be affected by any extension, renewal or modification of the terms of, or
the granting of any security in respect of, any Senior Debt or any exercise or nonexercise of any
right, power or remedy with respect thereto.


 


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(e) Until the Senior Debt is paid in full and the Commitments under the Credit Documents shall
have terminated, the Subordinated Lender shall not exercise any right of subrogation that it may
have now or hereafter as a result of its performance of this Guaranty.



(f) Nothing in this Section shall (i) impair, as between the Borrower, such Loan Party or such
Obligor and the Subordinated Lender, the obligation of the Borrower, or such Loan Party or such
Obligor, which is absolute and unconditional, to pay the principal of and interest on Subordinated
Debt in accordance with its terms; (ii) affect the relative rights of the Subordinated Lender and
creditors of the Borrower, or such Loan Party or such Obligor other than the Administrative Agent
and the Lender Parties; or (iii) prevent the Subordinated Lender from exercising its available
remedies upon an event of default under the Subordinated Debt, subject to the rights of the
Administrative Agent and the Lender Parties to receive cash, property or other assets otherwise
payable to the Subordinated Lender to the extent set forth in this Section.



2.09. Right to Offset Balances. Each Guarantor agrees that, in addition to (and
without any limitation of) any right of set-off, banker’s lien or counterclaim any Lender Party may
otherwise have, each Lender Party shall be entitled, at its option but only with the prior written
consent of the Administrative Agent, to offset balances held by it for the account of such
Guarantor at any of its offices, in Dollars or in any other currency, against any Guaranteed
Obligations to such Lender Party upon the occurrence and during the continuance of an Event of
Default (regardless of whether such balances are then due to such Guarantor). Any Lender Party so
entitled shall promptly notify the applicable Guarantor and the Administrative Agent of any offset
effected by it; provided that such Lender Party’s failure to give such notice shall not
affect the validity of such offset or the obligations of any Guarantor hereunder or under any other
Credit Document.



2.10. Payment of Guaranteed Obligations. Any amounts received by the Administrative
Agent under this Guaranty from whatever source on accounts of the Guaranteed Obligations shall be
transferred to the Collateral Agent and applied by the Collateral Agent in the manner set forth in
Section 6.02 of the Credit Agreement for the application of proceeds of any sale,
disposition or other realization upon all or any part of the Collateral.



SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GUARANTORS. As of the
date hereof and as of the date of each Credit Event, each Guarantor represents to the
Administrative Agent and the Lender Parties that each of the representations and warranties
applicable to it under the Credit Agreement are true and correct as if made by such Guarantor.
Each Guarantor agrees to comply with and be bound by each of the covenants, agreements and
conditions in the Credit Agreement applicable to it as if such Guarantor were a party to the Credit
Agreement.




SECTION 4. MISCELLANEOUS PROVISIONS.



4.01. No Waiver. No failure or delay by the Collateral Agent, Administrative Agent or
any Lender Party in exercising any remedy, right, power or privilege under this Guaranty or any
other Credit Document shall operate as a waiver of such remedy, right, power or privilege, nor
shall any single or partial exercise of such remedy, right, power or privilege



 


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preclude any other or further exercise of such remedy, right, power or privilege or the
exercise of any other remedy, right, power or privilege. The remedies, rights, powers and
privileges provided by this Guaranty are, to the extent not prohibited by law, cumulative and not
exclusive of any remedies, rights, powers or privileges provided by the other Credit Documents or
by law.



4.02. Notices. All notices, requests, demands, consents, instructions or other
communications to or upon the Guarantors or any one of them or the Administrative Agent under this
Guaranty shall be in writing and faxed, mailed, e-mailed or delivered, if to the Guarantors or any
one of them or to the Administrative Agent, at its respective facsimile number or address set forth
below (or to such other facsimile number or address for any party as indicated in any notice given
by that party to the other parties). All such notices and communications shall be effective (a)
when sent by an overnight courier service of recognized standing, on the second Business Day
following the deposit with such service; (b) when mailed, first-class postage prepaid and addressed
as aforesaid through the United States Postal Service, upon receipt; (c) when delivered by hand,
upon delivery; and (d) when sent by facsimile transmission or e-mail, upon confirmation of receipt.



	 	 	 
	The Administrative Agent:

	 	Wells Fargo Bank, National Association

5340 Kietzke Lane

Reno, Nevada 89511

Attention: Erna Stuckey

Tel. No. 775-689-6018

Fax No.  775-689-6026

E-mail: Erna.F.Stuckey@wellsfargo.com






 


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	The Guarantors:

	 	c/o Full House Resorts, Inc.

4670 S. Fort Apache Road

Suite 190

Las Vegas, NV 89147

Attention: Mark Miller

                  Chief Financial Officer/Chief Operating Officer

Tel. No. (702) 221-7800

Fax No.  (702) 221-8101

E-mail: mmiller@fullhouseresorts.com
	 
	 	 
	With a Copy to:

	 	Greenberg Traurig, LLP

2375 East Camelback Road, Suite 700

Phoenix, AZ 85016

Attention: Jeffrey H. Verbin

Tel. No. (602) 445-8202

Fax No.  (602) 445-8630

E-mail: VerbinJ@GTLaw.com






4.03. Expenses, Etc. Each Guarantor agrees to pay or to reimburse the Administrative
Agent and the Lenders for all costs and expenses (including fees and expenses of counsel) that may
be incurred by the Administrative Agent or the Lenders in any effort to enforce any of the
obligations of the Guarantors under this Guaranty, whether or not any lawsuit is filed, including
all such costs and expenses (and attorneys’ fees and expenses) incurred by the Administrative Agent
and the Lenders in any bankruptcy, reorganization, workout or similar proceeding. All amounts due
under this Guaranty (including under Section 2.01) and not paid when due shall bear
interest until paid at a per annum rate equal to the Base Rate plus the highest Applicable Margin
for Base Rate Loans plus four percent (4.00%).



4.04. Amendments, Etc. The Administrative Agent and each Guarantor hereby acknowledge
and agree that the waiver, amendment and other provisions in Section 8.04 of the Credit
Agreement apply to this Guaranty as to the Guarantors and are incorporated herein as though set
forth in full.



4.05. Successors and Assigns. This Guaranty is in favor of the Collateral Agent and
the Administrative Agent for the benefit of itself and the Lender Parties and their respective
successors and assigns and, in the event of an assignment of the Loans, Commitments or other
amounts payable under the Credit Agreement or the other Credit Documents, the rights hereunder, to
the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness.
This Guaranty shall be binding upon the Guarantors and their respective successors and assigns and
inure to the benefit of the Collateral Agent, the Administrative Agent and the Lender Parties and
their respective successors and assigns. No Guarantor may assign or transfer its rights or
obligations under this Guaranty without the prior written consent of the Administrative Agent. Any
attempted assignment or transfer in violation of this Section shall be null and void.


 


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4.06. Survival. All representations and warranties made in this Guaranty or in any
certificate or other document delivered pursuant to or in connection with this Guaranty shall
survive the execution and delivery of this Guaranty or such certificate or other document (as the
case may be) or any deemed repetition of any such representation or warranty.



4.07. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER CREDIT DOCUMENTS REPRESENT THE
COMPLETE AND FINAL AGREEMENT AMONG THE GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES
AND SUPERSEDE ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, ON THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE GUARANTORS, THE ADMINISTRATIVE AGENT
AND THE LENDER PARTIES.



4.08. Partial Invalidity. If at any time any one or more of the provisions contained
in this Guaranty should be held invalid, illegal or unenforceable in any respect, no party hereto
shall be required to comply with such provision for so long as such provision is held to be
invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining
provisions contained in this Guaranty shall not in any way be affected or impaired. The parties
hereto shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.



4.09. Captions. The table of contents, captions and section headings appearing in
this Guaranty are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Guaranty.



4.10. Counterparts. This Guaranty may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes. Transmission by facsimile, “pdf” or similar
electronic copy of an executed counterpart of this Guaranty shall be deemed to constitute due and
sufficient delivery of such counterpart. Any party hereto may request an original counterpart of
any party delivering such electronic counterpart.



4.11. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAW RULES OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.



4.12. SUBMISSION TO JURISDICTION. Each of the parties to this Guaranty irrevocably
submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of
the United States of America located in New York, New York and agrees that any legal action, suit
or proceeding arising out of or relating to this Guaranty or any of the other Credit Documents
(including, without limitation, any Security Documents) may be brought against such party in any
such courts. Final judgment against any party in any such action, suit or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the



 


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judgment, a certified or exemplified copy of which shall be conclusive evidence of the
judgment, or in any other manner provided by law. Nothing in this Section shall affect the right
of any party to commence legal proceedings or otherwise sue any other party in any other
appropriate jurisdiction, or concurrently in more than one jurisdiction, or to serve process,
pleadings and other papers upon any other party in any manner authorized by the laws of any such
jurisdiction. The Guarantors agree that process served either personally or by registered mail
shall, to the extent permitted by law, constitutes adequate service of process in any such suit.
Each of the parties to this Guaranty irrevocably waives to the fullest extent permitted by
applicable law (a) any objection which it may have now or in the future to the laying of the venue
of any such action, suit or proceeding in any court referred to in the first sentence above; (b)
any claim that any such action, suit or proceeding has been brought in an inconvenient forum; (c)
its right of removal of any matter commenced by any other party in the courts of the State of New
York to any court of the United States of America; (d) any immunity which it or its assets may have
in respect of its obligations under this Guaranty or any other Credit Document from any suit,
execution, attachment (whether provisional or final, in aid of execution, before judgment or
otherwise) or other legal process; and (e) any right it may have to require the moving party in any
suit, action or proceeding brought in any of the courts referred to above arising out of or in
connection with this Guaranty or any other Credit Document to post security for the costs of any
party or to post a bond or to take similar action.



4.13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OTHER CREDIT DOCUMENTS (INCLUDING,
WITHOUT LIMITATION, ANY SECURITY DOCUMENTS) OR THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY OR
ANY OTHER CREDIT DOCUMENTS.



4.14. Power of Attorney. Each Guarantor hereunder hereby grants to the Borrower an
irrevocable power of attorney to act as its attorney-in-fact with regard to matters relating to
this Guaranty and each other Credit Document, including execution and delivery of any amendments,
supplements, waivers or other modifications hereto or thereto, receipt of any notices hereunder or
thereunder and receipt of service of process in connection herewith or therewith. Each Guarantor
hereby explicitly acknowledges that the Administrative Agent has executed and delivered this
Guaranty and each other Credit Document to which it is a party, and has performed its obligations
under this Guaranty and each other Credit Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this Section.



4.15. Additional Guarantors. If, pursuant to the terms and conditions of the Credit
Agreement, the Borrower shall be required to cause any Person that is not a Guarantor to become a
Guarantor hereunder, such Person shall execute and deliver to the Administrative Agent a Joinder
Agreement in the form of Annex I and shall thereafter for all purposes be a party hereto
and have the same rights, benefits and obligations as a Guarantor party hereto with the same force
and effect as if originally named as a Guarantor herein.


 


-16-









 





4.16. No Individual Lender Party Enforcement. By its entry into any Credit Document,
each Lender Party agrees that this Guaranty may be enforced only by action of the
Administrative Agent upon the instructions of the Required Lenders and that no Lender Party
shall have any right individually to seek to enforce or to enforce this Guaranty.



[This Space Intentionally Left Blank]



 


-17-









 





IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of the date first above
written.



	 	 	 	 	 
	 	GUARANTOR(S):



FULL HOUSE SUBSIDIARY, INC.,

a Delaware corporation

 	 
	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 
	 	FULL HOUSE SUBSIDIARY II, INC.,

a Nevada corporation




	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 
	 	GAMING ENTERTAINMENT (INDIANA), LLC,

a Nevada limited liability company




	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 
	 	GAMING ENTERTAINMENT (SANTA FE), LLC,

a Nevada limited liability company



	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 


 


 









 





	 	 	 	 	 
	 	GAMING ENTERTAINMENT (MONTANA), LLC,

a Nevada limited liability company



	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 
	 	STOCKMAN’S CASINO,

a Nevada corporation



	 	BY:  	 	 
	 	NAME: 	 	 
	 	TITLE: 	 	 
	 




 


 









 







ANNEX I




JOINDER AGREEMENT

(Guaranty Agreement)





This Joinder Agreement (Guaranty Agreement), dated as of
 _____,
 _____, is delivered
pursuant to Section 4.15 of the Guaranty Agreement dated as of [
_______

], 20__, among FULL
HOUSE SUBSIDIARY, INC., a Delaware corporation, FULL HOUSE SUBSIDIARY II, INC., a Nevada
corporation, GAMING ENTERTAINMENT (INDIANA), LLC, a Nevada limited liability company, GAMING
ENTERTAINMENT (SANTA FE), LLC, a Nevada limited liability company, GAMING ENTERTAINMENT (MONTANA),
LLC, a Nevada limited liability company, STOCKMAN’S CASINO, a Nevada corporation and the other
entities from time to time party thereto as Guarantors in favor of Wells Fargo Bank, National
Association, as administrative agent for the Lenders referred to therein (as amended, restated,
supplemented or modified from time to time, the “Guaranty Agreement”). Capitalized terms
used herein but not defined herein are used herein with the meaning given them in the Guaranty
Agreement.



By executing and delivering this Joinder Agreement, the undersigned, as provided in
Section 4.15 of the Guaranty Agreement, hereby becomes a party to the Guaranty Agreement as
a Guarantor thereunder with the same force and effect as if originally named as a Guarantor
therein.



The undersigned expects to realize direct and indirect benefits as the result of the
availability of the aforementioned credit facilities to the Borrower.



The undersigned hereby represents and warrants that each of the representations and warranties
contained in or incorporated into the Guaranty Agreement applicable to it is true and correct in
all material respects on and as the date hereof as if made on and as of such date.
This Joinder Agreement shall be governed by, construed and enforced in accordance with, the
internal law of the State of New York without reference to conflicts of law rules other than
Section 5-1401 of the General Obligations Law of the State of New York except that matters
concerning the validity and perfection of a security interest shall be governed by the conflict of
law rules set forth in the UCC. The undersigned hereby consents to the application of New York
civil law to the construction, interpretation and enforcement of this Joinder Agreement, and to the
application of New York civil law to the procedural aspects of any suit, action or proceeding
relating thereto, including, but not limited to, legal process, execution of judgments and other
legal remedies.



This Joinder Agreement may be executed in any number of identical counterparts, any set of
which signed by all the parties hereto shall be deemed to constitute a complete, executed original
for all purposes. Transmission by facsimile, “PDF” or similar electronic format of an executed
counterpart of this Joinder Agreement shall be deemed to constitute due and sufficient delivery of
such counterpart


 


 









 





In witness whereof, the undersigned has caused this Joinder Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	[Additional Guarantor]

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



ACKNOWLEDGED AND AGREED

as of the date of this Joinder Agreement

first above written.




	 	 	 	 	 
	Wells Fargo Bank, National Association, as Administrative Agent

 	 	 
	By:  	 	 	 
	 	    Name:
	 	 
	Title:  	 	 	 
	 



 


2.









 





EXHIBIT M




FORM OF SECURITY AGREEMENT




(see attached)




 


M-1









 







SECURITY AGREEMENT




THIS SECURITY AGREEMENT, dated as of [                    ], 20__, is entered into by and among FULL
HOUSE RESORTS, INC., a Delaware corporation (“Borrower”), FULL HOUSE SUBSIDIARY, INC., a
Delaware corporation (“Subsidiary”), FULL HOUSE SUBSIDIARY II, INC., a Nevada corporation
(“Subsidiary II”), GAMING ENTERTAINMENT (INDIANA), LLC, a Nevada limited liability company
(“Gaming Indiana”), GAMING ENTERTAINMENT (SANTA FE), LLC, a Nevada limited liability
company (“Gaming Santa Fe”), GAMING ENTERTAINMENT (MONTANA), LLC, a Nevada limited
liability company (“Gaming Montana”), STOCKMAN’S CASINO, a Nevada corporation
(“Stockman’s”) and each of the other entities which becomes a party hereto pursuant to
Section 10.15 below (each of the foregoing, including the Borrower, Subsidiary, Subsidiary
II, Gaming Indiana, Gaming Santa Fe, Gaming Montana and Stockman’s, each a “Grantor” and
collectively, the “Grantors”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells
Fargo”), as collateral agent for the Secured Parties (as defined in the below-described Credit
Agreement) (in such capacity, together with any successors and assigns in such capacity, the
“Collateral Agent”).



RECITALS




A. Each of the Grantors (other than the Borrower) is a direct or indirect subsidiary of the
Borrower.



B. The Borrower entered into a Credit Agreement, dated as of October 29, 2010(as the same from
time to time hereafter may be amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among the Borrower, the lenders from time to time party
thereto (the “Lenders”) and Wells Fargo, as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), Collateral Agent, L/C Issuer and Swing Line Lender,
pursuant to which the Administrative Agent and the Lenders agreed to extend loans and other
financial accommodations to the Borrower upon the terms and subject to the conditions set forth
therein. In addition, certain of the Lender Parties may, from time to time, enter into Lender Rate
Contracts with the Borrower.



C. The Lender Parties’ obligations to extend loans and other financial accommodations to the
Borrower under the Credit Agreement and the other Credit Documents are subject, among other
conditions, to receipt by the Collateral Agent of this Security Agreement duly executed by the
Grantors.



D. Each Grantor (other than the Borrower) is or shall become a party to that certain Guaranty
Agreement dated as of even date herewith in connection with the Credit Agreement. Each Grantor
(other than the Borrower) expects to realize direct and indirect benefits as the result of the
availability of the aforementioned credit facilities to the Borrower.



AGREEMENT




NOW, THEREFORE, in consideration of the above recitals and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, each of the Grantors
hereby agrees with the Collateral Agent, for itself and for the benefit of the Secured
Parties, as follows:


 


 









 





SECTION 1. Definitions and Interpretation. When used in this Security Agreement, the
following terms shall have the following respective meanings:



“Account” means any “account,” as such term is defined in Section 9-102(a)(2) of the
UCC (or any other then applicable provision of the UCC) and, in any event, shall include, without
limitation, all accounts receivable, book debts and other forms of obligations (other than forms of
obligations evidenced by Chattel Paper, Documents or Instruments) now owned or hereafter received
or acquired by or belonging or owing to any Grantor (including, without limitation, under any trade
name, style or division thereof) whether arising out of goods sold or services rendered by such
Grantor or from any other transaction, whether or not the same involves the sale of goods or
services by such Grantor (including, without limitation, any such obligation which may be
characterized as an account or contract right under the UCC) and all of any Grantor’s rights in, to
and under all purchase orders or receipts now owned or hereafter acquired by it for goods or
services, and all of any Grantor’s rights to any goods represented by any of the foregoing
(including, without limitation, unpaid seller’s rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods), and all monies due or
to become due to any Grantor under all purchase orders and contracts for the sale of goods or the
performance of services or both by any Grantor (whether or not yet earned by performance on the
part of such Grantor or in connection with any other transaction), now in existence or hereafter
occurring, including, without limitation, the right to receive the proceeds of said purchase orders
and contracts, and all collateral security and guarantees of any kind given by any Person with
respect to any of the foregoing.



“Account Debtor” means any “account debtor,” as such term is defined in Section
9-102(a)(3) of the UCC (or any other then applicable provision of the UCC).



“Casino Bankroll” means only the amount of cash or Cash Equivalents required by the
Gaming Laws to satisfy casino minimum bankroll requirements, mandatory game security reserves,
allowances for redemption of casino chips and tokens, or payment of winning wagers to gaming
patrons, or as otherwise may be required by the Gaming Laws or a directive of the Gaming Board.



“Chattel Paper” means any “chattel paper,” as such term is defined in Section
9-102(a)(11) of the UCC (or any other then applicable provision of the UCC), including, without
limitation, electronic chattel paper and tangible chattel paper, in each case, now owned or
hereafter acquired by any Grantor or in which any Grantor now holds or hereafter acquires any
interest.




“Collateral” shall have the meaning assigned to such term in Section 2 below.



“Commercial Tort Claim” means any “commercial tort claim,” as such term is defined in
Section 9-102(a)(13) of the UCC (or any other then applicable provision of the UCC).



“Commodity Account” means any “commodity account,” as such term is defined in Section
9-102(a)(14) of the UCC (or any other then applicable provision of the UCC).




 


2 











 




“Commodity Contract” means any “commodity contract,” as such term is defined in
Section 9-102(a)(15) of the UCC (or any other then applicable provision of the UCC).



“Contracts” means all contracts, undertakings, franchise agreements, license
agreements or other agreements (but excluding rights evidenced by Chattel Paper, Documents or
Instruments) in or under which any Grantor may now or hereafter have any right, title or interest,
including, without limitation, with respect to an Account, any agreement relating to the terms of
payment or the terms of performance thereof.



“Copyrights” means all of the following now owned or hereafter acquired by any Grantor
or in which any Grantor now holds or hereafter acquires any interest: (i) all copyrights, whether
registered or unregistered, held pursuant to the laws of the United States, any State thereof or of
any other country; (ii) registrations, applications and recordings in the United States Copyright
Office or in any similar office or agency of the United States, any state thereof or any other
country; (iii) any continuations, renewals or extensions thereof; and (iv) any registrations to be
issued in any pending applications.



“Copyright License” means any written agreement granting any right to use any
Copyright or Copyright registration now owned or hereafter acquired by any Grantor.



“Deposit Account” means any “deposit account” as such term is defined in Section
9-102(a)(29) of the UCC (or any other then applicable provision of the UCC), and should include,
without limitation, any demand, time, savings passbook or like account, now or hereafter maintained
by or for the benefit of any Grantor, or in which any Grantor now holds or hereafter acquires any
interest, with a bank, savings and loan association, credit union or like organization (including
the Collateral Agent) and all funds and amounts therein, whether or not restricted or designated
for a particular purpose.



“Documents” means any “documents,” as such term is defined in Section 9-102(a)(30) of
the UCC (or any other then applicable provision of the UCC), now owned or hereafter acquired by any
Grantor or in which any Grantor now holds or hereafter acquires any interest.



“Electronic Chattel Paper” means any “electronic chattel paper” as such term is
defined in Section 9-102(a)(31) of the UCC (or any other then applicable provision of the UCC).



“Equipment” means any “equipment,” as such term is defined in Section 9-102(a)(33) of
the UCC (or any other then applicable provision of the UCC), now or hereafter owned or acquired by
any Grantor or in which any Grantor now holds or hereafter acquires any interest and, in any event,
shall include, without limitation, all machinery, equipment, fixtures, gaming machines, casino
chips, signage, change banks, change bins, slot machine bases furniture, furnishings, trade
fixtures, vehicles, trucks, vessels, boilers, engines, masts, spars, rigging, boats, pumps,
anchors, cables, chains, tackle, apparel, fittings, mainframe, personal and other computers,
terminals and printers and related components and accessories, all copiers, telephonic, video,
electronic data-processing, data storage equipment and other equipment of any nature whatsoever,
and any and all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto.


 


3









 






“Excluded Assets” means:




(a) any Equity Securities in [GEM]1 or GED;




(b) any lease, license, contract, property rights or agreement to which any Grantor is
a party, any of its rights or interests thereunder to the extent that any applicable term
therein prohibits the creation of a security interest thereon (other than to the extent that
any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or
any other applicable law (including any Debtor Relief Laws) or principles of equity);




(c) any “intent to use” Trademark applications for which a statement of use has not
been filed (but only until such statement is filed);




(d) casino markers to the extent there is an enforceable legal prohibition in granting
a lien on any such marker after giving effect to the UCC of any relevant jurisdiction or any
other applicable law; and




(e) any gaming license to the extent a security interest therein cannot be granted
without prior written consent of any Gaming Board;




provided, however, “Excluded Assets” shall not include (i) the right
to receive distributions, dividends, cash and other property in respect of the Equity
Securities of [GEM] or GED and (ii) any proceeds, products, substitutions or replacements of
Excluded Assets (unless such proceeds, products, substitutions or replacements would
otherwise constitute Excluded Assets).



“General Intangible” means any “general intangible,” as such term is defined in
Section 9-102(a)(42) of the UCC (or any other then applicable provision of the UCC) and, in any
event, shall include, without limitation, all right, title and interest which any Grantor may now
or hereafter have in or under any Contract, all customer lists, Copyrights, Trademarks, Patents and
other Intellectual Property of any kind or nature, including, without limitation, any rights to
Intellectual Property, including, without limitation, under or pursuant to any License, all
proprietary or confidential information, inventions (whether or not patented or patentable),
interests in partnerships, joint ventures and other business associations, permits, books and
records, goodwill (including, without limitation, the goodwill associated with any Trademark,
Trademark registration or Trademark licensed under any Trademark License), claims in or under
insurance policies, including unearned premiums, Payment Intangibles, Software, uncertificated
securities, cash and other forms of money or currency, rights to sue for past, present and future
infringement of Copyrights, Trademarks and Patents, rights to receive tax refunds, all agreements,
obligations and liabilities owing to any Grantor and all collateral securing such agreements,
obligations and liabilities, and other payments and rights of indemnification.



 








	 	 	 
	1	 	Equity Securities of GEM to be included in Excluded
Assets only to the extent the NIGC will not issue a declination letter with
respect to the Credit Documents if such Equity Securities are included in the
Collateral



 


4









 









“Instruments” means any “instrument,” as such term is defined in Section 9-102(a)(47)
of the UCC (or any other then applicable provision of the UCC), now owned or hereafter acquired by
any Grantor or in which any Grantor now holds or hereafter acquires any interest, including,
without limitation, all notes and all other evidences of indebtedness, other than instruments that
constitute, or are a part of a group of writings that constitute, Chattel Paper.



“Intellectual Property” means all intellectual property of any kind or nature,
including, without limitation, all Copyrights, Copyright Licenses, Trademarks, Trademark Licenses,
Patents, Patent Licenses, trade secrets, mask works, source codes, customer lists, proprietary or
confidential information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases, data, skill,
expertise, recipes, experience, processes, models, drawings, materials and records.



“Inventory” means any “inventory,” as such term is defined in Section 9-102(a)(48) of
the UCC (or any other then applicable provision of the UCC), wherever located, now or hereafter
owned or acquired by any Grantor or in which any Grantor now holds or hereafter acquires any
interest, and, in any event, shall include, without limitation, all inventory, goods and other
personal property which are held by or on behalf of any Grantor for sale or lease or are furnished
or are to be furnished under a contract of service or which constitute raw materials, work in
process or materials used or consumed or to be used or consumed in any Grantor’s business, or the
processing, packaging, promotion, delivery or shipping of the same, and all finished goods whether
or not such inventory is listed on any schedules, assignments or reports furnished to the
Collateral Agent from time to time and whether or not the same is in transit or in the
constructive, actual or exclusive occupancy or possession of any Grantor or is held by any Grantor
or by others for any Grantor’s account, including, without limitation, all goods covered by
purchase orders and contracts with suppliers and all goods billed and held by suppliers and all
inventory of any Grantor which may be located on the premises of any Grantor or of any carriers,
forwarding agents, truckers, warehousemen, vendors, selling agents or other persons.



“Investment Property” means any “investment property,” as such term is defined in
Section 9-102(a)(49) of the UCC (or any other then applicable provision of the UCC), now owned or
hereafter acquired by any Grantor or in which any Grantor now holds or hereafter acquires any
interest, and shall include, without limitation, all Securities Accounts, Commodity Accounts and
Commodity Contracts and all certificated securities (including, without limitation, those listed on
Schedule I), uncertificated securities and security entitlements, as each such term is
defined in the UCC.



“Letter-of-Credit Right” means “letter-of-credit right,” as such term is defined in
Section 9-102(a)(51) of the UCC (or any other then applicable provision of the UCC).



“License” means any Copyright License, Patent License, Trademark License or other
license of rights or interests now held or hereafter acquired by or in which any Grantor now holds
or hereafter acquires any interest and any renewals or extensions thereof.



“Patent License” means any written agreement granting any right with respect to any
invention on which a Patent is in existence now owned or hereafter acquired by any Grantor.


 


5









 





“Patents” means all of the following now owned or hereafter acquired by any Grantor or
in which any Grantor now holds or hereafter acquires any interest: (a) letters patent of, or rights
corresponding thereto in, the United States or any other country, all registrations and recordings
thereof, and all applications for letters patent of, or rights corresponding thereto in, the United
States or any other country, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country; (b) all reissues, continuations,
continuations-in-part or extensions thereof; (c) all petty patents, divisionals, and patents of
addition; and (d) all patents to issue in any such applications.



“Payment Intangible” means “payment intangible,” as such term is defined in Section
9-102(a)(61) of the UCC (or any other then applicable provision of the UCC).



“Pledged Collateral” means, collectively, the notes, the stock, partnership interests,
limited liability company interests, and all other Equity Securities of any Grantor (excluding
however, any Equity Securities issued by the Borrower), all certificates or other instruments
representing any of the foregoing, all security entitlements of any Grantor in respect of any of
the foregoing, all dividends, interest distributions, cash, warrants, rights, instruments and other
property or Proceeds from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the foregoing.



“Proceeds” means “proceeds,” as such term is defined in Section 9-102(a)(64) of the
UCC (or any other then applicable provision of the UCC), and, in any event, shall include, without
limitation, (a) any and all Accounts, Chattel Paper, Instruments, cash or other forms of money or
currency or other proceeds payable to any Grantor from time to time in respect of the Collateral,
(b) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to any Grantor
from time to time with respect to any of the Collateral, (c) any and all payments (in any form
whatsoever) made or due and payable to any Grantor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral
by any governmental authority (or any Person acting under color of governmental authority), (d) any
claim of any Grantor against third parties (i) for past, present or future infringement of any
Copyright, Patent, Copyright License or Patent License or (ii) for past, present or future
infringement or dilution of any Trademark or Trademark License or for injury to the goodwill
associated with any Trademark, Trademark registration or Trademark licensed under any Trademark
License, (e) all certificates, dividends, cash, Instruments and other property received or
distributed in respect of or in exchange for any Investment Property, and (f) any and all other
amounts from time to time paid or payable under or in connection with any of the Collateral.



“Secured Obligations” shall mean and include (a) in the case of the Borrower, the
Obligations (as defined in the Credit Agreement) and (b) in the case of each other Grantor, all
liabilities and obligations, howsoever arising, owed by such Grantor to the Collateral Agent, the
Administrative Agent or any other Secured Party of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment of money), direct or
indirect, absolute or contingent, due or to become due, now existing or hereafter arising, in each
case, pursuant to the terms of the Guaranty or any of the other Credit Documents to which such
Grantor is a party, including without limitation all interest (including interest that accrues
after
the commencement of any bankruptcy or other insolvency proceeding by or against such Grantor,
whether or not allowed or allowable), fees, charges, expenses, attorneys’ fees and accountants’
fees chargeable to and payable by such Grantor hereunder and thereunder.


 


6









 





“Securities Account” means “securities account,” as such term is defined in Section
8-501(a) of the UCC (or any other then applicable provision of the UCC).



“Security Agreement” means this Security Agreement and all exhibits and schedules
hereto, as the same may from time to time be amended, modified, supplemented or restated.



“Software” means “software,” as such term is defined in Section 9-102(a)(75) of the
UCC (or any other then applicable provision of the UCC).



“Supporting Obligation” means “supporting obligation,” as such term is defined in
Section 9-102(a)(77) of the UCC (or any other then applicable provision of the UCC).



“Trademark License” means any written agreement granting any right to use any
Trademark or Trademark registration now owned or hereafter acquired by any Grantor.



“Trademarks” means any of the following now owned or hereafter acquired by any Grantor
or in which any Grantor now holds or hereafter acquires any interest: (a) any and all trademarks,
trade names, corporate names, business names, trade dress, service marks, logos, designs, and other
source or business identifiers, prints and labels on which any of the foregoing have appeared or
appear, designs and general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and any applications in connection therewith,
including, without limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof and (b) any reissues, extensions
or renewals thereof.



“UCC” means the Uniform Commercial Code as the same may, from time to time, be in
effect in the State of New York; provided, however, in the event that, by reason of
mandatory provisions of law, any or all of the creation or attachment, perfection or priority of
the Collateral Agent’s or any Lender’s security interest in any collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term
“UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes
of the provisions hereof relating to such creation or attachment, perfection of priority and for
purposes of definitions related to such provisions.



Unless otherwise defined herein, all other capitalized terms used herein and defined in the
Credit Agreement shall have the respective meanings given to those terms in the Credit Agreement,
and all terms defined in the UCC shall have the respective meanings given to those terms in the
UCC. The rules of interpretation set forth in Article I of the Credit Agreement shall, to the
extent not inconsistent with the terms of this Security Agreement, apply to this Security Agreement
and are hereby incorporated by reference.


 


7









 





SECTION 2. Grant of Security Interest. Each Grantor hereby assigns, conveys,
mortgages, pledges, grants, hypothecates and transfers to the Collateral Agent, for the benefit of
the Secured Parties, as security for the full, prompt, complete and final payment when due
(whether at stated maturity, by acceleration or otherwise) and prompt performance and observance of
all of the Secured Obligations of such Grantor, and in order to induce the Administrative Agent and
the other Secured Parties to enter into the Credit Agreement and the other Credit Documents and to
make loans and other financial accommodations available to and for the benefit of the Borrower upon
the terms and subject to the conditions thereof, a security interest in and to all of such
Grantor’s right, title and interest in, to and under each of the following, whether now owned or
hereafter acquired by such Grantor or in which such Grantor now holds or hereafter acquires any
interest (all of which being hereinafter collectively called the “Collateral”):




(a) All Accounts;




(b) All Chattel Paper;




(c) All Commercial Tort Claims;




(d) All Contracts;




(e) All Deposit Accounts;




(f) All Documents;




(g) All Equipment;




(h) All General Intangibles;




(i) All Instruments;




(j) All Inventory;




(k) All Investment Property;




(l) All Pledged Collateral;




(m) All Letter-of-Credit Rights;




(n) All Supporting Obligations;



(o) All property of such Grantor held by the Collateral Agent, the Administrative Agent or any
Lender Party, or any other party for whom the Collateral Agent, the Administrative Agent or any
Lender Party is acting as agent hereunder, including, without limitation, all property of every
description now or hereafter in the possession or custody of or in transit to the Collateral Agent,
the Administrative Agent, any Lender Party or such other party, for any purpose, including, without
limitation, safekeeping, collection or pledge, for the account of such Grantor, or as to which such
Grantor may have any right or power;


 


8









 





(p) All distributions, dividends, cash and other property received or distributed in respect
of any Equity Securities in [GEM]2 and GED;



(q) All other goods and personal property of such Grantor whether tangible or intangible and
whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, such
Grantor and wherever located; and



(r) To the extent not otherwise included, all Proceeds of each of the foregoing and all
accessions to, substitutions and replacements for, and rents, profits and products of each of the
foregoing;



provided, however, notwithstanding the foregoing, the Collateral shall not
include any Excluded Assets.




SECTION 3. Rights of the Collateral Agent; Collection of Accounts.



(a) The Collateral Agent shall not have any obligation or liability under any Contract by
reason of or arising out of this Security Agreement or the granting to the Collateral Agent of a
security interest therein or the receipt by the Collateral Agent of any payment relating to any
Contract pursuant hereto, nor shall the Collateral Agent be required or obligated in any manner to
perform or fulfill any of the obligations of any Grantor under or pursuant to any Contract, or to
make any payment, or to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any Contract, or to present
or file any claim, or to take any action to collect or enforce any performance or the payment of
any amounts which may have been assigned to it or to which it may be entitled at any time or times.



(b) The Collateral Agent authorizes each Grantor to collect the respective Accounts of such
Grantor, provided, that the Collateral Agent may, upon the occurrence and during the
continuation of any Event of Default and without notice, limit or terminate said authority at any
time. If required by the Collateral Agent at any time after the occurrence and during the
continuation of any Event of Default, any Proceeds, when first collected by a Grantor, received in
payment of such Account or in payment for any of its Inventory or on account of any of its
Contracts shall be promptly deposited by such Grantor in precisely the form received (with all
necessary endorsements) in a special bank account maintained by the Collateral Agent subject to
withdrawal by the Collateral Agent only, as hereinafter provided, and until so turned over shall be
deemed to be held in trust by such Grantor for and as the Collateral Agent’s property, and shall
not be commingled with such Grantor’s other funds or properties. Such Proceeds, when deposited,
shall continue to be collateral security for all of the Secured Obligations and shall not
constitute payment thereof until applied as hereinafter provided. Upon the occurrence and during
the continuation of any Event of Default, the Collateral Agent may, in its sole discretion, apply
all or a part of the funds on deposit in said special account to the principal of or interest on or
both in respect of any of the Secured Obligations in accordance with the provisions of Section
7(g), below, and any part of such funds which the Collateral Agent elects not to so apply and
deems not required to be held by the



 








	 	 	 
	2	 	See Footnote 1



 


9









 








Collateral Agent as collateral security for the Secured Obligations shall be paid over from
time to time by the Collateral Agent to the Grantors. If an Event of Default has occurred and is
continuing, at the request of the Collateral Agent, each Grantor shall deliver to the Collateral
Agent all original and other documents evidencing, and relating to, the sale and delivery of such
Inventory and each Grantor shall deliver all original and other documents evidencing and relating
to, the performance of labor or service which created such Accounts, including, without limitation,
all original orders, invoices and shipping receipts.




(c) The Collateral Agent may at any time, upon the occurrence and during the continuation of
any Event of Default, without notice to or consent from any Grantor, notify Account Debtors of any
Grantor, parties to the Contracts of any Grantor, obligors in respect of Instruments of any Grantor
and obligors in respect of Chattel Paper of any Grantor that the Accounts and the right, title and
interest of any Grantor in and under such Contracts, Instruments, and Chattel Paper have been
assigned to the Collateral Agent, and that payments shall be made directly to the Collateral Agent.
Upon the request of the Collateral Agent, each Grantor shall so notify such Account Debtors,
parties to such Contracts, obligors in respect of such Instruments and obligors in respect of such
Chattel Paper. Upon the occurrence and during the continuation of an Event of Default, the
Collateral Agent may, in its name, or in the name of others communicate with such Account Debtors,
parties to such Contracts, obligors in respect of such Instruments and obligors in respect of such
Chattel Paper to verify with such parties, to the Collateral Agent’s satisfaction, the existence,
amount and terms of any such Accounts, Contracts, Instruments or Chattel Paper.



SECTION 4. Representations and Warranties. Each Grantor hereby represents and
warrants to the Collateral Agent, the Administrative Agent and the Lender Parties that:



(a) Such Grantor is the sole legal and equitable owner of each item of the Collateral in which
it purports to grant a security interest hereunder, having good and merchantable title or rights
thereto free and clear of any and all Liens, except for Permitted Liens.



(b) No effective security agreement, financing statement, equivalent security or lien
instrument or continuation statement covering all or any part of the Collateral exists, except such
as may have been filed by such Grantor in favor of the Collateral Agent pursuant to this Security
Agreement or such as relate to other Permitted Liens.



(c) The execution and delivery of this Security Agreement creates a legal and valid security
interest on and in all of the Collateral in which such Grantor now has rights and all filings and
other actions necessary or desirable to perfect and protect such security interest have been duly
taken. Accordingly, the Collateral Agent has a fully perfected first priority security interest in
all of the Collateral in which such Grantor now has rights subject only to Permitted Liens. This
Security Agreement will create a legal and valid and fully perfected first priority security
interest in the Collateral in which such Grantor later acquires rights, when such Grantor acquires
those rights, subject only to Permitted Liens.


 


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(d) Each Grantor’s exact legal name is set forth on Schedule VI attached hereto or as
otherwise set forth in a written notice given to the Collateral Agent pursuant
to Section 5.11 below. Each Grantor was formed under the laws of jurisdiction of its
formation as set forth on Schedule VI attached hereto or as otherwise set forth in a
written notice given to the Collateral Agent pursuant to Section 5.11 below. Each
Grantor’s chief executive office, principal place of business, and the place where each Grantor
maintains records concerning the Collateral are set forth on Schedule VI attached hereto or
at such other location(s) set forth in a written notice given to the Collateral Agent pursuant to
this subsection (d). The Collateral, other than Deposit Accounts, Investment Property held
in Securities Accounts or Commodity Accounts and Collateral in the Collateral Agent’s possession,
is presently located at the location(s) set forth on Schedule VI attached hereto or at such
other location(s) set forth in a written notice given to the Collateral Agent pursuant to this
subsection (d). No Grantor shall change such chief executive office or principal place of
business or remove or cause to be removed, except in the ordinary course of such Grantor’s business
and in connection with sales, transfers and dispositions permitted under Section 5.02(c) of
the Credit Agreement, the Collateral or the records concerning the Collateral from those premises
without prior written notice to the Collateral Agent.



(e) Schedule I (as supplemented from time to time by the Grantors in a supplement
delivered pursuant to this subsection (e)) sets forth, as of the Closing Date and as of
each date by which this subsection (e) requires any supplement to be delivered by the
Grantors, all Collateral with respect to which a security interest may be perfected by the secured
party’s taking possession thereof, including, without limitation, all Chattel Paper, Instruments
and certificated securities. As of the Closing Date and as of each date by which this
subsection (e) requires any supplement to Schedule I to be delivered by the
Grantors, all action necessary to protect and perfect such security interest in each item set forth
on Schedule I (as supplemented from time to time by the Grantors in a supplement delivered
pursuant to this subsection (e)), including, without limitation, the delivery to the
Collateral Agent of all originals of all Chattel Paper, Instruments and certificated securities and
all necessary stock powers, endorsements, assignments and other instruments of transfer, has been
taken. Schedule II (as supplemented from time to time by the Grantors in a supplement
delivered pursuant to this subsection (e)) sets forth, as of the Closing Date and as of
each date by which this subsection (e) requires any supplement to be delivered by the
Grantors, all Letter-of-Credit Rights and Commercial Torts Claims of each Grantor. The security
interest of the Collateral Agent in the Collateral is prior in right and interest to all other
liens, other than Permitted Liens, and is enforceable as such against creditors of and purchasers
from such Grantor. Each Grantor shall supplement Schedule I and Schedule II from
time to time within twenty (20) Business Days after obtaining any additional Chattel Paper,
Instruments, certificated securities, Letter-of-Credit Rights or Commercial Tort Claims, as
applicable.



(f) Schedule III (as supplemented from time to time by the Grantors in a supplement
delivered pursuant to this subsection (f)) sets forth, as of the Closing Date and as of
each date by which this subsection (f) requires any supplement to be delivered by the
Grantors, the names and addresses of all financial institutions at which each Grantor maintains its
Deposit Accounts and the account numbers and account names of such Deposit Accounts. Each Grantor
shall supplement Schedule III from time to time within twenty (20) Business Days after
opening any additional Deposit Account or closing or changing the account number or account name on
any existing Deposit Account.


 


11









 





(g) Schedule IV (as supplemented from time to time by the Grantors in a supplement
delivered pursuant to this subsection (g)) sets forth, as of the Closing Date and as of
each date by which this subsection (g) requires any supplement to be delivered by the
Grantors, the names and addresses of all institutions at which each Grantor maintains its
Securities Accounts and the account numbers and account names of such Securities Accounts. Each
Grantor shall supplement Schedule IV from time to time within twenty (20) Business Days
after opening any additional Securities Account or closing or changing the account number or
account name on any existing Securities Account.



(h) Schedule V (as supplemented from time to time by the Grantors in a supplement
delivered pursuant to this subsection (h)) sets forth, as of the Closing Date and as of
each date by which this subsection (h) requires any supplement to be delivered by the
Grantors, the names and addresses of all institutions at which each Grantor maintains its Commodity
Accounts and the account numbers and account names of such Commodity Accounts. Each Grantor shall
supplement Schedule V from time to time within twenty (20) Business Days after opening any
additional Commodity Account or closing or changing the account number or account name on any
existing Commodity Account.



(i) All material Copyright Licenses, Patent Licenses and Trademark Licenses and all registered
Copyrights, Patents and Trademarks which constitute Collateral, and applications and registrations
for Copyrights, Patents and Trademarks owned, held or in which the Grantors otherwise have any
rights which constitute Collateral are listed on Schedule VII. No later than the last day
of each fiscal quarter, beginning with the fiscal quarter ending [                    ], 20__, (i) the
Grantors shall amend Schedule VII to reflect any additions to or deletions of Patents
(including applications and registrations), Trademarks (including applications and registrations)
or Copyrights (including applications and registrations) (whether filed by Grantor or acquired)
from this list and (ii) the Grantors shall execute and deliver to the Collateral Agent additional
short form documentation in form and substance reasonably satisfactory to the Collateral Agent to
be filed in the United States Copyright Office or the United States Patent and Trademark Office as
the Collateral Agent may reasonably require from time to time.



(j) No Copyrights, Patents or Trademarks listed on Schedule VII which are of material
value or utility to the Grantors have been adjudged invalid or enforceable or have been canceled,
in whole or in part, or are not presently subsisting.



(k) None of the Patents, Trademarks or Copyrights has been licensed to any third party, except
for Licenses issued in the ordinary course of the Grantors’ business to enable the Grantors to
conduct their business.



(l) As of the Closing Date and as of each date by which Section 4(e) requires any
supplement to Schedule I to be delivered by the Grantors, such Grantor has delivered to
Collateral Agent all of the Equity Securities pledged to the Collateral Agent by such Grantor under
Section 2 above free and clear of any adverse claim, as defined in Section 8-102(a)(1) of
the UCC (or any other then applicable provision of the UCC), except for the Lien created in favor
of the Collateral Agent by this Security Agreement and the other Credit Documents.


 


12









 





(m) No authorization, approval or other action by, and no notice to or filing with, any
governmental authority or any other Person is required for the exercise by the Collateral Agent of
the voting or other rights provided for in this Security Agreement, except (i) as may be required
by Gaming Laws or (ii) in connection with a disposition of the Investment Property as may be
required by governmental rules affecting the offering and sale of securities generally.



(n) Each Grantor has delivered to the Collateral Agent, together with all necessary stock
powers, endorsements, assignments and other necessary instruments of transfer, the originals of all
stock certificates, instruments, notes, other certificated securities, other Collateral and all
certificates, instruments and other writings evidencing the same, in each case relating to Equity
Securities and Instruments required to be pledged hereunder.



(o) All shares of the pledged Equity Securities set forth on Schedule I (as
supplemented from time to time by the Grantors in a supplement delivered pursuant to subsection
(e) above) are duly authorized and validly issued, fully paid, and non-assessable.
Schedule I (as supplemented from time to time by the Grantors in a supplement delivered
pursuant to subsection (e) above) sets forth, as of the Closing Date and as of each date by
which such subsection (e) requires any supplement to be delivered by the Grantors, sets
forth a true, complete and accurate list of all shares of stock issued by each Grantor’s
Subsidiaries and all other securities owned by such Grantor.



SECTION 5. Covenants. Each Grantor covenants and agrees with the Collateral Agent
that from and after the date of this Security Agreement and until the Secured Obligations have been
completely and finally paid in full (other than contingent indemnification obligations and
Obligations in respect of Lender Rate Contracts):



5.1 Further Assurances; Pledge of Instruments. At any time and from time to time,
upon the written request of the Collateral Agent, and at the sole expense of the Grantors, each
Grantor shall promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as the Collateral Agent may reasonably deem desirable to
obtain the full benefits of this Security Agreement and of the rights and powers herein granted,
including, without limitation, (a) using its commercially reasonable efforts to secure all consents
and approvals necessary or appropriate for the grant of a security interest to the Collateral Agent
in any Contract held by any Grantor or in which any Grantor has any rights not heretofore assigned,
(b) filing any financing statements, amendments or continuation statements under the UCC with
respect to the security interests granted hereby, (c) filing or cooperating with the Collateral
Agent in filing any forms or other documents required to be filed with the United States Patent and
Trademark Office, the United States Copyright Office or any filings in any foreign jurisdiction or
under any international treaty, required to secure or protect the Collateral Agent’s interest in
the Collateral, (d) transferring Collateral to the Collateral Agent’s possession (if a security
interest in such Collateral can be perfected and free from an adverse claim only by possession),
(e) filing financing statements as consignor pursuant to Section 9-505 of the UCC (or any other
then applicable provision of the UCC) in such jurisdictions as any Grantor maintains Inventory on
consignment, (f) placing the interest of the Collateral Agent as lienholder on the certificate of
title (or other evidence of ownership ) of any vehicle that constitutes Collateral owned by any
Grantor or in or with respect to which any



 


13









 






Grantor holds a beneficial interest, (g) using its commercially reasonable efforts to obtain
waivers of liens from landlords and mortgagees as required pursuant to the Credit Agreement, (h)
obtaining written acknowledgements from consignees, warehouse and other bailees of the prior lien
of the Collateral Agent in and to the Collateral and that such third party is holding possession of
the Collateral for the benefit of the Collateral Agent to the extent provided in such written
acknowledgement, (i) executing supplements to this Security Agreement in form and substance
reasonably satisfactory to the Collateral Agent necessary to identify and grant to the Collateral
Agent a security interest in any Commercial Tort Claims acquired by such Grantor, and (j) assisting
the Collateral Agent in obtaining control under the UCC with respect to any Collateral consisting
of Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper.
Each Grantor also hereby authorizes the Collateral Agent, to the extent not prohibited by
applicable law, to file any such financing statement, amendment or continuation statement
(including consignment filings) without the signatures of such Grantor. If any amount payable
under or in connection with any of the Collateral is or shall become evidenced by any Instrument,
such Instrument, other than checks and notes received in the ordinary course of any Grantor’s
business, shall be duly endorsed in a manner satisfactory to the Collateral Agent and delivered to
the Collateral Agent promptly upon any Grantor’s receipt thereof.



5.2 Maintenance of Records. Each Grantor shall keep and maintain at such Grantor’s
own cost and expense accurate and complete records of the Collateral, including, without
limitation, a record of all payments received and all credits granted with respect to the
Collateral and all other dealings with the Collateral. Each Grantor shall mark its books and
records pertaining to the Collateral to evidence this Security Agreement and the security interests
granted hereby. If requested by the Collateral Agent, all Chattel Paper shall be marked with the
following legend: “This writing and the obligations evidenced or secured hereby are subject to the
security interest of Wells Fargo Bank, National Association, as Collateral Agent, created by that
certain Security Agreement, dated as of [                    ], 20
__
, in favor of Wells Fargo Bank,
National Association, as Collateral Agent, as the same may thereafter from time to time be amended,
modified, supplemented or restated.”



5.3 Indemnification. In any suit, proceeding or action brought by or against the
Collateral Agent or any Lender relating to any Collateral, including, without limitation, any
Account, Chattel Paper, Contract, General Intangible, Instrument or Document for any sum owing
thereunder, or to enforce any provision of any Account, Chattel Paper, Contract, General
Intangible, Instrument or Document, each Grantor shall jointly and severally save, indemnify and
keep the Collateral Agent harmless from and against all expense, loss or damage suffered by reason
of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder arising out of a breach by any Grantor of any obligation thereunder or arising
out of any other agreement, indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from any Grantor, except to the extent determined by a final,
non-appealable judgment of a court of competent jurisdiction to have been caused by the gross
negligence, bad faith or willful misconduct of the Collateral Agent, and all such obligations of
the Grantors shall be and remain enforceable against and only against the Grantors and shall not be
enforceable against the Collateral Agent.


 


14









 





5.4 Compliance With Terms of Accounts, Etc. In all material respects, each Grantor
shall perform and comply with all obligations in respect of Accounts, Chattel Paper, Contracts,
Documents, Instruments and Licenses and all other agreements to which it is a party or by which it
is bound; provided, however, that each Grantor may suspend its performance thereunder in the event
of a material breach of any such obligations by third parties.



5.5 Limitation on Liens on Collateral. No Grantor shall create, permit or suffer to
exist, and shall defend the Collateral against and take such other action as is necessary to
remove, any lien on the Collateral, except the Permitted Liens. Each Grantor shall, jointly and
severally, further defend the right, title and interest of the Collateral Agent in and to any of
any Grantor’s rights under the Chattel Paper, Contracts, Documents, General Intangibles,
Instruments and Investment Property and to the Equipment and Inventory and in and to the Proceeds
thereof against the claims and demands of all Persons whomsoever.



5.6 Limitations on Modifications of Accounts, Etc. Upon the occurrence and during the
continuation of any Event of Default, no Grantor shall, without the Collateral Agent’s prior
written consent, grant any extension of the time of payment of any of the Accounts, Chattel Paper,
Instruments or amounts due under any Contract or Document, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partly, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon other than trade discounts and rebates
granted in the ordinary course of such Grantor’s business..



5.7 Maintenance of Insurance. Each Grantor shall maintain, with financially sound and
reputable companies, the insurance policies with coverage provisions as set forth in Section
5.01(d) of the Credit Agreement.



5.8 Taxes, Assessments, Etc. Each Grantor shall pay promptly prior to delinquency all
property and other taxes, assessments and government charges or levies imposed upon, and all claims
(including, without limitation, claims for labor, materials and supplies) against, the Equipment or
Inventory, except to the extent the validity thereof is being contested in good faith and adequate
reserves are being maintained in connection therewith.



5.9 Limitations on Disposition. Each Grantor shall keep the Collateral separate and
identifiable from other property located on the same premises as the Collateral and no Grantor
shall sell, lease, license outside the ordinary course of its business, transfer or otherwise
dispose of any of the Collateral, or attempt or contract to do so, except as permitted by
Section 5.02(c) of the Credit Agreement.



5.10 Further Identification of Collateral. Each Grantor shall, if so requested by the
Collateral Agent, furnish to the Collateral Agent, as often as the Collateral Agent shall
reasonably request, statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Collateral Agent may reasonably
request, all in reasonable detail.


 


15









 





5.11 Notices. Each Grantor shall advise the Collateral Agent promptly, in reasonable
detail, of (a) any material Lien, other than Permitted Liens, attaching to or asserted
against any of the Collateral, (b) any material change in the composition of the Collateral
and (c) the occurrence of any other event which could reasonably be expected to result in a
Material Adverse Effect with respect to the Collateral or on the security interest created
hereunder.



5.12 Right of Inspection and Audit. Each Grantor shall permit the Collateral Agent
such rights of inspection and audit as provided in the Credit Agreement, subject to applicable
Gaming Laws. In addition, upon reasonable notice to a Grantor (unless an Event of Default has
occurred and is continuing, in which case no notice is necessary), the Collateral Agent and its
agents and representatives shall also have the right during such Grantor’s ordinary business hours,
to enter into and upon any premises of such Grantor where any of the Equipment or Inventory is
located for the purpose of conducting audits and making physical verifications of such Equipment
and Inventory and test verifications of the Accounts in any manner and through any medium that it
considers advisable, and each Grantor agrees to furnish all such assistance and information as the
Collateral Agent may require in connection therewith.



5.13 Maintenance of Facilities. Each Grantor shall maintain and protect its
properties, assets and facilities, including, without limitation, its Equipment in good order and
working repair and condition (taking into consideration ordinary wear and tear) and from time to
time make or cause to be made all needful and proper repairs, renewals and replacements thereto and
shall competently manage and care for its property in accordance with prudent industry practices,
provided that each Grantor shall be permitted to dispose of damaged, worn-out or obsolete
equipment in the ordinary course of its business for not less than fair market value, if any.



5.14 Continuous Perfection. No Grantor shall change its name, identity or corporate
structure in any manner unless such Grantor shall have given the Collateral Agent at least thirty
(30) days’ prior written notice thereof and shall have taken all action (or made arrangements to
take such action substantially simultaneously with such change if it is impossible to take such
action in advance) necessary or reasonably requested by the Collateral Agent to amend such
financing statement or continuation statement so that it is not seriously misleading.




5.15 Intellectual Property.



(a) The Grantors shall notify the Collateral Agent promptly and not later than by the next
calendar quarter if the Grantors know or have reason to know that any application or registration
relating to any Copyright, Patent or Trademark may become abandoned, or of any adverse
determination or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office, or any court) regarding the Grantors’ ownership or license of
any Copyright, Patent or Trademark or the right of the Grantors to register or keep and maintain
the same.



(b) The Grantors shall take all commercially reasonable steps to prevent any misuse,
infringement, invalidation, misappropriation, unauthorized use or abandonment of its Copyrights,
Patents, Trademarks or other Intellectual Property, whether owned or licensed. The Grantors’
efforts pursuant to this Section 5.15 shall include, but not be



 


16









 






limited to: (i) establishing prudent security measures and procedures governing access to, and
use of, property protected by such Copyrights, Trademarks or Patents or of Intellectual Property
owned or licensed by the Grantors or developed by any Person on behalf of the Grantors; (ii)
establishing and maintaining in force any agreements with employees and consultants or any written
terms of employment, as are customarily used in the Grantors’ industry for the protection of
similar intellectual property; and (iii) reasonable enforcement of the Grantors’ rights in any
Intellectual Property.



(c) If any Grantor shall (a) obtain rights to any new patentable inventions, any registered
Copyrights or any Patents or Trademarks or (b) become entitled to the benefit of any registered
Copyrights or any Patents or Trademarks or any improvement on any Patent, the provisions of this
Security Agreement shall automatically apply thereto. To the extent commercially reasonable and
material to the operations of the business of the Grantors, each Grantor shall have the duty (i) to
prosecute diligently any patent, trademark or service mark applications pending with respect to
such Grantor as of the date hereof or hereafter, (ii) to make application on unpatented but
patentable inventions and on trademarks, copyrights and service marks, as appropriate, (iii) to
preserve and maintain all rights in the Copyrights, Patents and Trademarks and (iv) to ensure that
the Copyrights, Patents and Trademarks are and remain enforceable, subject to the limitations of
applicable law. To the extent commercially reasonable and material to the operations of the
business of the Grantors, each Grantor shall have the duty (w) to prosecute diligently any patent
pending with respect to such Grantor as of the date hereof or hereafter, (x) to make application on
unpatented but patentable inventions and on Copyrights, as appropriate, (y) to preserve and
maintain all rights in the Copyrights and Patents and (z) to ensure that the Copyrights and Patents
are and remain enforceable, subject to the limitations of applicable law except for where the
failure to do so could not be expected to result in a Material Adverse Effect. In no event shall
any Grantor, either itself or through any agent, employee, licensee or designee, file an
application for the registration of any Patent or Trademark with the United States Patent and
Trademark Office, any Copyright with the United States Copyright Office, or any similar office or
agency in any other country or any political subdivision thereof unless it promptly informs the
Collateral Agent no later than the next calendar quarter and, upon request of the Collateral Agent,
executes and delivers any and all agreements, instruments, documents, and papers as the Collateral
Agent may request to evidence the Collateral Agent’s security interest in such Copyright, Patent or
Trademark, including, without limitation, with respect to Trademarks, the goodwill of such Grantor,
relating thereto or represented thereby. Any expenses incurred in connection with the Grantors’
obligations under this Section 5.15 shall be borne by the Grantors. To the extent commercially
reasonable and material to the operations of the business of the Grantors, no Grantor shall abandon
any right to file a patent, trademark or service mark application, or abandon any pending patent,
application or any other Copyright, Patent or Trademark, without the written consent of the
Collateral Agent, which consent shall not be unreasonably withheld.



(d) To the extent commercially reasonable, the Grantors shall (i) promptly make application to
register any copyrightable or patentable property or trade name or trademark of the Grantors,
including the most recent version of the Grantors’ existing Copyrights, if not so already
registered; and (ii) take all necessary action to maintain and pursue each such application (and to
obtain the relevant registration) and to maintain the registration of each of such Copyrights,
Patents and Trademarks, including, without limitation, the filing of
applications for renewal, affidavits of use, affidavits of noncontestability and opposition
and interference and cancellation proceedings.


 


17









 





(e) In the event that any Copyright, Patent or Trademark is infringed, misappropriated or
diluted by a third party, the Grantors shall notify the Collateral Agent promptly after the
Grantors learn thereof but not later than the next calendar quarter and shall, unless the Grantors
shall reasonably determine that such Copyright, Patent or Trademark is not material or that the
costs of any pursuit of action are reasonably likely to outweigh the benefits obtained, promptly
sue for infringement, misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution and take such actions as the Grantors shall reasonably
deem appropriate under the circumstances to protect such Copyright, Patent or Trademark.



5.16 Authorizations with Respect to Financing Statements, etc. Each Grantor hereby
irrevocably authorizes the Collateral Agent at any time and from time to time to file in any filing
office in any UCC jurisdiction any initial financing statements and amendments thereto that (i)
indicate the Collateral (A) as “all assets” of such Grantor or words of similar effect, regardless
of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of
the UCC of such jurisdiction, or (B) as being of an equal or lesser scope or with greater detail,
and (ii) contain any other information required by part 5 of Article 9 of the UCC for the
sufficiency or filing office acceptance of any financing statement or amendment, including, without
limitation, (A) whether such Grantor is an organization, the type of organization and any
organization identification number issued to such Grantor, and (B) in the case of a financing
statement filed as a fixture filing or indicating any Collateral as as-extracted collateral or
timber to be cut, a sufficient description of the real property to which such Collateral relates.
Each Grantor agrees to promptly furnish any such information that the Collateral Agent may
reasonably request. Each Grantor also ratifies its authorization for the Collateral Agent to have
filed in any UCC jurisdiction any initial financing statements or amendments thereto if filed prior
to the date hereof.



5.17 No Reincorporation. No Grantor shall reincorporate or reorganize itself under
the laws of any jurisdiction other than the jurisdiction in which it is incorporated or organized
as of the date hereof without the prior written consent of the Collateral Agent.



5.18 Terminations and Amendments Not Authorized. Each Grantor acknowledges that it is
not authorized to file any amendment or termination statement with respect to any financing
statement relating to any security interest granted hereunder without the prior written consent of
the Collateral Agent and agrees that it will not do so without the prior written consent of the
Collateral Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.




5.19 Pledged Collateral.



(a) Each Grantor shall deliver to the Collateral Agent all certificates or Instruments
representing or evidencing any Pledged Collateral, whether now existing or hereafter acquired, in
suitable form for transfer by delivery or, as applicable, accompanied by such Grantor’s
endorsement, where necessary, or duly executed instruments of transfer or assignment



 


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in blank, all in form and substance reasonably satisfactory to the Collateral Agent. The
Collateral Agent shall have the right, subject to applicable Gaming Laws, at any time in its
discretion and after the occurrence and during the continuation of an Event of Default without
prior notice to any Grantor, to transfer to or to register in its name or in the name of its
nominees any or all of the Pledged Collateral. The Collateral Agent shall have the right at any
time to exchange certificates or instruments representing or evidencing any of the Pledged
Collateral for certificates or instruments of smaller or larger denominations.



(b) Except as provided in Section 7, each Grantor shall be entitled to receive all
cash dividends and cash distributions paid in respect of the Pledged Collateral to the extent
permitted to be paid by the Credit Agreement (other than liquidating or distributing dividends or
distributions) with respect to the Pledged Collateral. Any sums paid upon or in respect of any of
the Pledged Collateral upon the liquidation or dissolution of any issuer of any of the Pledged
Collateral, any distribution of capital made on or in respect of any of the Pledged Collateral or
any property distributed upon or with respect to any of the Pledged Collateral pursuant to the
recapitalization or reclassification of the capital of any issuer of Pledged Collateral or pursuant
to the reorganization thereof shall, unless otherwise subject to a perfected security interest in
favor of the Collateral Agent, be delivered to the Collateral Agent to be held by it hereunder as
additional collateral security for the Secured Obligations of such Grantor. If any sums of money
or property so paid or distributed pursuant to the immediately preceding sentence in respect of
any of the Pledged Collateral shall be received by such Grantor, such Grantor shall, until such
money or property is paid or delivered to the Collateral Agent, hold such money or property in
trust for the Collateral Agent, segregated from other funds of such Grantor, as additional security
for the Secured Obligations of such Grantor. In the case of each Grantor which is an issuer of
Pledged Collateral, such Grantor agrees (i) to direct all distributions made in respect of such
Pledged Collateral to the Collateral Agent upon the written direction of the Collateral Agent sent
after the occurrence and during the continuance of an Event of Default and (ii) to comply with
instructions originated by the Collateral Agent with respect to such Pledged Collateral after the
occurrence and during the continuance of an Event of Default.



(c) Except as provided in Section 7 and subject to applicable Gaming Laws, such
Grantor will be entitled to exercise all voting, consent and corporate rights with respect to the
Pledged Collateral; provided, however, that no vote shall be cast, consent given or right exercised
or other action taken by such Grantor which would (i) be inconsistent with or result in any
violation of any provision of the Credit Agreement, this Security Agreement, any other Credit
Document or would adversely affect the Collateral Agent’s Lien on such Pledged Collateral or its
remedies with respect thereto or (ii) without prior notice to the Collateral Agent, permit any
issuer of Pledged Collateral to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of any issuer of Pledged Collateral.



(d) No Grantor shall grant “control” (within the meaning of such term under Article
9-106 of the UCC) over any Investment Property to any Person other than the Collateral Agent.


 


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(e) In the case of each Grantor which is an issuer of Pledged Collateral, such Grantor agrees
to be bound by the terms of this Security Agreement relating to
the Pledged Collateral issued by it and will comply with such terms insofar as such terms are
applicable to it and consents to such pledge of such Pledged Collateral. In the case of each
Grantor which is a partner in a partnership, such Grantor hereby consents to the extent required by
the applicable partnership agreement (i) to the pledge by each other Grantor, pursuant to the terms
hereof, of the pledged partnership interests in such partnership and (ii) to the transfer of such
pledged partnership interests to the Collateral Agent or its nominee and to the substitution of the
Collateral Agent or its nominee as a substituted partner in such partnership with all the rights,
powers and duties of a general partner or a limited partner, as the case may be. In the case of
each Grantor which is a member of a limited liability company, such Grantor hereby consents to the
extent required by the applicable limited liability company agreement (i) to the pledge by each
other Grantor, pursuant to the terms hereof, of the pledged limited liability company interests in
such limited liability company and (ii) to the transfer of such pledged limited liability company
interests to the Collateral Agent or its nominee and to the substitution of the Collateral Agent or
its nominee as a substituted member of the limited liability company with all the rights, powers
and duties of a member of the limited liability company in question.



(f) No Grantor shall agree to any provision in, or amendment of, a limited liability company
agreement or partnership agreement that adversely affects the perfection of the security interest
of the Collateral Agent in any pledged partnership interests or pledged limited liability company
interests pledged by such Grantor hereunder, including electing to treat the membership interest or
partnership interest of such Grantor as a security under Section 8-103 of the UCC.




SECTION 6. The Collateral Agent’s Appointment as Attorney-in-Fact.



(a) Subject to Section 6(b) below, each Grantor hereby irrevocably constitutes and
appoints the Collateral Agent, and any officer or agent thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and
stead of such Grantor and in the name of such Grantor or in its own name, from time to time at the
Collateral Agent’s discretion, for the purpose of carrying out the terms of this Security
Agreement, subject to applicable Gaming Laws, to take all appropriate action and to execute and
deliver any and all documents and instruments which may be necessary or reasonably desirable to
accomplish the purposes of this Security Agreement and, without limiting the generality of the
foregoing, hereby gives the Collateral Agent the power and right, on behalf of such Grantor,
without notice to or assent by such Grantor to do the following:



(i) subject to applicable Gaming Laws, to ask, demand, collect, receive and give acquittances
and receipts for any and all monies due or to become due under any Collateral and, in the name of
such Grantor, in its own name or otherwise to take possession of, endorse and collect any checks,
drafts, notes, acceptances or other Instruments for the payment of monies due under any Collateral
and to file any claim or to take or commence any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any
and all such monies due under any Collateral whenever payable;


 


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(ii) to pay or discharge any liens, including, without limitation, any tax lien, levied or
placed on or threatened against the Collateral, to effect any repairs or any
insurance called for by the terms of this Security Agreement and to pay all or any part of the
premiums therefor and the costs thereof, which actions shall be for the benefit of the Collateral
Agent and not any Grantor;



(iii) subject to applicable Gaming Laws, to (1) direct any person liable for any payment under
or in respect of any of the Collateral to make payment of any and all monies due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent shall direct, (2) receive
payment of any and all monies, claims and other amounts due or to become due at any time arising
out of or in respect of any Collateral, (3) sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against Grantors, assignments,
verifications and notices in connection with Accounts and other Instruments and Documents
constituting or relating to the Collateral, (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or
any part thereof and to enforce any other right in respect of any Collateral, (5) defend any suit,
action or proceeding brought against any Grantor with respect to any Collateral, (6) settle,
compromise or adjust any suit, action or proceeding described above and, in connection therewith,
give such discharges or releases as the Collateral Agent may deem appropriate, (7) license or, to
the extent permitted by an applicable license, sublicense, whether general, special or otherwise,
and whether on an exclusive or non-exclusive basis, any Patent or Trademark throughout the world
for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its
discretion determine and (8) sell, transfer, pledge, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent
were the absolute owner thereof for all purposes, and to do, at the Collateral Agent’s option and
the Grantors’ expense, at any time, or from time to time, all acts and things which the Collateral
Agent may reasonably deem necessary to protect, preserve or realize upon the Collateral and the
Collateral Agent’s security interest therein in order to effect the intent of this Security
Agreement, all as fully and effectively as Grantors might do; and



(iv) to execute and deliver any and all such further instruments and documents and take such
further action that are required of such Grantor by Section 5.1 above.



(b) The Collateral Agent agrees that, except upon the occurrence and during the continuation
of an Event of Default, it shall not exercise the power of attorney or any rights granted to the
Collateral Agent pursuant to this Section 6. Each Grantor hereby ratifies, to the extent
not prohibited by applicable law, all that said attorney shall lawfully do or cause to be done by
virtue hereof. The power of attorney granted pursuant to this Section 6 is a power coupled
with an interest and shall be irrevocable until the Secured Obligations are completely paid in full
or this Security Agreement is terminated and the security interests created hereby are released.



(c) The powers conferred on the Collateral Agent hereunder are solely to protect the
Collateral Agent’s interests in the Collateral and shall not impose any duty upon the Collateral
Agent to exercise any such powers. The Collateral Agent shall have no duty as to any Collateral,
including any responsibility for (i) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral or (ii) ascertaining or taking



 


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action with respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Investment Property, whether or not the Collateral Agent has or is deemed to have
knowledge of such matters. Without limiting the generality of the preceding sentence, the
Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation
of any of the Collateral if it takes such action for that purpose as any Grantor reasonably
requests in writing at times other than upon the occurrence and during the continuance of any Event
of Default. Failure of the Collateral Agent to comply with any such request at any time shall not
in itself be deemed a failure to exercise reasonable care. The Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the exercise of such powers
and neither it nor any of its officers, directors, employees, agents or representatives shall be
responsible to the Grantors for any act or failure to act, except for its own gross negligence or
willful misconduct as determined by a final, non-appealable judgment of a court of competent
jurisdiction.



(d) Subject to applicable Gaming Laws, each Grantor also authorizes the Collateral Agent, at
any time and from time to time upon the occurrence and during the continuation of any Event of
Default, to (i) communicate in its own name with any party to any Contract with regard to the
assignment of the right, title and interest of any Grantor in and under the Contracts hereunder and
other matters relating thereto and (ii) execute, in connection with the sale of Collateral provided
for in Section 7, below, any endorsements, assignments or other instruments of conveyance
or transfer with respect to the Collateral.



(e) If any Grantor fails to perform or comply with any of its agreements contained herein and
the Collateral Agent, as provided for by the terms of this Security Agreement, shall perform or
comply, or otherwise cause performance or compliance, with such agreement, the costs and expenses,
including, without limitation, reasonable attorneys’ fees and costs, of the Collateral Agent
incurred in connection with such performance or compliance, together with interest thereon at a per
annum rate equal to the Default Rate shall be payable by the Grantors to the Collateral Agent
promptly following demand and shall constitute Secured Obligations secured hereby.



Each Grantor hereby ratifies all that the Collateral Agent as its attorney-in-fact shall do or
cause to be done by virtue of this Security Agreement. In furtherance of the powers granted in
this Section 6, each Grantor shall execute and deliver to Collateral Agent a Special Power
of Attorney in the form of Attachment 1 hereto.




SECTION 7. Rights and Remedies Upon Default.



(a) If any Event of Default shall occur and be continuing, the Collateral Agent may exercise,
but only in accordance with applicable Gaming Laws, in addition to all other rights and remedies
granted to it under this Security Agreement, the Credit Agreement, the other Credit Documents and
under any other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under applicable law, including, without
limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly
agrees that in any such event the Collateral Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time and place of public
or private sale) to or upon the Grantors or any other



 


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person (all and each of which demands, advertisements and notices are hereby expressly waived
to the maximum extent not prohibited by the UCC and other applicable law), shall have the right to
collect the Proceeds from all Collateral (including, without limitation, dividends or distributions
on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish,
repair, prepare for sale or lease, ship, advertise for sale or lease and sell or lease (in the
manner provided for herein) the Collateral, and in connection with liquidation of the Collateral
and collection of the accounts receivable pledged as Collateral, use any trademark, trade name,
trade style, copyright, or process used or owned by any Grantor; (ii) forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease,
assign, give an option or options to purchase or sell or otherwise dispose of and deliver said
Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private
sale or sales, at any exchange or broker’s board or at any of the Collateral Agent’s offices or
elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk and (iii) exercise (A) all voting, consent, corporate and other
rights pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as
the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any
and all rights of conversion, exchange and subscription and any other rights, privileges or options
pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right
to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate structure of any
issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged
Collateral with any committee, depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Collateral Agent may determine), all without liability except
to account for property actually received by it, but the Collateral Agent shall have no duty to any
Grantor to exercise any such right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing. The Secured Parties acknowledge that to the extent the
Collateral Agent exercises any rights and remedies in respect of any casino of any Grantor, if the
Secured Parties desire for such Grantor to continue gaming operations at such casino, the Secured
Parties will need to permit such Grantor to maintain the Casino Bankroll applicable to such casino.
Each Grantor authorizes the Collateral Agent, on the terms set forth in this Section 7, to
enter the premises where the Collateral is located, to take possession of the Collateral, or any
part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which, in
the reasonable opinion of the Collateral Agent, appears to be prior or superior to its security
interest. The Collateral Agent shall have the right upon any such public sale or sales, and, to
the extent not prohibited by applicable law, upon any such private sale or sales, to purchase the
whole or any part of said Collateral so sold, free of any right or equity of redemption, which
equity of redemption each Grantor hereby releases. The Collateral Agent may sell the Collateral
without giving any warranties as to the Collateral and may specifically disclaim any warranties of
title, which procedures shall not be considered to adversely affect the commercial reasonableness
of any sale of the Collateral. Each Grantor further agrees, at the Collateral Agent’s request, to
assemble the Collateral and make it available to the Collateral Agent at places which the
Collateral Agent shall reasonably select, whether at any Grantor’s premises or elsewhere. The
Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale as provided in Section 7(g), below, and Grantors shall
remain liable for any deficiency remaining unpaid after such application, and only after so paying
over such net proceeds and after the payment by the



 


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Collateral Agent of any other amount required by any provision of law, including, without
limitation, Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC),
need the Collateral Agent account for the surplus, if any, to the Grantors. To the maximum extent
not prohibited by applicable law, each Grantor waives all claims, damages, and demands against the
Collateral Agent arising out of the repossession, retention or sale of the Collateral except such
as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise
out of the gross negligence or willful misconduct of the Collateral Agent. Each Grantor agrees
that the Collateral Agent need not give more than ten (10) days’ prior written notice (which
notification shall be deemed given in accordance with the Credit Agreement) of the time and place
of any public sale or of the time after which a private sale may take place and that such notice is
reasonable notification of such matters. Grantors shall remain liable for any deficiency if the
proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which
the Collateral Agent and the Secured Parties are entitled, and Grantors shall also be liable for
attorneys’ fees or costs of any attorneys employed by the Collateral Agent to collect such
deficiency.



(b) As to any Collateral constituting certificated securities or uncertificated securities,
if, at any time when the Collateral Agent shall determine, subject to applicable Gaming Laws, to
exercise its right to sell the whole or any part of such Collateral, such Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities
Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its
discretion (subject only to applicable requirements of law), sell such Collateral or part thereof
by private sale in such manner and under such circumstances as the Collateral Agent may deem
necessary or advisable, but subject to the other requirements of this Section 7(b), and
shall not be required to effect such registration or cause the same to be effected. Without
limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole
discretion, (i) in accordance with applicable securities laws, proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering such Collateral or
part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a
single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Collateral or part thereof. In addition to a
private sale as provided above in this Section 7(b), if any of such Collateral shall not be
freely distributable to the public without registration under the Act at the time of any proposed
sale hereunder, then the Collateral Agent shall not be required to effect such registration or
cause the same to be effected but may, in its sole discretion (subject only to applicable
requirements of law), require that any sale hereunder (including, without limitation, a sale at
auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole
discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so
to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the
enforcement of creditors’ rights and the Act and all applicable state securities laws. In order to
permit the Collateral Agent to exercise the voting and other consensual rights which it may be
entitled to exercise pursuant hereto and to receive all dividends and other distributions which it
may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to the Collateral Agent all such proxies, dividend payment orders and
other instruments as the Collateral Agent may from time to time reasonably request and (ii) without
limiting the effect of clause (i) above, such Grantor hereby grants to the Collateral Agent



 


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an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be
entitled (including giving or withholding written consents of shareholders, partners or members, as
the case may be, calling special meetings of shareholders, partners or members, as the case may be,
and voting at such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Collateral on the record books of
the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any
officer or agent thereof) after the occurrence and during the continuance of an Event of Default
and which proxy shall terminate upon the earlier of the payment in full of the Secured Obligations
or the cure of the Event of Default. Each Grantor hereby expressly authorizes and instructs each
issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any
instruction received by it from the Collateral Agent in writing that (A) states that an Event of
Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this
Security Agreement, without any other or further instructions from such Grantor, and each Grantor
agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise
expressly permitted hereby, pay any dividends or other payments with respect to the Pledged
Collateral directly to the Collateral Agent in compliance with any such instructions.



(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure
sale or otherwise, the Collateral Agent is hereby authorized to comply with any limitation or
restriction in connection with such sale as it may be advised by counsel is necessary in order to
avoid any violation of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and purchasers, require that such
prospective bidders and purchasers have certain qualifications and restrict such prospective
bidders and purchasers to persons who will represent and agree that they are purchasing for their
own account for investment and not with a view to the distribution or resale of such Collateral),
or in order to obtain any required approval of the sale or of the purchaser by any governmental
authority, and each Grantor further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner, nor shall the
Collateral Agent be liable nor accountable to any Grantor for any discount allowed by the reason of
the fact that such Collateral is sold in compliance with any such limitation or restriction.



(d) Each Grantor also agrees to pay all fees, costs and expenses of the Collateral Agent,
including, without limitation, attorneys’ fees and costs, incurred in connection with the
enforcement of any of its rights and remedies hereunder.



(e) Except as otherwise provided in the Credit Documents, each Grantor hereby waives
presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law)
of any kind in connection with this Security Agreement or any Collateral.



(f) Each Grantor agrees that a breach of any covenants contained in this Section 7
will cause irreparable injury to the Collateral Agent, that in such event the Collateral Agent and
would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that
in such event each and every covenant contained in this Section 7 shall be specifically
enforceable against the Grantors, and each Grantor hereby waives and agrees not
to assert any defenses against an action for specific performance of such covenants except for
a defense that the Secured Obligations are not then due and payable.


 


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(g) The proceeds of any sale, disposition or other realization upon all or any part of the
Collateral shall be distributed by the Collateral Agent as set forth in Section 6.02 of the
Credit Agreement.



(h) For the purpose of enabling the Collateral Agent to exercise rights and remedies under
this Section 7 at such time as the Collateral Agent shall be lawfully entitled to exercise
such rights and remedies, each Grantor hereby grants to the Collateral Agent a nonexclusive license
(exercisable without payment of royalty or other compensation to the Grantors during the existence
of an Event of Default) to use, license or sublicense any of the Collateral (as defined herein) and
the “Collateral” (as such term is defined in the Intellectual Property Security Agreement) now
owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items may be recorded or
stored and to all computer software and programs used for the compilation or printout thereof,
except to the extent that such license may not be granted as a result of an exclusive license
arrangement. The use of such license by the Collateral Agent shall be exercised, at the option of
the Collateral Agent, after the occurrence and during the continuation of an Event of Default;
provided that any license or sublicense entered into by the Collateral Agent with a Person other
than a Secured Party in accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.



SECTION 8. Limitation on the Collateral Agent’s Duty in Respect of Collateral. The
Collateral Agent shall be deemed to have acted reasonably in the custody, preservation and
disposition of any of the Collateral if it complies with the obligations of a secured party under
Section 9-207 of the UCC (or any other then applicable provision of the UCC).



SECTION 9. Reinstatement. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against any Grantor for
liquidation or reorganization, should any Grantor become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any significant part
of any Grantor’s property and assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,”
“fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.




SECTION 10. Miscellaneous.



10.1 Notices. Except as otherwise specified herein, all notices, requests, demands,
consents, instructions or other communications to or upon the Grantors (which shall be sent care of
the Borrower) or the Collateral Agent (which shall be sent care of the Administrative
Agent) under this Security Agreement shall be given as provided in Section 8.01 of the
Credit Agreement.


 


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10.2 Partial Invalidity. If at any time any provision of this Security Agreement is
or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions of this Security
Agreement nor the legality, validity or enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.



10.3 Headings. The section headings and captions appearing in this Security Agreement
are included solely for convenience of reference and are not intended to affect the interpretation
of any provision of this Security Agreement.




10.4 No Waiver; Cumulative Remedies.



(a) The Collateral Agent shall not by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies hereunder or under the Credit Agreement or the other Credit
Documents, nor shall any single or partial exercise of any right or remedy hereunder or thereunder
on any one or more occasions preclude the further exercise thereof or the exercise of any other
right or remedy under any of the Credit Documents.



(b) The rights and remedies hereunder provided or provided under the Credit Agreement or the
other Credit Documents are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights and remedies provided by law or by any of the other Credit Documents.



(c) None of the terms or provisions of this Security Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by each Grantor and the
Collateral Agent. Unless otherwise specified in any such waiver or consent, a waiver or consent
given hereunder shall be effective only in the specific instance and for the specific purpose for
which given.



10.5 Time is of the Essence. Time is of the essence for the performance of each of
the terms and provisions of this Security Agreement.



10.6 Termination of this Security Agreement. Subject to Section 9, above,
this Security Agreement shall terminate upon the full, complete and final payment of the Secured
Obligations and the termination of the lending commitments under the Credit Documents (except in
each case other than contingent indemnification obligations and Obligations in respect of Lender
Rate Contracts).



10.7 Successors and Assigns. This Security Agreement and all obligations of the
Grantors hereunder shall be binding upon the successors and assigns of the Grantors, and shall,
together with the rights and remedies of the Collateral Agent hereunder, inure to the benefit of
the Collateral Agent and the other Secured Parties and their respective successors and assigns,
except that no Grantor may assign or transfer any of its rights or obligations hereunder unless
expressly permitted by the Credit Agreement. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument evidencing
the Secured Obligations or any portion thereof or interest therein shall in any manner affect
the security interest created herein and granted to the Collateral Agent hereunder. Any assignment
or transfer in violation of the foregoing shall be null and void.


 


27









 





10.8 Further Indemnification. Each Grantor, jointly and severally, agrees to pay, and
to save the Collateral Agent harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all excise, sales or other similar taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Security Agreement.



10.9 Amendments, Etc. The Collateral Agent and each Grantor hereby acknowledge and
agree that the waiver, amendment and other provisions in Section 8.04 of the Credit
Agreement apply to this Security Agreement as to the Grantors and are incorporated herein as though
set forth in full.



10.10 ENTIRE AGREEMENT. THIS SECURITY AGREEMENT AND THE OTHER CREDIT DOCUMENTS
REPRESENT THE COMPLETE AND FINAL AGREEMENT AMONG THE GRANTORS, THE COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT AND THE LENDER PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, ON
THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR
AMONG THE GRANTORS, THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES.



10.11 Governing Law. This Security Agreement shall be governed by, construed and
enforced in accordance with, the internal law of the State of New York without reference to
conflicts of law rules other than Section 5-1401 of the General Obligations Law of the State of New
York except that matters concerning the validity and perfection of a security interest shall be
governed by the conflict of law rules set forth in the UCC. Each Grantor hereby consents to the
application of New York civil law to the construction, interpretation and enforcement of this
Security Agreement, and to the application of New York civil law to the procedural aspects of any
suit, action or proceeding relating thereto, including, but not limited to, legal process,
execution of judgments and other legal remedies.



10.12 Counterparts. This Security Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall be deemed to
constitute a complete, executed original for all purposes. Transmission by facsimile, “PDF” or
similar electronic format of an executed counterpart of this Security Agreement shall be deemed to
constitute due and sufficient delivery of such counterpart.



10.13 Payments Free of Taxes, Etc. All payments made by the Grantors under this
Security Agreement shall be made by the Grantors free and clear of and without deduction for any
and all present and future taxes, levies, charges, deductions and withholdings (except as otherwise
provided in the Credit Agreement). In addition, the Grantors shall pay upon demand any stamp or
other taxes, levies or charges of any jurisdiction with respect to the execution, delivery,
registration, performance and enforcement of this Security Agreement. Upon request



 


28









 






by the Collateral Agent, the Grantors shall furnish evidence reasonably satisfactory to the
Collateral Agent that all requisite authorizations and approvals by, and notices to and filings
with, governmental authorities and regulatory bodies have been obtained and made and that all
requisite taxes, levies and charges have been paid.



10.14 The Grantors’ Continuing Liability. Notwithstanding any provision of this
Security Agreement or any other Credit Document or any exercise by the Collateral Agent of any of
its rights hereunder or thereunder (including, without limitation, any right to collect or enforce
any Collateral), (i) each Grantor shall remain liable to perform its obligations and duties in
connection with the Collateral and (ii) none of the Secured Parties shall assume or be considered
to have assumed any liability to perform such obligations and duties or to enforce any of the
Grantors’ rights in connection with the Collateral.



10.15 Additional Grantors. If, after the date hereof, pursuant to the terms and
conditions of the Credit Agreement, any Grantor shall be required to cause any Subsidiary, or other
Person to become a party hereto, such Grantor shall cause such Person to execute and deliver to the
Collateral Agent a Joinder Agreement in the form of Annex I and such Person shall
thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as
a Grantor party hereto on the Closing Date and shall be deemed to have assigned, conveyed,
mortgaged, pledged, granted, hypothecated and transferred to the Collateral Agent, for the benefit
of the Secured Parties, the security interest described in such Joinder Agreement and Section
2 hereof.



10.16 Additional Provisions. The Collateral Agent and the Borrower hereby
acknowledges and agrees that the jury trial waiver, consent to jurisdiction and other provisions in
Sections 8.09 and 8.12 of the Credit Agreement apply to this Security Agreement as to such
Borrower and are incorporated herein as though set forth in full. The Collateral Agent and each
Grantor that is a Guarantor hereby acknowledges and agrees that the jury trial waiver, consent to
jurisdiction and other provisions in Sections 4.12 and 4.13 of the Guaranty apply to this
Security Agreement as to the Guarantors and are incorporated herein as though set forth in full.



10.17
Application of Gaming Laws. The parties hereto confirm that Section 7.12 of the Credit
Agreement is applicable to the Security Agreement and the other Credit Documents.



[This Space Intentionally Left Blank]





 


29












 





IN WITNESS WHEREOF, the Grantors and the Collateral Agent have caused this Security
Agreement to be executed as of the day and year first above written.



	 	 	 	 	 
	 	GRANTORS:



FULL HOUSE RESORTS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FULL HOUSE SUBSIDIARY, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FULL HOUSE SUBSIDIARY II, INC.,

a Nevada corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GAMING ENTERTAINMENT (INDIANA), LLC,

a Nevada limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Security Agreement-Full House]



 


 









 








	 	 	 	 	 
	 	GAMING ENTERTAINMENT (SANTA FE),
 LLC,

a Nevada limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GAMING ENTERTAINMENT (MONTANA),
 LLC,

a Nevada limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	STOCKMAN’S CASINO,

a Nevada corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Security Agreement-Full House]



 


 









 








	 	 	 	 	 
	 	COLLATERAL AGENT:



WELLS FARGO BANK, NATIONAL
 ASSOCIATION, as Collateral
Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Security Agreement-Full House]



 


 









 








SCHEDULE I




COLLATERAL FOR PERFECTION BY POSSESSION




1. [INTERCOMPANY NOTES]



2. [NOTE(S) EVIDENCING ANY OTHER LOAN(S)]



[TO COME]



SCHEDULE I



 


 









 








SCHEDULE II




LETTER-OF-CREDIT RIGHTS AND COMMERCIAL TORT CLAIMS



LETTER-OF-CREDIT RIGHTS



[Borrower to provide]



COMMERCIAL TORT CLAIMS



[Borrower to provide]



SCHEDULE II




 


 









 








SCHEDULE III




DEPOSIT ACCOUNTS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Depository Bank	 	Type of Account	 	 	Account Number	 	 	Bank Address	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





SCHEDULE III







 


 









 








SCHEDULE IV




SECURITIES ACCOUNTS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Securities	 
	Securities	 	 	 	 	 	 	 	 	 	Intermediary	 
	Intermediary	 	Type of Account	 	 	Account Number	 	 	Address	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





SCHEDULE IV



 


 









 








SCHEDULE V




COMMODITY ACCOUNTS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Commodity	 
	Commodity	 	 	 	 	 	 	 	 	 	Intermediary	 
	Intermediary	 	Type of Account	 	 	Account Number	 	 	Address	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





SCHEDULE V



 


 









 





SCHEDULE VI




LEGAL NAME; JURISDICTION OF FORMATION; BOOKS AND RECORDS;

LOCATION OF COLLATERAL



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Chief Executive	 	 	 	 
	 	 	 	 	 	 	Office; Principal	 	 	 	 
	 	 	 	 	 	 	Place of Business;	 	 	 	 
	 	 	Jurisdiction of	 	 	Location of Books	 	 	Other Collateral	 
	Legal Name	 	Formation	 	 	and Records	 	 	Locations	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





SCHEDULE VI



 


 









 








SCHEDULE VII




INTELLECTUAL PROPERTY



SCHEDULE VII



 


 









 








ANNEX I




JOINDER AGREEMENT



This Joinder Agreement, dated as of                     ,           , is delivered pursuant to
Section 10.15 of the Security Agreement, dated as of [                    ] (as amended, restated,
supplemented or otherwise modified from time to time, the “Security Agreement”), by and
among FULL HOUSE RESORTS, INC., a Delaware corporation (“Borrower” or “Full
House”), FULL HOUSE SUBSIDIARY, INC., a Delaware corporation (“Subsidiary”), FULL HOUSE
SUBSIDIARY II, INC., a Nevada corporation (“Subsidiary II”), GAMING ENTERTAINMENT
(INDIANA), LLC, a Nevada limited liability company (“Gaming Indiana”), GAMING ENTERTAINMENT
(SANTA FE), LLC, a Nevada limited liability company (“Gaming Santa Fe”), GAMING
ENTERTAINMENT (MONTANA), LLC, a Nevada limited liability company (“Gaming Montana”),
STOCKMAN’S CASINO INC., a Nevada corporation (“Stockman’s”), each of the other entities
which becomes a party to the Security Agreement pursuant to Section 10.15 of the Security
Agreement (each of the foregoing, including the Borrower, Subsidiary, Subsidiary II, Gaming
Indiana, Gaming Santa Fe, Gaming Montana and Stockman’s, each a “Grantor” and collectively,
the “Grantors”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as
collateral agent for the Secured Parties (as defined in the Credit Agreement) (in such capacity,
together with any successors and assigns in such capacity, the “Collateral Agent”).
Capitalized terms used herein but not defined herein are used herein with the meaning given them in
the Security Agreement.



By executing and delivering this Joinder Agreement, the undersigned hereby becomes a party to
the Security Agreement as a Grantor thereunder with the same force and effect as if originally
named as a Grantor therein and, without limiting the generality of the foregoing, as security for
the full, prompt, complete and final payment when due (whether at stated maturity, by acceleration
or otherwise) and prompt performance and observance of all the Secured Obligations of the
undersigned, the undersigned hereby assigns, conveys, mortgages, pledges, grants, hypothecates and
transfers to the Collateral Agent, for itself and for the benefit of the Secured Parties, a
security interest in and to all of the undersigned’s right, title and interest in, to and under the
Collateral, whether now owned or hereafter acquired by the undersigned or in which the undersigned
now holds or hereafter acquires any interest and expressly assumes all obligations and liabilities
of a Grantor thereunder. From and after the date hereof, the undersigned shall for all purposes be
a party to the Security Agreement and shall have the same rights, benefits and obligations as a
Grantor party thereto.



The information set forth in Annex I-A is hereby added to the information set forth in
Schedules I through VI to the Security Agreement.



The undersigned hereby represents and warrants that each of the representations and warranties
contained in the Security Agreement applicable to it is true and correct on and as the date hereof
as if made on and as of such date, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date;
provided that, if a representation and warranty is qualified as to materiality, the
materiality qualifier shall be disregarded with respect to such representation and warranty.


 


ANNEX I-1









 





This Joinder Agreement shall be governed by, construed and enforced in accordance with, the
internal law of the State of New York without reference to conflicts of law rules other than
Section 5-1401 of the General Obligations Law of the State of New York except that matters
concerning the validity and perfection of a security interest shall be governed by the conflict of
law rules set forth in the UCC. The undersigned hereby consents to the application of New York
civil law to the construction, interpretation and enforcement of this Joinder Agreement, and to the
application of New York civil law to the procedural aspects of any suit, action or proceeding
relating thereto, including, but not limited to, legal process, execution of judgments and other
legal remedies.



This Joinder Agreement may be executed in any number of identical counterparts, any set of
which signed by all the parties hereto shall be deemed to constitute a complete, executed original
for all purposes. Transmission by facsimile, “PDF” or similar electronic format of an executed
counterpart of this Joinder Agreement shall be deemed to constitute due and sufficient delivery of
such counterpart.



[This Space Intentionally Left Blank]



 


ANNEX I-2









 








In witness whereof, the undersigned has caused this Joinder Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	[Additional Grantor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	ACKNOWLEDGED AND AGREED

as of the date of this Joinder Agreement

first above written.





Wells Fargo Bank, National Association, as Collateral Agent

 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 


 


ANNEX I-3









 






	 	 	 	 	 



ANNEX I-A




[New Grantor to complete as appropriate]


 


ANNEX I-4









 





ATTACHMENT 1

TO SECURITY AGREEMENT




SPECIAL POWER OF ATTORNEY




Dated as of                          , 200     



STATE OF                         )




                                             )


COUNTY OF                      )



KNOW ALL PERSONS BY THESE PRESENTS, THAT                                         , a                      
     (the
“Grantor”), pursuant to a Security Agreement, dated as of [                    ], (as amended,
supplemented or otherwise modified from time to time, the “Security Agreement”), among the
Grantor, other entities party thereto from time to time and WELLS FARGO BANK, NATIONAL ASSOCIATION,
as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as
defined in the Credit Agreement referred to below) in connection with that certain Credit
Agreement, dated as of October 29, 2010 (as amended, supplemented or otherwise modified from time
to time, the “Credit Agreement”), among FULL HOUSE RESORTS, INC., the lenders party thereto
from time to time and Wells Fargo Bank, National Association, as Administrative Agent, as
Collateral Agent, as Security Trustee, as L/C Issuer and as Swing Line Lender, hereby appoints and
constitutes the Collateral Agent its true and lawful attorney in fact, with full power of
substitution, and with full power and authority to perform the following acts on behalf of the
Grantor:



(1) For the purpose of assigning, selling, licensing or otherwise disposing of all right,
title and interest of the Grantor in and to any letters patent of the United States, and all
registrations, recordings, reissues, continuations, continuations-in-part and extensions thereof,
and all pending applications therefor, and for the purpose of the recording, registering and filing
of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any
and all agreements, documents, instruments of assignment or other papers necessary or reasonably
advisable to effect such purpose;



(2) For the purpose of assigning, selling, licensing or otherwise disposing of all right,
title and interest of the Grantor in and to any trademarks, trade names, trade styles and service
marks and all related goodwill, and all registrations, recordings, reissues, extensions and
renewals thereof, and all pending applications therefor, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with respect to, the foregoing, to
execute and deliver any and all agreements, documents, instruments of assignment or other papers
necessary or reasonably advisable to effect such purpose;



(3) For the purpose of assigning, selling, licensing or otherwise disposing of all right,
title and interest of the Grantor in and to any copyrights, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications therefor, and for the
purpose of the recording, registering and filing of, or accomplishing any other formality
with respect to, the foregoing, to execute and deliver any and all agreements, documents,
instruments of assignment or other papers necessary or reasonably advisable to effect such
purpose;


 


 









 





(4) For the purpose of assigning, selling, licensing or otherwise disposing of all right,
title and interest of the Grantor in and to any mask works, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications therefor, and for the
purpose of the recording, registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of
assignment or other papers necessary or reasonably advisable to effect such purpose;



(5) For the purpose of evidencing and perfecting the Collateral Agent’s interest in any
patent, trademark, copyright or mask work not previously assigned to the Collateral Agent as
security, or in any patent, trademark, copyright or mask work, which the Grantor may acquire from a
third party, and for the purpose of the recording, registering and filing of, or accomplishing any
other formality with respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or reasonably advisable to effect
such purpose.



(6) To execute any and all documents, statements, certificates or other papers necessary
or advisable in order to obtain the purposes described above as the Collateral Agent may in its
sole discretion determine.



[This Space Intentionally Left Blank]



 


 









 








This power of attorney is made pursuant to the Security Agreement and takes effect solely for
the purposes thereof and is subject to the terms and conditions thereof and may not be revoked
until termination of the Security Agreement as provided therein.



	 	 	 	 	 
	 	[Name of Grantor]

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 


 


 









 






	 	 	 	 	 



[ATTACH APPROPRIATE NOTARIAL ACKNOWLEDGMENT]



 


 









 








EXHIBIT N




MAP OF GRAND VICTORIA EXCESS LANDS



(see attached)


 


N-1









 










 


24