Exhibit 10.1





Exhibit 10.1




Execution Version




 





$375,000,000




THIRD AMENDED AND RESTATED

CREDIT AGREEMENT




among




PINNACLE ENTERTAINMENT, INC.,




as Borrower,




The Several Lenders

from Time to Time Parties Hereto,




BANC OF AMERICA SECURITIES LLC and JPMORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Book Runners,




BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A.,

CALYON NEW YORK BRANCH, DEUTSCHE BANK TRUST COMPANY AMERICAS

and UBS SECURITIES LLC,

as Syndication Agents,




CAPITAL ONE NATIONAL ASSOCIATION,

as Documentation Agent,




and




BARCLAYS BANK PLC,

as Administrative Agent




Dated as of February 5, 2010




 




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	38	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	39	 
	 
	 	 	 	 
	2.1 Incremental Term Loans and Incremental Delayed Draw Term Loans
	 	 	39	 
	2.2 Procedure for Incremental Term Loan and Incremental Delayed Draw Term
Loan Borrowing
	 	 	40	 
	2.3 Repayment of Incremental Term Loans and Incremental Delayed Draw Term
Loans
	 	 	40	 
	2.4 Revolving Credit Commitments
	 	 	40	 
	2.5 Procedure for Revolving Credit Borrowing
	 	 	41	 
	2.6 Swing Line Commitment
	 	 	41	 
	2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans
	 	 	42	 
	2.8 Incremental Loans
	 	 	44	 
	2.9 Repayment of Loans; Evidence of Debt
	 	 	46	 
	2.10 Commitment Fees, etc.
	 	 	47	 
	2.11 Termination or Reduction of Commitments
	 	 	47	 
	2.12 Optional Prepayments
	 	 	48	 
	2.13 Mandatory Prepayments and Commitment Reductions
	 	 	48	 
	2.14 Conversion and Continuation Options
	 	 	51	 
	2.15 Minimum Amounts and Maximum Number of Eurodollar Tranches
	 	 	52	 
	2.16 Interest Rates and Payment Dates
	 	 	52	 
	2.17 Computation of Interest and Fees
	 	 	52	 
	2.18 Inability to Determine Interest Rate
	 	 	53	 
	2.19 Pro Rata Treatment and Payments
	 	 	53	 
	2.20 Requirements of Law
	 	 	56	 
	2.21 Taxes
	 	 	57	 
	2.22 Indemnity
	 	 	59	 
	2.23 Illegality
	 	 	59	 
	2.24 Change of Lending Office
	 	 	60	 
	2.25 Replacement of Lenders
	 	 	60	 
	2.26 Back-Stop Arrangements
	 	 	60	 
	2.27 Defaulting Lenders
	 	 	61	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	63	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	63	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	63	 
	3.3 Fees and Other Charges
	 	 	64	 
	3.4 L/C Participations
	 	 	64	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	3.5 Reimbursement Obligation of the Borrower
	 	 	66	 
	3.6 Obligations Absolute
	 	 	66	 
	3.7 Letter of Credit Payments
	 	 	67	 
	3.8 Applications
	 	 	67	 
	3.9 Lender Defaults
	 	 	67	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	67	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	67	 
	4.2 No Change
	 	 	68	 
	4.3 Organizational Existence; Compliance with Law
	 	 	68	 
	4.4 Organizational Power; Authorization; Enforceable Obligations
	 	 	69	 
	4.5 No Legal Bar
	 	 	69	 
	4.6 No Material Litigation
	 	 	69	 
	4.7 No Default
	 	 	69	 
	4.8 Ownership of Property; Liens
	 	 	70	 
	4.9 Intellectual Property
	 	 	70	 
	4.10 Taxes
	 	 	70	 
	4.11 Federal Regulations
	 	 	70	 
	4.12 Labor Matters
	 	 	70	 
	4.13 ERISA
	 	 	71	 
	4.14 Investment Company Act; Other Regulations
	 	 	71	 
	4.15 Subsidiaries
	 	 	71	 
	4.16 Use of Proceeds
	 	 	71	 
	4.17 Environmental Matters
	 	 	72	 
	4.18 Accuracy of Information, etc.
	 	 	73	 
	4.19 Security Documents
	 	 	73	 
	4.20 Solvency
	 	 	74	 
	4.21 Senior Indebtedness
	 	 	74	 
	4.22 Regulation H
	 	 	74	 
	4.23 Gaming Laws
	 	 	74	 
	4.24 Insurance Proceeds
	 	 	74	 
	4.25 Sugarcane Bay Lease
	 	 	75	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	75	 
	 
	 	 	 	 
	5.1 Conditions to Initial Extension of Credit
	 	 	75	 
	5.2 Conditions to Each Extension of Credit
	 	 	78	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	79	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	79	 
	6.2 Certificates; Other Information; Construction Monitoring
	 	 	79	 
	6.3 Payment of Obligations
	 	 	81	 
	6.4 Conduct of Business and Maintenance of Existence, etc.
	 	 	82	 
	6.5 Maintenance of Property; Insurance
	 	 	82	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	82	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.7 Notices
	 	 	83	 
	6.8 Environmental Laws
	 	 	83	 
	6.9 Control Agreements
	 	 	84	 
	6.10 Additional Collateral, etc.
	 	 	84	 
	6.11 Post-Closing Filings with Gaming Boards
	 	 	87	 
	6.12 Further Assurances
	 	 	87	 
	6.13 In Balance Test
	 	 	87	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	88	 
	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	88	 
	7.2 Limitation on Indebtedness
	 	 	89	 
	7.3 Limitation on Liens
	 	 	92	 
	7.4 Limitation on Fundamental Changes
	 	 	94	 
	7.5 Limitation on Disposition of Property
	 	 	94	 
	7.6 Limitation on Restricted Payments
	 	 	96	 
	7.7 Limitation on Investments
	 	 	96	 
	7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.
	 	 	98	 
	7.9 Limitation on Transactions with Affiliates
	 	 	99	 
	7.10 Limitation on Sales and Leasebacks
	 	 	100	 
	7.11 Limitation on Changes in Fiscal Periods
	 	 	100	 
	7.12 Limitation on Negative Pledge Clauses
	 	 	100	 
	7.13 Limitation on Restrictions on Subsidiary Distributions
	 	 	100	 
	7.14 Limitation on Lines of Business
	 	 	101	 
	7.15 Limitation on Hedge Agreements
	 	 	101	 
	7.16 Limitation on Capital Expenditures
	 	 	101	 
	7.17 Commencement of Construction
	 	 	102	 
	7.18 Limitation on Changes to Deferred Compensation Plan
	 	 	103	 
	7.19 Baton Rouge Project Construction Covenants
	 	 	103	 
	7.20 Construction Covenants
	 	 	103	 
	7.21 Directors’ and Officers’ Trust
	 	 	104	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	104	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	107	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	107	 
	9.2 Delegation of Duties
	 	 	107	 
	9.3 Exculpatory Provisions
	 	 	107	 
	9.4 Reliance by Agents
	 	 	108	 
	9.5 Notice of Default
	 	 	108	 
	9.6 Non-Reliance on Agents and Other Lenders
	 	 	108	 
	9.7 Indemnification
	 	 	109	 
	9.8 Agent in Its Individual Capacity
	 	 	109	 
	9.9 Successor Administrative Agent and Successor Swing Line Lender
	 	 	109	 






 


iv









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	9.10 Authorization to Release Liens and Guarantees and Execute SNDAs
	 	 	111	 
	9.11 The Arrangers
	 	 	111	 
	9.12 Withholding
	 	 	111	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	111	 
	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	111	 
	10.2 Notices
	 	 	113	 
	10.3 No Waiver; Cumulative Remedies
	 	 	115	 
	10.4 Survival of Representations and Warranties
	 	 	115	 
	10.5 Payment of Expenses
	 	 	115	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	116	 
	10.7 Adjustments; Set-off
	 	 	120	 
	10.8 Counterparts
	 	 	121	 
	10.9 Severability
	 	 	121	 
	10.10 Integration
	 	 	121	 
	10.11 GOVERNING LAW
	 	 	122	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	122	 
	10.13 Acknowledgments
	 	 	122	 
	10.14 Confidentiality
	 	 	122	 
	10.15 Release of Collateral and Guarantee Obligations
	 	 	123	 
	10.16 Accounting Changes
	 	 	124	 
	10.17 Delivery of Lender Addenda
	 	 	124	 
	10.18 WAIVERS OF JURY TRIAL
	 	 	124	 
	10.19 USA Patriot Act Notification
	 	 	124	 
	10.20 Gaming Laws and Liquor Laws
	 	 	125	 






ANNEX:




	 	 	 
	A

	 	Pricing Grid
	 
	 	 
	SCHEDULES:
	 
	 	 
	1.1(a)

	 	List of Mortgaged Properties (Leasehold and Fee)
	1.1(b)

	 	List of Preferred Ship Mortgages
	1.1(c)

	 	List of Post-Closing Gaming Pledge Agreement Amendments
	1.1(d)

	 	List of Existing Letters of Credit
	4.4

	 	List of Outstanding Consents, Authorizations, Filings, Proceedings and Notices
	4.15(a)

	 	List of Subsidiaries (Unrestricted and Restricted and Immaterial)
	4.15(b)

	 	List of outstanding subscriptions, options, warrants, calls, rights or other agreements or
commitments
	4.19(a)

	 	UCC Financing Statements Filing Jurisdictions
	4.19(b)

	 	List of Amendments to Mortgages
	7.2(d)

	 	List of Existing Indebtedness
	7.3(f)

	 	List of Existing Liens






 


v









 





	 	 	 
	7.5(g)

	 	List of Designated Assets
	7.7(d)

	 	List of Existing Investments






EXHIBITS:




	 	 	 
	A

	 	Form of Compliance Certificate
	B-1

	 	Form of Lender Addendum
	B-2

	 	Form of New Lender Supplement
	B-3

	 	Form of Incremental Facility Activation Notice
	C

	 	Form of Mortgage
	D

	 	Form of Preferred Ship Mortgage
	E

	 	[RESERVED]
	F

	 	[RESERVED]
	G

	 	[RESERVED]
	H

	 	Form of Borrowing Notice
	I-1

	 	Form of Incremental Term Note
	I-2

	 	Form of Incremental Delayed Draw Term Note
	I-3

	 	Form of Revolving Credit Note
	I-4

	 	Form of Swing Line Note
	J

	 	Form of Exemption Certificate
	K

	 	Form of Closing Certificate
	L

	 	In-Balance Test Certificate
	M

	 	[RESERVED]
	N

	 	[RESERVED]
	O

	 	Form of Assignment and Acceptance
	P

	 	[RESERVED]
	Q

	 	Form of Declining Lender Notice







 


vi











 




This THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 5, 2010, among PINNACLE
ENTERTAINMENT, INC., a Delaware corporation (the “Borrower”), the several banks and other
financial institutions or entities from time to time parties to this Agreement, as Lenders, BANC OF
AMERICA SECURITIES LLC and JPMORGAN SECURITIES INC., as joint lead arrangers and joint book runners
(in such capacities, the “Arrangers”), BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A.,
CALYON NEW YORK BRANCH, DEUTSCHE BANK TRUST COMPANY AMERICAS and UBS SECURITIES LLC, as Syndication
Agents (in such capacities, the “Syndication Agents”), CAPITAL ONE NATIONAL ASSOCIATION, as
Documentation Agent (in such capacity, the “Documentation Agent”), and BARCLAYS BANK PLC
(“Barclays”), as administrative agent (in such capacity, the “Administrative
Agent”, it being understood and agreed that any successor administrative agent appointed
pursuant to Section 9.9 hereof shall be the “Administrative Agent”).



W I T N E S S E T H:




A. The Borrower, together with and the other several lenders from time to time party thereto
(the “Existing Lenders”) entered into that existing Second Amended and Restated Credit
Agreement, dated as of December 14, 2005 (the “Original Credit Agreement”), as amended by
(i) that certain First Amendment to the Second Amended and Restated Credit Agreement, dated as of
December 22, 2005, (ii) that certain Second Amendment to the Second Amended and Restated Credit
Agreement, dated as of October 11, 2006, (iii) that certain Third Amendment to the Second Amended
and Restated Credit Agreement, dated as of November 17, 2006, (iv) that certain Fourth Amendment to
the Second Amended and Restated Credit Agreement, dated as of July 21, 2009, and (v) that certain
Amendment, Resignation, Waiver, Consent, and Appointment Agreement, dated as of July 24, 2009, each
by, among others, the Borrower, the lenders party thereto, and the Administrative Agent
(collectively, the “Amendments”; the Original Credit Agreement, as amended by the
Amendments, the “Existing Credit Agreement”), pursuant to which the Existing Lenders agreed
to make certain advances to the Borrower; and



B. The Borrower has requested and the Lenders have agreed to amend and restate the Existing
Credit Agreement for the purpose of, among other things, terminating the existing $750,000,000
revolving credit facility and replacing it with a $375,000,000 incremental revolving credit
facility, such that the aggregate principal amount of the available credit facilities shall be
$375,000,000, subject to the terms and conditions of this Agreement.



NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the
parties hereto hereby agree as follows:



SECTION 1.

DEFINITIONS




1.1 Defined Terms. As used in this Agreement, the terms listed in this Section
1.1 shall have the respective meanings set forth in this Section 1.1.


 


 









 






“Accepting Term Loan Lender”: as defined in Section 2.13(f).




“Accounting Change”: as defined in Section 10.16.




“Act”: as defined in Section 10.19.




“Additional Extensions of Credit”: as defined in Section 10.1.




“Adjustment Date”: as defined in Annex A attached hereto.




“Administrative Agent”: as defined in the preamble hereto.




“Administrative Agent Removal”: as defined in Section 9.9(a).




“Administrative Agent Resignation”: as defined in Section 9.9(a).



“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.



“Agents”: the collective reference to the Arrangers, the Syndication Agents, the
Documentation Agent and the Administrative Agent.



“Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the
sum of (a) the amount of such Lender’s Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lender’s Revolving Extensions
of Credit then outstanding; (b) the aggregate then unpaid principal amount of such Lender’s
Incremental Term Loans, if any; (c) the aggregate then unpaid principal amount of such Lender’s
Incremental Delayed Draw Term Loans, if any; and (d) the amount of such Lender’s undrawn
Incremental Delayed Draw Term Commitments, if any.



“Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the sum of the
Aggregate Exposures of all Lenders at such time.



“Agreement”: this Third Amended and Restated Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.




“Amendments”: as defined in the recitals.



“Annualized Adjusted EBITDA”: for any period, for the Borrower and its Restricted
Subsidiaries, Consolidated EBITDA for such period plus (a) to the extent deducted in arriving at
Consolidated EBITDA for such period, non-cash write downs to goodwill required by Financial
Accounting Standards Board Statement No. 142, and any non-cash reductions to the value of the
assets of the Borrower and its Restricted Subsidiaries required by Financial



 


2









 






Accounting Standards Board Statement No. 121 or No. 144, plus (b) the Foreign Subsidiary
Receipts that were (x) received during such period by the Borrower or any Restricted Subsidiary and
(y) irrevocably designated during such period as Reclassified Foreign Subsidiary Receipts;
provided that, for any period ending on or after the last day of the first full fiscal
quarter of operations following the date of the opening of any Project and ending on or before the
last day of the fourth full fiscal quarter following such opening, that portion of Consolidated
EBITDA which is attributable to the applicable Project shall be included only for the period
consisting of the full fiscal quarters since the date of such Project’s opening, annualized on a
straight-line basis; provided that for purposes of calculating Annualized Adjusted EBITDA
of the Borrower and its Restricted Subsidiaries for any period, (i) the Consolidated EBITDA of any
Person or operating gaming business or any other business not prohibited by Section 7.14
hereof acquired by the Borrower or its Restricted Subsidiaries during such period shall be included
on a pro forma basis for such period (as if the consummation of such acquisition and the incurrence
or assumption of any Indebtedness in connection therewith occurred on the first day of such period)
if the consolidated balance sheet of such acquired Person or business and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such Person and the related
consolidated statements of income and stockholders’ equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (x) have been previously provided to the
Administrative Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified public accountants of
nationally recognized standing or (2) have been found acceptable by the Administrative Agent; and
(ii) the Consolidated EBITDA of any Person Disposed of by the Borrower or its Restricted
Subsidiaries during such period shall be excluded for such period (as if the consummation of such
Disposition and the repayment of any Indebtedness in connection therewith occurred on the first day
of such period).



“Applicable Margin”: for each Type of Loan under the Revolving Credit Facility, the
rate per annum over the Base Rate or Eurodollar Rate, as applicable, set forth in the relevant
column heading on Annex A. For each Type of Loan under each Incremental Facility established
pursuant to this Agreement, the rate per annum over the Base Rate or Eurodollar Rate, as
applicable, set forth in the Incremental Facility Activation Notice with respect to such
Incremental Facility.



“Application”: an application, in such form as the relevant Issuing Lender may
specify from time to time, requesting such Issuing Lender to issue a Letter of Credit.



“Argentina Subsidiaries”: Casino Magic Neuquen S.A. and any successors thereto and
any other Subsidiary which is organized under the laws of Argentina and/or conducts operations
primarily in Argentina.




“Arrangers”: as defined in the preamble hereto.



“Asset Sale”: any Disposition of Property or series of related Dispositions of
Property (excluding any such Disposition permitted by clause (a), (b), (c), (d), (e), (f), (i),
(k), (l), (m), (n), (p) and (q) of Section 7.5) which yields gross proceeds to the Borrower
or any of its Restricted Subsidiaries (valued at the initial principal amount thereof in the case
of non-cash



 


3









 






proceeds consisting of notes or other debt securities and valued at fair market value in the
case of other non-cash proceeds), in excess of $2,500,000.




“Assignee”: as defined in Section 10.6(c).



“Assignment and Acceptance”: an agreement pursuant to which a Lender becomes a party
to this Agreement, substantially in the form of Exhibit O, or another form reasonably
acceptable to Administrative Agent.




“Assignor”: as defined in Section 10.6(c).



“Atlantic City Entities”: PNK Development 13, LLC, ACE Gaming, LLC, Mitre Associates,
LLC, Brighton Park Maintenance Corp., AREP Boardwalk Properties LLC, PSW Properties LLC, and AREH
MLK LLC.



“Atlantic City Property”: the approximately 19 acres of land located in Atlantic
City, New Jersey, owned by one or more of the Atlantic City Entities, including all adjacent and
adjoining land along the Boardwalk.



“Available Incremental Delayed Draw Term Commitment”: with respect to any Lender at
any time, an amount equal to the excess, if any, of (a) such Lender’s Incremental Delayed Draw Term
Commitment, if any, then in effect over (b) such Lender’s Incremental Delayed Draw Term
Loans then outstanding.



“Available Revolving Credit Commitment”: with respect to any Revolving Credit Lender
at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Credit
Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding;
provided, that in calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Lender’s Available Revolving Credit Commitment pursuant to Section
2.10(a), the aggregate principal amount of Swing Line Loans then outstanding shall be deemed to
be zero.



“Back-Stop Arrangements”: collectively, the Letter of Credit Back-Stop Arrangements
and the Swing Line Back-Stop Arrangements.



“Base Rate”: for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the sum of the Eurodollar Rate for
such day assuming a one-month Interest Period and 1.00%. For purposes hereof: “Prime
Rate” shall mean the prime lending rate as set forth on the British Banking Association
Telerate Page 5 (or such other comparable page as may, in the opinion of the Administrative Agent,
replace such page for the purpose of displaying such rate), as in effect from time to time. Any
change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate (assuming a one-month Interest Period) shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or
the Eurodollar Rate (assuming a one-month Interest Period), respectively.


 


4









 





“Base Rate Loans”: Loans for which the applicable rate of interest is based upon the
Base Rate.



“Baton Rouge Project”: the casino and related developments to be located on land in
Baton Rouge, Louisiana.




“Benefited Lender”: as defined in Section 10.7(a).



“Biloxi Property”: the Casino Magic Biloxi hotel and river-boat casino, which was
located in Biloxi, Mississippi.



“Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




“Borrower”: as defined in the preamble hereto.



“Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.



“Borrowing Notice”: with respect to any request for borrowing of Loans hereunder, a
written notice from the Borrower, substantially in the form of, and containing the information
prescribed by, Exhibit H, delivered to the Administrative Agent.



“Business Day”: (a) for all purposes other than as covered by clause (b) below, a day
other than a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to close and (b) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.



“Cabela’s Real Estate Purchase Agreement”: that certain Real Estate Purchase
Agreement, dated as of March 7, 2005, by and between PNK (Reno), LLC, a Nevada limited liability
company, as seller, and Cabela’s Retail, Inc., a Nebraska corporation, as purchaser, as amended by
that certain (a) First Amendment to Real Estate Purchase Agreement, dated as of May 2, 2005, (b)
Second Amendment to Real Estate Purchase Agreement, dated as of June 2, 2005, and (c) Third
Amendment to Real Estate Purchase Agreement, dated as of July 5, 2005, as the same may be further
amended or amended and restated from time to time.



“Cabela’s Transaction”: the disposition and development of the Cabela’s Transaction
Property by PNK (Reno), LLC and Cabela’s Retail, Inc., as more particularly described in the
Cabela’s Real Estate Purchase Agreement and the Cabela’s Truck Stop Purchase Agreement.



“Cabela’s Transaction Property”: collectively, (a) approximately thirty-eight (38)
acres of unimproved real property located in the City of Reno, County of Washoe, Nevada, as more
particularly described in the Cabela’s Real Property Purchase Agreement, and (b) approximately two
(2) acres of real property in the City of Reno, County of Washoe, Nevada



 


5









 






on which PNK (Reno), LLC operates a truck stop, as more particularly described in the Cabela’s
Truck Stop Purchase Agreement.



“Cabela’s Truck Stop Purchase Agreement”: that certain Truck Stop Purchase Agreement,
dated as of March 7, 2005, by and between PNK (Reno), LLC, a Nevada limited liability company, as
seller, and Cabela’s Retail, Inc., a Nebraska corporation, as purchaser, as amended by that certain
(a) First Amendment to Truck Stop Purchase Agreement, dated as of May 2, 2005, (b) Second Amendment
to Trust Stop Purchase Agreement, dated as of June 2, 2005, and (c) Third Amendment to Truck Stop
Purchase Agreement, dated as of July 5, 2005, as the same may be further amended or amended and
restated from time to time.



“Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures by such Person for the acquisition or leasing (pursuant to a capital lease) of
fixed or capital assets or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.



“Capital Lease Obligations”: with respect to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to
use) real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP; and,
for the purposes of this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.



“Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.



“Cash”: all monetary items treated as cash in accordance with GAAP, consistently
applied.



“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency thereof and backed by the full
faith and credit of the United States or issued by FNMA, FHLMC or FFCB, in each case maturing
within one year from the date of acquisition; (b) corporate notes issued by domestic corporations
that are rated at least A by S&P or A by Moody’s, in each case maturing within one year from the
date of acquisition; (c) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States Government; (d)
commercial paper of a domestic issuer rated at least A-1 by S&P or P-1 by Moody’s, maturing within
six months of the date of acquisition; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody’s; (f) securities with



 


6









 






maturities of one year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of
this definition; (g) auction rate securities including taxable municipals, taxable auction notes,
and money market preferred; provided that the availability of principal, credit quality,
and “reset period” are consistent with clause (b) of this definition; and (h) shares of money
market mutual or similar funds which invest primarily in assets satisfying the requirements of
clauses (a) through (g) of this definition.



“Change of Control”: the occurrence of any of the following events: (a) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than 30% of the outstanding common
stock of the Borrower; (b) the board of directors of the Borrower shall cease to consist of a
majority of Continuing Directors; (c) the Borrower shall cease, other than pursuant to or as a
result of a transaction not otherwise prohibited by this Agreement, to own and control, of record
and beneficially, directly or indirectly, 100% of each class of outstanding Capital Stock of the
Restricted Subsidiaries listed on Schedule 4.15(a) attached hereto free and clear of all
consensual Liens (except Liens created by the Security Documents or this Agreement); or (d) a
Specified Change of Control.




“Code”: the Internal Revenue Code of 1986, as amended from time to time.



“Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.




“Collateral Proceeds”: as defined in Section 2.13(f).



“Commencement of Construction”: for any Project, the spending from and after January
1 2010 by the Borrower and its Restricted Subsidiaries of Expenses (other than amounts expended
(x) for land acquisition costs, (y) to obtain a Gaming License, and (z) for capitalized interest
expense) with respect to any Project of an amount greater than the lesser of (a) $25,000,000 and
(b) ten percent (10%) of the Construction Budget for such Project.



“Commitment”: with respect to any Lender, each of the Revolving Credit Commitment,
Incremental Term Loan Commitment and the Incremental Delayed Draw Term Commitment, if any, of such
Lender.



“Commitment Fee Rate”: with respect to the Revolving Credit Commitment, the
percentage per annum set forth in Annex A.



“Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.


 


7









 





“Completion of Construction”: as to any Project, shall be deemed to have occurred
when the items on the Construction Plans for such Project have been substantially completed except
for punch list items.



“Compliance Certificate”: a certificate duly executed by a Responsible Officer,
substantially in the form of Exhibit A.



“Condo Component”: residential housing or mixed-use/retail development or
developments within downtown City of St. Louis to be developed in connection with the Lumière
Property.



“Confidential Information Memorandum”: the Confidential Information Memorandum dated
January 2010 as supplemented prior to the Effective Date and furnished to the Lenders party hereto
as of the Effective Date in connection with the syndication of the Revolving Credit Facility.



“Consolidated Current Assets”: of any Person at any date, all amounts (other than
Cash, Cash Equivalents and deferred tax accounts) that would, in conformity with GAAP, be set forth
opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet
of such Person and its Subsidiaries at such date.



“Consolidated Current Liabilities”: of any Person at any date, all amounts (other
than deferred tax accounts) that would, in conformity with GAAP, be set forth opposite the caption
“total current liabilities” (or any like caption) on a consolidated balance sheet of such Person
and its Subsidiaries at such date, but excluding, with respect to the Borrower, (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b), without duplication, all
Indebtedness consisting of Revolving Credit Loans or Swing Line Loans, to the extent otherwise
included therein.



“Consolidated EBITDA”: of any Person for any period, Consolidated Net Income of such
Person and its Subsidiaries that are Restricted Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such Consolidated Net
Income for such period, the sum of (a) income tax expense, (b) Consolidated Interest Expense of
such Person and its Subsidiaries that are Restricted Subsidiaries, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness, (c) depreciation and amortization expense, (d) amortization and write-off of
intangibles (including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income for such period,
losses on sales of assets outside of the ordinary course of business), (f) pre-opening and related
promotional expenses incurred in connection with any Project, (h) any other non-cash charges, and
(i) any amount expended after January 1, 2010 towards the development of businesses not prohibited
by Section 7.l4, in an amount not to exceed $2,500,000 in any fiscal year minus,
without duplication and to the extent included in the statement of such Consolidated Net Income for
such period, the sum of (a) interest income (except to the extent deducted in determining
Consolidated Interest Expense), (b) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the statement of such



 


8









 






Consolidated Net Income for such period, gains on sales of assets outside of the ordinary
course of business, but not including business interruption insurance proceeds), and (c) any other
non-cash income, all as determined on a consolidated basis.



“Consolidated Interest Coverage Ratio”: for any period, the ratio of (a) Annualized
Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for such period to (b) Consolidated
Interest Expense for such period.



“Consolidated Interest Expense”: for any period, (a) total interest expense for such
period determined in accordance with GAAP (including that attributable to Capital Lease
Obligations) of the Borrower and its Restricted Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Restricted Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net costs under Hedge Agreements in respect of
interest rates to the extent such net costs are allocable to such period in accordance with
GAAP) minus (b) to the extent included in calculating interest expense pursuant to clause
(a), amortization of capitalized interest and debt issuance costs for such period determined in
accordance with GAAP plus (c) interest required to be capitalized during such period in
accordance with GAAP.



“Consolidated Net Income”: of any Person for any period, the consolidated net income
(or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP; provided, that in calculating Consolidated Net Income of the
Borrower and its consolidated Subsidiaries for any period, there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of
its Subsidiaries has an ownership interest, except to the extent that any such income is actually
received by the Borrower or such Subsidiary in the form of dividends or similar distributions and
(c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by
the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary; provided further, that in calculating Consolidated
Net Income of the Borrower and its Subsidiaries for such period (i) any business interruption
insurance received or expected to be received and included in the calculation of Consolidated Net
Income in accordance with GAAP for such period shall be excluded from Consolidated Net Income and
(ii) there shall be included in Consolidated Net Income for such fiscal quarter the Estimated
Business Interruption Insurance; provided further, that in calculating Consolidated
Net Income of the Borrower and its Subsidiaries for any period, there shall be excluded from
Consolidated Net Income any impairment charge taken as a result of any insured loss in such period
and any portion of the Consolidated Net Income (in an amount not to exceed the amount of such
impairment charge) which relates to casualty or property insurance received or to be received with
respect to the same insured loss and included in the calculations of Consolidated Net Income in
accordance with GAAP for such period.


 


9









 





“Consolidated Revenues”: for any period, an amount equal to the gross revenues of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.



“Consolidated Senior Secured Debt”: at any date, all Consolidated Total Debt as of
such date that is secured by a Lien on any Property of the Borrower and/or any of its Restricted
Subsidiaries.



“Consolidated Senior Secured Debt Ratio”: as of the last day of any period of four
consecutive fiscal quarters, the ratio of (a) Consolidated Senior Secured Debt less Excess Cash on
such day to (b) Annualized Adjusted EBITDA of the Borrower and its Subsidiaries for such period.



“Consolidated Total Debt”: at any date, the aggregate principal amount of all
Indebtedness (including the undrawn amounts under letters of credit) of the Borrower and its
Restricted Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP;
provided, however, that (a) with respect to the Indebtedness permitted under
Section 7.2(j), such Indebtedness is only included for purposes of this definition to the
extent (if at all) that on such date the amount of such Indebtedness is greater than the market
value of the assets held in the Rabbi Trust in connection with the Deferred Compensation Plan by an
amount that exceeds $10,000,000; and (b) Consolidated Total Debt shall not include any Indebtedness
that is a long term liability arising solely as a result of lease payments which, pursuant to the
lease with respect to the River City Property, are not required to be paid in cash until after the
opening of the River City Property for business; provided that the maximum aggregate amount
excluded in this clause (b) shall not exceed $15,000,000.



“Consolidated Total Leverage Ratio”: as of the last day of any period of four
consecutive fiscal quarters, the ratio of (a) Consolidated Total Debt less Excess Cash on such day
to (b) Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for such period.



“Consolidated Working Capital”: at any date, the difference of (a) Consolidated
Current Assets of the Borrower on such date less (b) Consolidated Current Liabilities of the
Borrower on such date.



“Construction Budget”: the budget setting forth the costs for construction of any
Project, as such budget may be amended, updated, supplemented, restated and/or modified at anytime
and from time to time.



“Construction Consultant”: for any Project, a consultant from Professional Associates
Construction Services, Inc.; provided however, that Administrative Agent shall have
the right to replace such Construction Consultant for one or more of the Projects with another
construction consultant that is selected by the Administrative Agent and is reasonably acceptable
to the Borrower.



“Construction Plans”: the construction plans and drawings for any Unfinished Project,
as such construction plans may be amended, updated, supplemented, restated and/or modified at
anytime and from time to time.


 


10









 





“Construction Timetable”: the construction timetable for any Unfinished Project, as
such construction timetable may be amended, updated, supplemented, restated and/or modified at
anytime and from time to time.



“Continuing Directors”: the directors of the Borrower on the Effective Date, and each
other director of the Borrower, if, in each case, such other director’s nomination for election to
the board of directors of the Borrower is recommended by at least a majority of the then Continuing
Directors.



“Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its Property is bound.



“Control Investment Affiliate”: as to any Person, any other Person that (a) directly
or indirectly, is in control of, is controlled by, or is under common control with, such Person and
(b) is organized by such Person primarily for the purpose of making equity or debt investments in
one or more companies. For purposes of this definition, “control” of a Person means the power,
directly or indirectly, to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.



“Cooperative Endeavor Agreement”: that certain Cooperative Endeavor Development
Agreement dated as of November 8, 1999, as amended by an amendment dated as of April 23, 2003,
among the Lake Charles Harbor and Terminal District, the Calcasieu Parish Police Jury, the City of
Lake Charles, Louisiana, and the Borrower, as further amended, modified or supplemented from time
to time.




“Current Interest Period”: as defined in Section 2.1(a).



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




“Declined Term Amount”: as defined in Section 2.13(f).




“Declining Lender Notice”: as defined in Section 2.13(f).




“Declining Term Loan Lender”: as defined in Section 2.13(f).



“Default”: any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been satisfied.



“Defaulting Lender”: any Lender that (a) has failed to perform its obligation to fund
any portion of its Loans (or participations in respect of Letters of Credit or Swing Line Loans)
within three (3) Business Days of the date required to be funded by it hereunder, unless such
obligation is the subject of a good faith dispute as to which such Lender has delivered to the
Borrower and the Administrative Agent a written notice setting forth in reasonable detail the



 


11









 






basis for such dispute; (b) has notified the Borrower, the Administrative Agent or any Lender
in writing that it does not intend to comply with any of its funding obligations under this
Agreement or has made a public statement that it does not intend to comply with its funding
obligations under this Agreement or generally under other agreements in which it commits to extend
credit; (c) has failed, within three (3) Business Days after written request by the Administrative
Agent, to confirm in a manner reasonably satisfactory to the Administrative Agent, the Issuing
Lenders and the Swing Line Lenders that it will comply with the terms of this Agreement relating to
its obligations to fund prospective Loans (or participations in respect of Letters of Credit or
Swing Line Loans), (d) otherwise has failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within three Business Days of the date
when due, unless the subject of a good faith dispute as to which such Lender has delivered to the
Borrower and the Administrative Agent a written notice setting forth in reasonable detail the basis
for such dispute, or (e) has, or has a direct or indirect parent company that has (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in such Lender or any direct or indirect parent
company thereof by a Governmental Authority. A Lender that has become a Defaulting Lender because
of an event referenced in this definition may cure such status and shall no longer constitute a
Defaulting Lender as provided in the last paragraph of Section 2.27.



“Deferred Compensation Plan”: that certain Hollywood Park, Inc. Executive Deferred
Compensation Plan, originally effective January 1, 2000, as completely amended and restated
effective December, 2004 as the First Amendment and Restatement of the Pinnacle Entertainment, Inc.
Executive Deferred Compensation Plan, and as further amended and restated effective December, 2007
as the Second Amendment and Restatement of the Pinnacle Entertainment, Inc. Executive Deferred
Compensation Plan, as it may be further amended, modified or supplemented from time to time, and
the Amended and Restated Hollywood Park, Inc Directors Deferred Compensation Plan originally
effective for 1993, amended and restated effective December, 2008 as the 2008 AMENDED AND RESTATED
PINNACLE ENTERTAINMENT, INC. DIRECTORS DEFERRED COMPENSATION PLAN, as it may be further amended,
modified or supplemented from time to time.




“Derivatives Counterparty”: as defined in Section 7.6.



“Designated Asset Sale”: any Disposition of any of the assets listed on Schedule
7.5.(g) attached hereto.



“Directors’ and Officers’ Trust”: an irrevocable grantor trust holding funds
deposited by Borrower to fund indemnification obligations to directors and officers of Borrower and
its Subsidiaries.


 


12









 





“Disposition”: with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose”,
“Disposed” and “Disposed of” shall have correlative meanings.




“Documentation Agent”: as defined in the preamble hereto.




“Dollars” and “$”: lawful currency of the United States of America.



“Domestic”: as to any Subsidiary, a Subsidiary of the Borrower organized under the
laws of any jurisdiction within the United States of America.




“Effective Date”: February 5, 2010.



“Environmental Laws”: any and all laws, rules, orders, regulations, statutes,
ordinances, guidelines, codes, decrees, or other legally enforceable requirements (including,
without limitation, common law) of any international authority, foreign government, the United
States, or any state, local, municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time hereafter be, in
effect.



“Environmental Permits”: any and all permits, licenses, approvals, registrations,
notifications, exemptions and other authorizations required under any Environmental Law.



“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time.



“Estimated Business Interruption Insurance”: the amount (determined in good faith by
senior management of the Borrower) of business interruption insurance the Borrower expects to
collect in any applicable period; provided, that (a) with respect to the damage to the
Biloxi Property resulting from Hurricane Katrina and/or Rita, such amount shall only include
amounts through the four-fiscal quarter period ending on December 31, 2010, and such amount shall
not exceed the lesser of (i) (A) for the four quarter period ending on March 31, 2010, $16,400,000,
(B) for the four quarter period ending on June 30, 2010, $12,300,000, (C) for the four quarter
period ending on September 30, 2010, $8,200,000, and (D) for the four quarter period ending on
December 31, 2010, $4,100,000 and (ii) the sum of (A) $4,100,000 per fiscal quarter, and (B) the
amount of business interruption insurance not reflected in clause (A) that the Borrower expects to
collect as a reimbursement in respect of other expenses incurred at the Biloxi Property with
respect to such fiscal quarter (provided that the amount included pursuant to this clause (B) shall
not exceed the amount of the other expenses incurred at the Biloxi Property that are actually
included in calculating Consolidated Net Income for such fiscal quarter); and (b) with respect to
damage to any Property (other than the Biloxi Property), such amount shall not exceed the sum of
(i) the historical quarterly Consolidated EBITDA for the previous four quarters for such Property
ending prior to the date the damage occurred (or annualized if such Property has less than four
full quarters of operations), and (ii) the amount of business interruption insurance not reflected
in clause (i) that the Borrower expects to collect as a reimbursement in respect of other expenses
incurred at such Property with respect to such period (provided that the amount included pursuant
to this clause (ii) shall not exceed the amount of the



 


13









 






other expenses incurred at such Property that are actually included in calculating
Consolidated Net Income for such fiscal period).



“Eurocurrency Reserve Requirements”: for any day, the aggregate (without duplication)
of the maximum rates (expressed as a decimal or a fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.



“Eurodollar Base Rate”: with respect to each day during each Interest Period, the
rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen
(or otherwise on such screen), the “Eurodollar Base Rate” for purposes of this definition
shall be determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent.



“Eurodollar Loans”: Loans for which the applicable rate of interest is based upon the
Eurodollar Rate.



“Eurodollar Rate”: with respect to each day during each Interest Period, a rate per
annum determined for such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):



Eurodollar Base Rate

1.00 - Eurocurrency Reserve Requirements





“Eurodollar Tranche”: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).



“Event of Default”: any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.



“Excess Cash”: as of any date, an amount (but not less than zero) equal to (a) the
total unrestricted Cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of
such date minus (b) the Minimum Cash Requirement as of such date, minus (c) any amounts outstanding
under the Revolving Credit Facility as of such date.



“Excess Cash Flow”: for any fiscal year of the Borrower, the difference, if any, of
(a) the sum, without duplication, of (i) Consolidated Net Income of Borrower and its Restricted
Subsidiaries for such fiscal year, (ii) the amount of all non-cash charges (including depreciation
and amortization) deducted in arriving at such Consolidated Net Income, (iii) the amount of the
decrease, if any, in Consolidated Working Capital of Borrower and its Restricted Subsidiaries for
such fiscal year, (iv) the aggregate net amount of non-cash loss on the



 


14









 






Disposition of Property by the Borrower and its Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income, (v) the net increase during such fiscal year (if any) in deferred tax
accounts of the Borrower and its Restricted Subsidiaries, and (vi) all business interruption
insurance actually received in Cash during such fiscal year by Borrower and its Restricted
Subsidiaries minus (b) the sum, without duplication, of (i) the amount of all non-cash
credits included in arriving at such Consolidated Net Income (including non-cash credits received
from business interruption insurance), (ii) the aggregate amount actually paid by the Borrower and
its Restricted Subsidiaries in Cash during such fiscal year on account of Capital Expenditures
permitted by this Agreement (minus, if there is no Unfinished Projects during such fiscal year, the
principal amount of Indebtedness incurred during such fiscal year in connection with such
expenditures and minus the amount of any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all prepayments of Revolving Credit
Loans and Swing Line Loans during such fiscal year to the extent accompanying permanent optional
reductions of the Revolving Credit Commitments and all optional prepayments of the Incremental Term
Loans and the Incremental Delayed Draw Term Loans during such fiscal year, (iv) the aggregate
amount of all regularly scheduled principal payments of Funded Debt (including, without limitation,
the Incremental Term Loans and the Incremental Delayed Draw Term Loans) of the Borrower and its
Restricted Subsidiaries made during such fiscal year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in commitments thereunder),
(v) the amount of the increase, if any, in Consolidated Working Capital of Borrower and its
Restricted Subsidiaries for such fiscal year, (vi) the aggregate net amount of gain on all
Dispositions of Property by the Borrower and its Subsidiaries during such fiscal year (other than
sales of inventory in the ordinary course of business), to the extent included in arriving at such
Consolidated Net Income, (vii) the net decrease during such fiscal year (if any) in deferred tax
accounts of the Borrower and its Restricted Subsidiaries, and (viii) the Estimated Business
Interruption Insurance.




“Excess Cash Flow Application Date”: as defined in Section 2.13(d).




“Existing Credit Agreement”: as defined in the recitals.




“Existing Lenders”: as defined in the recitals.




“Existing Letters of Credit”: the letters of credit set forth on Schedule 1.1(d).



“Existing Senior Unsecured Obligations”: the $450,000,000 8.625% Senior Notes due
2017 of the Borrower issued pursuant to the Indenture dated as of August 10, 2009 among the
Borrower, the initial guarantors referred to therein, and The Bank of New York Mellon Trust
Company, N.A., as Trustee, as further amended from time to time.



“Existing Subordinated Obligations”: the $200,000,000 8.25% Senior Subordinated Notes
due 2012 of the Borrower issued pursuant to the Indenture dated as of March 15, 2004 among the
Borrower, the initial guarantors referred to therein, and The Bank of New York Mellon Trust
Company, N.A., as Trustee, as amended from time to time; and (b) the $385,000,000 7.50% Senior
Subordinated Notes due 2015 of the Borrower issued pursuant to the Indenture dated as of June 8,
2007 among the Borrower, the initial guarantors referred to therein,



 


15









 






and The Bank of New York Mellon Trust Company, N.A., as Trustee, as further amended from time
to time.



“Existing Unsecured Obligations”: the Existing Senior Unsecured Obligations and the
Existing Subordinated Obligations.



“Expenses”: with regards to any Unfinished Project, the aggregate costs and expenses
(including construction costs, design, FF&E, soft costs, pre-opening and promotional costs)
expended in the construction and development of such Project in accordance with the applicable
Construction Plans and the applicable Construction Budget.



“Facility”: each of the Revolving Credit Facility, each Incremental Revolving
Facility, each Incremental Term Facility and each Incremental Delayed Draw Term Facility.



“Fair Value Determination”: with respect to any Disposition of Property, a
determination by the management of the Borrower, that such Disposition, taking into account all
current consideration and direct and indirect future benefits anticipated to be received by the
Borrower and its Subsidiaries in connection with such Disposition, is a reasonable and good faith
exercise of business judgment.



“Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.



“Financial Condition Covenants”: the covenants of the Borrower set forth in
Section 7.1.



“Foreign”: as to any Subsidiary, a Subsidiary of the Borrower that is not a Domestic
Subsidiary.



“Foreign Subsidiary Receipts”: any dividend, distribution, payment, reimbursement or
other amounts received in Cash from any Foreign Unrestricted Subsidiary of the Borrower by the
Borrower or any Restricted Subsidiary.



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the Issuing Lenders, such Defaulting Lender’s Revolving Credit Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which (i) such Defaulting Lender’s participation
obligation has been reallocated pursuant to Section 2.27(d), or (ii) Letter of Credit Back
Stop Arrangements shall have been provided in accordance with Section 3.9, and (b) with
respect to the Swing Line Lender, such Defaulting Lender’s Revolving Credit Percentage of Swing
Line Loans other than Swing Line Loans as to which (i) such Defaulting Lender’s participation
obligation has been reallocated pursuant to Section 2.27(d), or (ii) Swing Line Back-Stop
Arrangements shall have been provided in accordance with Section 2.7.


 


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“Funded Debt”: with respect to any Person, all Indebtedness of such Person of the
types described in clauses (a) through (e) of the definition of “Indebtedness” in this Section,
excluding any Indebtedness described in Section 7.2(j).



“Funding Office”: the office specified from time to time by the Administrative Agent
as its funding office by notice to the Borrower and the Lenders.



“GAAP”: generally accepted accounting principles in the United States of America as
in effect from time to time, except that for purposes of Section 7.1 and subject to
Section 10.16, GAAP shall be determined on the basis of such principles used in the
preparation of the December 31, 2008 audited financial statements.



“Gaming Board”: collectively, (a) the California Attorney General (acting pursuant to
the California Gambling Control Act), (b) the Nevada Gaming Commission, (c) the Nevada State Gaming
Control Board, (d) the Indiana Gaming Commission, (e) the Mississippi Gaming Commission, (f) the
Louisiana Gaming Control Board, (g) the Missouri Gaming Commission, and (h) any other Governmental
Authority that holds regulatory, licensing or permit authority over gambling, gaming or casino
activities conducted or proposed to be conducted by the Borrower and its Subsidiaries.



“Gaming Laws”: all Laws pursuant to which any Gaming Board possesses regulatory,
licensing or permit authority over gambling, gaming or casino activities conducted by the Borrower
and its Subsidiaries.



“Gaming License”: in any jurisdiction in which the Borrower or any of its
Subsidiaries conducts or proposes to conduct any casino and gaming business or activities, any
license, permit or other authorization to conduct gaming activities that is granted or issued by
the applicable Gaming Board for such business activities.



“Governmental Authority”: any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including, without limitation, the Gaming
Boards and Liquor Authorities.



“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit), if to induce the creation of such obligation of such other Person
the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability of the primary



 


17









 






obligor to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.




“Guarantors”: the collective reference to the Subsidiary Guarantors.



“Hedge Agreements”: all interest rate or currency swaps, caps or collar agreements,
foreign exchange agreements, commodity contracts or similar arrangements entered into by the
Borrower or its Subsidiaries providing for protection against fluctuations in interest rates,
currency exchange rates, commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.



“Hotel Agreements”: (a) a franchise/license agreement, a management agreement and
other related agreements (including an information technology agreement), by the Borrower or its
Restricted Subsidiary in connection with operation and management of the hotel that is part of the
Lumière Property, in the form of the customary franchise or management agreement for the applicable
franchisor or manager or such other form as shall be reasonably acceptable to the Administrative
Agent; and (b) the other franchise/license agreements, management agreements and other related
agreements, including, without limitation, information technology agreements, entered into by the
Borrower or its Restricted Subsidiaries in connection with the operation and management of an
existing hotel, or a hotel to be built as part of any potential development project of the Borrower
or its Restricted Subsidiaries, in the form of the customary franchise or management agreement for
the applicable franchisor or manager or such other form as shall be reasonably acceptable to the
Administrative Agent.



“Identified Project”: any Project which has a specific basket for Capital
Expenditures under and pursuant to Section 7.16.



“Immaterial Subsidiaries”: any Subsidiary of the Borrower or its Restricted
Subsidiaries that does not (i) hold or own assets with an aggregate net book value of greater than
$5,000,000 and (ii) hold any Gaming Licenses.



“In-Balance Projections”: with respect to any In-Balance Test, good faith projections
of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the period from the
first day of the calendar month in which In-Balance Test is being made through the end of the
Project Period for the applicable Project.


 


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“In-Balance Test”: with respect to any Project, the test to determine whether, as of
any date, the Project Sources exceed the Project Uses for such Project (and for all other
Unfinished Projects) for the Project Period for such Project.



“In-Balance Test Certificate”: with respect to any Project, an officer’s certificate,
in substantially the form of the attached Exhibit L, setting forth the calculation of the Project
Sources and the Project Uses for such Project as of the date of such certificate.



“Incremental Delayed Draw Term Commitment”: as to any Lender a Commitment to make an
Incremental Delayed Draw Term Facility.



“Incremental Delayed Draw Term Commitment Period”: with respect to any Incremental
Delayed Draw Term Facility, the commitment period for such Incremental Delayed Draw Term Facility.




“Incremental Delayed Draw Term Facilities”: as defined in Section 2.8(a).



“Incremental Delayed Draw Term Lender”: each Lender that has an Incremental Delayed
Draw Term Commitment or that is the holder of Incremental Delayed Draw Term Loans.



“Incremental Delayed Draw Term Loans”: Incremental Loans under an Incremental Delayed
Draw Term Facility.



“Incremental Delayed Draw Term Maturity Date”: for any Incremental Delayed Draw Term
Loan, the maturity date for such Incremental Delayed Draw Term Loan as set forth in the applicable
Incremental Facility Activation Notice (or such earlier date on which such Incremental Delayed Draw
Term Loan becomes due and payable pursuant to Section 8).



“Incremental Delayed Draw Term Percentage”: as to any Incremental Delayed Draw Term
Lender at any time, the percentage which the sum of such Lender’s unfunded Incremental Delayed Draw
Term Commitment plus the aggregate principal amount of such Lender’s Incremental Delayed Draw Term
Loans then outstanding constitutes of the sum of the aggregate unfunded Incremental Delayed Draw
Term Commitments and the aggregate principal amount of the Incremental Delayed Draw Term Loans then
outstanding.




“Incremental Delayed Draw Term Note”: as described in Section 2.9(e).




“Incremental Facilities”: as defined in Section 2.8(a).



“Incremental Facility Activation Notice”: a notice substantially in the form of
Exhibit B-3.




“Incremental Facility Amendments”: as defined in Section 2.8(a).



“Incremental Facility Effective Date”: as defined in Section 2.8(a).


 


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“Incremental Loans”: additional Loans or Additional Extensions of Credit made
pursuant to any Incremental Facility.




“Incremental Revolving Credit Commitments”: as defined in Section 2.8(a).




“Incremental Revolving Facilities”: as defined in Section 2.8(a).



“Incremental Revolving Facility Commitment”: as to any Lender a Commitment to make an
Incremental Revolving Facility.



“Incremental Revolving Loans”: Incremental Loans under an Incremental Revolving
Facility.



“Incremental Term Commitment”: as to any Lender a Commitment to make an Incremental
Term Facility.




“Incremental Term Facilities”: as defined in Section 2.8(a).



“Incremental Term Lender”: each Lender that has an Incremental Term Commitment or
that is the holder of Incremental Term Loans.




“Incremental Term Loans”: Incremental Loans under an Incremental Term Facility.



“Incremental Term Maturity Date”: for any Incremental Term Loan, the maturity date
for such Incremental Term Loan as set forth in the applicable Incremental Facility Activation
Notice (or such earlier date on which such Incremental Term Loan becomes due and payable pursuant
to Section 8).




“Incremental Term Note”: as described in Section 2.9(e).



“Incremental Term Percentage”: as to any Incremental Term Lender at any time, the
percentage which such Lender’s Term Loans then outstanding constitutes of the aggregate principal
amount of the Term Loans then outstanding.



“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money (other than chip and token liability incurred in the ordinary
course of such Person’s business), (b) all obligations of such Person for the deferred purchase
price of Property or services (other than trade payables and accrued expenses that are current
liabilities), (c) all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to Property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such Property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or applicant under
acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent
or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such
Person, (h) all Guarantee Obligations of such Person in respect of obligations of



 


20









 






the kind referred to in clauses (a) through (g) above; (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including,
without limitation, accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Hedge Agreements.




“Indemnified Liabilities”: as defined in Section 10.5.




“Indemnitee”: as defined in Section 10.5.



“Indentures”: collectively, the Senior Subordinated Indentures and the Senior
Unsecured Indentures.



“Indiana Power of Attorney”: a power of attorney required, pursuant to applicable
Requirements of Law, to be entered into by the Borrower or any of its Restricted Subsidiaries by
the Indiana Gaming Commission.



“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.




“Insolvent”: pertaining to a condition of Insolvency.



“Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights
to sue at law or in equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.



“Interest Payment Date”: (a) as to any Base Rate Loan, the last day of each March,
June, September and December to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, the
last day of such Interest Period, and (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period.



“Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior
to the last day of the then current Interest Period with respect thereto; provided that,
all of the foregoing provisions relating to Interest Periods are subject to the following:


 


21









 





(a) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;



(b) any Interest Period that would otherwise extend beyond the Revolving Credit
Termination Date or beyond the date final payment is due on any Incremental Term Loans or
Incremental Delayed Draw Term Loans, as the case may be, shall end on the Revolving Credit
Termination Date or such due date, as applicable; and



(c) any Interest Period that 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 the calendar month at the end
of such Interest Period.




“Investments”: as defined in Section 7.7.



“Issuing Lender”: (a) solely with respect to the Existing Letters of Credit, Wells
Fargo Bank, N.A., and (b) otherwise any Revolving Credit Lender from time to time designated by the
Borrower as an Issuing Lender with the consent of such Revolving Credit Lender and notice to the
Administrative Agent, subject to Section 9.9(c) hereof, as applicable.




“L/C Commitment”: $75,000,000.



“L/C Fee Payment Date”: the last day of each March, June, September and December and
the Revolving Credit Termination Date.



“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section
3.5.



“L/C Participants”: with respect to any Letter of Credit, the collective reference to
all the Revolving Credit Lenders other than the Issuing Lender that issued such letter of Credit.



“Laws”: collectively, all international, foreign, federal, state and local statutes,
treaties, rules, regulations, ordinances, codes and administrative or judicial precedents,
including, without limitation, Gaming Laws.



“Lender Addendum”: with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit B-1, to be executed and delivered by such Lender on
the Effective Date as provided in Section 10.17.



“Lenders”: collectively, the Revolving Credit Lenders, the Incremental Term Lenders,
if any, and the Incremental Delayed Draw Term Lenders, if any, and includes the Issuing Lenders
(unless the context otherwise requires).


 


22









 






“Letter of Credit Back-Stop Arrangements”: as defined in Section 3.9.




“Letters of Credit”: as defined in Section 3.1(a).



“License Revocation”: the revocation, failure to renew, suspension of, refusal to
issue, or the appointment of a receiver, supervisor or similar official with respect to, any Gaming
License covering any present or reasonably proposed casino or gaming facility of Borrower or any
Restricted Subsidiary.



“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the foregoing).



“Liquor Authorities”: in any jurisdiction in which the Borrower or any of its
Subsidiaries sells and/or distributes beer, wine or liquor, or proposes to sell and/or distribute
beer, wine or liquor, the applicable alcoholic beverage commission or other Governmental Authority
responsible for interpreting, administering or enforcing the Liquor Laws.



“Liquor Laws”: the laws, rules, regulations and orders applicable to or involving the
sale and/or distribution of beer, wine or liquor by the Borrower or any of its Subsidiaries in any
jurisdiction, as in effect from time to time, including the policies, interpretations or
administration thereof by the applicable Liquor Authorities.



“Liquor License”: in any jurisdiction in which the Borrower or any of its
Subsidiaries sells and/or distributes beer, wine or liquor, or proposes to sell and/or distribute
beer, wine or liquor, any license, permit or other authorization to sell and distribute beer, wine
or liquor that is granted or issued by the Liquor Authorities.




“Loan”: any loan made by any Lender pursuant to this Agreement.



“Loan Documents”: this Agreement, the Subsidiary Guaranty, the Security Documents,
the Applications and the Notes.



“Loan Parties”: the Borrower and each Subsidiary of the Borrower that is a party to a
Loan Document.



“Lumière Property”: the complex known as Lumière Place located in downtown St. Louis,
Missouri, including the Lumière Place Casino and the Four Seasons Hotel St. Louis.



“Maintenance Capital Expenditures”: Capital Expenditures that are incurred to
maintain, restore, refurbish or replace fixed or capital assets or equipment of the Borrower and
its Restricted Subsidiaries.`



“Majority Facility Lenders”: with respect to (a) the Revolving Credit Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Total Revolving Extensions
of Credit outstanding under the Revolving Credit Facility (or, prior to any



 


23









 






termination of the Revolving Credit Commitments, the holders of more than 50% of the Total
Revolving Credit Commitments); (b) any Incremental Term Facility, the holders of more than 50% of
the aggregate unpaid principal amount of the Incremental Term Loans outstanding under such
Incremental Term Facility; (c) any Incremental Delayed Draw Term Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Incremental Delayed Draw Term Loans and
unfunded Incremental Delayed Draw Term Commitments under such Incremental Delayed Draw Term
Facility; or (d) any Incremental Revolving Facility, the holders of more than 50% of the aggregate
unpaid principal amount of the Incremental Revolving Loans and unfunded Incremental Revolving
Facility Commitments under such Incremental Revolving Facility.



“Majority Revolving Credit Facility Lenders”: the Majority Facility Lenders in
respect of the Revolving Credit Facility.



“Material Adverse Effect”: a material adverse effect on (a) the business, assets,
property, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole, (b) the validity or enforceability of this Agreement, the Subsidiary Guarantee,
the Notes, the Security Documents (including amendments thereto), taken as a whole, or the other
Loan Documents (including amendments thereto), taken as a whole, or the rights or remedies of the
Agents or the Lenders under this Agreement, the Subsidiary Guarantee, the Notes, the Security
Documents (including amendments thereto), taken as a whole, or the other Loan Documents (including
amendments thereto), taken as a whole, or (c) on the ability of the Borrower and the Loan Parties
to fulfill their obligations under the Loan Documents.



“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde
insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances or forces
of any kind, whether or not any such substance or force is defined as hazardous or toxic under any
Environmental Law, that is regulated pursuant to or could give rise to liability under any
Environmental Law.



“Maximum Foreign Subsidiary Investment Amount”: as of any date of determination, the
sum of (a) $1,500,000; plus (b) all amounts received by the Borrower or any Restricted Subsidiary
as Foreign Subsidiary Receipts after August 27, 2004 through such date of determination, minus
(c) all Reclassified Foreign Subsidiary Receipts.



“Minimum Cash Requirement”: as of any date, the sum as of such date of
(a) $65,000,000 plus (b) on any date after the Sugarcane Bay Project opens, $10,000,000 plus (c) on
any date after the Baton Rouge Project opens, $10,000,000 plus (d) on any date after the River City
Property Project opens, $10,000,000 plus (e) $10,000,000 for each Material Operating Property which
opened after the Effective Date and prior to such date plus (f) $10,000,000 for each Material
Operating Property which was acquired after the Effective Date and prior to such date minus
(g) $10,000,000 for each Material Operating Property which was Disposed of or otherwise ceased
operations after the Effective Date and prior to such date. For purposes of this definition,
“Material Operating Property” means (i) the Reno Property or (ii) any other Property which
either was acquired for $100,000,000 or more or had a construction budget of $100,000,000 or more
and at which gaming operations are conducted.


 


24









 






“Monthly Construction Progress Report”: as defined in Section 6.2(i).




“Moody’s”: Moody’s Investors Service, Inc.



“Mortgaged Properties”: the real properties listed on Schedule 1.1(a) as and
when the Administrative Agent for the benefit of the Secured Parties is granted a Lien pursuant to
one or more Mortgages in accordance with the terms of this Agreement.



“Mortgages”: collectively, (a) each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the
secured parties, (b) each of the amended and restated mortgages and deeds of trust made by any Loan
Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the secured
parties, and (c) any other mortgages or deeds of trust which are made by any Loan Party in favor of
the Administrative Agent from time to time in accordance with this Agreement, which mortgages and
deeds of trust shall be substantially in the form of Exhibit C, in each case with such
changes thereto as shall be advisable under the law of the jurisdiction in which such mortgages and
deeds of trust are to be recorded and in each case as the same may be further amended, amended and
restated, restated, supplemented or otherwise modified from time to time.



“Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.



“Net Cash Proceeds”: (a) in connection with any Asset Sale, any Recovery Event or any
Designated Asset Sale, the proceeds thereof in the form of Cash and Cash Equivalents (including any
such proceeds received by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and when received) of
such Asset Sale, Recovery Event or Designated Asset Sale, net of attorneys’ fees, accountants’
fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset
Sale, Recovery Event or Designated Asset Sale (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in connection therewith and net of taxes
paid or reasonably estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements); and (b) in connection with
any issuance or sale of equity securities or debt securities or instruments or the incurrence of
loans, the Cash proceeds received from such issuance or incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith.



“Net Disposition Proceeds”: in connection with any Disposition, the proceeds thereof
in the form of Cash and Cash Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Disposition, net of attorneys’
fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment
of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject
of such Disposition (other than any Lien pursuant to a Security Document) and



 


25









 






other customary fees and expenses actually incurred in connection therewith and net of taxes
paid or reasonably estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements).



“New Capital Adjusted Proceeds”: as of any date, (a) the New Capital Available
Proceeds as of such date minus (b) the New Capital Asset Disposition Proceeds as of such date minus
(c) any portion of the New Capital Available Proceeds (other than New Capital Asset Disposition
Proceeds) that as of such date has resulted, or will result, in an increase to Consolidated EBITDA;
provided that if New Capital Adjusted Proceeds have been included as Project Sources in satisfying
the In-Balance Test for any Identified Project with a separate and specified Capital Expenditure
basket, the amount of New Capital Adjusted Proceeds so included in Project Sources may not also be
applied to Capital Expenditures under Section 7.16(c) or to Investments under Section
7.7(k).



“New Capital Asset Disposition Proceeds”: as of any date, the Net Disposition
Proceeds received by the Borrower and its Restricted Subsidiaries on or after January 1, 2010 and
prior to such date from Recovery Events and Dispositions of Property other than those permitted
pursuant to clause (b), (d), (f), (k), (l) and (o) of Section 7.5.



“New Capital Available Proceeds”: as of any date, the sum of (a) New Capital Asset
Disposition Proceeds as of such date; (b) the amount of tax refunds received by the Borrower and
its Restricted Subsidiaries in Cash and/or Cash Equivalents on or after January 1, 2010 and prior
to such date; (c) the amount of litigation settlements and/or awards received in cash (net of the
expenses incurred to obtain such litigation settlements and/or awards) by the Borrower and its
Restricted Subsidiaries on or after January 1, 2010 and prior to such date; (d) the amount of gross
proceeds received by the Borrower from the issuance and sale of the Borrower’s Capital Stock (other
than Capital Stock which is Indebtedness); and (e) with respect to each Unrestricted Subsidiary for
which cash dividends and distributions are received by the Borrower and/or its Restricted
Subsidiaries from such Unrestricted Subsidiary on or after January 1, 2010 and prior to such date
is in excess of the Investments (excluding Investments made pursuant to Section 7.7(k))
made by the Borrower and/or its Restricted Subsidiaries in such Unrestricted Subsidiary on or after
January 1, 2010 and prior to such date, the amount of such excess.




“New Lender”: as defined in Section 2.8(d).




“New Lender Supplement”: as defined in Section 2.8(d).



“New Subordinated Obligations”: unsecured subordinated Indebtedness of the Borrower
that (a) does not have any scheduled principal payment, mandatory principal prepayment or sinking
fund payment due prior to the date that is six months following the latest of the Incremental Term
Maturity Date, Incremental Delayed Draw Term Maturity Date and Revolving Credit Termination Date,
(b) is not secured by any Lien on the Property of Borrower or any of its Subsidiaries, and (c) is
otherwise on terms (except for pricing) which are (i) in the aggregate not more favorable to the
holders of such Indebtedness than those contained in the Existing Subordinated Obligations as in
effect on the date hereof in any manner which is detrimental to the Agents or the Lenders or
substantially identical thereto (in each case, as



 


26









 






determined by the Administrative Agent in its discretion) or (ii) otherwise approved by the
Required Lenders; provided, however, for purposes of this clause (c) Borrower shall
be permitted to incur convertible subordinated debt on terms reasonably acceptable to the
Administrative Agent and otherwise in compliance with clauses (a) and (b) above.




“Non-Excluded Taxes”: as defined in Section 2.21(a).




“Non-U.S. Lender”: as defined in Section 2.21(d).




“Note”: any promissory note evidencing any Loan.




“Notice Period”: as defined in Section 9.9(a).



“Obligations”: the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans, the Reimbursement
Obligations and all other obligations and liabilities of the Borrower to the Administrative Agent
or to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified
Hedge Agreement or any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto)
or otherwise; provided, that (i) obligations of the Borrower or any Subsidiary under any
Specified Hedge Agreement shall be secured and guaranteed pursuant to the Security Documents only
to the extent that, and for so long as, the other Obligations are so secured and guaranteed and
(ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement
shall not require the consent of holders of obligations under Specified Hedge Agreements.




“Original Credit Agreement”: as defined in the recitals.



“Other Taxes”: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.




“Participant”: as defined in Section 10.6(b).




“Participant Register”: as defined in Section 10.6(b).




“Payment Amount”: as defined in Section 3.5.



“Payment Office”: the office specified from time to time by the Administrative Agent
as its payment office by notice to the Borrower and the Lenders.


 


27









 





“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).



“Permitted Refinancing Subordinated Notes”: the notes evidencing the Permitted
Refinancing Subordinated Obligations.



“Permitted Refinancing Subordinated Obligations”: unsecured Indebtedness of the
Borrower that (a) does not have any scheduled principal payment, mandatory principal prepayment or
sinking fund payment due prior to the date that is six months following the latest of the
Incremental Term Maturity Date, Incremental Delayed Draw Term Maturity Date and the Revolving
Credit Termination Date; (b) is not secured by any Lien on the Property of Borrower or any of its
Subsidiaries, and (c) is otherwise on terms (except for pricing) which are (i) not, in the
aggregate, more favorable to the holders of such Indebtedness than those contained in the Existing
Subordinated Obligations as in effect on the date hereof in any manner which is detrimental to the
Agents or the Lenders or substantially identical thereto (in each case, as determined by the
Administrative Agent in its discretion) or (ii) otherwise approved by the Lenders who will
represent Required Lenders after giving effect to the application of any proceeds of Permitted
Refinancing Subordinated Obligations to prepay Incremental Term Loans and Incremental Delayed Draw
Term Loans (or if all Incremental Term Loans and Incremental Delayed Draw Term Loans have been
repaid, to prepay Permitted Refinancing Subordinated Obligations and/or Permitted Senior Unsecured
Obligations), or Revolving Credit Loans.



“Permitted Senior Unsecured Notes”: the notes evidencing the Permitted Senior
Unsecured Obligations.



“Permitted Senior Unsecured Obligations” unsecured Indebtedness of the Borrower in
respect of debt securities (a) that does not have any scheduled principal payment, mandatory
principal prepayment, sinking fund payment or similar provision (including the rights on the part
of any holder to require the redemption or repurchase of any such Indebtedness), in each case that
could require any payment of or on account of principal in respect thereof until the date that is
six months following the latest of the Incremental Term Maturity Date, the Incremental Delayed Draw
Term Maturity Date and the Revolving Credit Termination Date (other than pursuant to change of
control or asset sale provisions customary for debt securities issued by issuers with credit
ratings comparable to that of the Borrower), (b) that is not secured by any Lien on the Property of
Borrower or any of its Subsidiaries, (c) that ranks pari passu with the Loans and Commitments
hereunder and does not constitute Subordinated Obligations, and (d) is otherwise on terms (except
for pricing) which are (i) not, in the aggregate, more favorable to the holders of such
Indebtedness than those contained in the Existing Senior Unsecured Obligations as in effect on the
date hereof in any manner which is detrimental to the Agents or the Lenders or substantially
identical thereto (in each case, as determined by the Administrative Agent in its discretion) or
(ii) otherwise approved by the Lenders who will represent Required Lenders after giving effect to
the application of any proceeds of Permitted Senior Unsecured Obligations to prepay Incremental
Term Loans and Incremental Delayed Draw Term Loans (or if all Incremental Term Loans and
Incremental Delayed Draw Term Loans have been repaid, to prepay Permitted Refinancing Subordinated
Obligations or Permitted Senior Unsecured Obligations), or Revolving Credit Loans.


 


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“Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.



“Plan”: at a particular time, any Single Employer Plan or employee benefit plan other
than a Multiemployer Plan that is subject to Section 412 or 430 of the Code or Section 302 or 303
of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.



“Pledge Agreement (Gaming Regulated)”: the amended and restated pledge agreements
executed and delivered by the Borrower and the Restricted Subsidiaries (other than Immaterial
Subsidiaries) covering, subject to exceptions set forth in such agreements, the Capital Stock owned
by the Borrower or any Restricted Subsidiary in any Subsidiary (other than Foreign Unrestricted
Subsidiaries) that conducts gambling, gaming or casino activities that are subject to Gaming Laws
as may be supplemented, modified, amended, extended or supplanted from time to time.



“Pledge Agreement (General)”: the amended and restated pledge agreement executed and
delivered by the Borrower and the Restricted Subsidiaries (other than Immaterial Subsidiaries)
covering, subject to exceptions set forth in such agreements, the Capital Stock held by the
Borrower and any of such Subsidiaries in all Subsidiaries of the Borrower, other than the Foreign
Unrestricted Subsidiaries or the Subsidiaries the Capital Stock of which is pledged pursuant to a
Pledge Agreement (Gaming Regulated) as may be supplemented, modified, amended, extended or
supplanted from time to time.



“Pledge Agreements”: collectively, the Pledge Agreements (Gaming Regulated) and the
Pledge Agreement (General).



“Pledged Stock”: Capital Stock pledged to the Administrative Agent for the benefit of
the Secured Parties, pursuant to the Pledge Agreements.



“Post-Closing Gaming Pledge Agreement Amendments”: the Pledge Agreements (Gaming
Regulated) listed on Schedule 1.1(c).



“PRC-MO Property”: the Admiral Riverboat Casino vessel, barge and associated mooring
points located on the Mississippi River near St. Louis, Missouri.



“Preferred Ship Mortgages”: collectively (a) each of the amended and restated
preferred ship mortgages made by any Loan Party in favor of the Administrative Agent for the
benefit of the Secured Parties, as described in Schedule 1.1(b), and (b) any other preferred ship
mortgages which are made by any Loan Party in favor of the Administrative Agent from time to time
in accordance with this Agreement, which preferred ship mortgages shall be substantially in the
form of Exhibit D, as the same may be further supplemented, modified, amended, extended or
supplanted from time to time.


 


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“President Claims”: collectively, claims acquired in bankruptcy of President Casinos,
Inc. pending in the United States Bankruptcy Court, Eastern District of Missouri, Eastern Division.




“Pro Forma Balance Sheet”: as defined in Section 4.1.



“Project”: the construction and/or renovation of any improvements on any interest in
any real property or any interest in any ship or barge owned by the Borrower and/or any of its
Restricted Subsidiaries, if the Expenses of such construction and/or renovation could reasonably be
expected to exceed $75,000,000; provided that if the construction and/or renovation of any
improvements on any interest in any such real property or any interest in any such ship or barge
has been divided into separate phases for the construction and/or renovation thereof, the each
phase of such the construction and/or renovation will be treated as a separate Project for all
purposes under this Agreement.



“Project Period”: for any Project, the period of time commencing on the date of
determination of the In-Balance Test with respect to such Project and ending on the date six full
months after the scheduled opening date for such Project;



“Project Sources”: as of any date of determination, an amount equal to the sum of
(a) the total unrestricted Cash and Cash Equivalents of the Borrower and its Restricted
Subsidiaries minus the Minimum Cash Requirement as of such date of determination, plus (b) the
amount of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries set forth in the
In-Balance Projections for the In-Balance Test with respect to such Project, plus (c) unutilized
Commitments under the Revolving Credit Facility, any Incremental Revolving Facility or any
Incremental Delayed Draw Term Facility, in each case, as of such date of determination, plus (d)
unutilized committed lease financing or other form of committed financing of the Borrower and its
Restricted Subsidiaries as of such date of determination for such Project (and for all other
Unfinished Projects), plus (e) the Net Disposition Proceeds to be received by the Borrower and its
Restricted Subsidiaries from Dispositions which are subject to contractual commitments as of such
date of determination, so long as (i) such contractual commitments are not subject to any
conditions other than the passage of time and the obtaining of any applicable Gaming Board
approvals, (ii) such Net Disposition Proceeds are reasonably expected to be received during the
Project Period, (iii) the Borrower has designated or re-designated such Net Disposition Proceeds
for use for such Project or any other Unfinished Project, plus (f) other sources of funds that
other parties are contractually committed (such as contractually committed proceeds of insurance
payments and legal settlements and awards) to make cash payments to the Borrower and its Restricted
Subsidiaries within the Project Period, so long as the Borrower has designated or re-designated
such cash payments for use for such Project or any other Unfinished Project; provided
however, that the combined amount added pursuant to clause (e) and clause (f) shall not
exceed $25,000,000 in the aggregate.



“Project Uses”: as of any date of determination, an amount equal to the sum of
(a) the forecasted cash interest costs of the Borrower and its Restricted Subsidiaries from such
date of determination through the end of the Project Period for such Project, plus (b) projected
Maintenance Capital Expenditures and all other Capital Expenditures of the Borrower and its
Restricted Subsidiaries (other than Capital Expenditures for such Project and all other Unfinished



 


30









 






Projects) through the Project Period for such Project, plus (c) all remaining Expenses for
such Project and all other Unfinished Projects (including any pre-opening costs) through the
Project Period for such Project, plus (d) forecasted cash income tax payments of the Borrower and
its Restricted Subsidiaries through the Project Period for such Project, plus (e) Investments with
respect to which the Borrower and/or any of its Restricted Subsidiaries has entered into a written
enforceable agreement or contract to make at any time during the Project Period for such Project.




“Projections”: as defined in Section 6.2(c).



“Property”: any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, including, without limitation, Capital
Stock.



“Qualified Counterparty”: with respect to any Specified Hedge Agreement, any
counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a
Lender or an affiliate of a Lender.



“Rabbi Trust”: that certain Grantor Trust Agreement made the 1st day of January, 2000
by and between the Borrower and Wachovia Bank, N.A., as trustee (or any successor trustee), as
amended, modified and supplemented from time to time in accordance with this Agreement.



“Reclassified Foreign Subsidiary Receipts”: as of any date of determination, the
aggregate amount of Foreign Subsidiary Receipts received by the Borrower or any Restricted
Subsidiary after the Effective Date and through the date of determination (a) which have not been
invested in any Foreign Unrestricted Subsidiary in accordance with the provisions of Section
7.7(j); and (b) with respect to which the Borrower has provided the Administrative Agent an
irrevocable written notice prior to such date of determination that Foreign Subsidiary Receipts in
such amount is not available for investment in any Foreign Unrestricted Subsidiary.



“Recovery Event”: any payment in excess of $2,500,000 in respect of any property or
casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or
any of its Restricted Subsidiaries.



“Redevelopment Agreement”: that certain Redevelopment Agreement dated as of April 22,
2004 by and between the Land Clearance for Redevelopment Authority of the City of St. Louis and the
Borrower, as may be amended, extended, renewed, supplemented, restated, amended and restated or
otherwise modified from time to time.




“Refunded Swing Line Loans”: as defined in Section 2.7(b).




“Refunding Date”: as defined in Section 2.7(c).




“Register”: as defined in Section 10.6(d).




“Regulation H”: Regulation H of the Board as in effect from time to time.



“Regulation U”: Regulation U of the Board as in effect from time to time.


 


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“Reimbursement Obligation”: the obligation of the Borrower to reimburse each Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such
Issuing Lender.



“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries in connection
therewith that are not applied to prepay the Incremental Term Loans or the Incremental Delayed Draw
Term Loans or to reduce the Revolving Credit Commitments pursuant to Section 2.13(b) or
Section 2.13(c), as applicable, as a result of the delivery of a Reinvestment Notice.



“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.



“Reinvestment Notice”: a written notice executed by a Responsible Officer and
delivered to the Administrative Agent within ten (10) Business Days after an Asset Sale or Recovery
Event stating that no Default or Event of Default has occurred and is continuing and that the
Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or
a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in the business of the Borrower or the applicable Restricted Subsidiary.



“Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring fifteen (15) months after such Reinvestment Event and (b) the date on
which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire assets
permitted under this Agreement with all or any portion of the relevant Reinvestment Deferred
Amount.



“Related Fund”: with respect to any Lender, any fund that (x) invests in commercial
loans and (y) is managed or advised by the same investment advisor (or an Affiliate of such
investment adviser) as such Lender, by such Lender or an Affiliate of such Lender.




“Reno Property”: the Boomtown Hotel and Casino located in Reno, Nevada.



“Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.



“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived under subsections .27, .28,
..29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.



“Required Lenders”: at any time, the holders of more than 50% of the sum of (a) the
aggregate unpaid amount of the Incremental Term Loans then outstanding, (b) the aggregate unpaid
amount of the Incremental Delayed Draw Term Loans then outstanding, (c) the unfunded Incremental
Delayed Draw Term Commitments (if any), and (d) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Extensions
of Credit then outstanding; provided that the Incremental Term Loans, the Incremental
Delayed Draw Term Loans and that portion of the Total Revolving Extensions of Credit held or deemed
held by, and the Commitments of, any



 


32









 






Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.



“Required Prepayment Lenders”: the Majority Facility Lenders in respect of each
Facility.



“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.



“Responsible Officer”: the chief executive officer, president or chief financial
officer of the Borrower, but in any event, with respect to financial matters, the chief financial
officer of the Borrower; provided that the treasurer of the Borrower may act as a
Responsible Officer with respect to any Borrowing Notices to be delivered under this Agreement.




“Restricted Payments”: as defined in Section 7.6.



“Restricted Subsidiaries”: as of the date of determination, all Subsidiaries of the
Borrower other than Subsidiaries of the Borrower which have been properly designated as
Unrestricted Subsidiaries of the Borrower in accordance with the definition thereof. The Borrower
may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary in writing to
Administrative Agent, provided that no Default or Event of Default would be in existence
following such designation.



“Revolving Credit Commitment”: as to any Lender, the obligation of such Lender, if
any, to make Revolving Credit Loans and participate in Swing Line Loans and Letters of Credit, in
an aggregate principal and/or face amount not to exceed the amount set forth under the heading
“Revolving Credit Commitment” opposite such Lender’s name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Total Revolving Credit
Commitments is $375,000,000.



“Revolving Credit Commitment Period”: the period from and including the Effective
Date to the Revolving Credit Termination Date.



“Revolving Credit Facility”: the revolving credit facility described in Section
2.4.



“Revolving Credit Lender”: each Lender (including Incremental Revolving Credit
Lenders) that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.




“Revolving Credit Loans”: as defined in Section 2.4.



“Revolving Credit Note”: as defined in Section 2.9(e).


 


33









 





“Revolving Credit Percentage”: as to any Revolving Credit Lender at any time, the
percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving
Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender’s Revolving Extensions of
Credit then outstanding constitutes of the amount of the Total Revolving Extensions of Credit then
outstanding).



“Revolving Credit Termination Date”: March 31, 2014; provided that such date shall be
accelerated to September 30, 2011 if any portion of the Borrower’s 8.25% Senior Subordinated Notes
due March 15, 2012 are outstanding on September 30, 2011 (or such earlier date on which the Loans
become due and payable pursuant to Section 8).



“Revolving Extensions of Credit”: as to any Revolving Credit Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by
such Lender then outstanding, (b) such Lender’s Revolving Credit Percentage of the L/C Obligations
then outstanding and (c) such Lender’s Revolving Credit Percentage of the aggregate principal
amount of Swing Line Loans then outstanding.



“River City Property”: the River City complex and casino located in south St. Louis
County, Missouri.




“S&P”: Standard & Poor’s Ratings Services.



“SEC”: the Securities and Exchange Commission (or successors thereto or an analogous
Governmental Authority).




“Secured Parties”: as defined in the Security Agreement.



“Security Agreement”: the Second Amended and Restated Security Agreement executed and
delivered by the Borrower and the Restricted Subsidiaries (other than Immaterial Subsidiaries) on
December 14, 2005, as has been amended and supplemented through the Effective Date and as may be
further supplemented, modified, amended, extended or supplanted from time to time in accordance
with the terms of this Agreement.



“Security Documents”: the collective reference to the Security Agreement, the
Trademark Collateral Assignment, the Pledge Agreements (Gaming Regulated), the Pledge Agreement
(General), the Mortgages, the Preferred Ship Mortgages, and any other security agreement, pledge
agreement, deed of trust, mortgage, and all other security documents hereafter delivered to the
Administrative Agent, as each may have been amended, restated, supplemented, or otherwise modified
from time to time, granting a Lien on any Property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.



“Senior Subordinated Indentures”: the Senior Subordinated Notes Indenture 2004, and
the Senior Subordinated Notes Indenture 2007 and any future indentures or other agreements
governing any New Subordinated Obligations or any Permitted Refinancing Subordinated Obligations.


 


34









 





“Senior Subordinated Notes Indenture 2004”: Indenture dated as of March 15, 2004
among the Borrower, the initial guarantors referred to therein, and The Bank of New York Mellon
Trust Company, N.A., as Trustee, as supplemented by the First Supplemental Indenture dated as of
December 3, 2004, and as further amended from time to time, pursuant to which certain of the
Existing Subordinated Obligations were issued.



“Senior Subordinated Notes Indenture 2007”: Indenture dated as of June 8, 2007 among
the Borrower, the initial guarantors referred to therein, and The Bank of New York Mellon Trust
Company, N.A., as Trustee, as amended from time to time, pursuant to which certain of the Existing
Subordinated Obligations were issued.



“Senior Unsecured Indentures”: the Senior Unsecured Notes Indenture 2009 and any
future indentures or other agreements governing any Permitted Senior Unsecured Obligations.



“Senior Unsecured Notes”: the notes evidencing the Existing Senior Unsecured
Obligations or the Permitted Senior Unsecured Obligations.



“Senior Unsecured Notes Indenture 2009”: Indenture dated as of August 10, 2009 among
the Borrower, the initial guarantors referred to therein, and The Bank of New York Mellon Trust
Company, N.A., as Trustee, as amended from time to time, pursuant to which certain of the Existing
Subordinated Obligations were issued.



“Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but which is
not a Multiemployer Plan.



“Solvent”: with respect to any Person, as of any date of determination, (a) the
amount of the “present fair saleable value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as
such quoted terms are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.



“Specified Change of Control”: a “Change of Control”, or like event, as defined in
any of the Indentures or other document entered into by the Borrower or any Restricted Subsidiary
with respect to any New Subordinated Obligations, Permitted Refinancing Subordinated Obligations or
Permitted Senior Unsecured Obligations.


 


35









 





“Specified Hedge Agreement”: any Hedge Agreement entered into by the Borrower or any
Subsidiary Guarantor and any Qualified Counterparty.



“STAR and TIF Bonds”: collectively, tax based bonds and tax increment financing bonds
issued by a governmental authority to finance the development of the properties subject to the
Cabela’s Transaction.



“Stated Amount”: at any time, the maximum amount available to be drawn under a Letter
of Credit (in each case determined without regard to whether any conditions to drawing could then
be met).



“St. Louis County Ground Lease”: that certain Lease and Development Agreement, dated
as of August 12, 2004, by and between the Borrower and the St. Louis County Port Authority, as it
may be amended, amended and restated or otherwise modified from time to time, for an approximate 56
acre tract of land, together with the improvements thereon covered by such ground lease, located in
the Lemay area of St. Louis County, Missouri.



“Subordinated Notes”: the notes evidencing the Existing Subordinated Obligations or
the New Subordinated Obligations.



“Subordinated Obligations”: collectively, the Existing Subordinated Obligations and
the New Subordinated Obligations.



“Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.



“Subsidiary Guarantor”: each direct and indirect Domestic Subsidiary of the Borrower
and, to the extent that it would not result in an adverse tax, foreign gaming, or foreign law
consequence that is material for or with respect to such Subsidiary, Foreign Subsidiary of the
Borrower (in each case, other than the Immaterial Subsidiaries and the Unrestricted Subsidiaries),
that has executed a Subsidiary Guaranty or a joinder thereto.



“Subsidiary Guaranty”: the Second Amended and Restated Subsidiary Guaranty executed
and delivered by the Restricted Subsidiaries (other than Immaterial Subsidiaries) parties thereto
on December 14, 2005, as has been amended and supplemented through the Effective Date and as may be
further supplemented, modified, amended, extended or supplanted from time to time in accordance
with the terms of this Agreement.



“Sugarcane Bay Lease”: the lease with respect to a portion of the Sugarcane Bay
Property.


 


36









 





“Sugarcane Bay Property”: the Sugarcane Bay casino resort complex and dockside casino
located in Lake Charles, Louisiana.



“Supermajority Lenders”: at any time, the holders of more than 66.7% of the sum of
(a) the aggregate unpaid amount of the Incremental Term Loans then outstanding, (b) the aggregate
unpaid amount of the Incremental Delayed Draw Term Loans then outstanding, (c) the unfunded
Incremental Delayed Draw Term Commitments (if any), and (d) the Total Revolving Credit Commitments
then in effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding; provided that the Incremental Term Loans, the
Incremental Delayed Draw Term Loans and that portion of the Total Revolving Extensions of Credit
held or deemed held by, and the Commitments of, any Defaulting Lender shall be excluded for
purposes of making a determination of Supermajority Lenders.




“Swing Line Back-Stop Arrangements”: as defined in Section 2.7.



“Swing Line Commitment”: the obligation of the Swing Line Lender to make Swing Line
Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding
not to exceed $25,000,000.



“Swing Line Lender”: any Revolving Credit Lender from time to time designated by the
Borrower as the Swing Line Lender with the consent of such Revolving Credit Lender and notice to
the Administrative Agent; provided that in no event shall (a) there be more than one Swing Line
Lender at any time and (b) any change in the Swing Line Lender be permitted to occur while any
Swing Line Loans are outstanding. As of the Effective Date, there is no Swing Line Lender.




“Swing Line Loans”: as defined in Section 2.6.




“Swing Line Note”: as defined in Section 2.9(e).




“Swing Line Participation Amount”: as defined in Section 2.7(c).




“Syndication Agents”: as defined in the preamble hereto.



“Total Revolving Credit Commitments”: at any time, the aggregate amount of the
Revolving Credit Commitments then in effect.



“Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Credit Lenders outstanding at such time.



“Trademark Collateral Assignment”: the Second Amended and Restated Trademark
Collateral Assignment executed and delivered by the Borrower and the Restricted Subsidiaries dated
as of December 14, 2005, as amended by that certain First Amendment to Amended and Restated
Trademark Collateral Assignment dated as of August 10, 2009, and as further amended by that certain
Second Amendment to Amended and Restated Trademark Collateral Assignment dated October 1, 2009,
and as further amended by that certain Third Amendment to Amended and Restated Trademark Collateral
Assignment dated December 8,


 


37









 





2009 and as may be further supplemented, modified, amended, extended or supplanted from time
to time.




“Transferee”: as defined in Section 10.14.




“Type”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.



“UCC”: the Uniform Commercial Code under New York law except to the extent the law of
any local jurisdiction applies.



“Undeveloped Reno Property”: approximately 500 acres of undeveloped land adjacent to
the Boomtown Hotel and Casino in Reno, Nevada owned by the Borrower and/or any of its Restricted
Subsidiaries as of the Effective Date, other than the land and real property constituting the
Cabela’s Transaction Property.



“Unfinished Projects”: as of any date, any Project (a) with respect to which the
Commencement of Construction has occurred prior to such date and (b) the Completion of Construction
has not occurred; provided that the parties acknowledge and agree that Commencement of Construction
has occurred for the River City Property Project prior to the Effective Date.



“Unrestricted Subsidiaries”: the Foreign Subsidiaries and the Domestic Subsidiaries
designated on the Effective Date as Unrestricted Subsidiaries on Schedule 4.15(a) and any
other Subsidiary of the Borrower formed or acquired after the Effective Date and designated as
“Unrestricted” by the Borrower to Administrative Agent in writing, provided,
however, that (a) no Subsidiary may be designated as an Unrestricted Subsidiary at any time
when a Default or Event of Default has occurred and remains continuing, or would result from such
designation, (b) the Borrower shall make any such designation prior to or substantially
concurrently with the acquisition or formation of the relevant Subsidiary; provided,
however, that any Immaterial Subsidiary may be re-designated as “Unrestricted” at any time
before such Subsidiary ceases to be an Immaterial Subsidiary.



“Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.



“Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of the Borrower.




1.2 Other Definitional Provisions.



(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.



(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in


 


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Section 1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP.



(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.



(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



(e) All calculations of financial ratios set forth in Section 7.1 and the calculation
of the Consolidated Total Leverage Ratio for purposes of determining the Applicable Margin shall be
calculated to the same number of decimal places as the relevant ratios are expressed in and shall
be rounded upward if the number in the decimal place immediately following the last calculated
decimal place is five or greater. For example, if the relevant ratio is to be calculated to the
hundredth decimal place and the calculation of the ratio is 5.126, the ratio will be rounded up to
5.13.



SECTION 2.

AMOUNT AND TERMS OF COMMITMENTS





2.1 Incremental Term Loans and Incremental Delayed Draw Term Loans.



(a) The Incremental Term Loans, if any, shall be made by the Incremental Term Lenders in a
single drawing on the date set forth in the Incremental Facility Activation Notice with respect to
the applicable Incremental Term Facility. The Incremental Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Section 2.2 and Section 2.14;
provided that no Incremental Term Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Incremental Term Maturity Date for such Incremental Term Loan.



(b) Each Incremental Delayed Draw Term Lender, if any, severally agrees to make term loans to
the Borrower in the manner and subject to the terms and conditions set forth in the Incremental
Facility Activation Notice with respect to the applicable Incremental Delayed Draw Term Facility.
The Incremental Delayed Draw Term Loans may from time to time be Eurodollar Loans or Base Rate
Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with
Section 2.2 and Section 2.14; provided that no Incremental Term Loan shall
be made as a Eurodollar Loan after the day that is one month prior to the Incremental Delayed Draw
Term Maturity Date for such Incremental Delayed Draw Term Loan.


 


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2.2 Procedure for Incremental Term Loan and Incremental Delayed Draw Term Loan
Borrowing.



(a) The Borrower shall deliver to the Administrative Agent a Borrowing Notice (which Borrowing
Notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time, (a)
three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, in the case of Base Rate Loans) requesting
that the Incremental Term Lenders make the requested Incremental Term Loans. Upon receipt of such
Borrowing Notice the Administrative Agent shall promptly notify each Incremental Term Lender
thereof. Not later than 12:00 Noon, New York City time, on the Borrowing Date, each Incremental
Term Lender shall make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Incremental Term Loan to be made by such Incremental Term
Lender.



(b) The Borrower shall deliver to the Administrative Agent a Borrowing Notice (which Borrowing
Notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time, (a)
three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, in the case of Base Rate Loans) requesting
that the Incremental Delayed Draw Term Lenders make the requested Incremental Delayed Draw Term
Loans. Upon receipt of such Borrowing Notice the Administrative Agent shall promptly notify each
Incremental Delayed Draw Term Lender thereof. Not later than 12:00 Noon, New York City time, on
the Borrowing Date, each Incremental Delayed Draw Term Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available funds equal to the
Incremental Delayed Draw Term Loan to be made by such Incremental Delayed Draw Term Lender.



(c) The Administrative Agent shall make available to the Borrower the aggregate of the amounts
made available to the Administrative Agent by the Lenders under clause (a) or (b) of this
Section 2.2, in like funds as received by the Administrative Agent. Any Incremental Term
Loans and Incremental Delayed Draw Term Loans made on each Incremental Facility Effective Date
shall initially be Base Rate Loans.




2.3 Repayment of Incremental Term Loans and Incremental Delayed Draw Term Loans.



(a) Each Incremental Term Loan shall be payable in accordance with the Incremental Facility
Activation Notice with respect to the applicable Incremental Term Facility.



(b) Each Incremental Delayed Draw Term Loan shall be payable in accordance with the
Incremental Facility Activation Notice with respect to the applicable Incremental Delayed Draw Term
Facility.



2.4 Revolving Credit Commitments. Subject to the terms and conditions hereof, each
Revolving Credit Lender severally agrees to make revolving credit loans (“Revolving Credit
Loans”) to the Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding for such Revolving Credit Lender which, when
added to such Lender’s Revolving Credit Percentage of



 


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the sum of (i) the L/C Obligations then outstanding (exclusive of Payment Amounts which are
repaid with the proceeds of, and simultaneously with, the incurrence of, the respective incurrence
of Revolving Credit Loans) and (ii) the aggregate principal amount of the Swing Line Loans then
outstanding (exclusive of Swing Line Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving Credit Loans), does
not exceed the amount of such Lender’s Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans or Base
Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance
with Section 2.5 and Section 2.14, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date. The Borrower shall repay all outstanding Revolving Credit Loans on the Revolving
Credit Termination Date. Each borrowing by the Borrower hereunder of Revolving Credit Loans shall
be made pro rata according to the Revolving Credit Percentages of the Revolving Credit Lenders.



2.5 Procedure for Revolving Credit Borrowing. The Borrower may borrow under the
Revolving Credit Commitments on any Business Day during the Revolving Credit Commitment Period,
provided that the Borrower shall deliver to the Administrative Agent a Borrowing Notice
(which Borrowing Notice must be received by the Administrative Agent prior to 12:00 Noon, New York
City time, (a) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of Base Rate
Loans). Any Revolving Credit Loans made on the Effective Date shall initially be Base Rate Loans.
Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall be in an
amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if
the then aggregate Available Revolving Credit Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $1,000,000 in
excess thereof; provided, that the Swing Line Lender may request, on behalf of the
Borrower, borrowings of Base Rate Loans under the Revolving Credit Commitments in other amounts
pursuant to Section 2.7. Upon receipt of any such Borrowing Notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving
Credit Lender will make its Revolving Credit Percentage of the amount of each borrowing of
Revolving Credit Loans available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.



2.6 Swing Line Commitment. Subject to the terms and conditions hereof, the Swing Line
Lender agrees that, during the Revolving Credit Commitment Period, it will make available to the
Borrower in the form of swing line loans (“Swing Line Loans”) a portion of the credit
otherwise available to the Borrower under the Revolving Credit Commitments; provided that
(i) the aggregate principal amount of Swing Line Loans outstanding at any time shall not exceed the
Swing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at any
time, when aggregated with the Swing Line Lender’s other outstanding



 


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Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in effect or such
Swing Line Lender’s Revolving Credit Commitment then in effect) and (ii) the Borrower shall not
request, and the Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to
the making of such Swing Line Loan, the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. During the Revolving Credit Commitment Period, the Borrower
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with
the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only. The Borrower
shall repay all outstanding Swing Line Loans on the Revolving Credit Termination Date.




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



(a) Subject to the terms and conditions hereof, the Borrower may borrow under the Swing Line
Commitment on any Business Day during the Revolving Credit Commitment Period, provided, the
Borrower shall give the Swing Line Lender irrevocable telephonic notice confirmed promptly in
writing (which telephonic notice must be received by the Swing Line Lender not later than 1:00
P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed
and (ii) the requested Borrowing Date. Each borrowing under the Swing Line Commitment shall be in
an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00
P.M., New York City time, on the Borrowing Date specified in the borrowing notice in respect of any
Swing Line Loan, the Swing Line Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the amount of such Swing Line
Loan. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the
Borrower on such Borrowing Date in like funds as received by the Administrative Agent.



(b) The Swing Line Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender
to act on its behalf), on one Business Day’s notice given by the Swing Line Lender to the
Administrative Agent no later than 12:00 Noon, New York City time, request each Revolving Credit
Lender to make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan
(which shall initially be a Base Rate Loan), in an amount equal to such Revolving Credit Lender’s
Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the “Refunded
Swing Line Loans”) outstanding on the date of such notice, to repay the Swing Line Lender.
Each Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not later than 10:00
A.M., New York City time, one Business Day after the date of such notice. The proceeds of such
Revolving Credit Loans shall be made immediately available by the Administrative Agent to the Swing
Line Lender for application by the Swing Line Lender to the repayment of the Refunded Swing Line
Loans.



(c) If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to
Section 2.7(b), one of the events described in Section 8(f) shall have occurred and
be continuing with respect to the Borrower, or if for any other reason, as determined by the Swing
Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by
Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving



 


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Credit Loan was to have been made pursuant to the notice referred to in Section 2.7(b)
(the “Refunding Date”), purchase for Cash an undivided participating interest in the then
outstanding Swing Line Loans by paying to the Swing Line Lender an amount (the “Swing Line
Participation Amount”) equal to (i) such Revolving Credit Lender’s Revolving Credit Percentage
times (ii) the sum of the aggregate principal amount of Swing Line Loans then outstanding
which were to have been repaid with such Revolving Credit Loans.



(d) Whenever, at any time after the Swing Line Lender has received from any Revolving Credit
Lender such Revolving Credit Lender’s Swing Line Participation Amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender will distribute to
such Revolving Credit Lender its Swing Line Participation Amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s participating
interest was outstanding and funded and, in the case of principal and interest payments, to reflect
such Lender’s pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swing Line Loans then due); provided,
however, that in the event that such payment received by the Swing Line Lender is required
to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion
thereof previously distributed to it by the Swing Line Lender. If any amount required to be paid
by any Revolving Credit Lender to the Administrative Agent, for the account of the Swing Line
Lender, pursuant to Section 2.7(b) or Section 2.7(c) in respect of any Swing Line
Loan is not paid to the Swing Line Lender within three Business Days after the date such payment is
due, the Swing Line Lender shall so notify the Administrative Agent, who shall notify such
Revolving Credit Lender and such Revolving Credit Lender shall pay to the Administrative Agent, for
the account of the Swing Line Lender on demand (and thereafter the Administrative Agent shall
promptly pay to the Swing Line Lender) an amount equal to the product of (i) such amount, times
(ii) the daily average Federal Funds Effective Rate during the period from and including the date
such payment is required to the date on which such payment is immediately available to the Swing
Line Lender, times (iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required to be paid by the
Swing Line pursuant to Section 2.7(b) or Section 2.7(c) is not made available to
the Administrative Agent, for the account of the Swing Line Lender, by such Revolving Credit Lender
within three Business Days after the date such payment is due, the Administrative Agent on behalf
of the Swing Line Lender shall be entitled to recover from such Revolving Credit Lender, on demand,
such amount with interest thereon calculated from such due date at the rate per annum applicable to
Base Rate Loans under the Revolving Credit Facility.



(e) Each Revolving Credit Lender’s obligation to make the Loans referred to in Section
2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving
Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in Section 5; (iii)
any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of
this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other



 


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Revolving Credit Lender; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.



(f) The Swing Line Lender shall not be obligated to make any Swing Line Loans if (i) any
Revolving Credit Lender is at such time a Defaulting Lender or (ii) if the Swing Line Lender, in
its reasonable discretion, determines that there may be a risk of any Revolving Credit Lender
becoming a Defaulting Lender, unless, in either case, the Swing Line Lender has entered into
arrangements satisfactory to the Swing Line Lender to eliminate the Swing Line Lender’s actual or
potential Fronting Exposure with respect to such Revolving Credit Lender, including by cash
collateralizing such Revolving Credit Lender’s Revolving Credit Percentage of the outstanding Swing
Line Loans (such arrangements, the “Swing Line Back-Stop Arrangements”).




2.8 Incremental Loans.



(a) Borrower may at any time, by notice to Administrative Agent, request that, subject to the
following conditions and otherwise in accordance with this Agreement, Lenders and/or New Lenders
provide (w) one or more term loan facilities (the “Incremental Term Facilities”), (x) one
or more delayed draw term loan facilities (the “Incremental Delayed Draw Term Facilities”),
(y) additional Revolving Credit Commitments (the “Incremental Revolving Credit
Commitments”) and/or (z) one or more additional revolving credit facilities (the
“Incremental Revolving Facilities” and, together with the Incremental Term Facilities, the
Incremental Delayed Draw Term Facilities and the Incremental Revolving Credit Commitments,
collectively, the “Incremental Facilities” and individually an “Incremental
Facility”); provided, that on the date that any such Incremental becomes effective (the
“Incremental Facility Effective Date”): (i) no Default or Event of Default shall have
occurred and be continuing or result from such Incremental Facility and/or the Incremental Loans
made pursuant to such Incremental Facility; (ii) after giving effect to all Incremental Loans made
under such Incremental Facility of the applicable Incremental Facility Effective Date, the Borrower
will be in compliance on a pro forma basis with the provisions of Section 7.1(a) and
Section 7.1(b) (determined as of the last day of the most recent fiscal quarter for which
financial statements are required to be delivered under Section 6.1(a) or Section
6.1(b) as if such Incremental Loans had been funded and the application of such proceeds had
occurred on such last day); (iii) the terms of such Incremental Facility and the applicable
Incremental Loans are in compliance with Section 2.8(c) below; (iv) the Borrower shall have
received all approvals from all applicable Governmental Authorities necessary or, in the discretion
of the Administrative Agent, advisable in connection with such Incremental Facility; (v) the
Borrower shall have delivered to the Administrative Agent a legal opinion of each such special or
local counsel as may be reasonably requested by the Administrative Agent with respect to such
Incremental Facility and the applicable Incremental Facility Amendments; (vi) the Borrower shall
have delivered to the Administrative Agent title and extended coverage insurance for each real
property Collateral covering the amount of such Incremental Facility containing such endorsements
and affirmative coverage as the Administrative Agent may reasonably request; (vii) the
Administrative Agent and the Borrower shall execute conforming amendments to this Agreement and the
other Loan Documents (collectively, the “Incremental Facility Amendments”) to reflect such
Incremental Facility without the consent of any Lender, including, without limitation, to provide
for the terms set forth in the Incremental Facility Activation Notice described below or
Section 2.8(c), and


 


44









 





(viii) the Incremental Facility Effective Date shall not occur prior to five (5) Business Days
(or such shorter period as shall be agreed by the Administrative Agent) after the date which the
Administrative Agent receives the Incremental Facility Activation Notice.



(b) Upon receipt of such notice and an officer’s certificate as to the satisfaction of the
foregoing conditions, the Administrative Agent shall use all commercially reasonable efforts to
arrange for Lenders or New Lenders to provide such Incremental Facilities. Alternatively, any
Lender may commit to provide the full amount of any requested Incremental Facility and then offer
portions of such Incremental Facility to the other Lenders or other financial institutions, subject
to the approval of Administrative Agent. Nothing contained in this paragraph or otherwise in this
Agreement is intended or will be required to commit any Lender or any Agent to provide any portion
of any such additional Incremental Facility.



(c) The Incremental Loans (i) shall rank pari passu in right of payment and of
security with the Revolving Loans; (ii) shall not mature earlier than six months after the
Revolving Credit Termination Date if they are Incremental Term Loans or Incremental Delayed Draw
Term Loans (but may, subject to clause (iii) below, have amortization prior to such date) and shall
not mature prior to the Revolving Credit Termination Date if they are Incremental Revolving Credit
Commitments or Incremental Revolving Credit Facilities; (iii) shall not have a weighted average
life that is shorter than the then-remaining weighted average life of the then outstanding
Incremental Term Loans or Incremental Delayed Draw Term Loans, if any; and (iv) except as set forth
above, shall be treated substantially the same as (and in any event no more favorably than) the
Revolving Loans or other Incremental Term Loans and Incremental Delayed Draw Term Loans, as
applicable (in each case, including with respect to mandatory and voluntary prepayments);
provided that (x) if the Applicable Margin relating to any Incremental Term Facility or
Incremental Delay Draw Term Facility (as adjusted for upfront fees payable to the Lenders and
original issue discount with respect to such Incremental Facility) exceeds the Applicable Margin
relating to the Incremental Term Loans and the Incremental Delayed Draw Term Loans immediately
prior to the effectiveness of the applicable Incremental Facility Amendments by more than 0.25%,
the Applicable Margin relating to the Incremental Term Loans and the Incremental Delayed Draw Term
Loans then outstanding shall be adjusted to an amount equal to the Applicable Margin of the
Incremental Loans (as such Applicable Margin is adjusted to reflect for upfront fees payable to the
Lenders and original issue discount of the Incremental Loans) minus 0.25%, or (y) if the Applicable
Margin (as adjusted for upfront fees payable to the Lenders and original issue discount with
respect to such Incremental Facility) relating to any Incremental Revolving Credit Commitments or
Incremental Revolving Facility that have a maturity date that is earlier than six months after the
Revolving Credit Termination Date exceeds the Applicable Margin relating to the Revolving Credit
Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendments by
more than 0.50%, the Applicable Margin relating to the Revolving Credit Facility and any
Incremental Revolving Credit Facility then outstanding shall be adjusted to an amount equal to the
Applicable Margin of the Incremental Loans (as such Applicable Margin is adjusted to reflect for
upfront fees payable to the Lenders and original issue discount of the Incremental Facility) minus
0.50%.



(d) The Borrower and any one or more Lenders (including New Lenders) that agree to provide any
Incremental Facility shall execute and deliver to the Administrative Agent an Incremental Facility
Activation Notice specifying, in compliance with Section 2.8(c): (i) the



 


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amount of the Incremental Loans and the Incremental Facility or Incremental Facilities
involved; (ii) the applicable Incremental Facility Effective Date which shall be a Business Day,
(iii) the maturity date for the Incremental Loans made pursuant to such Incremental Facility or
Incremental Facilities; (iv) the amortization schedule for the Incremental Term Loans and
Incremental Delayed Draw Term Loans, as applicable, and (v) the Applicable Margin for the
Incremental Loans made pursuant to such Incremental Facility or Incremental Facilities. Any
additional bank, financial institution or other entity which, with the consent of the Borrower and
the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a
“Lender” under this Agreement in connection with any transaction described in Section
2.8(c) shall execute a New Lender Supplement (each, a “New Lender Supplement”),
substantially in the form of Exhibit B-2, whereupon (x) such bank, financial institution or
other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent
as if originally a party hereto and shall be bound by and entitled to the benefits of this
Agreement and (y) the Incremental Loans shall be treated as “Loans” for all purposes of this
Agreement, other than for purposes of the provisions of this Agreement specifically modified or
addressed in the Incremental Facility Activation Notice.




2.9 Repayment of Loans; Evidence of Debt.



(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Credit Lender, Swing Line Lender, Incremental Term Lender or
Incremental Delayed Draw Term Lender, as the case may be, (i) the then unpaid principal amount of
each Revolving Credit Loan on the Revolving Credit Termination Date, (ii) the then unpaid principal
amount of each Swing Line Loan on the Revolving Credit Termination Date, (iii) the principal amount
of each Incremental Term Loan of such Incremental Term Lender in installments according to the
amortization schedule set forth in the Incremental Facility Activation Notice with respect to the
applicable Incremental Term Loan Facility and (iv) the principal amount of each Incremental Delayed
Draw Term Loan of such Incremental Delayed Draw Term Lender in installments according to the
amortization schedule set forth in the Incremental Facility Activation Notice with respect to
applicable Incremental Delayed Draw Term Loan Facility. The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.16.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.



(c) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant
to Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded
(i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan
and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the
amount of any sum received by the Administrative Agent hereunder from the Borrower and each
Lender’s share thereof.


 


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(d) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 2.9(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the Administrative
Agent to maintain the Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the
Borrower by such Lender in accordance with the terms of this Agreement.



(e) The Borrower agrees that, upon request to the Administrative Agent by any Lender, the
Borrower will promptly execute and deliver to such Lender a promissory note of the Borrower
evidencing any Incremental Term Loans, Incremental Delayed Draw Term Loans, Revolving Credit Loans,
or Swing Line Loans, as the case may be, of such Lender, substantially in the forms of Exhibit
I-1, I-2, I-3, or I-4, respectively (an “Incremental Term
Note”, an “Incremental Delayed Draw Term Note”, a “Revolving Credit Note”, or a
“Swing Line Note”, respectively), with appropriate insertions as to date and principal
amount; provided, that delivery of Notes shall not be a condition precedent to the making
of Loans on a Borrowing Date.




2.10 Commitment Fees, etc.



(a) Revolving Credit Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a commitment fee for the
period from and including the Effective Date to the last day of the Revolving Credit Commitment
Period, computed at the Commitment Fee Rate applicable to the Revolving Credit Commitment on the
average daily amount of the Available Revolving Credit Commitment of such Lender during the period
for which payment is made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Credit Termination Date, commencing on the first of
such dates to occur after the date hereof.



(b) Incremental Delayed Draw Term Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Incremental Delayed Draw Term Lender a commitment fee
at the times and in the amounts provided pursuant to the applicable Incremental Facility Activation
Notice or Notices.



(c) Arrangers Fees. The Borrower agrees to pay to the Arrangers the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the Arrangers.



(d) Administrative Agent Fees. The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates from time to time agreed to in writing by the Borrower and
the Administrative Agent.




2.11 Termination or Reduction of Commitments.



(a) The Borrower shall have the right, upon not less than five Business Days’ irrevocable
notice delivered to the Administrative Agent (which notice shall specify the date and amount of
such commitment reduction), to terminate the Revolving Credit Commitments or, from time to time,
reduce the unused Revolving Credit Commitments; provided that (i) no such termination or reduction
of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans



 


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made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the
Total Revolving Credit Commitments; (ii) each such reduction shall be applied ratably among the
Revolving Credit Lenders to permanently reduce the Revolving Credit Commitments, and (iii) the
reduction to the aggregate Available Revolving Credit Commitments shall in no case be in an amount
which would cause the Revolving Credit Commitment of any Lender to be reduced by an amount which
exceeds the Available Revolving Credit Commitment of such Lender as in effect immediately before
giving effect to such reduction.



(b) Each Lender’s Revolving Credit Commitment shall terminate in its entirety on the Revolving
Credit Termination Date.



2.12 Optional Prepayments. The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to
the Administrative Agent at least three Business Days prior thereto in the case of Eurodollar Loans
and at least one Business Day prior thereto in the case of Base Rate Loans, which notice shall
specify the date and amount of such prepayment, whether such prepayment is of Incremental Term
Loans, Incremental Delayed Draw Term Loans or Revolving Credit Loans, and whether such prepayment
is of Eurodollar Loans or Base Rate Loans; provided, that (i) if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.22, and (ii) no prior notice is
required for the prepayment of Swing Line Loans. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Credit Loans that are Base Rate Loans and Swing Line
Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Incremental
Term Loans, Incremental Delayed Draw Term Loans and Revolving Credit Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof. Partial prepayments of Swing Line
Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof.




2.13 Mandatory Prepayments and Commitment Reductions.



(a) Unless the Required Prepayment Lenders shall otherwise agree, upon any sale, issuance or
incurrence of Indebtedness (other than Indebtedness permitted pursuant to Section 7.2) by
the Borrower, then upon receipt of the Net Cash Proceeds from such sale, issuance or incurrence,
the Incremental Term Loans and the Incremental Delayed Draw Term Loans shall be prepaid, and/or the
Revolving Credit Commitments shall be reduced, by an amount equal to the amount of such Net Cash
Proceeds, as set forth in Section 2.13(e).



(b) Unless the Required Prepayment Lenders shall otherwise agree, on any date the Borrower or
any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale the
Incremental Term Loans and the Incremental Delayed Draw Term Loans shall be prepaid, and/or the
Revolving Credit Commitments shall be reduced by an amount equal to the amount of such Net Cash
Proceeds, which prepayments and reductions shall be applied as set forth in Section
2.13(e); provided, that:


 


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(i) if (x) no Default or Event of Default would exist or arise therefrom and (y) not
later than ten (10) Business Days after the date of the receipt by the Borrower of the Net
Cash Proceeds from any Asset Sale, Borrower shall have delivered to Administrative Agent a
Reinvestment Notice stating the amount of such Net Cash Proceeds which is intended to be
used to acquire assets useful in the business of the Borrower or the applicable Restricted
Subsidiary prior to the Reinvestment Prepayment Date with respect to such Reinvestment
Notice, then the amount set forth in such Reinvestment Notice as intended to be reinvested
shall not be required to be applied as set forth in this Section 2.13(b);




(ii) to the extent such Net Cash Proceeds are from an Asset Sale of Collateral, the
assets in which such Net Cash Proceeds are reinvested must also be Collateral; and




(iii) if all or any portion of such Net Cash Proceeds are not reinvested in assets in
accordance with the applicable Reinvestment Notice (and in the case of Net Cash Proceeds
from an Asset Sale of Collateral, in compliance with clause (ii) above) on or prior to the
applicable Reinvestment Prepayment Date, such remaining portion shall be applied on the
applicable Reinvestment Prepayment Date to prepay Incremental Term Loans and/or the
Incremental Delayed Draw Term Loans and/or to reduce the Revolving Credit Commitments, all
in accordance with Section 2.13(e).



(c) Unless the Required Prepayment Lenders shall otherwise agree, on any date the Borrower or
any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Recovery Event, the
Incremental Term Loans and the Incremental Delayed Draw Term Loans shall be prepaid, and/or the
Revolving Credit Commitments shall be reduced by an amount equal to the amount of such Net Cash
Proceeds, which prepayments and reductions shall be applied as set forth in Section
2.13(e); provided, that




(i) if (x) no Default or Event of Default would exist or arise therefrom and (y) not
later than ten (10) Business Days after the date of the receipt by the Borrower of the Net
Cash Proceeds from any Recovery Event, Borrower shall have delivered to Administrative Agent
a Reinvestment Notice stating the amount of such Net Cash Proceeds which is intended to be
used to acquire assets useful in the business of the Borrower or the applicable Restricted
Subsidiary prior to the Reinvestment Prepayment Date with respect to such Reinvestment
Notice, then the amount set forth in such Reinvestment Notice as intended to be reinvested
shall not be required to be applied as set forth in this Section 2.13(c);




(ii) to the extent such Net Cash Proceeds are from a Recovery Event with respect to
Collateral, the assets in which such Net Cash Proceeds are reinvested must also be
Collateral; and




(iii) if all or any portion of such Net Cash Proceeds are not reinvested in assets in
accordance with the applicable Reinvestment Notice (and in the case of Net Cash Proceeds
from a Recovery Event with respect to Collateral, in compliance with clause (ii) above) on
or prior to the applicable Reinvestment Prepayment Date, such


 


49









 






remaining portion shall be applied on the applicable Reinvestment Prepayment Date to
prepay Incremental Term Loans and/or the Incremental Delayed Draw Term Loans and/or to
reduce the Revolving Credit Commitments, all in accordance with Section 2.13(e);
provided, however, that if any portion has not been used prior to the
applicable Reinvestment Prepayment Date and Borrower is diligently pursuing the reinvestment
of such amount, then such application of the remaining portion shall not be required for so
long as such reinvestment is being diligently pursued.



Notwithstanding the foregoing provisions of Section 2.13(b) and Section 2.13(c), up
to $50,000,000 of Net Cash Proceeds of Asset Sales and Recovery Events received by Borrower and its
Restricted Subsidiaries from and after January 1, 2010, shall be excluded from the mandatory
prepayment provisions contained in Section 2.13(b) and Section 2.13(c).



(d) Unless the Required Prepayment Lenders shall otherwise agree, commencing with fiscal year
2009, if there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date,
the Incremental Term Loans and the Incremental Delayed Draw Term Loans shall be prepaid and/or the
Revolving Credit Commitments shall be reduced, by an amount equal to 50% of such Excess Cash Flow,
as set forth in Section 2.13(e). Each such prepayment and commitment reduction shall be
made on a date (an “Excess Cash Flow Application Date”) no later than five (5) days after
the earlier of (i) the date on which the financial statements of the Borrower referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial statements are actually
delivered.



(e) Amounts to be applied in connection with prepayments and Commitment reductions made
pursuant to clauses (a), (b), (c), or (d) of this Section 2.13 shall be allocated,
first, if any Incremental Term Facility or Incremental Delayed Draw Term Facility is then
outstanding pro rata to such Incremental Facility or Facilities, to be applied (x) with respect to
any Incremental Term Facility, for the benefit of all Incremental Term Lenders in accordance with
their respective Incremental Term Percentages as a prepayment towards the Incremental Term Loans
and (y) with respect to any Incremental Delayed Draw Term Facility, the then unfunded Incremental
Delayed Draw Term Commitments will be reduced by the lesser of the amount of such prepayment
allocated to the Incremental Delayed Draw Term Facility and the then amount of the unfunded
Incremental Delayed Draw Term Commitments, and if the amount of such prepayment applied to such
Incremental Delayed Draw Term Facility is greater than the then unfunded Incremental Delayed Draw
Term Commitments, such excess shall be allocated, for the benefit of all applicable Incremental
Delayed Draw Term Lenders in accordance with their respective Incremental Delayed Draw Term
Percentages as a prepayment towards the funded Incremental Delayed Draw Term Loans, and
second, to reduce permanently the Revolving Credit Commitments; provided
that the Revolving Credit Commitments shall not be required to be reduced below
$200,000,000. Any such reduction of the Revolving Credit Commitments shall be accompanied by
prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as
so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and
Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess,
replace outstanding Letters of Credit and/or



 


50









 






deposit an amount in Cash into a cash collateral account subject to documentation reasonably
satisfactory to the Administrative Agent.



(f) The Borrower shall provide each of the Incremental Term Lenders and the Incremental
Delayed Draw Term Lenders with five (5) Business Days prior written notice of each such prepayment
and any Incremental Term Lender or Incremental Delayed Draw Term Lender, at its option, may elect,
so long as there are any Incremental Term Loans or Incremental Delayed Draw Term Loans outstanding,
not to accept its ratable portion of such prepayment in which event the provisions of the next
sentence shall apply. Any Incremental Term Lender or Incremental Delayed Draw Term Lender
declining such prepayment (each such Lender being a “Declining Term Loan Lender” and the
amount of such Lender’s ratable portion of such prepayment being the “Declined Term
Amount”) shall give written notice to the Administrative Agent substantially in the form of
Exhibit Q (each, a “Declining Lender Notice”), by 11:00 A.M. (New York City Time)
on the Business Day immediately preceding the date on which such prepayment would otherwise be made
and then the Declined Term Amount for all Declining Term Loan Lenders may be retained by the
Borrower; provided, that if part or all of a Declined Term Amount consists of proceeds from
the sale or other disposition of Collateral (“Collateral Proceeds”), the portion of any
Declined Term Amount that consists of Collateral Proceeds shall be paid to all Lenders that are not
Declining Term Loan Lenders (the “Accepting Term Loan Lenders,” and each such Accepting
Term Loan Lender being an “Accepting Term Loan Lender”) on a pro-rata basis based upon the
total amount outstanding (including all accrued but unpaid interest) then owed by Borrower to each
such Accepting Term Loan Lender along with any prepayment amount to be paid pursuant to this
Section 2.13; provided, further, that in the event that the Collateral
Proceeds exceed the total amount owed to Accepting Term Loan Lenders following mandatory
prepayments under this Section 2.13 (other than the Collateral Proceeds), such amount shall
be returned to the Borrower.




2.14 Conversion and Continuation Options.



(a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may be made only on the
last day of an Interest Period with respect thereto. The Borrower may elect from time to time to
convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days’ prior irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has, or the Majority Facility Lenders in respect of such
Facility have, determined in its or their sole discretion not to permit such conversions or (ii)
after the date that is one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.



(b) The Borrower may elect to continue any Eurodollar Loan as such upon the expiration of the
then current Interest Period with respect thereto by giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to
such



 


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Loans, provided that no Eurodollar Loan under a particular Facility may be continued
as such (i) when any Event of Default has occurred and is continuing and the Administrative Agent
has, or the Majority Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such continuations or (ii) after the date that is one month prior to
the final scheduled termination or maturity date of such Facility, and provided,
further, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.



2.15 Minimum Amounts and Maximum Number of Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional
prepayments of Eurodollar Loans and all selections of Interest Periods shall be in such amounts and
be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$1,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen
Eurodollar Tranches shall be outstanding at any one time.




2.16 Interest Rates and Payment Dates.



(a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin in effect for such day.



(b) Each Base Rate Loan shall bear interest for each day on which it is outstanding at a rate
per annum equal to the Base Rate in effect for such day plus the Applicable Margin in effect for
such day.



(c) If all or a portion of the principal amount of any Loan or the amount of any Reimbursement
Obligation or the amount of any other obligation hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such unpaid amount (to the extent legally
permitted) shall bear interest at a rate per annum that is equal to (i) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.16 plus 2% or (ii) in the case of Reimbursement Obligations or any other
obligations hereunder, the rate applicable to Base Rate Loans under the Revolving Credit Facility
plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until the date such amount is paid in full (after as well as before judgment).



(d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.




2.17 Computation of Interest and Fees.



(a) Interest, fees, commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate Loans on which
interest is calculated on the basis of the Prime Rate, the interest thereon shall be



 


52









 






calculated on the basis of a 365 (or 366, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of
the effective date and the amount of each such change in interest rate.



(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.16(a).



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



(a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or



(b) the Administrative Agent shall have received notice from the Majority Facility Lenders in
respect of the relevant Facility that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during such Interest
Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower
and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued
as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be
converted, on the last day of the then current Interest Period with respect thereto, to Base Rate
Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have
the right to convert Loans under the relevant Facility to Eurodollar Loans.




2.19 Pro Rata Treatment and Payments.



(a) Each borrowing by the Borrower from the Lenders hereunder and any reduction of the
Commitments of the Lenders and, except as provided otherwise in Section 2.27, each payment
by the Borrower on account of any commitment fee or Letter of Credit fee, shall be made pro
rata according to the respective Incremental Term Percentages, Incremental Delayed Draw
Term Percentages or Revolving Credit Percentages, as the case may be, of the relevant Lenders.
Each payment (other than prepayments) in respect of principal or interest in respect of the
Incremental Term Loans and Incremental Delayed Draw Term Loans and each



 


53









 






payment in respect of fees payable hereunder shall be applied to the amounts of such
obligations owing to the Lenders pro rata according to the respective amounts then
due and owing to the Lenders.



(b) Each payment (including each prepayment) of the Incremental Term Loans shall be allocated
among the Incremental Term Lenders pro rata based on the principal amount of such
Incremental Term Loans held by such Incremental Term Lenders, and shall be applied pro
rata to the installments of such Incremental Term Loans; provided however that, subject to
the provisions of Section 2.8(c), it shall not be a violation of this Section
2.19(b) if the Borrower pays different interest rates on Incremental Term Loans under different
Incremental Term Facilities. Amounts prepaid on account of the Incremental Term Loans may not be
reborrowed.



(c) Each payment (including each prepayment) of the Incremental Delayed Draw Term Loans shall
be allocated among the Incremental Delayed Draw Term Lenders pro rata based on the
principal amount of such Incremental Delayed Draw Term Loans held by such Incremental Delayed Draw
Term Lenders, and shall be applied pro rata to the installments of such Incremental
Delayed Draw Term Loans; provided however that, subject to the provisions of Section
2.8(c), it shall not be a violation of this Section 2.19(b) if the Borrower pays
different interest rates on Incremental Delayed Draw Term Loans under different Incremental Delayed
Draw Term Facilities. Amounts prepaid on account of the Incremental Delayed Draw Term Loans may
not be reborrowed.



(d) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving
Credit Lenders; provided however that, subject to the provisions of Section 2.8(c), it
shall not be a violation of this Section 2.19(b) if the Borrower pays different interest
rates on Revolving Credit Loans and/or Incremental Revolving Credit Loans under different
Incremental Revolving Credit Facilities. Each payment in respect of Reimbursement Obligations in
respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letters of
Credit.



(e) The application of any payment of Loans under any Facility (including optional and
mandatory prepayments) shall be made, first, to Base Rate Loans under such Facility and,
second, to Eurodollar Loans under such Facility. Each payment of the Loans (except in the
case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied
by accrued interest to the date of such payment on the amount paid.



(f) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars
and in immediately available funds. Any payment made by the Borrower after 12:00 Noon, New York
City time, on any Business Day shall be deemed to have been on the next following Business Day.
The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business



 


54









 






Day, such payment shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such extension would be
to extend such payment into another calendar month, in which event such payment shall be made on
the immediately preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable
rate during such extension.



(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share
of such borrowing is not made available to the Administrative Agent by such Lender within three
Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the Borrower.



(h) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.



(i) If at any time insufficient funds are received by and available to the Administrative
Agent to pay amounts of principal, unreimbursed L/C Obligations, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
L/C Obligations.


 


55









 






2.20 Requirements of Law.



(a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:




(i) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.21 and changes in the rate of tax on the
overall net income of such Lender);




(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or




(iii) shall impose on such Lender any other condition;



and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrower in writing (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled, and setting forth
in such notice, in reasonable detail, the basis and calculation of such amounts.



(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor (which request shall set forth, in
reasonable detail, the basis and calculation of the additional amount sought), the Borrower shall
pay to such Lender such additional amount or amounts as set forth in the aforesaid notice;
provided, that the Borrower shall not be required to compensate a Lender pursuant to this
clause (b) for any amounts incurred more than six months



 


56









 






prior to the date on which such Lender notified the Borrower of such Lender’s intention to
claim compensation therefor; provided, further, that, if the circumstances giving
rise to such claim have a retroactive effect, then such six month period shall be extended to
include the period of such retroactive effect.



(c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) and setting forth, in
reasonable detail, the basis and calculation of such amounts shall be conclusive in the absence of
manifest error. The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.




2.21 Taxes.



(a) All payments made by the Borrower or any Guarantor under this Agreement or any other Loan
Document shall be made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on any Agent or any Lender as a result of a present or former connection
between such Agent or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from such Agent’s or such Lender’s having executed, delivered or
performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld from
any amounts payable to any Agent or any Lender hereunder, the amounts so payable to such Agent or
such Lender shall be increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder that would have been received hereunder or under any other Loan Document had such
withholding not been required; provided, however, that neither the Borrower nor any
Guarantor shall be required to increase any such amounts payable to any Lender with respect to any
Non-Excluded Taxes (i) that are attributable to such Lender’s failure to comply with the
requirements of paragraph (e) or (f) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower or a Guarantor with respect to such
Non-Excluded Taxes pursuant to this paragraph (a). The Borrower or the applicable Guarantor shall
make any such required withholding and pay the full amount withheld to the relevant tax authority
or other Governmental Authority in accordance with applicable Requirements of Law.



(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



(c) Borrower shall indemnify the Administrative Agent and each Lender within twenty (20) days
after written demand therefor, for the full amount of any Non-Excluded



 


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Taxes or Other Taxes (including Non-Excluded Taxes or Other Taxes imposed on or attributable
to amounts payable under this Section 2.21) paid by the Administrative Agent or such Lender and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto (subject to
the remaining provisions of this Section 2.21 and provided that this Section 2.21(c) shall not
apply to the extent that any such amounts are compensated for by an increased payment under Section
2.21(a)). A certificate stating the amount of such payment or liability and setting forth in
reasonable detail the calculation thereof delivered to the Borrower by the Administrative Agent or
a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender shall be conclusive absent manifest error; provided, that if the
Borrower objects to any payment or liability within ten (10) days of receipt of such certificate,
the Lender or the Administrative Agent shall work in good faith with the Borrower to resolve any
such objection



(d) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for the account of the
relevant Agent or Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agents and the Lenders for any incremental taxes, interest or penalties that
may become payable by any Agent or any Lender as a result of any such failure. The agreements in
this Section shall survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.



(e) Each Lender (or Transferee) that is not a “United States Person” within the meaning of
Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) (i) two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI, (ii) in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest” a statement substantially in the form of Exhibit J and a Form W-8BEN,
or (iii) two copies of Internal Revenue Service Form W-8IMY (together with forms listed under
clauses (i) or (ii) hereof, as may be required) or any subsequent versions thereof or successors
thereto, in each case, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents together with such supplementary
documentation as may be prescribed by applicable law and reasonably requested by the Borrower or
the Administrative Agent to permit such Person to determine the withholding or deduction required
to be made. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes
a party to this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered certificate to the Borrower
(or any other form of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other



 


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provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this paragraph that such Non-U.S. Lender is not legally able to deliver.



(f) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate, provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender’s reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.



2.22 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such prepayment or of such
failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank Eurodollar market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.



2.23 Illegality. Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lender’s
Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with respect to such Loans
or within such earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period with respect thereto,
the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to
Section 2.22.


 


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2.24 Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.20, Section 2.21(a) or Section
2.23 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another lending office for
any Loans affected by such event with the object of avoiding the consequences of such event;
provided, that such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect or
postpone any of the obligations of any Borrower or the rights of any Lender pursuant to Section
2.20, Section 2.21(a) or Section 2.23.



2.25 Replacement of Lenders. If any Lender (a) requests reimbursement for amounts
owing pursuant to Section 2.20(a) or Section 2.21(a), (b) is affected in the manner
described in Section 2.23 and as a result thereof any of the actions described in such
Section 2.23 is required to be taken, (c) becomes a Defaulting Lender, or (d) refuses to
consent to an amendment, modification or waiver pursuant to Section 10.1, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse, all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an Assignee that shall assume
such obligations (which Assignee may be another Lender, if a Lender accepts such assignment),
provided that (i) the Borrower shall have paid to the Administrative Agent the registration and
processing fee (if applicable), (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents from such Assignee (to the
extent of such outstanding principal, accrued interest, fees and/or breakage costs) or the Borrower
(in the case of all other amounts), (iii) such Assignee is able to make, maintain or continue, as
applicable, Eurodollar Loans, and (iv) such assignment does not conflict with any applicable Law.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.




2.26 Back-Stop Arrangements.



(a) Section 2.7 and Section 3.9 contemplate Back-Stop Arrangements in certain
circumstances to support the issuance of Letters of Credit and funding of Swing Line Loans. The
Borrower, and to the extent provided by any Revolving Credit Lender (which is provided solely at
the option of such Revolving Credit Lender), such Revolving Credit Lender, hereby grants to the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers, the Revolving
Credit Lenders and the Swing Line Lender, a security interest in all such cash, deposit accounts
and all balances therein, and all other property provided as collateral pursuant to Section
2.7 and Section 3.9, and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, interest bearing deposit accounts at the Administrative Agent. For the
avoidance of doubt, to the extent that any other Person may have a claim, by virtue of an
intercreditor arrangement, tag-along right or any other term in any other document or instrument,
to share in any Back-Stop Arrangement provided pursuant to any of the aforementioned sections of
this Agreement, the L/C Issuers, the Swing Line Lender or the Administrative Agent, as applicable,
may take such provisions into account in determining whether any Back-Stop Arrangement is
satisfactory.


 


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(b) Notwithstanding anything to the contrary contained in this Agreement, Back-Stop
Arrangements provided by any Defaulting Lender pursuant to Section 2.7 or Section
3.9 to support the obligations of such Lender in respect of Letters of Credit or Swing Line
Loans shall be held and applied, first, to fund the participations of such Lender in Letters of
Credit and Swing Line Loans, or such Lender’s Revolving Credit Percentage of Revolving Credit Loans
used to repay L/C Obligations or Swing Line Loans with respect to which Back-Stop Arrangements were
provided, as applicable, and, second, to fund any interest accrued for the benefit of the Issuing
Lender or Swing Line Lender pursuant to Section 2.7(d) or Section 3.4(b) and
Section 2.16(c) allocable to such Lender.



(c) Back-Stop Arrangements shall be released (except as the Issuing Lender and/or the Swing
Line Lender and the Person providing such Back-Stop Arrangements may agree otherwise (as
applicable)) promptly following the earlier to occur of (i) the termination of such Lender’s status
as a Defaulting Lender; (ii) following the applicable Issuing Lender’s or the Swing Line Lender’s
(as applicable) good faith determination that there remain outstanding no L/C Obligations or Swing
Line Loans, as applicable, as to which it has actual or potential Fronting Exposure in relation to
such Defaulting Lender as to which it desires to maintain Back-Stop Arrangements; or
(iii) following the replacement of such Lender as provided for in Section 2.25 of this
Agreement and the assumption of such Defaulting Lender’s Commitments by the applicable replacement
Lender.



2.27 Defaulting Lenders. Notwithstanding anything to the contrary contained in this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:



(a) Waivers and Amendments. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.1.



(b) Reallocation of Loan Payments. (i) Any payment or prepayment of any portion
of the principal amount of Revolving Credit Loans of such Lender (whether voluntary or
mandatory, at maturity, pursuant to Section 8 or otherwise) shall be applied, first,
to the Revolving Credit Loans of other Lenders as if such Defaulting Lender had no Loans
outstanding, until such time as the Revolving Credit Extensions of each Revolving Credit
Lender shall equal its Revolving Credit Percentage of the Total Revolving Extensions of
Credit (without giving effect to Section 2.27(d)) ratably to the Revolving Credit
Lenders in accordance with their Revolving Credit Percentages of Revolving Credit Loans
being repaid or prepaid; second, to the then outstanding amounts (including interest
thereon) owed under the terms hereof by such Defaulting Lender to the Administrative Agent
or (to the extent the Administrative Agent has received notice thereof) to any other Lender,
ratably to the Persons entitled thereto, and third, to the posting of Cash Collateral in
respect of its Revolving Credit Percentage of the L/C Obligations and the Swing Line Loans,
ratably to the Issuing Lenders and the Swing Line Lender in accordance with their respective
applicable Fronting Exposures, and (ii) any other amounts thereafter received by the
Administrative Agent for the account of such Defaulting Lender (including amounts made
available to the Administrative Agent by such Defaulting Lender pursuant to Section
10.7) shall be applied, first, to the liabilities


 


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above referred to in item second of clause (i) above, and second, to the matters above
referred to in item third of clause (i) above. Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are reallocated to pay outstanding amounts owed
by a Defaulting Lender or to provide Back-Stop Arrangements pursuant to this Section
2.27(b) shall be deemed paid to such Defaulting Lender, and each Lender hereby
irrevocably consents thereto.



(c) Certain Fees. Such Defaulting Lender (i) shall not be entitled to receive
any commitment fee pursuant to Section 2.10(a) or Section 2.10(b) for any
period during which such Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been required to have been paid to
such Defaulting Lender); and (ii) shall only be entitled to receive any fee pursuant to
Section 3.3(a) for any period during which such Lender is a Defaulting Lender only
to extent allocable to its Revolving Credit Percentage of the stated amount Letters of
Credit for which Letter of Credit Back-Stop Arrangements have been provided by such Lender
pursuant to Section 3.9, as applicable (and the Borrower shall (x) be required to
pay to each Issuing Lender, as applicable, the amount of such fee allocable to its Fronting
Exposure arising from such Defaulting Lender and (y) not be required to pay the remaining
amount of such fee that otherwise would have been required to have been paid to such
Defaulting Lender).



(d) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During
any period in which there is a Defaulting Lender as to which the Issuing Lenders or the
Swing Line Lender (as applicable) has not received Back-Stop Arrangements acceptable to it
in respect of the related participation and funding obligations of such Defaulting Lender,
then for purposes of computing the amount of the obligation of each non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit or Swing Line Loans pursuant
to Section 2.4(b), Section 2.4(c) and Section 3.4, the “Revolving
Credit Percentage” of each non-Defaulting Lender shall be computed without giving effect to
the Revolving Credit Commitment of such Defaulting Lender; provided, that, in all
cases, the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans shall not exceed the positive
difference, if any, between (1) the Revolving Credit Commitment of such non-Defaulting
Lender and (2) the Revolving Extension of Credit of such Lender.



A Lender that has become a Defaulting Lender because of an event referenced in the definition of
Defaulting Lender may cure such status and shall no longer constitute a Defaulting Lender as a
result of such event when (i) such Defaulting Lender shall have fully funded or paid, as
applicable, all Loans, participations in respect of Letters of Credit or Swing Line Loans or other
amounts required to be funded or paid by it hereunder as to which it is delinquent (together, in
each case, with such interest thereon as shall be required to be paid to any Person as otherwise
provided in this Agreement), (ii) the Administrative Agent and the Borrower shall have received a
certification by such Defaulting Lender of its ability and intent to comply with the provisions of
this Agreement going forward, and (iii) each of (v) the Administrative Agent, (w) each Issuing
lender, (x) the Swing Line Lender, (y) any other Lender as to which a delinquent obligation was
owed, and (z) in the case of the failure to fund any Loan, the Borrower, shall have determined (and
notified the Administrative Agent) that they are satisfied, in their sole discretion, that such



 


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Defaulting Lender intends to continue to perform its obligations as a Lender hereunder and has all
approvals required to enable it, to continue to perform its obligations as a Lender hereunder. No
reference in this subsection to an event being “cured” shall preclude any claim by any Person
(including the Borrower) against any Lender that becomes a Defaulting Lender for such direct
damages as may otherwise be available to such Person arising from any failure to fund or pay any
amount when due hereunder or from any other event that gives rise to any Lender becoming a
Defaulting Lender.



SECTION 3.

LETTERS OF CREDIT





3.1 L/C Commitment.



(a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the
agreements of the other Revolving Credit Lenders set forth in Section 3.4(a), agrees to
issue standby letters of credit and, to the extent available from such Issuing Lender, commercial
letters of credit (collectively, the “Letters of Credit”) for the account of the Borrower
on any Business Day from the Effective Date until the Revolving Credit Termination Date in such
form as may be approved from time to time by such Issuing Lender; provided, that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of
the Available Revolving Credit Commitments would be less than zero. Each Letter of Credit shall
(i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the first
anniversary of its date of issuance and (y) the date which is five Business Days prior to the
Revolving Credit Termination Date; provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). The parties hereto agree that the Existing
Letters of Credit shall be deemed to be Letters of Credit issued under and pursuant to the
provisions of this Section 3.1(a).



(b) Notwithstanding the foregoing, no Letter of Credit shall be issued the Stated Amount of
which, when added to the L/C Obligations then outstanding (in each case exclusive of Payment
Amounts which are repaid on the date of, and prior to the issuance of, the respective Letter of
Credit) at such time would exceed (x) the L/C Commitment and (y) when added to the aggregate
outstanding principal amount of all Revolving Credit Loans and all Swing Line Loans then
outstanding, the Total Revolving Credit Commitment.



(c) No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder
if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed
any limits imposed by, any applicable Requirement of Law.



3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time to time
request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender and
the Administrative Agent at their addresses for notices specified herein an Application therefor,
completed to the satisfaction of such Issuing Lender, and such other certificates, documents and
other papers and information as such Issuing Lender may request.


 


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Upon receipt of any Application, an Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise
may be agreed to by such Issuing Lender and the Borrower (but in no event shall any Issuing Lender
be required to issue any Letter of Credit earlier than three Business Days after receipt by such
Issuing Lender and the Administrative Agent of the Application therefor and all such other
certificates, documents and other papers and information relating thereto). Promptly after
issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower and the Administrative Agent. Each Issuing Lender shall
promptly give notice to the Administrative Agent of the issuance of each Letter of Credit issued by
such Issuing Lender (including the amount thereof).




3.3 Fees and Other Charges.



(a) The Borrower will pay a fee on the aggregate drawable amount of all outstanding Letters of
Credit in consideration of the L/C Participations noted in Section 3.4 below at a per annum
rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Percentages and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date; provided, however, any such fee otherwise payable for
the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided cash collateral or other credit support arrangements satisfactory to the
applicable L/C Issuer pursuant to Section 3.1(c) shall be payable, to the maximum extent
permitted by applicable law, to the other Revolving Lenders in accordance with the upward
adjustments in their respective Revolving Credit Percentages allocable to such Letter of Credit
pursuant to Section 2.27(d), with the balance of such fee, if any, payable to the
applicable L/C Issuer for its own account. In addition, the Borrower shall pay to the relevant
Issuing Lender for its own account a fronting fee (in an amount to be agreed to by the Borrower and
such Issuing Lender) on the aggregate drawable amount of all outstanding Letters of Credit issued
by it, which fee shall be payable quarterly in arrears on the last day of each March, June,
September and December, and the Revolving Credit Termination Date.



(b) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of
Credit.




3.4 L/C Participations.



(a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and
risk, a participation interest as described below. Each L/C Participant shall be deemed to have
irrevocably accepted and purchased from such Issuing



 


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Lender and hereby accepts and purchases from each Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant’s own account and risk, an undivided interest equal to
such L/C Participant’s Revolving Credit Percentage in each Issuing Lender’s obligations and rights
under each Letter of Credit issued by such Issuing Lender hereunder and the amount of each draft
paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit issued by such
Issuing Lender for which such Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to the Administrative
Agent, for the account of such Issuing Lender, upon demand at the Administrative Agent’s Payment
Office (and thereafter the Administrative Agent shall promptly pay to such Issuing Lender) an
amount equal to such L/C Participant’s Revolving Credit Percentage of the amount of such draft, or
any part thereof, that is not so reimbursed. Upon any change in the respective Revolving Credit
Commitments or Revolving Credit Percentages of the Lenders pursuant to the terms hereof, it is
hereby agreed that, with respect to all such outstanding Letters of Credit and, in each case, any
related Payment Amounts, there shall be an automatic adjustment to the participations pursuant to
this Section 3.4 to reflect the new Revolving Credit Percentages of the assignor and
assignee Lender or of all Lenders with respective Revolving Credit Commitments, as applicable.



(b) If any amount required to be paid by any L/C Participant to the Administrative Agent, for
the account of an Issuing Lender, pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is not paid to such
Issuing Lender within three Business Days after the date such payment is due, such Issuing Lender
shall so notify the Administrative Agent, who shall notify such L/C Participant and such L/C
Participant shall pay to the Administrative Agent, for the account of such Issuing Lender on demand
(and thereafter the Administrative Agent shall promptly pay to such Issuing Lender) an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such payment is required to the date on which such payment
is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made
available to the Administrative Agent, for the account of such Issuing Lender, by such L/C
Participant within three Business Days after the date such payment is due, the Administrative Agent
on behalf of such Issuing Lender shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the rate per annum applicable to
Base Rate Loans under the Revolving Credit Facility. A certificate the Administrative Agent
submitted on behalf of such Issuing Lender submitted to any L/C Participant with respect to any
such amounts owing under this Section shall be conclusive in the absence of manifest error.



(c) Whenever, at any time after an Issuing Lender has made payment under any Letter of Credit
and has received from the Administrative Agent or any L/C Participant its pro rata
share of such payment in accordance with Section 3.4(a), such Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of collateral applied thereto by such Issuing Lender), or any payment of
interest on account thereof, such Issuing Lender will distribute to the Administrative Agent, for
the account of such L/C Participant (and thereafter the Administrative Agent shall promptly pay



 


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such L/C Participant), its pro rata share thereof; provided,
however, that in the event that any such payment received by such Issuing Lender shall be
required to be returned by such Issuing Lender, such L/C Participant shall return to the
Administrative Agent, for the account of such Issuing Lender (and thereafter the Administrative
Agent shall promptly pay to such Issuing Lender), the portion thereof previously distributed by
such Issuing Lender.



3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse each
Issuing Lender, on each date on which such Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by such Issuing Lender, for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts described in the
foregoing clauses (a) and (b) in respect of any drawing, collectively, the “Payment
Amount”). Each such payment shall be made to such Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in immediately available
funds. Interest shall be payable on each Payment Amount from the date of the applicable drawing
until payment in full at the rate set forth in (i) until the second Business Day following the date
of the applicable drawing, Section 2.16(b) and (ii) thereafter, Section 2.16(c).
Each drawing under any Letter of Credit shall (unless an event of the type described in clause (i)
or (ii) of Section 8(f) shall have occurred and be continuing with respect to the Borrower,
in which case the procedures specified in Section 3.4 for funding by L/C Participants shall
apply) constitute a request by the Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.5 of Base Rate Loans (or, at the option of the Administrative Agent and the Swing
Line Lender in their sole discretion, a borrowing pursuant to Section 2.7 of Swing Line
Loans) in the amount of such drawing. The Borrowing Date with respect to such borrowing shall be
the first date on which a borrowing of Revolving Credit Loans (or, if applicable, Swing Line Loans)
could be made, pursuant to Section 2.5 (or, if applicable, Section 2.7), if the
Administrative Agent had received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant Issuing Lender of such drawing under such Letter of Credit.



3.6 Obligations Absolute. The Borrower’s obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with
each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except for errors or omissions found
by a final and nonappealable decision of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Issuing Lender. The Borrower agrees that any
action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit
issued by it or the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards or care specified in



 


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the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of such Issuing Lender to the Borrower.



3.7 Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the relevant Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. The responsibility of the relevant Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit, in addition to any payment
obligation expressly provided for in such Letter of Credit issued by such Issuing Lender, shall be
limited to determining that the documents (including each draft) delivered under such Letter of
Credit in connection with such presentment appear on their face to be in conformity with such
Letter of Credit.



3.8 Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of
this Section 3 shall apply.



3.9 Lender Defaults. No Issuing Lender shall have any obligation to issue any Letter
of Credit if (a) any Revolving Credit Lender is at such time a Defaulting Lender or (b) such
Issuing Lender, in its reasonable discretion, determines that there may be a risk of one or more
Revolving Credit Lender becoming a Defaulting Lender, unless, in either case, such Issuing Lender
has entered into arrangements satisfactory to such Issuing Lender and the Borrower to eliminate
such Issuing actual or potential Fronting Exposure with respect to such Revolving Credit Lender,
including by cash collateralizing such Revolving Credit Lender’s Revolving Credit Percentage of L/C
Obligations then outstanding (such arrangements, the “Letter of Credit Back-Stop
Arrangements”).



SECTION 4.

REPRESENTATIONS AND WARRANTIES




To induce the Agents and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Borrower hereby represents and warrants to each
Agent and each Lender that:




4.1 Financial Condition.



(a) The unaudited pro forma balance sheet of the Borrower and its consolidated
Subsidiaries as of September 30, 2009 (including the notes thereto) (the “Pro Forma Balance
Sheet”), copies of which have heretofore been furnished to each Lender, has been prepared
giving effect to the transactions contemplated by this Agreement (as if such events had occurred on
such date) and based on the best information available to the Borrower as of the date of delivery
thereof, and presents fairly on a pro forma basis the estimated financial position
of the Borrower and its consolidated Subsidiaries as of September 30, 2009, assuming such
transactions had actually occurred at such date.



(b) The audited consolidated and unaudited consolidating balance sheets of the Borrower as of
December 31, 2008, and as of the most recent fiscal year for which financial



 


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statements are required to be delivered under Section 6.1(a) and the related
consolidated and consolidating statements of income and consolidated statements of cash flows for
the fiscal years ended on such dates, in the case of consolidated financial statements, reported
on by and accompanied by an unqualified report from a “Big Four” accounting firm or other
independent certified public accountant reasonably acceptable to the Administrative Agent, in each
case, present fairly the consolidated financial condition of the Borrower and its Subsidiaries as
at such date, and the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm of accountants and
disclosed therein).



(c) The unaudited consolidated and consolidating balance sheets of the Borrower as of
September 30, 2009, and as of the most recent fiscal quarter for which financial statements are
required to be delivered under Section 6.1(b) and the related consolidated and
consolidating statements of income and consolidated statements of cash flows for the fiscal quarter
and the year-to-date ended on such dates, in each case, present fairly the consolidated and
consolidating financial condition of the Borrower and its Subsidiaries as at such date, and the
consolidated and consolidating results of its operations and its consolidated cash flows for the
respective fiscal period then ended (subject to year end adjustments). All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein).



(d) The Borrower and its Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases other than those not
prohibited hereunder or unusual forward or long-term commitments, including, without limitation,
any interest rate or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that are not reflected in the most recent financial statements referred to in this
Section 4.1.



4.2 No Change. Since December 31, 2008 there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.



4.3 Organizational Existence; Compliance with Law. Each of the Borrower and its
Restricted Subsidiaries, other than Immaterial Subsidiaries, (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, (b) has the
organizational power and authority, and the legal right, to own and operate its Property, to lease
the Property it operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its business requires such
qualification except to the extent that the failure to be so qualified or be in good standing could
not reasonably be expected to have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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4.4 Organizational Power; Authorization; Enforceable Obligations. Each Loan Party has
the organizational power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow hereunder. Each Loan
Party has taken all necessary corporate or other action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings hereunder or the
execution, delivery, performance, validity or enforceability of this Agreement or any of the other
Loan Documents, except (i) consents, authorizations, filings and notices which have been obtained
or made and are in full force and effect; and certain consents, authorization, filings and notices
specifically identified on Schedule 4.4 which have not been obtained, but have been
requested and are anticipated to be received in the due course of business of the applicable party
from whom such consent or authorization has been requested and (ii) the filings referred to in
Section 4.19 and Section 6.11. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and binding obligation of
each Loan Party that is a party thereto, enforceable against each such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).



4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of
the proceeds thereof will not violate in any material respect any Requirement of Law or any
Contractual Obligation of the Borrower or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created
by the Security Documents). No Requirement of Law or Contractual Obligation applicable to the
Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.



4.6 No Material Litigation. No litigation, action, suit, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or against any of their
respective properties or revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby except proceedings of the Gaming Boards identified on
Schedule 4.4, or (b) that could reasonably be expected to have a Material Adverse Effect.



4.7 No Default. Neither the Borrower nor any of its Subsidiaries is in default under
or with respect to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.


 


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4.8 Ownership of Property; Liens. Each of the Borrower and its Restricted
Subsidiaries has marketable and insurable title to, or a valid leasehold interest in, all its
material real property, and good title to, or a valid leasehold interest in, all its other material
Property, and the Property is not subject to any Lien except as permitted by Section 7.3.



4.9 Intellectual Property. The Borrower and its Restricted Subsidiaries own, or are
licensed to use, all material Intellectual Property necessary for the conduct of their business as
currently conducted, taken as a whole. No material claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property in a manner that reasonably could be expected to
result in a Material Adverse Effect, nor does the Borrower know of any valid basis for any such
claim. The use of such Intellectual Property by the Borrower and its Restricted Subsidiaries does
not infringe on the rights of any Person in any material respect in a manner that reasonably could
be expected to result in a Material Adverse Effect.



4.10 Taxes. Each of the Borrower and each of its Restricted Subsidiaries has filed or
caused to be filed all federal, state and other material tax returns that are required to be filed
and has paid all material taxes shown to be due and payable on said returns or on any assessments
made against it or any of its Property and all other taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than those with respect to which the
amount or validity thereof is being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the books of the Borrower
or its Subsidiaries, as the case may be); and no tax Lien, other than Liens permitted under
Section 7.3(a), has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.



4.11 Federal Regulations. No part of the proceeds of any Loans will be used for
“purchasing” or “carrying” any “margin stock” (within the respective meanings of each of the quoted
terms under Regulation U as now and from time to time hereafter in effect) in a manner that is in
violation of any of the Regulations of the Board or for any purpose that otherwise violates the
provisions of the Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.



4.12 Labor Matters. There are no strikes or other labor disputes against the Borrower
or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened that
(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect.
Hours worked by and payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with
such matters that (individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. All payments due from the Borrower or any of its Subsidiaries on account
of employee health and welfare insurance that (individually or in the aggregate) could reasonably
be expected to have a Material Adverse Effect if not paid have been paid or accrued as a liability
on the books of the Borrower or the relevant Subsidiary.


 


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4.13 ERISA. None of (i) a Reportable Event, (ii) any failure by any Plan to satisfy
the minimum funding standard applicable to such Plan under Section 412 or 430 of the Code or
Section 302 or 303 of ERISA, or (iii) any “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) with respect to any Plan has occurred during the
five-year period prior to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan has complied in all material respects with the applicable provisions of
ERISA and the Code except where such noncompliance could not reasonably be expected to result in a
Material Adverse Effect. No termination of a Single Employer Plan has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Except those arising out of the operations of the Atlantic City
Entities (which arose prior to January 1, 2010 and all of the related liabilities have been paid),
neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan that has resulted or could reasonably be expected to result in a
material liability under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.



4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) which limits its ability to incur
Indebtedness.




4.15 Subsidiaries.



(a) The Subsidiaries listed on Schedule 4.15(a) constitute all the Subsidiaries of the
Borrower at the Effective Date. Schedule 4.15(a) sets forth as of the Effective Date the
name and jurisdiction of formation of each Subsidiary and, as to each Subsidiary, the percentage of
each class of Capital Stock owned by each Loan Party. Schedule 4.15(a) also identifies all
of the Unrestricted Subsidiaries and Immaterial Subsidiaries as of the Effective Date.



(b) As of the Effective Date, there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than (a) stock options granted to employees
or directors and directors’ qualifying shares, and (b) with respect to the Capital Stock of the
Borrower, subscriptions, options, warrants, calls, rights or other agreements or commitments to
which the Borrower is not a party) of any nature relating to any Capital Stock of the Borrower or
any Subsidiary, except as disclosed on Schedule 4.15(b).



4.16 Use of Proceeds. The proceeds of the Incremental Term Loans and Incremental
Delayed Draw Term Loans shall be used for general corporate purposes of the Borrower and its
Restricted Subsidiaries, including (i) to repay the revolving loans under the this



 


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Agreement and for fees and expenses associated therewith, (ii) to pay the fees and expenses
related to this amendment and restatement of this Agreement, and (iii) to pay for all or a portion
of the Expenses associated with the Unfinished Projects and any other development property. The
proceeds of the Revolving Credit Loans shall be used for general corporate purposes of the Borrower
and its Restricted Subsidiaries, including (i) to pay for all or a portion of the Expenses
associated with the Unfinished Projects and any other development property, and (ii) to pay the
fees and expenses related to this amendment and restatement of the Existing Credit Agreement;
provided that, the proceeds of the Revolving Credit Loans may not be used to make an optional
prepayment of Incremental Term Loans.



4.17 Environmental Matters. Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect:



(a) The Borrower and its Subsidiaries: (i) are, and within the period of all applicable
statutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) hold
all Environmental Permits (each of which is in full force and effect) required for any of their
current or intended operations or for any property owned, leased, or otherwise operated by any of
them; (iii) are, and within the period of all applicable statutes of limitation have been, in
compliance with all of their Environmental Permits; and (iv) reasonably believe that: each of
their Environmental Permits will be timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of any of them will be timely obtained and
complied with, without material expense; and compliance with any Environmental Law that is or is
expected to become applicable to any of them will be timely attained and maintained, without
material expense.



(b) Materials of Environmental Concern are not present at, on, under, in, or about any real
property now or formerly owned, leased or operated by the Borrower or any of its Subsidiaries, or
at any other location (including, without limitation, any location to which Materials of
Environmental Concern have been sent for re-use or recycling or for treatment, storage, or
disposal) which could reasonably be expected to (i) give rise to liability of the Borrower or any
of its Subsidiaries under any applicable Environmental Law or otherwise result in costs to the
Borrower or any of its Subsidiaries, or (ii) interfere with the Borrower’s or any of its
Subsidiaries’ continued operations, or (iii) impair the fair saleable value of any real property
owned or leased by the Borrower or any of its Subsidiaries.



(c) There is no judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law to which the Borrower or
any of its Subsidiaries is, or to the knowledge of the Borrower or any of its Subsidiaries will be,
named as a party that is pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened.



(d) Neither the Borrower nor any of its Subsidiaries has received any written request for
information, or been notified that it is a potentially responsible party under or relating to the
federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or with respect to any Materials of Environmental Concern.


 


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(e) Neither the Borrower nor any of its Subsidiaries has entered into or agreed to any consent
decree, order, or settlement or other agreement, or is subject to any judgment, decree, or order or
other agreement, in any judicial, administrative, arbitral, or other forum for dispute resolution,
relating to compliance with or liability under any Environmental Law.



(f) Neither the Borrower nor any of its Subsidiaries has assumed or retained, by contract or
operation of law, any liabilities of any kind, fixed or contingent, known or unknown, under any
Environmental Law or with respect to any Material of Environmental Concern.



4.18 Accuracy of Information, etc. No statement or information (other than
projections and pro forma financial information) contained in this Agreement, any other
Loan Document, the Confidential Information Memorandum or any other document, certificate or
statement furnished to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this Agreement or the
other Loan Documents, contained as of the date such statement, information, document or certificate
was so furnished (giving effect to any updates and/or supplements which were provided prior to the
date of making this representation), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or therein not misleading.
The financial projections and pro forma financial information in the material
referenced above are based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders that because the
projections are based on estimates and assumptions as to future events, they are inherently
uncertain and actual results during the period or periods covered by such projections may differ
from the projected results set forth therein by a material amount. There is no fact known to any
Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential Information Memorandum
or in any other documents, certificates and statements furnished to the Agents and the Lenders for
use in connection with the transactions contemplated hereby and by the other Loan Documents.




4.19 Security Documents.



(a) The Security Documents (including, to the extent that amendments to any Pledge Agreements
(Gaming Regulated) are required in connection with this Agreement, after the execution and delivery
of the applicable Post-Closing Gaming Pledge Agreement Amendment, each such Pledge Agreements
(Gaming Regulated)) are effective to create in favor of the Administrative Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. From and after execution and delivery thereof, the
Post-Closing Gaming Pledges will be effective to create in favor of the Administrative Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged Stock pledged in
favor of the Administrative Agent pursuant to the Pledge Agreements, when any certificates
representing such Pledged Stock that is a security under Section 8-102(a)(15) of the UCC are
delivered to the Administrative Agent, and in the case of the other Collateral described in the
Security Documents as to which a security interest can be perfected by filing of the UCC financing
statement, when UCC financing statements in



 


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appropriate form are filed in the offices specified on Schedule 4.19(a) (which
financing statements have been duly completed and delivered to the Administrative Agent), the
security interests created by the Security Documents securing such Collateral shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case
prior and superior in right to any other Person (except, in the case of Collateral other than
Pledged Stock, Liens permitted by Section 7.3).



(b) Each of the Mortgages is effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof; and each Mortgage shall (as of the Effective Date in the
case of the Mortgages filed on or prior to the Effective Date (after giving effect to the
amendments set forth on Schedule 4.19(b) (which have been executed and delivered to the
Administrative Agent)) and when such Mortgage is filed in the recording office designated by the
Borrower in the case of any Mortgage to be executed and delivered pursuant to Section
6.10(b)) constitute a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the Mortgaged Properties described therein and the proceeds
thereof, as security for the Obligations (as defined in the relevant Mortgage), in each case prior
and superior in right to any other Person (other than Persons holding Liens or other encumbrances
or rights permitted by the relevant Mortgage).



4.20 Solvency. The Borrower and its Subsidiaries, taken as a whole, are, and after
giving effect to the incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.



4.21 Senior Indebtedness. The Obligations constitute “Senior Debt” of the Borrower
under and as defined in the Indentures governing Subordinated Obligations or Permitted Refinancing
Subordinated Obligations. The obligations of each Subsidiary Guarantor under the Subsidiary
Guaranty constitute “Guarantor Senior Indebtedness” of such Subsidiary Guarantor under and as
defined in the Indentures governing Subordinated Obligations or Permitted Refinancing Subordinated
Obligations.



4.22 Regulation H. No Mortgage encumbers improved real property which is located in
an area that has been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 (except any Mortgaged Properties as to which such flood
insurance as required by Regulation H has been obtained and is in full force and effect as required
by this Agreement).



4.23 Gaming Laws. The Borrower and the Restricted Subsidiaries are in
compliance with all applicable Gaming Laws in all respects which are applicable to the
operations, businesses and prospects of the Borrower and the Restricted Subsidiaries, taken as a
whole except where such noncompliance could not reasonably be expected to result in a Material
Adverse Effect.



4.24 Insurance Proceeds. The Estimated Business Interruption Insurance included in
the most recent certificate delivered by the Borrower pursuant to Section 6.2 is a



 


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good faith estimate of the aggregate amount to be received with respect to business
interruption insurance for the applicable periods with respect to the Property of the Borrower or
its Restricted Subsidiaries.



4.25 Sugarcane Bay Lease. As of the Effective Date, the Borrower and the applicable
Restricted Subsidiary are in the process of negotiating modifications to the Sugarcane Bay Lease
with the lessor thereunder.



SECTION 5.

CONDITIONS PRECEDENT




5.1 Conditions to Initial Extension of Credit. The agreement of each Lender to make
the initial extension of credit requested to be made by it hereunder is subject to the
satisfaction, prior to or concurrently with the making of such extension of credit on the Effective
Date, of the following conditions precedent:



(a) Loan Documents. The Administrative Agent shall have received (i) this Agreement,
executed and delivered by a duly authorized officer of the Borrower, the Administrative Agent and
each Lender, (ii) a ratification of the Subsidiary Guaranty, executed and delivered by a duly
authorized officer of each Subsidiary Guarantor, (iii) a ratification of each of the Security
Documents (including the Mortgages with respect to each of the Mortgaged Properties) executed and
delivered by each party thereto, (iv) if not previously delivered pursuant to the Existing Credit
Agreement, a Lender Addendum executed and delivered by each Lender with a Revolving Credit
Commitment and accepted by the Borrower, and (v) such changes to the other Loan Documents as may be
reasonably requested by the Administrative Agent or the Lead Arrangers to reflect the amendment and
restatement of the Existing Credit Agreement and the changes incorporated as a result of such
amendment and restatement pursuant to this Agreement.



(b) No Default. No Default or Event of Default shall have occurred and be continuing
on the Effective Date after giving effect to the extensions of credit to be made on such date and
the application of the proceeds of such extensions of credit.



(c) Financial Statements, Pro-Forma Balance Sheet and Projections. The Lenders shall
have received (i) audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of fiscal year 2008 and the related audited consolidated statements of
income and of cash flows for such year, (ii) the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of the most recent fiscal quarter end 45
days prior to the Effective Date and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the end of such quarter and
(iii) the Pro Forma Balance Sheet, together with customary pro forma financial statements and
financial projections reasonably acceptable to the Lead Arranger. There shall not have occurred
any event, development or circumstance since December 31, 2008 that has caused or could reasonably
be expected to have a Material Adverse Effect or that calls into question in any material respect
the projections previously supplied to the Lenders or any of the material assumptions on which such
projections were prepared.


 


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(d) Approvals. All governmental and third party approvals (excluding only the
consents and approvals listed on Schedule 4.4 attached hereto) necessary or, in the
discretion of the Administrative Agent, advisable in connection with the transactions contemplated
by this Agreement and the continuing operations of the Borrower and its Subsidiaries as presently
conducted shall have been obtained and be in full force and effect or otherwise applied for or
requested (and the Borrower has no reason to believe that they will not be obtained in due course),
and all applicable waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose adverse conditions on
the financing contemplated hereby.



(e) Termination of Revolving Credit Commitments; Amendment and Restatement of the Existing
Credit Agreement. The Administrative Agent shall have received evidence (in a form reasonably
satisfactory to the Administrative Agent) that the Borrower has terminated all Revolving Credit
Commitments under the Existing Credit Agreement as of the Effective Date and paid all amounts due
to the Lenders under the Existing Credit Agreement (as in effected immediately prior to the
amendment restatement pursuant to this Agreement). In connection with the foregoing and the
execution and delivery of this Agreement, the Existing Credit Agreement shall be simultaneously
amended and restated pursuant to the terms hereof, and arrangements satisfactory to the
Administrative Agent shall have been made for the amendment of Liens and security interests granted
in connection therewith.



(f) Fees. The Arrangers, Lenders and the Administrative Agent shall have received all
fees required to be paid, and all expenses for which invoices have been presented (including
reasonable fees, disbursements and other charges of counsel to the Agents), on or before the
Effective Date. All such amounts will be paid with proceeds of Loans made on the Effective Date
and will be reflected in the funding instructions given by the Borrower to the Administrative Agent
on or before the Effective Date.



(g) Business Plan. The Lenders shall have received a business plan for fiscal years
2010-2014 and a satisfactory written analysis of the business and prospects of the Borrower and its
Subsidiaries for the period from the Effective Date through the final maturity of the Facilities,
all in form and substance reasonably satisfactory to the Lenders.



(h) Solvency Analysis. The Lenders shall have received a satisfactory solvency
certificate and analysis by the chief financial officer of the Borrower in a form reasonably
acceptable to the Administrative Agent, which shall document the solvency of the Borrower and its
Restricted Subsidiaries considered as a whole after giving effect to the transactions contemplated
hereby, in form and substance reasonably satisfactory to the Lenders.



(i) Lien Searches. The Administrative Agent shall have received the results of recent
lien searches in each of the jurisdictions in which Uniform Commercial Code financing statement or
other filings or recordations should be made to evidence or perfect security interests in all or
any portion of the assets of the Loan Parties (including, without limitation, tax liens, judgments,
litigation, trademark liens, ship mortgages and UCC filings), and such searches shall reveal no
liens on any of the assets of the Loan Parties, except for Liens permitted by Section 7.3.


 


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(j) Flood Insurance. The Administrative Agent shall have received (i) a policy of
flood insurance that (x) covers any parcel of improved real property that is encumbered by any
Mortgage that is in a designated flood zone and for which insurance can be obtained under the
National Flood Insurance Act of 1968; (y) is written in an amount not less than the outstanding
principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such
real property or the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, whichever is less; and (z) has a term
ending not later than the maturity of the indebtedness secured by such Mortgage or that may be
extended to such maturity date; and (ii) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board.



(k) Closing Certificate. The Administrative Agent shall have received a certificate
of each Loan Party, dated the Effective Date, substantially in the form of Exhibit K, with
appropriate insertions and attachments.



(l) Legal Opinions. The Lenders shall have received satisfactory opinions of counsels
(including opinions of appropriate local counsels in relevant jurisdictions) to the Borrower and
the Guarantors (which shall cover, among other things, authority, legality, validity, binding
effect and enforceability of this Agreement and the other Loan Documents as amended or otherwise
modified in connection with this Agreement and the validity of the Liens pursuant to the Security
Documents). Each such legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as are customary for similar transactions.



(m) Corporate Documents. Such certificates with respect to resolutions or other
action, incumbency certificates and/or other certificates of Responsible Officers as the
Administrative Agent or the Lenders may reasonably require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party is a party.



(n) No Litigation. There is no action, suit, investigation or proceeding pending or,
to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental
authority that could reasonably be expected to have a Material Adverse Effect.



(o) Pledged Stock; Stock Powers. To the extent not previously delivered, the
Administrative Agent shall have received the certificates representing the shares of Capital Stock
that are securities under Section 8-102(a)(15) of the UCC pledged pursuant to the Pledge
Agreements, together with an undated power or assignment for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof; provided, the Lenders and
Administrative Agent acknowledge that the perfection of security interest in Capital Stock subject
to the Pledge Agreements (Gaming Regulated) requires prior approval of such Pledge Agreements
(Gaming Regulated) by the applicable Gaming Boards.



(p) Filings, Registrations and Recordings. The Administrative Agent shall have
received evidence reasonably satisfactory to the Administrative Agent and the Arrangers that the
Liens created pursuant to the Security Document continue on and after the Effective Date to be
valid and perfected Liens (excluding any Liens that can only be perfected by entering



 


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into control agreements), prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), and that each document (including,
without limitation, any Uniform Commercial Code financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative Agent to be filed, registered
or recorded in order to maintain such perfection and priority in favor of the Administrative Agent,
for the benefit of the Secured Parties shall have been filed, registered or recorded or shall have
been delivered to the Administrative Agent and be in proper form for filing, registration or
recordation.



(q) Title Insurance. The Administrative Agent shall have received, and the title
insurance company shall have issued such endorsements to the mortgagee’s extended coverage (ALTA)
title insurance policy in respect of each Mortgaged Property as the Administrative Agent may
reasonably request.



(r) Insurance. To the extent not previously delivered, the Administrative Agent shall
have received insurance certificates evidencing that the requirements of this Agreement and the
Mortgages with respect to the maintenance of insurance have been satisfied.



5.2 Conditions to Each Extension of Credit. The agreement of each Lender to make any
extension of credit requested to be made by it hereunder on any date (including, without
limitation, its initial extension of credit on the Effective Date) is subject to the satisfaction
of the following conditions precedent:



(a) Representations and Warranties. Each of the representations and warranties made
by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date.



(b) No Default. No Default or Event of Default shall have occurred and be continuing
on such date or after giving effect to the extensions of credit requested to be made on such date
and the application of the proceeds of such extensions of credit.



(c) Pro Forma Compliance. With respect to the closing of any Incremental Facility,
after giving pro forma effect to the funding of all Incremental Loans funded under such Incremental
Facility on the Incremental Facility Effective Date, and the application of the proceeds thereof on
such funding date, the Borrower is in pro forma compliance with the Financial Condition Covenants
set forth in Section 7.1 as of the last day of the most recently ended fiscal quarter of
the Borrower, with respect to which financial statements have been delivered or required to be
delivered pursuant to Section 6.1(a) or Section 6.1(b), as if such Incremental
Loans had been outstanding on the last day of such fiscal quarter of the Borrower for testing
compliance therewith.


 


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SECTION 6.

AFFIRMATIVE COVENANTS




The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:




6.1 Financial Statements. Furnish to the Administrative Agent:



(a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, (i) a copy of the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in each case in comparative
form the figures as of the end of and for the previous year, reported on without a “going concern”
or like qualification or exception, or qualification arising out of the scope of the audit, by a
“Big Four” accounting firm or other independent certified public accountant reasonably acceptable
to the Administrative Agent; and (ii) supporting consolidating financial information in a form
reasonably acceptable to the Administrative Agent;



(b) as soon as available, but in any event not later than 45 days after the end of each of the
first three quarterly periods of each fiscal year of the Borrower, (i) the unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures as of the end of and for the corresponding period in the previous
year, and (ii) supporting consolidating financial information in a form reasonably acceptable to
the Administrative Agent, in each case; certified by a Responsible Officer as being fairly stated
in all material respects (subject to normal year-end audit adjustments); and



(c) as soon as available, but in any event not later than 45 days after the end of each month
occurring during each fiscal year of the Borrower (other than the third, sixth, ninth and twelfth
such month), the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as at
the end of such month and the related unaudited consolidated statement of income for such month and
the portion of the fiscal year through the end of such month, setting forth in each case in
comparative form the figures as of the end of and for the corresponding period in the previous
year, certified by a Responsible Officer as being fairly stated in all material respects (subject
to year-end audit adjustments);



all such financial statements to be complete and correct in all material respects and to be
prepared in reasonable detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).



6.2 Certificates; Other Information; Construction Monitoring. Furnish to the
Administrative Agent and, in case of clauses (g) and (h) hereof, to the Construction Consultant:



(a) concurrently with the delivery of the financial statements referred to in Section
6.1(a), a certificate of the independent certified public accountants reporting on such



 


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financial statements stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in such certificate (it being
understood that such certificate shall be limited to the items that independent certified public
accountants are permitted to cover in such certificates pursuant to their professional standards
and customs of the profession);



(b) concurrently with the delivery of any financial statements pursuant to Section
6.1, (i) a certificate of a Responsible Officer stating that, to the best of such Responsible
Officer’s knowledge, each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual financial statements, a
Compliance Certificate containing all information and calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may
be;



(c) as soon as available, and in any event no later than 45 days after the end of each fiscal
year of the Borrower, detailed quarterly consolidated budgets for such fiscal year (including
quarterly projected consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as of the end of the following fiscal year, and the related quarterly consolidated statements of
projected cash flow, quarterly projected changes in financial position and quarterly projected
income), and, as soon as available, significant revisions, if any, of such budget and projections
for such fiscal year (collectively, the “Projections”), which Projections shall in each
case be accompanied by a certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any material respect;



(d) if the Borrower is not required to file financial statements with the SEC, within 45 days
after the end of each fiscal quarter of the Borrower, a narrative discussion and analysis of the
financial condition and results of operations of the Borrower and its consolidated Subsidiaries for
such fiscal quarter and for the period from the beginning of the then current fiscal year to the
end of such fiscal quarter, as compared to the portion of the Projections covering such periods and
to the comparable periods of the previous year;



(e) within five days after the same are sent, copies (or if such statements are publicly
available, notice of such availability) of all financial statements and reports that the Borrower
sends to the holders of any class of its debt securities or public equity securities and, within
five days after the same are filed, copies of all financial statements and reports that the
Borrower makes to, or files with, the SEC;



(f) promptly, such additional financial and other information as any Lender may from time to
time reasonably request;



(g) promptly upon completion of the respective Construction Budget, Construction Plan and
Construction Timetable for any Unfinished Project, a copy of such



 


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Construction Budget, Construction Plan and Construction Timetable and thereafter a copy of
each subsequent material amendment, modification or supplement to any such Construction Budget,
Construction Plan or Construction Timetable promptly following such amendment, modification or
supplement;



(h) for each Unfinished Project, on or before the 20th day of each calendar month
(commencing with the first calendar month after (i) the Effective Date for each Project that is an
Unfinished Project on the Effective Date and (ii) the Commencement of Construction for any Project
that becomes an Unfinished Project after the Effective Date) until such Project is no longer an
Unfinished Project, an updated line item Construction Budget and construction disbursement and
payment reconciliation for the previous month, in each case for such Unfinished Project, and all
other information with respect to such Unfinished Project reasonably requested by the Construction
Consultant with respect to the preparation of the Monthly Construction Progress Report referred to
in Section 6.2(i) below;



(i) as soon as available, and in any event no later than 10 days after the end of each
calendar month for which the Borrower is required to comply with Section 6.2(h) above
(provided, that, if the Borrower has delivered notice to the Administrative Agent that the
Borrower intends to replace the Construction Consultant, then such period shall be extended an
additional thirty (30) days), the Borrower shall cause the Construction Consultant to deliver a
construction progress report to the Administrative Agent in a form reasonably acceptable to the
Administrative Agent (the “Monthly Construction Progress Report”) detailing its findings
during the construction of each Unfinished Project through the month for which information was
delivered to the Construction Consultant pursuant to clauses (g) and (h) above, including but not
limited to (i) all Expenses associated with the applicable Unfinished Project with respect to its
Construction Budget, (ii) the progress of the applicable Unfinished Project with respect to its
Construction Plan, and (iii) the status of the applicable Unfinished Project with respect to its
Construction Timetable; and



(j) if all or any portion of the Condo Component is to be developed by the Borrower or any of
its Restricted Subsidiaries, as soon as practicable, the Borrower shall deliver to the
Administrative Agent, with respect to the Condo Component, the following information and materials
(collectively, the “Condo Information Package”):




(i) the construction budget, the construction timetable and the construction plans and
specifications; and




(ii) the organizational documents of any Person formed as a Restricted Subsidiary to
own and/or develop the Condo Component.



The Borrower shall cause representatives of the Borrower to be available to discuss the Condo
Information Package (and its contents) with the Administrative Agent and the Construction
Consultant, and shall attempt to answer and resolve any questions the Administrative Agent may have
concerning the Condo Information Package.



6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its material obligations of



 


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whatever nature, except (a) where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings, if any, and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its Subsidiaries, as the case may be or
(b) to the extent that failure to do so could not be reasonably expected to have a Material Adverse
Effect.




6.4 Conduct of Business and Maintenance of Existence, etc.



(a) (i) Preserve, renew and keep in full force and effect its corporate or other existence and
(ii) take all reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect;



(b) comply with all Contractual Obligations and Requirements of Law, except (i) to the extent
that failure to comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect, or (ii) with respect to Contractual Obligations and/or Requirements of Law
being diligently contested in good faith; provided that the result of such contest could
not reasonably be expected to have a Material Adverse Effect; and



(c) conduct the operations of the Property subject to the Indiana Power of Attorney (the
“Indiana Gaming Property”) in a manner so as to avoid any authorization by the Indiana
Gaming Commission for the trustee under the Indiana Power of Attorney to conduct the operations at
the Indiana Gaming Property unless such authorization and conducting of business could not
reasonably be expected to have a Material Adverse Effect.



6.5 Maintenance of Property; Insurance. (a) Except as in the aggregate could not
reasonably be expected to result in a Material Adverse Effect, keep all Property and systems useful
and necessary in its business in good working order and condition, ordinary wear and tear excepted
and (b) maintain with financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks (but including in any event
public liability and business interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business.



6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of
records and accounts in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to the business and
activities of the Borrower and its consolidated Subsidiaries and (b) subject to any Gaming Laws
restricting such actions, permit representatives of any Lender, coordinated through the
Administrative Agent, to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and, if no Default or Event of Default has
occurred, upon reasonable advance notice and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries and with its
independent certified public accountants.


 


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6.7 Notices. Promptly give notice to the Administrative Agent of:




(a) the occurrence of any Default or Event of Default;



(b) any (i) default or event of default under any Contractual Obligation of the Borrower or
any of its Subsidiaries or (ii) litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect;



(c) any litigation or proceeding against the Borrower or any of its Restricted Subsidiaries in
which the amount involved is $10,000,000 or more and not covered by insurance or which could
reasonably be expected to have a Material Adverse Effect;



(d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any material required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan;



(e) in any event within ten days of obtaining knowledge thereof, the issuance of any
authorization by the Indiana Gaming Commission for the trustee under the Indiana Power of Attorney
to conduct the operations at the Indiana Gaming Property; and



(f) in any event within ten days of obtaining knowledge thereof, any development, event, or
condition that, individually or in the aggregate with other developments, events or conditions,
could reasonably be expected to result in a Material Adverse Effect.



Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein and stating what
action the Borrower or the relevant Restricted Subsidiary proposes to take with respect thereto.




6.8 Environmental Laws.



(a) Except as in the aggregate could not reasonably be expected to result in a Material
Adverse Effect, comply in all material respects with, and ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain
and comply in all material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental Laws.



(b) Except as in the aggregate could not reasonably be expected to result in a Material
Adverse Effect, conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly



 


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comply in all material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.



6.9 Control Agreements. Not later than 30 days after delivery of a written request
from either the Administrative Agent or the Arrangers (which request can only be delivered if an
Event of Default has occurred and is continuing), enter into a control agreement, in form and
substance reasonably satisfactory to the Arrangers and the Administrative Agent, with respect to
each Deposit Account (as defined in the UCC) and each Securities Account (as defined in the UCC) of
the Borrower and the Restricted Subsidiaries, each such control agreement to be among the
Administrative Agent, the Borrower or Restricted Subsidiary that is the holder of the applicable
Deposit Account or Securities Account and the financial institution at which such Deposit Account
or Securities Account is maintained




6.10 Additional Collateral, etc.



(a) With respect to any Property that is of the type that would otherwise be subject to Liens
created under the Security Documents and is acquired after the Effective Date by any Loan Party
(other than (w) any Property described in paragraph (b) or paragraph (c) of this Section; (x) any
Property, the pledge of which requires a consent of a third party that has not been obtained;
provided that the Borrower and/or the applicable Loan Party has taken commercially reasonable
efforts to obtain such consent; (y) any Property subject to a Lien expressly permitted by
Section 7.3(g), (h) and (s); and (z) any interest in any real property) and
subject to compliance with applicable Gaming Laws (which the Borrower agrees and agrees to cause
the applicable Loan Party to pursue approvals to permit any such pledges) as to which the
Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien,
promptly (i) execute and deliver to the Administrative Agent such amendments to the Security
Documents or such other documents as the Administrative Agent deems necessary or advisable to grant
to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such
Property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for
the benefit of the Secured Parties, a perfected first priority security interest in such Property
(subject only to Liens permitted pursuant to Section 7.3 of this Agreement), including
without limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Documents or by law or as may be requested by the
Administrative Agent; provided, if the Borrower gives notice that a Property acquired after
the Effective Date will be used for the Condo Component, the Borrower will have thirty (30) days to
execute and deliver to the Administrative Agent such amendments to the Security Documents or such
other documents as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a security interest in such Property
and if such Property is transferred in a transaction permitted pursuant to Section 7.7(n),
no such security interest shall be required.



(b) With respect to (x) any fee interest in any real property having a value (together with
improvements thereof) of at least $1,500,000 and (y) any leasehold interest in any real property
pursuant to leases entered into by any Loan Party, as a tenant, with gross annual rent payments for
each lease in excess of $250,000 or the term in excess of three (3) years), in each case acquired
or entered into after the Effective Date by the Loan Parties (other than (w) any leasehold
interests with respect to solely office space; (x) any leasehold interest if the



 


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granting of a mortgage requires a consent of a third party that has not been obtained;
provided that the Borrower and/or the applicable Loan Party has taken commercially reasonable
efforts to obtain such consent; (y) any leasehold interest if a memorandum of lease for such
leasehold has not been recorded; provided that the Borrower and/or the applicable Loan Party has
taken commercially reasonable efforts to obtain such memorandum of lease; and (z) any such real
property subject to a Lien expressly permitted by Section 7.3(g) and Section
7.3(h)), promptly (i) execute and deliver a first priority Mortgage in favor of the
Administrative Agent, for the benefit of the Secured Parties, covering such real property (subject
only to Liens permitted pursuant to Section 7.3 of this Agreement), (ii) if requested by
the Administrative Agent in writing, provide the Lenders with (x) title and extended coverage
insurance covering such real property in an amount at least equal to the purchase price of such
real property (or such other amount as shall be reasonably specified by the Administrative Agent)
as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any
consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in
connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory
to the Administrative Agent and (iii) if reasonably requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters opined on with respect to the
original version of loan documents delivered by the Borrower, which opinions shall be in form and
substance and from counsel, reasonably satisfactory to the Administrative Agent; provided,
if the Borrower gives notice that a Property acquired after the Effective Date will be used for the
Condo Component, the Borrower will have thirty (30) days to execute and deliver to the
Administrative Agent such amendments to the Security Documents or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a security interest in such Property and if such Property is
transferred in a transaction permitted pursuant to Section 7.7(n), no such security
interest shall be required. For purposes of this Section 6.10(b), the Sugarcane Bay Lease
shall not be deemed to have been acquired or entered into until the earlier of (A) the date 180
days after the Effective Date and (B) the date that the Borrower and the applicable Restricted
Subsidiary entered into an amended lease that is intended by the parties to be the permanent lease
with respect to the property subject to the Sugarcane Bay Lease.



(c) With respect to any new Domestic Restricted Subsidiary (other than an Immaterial
Subsidiary) created or acquired after the Effective Date and, to the extent that it would not
result in an adverse tax, foreign gaming or foreign law consequence that is material for or with
respect to such Subsidiary, any new Foreign Restricted Subsidiary created or acquired after the
Effective Date (which in each case, for the purposes of this paragraph, shall include any existing
Subsidiary that ceases to be an Unrestricted Subsidiary by designation or otherwise) and subject to
compliance with applicable Gaming Laws (which the Borrower agrees and agrees to cause the
applicable Loan Party to pursue approvals to permit any such security interests), by any Loan
Party, promptly (i) execute and deliver to the Administrative Agent such amendments to the Security
Documents as the Administrative Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the
Capital Stock of such new Domestic Restricted Subsidiary (subject only to Liens permitted pursuant
to Section 7.3 of this Agreement) and in the 66% of the total outstanding Capital Stock of
such new Foreign Restricted Subsidiary, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock that are securities under Section 8-102(a)(15) of the UCC, together
with undated stock powers or assignments, in blank, executed and delivered



 


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by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii)
cause such new Subsidiary (A) to become a party to the Loan Documents and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of the Secured Parties
a perfected first priority security interest in the Collateral described in the Security Documents
with respect to such new Subsidiary (subject only to Liens permitted pursuant to Section
7.3 of this Agreement), including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Security Documents or by law
or as may be requested by the Administrative Agent, and (iv) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
opined on with respect to the original version of loan documents delivered by the Borrower, which
opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.



(d) With respect to any new Unrestricted Subsidiary (other than (x) the Foreign Unrestricted
Subsidiaries and (y) to the extent actions described herein are prohibited by the terms of the
formation or organizational documents of an Unrestricted Subsidiary or agreements by which such
Unrestricted Subsidiary or its assets are bound, the Unrestricted Subsidiaries created or acquired
for purposes of the transactions permitted under Section 7.7(l), (n) and
(s)) created or acquired after the Effective Date by the Borrower or any of its Restricted
Subsidiaries, and subject to compliance with applicable Gaming Laws (which the Borrower agrees and
agrees to cause the applicable Unrestricted Subsidiary to pursue approvals to permit any such
pledges), promptly (i) execute and deliver to the Administrative Agent such amendments to
the Loan Documents or such other documents as the Administrative Agent deems necessary or advisable
in order to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Capital Stock of such new Domestic Unrestricted Subsidiary,
(ii) deliver to the Administrative Agent the certificates representing such Capital Stock that are
securities under Section 8-102(a)(15) of the UCC, together with undated stock powers or
assignments, in blank, executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion
of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent thereon, and
(iii) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters opined on with respect to the original version of loan
documents delivered by the Borrower, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.



(e) With respect to any material third party agreements or material entitlements that do not
attach to the real property entered into or received by the Borrower or any of its Restricted
Subsidiaries in connection with the construction of the Unfinished Projects, use best efforts to
promptly execute and deliver to the Administrative Agent such collateral assignment of the
applicable third party agreement or entitlement in a form as is reasonably acceptable to the
Administrative Agent.


 


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6.11 Post-Closing Filings with Gaming Boards.



(a) Promptly after the  Effective Date, make filings with the Gaming Boards of all
relevant jurisdictions in respect of the transactions contemplated by the Loan Documents to the
extent that such filings are required by applicable Gaming Laws.



(b) Not later than 75 days after the Effective Date, the Borrower shall execute and deliver,
and cause the applicable Restricted Subsidiary, to execute and deliver each of the Post-Closing
Gaming Pledge Agreement Amendments.



6.12 Further Assurances. From time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or documents, and take such
actions, as the Administrative Agent may reasonably request for the purposes of implementing or
effectuating the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with
respect to any other property or assets hereafter acquired by the Borrower or any Restricted
Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the
exercise by the Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the Borrower will execute
and deliver, or will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that the Administrative Agent or such Lender may be
required to obtain from the Borrower or any of its Restricted Subsidiaries for such governmental
consent, approval, recording, qualification or authorization.



6.13 In Balance Test. After delivery of all items required pursuant to
Section 7.20 (other than clause (e) thereof) for any Project, and on the date
selected by the Borrower, the Borrower shall deliver to the Administrative Agent:



(a) the In-Balance Projections prepared for the In-Balance Test for such Project, which
shall be accompanied by a certificate of a Responsible Officer stating that such In-Balance
Projections are based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such In-Balance Projections are incorrect
or misleading in any material respect;



(b) an In-Balance Test Certificate, with such supporting detail for the calculations
set forth in such In-Balance Test Certificate as the Administrative Agent or the
Construction Consultant shall reasonably request; and



(c) such other information as the Administrative Agent or the Construction Consultant
shall reasonably request in connection with the In-Balance Test.



The applicable Project shall satisfy the In-Balance Test if, as of such date, the Project Sources
exceed the Project Uses for such Project (and for all other Unfinished Projects) for the Project
Period for such Project.


 


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SECTION 7.

NEGATIVE COVENANTS




The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:




7.1 Financial Condition Covenants.



(a) Consolidated Senior Secured Debt Ratio. Permit the Consolidated Senior Secured
Debt Ratio as of the last day of any four consecutive fiscal quarter period of the Borrower and its
Restricted Subsidiaries, to be greater than 2.50 to 1.00.



(b) Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage Ratio
as of the last day of any four consecutive fiscal quarter period of the Borrower and its Restricted
Subsidiaries ending with any fiscal quarter set forth below to exceed the ratio set forth below
opposite such fiscal quarter:



	 	 	 
	 	 	Maximum Consolidated
	Fiscal Quarter Ending	 	Total Leverage Ratio
	March 31, 2010
	 	7.60 to 1.00
	June 30, 2010
	 	7.60 to 1.00
	September 30, 2010
	 	7.60 to 1.00
	December 31, 2010
	 	7.60 to 1.00
	March 31, 2011
	 	7.50 to 1.00
	June 30, 2011
	 	7.50 to 1.00
	September 30, 2011
	 	7.25 to 1.00
	December 31, 2011
	 	7.25 to 1.00
	March 31, 2012
	 	7.00 to 1.00
	June 30, 2012
	 	6.75 to 1.00
	September 30, 2012
	 	6.25 to 1.00
	December 31, 2012
	 	6.00 to 1.00
	March 31, 2013
	 	5.75 to 1.00
	June 30, 2013
	 	5.25 to 1.00
	September 30, 2013
	 	5.00 to 1.00
	December 31, 2013
	 	4.75 to 1.00
	March 31, 2014
	 	4.75 to 1.00






 


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(c) Minimum Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio for any period of four consecutive fiscal quarters of the Borrower and its
Restricted Subsidiaries ending with any fiscal quarter set forth below to be less than the ratio
set forth below opposite such fiscal quarter:



	 	 	 
	 	 	Minimum Consolidated
	Fiscal Quarter Ending	 	Interest Coverage Ratio
	March 31, 2010
	 	1.50 to 1.00
	June 30, 2010
	 	1.50 to 1.00
	September 30, 2010
	 	1.50 to 1.00
	December 31, 2010
	 	1.50 to 1.00
	March 31, 2011
	 	1.50 to 1.00
	June 30, 2011
	 	1.50 to 1.00
	September 30, 2011
	 	1.50 to 1.00
	December 31, 2011
	 	1.50 to 1.00
	March 31, 2012
	 	1.50 to 1.00
	June 30, 2012
	 	1.60 to 1.00
	September 30, 2012
	 	1.65 to 1.00
	December 31, 2012
	 	1.75 to 1.00
	March 31, 2013
	 	1.75 to 1.00
	June 30, 2013
	 	1.90 to 1.00
	September 30, 2013
	 	2.00 to 1.00
	December 31, 2013
	 	2.00 to 1.00
	March 31, 2014
	 	2.00 to 1.00






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




(a) Indebtedness of any Loan Party pursuant to any Loan Document;



(b) Indebtedness of (i) the Borrower to any Subsidiary, (ii) any Wholly Owned Subsidiary
Guarantor to the Borrower or any other Wholly Owned Subsidiary Guarantor, and (iii) any Restricted
Subsidiary that is not a Wholly Owned Subsidiary Guarantor to any other Restricted Subsidiary that
is not a Wholly Owned Subsidiary Guarantor; provided any such Indebtedness is unsecured and
subordinated to the Obligations in a manner satisfactory to the Administrative Agent;


 


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(c) (i) Indebtedness (including, without limitation, Capital Lease Obligations) secured by
Liens permitted by Section 7.3(g) and (ii) Indebtedness of any Person that becomes a direct
or indirect Subsidiary of the Borrower after the Effective Date in an acquisition, provided
such Indebtedness existed prior to the time such Person becomes a Subsidiary and neither the
Borrower nor any other Loan Party (other than the newly acquired Subsidiary) is liable for such
Indebtedness; provided that the aggregate principal amount of Indebtedness permitted
pursuant to this Section 7.2(c) shall not exceed $50,000,000 at any time outstanding;




(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d);



(e) Guarantee Obligations made by Borrower or any of its Restricted Subsidiaries of
obligations incurred in connection with activities not inconsistent with Section 7.14 of
the Borrower or any Restricted Subsidiary;



(f) (i) Indebtedness of the Borrower in respect of the Existing Subordinated Obligations and
(ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness;
provided that such Guarantee Obligations are subordinated to the obligations of such
Subsidiary Guarantor under the Security Documents to the same extent as the obligations of the
Borrower in respect of the Existing Subordinated Obligations are subordinated to the Obligations;



(g) New Subordinated Obligations (and Guarantee Obligations of any Subsidiary Guarantor in
respect of such Indebtedness), provided, that after giving effect to the incurrence of such
Indebtedness and the application of the proceeds thereof on the date of such incurrence (treating
(x) any Indebtedness paid or prepaid with such proceeds as being paid or prepaid on the date of
such incurrence if an irrevocable notice of payment or prepayment is given on the date of such
incurrence and such payment or prepayment occurs on or prior to five (5) Business Days after such
incurrence and (y) any net proceeds not applied to pay indebtedness as an increase in Cash of the
Person holding such Cash), the Consolidated Total Leverage Ratio (calculated pro forma as if such
incurrence and application (including any increase in Cash) has occurred as of the last day of the
most recent fiscal quarter for which financial statements have been delivered or required to be
delivered pursuant to Section 6.1(a) or Section 6.1(b)) shall not be higher than
0.25 less than the level required for such fiscal quarter pursuant to Section 7.1(a);



(h) New Subordinated Obligations and/or Permitted Refinancing Subordinated Obligations (and
Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness), all of the Net
Cash Proceeds of which are used to refinance (including pursuant to a tender, redemption, exchange
or other replacement) Incremental Term Loans, Incremental Delayed Draw Term Loans, Revolving Credit
Loans, Subordinated Obligations, Permitted Senior Unsecured Obligations or Permitted Refinancing
Subordinated Obligations (and all interest and expenses incurred in connection therewith);



(i) to the extent not available from the Lenders, (x) Guarantee Obligations with respect to
commercial letters of credit up to an aggregate amount not to exceed $25,000,000 at any one time
outstanding so long as (i) such Indebtedness is incurred in the ordinary course of business and
(ii) such Indebtedness is incurred for the purpose of effecting payment for goods or services
required by the Borrower or any of its Restricted Subsidiaries, and (y) Guarantee



 


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Obligations with respect to standby letters of credit up to an aggregate amount of $4,500,000
at any time one outstanding;



(j) Deferred compensation payable to employees, officers and/or directors under the Deferred
Compensation Plan;




(k) any Indebtedness incurred in accordance with Section 2.8;



(l) Indebtedness incurred pursuant to Section 4.21.3 of the Redevelopment Agreement in an
aggregate principal amount not to exceed $10,000,000 at any one time outstanding;



(m) Indebtedness incurred in connection with the purchase, equipping, furnishing and/or
refurbishing of one or more aircraft in an aggregate principal amount not to exceed $20,000,000 at
any one time outstanding;



(n) (i) Indebtedness of the Borrower in respect of the Existing Senior Unsecured Obligations
and Permitted Senior Unsecured Obligations and (ii) Guarantee Obligations of any Subsidiary
Guarantor in respect of such Indebtedness; provided that (x) after giving effect to the incurrence
of such Indebtedness and the application of the proceeds thereof on the date of such incurrence
(treating (A) any Indebtedness paid or prepaid with such proceeds as being paid or prepaid on the
date of such incurrence if an irrevocable notice of payment or prepayment is given on the date of
such incurrence and such payment or prepayment occurs on or prior to five (5) Business Days after
such incurrence and (B) any net proceeds not applied to pay indebtedness as an increase in Cash of
the Person holding such Cash), the Consolidated Total Leverage Ratio (calculated pro forma as if
such incurrence and application (including any increase in Cash) has occurred as of the last day of
the most recent fiscal quarter for which financial statements have been delivered or required to be
delivered pursuant to Section 6.1(a) or Section 6.1(b)) shall not be higher than
0.25 less than the level required for such fiscal quarter pursuant to Section 7.1(a); and
(y) unless the Consolidated Total Leverage Ratio (calculated pro forma as if such incurrence and
application (including any increase in Cash) has occurred as of the last day of the most recent
fiscal quarter for which financial statements have been delivered or required to be delivered
pursuant to Section 6.1(a) or Section 6.1(b)) is less than 6.00 to 1.00, the
aggregate principal amount of Indebtedness under this clause (n) shall not exceed $900,000,000;



(o) Indebtedness to the applicable franchisor or manager for funds advanced on behalf of, or
obligations owed by, the Borrower or any Restricted Subsidiary pursuant to any Hotel Agreements;
and



(p) Indebtedness respecting obligations of the Borrower or any Restricted Subsidiary to
reimburse a Person who is not an Affiliate for amounts paid for options on land that such Person
will be transferred to the Borrower or one of its Restricted Subsidiaries for development; provided
that the aggregate principal amount of Indebtedness outstanding under this clause (p) shall not
exceed $5,000,000 at any time; and



(q) Indebtedness of the Borrower or any Subsidiary of the Borrower owed for property, casualty
or liability insurance, so long as (i) such Indebtedness shall be incurred only to



 


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defer the cost of such insurance for the year in which such Indebtedness is incurred and
(ii) the aggregate principal amount of Indebtedness outstanding under this clause (q) shall not
exceed $10,000,000 at any time.



7.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, except for:



(a) Liens for taxes, assessments and other similar governmental charges not yet due or which
are being contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or its Restricted
Subsidiaries, as the case may be, in conformity with GAAP;



(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business or in connection with the projects which are not overdue
for a period of more than 30 days or that are being contested in good faith by appropriate
proceedings;



(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;



(d) deposits to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory or regulatory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;



(e) easements, rights-of-way, encroachment, title defects, restrictions and other similar
encumbrances created or suffered in the ordinary course of business or incurred in permitted real
estate development activities (including, without limitation in connection with obtaining the
necessary approvals to develop any Unfinished Project);




(f) Liens in existence on the date hereof listed on Schedule 7.3(f);



(g) Liens securing Indebtedness of the Borrower or any other Restricted Subsidiary incurred
pursuant to Section 7.2(c)(i) to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (iii) the amount of Indebtedness
secured thereby is not increased; and (iv) the amount of Indebtedness initially secured thereby is
not less than 75%, or more than 100% of the purchase price of such fixed or capital asset;



(h) any Lien to secure Indebtedness permitted pursuant to Section 7.2(c)(ii);
provided that (i) such Lien is on Property of a Person existing at the time such Person
becomes a Subsidiary or is merged into or consolidated with the Borrower or any Restricted
Subsidiary; (ii) such Lien was not created in contemplation of the acquisition of, merger or
consolidation with or investment in such Person and (iii) such Lien does not extend to any assets
other than those of the Person subject to such acquisition, merger, consolidation or investment;



(i) Liens created pursuant to the Security Documents;


 


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(j) any lease affecting Property owned by the Borrower or any other Subsidiary entered into,
assumed or otherwise acquired in the ordinary course of its business and covering only the assets
so leased;



(k) Liens on Cash deposited to secure reimbursement obligations under commercial letters of
credit permitted under Section 7.2(i), so long as the amount of Cash subject to any such
Lien does not exceed 110% of the amount of the Indebtedness secured thereby;



(l) Intellectual Property rights granted by the Borrower or a Restricted Subsidiary not
interfering in any material respect with the ordinary conduct of the business of the Borrower or
the Restricted Subsidiaries, taken as a whole;



(m) any attachment or judgment Lien not constituting an event of default under Section
8(h);



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



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



(p) any zoning or similar law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any real property which does not materially interfere with the
ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;



(q) Liens reflected as exceptions on the title policies issued to the Administrative Agent on
the Effective Date as contemplated under Section 5.1(r)(ii), or in connection with Property
acquired or mortgaged after the Effective Date, on title policies issued pursuant to Section
6.10;



(r) any Lien on the Property for the Lumière Property Project securing Indebtedness permitted
pursuant to
Section 7.2(l) not to exceed a principal amount of $10,000,000 and interest on
such principal amount;



(s) Liens securing Indebtedness of the Borrower or any other Restricted Subsidiary incurred
pursuant to
Section 7.2(m), provided that (i) such Liens do not at any time
encumber any Property other than the Property financed or refinanced by such Indebtedness, and (ii)
the amount of Indebtedness initially secured thereby is not more than 100% of fair market value of
such fixed or capital asset;



(t) Earnest money or other deposits in Cash or Cash Equivalents for transactions permitted
under this Agreement;



(u) Liens not otherwise permitted by this Section 7.3 so long as (i) such Liens do not
secure funded Indebtedness, and (ii) the aggregate outstanding amount of the obligations secured
thereby does not exceed $10,000,000 at any one time outstanding;


 


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(v) Liens created pursuant to any Back-Stop Arrangement;



(w) Lien securing Indebtedness permitted pursuant to Section 7.2(o) or other
obligations owed to the applicable franchisor or manager pursuant to any Hotel Agreements;



(x) Liens on incurred premiums, dividends and rebates which may become payable under insurance
policies and loss payments which reduce the incurred premiums on such insurance policies securing
financing of the premiums with respect thereto to the extent such Indebtedness is permitted to be
incurred pursuant to Section 7.2(q); and



(y) Any preferential arrangement in favor of the trustee under the Indiana Power of Attorney
created by the execution and delivery of the Indiana Power of Attorney; provided, however, that the
Indiana Power of Attorney may not create any other Lien or otherwise constitute or result in a
Default or Event of Default.



7.4 Limitation on Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),
or Dispose of all or substantially all of its Property or business, except that:



(a) any Person may be merged, consolidated or amalgamated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving entity and the Borrower
shall comply with Section 6.12 in connection therewith) or with or into any Subsidiary
Guarantor (provided that (i) the Subsidiary Guarantor shall be the continuing or surviving
entity or (ii) simultaneously with such transaction, the continuing or surviving entity shall
become a Subsidiary Guarantor and the Borrower shall comply with Section 6.10 and
Section 6.12 in connection therewith) and any Immaterial Subsidiary may be merged,
consolidated or amalgamated with or into any Immaterial Subsidiary;



(b) any Restricted Subsidiary of the Borrower may liquidate, wind up, dissolve or cease to
exist or may Dispose of any or all of its assets to the Borrower or any Restricted Subsidiary;



(c) a conversion of any Restricted Subsidiary to another form of organization when no Default
or Event of Default exists or would result therefrom; provided that the Borrower and such
Restricted Subsidiary execute any assumption documents reasonably requested by the Administrative
Agent to continue the perfection of Liens granted pursuant to the Loan Documents and to continue
all other obligations under the Loan Documents to which such Restricted Subsidiary was a party; and




(d) any Immaterial Subsidiary may be liquidated or dissolved or otherwise cease to exist.



7.5 Limitation on Disposition of Property. Dispose of any of its Property (including,
without limitation, receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted
Subsidiary’s Capital Stock to any Person, except:


 


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(a) the Disposition of personal property that is no longer used or useful in the ordinary
course of business;



(b) the Disposition of Cash or Cash Equivalents and the sale of inventory in the ordinary
course of business;




(c) Dispositions permitted by Section 7.4;



(d) Dispositions by the Borrower or a Restricted Subsidiary to the Borrower or another
Restricted Subsidiary;




(e) Dispositions of any Investment in an Unrestricted Subsidiary;



(f) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any Subsidiary
Guarantor and the sale or issuance of any Immaterial Subsidiary’s Capital Stock to any Immaterial
Subsidiary;



(g) any Designated Asset Sale, provided that a Fair Value Determination has been made
with respect to such Disposition;



(h) Dispositions of Property, not otherwise permitted under this Section 7.5, in any
one transaction or series of related transactions having a value not in excess of $10,000,000, and
having an aggregate value not in excess of $20,000,000 in any fiscal year and not in excess of
$50,000,000 during the term of this Agreement;



(i) Dispositions by the Borrower or any Restricted Subsidiary of its interest in the Argentina
Subsidiaries;



(j) any Recovery Event, provided, that the requirements of Section 2.13(c) are
complied with in connection therewith;




(k) any Disposition of any Investment permitted pursuant to Section 7.7(k);




(l) any Disposition constituting any lease otherwise permitted under Section 7.3(j);




(m) any Disposition of Intellectual Property otherwise permitted under Section 7.3(l);



(n) any Disposition of all or any portion of the Property comprising the Condo Component,
provided that a Fair Value Determination has been made with respect to such Disposition;



(o) dedications of rights of way, easements or other development concessions made by Borrower
or its Restricted Subsidiaries as necessary, otherwise desirable, or as may be required in
connection with obtaining the necessary approvals to develop, or as otherwise may be desirable to
improve or remodel any Property;


 


95









 






(p) any Disposition of one or more aircraft;




(q) any Disposition of all or any portion of the Undeveloped Reno Land; and




(r) any Disposition of all or any portion of the STAR and TIF Bonds.



7.6 Limitation on Restricted Payments. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or
any Restricted Subsidiary, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in Cash or property or in obligations of
the Borrower or any Restricted Subsidiary, or enter into any derivatives or other transaction with
any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives
Counterparty”) obligating the Borrower or any Restricted Subsidiary to make payments to such
Derivatives Counterparty as a result of any change in market value of any such Capital Stock
(collectively, “Restricted Payments”), except that:



(a) (i) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned
Subsidiary Guarantor or (ii) any Restricted Subsidiary that is not a Wholly Owned Subsidiary
Guarantor may make Restricted Payments to another Restricted Subsidiary that is not a Wholly Owned
Subsidiary Guarantor;




(b) the Borrower may make Restricted Payments in the form of common stock of the Borrower;



(c) the Borrower may repurchase or redeem Capital Stock of the Borrower to the extent required
by any Gaming Board to prevent a License Revocation;



(d) the Borrower may purchase the Borrower’s common stock or common stock options from present
or former officers or employees of the Borrower or any Subsidiary following the death, disability
or termination of employment of such officer or employee, provided, that the aggregate
amount of payments under this paragraph subsequent to the Effective Date (net of any proceeds
received by the Borrower during the corresponding period following the Effective Date in connection
with resales of any common stock or common stock options so purchased) shall not exceed $1,000,000
per fiscal year; and



(e) the Borrower may make Restricted Payments consisting Investments in Unrestricted
Subsidiaries permitted to be Disposed of pursuant to Section 7.5(e).



7.7 Limitation on Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes,
debentures or other debt securities of, or any assets constituting an ongoing business from, or
make any other investment in, any other Person (all of the foregoing, “Investments”),
except:



(a) extensions of trade credit in the ordinary course of business (including, without
limitation, advances to patrons of the casino operations of the Borrower or the Restricted
Subsidiaries consistent with ordinary course gaming operations);


 


96









 






(b) Investments in Cash Equivalents;



(c) Investments arising in connection with the incurrence of Indebtedness permitted by
Section 7.2(b) and Section 7.2(e);




(d) Investments in existence on the date hereof listed on Schedule 7.7(d);



(e) loans and advances to employees of the Borrower or any Restricted Subsidiaries of the
Borrower in the ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower and Restricted
Subsidiaries of the Borrower not to exceed $5,000,000 at any one time outstanding;



(f) Investments consisting of the extension of credit to customers and suppliers of the
Borrower and the Restricted Subsidiaries in the ordinary course of business and Investments
received in satisfaction or partial satisfaction thereof;



(g) Investments received in connection with the settlement of any bona fide dispute with
another Person or in satisfaction of judgments;



(h) Investments in assets not prohibited by Section 7.14 made by the Borrower or any
of its Restricted Subsidiaries with the proceeds of any Reinvestment Deferred Amount; provided that
any such Investments made with Net Cash Proceeds of any Recovery Event with respect to Hurricane
Katrina and/or Hurricane Rita shall be made solely in assets located in the United States and owned
by the Borrower or a Domestic Restricted Subsidiary;



(i) Investments by the Borrower or any of its Restricted Subsidiaries in the Borrower or any
Person that, prior to such Investment, is a Restricted Subsidiary;



(j) Investments in the Foreign Unrestricted Subsidiaries by the Borrower or a Restricted
Subsidiary in an aggregate amount not to exceed the Maximum Foreign Subsidiary Investment Amount;



(k) In addition to Investments otherwise expressly permitted by this Section 7.7,
Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount
outstanding at any time (valued at cost) not exceeding the sum of (i) $100,000,000 plus (ii) an
amount (but not less than zero) equal to the lesser of (x) 50% of the New Capital Adjusted Proceeds
minus $100,000,000 and (y) the New Capital Adjusted Proceeds minus the amount thereof that has been
applied for Capital Expenditures pursuant to Section 7.16(c) minus $100,000,000;



(l) Borrower or its Restricted Subsidiaries shall be permitted to transfer all or any portion
of the Undeveloped Reno Property to an Unrestricted Subsidiary or a joint venture of the Borrower
or its Restricted Subsidiary; provided that any equity interest received by the
Borrower or its Restricted Subsidiary in exchange therefore or in connection therewith shall be
pledged as Collateral;


 


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(m) Investments made in connection with Hedge Agreements entered into by Borrower or any of
its Subsidiaries as required by Section 6.9 and to the extent not prohibited by Section
7.15;



(n) Investments in an Unrestricted Subsidiary or a joint venture for the purpose of
development of the Condo Component in an amount not to exceed $10,000,000 at any one time
outstanding;



(o) (i) Investments by the Borrower or any of its Restricted Subsidiaries in any Person that
concurrently with such Investment becomes a Restricted Subsidiary or that is merged into or
consolidated with Borrower or a Restricted Subsidiary pursuant to Section 7.4(a), or (ii)
the acquisition of any assets (including by merger, consolidation or otherwise) constituting an
ongoing business by a Borrower or a Restricted Subsidiary; provided that in the case of
clause (i) and (ii), (x) the Borrower and the applicable Restricted Subsidiaries, if any, shall
comply with Section 6.10 in connection therewith; and (y) with respect to all such
Investments or acquisitions, notwithstanding the treatment provided pursuant to GAAP, the aggregate
purchase price shall be treated as Capital Expenditures and subject to the restrictions and
carveouts contained in Section 7.16;



(p) Investments made by the Borrower in any Subsidiary received in exchange solely for common
stock of the Borrower;



(q) Investments made by the Borrower in the STAR and TIF Bonds, not to exceed $10,000,000 at
any time outstanding;




(r) Investments made pursuant to the Redevelopment Agreement;



(s) Investments made pursuant to the Hotel Agreements, not to exceed $10,000,000 at any time
outstanding; and



(t) Investments by the Borrower in the Atlantic City Entities; provided that (i) such
Investments shall not exceed $12,000,000 in any calendar year and (ii) the proceeds of such
Investment are applied by the Atlantic City Entities for maintenance support of the Atlantic City
Property, including, application to property taxes, lease payments, demolition costs and other
expenses.




7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.



(a) Make or offer to make any optional or voluntary payment, prepayment, repurchase or
redemption of, or otherwise voluntarily or optionally defease, the principal of Subordinated Notes,
the Permitted Refinancing Subordinated Notes or Permitted Senior Unsecured Obligations, or
segregate funds for any such payment, prepayment, repurchase, redemption or defeasance, or enter
into any derivative or other transaction with any Derivatives Counterparty obligating the Borrower
or any Subsidiary to make payments to such Derivatives Counterparty as a result of any change in
market value of the Subordinated Notes, the Permitted Refinancing Subordinated Notes or Permitted
Senior Unsecured Obligations, provided that:


 


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(i) the Borrower may prepay Existing Subordinated Obligations, New Subordinated
Obligations, Permitted Refinancing Subordinated Obligations and Permitted Senior Unsecured
Obligations in connection with the refinancing of such Existing Subordinated Obligations,
New Subordinated Obligations, Permitted Refinancing Subordinated Obligations or Permitted
Senior Unsecured Obligations with the proceeds of (1) New Subordinated Obligations and/or
Permitted Refinancing Subordinated Obligations permitted pursuant to Section 7.2(h),
or (2) Permitted Senior Unsecured Obligations permitted pursuant to Section 7.2(n);




(ii) if there is no Default or Event of Default (giving effect to such transaction),
the Borrower may make any optional or voluntary payment, prepayment, repurchase or
redemption of, or otherwise voluntarily or optionally defease the Borrower’s Indebtedness
under the Subordinated Notes and/or the Senior Unsecured Notes in an aggregate amount not to
exceed $100,000,000 after January 1, 2010;



(b) amend, modify or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of the Subordinated Notes or the Permitted Refinancing
Subordinated Notes or the Permitted Senior Unsecured Notes, other than:




(i) any such amendment, modification, waiver or other change which would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the rate or extend
the date for payment of interest thereon, or such amendments, modifications, waivers or
other changes that do not in the aggregate render such instruments more restrictive than
they were prior thereto;




(ii) to conform the Senior Subordinated Notes Indenture 2003 to the Senior Subordinated
Notes Indenture 2004; or




(iii) any other revisions, amendments, waivers or modifications that are determined by
the Administrative Agent not to be adverse to the Lenders;



(c) designate any Indebtedness (other than the Obligations) as “Designated Senior
Indebtedness” for the purposes of the Senior Subordinated Indentures; or



(d) amend the Borrower’s certificate of incorporation in any manner determined by the
Administrative Agent to be adverse to the Lenders.



7.9 Limitation on Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of
any service or the payment of any management, advisory or similar fees, with any Affiliate (other
than (x) transactions between or among the Borrower or any Restricted Subsidiary,
(y) indemnification agreements, arrangements or provisions between the Borrower or any of its
Subsidiaries and the officers, directors or any other employee of Borrower or any of its
Subsidiaries and (z) the allocation, or lack thereof, of common expenses (including, without
limitation, insurance premiums and overhead expenses) that the Borrower has determined in its
business judgment should be paid collectively) unless such transaction is (a) not prohibited under
this Agreement and (b) upon fair and reasonable terms no less favorable to the Borrower or such



 


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Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction
with a Person that is not an Affiliate; provided that the provisions of this Section 7.9
shall not apply to transactions permitted pursuant to Section 7.6, Section 7.7(e), (j), (l), (n),
(p), (s) or (t), or Section 7.18.



7.10 Limitation on Sales and Leasebacks. Except for (a) the Disposition of one or
more aircraft in a transaction permitted pursuant to Section 7.5(p), or (b) sale and
leaseback transactions that are (i) permitted pursuant to Section 7.5(o), (ii) entered into
after January 1, 2010 and (iii) do not exceed in the aggregate Property with a value during the
term of this Agreement in excess of $10,000,000, enter into any arrangement with any Person
providing for the leasing by the Borrower or any Restricted Subsidiary of real or personal
property, which has been or is to be sold or transferred by the Borrower or such Restricted
Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the Borrower or such
Subsidiary.



7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year of the Borrower
to end on a day other than December 31 or change the Borrower’s method of determining fiscal
quarters.



7.12 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the Borrower or any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its
Property or revenues, whether now owned or hereafter acquired, to secure the Obligations or, in the
case of any guarantor, its obligations under the Security Documents, other than (a) this Agreement
and the other Loan Documents, (b) the Indentures, (c) any agreements governing any purchase money
Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby), (d) customary provisions
in leases and licenses entered into in the ordinary course of business consistent with past
practices (in each case applicable solely to such lease or license or the Property subject to such
lease or license), (e) customary restrictions in an agreement to Dispose of assets in a transaction
permitted under Section 7.5 solely to the extent that such restrictions apply solely to the
assets to be Disposed, (f) in accordance with applicable Gaming Laws, (g) restrictions in any
agreement relating to the Condo Component and the Undeveloped Reno Property, (h) the St. Louis
County Ground Lease, and (i) customary restrictions contained in agreements with respect to
Indebtedness permitted pursuant to Section 7.2(c), Section 7.2(d) and Section
7.2(m).



7.13 Limitation on Restrictions on Subsidiary Distributions. Enter into or suffer to
exist or become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such
Restricted Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Restricted Subsidiary, (b) make Investments in the Borrower or any other Restricted Subsidiary, or
(c) transfer any of its assets to the Borrower or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the
Loan Documents; (ii) any restrictions with respect to a Restricted Subsidiary imposed pursuant to
an agreement that has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary; (iii) customary



 


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restrictions in an agreement to Dispose of assets in a transaction permitted under Section
7.5 solely to the extent that such restriction applies solely to the assets to be Disposed;
(iv) customary anti-assignment provisions in leases and licenses entered into in the ordinary
course of business consistent with past practices (in each case applicable solely to such lease or
license or the Property subject to such lease or license); (v) customary restrictions on transfers
of assets contained in any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (vi) restrictions in any agreement relating to the
Condo Component and the Undeveloped Reno Property, and (vii) restrictions contained in agreements
with respect to Indebtedness permitted pursuant to Section 7.2(c), Section 7.2(d)
and Section 7.2(m).



7.14 Limitation on Lines of Business. Enter into any business, either directly or
through any Restricted Subsidiary, except for those businesses in which the Borrower and its
Restricted Subsidiaries are engaged on the date of this Agreement or that are reasonably related or
similar thereto except the Borrower may (i) enter into any joint venture or financing for the Condo
Component or (ii) pursue the pre-development of all or any part of the Undeveloped Reno Property.



7.15 Limitation on Hedge Agreements. Enter into any Hedge Agreement other than Hedge
Agreements entered into in the ordinary course of business, and not for speculative purposes, to
protect against changes in interest rates.



7.16 Limitation on Capital Expenditures. Make any Capital Expenditure after January
1, 2010, except:



(a) Maintenance Capital Expenditures (including renovations or property improvements that
would not result in the property on which such renovations or improvements are being made to
becoming a Project) for any fiscal year during the term of this Agreement (commencing with fiscal
year 2010) not to exceed, as of any date of determination, the amount limited to 6.00% of
Consolidated Revenues of the Borrower and its Subsidiaries for the immediately preceding fiscal
year, provided that the amount of Maintenance Capital Expenditures permitted to be made in
any fiscal year may be increased by the amount of Maintenance Capital Expenditures not expended in
the immediately preceding fiscal year (but such increase may not be carried forward to any
subsequent fiscal year);



(b) In addition to Capital Expenditures otherwise permitted under this Section 7.16,
Capital Expenditures not in excess of $50,000,000 plus (i) for the first quarter of fiscal year
2010, 35.0% of Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the
first quarter of fiscal year 2010; (ii) for the two-fiscal quarter period ending on June 30, 2010,
35.0% of Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the first
two quarters of fiscal year 2010, (iii) for the three-fiscal quarter period ending on September 30,
2010, 35.0% of Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the
first three quarters of fiscal year 2010, (iv) for the four-fiscal quarter period ending on
December 31, 2010, 35.0% of Annualized Adjusted EBITDA of the Borrower for fiscal year 2010, and
(v) for any four fiscal quarter period ending thereafter, 35.0% of Annualized Adjusted EBITDA of
the Borrower and its Restricted Subsidiaries for the most



 


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recent fiscal quarter for which financial statements are required to be delivered under
Section 6.1(a) or Section 6.1(b) (as the same may increase or decrease from quarter to quarter);
provided that if the Borrower was in compliance with the permitted level of Capital Expenditures
permitted under this clause (b) as determined at the time any Capital Expenditure was incurred, but
became noncompliant with such permitted level as a result of subsequent reductions in Annualized
Adjusted EBITDA, such noncompliance shall not cause a Default under this Agreement but rather shall
operate to preclude any further incurrence of Capital Expenditures until the Borrower is again in
compliance with the permitted level of Capital Expenditures permitted under this clause (b);



(c) In addition to Capital Expenditures otherwise permitted under this Section 7.16,
Capital Expenditures in an amount not to exceed the New Capital Adjusted Proceeds minus
$100,000,000, minus the amount thereof representing outstanding Investments made pursuant to
Section 7.7(k);



(d) In addition to Capital Expenditures otherwise permitted under this Section 7.16,
Capital Expenditures in an amount not to exceed the New Capital Asset Disposition Proceeds less any
amount of such New Capital Asset Disposition Proceeds applied or required to be applied to prepay
Incremental Term Loans and/or Revolving Credit Loans with a corresponding reduction in the
Revolving Credit Commitments or Incremental Revolving Credit Commitments;



(e) Capital Expenditures associated with the River City Property Project which do not result
in the aggregate Capital Expenditures associated with (i) Phase I of such Project being in excess
of $63,000,000, and (ii) Phase II of such Project being in excess of $85,000,000;



(f) Capital Expenditures associated with the Sugarcane Bay Project which do not result in the
aggregate Capital Expenditures associated with such Project being in excess of $238,000,000;



(g) Capital Expenditures associated with the Baton Rouge Project which do not result in the
aggregate Capital Expenditures associated with such Project being in excess of $235,000,000;



(h) Capital Expenditures associated with the renovation of the PRC-MO Property Project which
do not result in the aggregate Capital Expenditures associated with such Project being in excess of
$15,000,000; and



(i) Capital Expenditures associated with the development of Phase II of the Lumière Property
Project which do not result in the aggregate Capital Expenditures associated with such Project
being in excess of $55,000,000.



7.17 Commencement of Construction. Notwithstanding anything to the contrary contained in
this Agreement:


 


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(a) if the Commencement of Construction has occurred with respect to any Project, then until
such Project has satisfied the In-Balance Test described in Section 6.13, not make any
Capital Expenditures with respect to such Project;



(b) prior to Commencement of Construction for any Project (other than the Sugarcane Bay
Project and the Baton Rouge Project), not make Capital Expenditures for such Project in an amount
in excess of the lesser of (i) 10.00% of the Construction Budget for such Project, or (ii)
$25,000,000;



(c) on an after January 1, 2010 and prior to Commencement of Construction with respect to the
Sugarcane Bay Project, not make Capital Expenditures for the Sugarcane Bay Project in an amount in
excess of $25,000,000; and



(d) on an after January 1, 2010 and prior to Commencement of Construction with respect to the
Baton Rouge Project, not make Capital Expenditures for the Baton Rouge Project in an amount in
excess of $25,000,000.



7.18 Limitation on Changes to Deferred Compensation Plan. Amend or modify the
Deferred Compensation Plan in a manner that would change its nature from that of a “defined
contribution plan,” within the meaning of Section 414(i) of the Code, to a “defined benefit plan,”
within the meaning of Section 414(j) of the Code.



7.19 Baton Rouge Project Construction Covenants. On and after January 1, 2010, apply
more than $25,000,000 of funds from any source to the Expenses for the Baton Rouge Project until
the Borrower shall have received New Capital Available Proceeds in an amount equal to or greater
than $100,000,000.



7.20 Construction Covenants. Permit Commencement of Construction to occur for any
Project unless:



(a) a Construction Consultant reasonably acceptable to the Arrangers and the Borrower shall
have been retained for such Project;



(b) the Borrower shall have delivered to the Administrative Agent and the Construction
Consultant, the Construction Budget, the Construction Plan and the Construction Timetable for such
Project and all other information with respect to such Project reasonably requested by the
Construction Consultant in order to provide the report referred to in Section 7.20(c)
below;



(c) the Construction Consultant for such Project shall have delivered to the Administrative
Agent and the Arrangers a report with a favorable opinion as to the reasonableness of the
Construction Budget, the Construction Plan and the Construction Timetable for such Project;



(d) the Borrower shall have entered into a guaranteed maximum price contract, in form and
substance reasonably acceptable to the Administrative Agent and Arrangers, with respect to the
renovation and/or construction, as applicable, of such Project; and


 


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(e) the In-Balance Test for such Project shall have been satisfied in accordance with the
provision of Section 6.13.



7.21 Directors’ and Officers’ Trust. Notwithstanding anything to the contrary
contained in this Agreement (including the negative covenants in this Section 7), Borrower
may deposit up to $10,000,000 into a Directors’ and Officers’ Trust.



SECTION 8.

EVENTS OF DEFAULT





If any of the following events shall occur and be continuing:



(a) The Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when
due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof; or



(b) Any representation or warranty made or deemed made by any Loan Party herein or in any
other Loan Document or that is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been inaccurate in any material respect on or as of the date made
or deemed made or furnished; or



(c) Any Loan Party shall default in the observance or performance of any agreement contained
in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only) or Section
7; or



(d) Any Loan Party shall default in, or an event of default shall occur with respect to, the
observance or performance of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this Section), and such default
or event of default shall continue unremedied for a period of 30 days; or



(e) The Borrower or any of its Restricted Subsidiaries shall (i) default in making any payment
of any principal of any Indebtedness (including, without limitation, any Guarantee Obligation, but
excluding the Loans and Reimbursement Obligations) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or to become subject to or mandatory offer to purchase by the obligor thereunder or (in
the case of any such Indebtedness constituting a Guarantee



 


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Obligation) to become payable; provided, that a default, event or condition described
in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate
$10,000,000; or



(f) (i) The Borrower or any of its Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i) above that (A) results
in the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Borrower or any of its Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
or



(g) (i) The Borrower or any Commonly Controlled Entity shall engage in any material
“prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any failure by any Plan to satisfy the minimum funding standard applicable to such
Plan under Section 412 or 430 of the Code or Section 302 or 303 of ERISA, (iii) any “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, (iv) any Lien in favor of the PBGC or a Plan shall
arise on the assets of the Borrower or any Commonly Controlled Entity, (v) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (vi) any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than
in a standard termination (as defined in Section 4041(b) of ERISA), (vii) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders shall be
likely to, incur any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (viii) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (viii) above, such event or
condition, together with all other such events or conditions, if any, could, in the sole judgment
of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or


 


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(h) One or more judgments or decrees shall be entered against the Borrower or any of its
Subsidiaries involving for the Borrower and its Subsidiaries taken as a whole a liability (not paid
or fully covered by insurance as to which the relevant insurance company has acknowledged coverage)
of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof; or



(i) Any of the Security Documents shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 10.15), to be in full force and effect, or any
Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of the
Security Documents shall cease to be enforceable and of the same effect and priority purported to
be created thereby; or



(j) The guarantee contained in Subsidiary Guaranty shall cease, for any reason (other than by
reason of the express release thereof pursuant to Section 10.15), to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or




(k) Any Change of Control shall occur; or



(l) The Subordinated Notes or the guarantees thereof shall cease, for any reason, to be
validly subordinated to the Obligations or the obligations of the Subsidiary Guarantors under the
Security Documents, as the case may be, as provided in the applicable Indentures, or any Loan
Party, any Affiliate of any Loan Party, the trustee in respect of the Subordinated Notes or the
holders of at least 25% in aggregate principal amount of the Subordinated Notes shall so assert;



then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders, the Administrative
Agent may, or upon the request of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments to
be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare
the Loans hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith, whereupon the same
shall immediately become due and payable. In the case of all Letters of Credit with respect to
which presentment for honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the
Administrative



 


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Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrower hereunder and under the other Loan Documents. After all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash collateral account shall
be returned to the Borrower (or such other Person as may be lawfully entitled thereto).



SECTION 9.

THE AGENTS




9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Agents as
the agents of such Lender under this Agreement and the other Loan Documents, and each Lender
irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against
any Agent.



9.2 Delegation of Duties. Each Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.



9.3 Exculpatory Provisions. Neither any Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained



 


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in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.



9.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other experts selected by
such Agent. The Agents may deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance with Section 10.6 and
all actions required by such Section in connection with such transfer shall have been taken. Each
Agent shall be fully justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement), and
such request and any action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.



9.5 Notice of Default. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent shall have received
notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent shall receive such a notice, the Administrative Agent shall give notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so
specified by this Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.



9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that
neither any of the Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition, prospects and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its



 


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Loans or other credit advances hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition, prospects
and creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that
may come into the possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.



9.7 Indemnification. The Lenders agree to indemnify each Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such
date), for, and to save each Agent harmless from and against, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (including, without limitation, at any time following the payment
of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or
arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.



9.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.




9.9 Successor Administrative Agent and Successor Swing Line Lender.



(a) The Administrative Agent may resign as Administrative Agent upon 10 days’ notice (such 10
day period, the “Notice Period”) to the Lenders and the Borrower (the “Administrative
Agent Resignation”). The Administrative Agent may be removed (i) with or



 


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without cause, upon the affirmative vote of the Supermajority Lenders to remove the
Administrative Agent and the consent of Borrower, in each case in writing, or (ii) for so long as
the Administrative Agent or any Affiliate of the Administrative Agent is a Defaulting Lender, upon
the affirmative vote of the Required Lenders to remove the Administrative Agent and the consent of
the Borrower, in each case in writing (each of clause (i) and (ii), an “Administrative
Agent Removal”). In the event of an Administrative Agent Resignation or an Administrative
Agent Removal, the Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or
Section 8(f) with respect to the Borrower shall have occurred and be continuing) be subject
to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). In the
event of an Administrative Agent Resignation, if no successor agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor agent from among the
Lenders. Effective upon the acceptance of its appointment as successor agent hereunder, the Person
acting as such successor agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the
Loans. If no successor agent has accepted appointment as Administrative Agent by the effective
date of the removal of the Administrative Agent pursuant to an Administrative Agent Removal, or by
the end of the Notice Period in the case of an Administrative Agent Resignation, the retiring
Administrative Agent’s resignation or removal shall nevertheless thereupon become effective, and
the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided for above. After
any retiring Agent’s resignation as Agent (or, in the case of the Administrative Agent, upon its
resignation or removal as set forth in this section), the provisions of this Section 9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.



(b) If the Administrative Agent is the Swing Line Lender or is an Affiliate of the Swing Line
Lender, then (i) any Administrative Agent Resignation or Administrative Agent Removal shall also
constitute the resignation or removal of the Swing Line Lender, and (ii) any successor
Administrative Agent appointed pursuant to this Section shall, upon its acceptance of such
appointment, become the successor Swing Line Lender for all purposes hereunder. In such event, (i)
Borrower shall prepay any outstanding Swing Line Loans made by (x) the resigning Administrative
Agent in its capacity as Swing Line Lender, on or prior to the end of the Notice Period, in the
case of an Administrative Agent Resignation, and (y) the removed Administrative Agent in its
capacity as Swing Line Lender as a condition to the effectiveness of the removal of the
Administrative Agent, in the case of an Administrative Agent Removal, (ii) upon such prepayment,
the retiring or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line
Note held by it to Borrower for cancellation, and (iii) Borrower shall issue, if so requested by
successor Administrative Agent and Swing Line Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender.


 


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(c) If the Administrative Agent is an Issuing Lender or is an Affiliate of an Issuing Lender,
then any Administrative Agent Resignation or Administrative Agent Removal shall also constitute the
resignation or removal of such Issuing Lender. In such event, (i) such Issuing Lender shall no
longer be obligated to issue additional Letters of Credit, (ii) in the case of an Administrative
Agent Removal only, Borrower shall either deliver the originals of all outstanding Letters of
Credit issued by such Issuing Lender to such Issuing Lender or enter into arrangements with respect
to such outstanding Letters of Credit as may be satisfactory to such Issuing Lender as a condition
to the effectiveness of the removal of the Administrative Agent and (iii) for so long as such
Letters of Credit remain outstanding, the Issuing Lender shall continue to have all of the rights
and obligations of an Issuing Lender hereunder with respect to such Letters of Credit issued by it
prior to its resignation or removal.



9.10 Authorization to Release Liens and Guarantees and Execute SNDAs. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders (a) to effect any
release of Liens or guarantee obligations contemplated by Section 10.15, and (b) upon
request of the Borrower, to execute and deliver subordination and non-disturbance agreements
whereby the Administrative Agent agrees not to disturb the rights of a counterparty to a Hotel
Agreement absent default by such party thereunder, and such party agrees that its rights under such
Hotel Agreement shall be subordinate to the Liens and security interests of the Administrative
Agent under the Loan Documents.



9.11 The Arrangers. Except to the extent expressly provided in this Agreement the
Arrangers, the Syndication Agents and the Documentation Agent shall not have any duties or
responsibilities, and neither shall incur liability, under this Agreement and the other Loan
Documents.



9.12 Withholding. To the extent required by applicable law, the Administrative Agent
may withhold from any payment to any Lender or other Person receiving payment under the Loan
Documents an amount equivalent to any applicable withholding tax. If the Internal Revenue Service
or any other Governmental Authority asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender or other Person receiving
payment under the Loan Documents because such Lender or other Person failed to notify the
Administrative Agent that withholding on payments was required, including, without limitation,
because of a change in circumstances which rendered an exemption from or reduction of withholding
Tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including any penalties or interest and together with all expenses incurred.



SECTION 10.

MISCELLANEOUS




10.1 Amendments and Waivers. Neither this Agreement or any other Loan Document, nor
any terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. The Required Lenders and each Loan Party to the relevant
Loan Document may, or (with the written consent of the Required Lenders)



 


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the Agents and each Loan Party to the relevant Loan Document may, from time to time, (a) enter
into written amendments, supplements or modifications hereto and to the other Loan Documents
(including amendments and restatements hereof or thereof) for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as may be
specified in the instrument of waiver, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall:




(i) forgive the principal amount or extend the final scheduled date of maturity of any
Loan or Reimbursement Obligation, extend the scheduled date of any amortization payment in
respect of any Incremental Term Loan or Incremental Delayed Draw Term Loan, reduce the
stated rate of any interest or fee payable hereunder or extend the scheduled date of any
payment thereof (including modifying the definition of the term “Interest Period” so as to
permit intervals in excess of six months), or increase the amount or extend the expiration
date of any Commitment of any Lender, in each case without the consent of each Lender
directly affected thereby;




(ii) amend, modify or waive any provision of this Section or reduce any percentage
specified in the definition of Required Lenders or Required Prepayment Lenders, consent to
the assignment or transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release or subordinate all or substantially all of
the Collateral or release or subordinate all or substantially all of the Subsidiary
Guarantors from their guarantee obligations under the Subsidiary Guaranty, in each case
without the consent of all Lenders;




(iii) amend, modify or waive any condition precedent to any extension of credit under
the Revolving Credit Facility set forth in Section 5.2 (including, without
limitation, the waiver of an existing Default or Event of Default required to be waived in
order for such extension of credit to be made) without the consent of any Majority Revolving
Credit Facility Lenders;




(iv) reduce the percentage specified in the definition of Majority Facility Lenders
with respect to any Facility without the written consent of all Lenders under such Facility;




(v) amend, modify or waive any provision of Section 9 without the consent of
any Agent directly affected thereby;




(vi) amend, modify or waive any provision of Section 2.6 or Section 2.7
without the written consent of the Swing Line Lender;




(vii) amend, modify or waive any provision of Section 2.19 or Section
2.13 without the consent of each Lender directly affected thereby;




(viii) amend, modify or waive any provision of Section 3 without the consent of
the Issuing Lender; or


 


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(ix) impose restrictions on assignments and participations that are more restrictive
than, or additional to, those set forth in Section 10.6.



Any such waiver and any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Agents
shall be restored to their former position and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon. Any such waiver, amendment, supplement or modification shall be effected
by a written instrument signed by the parties required to sign pursuant to the foregoing provisions
of this Section; provided that delivery of an executed signature page of any such
instrument by facsimile transmission shall be effective as delivery of a manually executed
counterpart thereof. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders may be effected
with the consent of all Lenders other than Defaulting Lenders), except that (x) no Commitment of
any Defaulting Lender may be increased or extended without the consent of such Lender and (y) any
waiver, amendment or other modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender.



For the avoidance of doubt, this Agreement and any other Loan Document may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party to each relevant Loan Document (x) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof (collectively, the “Additional
Extensions of Credit”) to share ratably in the benefits of this Agreement and the other Loan
Documents with the Incremental Term Loans, Incremental Delayed Draw Term Loans and Revolving
Extensions of Credit and the accrued interest and fees in respect thereof and (y) to include
appropriately the Lenders holding such credit facilities in any determination of the Required
Lenders, Required Prepayment Lenders and Majority Facility Lenders; provided,
however, that no such amendment shall permit the Additional Extensions of Credit to share
ratably with or with preference to the Loans in the application of mandatory prepayments without
the consent of the Required Prepayment Lenders.



Notwithstanding anything to the contrary contained herein, an amendment to this Agreement
entered into in connection with the establishment of the Incremental Loans pursuant to Section
2.8 shall not require the approval of the Lenders and shall be effective upon the execution of
an amendment (consistent with the terms of Section 2.8) of this Agreement between
Administrative Agent and Borrower.



10.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy



 


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notice, when received, addressed (a) in the case of the Borrower, the Arrangers and the
Administrative Agent, as follows and (b) in the case of the Lenders, as set forth in an
administrative questionnaire delivered to the Administrative Agent or on Schedule I to the Lender
Addendum to which such Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and Acceptance or (c) in the
case of any party, to such other address as such party may hereafter notify to the other parties
hereto:



	 	 	 	 	 
	 	The Borrower:
	Pinnacle Entertainment, Inc.
	 	 
	3800 Howard Hughes Parkway
	 	 
	Las Vegas, Nevada  89109
	 	 
	Attention:  Stephen H. Capp
	 	 
	With copies to:                  John A. Godfrey
	 	 
	                         Chris Plant
	 	 
	Telecopy:  (702) 784-7778
	 	 
	Telephone:  (702) 784-7777
	 	 
	 	 	 
	 	The Arrangers:
	Bank of America-Merrill Lynch
	 	 
	901 Main Street, 64th Floor
	 	 
	Dallas, TX 75202
	 	 
	Attn: Brian Corum
	 	 
	Telephone: (214) 209-0921
	 	 
	Telecopy: (214) 209-0905
	 	 
	 	 	 
	 	and:
	JPMorgan Securities Inc.
	 	 
	383 Madison Avenue
	 	 
	24th Floor
	 	 
	New York, NY 10179
	 	 
	Attention:  Marc E. Costantino
	 	 
	Telephone: 212-622-8167
	 	 
	 	 	 
	 	The Administrative Agent:
	Barclays Capital
	 	 
	70 Hudson St, FL 10th
	 	 
	Jersey City, NJ 07302
	 	 
	Phone: (201) 499-8095
	 	 
	Fax: (917) 522-0569
	 	 
	Attn:                Nicholas J. Guzzardo
	 	 
	         Portfolio Administrator
	 	 
	E-mail: nicholas.guzzardo@barcap.com
	 	 
	 	 	 
	 	Issuing Lender:
	As notified by such Issuing Lender to the 
Administrative Agent and the Borrower






provided that any notice, request or demand to or upon the any Agent, the Issuing Lender or
any Lender shall not be effective until received.


 


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10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any Agent or any Lender, any right, remedy, power or privilege hereunder
or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.



10.4 Survival of Representations and Warranties. All representations and warranties
made herein, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.



10.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Agents for
all their reasonable out-of-pocket costs and expenses incurred in connection with the syndication
of the Facilities (other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this Agreement and the other
Loan Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements and other charges of counsel to the
Administrative Agent and the charges of Intralinks, (b) to pay or reimburse each Lender and the
Agents for all their costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and disbursements and other charges of in-house counsel) to
each Lender and of counsel to the Agents, (c) to pay, indemnify, or reimburse each Lender and the
Agents for, and hold each Lender and the Agents harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to
pay, indemnify or reimburse each Lender, each Agent, their respective affiliates, and their
respective officers, directors, trustees, employees, advisors, agents and controlling persons
(each, an “Indemnitee”) for, and hold each Indemnitee harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any
such other documents, including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Borrower any of its Subsidiaries or any of the Properties
and the fees and disbursements and other charges of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against the Borrower hereunder (all the foregoing in this
clause (d), collectively, the “Indemnified Liabilities”), provided that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable



 


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decision of a court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. No Indemnitee shall be liable for any damages arising from
the use by unauthorized persons of information or other materials sent through electronic,
telecommunications or other information transmission systems that are intercepted by such persons
or for any special, indirect, consequential or punitive damages in connection with the Facilities.
Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause
its Subsidiaries so to waive, all rights for contribution or any other rights of recovery with
respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might
have by statute or otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefore. Statements payable by the Borrower
pursuant to this Section shall be submitted to Chris Plant (Telephone No. (702) 784-7727) (Fax No.
(702) 784-7778), at the address of the Borrower set forth in Section 10.2, or to such other
Person or address as may be hereafter designated by the Borrower in a notice to the Administrative
Agent. The agreements in this Section shall survive repayment of the Loans and all other amounts
payable hereunder.




10.6 Successors and Assigns; Participations and Assignments.



(a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Agents, all future holders of the Loans and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agents and each Lender.



(b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities other than a
Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries (each, a
“Participant”) participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s
obligations under this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and
the Borrower and the Agents shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent
would require the consent of all Lenders pursuant to Section 10.1. The Borrower agrees
that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right
of setoff in respect of its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing directly to it as a Lender
under this Agreement, provided that, in purchasing such participating interest, such
Participant



 


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shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in
Section 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of Section 2.20, Section
2.21 and Section 2.22 with respect to its participation in the Commitments and the
Loans outstanding from time to time as if such Participant were a Lender; provided that, in
the case of Section 2.21, such Participant shall have complied with the requirements of
said Section, and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. Each Lender that sells a participation
shall maintain a register on which it enters the name and address of each Participant and the
principal amounts of each Participant’s interest in the Loans (or other rights or obligations) held
by it (the “Participant Register”). The entries in the Participant Register shall be
conclusive, and such Lender shall treat each Person whose name is recorded in the Participant
Register as the owner of such Loan (or other right or obligation) hereunder as the owner thereof
for all purposes of this Agreement notwithstanding any notice to the contrary. Any such
Participant Register shall be available for inspection by an Agent at any reasonable time and from
time to time upon reasonable prior notice.



(c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written
notice to the Administrative Agent, at any time and from time to time assign to any Lender or any
affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the
Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each
case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent
need be obtained by the Administrative Agent or any of its affiliates and (y) the consent of the
Borrower need not be obtained with respect to any assignment of Incremental Term Loans or
Incremental Delayed Draw Term Loans), to an additional bank, financial institution or other entity
(an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant
to an Assignment and Acceptance executed by such Assignee and such Assignor (and, where the consent
of the Borrower or, the Agents or the Issuing Lender or the Swing Line Lender is required pursuant
to the foregoing provisions, by the Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided that no
such assignment to an Assignee (other than any Lender, Related Fund or any affiliate thereof) shall
be in an aggregate principal amount of less than $5,000,000 as to the Revolving Credit Facility,
$1,000,0000 as to the Incremental Term Facility or the Incremental Delayed Draw Term Facility
(other than in the case of an assignment of all of a Lender’s interests under this Agreement),
unless otherwise agreed by the Borrower and the Administrative Agent. Any such assignment need not
be ratable as among the Facilities, but shall be a ratable portion of each Facility so assigned.
Upon such execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto, except as to Section 2.20, Section 2.21 and Section
10.5 in respect of the period prior to such effective date). Notwithstanding any



 


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provision of this Section, the consent of the Borrower shall not be required for any
assignment that occurs at any time when any Event of Default shall have occurred and be continuing.
For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments
by two or more Related Funds shall be aggregated.



(d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a
register (the “Register”) for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. In
addition, the Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting Lender. The entries in
the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent
and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the
Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one
or more new Notes in the same aggregate principal amount shall be issued to the designated
Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked
“canceled”. The Register shall be available for inspection by the Borrower or any Lender (with
respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time
upon reasonable prior notice. A list of current Lenders will be made available for any Lender who
requests same while any amendment to this Agreement is pending.



(e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee
(and, in any case where the consent of any other Person is required by Section 10.6(c), by
each such other Person) together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related
Funds as a single assignment) (except that no such registration and processing fee shall be payable
in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender
or a Person under common management with a Lender), the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of such acceptance and
recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense,
upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving
Credit Note, Incremental Term Note and/or Incremental Delayed Draw Term Note, as the case may be,
of the assigning Lender) a new Revolving Credit Note, Incremental Term Note and/or Incremental
Delayed Draw Term Note, as the case may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment, Incremental Term Loans and/or Incremental Delayed Draw Term Commitment
and Incremental Delayed Draw Term Loans, as the case may be, assumed or acquired by it pursuant to
such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment,
Incremental Term Loan and/or Incremental Delayed Draw Term Commitment and Incremental Delayed Draw
Term Loans, as the case may be, upon request, a



 


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new Revolving Credit Note, Incremental Term Note and/or Incremental Delayed Draw Term Note, as
the case may be, to the order of the Assignor in an amount equal to the Revolving Credit
Commitment, Incremental Term Loans and/or Incremental Delayed Draw Term Commitment and Incremental
Delayed Draw Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes
shall be dated the Effective Date and shall otherwise be in the form of the Note or Notes replaced
thereby.



(f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of
this Section concerning assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests in Loans and Notes,
including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law, or, in the case of a Lender which is a
fund, to any holders of obligations owned or securities issued by such Lender or to any trustee
for, or other representatives of, such holders. No such assignments creating security interest
shall require the consent or approval of either the Administrative
Agent or Borrower (provided,
however, any absolute assignments do require such consent and approval as provided in this
Section 10.6).



(g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with
notice to, but without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender, or with the prior written consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld) to any financial institutions providing
liquidity and/or credit support to or for the account of such SPC to support the funding or
maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating
to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC; provided that non-public information with
respect to the Borrower may be disclosed only with the Borrower’s consent which will not be
unreasonably withheld. This paragraph (g) may not be amended



 


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without the written consent of any SPC with Loans outstanding at the time of such proposed
amendment.



(h) No such assignment shall be made (i) without the consent of the Required Lenders and the
Administrative Agent and cancellation of the Commitments and Obligations assigned with such
consent, to the Borrower or any of the Borrower’s Affiliates or Subsidiaries (ii) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (ii), or (iii) to a natural
person. Any Commitments or Obligations assigned (with or without Required Lender consent) to the
Borrower or any Subsidiary or Affiliate of the Borrower shall be deemed cancelled and no longer
outstanding and no such assignee shall have any right whatsoever with respect to that portion of
the Commitments or Obligations so assigned, including to (x) consent to any amendment,
modification, waiver, consent or other action with respect to any of the terms of any Loan
Document, or otherwise to vote on any matter related to any Loan Document or require the
Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with
respect to any Loan Document, (y) attend any meeting with the Administrative Agent or any Lender or
receive any information from any Agent or any Lender, or to the benefit of any advice provided by
counsel to the Administrative Agent or the other Lenders or to challenge the attorney-client
privilege of the communications between the Administrative Agent, such other Lenders and such
counsel, or (z) make or bring any claim, in the capacity of a Lender, against the Administrative
Agent with respect to the duties of the Administrative Agent to such assignee.




10.7 Adjustments; Set-off.



(a) Except to the extent that this Agreement provides for payments to be allocated to a
particular Lender or to the Lenders under a particular Facility, if any Lender (a “Benefited
Lender”) shall at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any other Lender, if
any, in respect of such other Lender’s Obligations, such Benefited Lender shall purchase for Cash
from the other Lenders a participating interest in such portion of each such other Lender’s
Obligations, or shall provide such other Lenders with the benefits of any such collateral, as shall
be necessary to cause such Benefited Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that (i) if all or
any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest; and (ii) the provisions of this Section 10.7(a) shall
not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and
in accordance with the express terms of this Agreement (including the application of funds arising
from the Back-Stop Arrangements), (y) the application of proceeds of Back-Stop Arrangements in
respect of obligations relating to Letters of Credit and Swing Line Loans (including related Lender
participation obligations) provided for in Section 2.26, or (z) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Commitments,
Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant,
other than an assignment to



 


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the Borrower or any Affiliate thereof (as to which the provisions of this Section
10.7(a) shall apply unless such assignment is made with the consent of the Required Lenders.



(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower; provided, that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.27 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y)
the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.



10.8 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature page
of this Agreement or of a Lender Addendum by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.



10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions
of this Section 10.9, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined
in good faith by the Administrative Agent, the Issuing Lenders or the Swing Line Lender, as
applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.



10.10 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Agents, the Arranger and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Arranger, any Agent or any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.


 


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10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.



10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:



(a) submits for itself and its Property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;



(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant thereto;



(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.




10.13 Acknowledgments. The Borrower hereby acknowledges that:



(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;



(b) neither the Arranger, any Agent nor any Lender has any fiduciary relationship with or duty
to the Borrower arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Arranger, the Agents and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and



(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Arranger, the Agents and the Lenders or
among the Borrower and the Lenders.



10.14 Confidentiality. Each of the Agents and the Lenders agrees to keep confidential
all non-public information provided to it by any Loan Party pursuant to this



 


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Agreement that is designated by such Loan Party as confidential; provided that nothing
herein shall prevent any Agent or any Lender from disclosing any such information (a) to the
Arranger, any Agent, any other Lender or any affiliate of any thereof, (b) to any Participant,
pledgee or Assignee (each, a “Transferee”) or prospective Transferee that agrees to comply
with the provisions of this Section or substantially equivalent provisions, (c) to any of its
employees, directors, agents, attorneys, accountants and other professional advisors, (d) to any
financial institution that is a direct or indirect contractual counterparty in swap agreements or
such contractual counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the provisions of this
Section), (e) upon the request or demand of any Governmental Authority having jurisdiction over it,
(f) in response to any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (g) in connection with any litigation or similar
proceeding, (h) that has been publicly disclosed other than in breach of this Section, (i) to the
National Association of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender or (j) in connection with the
exercise of any remedy hereunder or under any other Loan Document. Notwithstanding anything to the
contrary in the foregoing sentence or any other express or implied agreement, arrangement or
understanding, the parties hereto hereby agree that, from the commencement of discussions with
respect to the financing provided hereunder, any party hereto (and each of its employees,
representatives, or agents) is permitted to disclose to any and all persons, without limitation of
any kind, the tax structure and tax aspects of the transactions contemplated hereby, and all
materials of any kind (including opinions or other tax analyses) related to such tax structure and
tax aspects.




10.15 Release of Collateral and Guarantee Obligations.



(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,
upon request of the Borrower in connection with any Disposition of Property permitted by the Loan
Documents, the Administrative Agent shall timely, and in no event later than thirty (30) days
following the Administrative Agent’s receipt of the notice of such disposition (without notice to,
or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee obligations under
any Loan Document of any Person being Disposed of in such Disposition, to the extent necessary to
permit consummation of such Disposition in accordance with the Loan Documents.



(b) Notwithstanding anything to the contrary contained herein or any other Loan Document, when
all Obligations (other than obligations in respect of any Specified Hedge Agreement and
indemnification obligations which are not then due and payable) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be outstanding, upon request
of the Borrower, the Administrative Agent shall promptly (without notice to, or vote or consent of,
any Lender, or any affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in all Collateral, and to
release all guarantee obligations under any Loan Document, whether or not on the date of such
release there may be outstanding Obligations in respect of Specified Hedge



 


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Agreements. Any such release of guarantee obligations shall be deemed subject to the
provision that such guarantee obligations shall be reinstated if after such release any portion of
any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or
any substantial part of its property, or otherwise, all as though such payment had not been made.



10.16 Accounting Changes. In the event that any “Accounting Change” (as defined
below) shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the criteria for evaluating
the Borrower’s financial condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. “Accounting Change” refers to (a) any
change in accounting principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC, the Borrower’s manner of accounting addressed in the
preferability letter from the Borrower’s independent auditors to the Borrower in order for such
auditor to deliver an opinion to the Borrower’s financial statements required to be delivered
pursuant to Section 6.1 without qualification.



10.17 Delivery of Lender Addenda. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender,
the Borrower and the Administrative Agent.



10.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



10.19 USA Patriot Act Notification. The Lenders hereby notify the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
on October 26, 2001)) (the “Act”), the Lenders are 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 the Lenders to identify the Borrower in accordance
with the Act. The Borrower agrees to cooperate with each Lender with respect to the requirements
of the Act and to provide true, accurate and complete information to each Lender in response to any
request relating thereto.


 


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10.20 Gaming Laws and Liquor Laws. Any other provision of this Agreement or any other
Loan Documents to the contrary notwithstanding, all rights, remedies and powers provided in this
Agreement and the other Loan Documents, including with respect to the Collateral, may be exercised
only to the extent, and in the manner, that the exercise thereof does not violate any applicable
Gaming Laws and Liquor Laws, and only to the extent that required approvals, including prior
approvals are obtained from the requisite Gaming Boards and Liquor Authorities. Further, all
provisions of this Agreement and the other Loan Documents, including with respect to the
Collateral, are intended to be subject to all applicable mandatory provisions of the Gaming Laws
and Liquor Laws and to be limited solely to the extent necessary to not render the provisions of
this Agreement and the other Loan Documents invalid or unenforceable, in whole or in part.
Administrative Agent will timely apply for and receive all required approvals, and otherwise comply
with all rules and regulations, of the applicable Gaming Board and Liquor Authorities for the sale
or other disposition of any Collateral, including, without limitation, any interest in any
Restricted Subsidiary holding a Gaming License, Liquor License or any gaming property or equipment
regulated by Gaming Laws (including any gaming equipment consisting of slot machines, gaming
tables, cards, dice, gaming chips, player tracking systems, and all other “gaming devices” (as such
terms or words of like import referring thereto are defined in the applicable Gaming Laws)), and
“associated equipment” (as such term or other words of like import referring thereto are defined in
applicable Gaming Laws).



[signature pages to follow]



 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	PINNACLE ENTERTAINMENT, INC.,

a Delaware corporation, as Borrower

 	 
	 	By:  	/s/ Stephen H. Capp
 	 
	 	 	Name:  	Stephen H. Capp 	 
	 	 	Title:  	Executive Vice President and

Chief Financial Officer 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC

as Administrative Agent

 	 
	 	By:  	/s/ Craig Malloy
 	 
	 	 	Name:  	Craig Malloy 	 
	 	 	Title:  	Vice President 	 



Signature Page to Third Amended and Restated Credit Agreement




 












 





	 	 	 	 	 
	 	BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arranger

 	 
	 	By:  	/s/ Thomas T. Shealy, Jr.
 	 
	 	 	Name:  	Thomas T. Shealy, Jr. 	 
	 	 	Title:  	Managing Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 





	 	 	 	 	 
	 	JPMORGAN SECURITIES INC.,

as Joint Lead Arranger

 	 
	 	By:  	/s/ Kenneth A. Lang
 	 
	 	 	Name:  	Kenneth A. Lang 	 
	 	 	Title:  	Managing Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 





	 	 	 	 	 
	 	WELLS FARGO, N.A.,

as Issuing Lender

 	 
	 	By:  	/s/ Clark A. Wood
 	 
	 	 	Name:  	Clark A. Wood 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 





	 	 	 	 	 
	 	LENDER:



Deutsche Bank Trust Company Americas

 	 
	 	By:  	/s/ Mary Kay Coyle
 	 
	 	 	Name:  	Mary Kay Coyle 	 
	 	 	Title:  	Managing Director 	 
	 	 	 
	 	By:  	                                                  /s/ Robert M. Wood, Jr.
 	 
	 	 	Name:  	Robert M. Wood, Jr. 	 
	 	 	Title:  	Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER:



UBS LOAN FINANCE LLC

 	 
	 	By:  	/s/ Marie Haddad
 	 
	 	 	Name:  	Marie Haddad 	 
	 	 	Title:  	Associate Director 	 
	 	 	 
	 	By:  	                                                  /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER:

 	 
	 	/s/ Marc E. Costantino
 	 
	 	By: 	 JPMorgan Chase Bank, N.A. 	 
	 	 	 	Name: Marc E. Costantino
	 
	 	  	 	Title:   Executive Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER:



Bank of America, N.A.

 	 
	 	By:  	/s/ Brian D. Corum
 	 
	 	 	Name:  	Brian D. Corum 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER: Calyon New York Branch

 	 
	 	By:  	/s/ David Bowers
 	 
	 	 	Name:  	David Bowers 	 
	 	 	Title:  	Managing Director 	 
	 	 	 
	 	By:  	                                                  /s/ Joseph A. Asciolla
 	 
	 	 	Name:  	Joseph A. Asciolla 	 
	 	 	Title:  	Managing Director 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER:



Barclays Bank PLC

 	 
	 	By:  	/s/ Craig Malloy
 	 
	 	 	Name:  	Craig Malloy 	 
	 	 	Title:  	Vice President 	 



Signature Page to Third Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LENDER:



CAPITAL ONE NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Ross S. Wales
 	 
	 	 	Name:  	Ross S. Wales 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Third Amended and Restated Credit Agreement




 












 







Annex A


PRICING GRID





The margins set forth in the following table shall apply:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 	 	Applicable Margin	 	 	 	 
	Consolidated Total Leverage	 	LIBOR Loans/ Letter of	 	 	for Base Rate	 	 	 	 
	Ratio	 	Credit Fees	 	 	Loans	 	 	Commitment Fee	 
	< 4.00:1
	 	 	3.000	%	 	 	1.500	%	 	 	0.250	%
	> 4.00:1 but < 4.50:1
	 	 	3.250	%	 	 	1.750	%	 	 	0.300	%
	> 4.50:1 but < 5.00:1
	 	 	3.500	%	 	 	2.000	%	 	 	0.375	%
	> 5.00:1 but < 5.50:1
	 	 	3.750	%	 	 	2.250	%	 	 	0.375	%
	> 5.50:1 but < 6.00:1
	 	 	4.000	%	 	 	2.500	%	 	 	0.500	%
	> 6.00:1 but < 6.50:1
	 	 	4.250	%	 	 	2.750	%	 	 	0.500	%
	> 6.50:1 but < 7.00:1
	 	 	4.500	%	 	 	3.000	%	 	 	0.500	%
	> 7.00:1
	 	 	4.750	%	 	 	3.250	%	 	 	0.750	%






Changes in the Applicable Margin and the Commitment Fee Rate resulting from changes in the
Consolidated Total Leverage Ratio shall become effective on the date (the “Adjustment
Date”) on which financial statements are delivered or required to be delivered to the Lenders
pursuant to Section 6.1(a) or Section 6.1(b) of this Agreement (but in any event
not later than the 45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case may be) and shall remain
in effect until the next change to be effected pursuant to this paragraph. Notwithstanding the
foregoing, the Consolidated Total Leverage Ratio shall be deemed to be greater than 6.00:1 but less
than or equal to 6.50:1 from the Effective Date to the date on which the financial statements are
delivered or required to be delivered to the Lenders pursuant to this Agreement for the fiscal
period ended at least three full months after the Effective Date. If any financial statements
referred to above are not delivered within the time periods specified above, then, until such
financial statements are delivered, the Consolidated Total Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of this definition be the
highest level for all pricing grids.



In the event that any financial statement or any Compliance Certificate delivered pursuant to
Section 6.1(a) or Section 6.1(b) of this Agreement is shown to be inaccurate, and
such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an
“Applicable Period”) than such margin applied for such Applicable Period, then (i) the
Borrower shall immediately deliver to Administrative Agent a corrected Compliance Certificate for
such Applicable Period, (ii) the Applicable Margin shall be determined by reference to the
corrected Compliance Certificate (but in no event shall the Lenders owe any amounts to the
Borrower), and (iii) the Borrower shall immediately pay to Administrative Agent the additional
interest owing as a result of such increased margin for such Applicable Period, which payment shall
be promptly applied by Administrative Agent in accordance with the terms hereof (it being
understood and agreed that nothing in this section shall limit the rights of Administrative Agent
and the Lenders hereunder).




 


A-1











 




Schedule 1.1(a)




List of Mortgaged Properties (Leasehold and Fee)




DESCRIPTION OF PROPERTIES





	1.	 	Belterra Resort & Casino (fee and leasehold interests) located at 777 Belterra Drive,
Belterra, Indiana 47020

	 
	2.	 	Boomtown Bossier City (fee and leasehold interests) located at 300 Riverside Drive in
Bossier City, Louisiana 71111

	 
	3.	 	Boomtown New Orleans (fee) located at 4132 Peters Road, Harvey, Louisiana 70058

	 
	4.	 	River City Property

	 
	5.	 	Lumiere Property

	 
	6.	 	Property (fee) located at 901 and 925 N. First Street in St. Louis, Missouri 63102

	 
	7.	 	Property (19 parcels) (fee) located in St. Louis, Missouri, owned by PNK (ST. LOUIS RE),
LLC.

	 
	8.	 	Property (fee) located in St. Louis, Missouri, owned by Pinnacle Entertainment, Inc.
(Cherrick’s subdivision)

	 
	9.	 	Property (leasehold interest) located in St. Louis, Missouri, leased by President
Riverboat Casino-Missouri, Inc. (Mooring Points)

	 
	10.	 	Boomtown Hotel and Casino (fee, including water rights) located in Reno, Nevada

	 
	11.	 	Property (fee, including water rights) located at 1800 S. Verdi Road, Verdi, Nevada
89439

	 
	12.	 	Property (fee, including water rights) located at 350 Boomtown Garson Road, Verdi,
Nevada 89439

	 
	13.	 	L’Auberge du Lac Hotel and river-boat Casino (fee and leasehold interests) located in
Lake Charles, Louisiana

	 
	14.	 	Property (fee) to be used for roadway, signage or other use related to the Lake Charles
Project located in Lake Charles, Louisiana.

	 
	15.	 	Property (water line easement), located in Lake Charles, Louisiana





 


 









 










DESCRIPTION OF PROPERTIES





	16.	 	Four parcels (fee) purchased from Richard, Sittig, Connor, and Hatchett, portions of
which are to be dedicated as a public roadway providing alternative access to the L’Auberge
du Lac Hotel in Lake Charles, Louisiana

	 
	17.	 	Property (fee) located in Lake Charles, LA, owned by PNK (Lake Charles), L.L.C.
(Burgoyne Residence)

	 
	18.	 	Property (fee) located in Lake Charles, LA, owned by PNK (SCB), L.L.C. (Harrah’s
Acquisition)

	 
	19.	 	Property (leasehold interest) located in Lake Charles, Louisiana, leased by PNK (Lake
Charles), L.L.C. (Sugarcane Bay)

	 
	20.	 	Property (fee) located in Lake Charles, Louisiana, owned by PNK (Lake Charles), L.L.C.
(Country Club Road)

	 
	21.	 	Property (fee) located in Baton Rouge, Louisiana, owned by Yankton Investments, LLC

	 
	22.	 	Property (fee) located in Baton Rouge, Louisiana, owned by PNK (Baton Rouge) Partnership

	 
	23.	 	Property (fee) located in Central City, Colorado, owned by Pinnacle Entertainment, Inc.





 


- 2 -









 










Schedule 1.1(b)




List of Preferred Ship Mortgages




DESCRIPTION OF PREFERRED SHIP MORTGAGES




“MARY’S PRIZE”, NO. 1028011





	1.	 	Amended and Restated Preferred Ship Mortgage, dated as of December 14, 2005,
recorded January 10, 2006 as Document No. 4755187, Batch 445312 in the Official
Records of the National Vessel Documentation Center

	 
	2.	 	First Amendment to Amended and Restated Preferred Ship Mortgage, dated
November 17, 2006, recorded November 17, 2006 as Document No. 6345200, Batch
554870 in the Official Records of the National Vessel Documentation Center

	 
	3.	 	Assignment, Assumption and Amendment of Amended and Restated Preferred Ship
Mortgage, dated July 24, 2009, recorded July 24, 2009 as Document No. 10805035,
Batch 702697 in the Official Records of the National Vessel Documentation
Center






“BOOMTOWN BELLE II”, NO. 1028319





	4.	 	Amended and Restated Preferred Ship Mortgage, dated as of December 14, 2005,
recorded January 10, 2006 as Document No. 4755189, Batch 445312 in the Official
Records of the National Vessel Documentation Center

	 
	5.	 	First Amendment to Amended and Restated Preferred Ship Mortgage, dated
November 14, 2006, recorded November 17, 2006 as Document No. 6345197, Batch
554870 in the Official Records of the National Vessel Documentation Center

	 
	6.	 	Assignment, Assumption and Amendment of Amended and Restated Preferred Ship
Mortgage, dated July 24, 2009, recorded July 24, 2009 as Document No. 10805032,
Batch 702697 in the Official Records of the National Vessel Documentation
Center






“MISS BELTERRA”, NO. 1098321





	7.	 	Amended and Restated Preferred Ship Mortgage, dated December 30, 2005,
recorded January 10, 2006 as Document No. 4755190, Batch 445312 in the Official
Records of the National Vessel Documentation Center

	 
	8.	 	First Amendment to Amended and Restated Preferred Ship Mortgage, dated
November 17, 2006, recorded November 17, 2006 as Document No. 6345203, Batch
554870 in the Official Records of the National Vessel Documentation Center





 


 









 










DESCRIPTION OF PREFERRED SHIP MORTGAGES





	9.	 	Assignment, Assumption and Amendment of Amended and Restated Preferred Ship
Mortgage, dated July 24, 2009, recorded July 24, 2009 as Document No. 10805028,
Batch 702697 in the Official Records of the National Vessel Documentation
Center






“L’AUBERGE DU LAC”, NO. 1160993





	10.	 	Amended and Restated Preferred Ship Mortgage, dated December 30, 2005,
recorded January 10, 2006 as Document No. 4755188, Batch 445312 in the Official
Records of the National Vessel Documentation Center

	 
	11.	 	First Amendment to Amended and Restated Preferred Ship Mortgage, dated
November 14, 2006, recorded November 17, 2006 as Document No. 6345194, Batch
554870 in the Official Records of the National Vessel Documentation Center

	 
	12.	 	Assignment, Assumption and Amendment of Amended and Restated Preferred Ship
Mortgage, dated July 24, 2009, recorded July 27, 2009 as Document No. 10823994,
Batch 702852 in the Official Records of the National Vessel Documentation
Center






“ADMIRAL”, NO. 204086 AND “ADMIRAL BARGE ONE”, NO. 689603





	13.	 	Preferred Ship Mortgage, dated July 24, 2009, recorded July 27, 2009 as
Document No. 10824254, Batch 703338 in the Official Records of the National
Vessel Documentation Center





 


- 2 -









 










Schedule 1.1(c)




List of Post-Closing Gaming Pledge Agreement Amendments




None




 


 









 







Schedule 1.1(d)




List of Existing Letters of Credit





	•	 	Letter of Credit #NZS532493 in the amount of $187,500 for the benefit of Fidelity
and Deposit Company of Maryland becoming due on November 30, 2010

	 
	•	 	Letter of Credit #NZS553188 in the amount of $6,159,478 for the benefit of Zurich
American Insurance becoming due on September 13, 2010

	 
	•	 	Letter of Credit #NZS567622 in the amount of $525,000 for the benefit of United
States Fidelity & Guaranty Company becoming due on March 22, 2010

	 
	•	 	Letter of Credit #NZS581422 in the amount of $2,750,000 for the benefit of Zurich
American Insurance becoming due on September 29, 2010

	 
	•	 	Letter of Credit #NZS594199 in the amount of $3,000,000 for the benefit of National
City Bank becoming due on May 13, 2010





 


 









 










Schedule 4.4




List of Outstanding Consents, Authorizations, Filings, Proceedings and Notices




SEC




Filing a Form 8-K with the SEC regarding the execution of the Third Amended and Restated Credit
Agreement and the other Loan Documents and the consummation of the transactions contemplated
thereby within four (4) business days of the Effective Date.



Gaming Boards





	1.	 	Louisiana:







	 	1.1.	 	The transaction and informational reports as required by Louisiana Gaming Control Board
regulations which will be filed within 15 days after the Effective Date. Such advance
notice to and prior consent, exemption, waiver, or written approval of the Louisiana Gaming
Control Board as may be required by Louisiana Gaming Laws and regulations in the event that
Borrower requests that Lenders and/or New Lenders provide any of the Incremental Facilities
described in and subject to the terms and conditions of the Third Amended and Restated
Credit Agreement.







	2.	 	Nevada:







	 	2.1.	 	Such post-closing transaction and informational reports as may be required by the
Nevada Gaming Commission Regulation 8.130 to be filed with the Nevada State Gaming Control
Board within thirty (30) days after the end of the calendar quarter in which the Effective
Date occurs; and







	3.	 	Missouri:







	 	3.1.	 	File with the Missouri Gaming Commission notice of closing and informational report
with closing documentation within seven(7) days of closing.







	4.	 	Indiana:







	 	4.1.	 	Submission of a legal opinion from Indian gaming counsel demonstrating compliance with
IC 4-33-4-21.






Filings, Registrations and Recordings




Filing and recording of new UCC-1 financing statements



Filing of amendments to the Mortgages covering the Property listed on Schedule 4.19(b).



All items noted above on this Schedule 4.4 with respect to the Gaming Boards.



All items noted in the Post Closing Agreement


 


 









 





Schedule 4.15 (a)




List of Subsidiaries (Unrestricted, Restricted and Immaterial)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	No.	 	 	 	 
	 	 	 	 	 	 	 	 	Shares/Units	 	 	 	 
	 	 	 	 	 	 	 	 	Owned by	 	 	 	 
	 	 	Jurisdiction of	 	No. Shares/Units	 	Borrower or	 	 	 	 
	 	 	Organization,	 	Issued &	 	Subsidiary of	 	 	 	Type of
	Name	 	Type of Entity	 	Outstanding	 	Borrower	 	Owner	 	Subsidiary1
	ACE Gaming LLC
(uncertificated)

	 	New Jersey LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 13, LLC
	 	U
	AREH MLK LLC
(uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Biloxi Casino Corp.
	 	U
	AREP Boardwalk Properties LLC
(uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Biloxi Casino Corp.
	 	U
	Belterra Resort Indiana, LLC
(certificated, elected into UCC Article 8)

	 	Nevada LLC
	 	970 Voting Units
30 Non-Voting Units
	 	1,000 Units
	 	Pinnacle Entertainment, Inc.
	 	R
	BILOXI CASINO CORP.

	 	Mississippi corporation
	 	 	1,250	 	 	 	1,250	 	 	Casino Magic Corp.
	 	R
	Boomtown, LLC
(certificated, elected into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	Brighton Park Maintenance Corp.

	 	New Jersey corporation
	 	 	100	 	 	 	100	 	 	ACE Gaming, LLC
	 	U
	Casino Magic Corp.

	 	Minnesota corporation
	 	 	35,000,000	 	 	 	35,000,000	 	 	Pinnacle Entertainment, Inc.
	 	R
	Casino Magic (Europe), BV (uncertificated)

	 	Netherlands corporation
	 	 	40	 	 	 	40	 	 	Casino Magic Corp.
	 	U
	Casino Magic Hellas Management Services, SA
(uncertificated)

	 	Greece corporation
	 	 	10,000	 	 	 	9,999	 	 	Casino Magic (Europe), BV
	 	U
	Casino Magic Management Services Corp.

	 	Minnesota corporation
	 	 	1,000	 	 	 	1,000	 	 	Casino Magic Corp.
	 	R, I
	Casino Magic Neuquen, SA (uncertificated)

	 	Argentina
	 	 	3,917,000	 	 	 	3,917,000	 	 	Casino Magic Corp. (3,799,490
shares) and Casino Magic Management
Services Corp. (117,510 shares)
	 	U





 





	 	 	 
	1	 	“R” = Restricted; “U” = Unrestricted; “I” = Immaterial.




 


 









 









	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	No.	 	 	 	 
	 	 	 	 	 	 	 	 	Shares/Units	 	 	 	 
	 	 	 	 	 	 	 	 	Owned by	 	 	 	 
	 	 	Jurisdiction of	 	No. Shares/Units	 	Borrower or	 	 	 	 
	 	 	Organization,	 	Issued &	 	Subsidiary of	 	 	 	Type of
	Name	 	Type of Entity	 	Outstanding	 	Borrower	 	Owner	 	Subsidiary1
	Casino One Corporation

	 	Mississippi corporation
	 	 	100	 	 	 	100	 	 	Casino Magic Corp.
	 	R
	Double Bogey, LLC (uncertificated)

	 	Texas LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	Landing Condominium, LLC (uncertificated)

	 	Missouri LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	U
	Louisiana-I Gaming, a Louisiana Partnership in
Commendam
(uncertificated)

	 	Louisiana partnership
in Commendam
	 	 	—	 	 	 	—	 	 	Boomtown, LLC
(5% General Partnership Interest and
90% Limited Partnership Interest)
Pinnacle Entertainment, Inc.
(5% Limited Partnership Interest)
	 	R
	Mitre Associates LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 13, LLC
	 	U
	OGLE HAUS, LLC (uncertificated)

	 	Indiana LLC
	 	 	100%	 	 	 	100%	 	 	Belterra Resort Indiana, LLC
	 	R, I
	Pinnacle Design & Construction, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK (Baton Rouge) Partnership (uncertificated)

	 	Louisiana partnership
	 	 	100%	 	 	 	100%	 	 	PNK Development 8, LLC (1%)

PNK Development 9, LLC (99%)
	 	R
	PNK (BOSSIER CITY), Inc.

	 	Louisiana corporation
	 	 	100	 	 	 	100	 	 	Casino Magic Corp.
	 	R
	PNK (CHILE 1), LLC
(certificated, did not elect into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK (CHILE 2), LLC
(certificated, did not elect into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 1, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	U






 


- 2 -









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	No.	 	 	 	 
	 	 	 	 	 	 	 	 	Shares/Units	 	 	 	 
	 	 	 	 	 	 	 	 	Owned by	 	 	 	 
	 	 	Jurisdiction of	 	No. Shares/Units	 	Borrower or	 	 	 	 
	 	 	Organization,	 	Issued &	 	Subsidiary of	 	 	 	Type of
	Name	 	Type of Entity	 	Outstanding	 	Borrower	 	Owner	 	Subsidiary1
	PNK Development 2, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK Development 3, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK Development 4, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 5, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 6, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 7, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	PNK Development 8, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	PNK Development 9, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	PNK Development 10, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK Development 11, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK Development 12, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 13, LLC (uncertificated)

	 	New Jersey LLC
	 	 	100%	 	 	 	100%	 	 	Biloxi Casino Corp.
	 	U
	PNK Development 15, LLC (uncertificated)

	 	Pennsylvania LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 16, LLC (uncertificated)

	 	Indiana LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 17, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK Development 18, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 11, LLC
	 	U






 


- 3 -









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	No.	 	 	 	 
	 	 	 	 	 	 	 	 	Shares/Units	 	 	 	 
	 	 	 	 	 	 	 	 	Owned by	 	 	 	 
	 	 	Jurisdiction of	 	No. Shares/Units	 	Borrower or	 	 	 	 
	 	 	Organization,	 	Issued &	 	Subsidiary of	 	 	 	Type of
	Name	 	Type of Entity	 	Outstanding	 	Borrower	 	Owner	 	Subsidiary1
	PNK Development 19, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 20, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 21, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 22, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 23, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 24, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 25, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 26, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 27, LLC (uncertificated)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK Development 28, LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 11, LLC
	 	U
	PNK (ES), LLC
(certificated, did not elect into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	PNK (EXUMA), LIMITED (certificated, did not elect
into UCC Article 8)

	 	Bahamas corporation
	 	 	5,000	 	 	 	4,999	 	 	Pinnacle Entertainment, Inc.
	 	U
	PNK (Kansas), LLC (uncertificated)

	 	Kansas LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 17, LLC
	 	U
	PNK (LAKE CHARLES), L.L.C.
(uncertificated)

	 	Louisiana LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	PNK (Reno), LLC
(certificated, elected into UCC Article 8)

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R






 


- 4 -









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	No.	 	 	 	 
	 	 	 	 	 	 	 	 	Shares/Units	 	 	 	 
	 	 	 	 	 	 	 	 	Owned by	 	 	 	 
	 	 	Jurisdiction of	 	No. Shares/Units	 	Borrower or	 	 	 	 
	 	 	Organization,	 	Issued &	 	Subsidiary of	 	 	 	Type of
	Name	 	Type of Entity	 	Outstanding	 	Borrower	 	Owner	 	Subsidiary1
	PNK (River City), LLC (uncertificated)

	 	Missouri LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK (SCB), L.L.C.

	 	Louisiana LLC
	 	 	100%	 	 	 	100%	 	 	PNK Development 7, LLC
	 	R
	PNK Scholarship Trust

	 	Nevada Trust
	 	 	100%	 	 	 	100%	 	 	A Scholarship Trust established by
Pinnacle Entertainment, Inc.
	 	N/A
	PNK (ST. LOUIS RE), LLC
(certificated, did not elect into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I
	PNK (STLH), LLC
(certificated, did not elect into UCC Article 8)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R
	Port St. Louis Condominium, LLC (uncertificated)

	 	Missouri LLC
	 	 	100%	 	 	 	50%	 	 	Landing Condominium, LLC
	 	U
	President Riverboat Casino-Missouri, Inc.

	 	Missouri corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	R
	PSW Properties LLC (uncertificated)

	 	Delaware LLC
	 	 	100%	 	 	 	100%	 	 	Biloxi Casino Corp.
	 	U
	Realty Investment Group, Inc.

	 	Delaware corporation
	 	 	1,000	 	 	 	1,000	 	 	Pinnacle Entertainment, Inc.
	 	U
	Riverside Community Improvement District, Inc.

	 	Missouri non-profit

corporation
	 	 	—	 	 	 	—	 	 	Non-Profit Corporation formed by
Pinnacle Entertainment, Inc.
	 	N/A
	St. Louis Casino Corp.

	 	Missouri corporation
	 	 	1,000	 	 	 	1,000	 	 	Casino Magic Corp.
	 	R, I
	Yankton Investments, LLC

	 	Nevada LLC
	 	 	100%	 	 	 	100%	 	 	Pinnacle Entertainment, Inc.
	 	R, I






 


- 5 -









 





Schedule 4.15 (b)




Pinnacle Entertainment, Inc. has entered into restricted stock agreements under the Pinnacle
Entertainment, Inc. 2005 Equity and Performance Incentive Plan with Stephen H. Capp (5,000 shares
of restricted stock), John A. Godfrey (5,000 shares of restricted stock), Alain Uboldi (5,000
shares of restricted stock), and Clifford D. Kortman (5,000 shares of restricted stock) regarding
grants of restricted stock granted on October 6, 2006.  Pinnacle Entertainment, Inc. also entered
into restricted stock agreements with Daniel R. Lee (15,000 shares of restricted stock) and Wade
Hundley (10,000 shares of restricted stock), who are no longer with the Company and whose shares of
restricted stock either have vested or have been cancelled. 



Pinnacle Entertainment, Inc. has granted each of the directors 681 and 728 phantom stock units in
May 2008 and 2009, respectively, which convert on a one-for-one basis into the common stock of
Pinnacle Entertainment, Inc. if the director ceases being a director for any reason.  The phantom
stock units were granted under the 2005 Equity and Performance Incentive Plan.  Pinnacle
Entertainment, Inc. grants each director $10,000 worth of phantom stocks annually as part of the
director’s annual retainer.  Pinnacle Entertainment, Inc. has entered into grants of other stock
unit awards to reflect the grant of the phantom stock units to each of the directors. 



Pinnacle Entertainment, Inc. has also established the 2008 Amended and Restated Pinnacle
Entertainment, Inc. Directors Deferred Compensation Plan, the Directors Plan, which is limited to
directors of Pinnacle, and each eligible director may elect to defer all or a portion of his annual
retainer (other than the $10,000 in phantom stock units discussed above) and any fees for meetings
attended.  Any such deferred compensation is credited to a deferred compensation account, either in
cash or in shares of Pinnacle Common Stock, at each director’s election. The only condition to each
director’s receipt of shares credited to his deferred compensation account is cessation of such
director’s service as a director of Pinnacle. 
 


 


 









 





Schedule 4.19(a)




UCC Financing Statements Filing Jurisdictions




	 	 	 	 	 
	 	 	Name	 	Jurisdiction
	1.

	 	Belterra Resort Indiana, LLC
	 	Nevada
(state of formation – file with SOS)
	2.

	 	BILOXI CASINO CORP.
	 	Mississippi
(state of formation – file with SOS)
	3.

	 	Boomtown, LLC
	 	Delaware
(state of formation – file with SOS)
	4.

	 	Casino Magic Corp.
	 	Minnesota
(state of formation – file with SOS)
	5.

	 	Casino One Corporation
	 	Mississippi
(state of formation – file with SOS)
	6.

	 	Louisiana-I Gaming, a

Louisiana Partnership in

Commendam
	 	Louisiana
(state of formation – file with Jefferson Parish)
	7.

	 	OGLE HAUS, LLC
	 	Indiana
(state of formation – file with SOS)
	8.

	 	Pinnacle Entertainment, Inc.
	 	Delaware
(state of formation – file with SOS)
	9.

	 	PNK (Baton Rouge) Partnership
	 	Louisiana
(state of formation – file with Calcasieu Parish)
	10.

	 	PNK (BOSSIER CITY), INC.
	 	Louisiana
(state of formation – file with Bossier Parish)
	11.

	 	PNK (CHILE 1), LLC
	 	Delaware
(state of formation – file with SOS)
	12.

	 	PNK (CHILE 2), LLC
	 	Delaware
(state of formation – file with SOS)
	13.

	 	PNK (ES), LLC
	 	Delaware
(state of formation – file with SOS)
	14.

	 	PNK (LAKE CHARLES), L.L.C.
	 	Louisiana
(state of formation – file with Calcasieu Parish)






 


 









 





	 	 	 	 	 
	 	 	Name	 	Jurisdiction
	15.

	 	PNK (Reno), LLC
	 	Nevada
(state of formation – file with SOS)
	16.

	 	PNK (SCB), L.L.C.
	 	Louisiana
(state of formation – file with Calcasieu Parish)
	17.

	 	PNK (ST. LOUIS RE), LLC
	 	Delaware
(state of formation – file with SOS)
	18.

	 	PNK (STLH), LLC
	 	Delaware
(state of formation – file with SOS)
	19.

	 	PNK Development 7, LLC
	 	Delaware
(state of formation – file with SOS)
	20.

	 	PNK Development 8, LLC
	 	Delaware
(state of formation – file with SOS)
	21.

	 	PNK Development 9, LLC
	 	Delaware
(state of formation – file with SOS)
	22.

	 	President Riverboat
Casino-Missouri, Inc.
	 	Missouri
(state of formation – file with SOS)
	23.

	 	St. Louis Casino Corp.
	 	Missouri
(state of formation – file with SOS)
	24.

	 	Yankton Investments, LLC
	 	Nevada
(state of formation – file with SOS)






 


- 2 -









 





Schedule 4.19(b)




Amendments to the Mortgages covering the following properties:




	 	 	 	 	 
	 	 	Description of Property	 	Mortgage Filing Jurisdiction
	1.

	 	River City Property
	 	Official Records of the County of
St. Louis, Missouri
	2.

	 	Lumière Property
	 	Official Records of the City of
St. Louis, Missouri
	3.

	 	Property (fee) located at 901
and 925 N. First Street in
St. Louis, Missouri 63102
	 	Official Records of the City of
St. Louis, Missouri
	4.

	 	Property (19 parcels) (fee)
located in St. Louis,
Missouri, owned by PNK (ST.
LOUIS RE), LLC.
	 	Official Records of the City of
St. Louis, Missouri
	5.

	 	Property (fee) located in St.
Louis, Missouri, owned by
Pinnacle Entertainment, Inc.
(Cherrick’s subdivision)
	 	Official Records of the City of
St. Louis, Missouri
	6.

	 	Property (leasehold interest)
located in St. Louis,
Missouri, leased by President
Riverboat Casino-Missouri,
Inc. (Mooring Points)
	 	Official Records of the City of
St. Louis, Missouri
	7.

	 	Property (fee) located in
Central City, Colorado, owned
by Pinnacle Entertainment,
Inc.
	 	Official Records of Gilpin County,
Colorado






 


 









 





Schedule 7.2(d)




List of Existing Indebtedness




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding as	 
	 	 	 	 	 	 	 	 	 	 	Original	 	 	Maturity	 	 	of	 
	Obligor	 	Beneficiary	 	 	Interest Rate	 	 	Balance	 	 	Date	 	 	1/01/10	 
	OGLE HAUS, LLC
	 	Peoples Trust Company	 	 	8.00	%	 	$	1,402,044	 	 	May 2017	 	$	749,874	 






Lease and Development Agreement dated as of August 12, 2004 by and between the St. Louis County Port
Authority and Pinnacle Entertainment, Inc., as amended by that Letter Agreement dated as of August 12, 2004
by and between the St. Louis County Port Authority and Pinnacle Entertainment, Inc., as amended by that
Second Amendment to Lease and Development Agreement dated as of October 7, 2005 by and between St. Louis
County Port Authority and Pinnacle Entertainment, Inc., as amended by that Third Amendment to Lease and
Development Agreement dated as of August 11, 2006 by and between the St. Louis County Port Authority and
Pinnacle Entertainment, Inc. as amended by that Fourth Amendment to Lease and Development Agreement dated as
of January 18, 2007 by and between the St. Louis County Port Authority and Pinnacle Entertainment, Inc. as
amended by that Fifth Amendment to Lease and Development Agreement dated as of March 30, 2007 by and between
St. Louis County Port Authority and Pinnacle Entertainment, Inc. as amended by that Sixth Amendment to Lease
and Development Agreement dated November 26, 2007 by and between the St. Louis County Port Authority and
Pinnacle Entertainment, Inc. Pursuant to the Lease and Development Agreement, we have a long term deferred
rent obligation in the amount of $16,514,197 as of December 31, 2009.



Guaranty Agreement, dated August 19, 2002, by Pinnacle Entertainment, Inc., as Guarantor to Lake
Charles Harbor & Terminal District with respect to obligations by PNK (LAKE CHARLES), L.L.C.



Guaranty Agreement, effective as of August 1, 2007, by Pinnacle Entertainment, Inc., as Guarantor to Lake
Charles Harbor & Terminal District with respect to the obligations of PNK (LAKE CHARLES), L.L.C.


 


 









 





Schedule 7.3(f)




Existing Liens




Real Estate Mortgage, Security Agreement, Assignment of Account and Assignment
of Liquor License each executed by OGLE HAUS, LLC in favor of People Trust
Company, an Indiana State bank.



Cash collateral for Pinnacle Entertainment, Inc.’ guarantee obligations under
the letter of credit issued by Bank of America Mutual Funds Services.



Certain licenses granted in connection with sale of Casino Magic Bay St. Louis
and Boomtown Biloxi, as follows:



a) Pursuant to that certain Asset Purchase Agreement between Casino Magic
Corp., a Minnesota corporation, and BSL, Inc., a Mississippi corporation, dated
as of December 9, 1999 (as amended), Casino Magic Corp. sold to BSL, Inc.
certain real and personal property, tangible and intangible, used by Casino
Magic Corp. in the operation of the Casino Magic casino located in Bay St.
Louis, Mississippi. In connection with such sale, Casino Magic Corp. and BSL,
Inc. entered into a License Agreement on August 8, 2000, pursuant to which
Casino Magic Corp. granted a nonexclusive, royalty-free, perpetual license to
use certain marks and certain additional marks (as more particularly described
in Schedule 1 to the License Agreement) in connection with casino operations
with all ancillary goods and services.



b) Pursuant to that certain Asset Purchase Agreement between Boomtown, Inc., a
Delaware corporation, and BTN, Inc., a Mississippi corporation, dated as of
December 9, 1999 (as amended), Boomtown, Inc. sold to BTN, Inc. certain real
and personal property, tangible and intangible, used by Boomtown, Inc. in the
operation of the Boomtown Biloxi casino located in Biloxi, Mississippi. In
connection with such sale, Boomtown, Inc. and BTN, Inc. entered into a License
Agreement on August 8, 2000, pursuant to which Boomtown, Inc. granted a
nonexclusive, royalty-free, perpetual license to use certain marks and certain
additional marks (as more particularly described in Schedule 1 to the License
Agreement) in connection with casino operations with all ancillary goods and
services.



Security Interest Assignment in “Boomtown” mark:
from BSL, Inc. to Deutsche Bank Trust Company, recorded with the Patent and
Trademark Office on October 3, 2005 at Reel 3175 Frame 0228.



Security Interest Assignment in “Boomtown” mark:
from BTN, Inc. to Deutsche Bank Trust Company, recorded with the Patent and
Trademark Office on October 3, 2005 at Reel 3175 Frame 0228.


 


- 1 -









 





Inter-Company Assignments and Licenses listed on Schedule 2 attached to the
Second Amended and Restated Trademark Collateral Assignment dated as of
December 14, 2005, as has been amended and supplemented through the Effective
Date, including, the amendment effected pursuant to that certain Omnibus
Amendment and Ratification dated as of the Effective Date.



The Grantor Trust Agreement to be entered into by Pinnacle Entertainment, Inc.
and the Trustee named therein, with respect to matters regarding the former
chief executive officer of Pinnacle Entertainment, Inc.; it being acknowledged
and agreed that as of the Effective Date such Grantor Trust Agreement is not
executed but upon execution it shall constitute an existing Lien for all
purposes under the Credit Agreement.



Directors and Officers Trust presently with Wilmington Trust Company providing
for indemnification of officers and directors of the Borrower, as such trust
may be amended, amended and restated, substituted or replaced from time to
time.



Judgment No. 19972-03150 against President Riverboat Casino Missouri in favor
of Helena Maria Brownyard in the amount of $1,850,000 abstracted April 18, 2001


 


- 2 -









 





Existing Liens (Continued)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	Jurisdiction	 	File Date	 	File Number	 	Type of Filing
	Belterra Resort Indiana, LLC

	 	American Express Business Finance
Corporation
	 	Nevada SOS
	 	8/6/2003
	 	 	2003021142-3	 	 	Original
	Belterra Resort Indiana, LLC

	 	American Express Business Finance
Corporation
	 	Nevada SOS
	 	5/9/2008
	 	 	2008015102-1	 	 	Continuation of
2003021142-3
	Belterra Resort Indiana, LLC

	 	Atlantic City Coin and Slot Service Company
	 	Nevada SOS
	 	3/23/2006
	 	 	2006009234-8	 	 	Original
	Belterra Resort Indiana, LLC

	 	Advantage Financial Services, LLC
	 	Nevada SOS
	 	2/15/2007
	 	 	2007004965-4	 	 	Original
	Belterra Resort Indiana, LLC

	 	Advantage Financial Services, LLC
	 	Nevada SOS
	 	4/9/2007
	 	 	2007011172-2	 	 	Amendment of
2007004965-4
	Belterra Resort Indiana, LLC

	 	House of Taylor Jewelry, Inc.
	 	Nevada SOS
	 	9/25/2007
	 	 	2007031488-5	 	 	Original
	Casino One Corporation

	 	Aristocrat Technologies, Inc.
	 	Mississippi SOS
	 	6/26/2009
	 	 	20090123837G	 	 	Original
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	Shuffle Master Inc. (lessor)
	 	Caddo Parish
	 	11/22/2004
	 	 	09-1038476	 	 	Original
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	Shuffle Master Inc. (lessor)
	 	Caddo Parish
	 	2/3/2005
	 	 	09-1040578	 	 	Original
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	Citicorp. Vendor Finance, Inc.
	 	Caddo Parish
	 	3/28/2006
	 	 	09-1056072	 	 	Original
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	Shuffle Master Inc. (lessor)
	 	Jefferson Parish
	 	2/7/2008
	 	 	26-300160	 	 	Original
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	WMS Gaming, Inc.
	 	Jefferson Parish
	 	10/1/2008
	 	 	26-303932	 	 	Original






 


- 3 -









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	Jurisdiction	 	File Date	 	File Number	 	Type of Filing
	Louisiana-I Gaming, a Louisiana Partnership in Commendam

	 	Aristocrat Technologies, Inc.
	 	Caddo Parish
	 	9/23/2009
	 	 	09-1121114	 	 	Original
	Pinnacle Entertainment, Inc.

	 	Bally Gaming and Systems
	 	Delaware SOS
	 	11/3/2003
	 	 	32878901	 	 	Original
	Pinnacle Entertainment, Inc.

	 	Bally Gaming and Systems
	 	Delaware SOS
	 	12/30/2003
	 	 	33424432	 	 	Amendment of 32878901
	Pinnacle Entertainment, Inc.

	 	Bally Gaming and Systems
	 	Delaware SOS
	 	4/8/2005
	 	 	51092049	 	 	Amendment of 51524165
	Pinnacle Entertainment, Inc.

	 	Bally Gaming and Systems
	 	Delaware SOS
	 	7/18/2005
	 	 	52201557	 	 	Amendment of 51524165
	Pinnacle Entertainment, Inc.

	 	Shuffle Master, Inc.
	 	Delaware SOS
	 	6/3/2008
	 	 	81886553	 	 	Original
	Pinnacle Entertainment, Inc.

	 	Henriksen/Butler Design Group
	 	Delaware SOS
	 	4/29/2009
	 	 	91347100	 	 	Original
	Pinnacle Entertainment, Inc.

	 	Konami Gaming, Inc.
	 	Delaware SOS
	 	8/17/2009
	 	 	92629712	 	 	Original
	Pinnacle Entertainment, Inc.

	 	Henriksen/Butler Design Group
	 	Delaware SOS
	 	10/22/2009
	 	 	93394373	 	 	Original
	PNK (BOSSIER CITY), Inc.

	 	WMS Gaming, Inc.
	 	Caddo Parish
	 	9/17/2008
	 	 	09-1102434	 	 	Original
	PNK (LAKE CHARLES), L.L.C.

	 	WMS Gaming, Inc.
	 	Calcasieu Parish
	 	11/9/2005
	 	 	10-34393	 	 	Original
	PNK (LAKE CHARLES), L.L.C.

	 	US Express Leasing, Inc.
	 	Caddo Parish
	 	11/29/2006
	 	 	09-1068083	 	 	Original
	PNK (LAKE CHARLES), L.L.C.

	 	Textron Financial Corporation
	 	Caddo Parish
	 	8/8/2007
	 	 	09-1080964	 	 	Original
	PNK (RENO), LLC

	 	WMS Gaming, Inc.
	 	Nevada SOS
	 	8/27/2009
	 	 	2009021042-3	 	 	Original
	President Riverboat Casino-Missouri, Inc.

	 	WMS Gaming, Inc.
	 	Missouri SOS
	 	9/17/2008
	 	 	2008010224A	 	 	Original






 


- 4 -









 





Schedule 7.5(g)




List of Designated Assets




	 	 	 
	Description of Asset	 	Location
	All owned and leased Property related to the PRC-MO Property,
including but not limited to the lease and sublease with the
City of St. Louis and The Port Authority of the City of St.
Louis

	 	Missouri
	Ownership interest in ODS Technologies, L.P. and all rights,
title and interest in and to that certain Investment Agreement,
dated July 30, 1997, between ODS Technologies, L.P. and Pinnacle
Entertainment, Inc, as amended and any other agreement related
to Pinnacle Entertainment, Inc.’s ownership interest in ODS
Technologies, L.P.

	 	N/A
	 
	 	 	 	 
	St. Louis City Owned Property (Parking)

	 	Missouri
	 
	 	 	 	 
	806-808 North 1st Street (Parking)
	 	 
	St. Louis City Owned Property (HoteLumiere) 901 N. First Street

	 	Missouri
	 
	 	 	 	 
	St. Louis City Owned Properties (Parking)

	 	Missouri
	 
	 	 	 	 
	920 N. First Street
	 	 
	925 N. First Street
	 	 
	928 N. First Street
	 	 
	930 N. First Street
	 	 
	934 N. First Street
	 	 
	942 N. First Street
	 	 
	900 N. First Street
	 	 
	914 N. First Street
	 	 
	 
	 	 
	1016 N. First Street
	 	 
	1020 N. First Street
	 	 
	1024 N. First Street
	 	 
	1012 N. First Street
	 	 
	1004 N. First Street
	 	 
	1000 N. First Street
	 	 
	1028 N. First Street
	 	 






 


 









 





	 	 	 
	Description of Asset	 	Location
	St. Louis City Owned Properties (Parking for President Casino)

	 	Missouri
	 
	 	 
	1005 N. Wharf Street
	 	 
	901 N. Wharf Street
	 	 
	1003 N. Wharf
	 	 
	1030R N. Commercial Street
	 	 
	1030 N. Commercial Street
	 	 
	St. Louis City Owned Properties (Condo Development)

	 	Missouri
	 
	 	 
	807 N. Leonor K. Sullivan Blvd.
	 	 
	805 N. Leonor K. Sullivan Boulevard
	 	 
	803 N. Leonor K. Sullivan Boulevard
	 	 
	1 Morgan Street
	 	 
	St. Louis City Leased Property (Sligo Warehouse)

	 	Missouri
	 
	 	 	 	 
	1100 N. 2nd Street
	 	 
	St. Louis City Leased Property (Office Building)

	 	Missouri
	 
	 	 	 	 
	727 North First Street (5th Floor) and any leased portion of the
6th floor
	 	 
	St. Louis County Properties

	 	Missouri
	 
	 	 	 	 
	8021 Zellie
	 	 
	 
	 	 	 	 
	8019 Zellie
	 	 
	Warehouse leased in connection with the River City Property

	 	Missouri
	Boomtown Hotel and Casino (fee, including water rights) located
at 2100 I-80 West (I-80 at Boomtown), Reno, Nevada 89439
	 	Nevada
	Approximately 500 acres of excess (non-operating) land adjacent
to the Boomtown Hotel and Casino in Reno, Nevada, and any water
rights appurtenant thereto

	 	Nevada
	Approximately 296 acres of excess undeveloped land in the
mountains outside Reno, Nevada, and any water rights appurtenant
thereto

	 	Nevada
	Excess (non-operating) and excess undeveloped land near the
Boomtown Casino in New Orleans, Louisiana

	 	Louisiana
	Real Property and Improvements acquired from Harrah’s, located
in Lake Charles, Louisiana

	 	Louisiana






 


- 2 -









 





	 	 	 
	Description of Asset	 	Location
	Leasehold interest pursuant to the Ground Lease with the Lake
Charles Harbor & Terminal District and PNK (Lake Charles), L.L.C. in Lake Charles, Louisiana (Sugarcane Bay Project)

	 	Louisiana
	Real Property in Lake Charles, Louisiana, purchased and/or to be
purchased pursuant to the Ground Lease with the Lake Charles
Harbor & Terminal District and PNK (Lake Charles), L.L.C.
(Sugarcane Bay Project)

	 	Louisiana
	Remainder of four parcels (fee) purchased from Richard, Sittig,
Connor, and Hatchett in Lake Charles, Louisiana

	 	Louisiana
	Approximately 56 acres of Real Property in Lake Charles,
Louisiana (Cline Canal Tract) purchased from Bailey, Verret,
Vail Rigler, Chesson, Schoolsky, Queenan, Chesson, Bodin and
Robichaux in various transactions in 2007.

	 	Louisiana
	Excess (non-operating) and excess undeveloped land in Baton
Rouge, Louisiana

	 	Louisiana
	The single family dwelling at 3801 Burgoyne St., Lake Charles,
Louisiana, 70605

	 	Louisiana
	Excess (non-operating) and excess undeveloped land at Boomtown
Bossier City

	 	Louisiana
	Undeveloped land in Central City, Colorado

	 	Colorado
	The Ogle Haus at Belterra Casino Resort

	 	Indiana
	Excess (non-operating) and excess undeveloped land at Belterra
Casino Resort

	 	Indiana
	Equity interests in any Restricted Subsidiary, the sole assets
of which are listed on this Schedule 7.5(g)

	 	N/A
	Remainder of property following a Disposition of a portion of
such property permitted by Section 7.5(o) of the Agreement

	 	N/A






 


- 3 -









 





Schedule 7.7(d)




List of Existing Investments




Description of Investments





	1.	 	Investments in Unrestricted Subsidiaries listed in Schedule 4.15 to the Credit
Agreement

	 
	2.	 	Investment in ODS Technologies, L.P. and all rights, title and interest in and to that
certain Investment Agreement, dated July 30, 1997, between ODS Technologies, L.P. and
Pinnacle Entertainment, Inc., as successor to Hollywood Park, Inc.

	 
	3.	 	Investments made in ODS Technologies, L.P. pursuant to that certain Limited
Partnership Agreement of ODS Technologies, L.P. dated March 17, 1994

	 
	4.	 	Note Receivable from Switzerland County Natural Gas Company in the approximate
principal amount of $1,800,000.





 


 









 





EXHIBIT A




FORM OF COMPLIANCE CERTIFICATE




This Compliance Certificate is delivered to you pursuant to Section 6.2(b) of the Third
Amended and Restated Credit Agreement, dated as of February
_____, 2010 (as amended, restated, amended
and restated, supplemented, replaced or modified from time to time, the “Credit
Agreement”), among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to the Credit Agreement, BANC OF AMERICA SECURITIES LLC AND JPMORGAN SECURITIES, INC.,
as joint lead arrangers and joint book runners and BARCLAYS BANK PLC, as administrative agent.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Credit Agreement.



1. I am the duly elected, qualified and acting chief financial officer of the Borrower.



2. I have reviewed and am familiar with the contents of this Certificate.



3. I have reviewed the terms of the Credit Agreement and the other Loan Documents and have
made, or caused to be made under my supervision, a review in reasonable detail of the transactions
and condition of the Borrower and its Restricted Subsidiaries during the accounting period covered
by the financial statements attached hereto as Attachment 1 (the “Financial
Statements”). Such review did not disclose the existence during or at the end of the
accounting period covered by the Financial Statements, and I have no knowledge of the existence, as
of the date of this Certificate, of any condition or event which constitutes a Default or Event of
Default, except as previously disclosed to the Administrative Agent pursuant to Section 6.7(a) or
as set forth below.



4. Attached hereto as Attachment 2 are the computations showing compliance with the
covenants in the Credit Agreement identified in such attachment.



IN WITNESS WHEREOF, I execute this Certificate this                      day of                     , 20_____.



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	PINNACLE ENTERTAINMENT, INC.,
a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


 









 





ATTACHMENT 2




The information described herein is as of                     
_____, 20_____
(the “Certification
Date”), and pertains to the period from                     
_____, 20_____
to                     
_____, 20_____.




	I.	 	FINANCIAL CONDITION COVENANTS







	 	A.	 	Consolidated EBITDA:






	 	 	 	 	 	 	 	 	 	 	 
	 	 	Quarter	 	Quarter	 	Quarter	 	Quarter	 	 
	 	 	Ending	 	Ending	 	Ending	 	Ending	 	 
	 	 	[___]	 	[___]	 	[___]	 	[___]	 	TOTAL
	Consolidated Net Income
of the Borrower and its
Restricted Subsidiaries

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Plus:
	 	 	 	 	 	 	 	 	 	 
	income tax expense
	 	 	 	 	 	 	 	 	 	 
	Consolidated Interest
Expense of the Borrower
and its Restricted
Subsidiaries,
amortization or writeoff
of debt discount and debt
issuance costs and
commissions, discounts
and other fees and
charges associated with
Indebtedness
	 	 	 	 	 	 	 	 	 	 
	depreciation and
amortization expense
	 	 	 	 	 	 	 	 	 	 
	amortization and
write-off of intangibles
(including, but not
limited to, goodwill) and
organization costs
	 	 	 	 	 	 	 	 	 	 
	any extraordinary,
unusual or non-recurring
expenses or losses
(including, whether or
not otherwise includable
as a separate item in the
statement of such
	 	 	 	 	 	 	 	 	 	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	Quarter	 	Quarter	 	Quarter	 	Quarter	 	 
	 	 	Ending	 	Ending	 	Ending	 	Ending	 	 
	 	 	[___]	 	[___]	 	[___]	 	[___]	 	TOTAL
	Consolidated Net Income
for such period, losses
on sales of assets
outside of the ordinary
course of business)
	 	 	 	 	 	 	 	 	 	 
	pre-opening and related
promotional expenses
incurred in connection
with any Project
	 	 	 	 	 	 	 	 	 	 
	any other non-cash charges
	 	 	 	 	 	 	 	 	 	 
	any amount expended after
January 1, 2010 towards
the development of
businesses not prohibited
by Section 7.l4, in an
amount not to exceed
$2,500,000 in any fiscal
year
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	minus:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 
	the sum of:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 
	interest income (except
to the extent deducted in
determining Consolidated
Interest Expense)
	 	 	 	 	 	 	 	 	 	 
	any extraordinary,
unusual or non-recurring
income or gains
(including, whether or
not otherwise includable
as a separate item in the
statement of such
Consolidated Net Income
for such period, gains on
sales of assets outside
of the ordinary course of
business, but not
including business
interruption insurance
proceeds)
	 	 	 	 	 	 	 	 	 	 
	any other non-cash income
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TOTAL CONSOLIDATED EBITDA
	 	 	 	 	 	 	 	 	 	 






 


 









 





	 	 	 	 	 
	B. Annualized Adjusted EBITDA:
	 	 	 	 
	1. Consolidated EBITDA:
	 	$	                    ,	 
	2. To the extent deducted in arriving at Consolidated EBITDA for
such period, non-cash write downs to goodwill required by Financial Accounting
Standards Board Statement No. 142, and any non-cash reductions to the value of
the assets of the Borrower and its Restricted Subsidiaries required by
Financial Accounting Standards Board Statement No. 121 or No. 144:
	 	$	                    ,	 
	3. The Foreign Subsidiary Receipts that were (x) received during
such period by the Borrower or any Restricted Subsidiary and (y) irrevocably
designated during such period as Reclassified Foreign Subsidiary Receipts:
	 	$	                    ,	 
	 
	 	 	 	 
	Annualized Adjusted EBITDA:
	 	$	                    	 
	 
	 	 	 	 
	C. Consolidated Total Leverage Ratio. Consolidated Total Leverage Ratio on a
consolidated basis of Borrower as of the last day of the consecutive
four-fiscal-quarter period from                     , ___ through                     ,                     .
	 	 	 	 
	1. Consolidated Total Debt of the Borrower and its Restricted
Subsidiaries (aggregate principal amount of all Indebtedness) less Excess Cash:
	 	$	                    .	 
	2. Annualized Adjusted EBITDA (from Item B)
	 	$	                    	 
	3. Consolidated Total Leverage Ratio (C.1. divided by C.2):                     
	 	 	 	 
	4. Maximum permitted Consolidated Total Leverage Ratio:
	 	 	 	 






 


 









 





	 	 	 	 	 
	 	 	Consolidated Total	 
	Fiscal Quarter Ending	 	Leverage Ratio	 
	March 31, 2010
	 	 	7.60 to 1.00	 
	June 30, 2010
	 	 	7.60 to 1.00	 
	September 30, 2010
	 	 	7.60 to 1.00	 
	December 31, 2010
	 	 	7.60 to 1.00	 
	March 31, 2011
	 	 	7.50 to 1.00	 
	June 30, 2011
	 	 	7.50 to 1.00	 
	September 30, 2011
	 	 	7.25 to 1.00	 
	December 31,2011
	 	 	7.25 to 1.00	 
	March 31, 2012
	 	 	7.00 to 1.00	 
	June 30, 2012
	 	 	6.75 to 1.00	 
	September 30, 2012
	 	 	6.25 to 1.00	 
	December 31, 2012
	 	 	6.00 to 1.00	 
	March 31, 2013
	 	 	5.75 to 1.00	 
	June 30, 2013
	 	 	5.25 to 1.00	 
	September 30, 2013
	 	 	5.00 to 1.00	 
	December 31, 2013
	 	 	4.75 to 1.00	 
	March 31, 2014
	 	 	4.75 to 1.00	 






	 	 	 	 	 
	D. Consolidated Interest Coverage Ratio. Consolidated Interest Coverage Ratio of
Borrower for the four-fiscal-quarter period from                     , ____ through                     ,
                    .
	 	 	 	 
	1. Annualized Adjusted EBITDA (from Item B):
	 	$	                    	 
	2. the Aggregate amount of Consolidated Interest Expense:
	 	$	                    	 
	3. Consolidated Interest Coverage Ratio (D.1 divided by D.2):                     
	 	 	 	 
	4. Minimum permitted Consolidated Interest Coverage Ratio:
	 	 	 	 






	 	 	 	 	 
	 	 	Minimum Consolidated	 
	Fiscal Quarter Ending	 	Interest Coverage Ratio	 
	March 31, 2010
	 	 	1.50 to 1.00	 
	June 30, 2010
	 	 	1.50 to 1.00	 
	September 30, 2010
	 	 	1.50 to 1.00	 
	December 31, 2010
	 	 	1.50 to 1.00	 
	March 31, 2011
	 	 	1.50 to 1.00	 
	June 30, 2011
	 	 	1.50 to 1.00	 






 


 









 





	 	 	 	 	 
	 	 	Minimum Consolidated	 
	Fiscal Quarter Ending	 	Interest Coverage Ratio	 
	September 30, 2011
	 	 	1.50 to 1.00	 
	December 31, 2011
	 	 	1.50 to 1.00	 
	March 31, 2012
	 	 	1.50 to 1.00	 
	June 30, 2012
	 	 	1.60 to 1.00	 
	September 30, 2012
	 	 	1.65 to 1.00	 
	December 31, 2012
	 	 	1.75 to 1.00	 
	March 31, 2013
	 	 	1.75 to 1.00	 
	June 30, 2013
	 	 	1.90 to 1.00	 
	September 30, 2013
	 	 	2.00 to 1.00	 
	December 31, 2013
	 	 	2.00 to 1.00	 
	March 31, 2014
	 	 	2.00 to 1.00	 






	 	 	 	 	 
	E. Consolidated Senior Secured Debt Ratio. Consolidated Senior Secured Debt Ratio
as of the last day of any four consecutive fiscal quarter period from                     , ____
through                     ,                     .
	 	 	 	 
	1. Consolidated Senior Secured Debt less Excess Cash:
	 	$	                    	 
	2. Annualized Adjusted EBITDA (from Item B):
	 	$	                    	 
	3. Consolidated Senior Secured Debt Ratio (E.1. divided by E.2.):                     
	 	 	 	 
	4. Maximum permitted Consolidated Senior Secured Debt Ratio:
	 	 	2.50 to 1.00.	 
	 
	 	 	 	 
	II. indebtedness
	 	 	 	 
	 
	 	 	 	 
	A. Aggregate Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) at any one time outstanding
(Section 7.2(c)(i)):
	 	$	                    	 
	B. Aggregate Indebtedness of any and all Persons that became a direct or indirect
Subsidiary of the Borrower after the Effective Date in an acquisition (Section
7.2(c)(ii)):
	 	$	                    	 
	C. Aggregate amount of Indebtedness described in II.A. and II.B:
	 	$	                    	1





 





	 	 	 
	1	 	Shall not exceed $50,000,000 at any one time
outstanding.




 


 









 









	 	 	 	 	 
	D. Aggregate Indebtedness incurred in the form of Guarantee Obligations with
respect to commercial letters of credit at any one time outstanding under Section
7.2(i)(x):
	 	$	                    	2
	E. Indebtedness incurred pursuant to Section 4.21.3 of the Redevelopment Agreement
in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding:
	 	$	                    	3
	F. Aggregate Indebtedness permitted under Section 7.2(m) in connection with the
purchase, equipping, furnishing and/or refurbishing of one or more aircraft:
	 	$	                    	4
	G. Aggregate Indebtedness permitted under Section 7.2(n):
	 	$	                    	5
	 
	 	 	 	 
	III. INVESTMENTS
	 	 	 	 
	 
	 	 	 	 
	A. Aggregate amount of loans and advances to employees of the Borrower or any
Restricted Subsidiaries in the ordinary course of business permitted under Section
7.7(e):
	 	$	                    	6
	B. Aggregate amount of Investments permitted under Section 7.7(k):
	 	$	                    	7
	C. Aggregate amount of Investments permitted under Section 7.7(n):
	 	$	                    	8
	 
	 	 	 	 
	IV. CAPITAL EXPENDITURES
	 	 	 	 
	A. Maintenance Capital Expenditures Amount:
	 	$	                    	 9





 





	 	 	 
	2	 	Shall not exceed $25,000,000 at any one time
outstanding.

	 
	3	 	Shall not exceed $10,000,000 at any one time
outstanding.

	 
	4	 	Shall not exceed $20,000,000 at any one time
outstanding.

	 
	5	 	Shall not exceed $900,000,000 at any one time
outstanding unless Consolidated Total Leverage Ratio is less than 6.00 to 1.00.

	 
	6	 	Shall not exceed $5,000,000 at any one time
outstanding.

	 
	7	 	Shall not exceed (i) $100,000,000 plus (ii) an amount
(but not less than zero) equal to the lesser of (x) 50% of the New Capital
Adjusted Proceeds minus $100,000,000 and (y) the New Capital Adjusted Proceeds
minus the amount thereof that has been applied for Capital Expenditures
pursuant to Section 7.16(c) minus $100,000,000.

	 
	8	 	Shall not exceed $10,000,000 at any one time
outstanding.





 


 









 








	 	 	 	 	 
	B. Capital Expenditures associated with Phase I of the River City Property
Project:
	 	$	                    	10
	C. Capital Expenditures associated with Phase II of the River City Property
Project:
	 	$	                    	11
	D. Capital Expenditures associated with the Sugarcane Bay Project:
	 	$	                    	12
	E. Capital Expenditures associated with the Baton Rouge Project:
	 	$	                    	13
	F. Capital Expenditures associated with the renovation of the PRC-MO Property
Project:
	 	$	                    	14
	G. Capital Expenditures associated with the development of Phase II of the Lumiere
Property Project:
	 	$	                    	15





 





	 	 	 
	9	 	Shall not exceed the amount up to 6.00% of
Consolidated Revenues of the Borrower and its Subsidiaries for the immediately
preceding fiscal year, plus any Maintenance Capital Expenditures not expended
in the immediately preceding fiscal year (but such increase may not be carried
forward to any subsequent fiscal year).

	 
	10	 	Shall not exceed $63,000,000.

	 
	11	 	Shall not exceed $85,000,000.

	 
	12	 	Shall not exceed $238,000,000.

	 
	13	 	Shall not exceed $235,000,000.

	 
	14	 	Shall not exceed $15,000,000.

	 
	15	 	Shall not exceed $55,000,000.




 


 









 









	 	 	 	 	 
	H. Capital Expenditures not in excess of $50,000,000 plus (i) for the first
quarter of fiscal year 2010, 35.0% of Annualized Adjusted EBITDA of the Borrower and
its Restricted Subsidiaries for the first quarter of fiscal year 2010; (ii) for the
two-fiscal quarter period ending on June 30, 2010, 35.0% of Annualized Adjusted EBITDA
of the Borrower and its Restricted Subsidiaries for the first two quarters of fiscal
year 2010, (iii) for the three-fiscal quarter period ending on September 30, 2010,
35.0% of Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for
the first three quarters of fiscal year 2010, (iv) for the four-fiscal quarter period
ending on December 31, 2010, 35.0% of Annualized Adjusted EBITDA of the Borrower for
fiscal year 2010, and (v) for any four fiscal quarter period ending thereafter, 35.0%
of Annualized Adjusted EBITDA of the Borrower and its Restricted Subsidiaries.
	 	$	                    	 
	I. New Capital Adjusted Proceeds minus $100,000,000, minus the amount thereof
representing outstanding Investments made pursuant to Section 7.7(k):
	 	$	                    	 
	J. New Capital Asset Disposition Proceeds less any amount of such Assets
Disposition Proceeds applied or required to be applied to prepay Incremental Term Loans
and/or Revolving Credit Loans with a corresponding reduction in the Revolving Credit
Commitments:
	 	$	                    	 
	 
	 	 	 	 
	V. CONSTRUCTION COVENANTS
	 	 	 	 
	A. Funds applied to the Expenses for the Baton Rouge Project on and after January
1, 2010:
	 	$	                    	16





 





	 	 	 
	16	 	May not be more than $25,000,000 until the Borrower
shall have received New Capital Available Proceeds in an amount equal to or
greater than $100,000,000




 


 









 






EXHIBIT B-1




FORM OF LENDER ADDENDUM




Reference is made to that certain Third Amended and Restated Credit Agreement, dated as of
February _____, 2010 (as the same may be further amended, restated, amended and restated,
supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”),
among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “Borrower”), the several
banks and other financial institutions or entities from time to time parties thereto, BANC OF
AMERICA SECURITIES LLC AND JPMORGAN SECURITIES, INC., as Joint Lead Arrangers and Joint Book
Runners, and BARCLAYS BANK PLC, as administrative agent. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.



Upon execution and delivery of this Lender Addendum by the parties hereto as provided in
Section 10.17 of the Credit Agreement, the undersigned hereby becomes a Lender thereunder having
the Commitments set forth in Schedule 1 hereto, effective as of the Effective Date.



THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.



This Lender Addendum may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.



[Signature page to follow]




 


 









 







IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this
_____ day of                     ,
20_____.



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[                                                              
           ]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 
	Accepted and agreed:	 	 
	 
	 	 	 	 
	PINNACLE ENTERTAINMENT, INC.,
a Delaware corporation	 	 
	 
	 	 	 	 
	By: 
	 	 	 
	 

	Name: 	 

	 	 
	 

	Title: 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	BARCLAYS BANK PLC, as 

Administrative Agent	 	 
	 
	 	 	 	 
	By: 
	 	 	 
	 

	Name: 	 

	 	 
	 

	Title: 	 

	 	 
	 

	 	 

	 	 






 


 









 





COMMITMENTS AND NOTICE ADDRESS




	 	 	 	 	 
	 
	 	 	 	 
	1. Name of Lender:
	 	 	 	 
	     Notice Address:

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	     Attention:
	 	 	 	 
	     Telephone:

	 	 

	 	 
	     Facsimile:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	2. Revolving Credit Commitment:	 	 
	 
	 	 	 	 
	3. L/C Commitment:	 	 
	 
	 	 	 	 
	4. Swing Line Commitment:	 	 






 


 









 





EXHIBIT B-2




FORM OF NEW LENDER SUPPLEMENT




This NEW LENDER SUPPLEMENT, dated as of                     ,
20_____ (this “New Lender
Supplement”), to the Third Amended and Restated Credit Agreement dated as of February
 _____, 2010
(as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”), BANC OF AMERICA SECURITIES LLC AND JPMORGAN
SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and BARCLAYS BANK PLC, as
administrative agent (the “Administrative Agent”).



WITNESSETH:




WHEREAS, the Credit Agreement provides in Section 2.8(d) thereof that any bank, financial
institution or other entity may become a party to the Credit Agreement with the consent of the
Borrower and the Administrative Agent (which consent, in the case of the Administrative Agent,
shall not be unreasonably withheld) by executing and delivering to the Borrower and the
Administrative Agent a supplement to the Credit Agreement in substantially the form of this New
Lender Supplement; and



WHEREAS, the undersigned now desires to become a party to the Credit Agreement;



NOW, THEREFORE, the undersigned hereby agrees as follows:



1. The undersigned agrees to be bound by the provisions of the Credit Agreement, and agrees
that it shall, on the date this New Lender Supplement is accepted by the Borrower and the
Administrative Agent, become a Lender for all purposes of the Credit Agreement to the same extent
as if originally a party thereto, with [an Incremental Revolving Credit (Commitment)(Loans) of
$                    ] [Incremental Term Loans of $                    ] [Incremental Delayed Draw Term
(Commitment) (Loans) of $                    ].



2. The undersigned (a) represents and warrants that it is legally authorized to enter into
this New Lender Supplement; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 4.1 and Section 6.1
thereof, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this New Lender Supplement; (c) agrees that it has made
and will, independently and without reliance upon Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit Agreement or any
instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or
thereto as are


 


 









 






delegated to the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, without limitation, if it is
organized under the laws of a jurisdiction outside the United States, its obligation pursuant to
Section 2.21(e) of the Credit Agreement.




3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






4. Terms defined in the Credit Agreement shall have their defined meanings when used herein.



IN WITNESS WHEREOF, the undersigned has caused this New Lender Supplement to be executed and
delivered by a duly authorized officer on the date first above written.



	 	 	 	 	 
	 	New Lender





[signature block]

 	 
	 	 	 
	 	 	 
	 	 	 



 


- 2 -









 





EXHIBIT B-3




FORM OF INCREMENTAL FACILITY ACTIVATION NOTICE





			
	To:	 	Barclays Bank PLC,

as Administrative Agent under the Credit Agreement referred to below







Reference is hereby made to that certain Third Amended and Restated Credit Agreement, dated as
of February
 _____, 2010 (as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”), among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties thereto (the “Lenders”), BANC OF AMERICA SECURITIES LLC AND JPMORGAN
SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners and BARCLAYS BANK PLC, as
administrative agent (the “Administrative Agent”). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement



This notice is the Incremental Facility Activation Notice referred to in the Credit Agreement,
and the Borrower and each of the Lenders party hereto hereby notify you that:




	 	1.	 	Each of the Lenders party hereto agrees to make, obtain or increase the
amount of its [Incremental Term Loans] [Incremental Revolving Credit Commitment]
[Incremental Revolving Credit Loans] [Incremental Delayed Draw Term Commitment]
[Incremental Delayed Draw Term Loans] as set forth opposite such Lender’s name on the
signature pages hereof under the caption “Incremental Facility Amount”.

	 
	 	2.	 	The Incremental Loans closing date is                      (which must be a Business
Day).

	 
	 	3.	 	The Incremental Term Loans maturity date is                     .

	 
	 	4.	 	The Incremental Delayed Draw Term Loans maturity date is                     .

	 
	 	5.	 	The Incremental Revolving Credit Loans maturity date is                     .

	 
	 	6.	 	[Each of the Lenders party hereto and the Borrower hereby agrees that (a) the
amortization schedule relating to the Incremental Term Loans is set forth in Annex A
attached hereto and (b) the Applicable Margin for the Incremental Term Loans shall be
                    .]1

	 
	 	7.	 	[Each of the Lenders party hereto and the Borrower hereby agrees that (a) the
amortization schedule relating to the Incremental Delayed Draw Term Loans





 





	 	 	 
	1	 	For Incremental Term Loans only.




 


 









 










	 	 	 	is set forth in Annex B attached hereto and (b) the Applicable Margin for the
Incremental Delayed Draw Term Loans shall be                     .]2

	 
	 	8.	 	[Each of the Lenders party hereto and the Borrower hereby agrees that the
Applicable Margin for the Incremental Revolving Credit Loans shall be
                    .]3






[Signature block for Borrower]




[Signature blocks for Lenders]




[Annex A – attached]




[Annex B – attached]



 





	 	 	 
	2	 	For Incremental Delayed Draw Term Loans only.

	 
	3	 	For Incremental Revolving Credit Loans only.






 


-2-











 




EXHIBIT C

FORM OF MORTGAGE




MORTGAGE,

ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND

COLLATERAL ASSIGNMENT OF PROCEEDS




	 	 	 	 	 	 	 
	 

	 	BY
	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 







IN FAVOR OF



BARCLAYS BANK PLC,

as Administrative Agent




BE IT KNOWN, on the dates set forth below, in the presence of the undersigned Notaries Public,
duly qualified in and for the States and Parishes/Counties set forth below and in the presence of
the undersigned competent witnesses,




PERSONALLY CAME AND APPEARED:




                    , whose federal taxpayer identification number is                     , having a mailing
address of c/o Pinnacle Entertainment, Inc., Suite 1800, 3800 Howard Hughes Parkway, Las
Vegas, NV 89109, represented herein by and through                     , its                     , duly
authorized hereunto by resolutions of its Board of Directors, a certified copy of which is
annexed hereto (said appearer being hereinafter referred to as “Trustor”); and,




BARCLAYS BANK PLC, in its capacity as Administrative Agent under the Credit Agreement
(hereinafter defined) whose federal taxpayer identification number is                      and whose
mailing address is                                         , represented herein by and through
                    , duly authorized (said appearer being hereinafter referred to as
“Beneficiary”); and,



who declared that Pinnacle Entertainment, Inc. (“Borrower”), Beneficiary, and various banks
have entered into a certain Third Amended and Restated Credit Agreement dated as of February
 _____,
2010 (as it may be amended, restated, amended and restated, modified, supplemented, or replaced
from time to time, the “Credit Agreement”). Appearers further declared that capitalized
terms used herein and not otherwise defined shall have the meanings given to them in the Credit
Agreement.



Appearers further declared that Trustor is a Subsidiary of Borrower and that it is a condition
of the Credit Agreement that Trustor execute and deliver this act.


 


1









 





As more particularly described therein, the Credit Agreement provides for extensions of credit
to the Borrower thereunder, including a Revolving Credit Commitment in the aggregate amount of
$350,000,000, including Incremental Term Commitments, a Swing Line Commitment of $25,000,000 and a
L/C Commitment of                                         , and certain hedge agreements.



Trustor is a party to that certain Mortgage, Assignment of Leases and Rents, Security
Agreement and Collateral Assignment of Proceeds, dated as of                     , (the “Existing
Mortgage”), under which Trustor agreed to grant a security interest in the Property (as defined
below in Section 1.1) to Beneficiary, as administrative agent for the Existing Lenders, for the
ratable benefit of such Existing Lenders. The Existing Mortgage is being amended by this Amended
and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Collateral Assignment
of Proceeds, by and between Trustor and Beneficiary, dated as of this                     ,
20_____, (the
“Mortgage”).



In consideration of the extension of credit to the Borrower pursuant to the Credit Agreement
and the direct and indirect benefits to be received by Trustor as a result thereof, Appearers
further declared and agreed as follows:



1. Mortgage and Secured Obligations.



1.1 Mortgage. For the purpose of securing payment and performance of the Secured
Obligations defined and described in Section 1.2, Trustor does by these presents irrevocably and
unconditionally specially mortgage, pledge, affect, hypothecate, transfer, assign to and grant a
security interest in favor of Beneficiary all estate, right, title and interest which Trustor now
has or may later acquire in and to the following property (all or any part of such property, or any
interest in all or any part of it, as the context may require, the “Property”):




(a) The leasehold estate in a portion of the “Land” (as defined below)
described in Tract 3 of Exhibit A under that certain Commercial Lease dated as of September
9, 1996, between State of Louisiana, State Land Office, as landlord, and Trustor, as tenant
(as it may be amended or modified, the “Existing Ground Lease”), which lease was
recorded on September 19, 1996, in the public records of Bossier Parish, Louisiana at
Registry No. 622376 in Conveyance Book 1114, Page 544 and also recorded on September 19,
1996, in the public records of Caddo Parish, Louisiana at Registry No. 1532436 in Conveyance
Book 3138, Page 271, including, without limitation, (i) all options to extend or renew the
Existing Ground Lease (and the leasehold estate for the term of each extension or renewal),
(ii) all options and rights of first refusal contained in the Existing Ground Lease to
purchase portions of the Land, which is subject to the Existing Ground Lease, and (iii) all
of Trustor’s other rights, titles and interests under the Existing Ground Lease; together
with




(b) The immovable property located in the Parish of Bossier and the Parish of Caddo
(the “Parish”), State of Louisiana, as described in Exhibit A, together with all
existing and future servitudes, easements and rights affording access to it (the
“Land”); together with


 


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(c) All buildings, structures, component parts, other constructions, and improvements
now located or later to be constructed on the Land, including, without limitation, all
parking areas, roads, driveways, walks, fences, walls, docks, berms, landscaping, recreation
facilities, drainage facilities, lighting facilities and other site improvements (the
“Improvements”); together with




(d) All existing and future appurtenances, privileges, servitudes, rights of use,
easements, rights of way, franchises, hereditaments and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances, sulphur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in, under or
produced from any part of the Land, all development rights and credits, air rights, water,
water courses, water rights (whether riparian, appropriative or otherwise, and whether or
not appurtenant) and water stock (together with the statutory right to file applications to
change, and any and all applications to change), servitudes, easements, rights of way,
rights of ingress and egress, drainage rights, gores or strips of land, any land lying in
the streets, highways, ways, sidewalks, alleys, passages, roads or avenues, open or
proposed, in front of or adjoining the Land and Improvements, any land in the bed of any
body of water adjacent to the Land, any land adjoining the Land created by artificial means
or by accretion, all air space and rights to use such air space, and all development and
similar rights; together with




(e) Subject to Article 2, below, all existing and future leases, subleases,
subtenancies, licenses (except for gaming licenses and liquor licenses that are not
transferable), occupancy agreements, concessions and any other agreement leasing or letting
any portion of the Property or relating to the use and enjoyment of all or any part of the
Land and Improvements, and any and all guaranties and other agreements relating to or made
in connection with any of the foregoing, whether written or oral and whether in existence at
or upon the recordation of this Mortgage or entered into after the recordation of this
Mortgage (some or all collectively, as the context may require, “Leases,” which
shall not include the Ground Leases), and all rents, security deposits, royalties, issues,
profits, receipts, earnings, revenue, income, products and proceeds and other benefits of
the Land and Improvements, whether now due, past due or to become due, including, without
limitation, all prepaid rents, security deposits, fixed, additional and contingent rents,
deficiency rents and liquidated damages, occupancy charges, hotel room charges, cabana
charges, casino revenues, show ticket revenues, food and beverage revenues, room service
revenues, merchandise sales revenues, parking, maintenance, common area, tax, insurance,
utility and service charges and contributions, proceeds of sale of electricity, gas,
heating, air-conditioning, cable and other utilities and services, green fees, cart rental
fees, instruction fees, membership charges, restaurant, snack bar and pro shop revenues,
liquidated damages, and all other rights to payments (some or all collectively, as the
context may require, “Rents”); together with




(f) All goods, materials, supplies, chattels, furniture, fixtures, equipment, machinery
and other property now or later to be attached to, placed in or on, or used in connection
with the use, enjoyment, occupancy or operation of all or any part of the Land and
Improvements, whether stored on the Land or elsewhere, including all pumping plants,
engines, pipes, ditches and flumes, and also all gas, electric, cooking,


 


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heating, cooling, air conditioning, lighting, refrigeration and plumbing fixtures and
equipment, all water, sanitary and storm sewer, drainage, electricity, steam, gas,
telephone, cable and other utility equipment and facilities, all plumbing, lighting,
heating, ventilating, air conditioning, refrigerating, incinerating, compacting, fire
protection and sprinkler, surveillance and security, vacuum cleaning, public address and
communications equipment and systems, all kitchen and laundry appliances, screens, awnings,
floor coverings, partitions, elevators, escalators, motors, machinery, pipes, fittings and
other items of equipment and property of every kind and description; together with




(g) All building materials, equipment, work in process or other personal property of
any kind, whether stored on the Land or elsewhere, which have been or later will be acquired
for the purpose of being delivered to, incorporated into or installed in or about the Land
or Improvements; together with




(h) All rights to the payment of money, accounts, accounts receivable, reserves,
deferred payments, refunds of real property and personal property taxes, refunds, cost
savings, payments and deposits, whether now or later to be received from third parties
(including all earnest money sales deposits) or deposited by Trustor with third parties
(including all utility deposits), contract rights, general intangibles, development and use
rights, governmental permits and licenses (except for gaming licenses and liquor licenses
that are not transferable), authorizations, certificates, variances, consents and approvals,
applications, architectural and engineering plans, specifications and drawings, as-built
drawings, guaranties, warranties, management agreements, operating and/or licensing
agreements, supply and service contracts for water, sanitary and storm sewer, drainage,
electricity, steam, gas, telephone, cable, and other utilities, property and title insurance
policies and proceeds thereof, chattel paper, instruments, documents, notes, certificates of
deposit, deposit accounts, securities, investment property, other investments, drafts and
letters of credit (other than letters of credit in favor of Beneficiary), which arise from
or relate to construction on the Land or to any business now or later to be conducted on it,
or to the Land and Improvements generally; together with




(i) Subject to the Borrower’s rights to use proceeds under the Credit Agreement, all
proceeds, including all rights and claims to, dividends of and demands for them, of the
voluntary or involuntary conversion of any of the Land, Improvements or the other property
described above into cash or liquidated claims, including proceeds of all present and future
fire, hazard or casualty insurance policies (whether or not such policies are required
hereunder or under one of the other Loan Documents) and all condemnation awards or payments
now or later to be made by any public body or decree by any court of competent jurisdiction
for any taking or in connection with any condemnation or eminent domain proceeding, and all
causes of action and their proceeds for any damage or injury to the Land, Improvements or
the other property described above or any part of them, or breach of warranty in connection
with the construction of the Improvements, including causes of action arising in tort,
contract, fraud or concealment of a material fact; together with


 


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(j) All books and records pertaining to any and all of the property described above,
including computer readable memory and any computer hardware or software necessary to access
and process such memory (“Books and Records”); together with




(k) All proceeds of, additions and accretions to, substitutions and replacements for,
changes in, and greater right, title and interest in, to and under or derived from, any of
the property described above and all extensions, improvements, betterments, renewals,
substitutions and replacements thereof and additions and appurtenances thereto, including
all proceeds of any voluntary or involuntary disposition or claim, right and remedy
respecting any such property (arising out of any judgment, condemnation or award, or
otherwise arising) and all goods, documents, general intangibles, chattel paper and
accounts, wherever located, acquired with cash proceeds of any of the foregoing or its
proceeds.



All of the aforedescribed Property shall remain so specially mortgaged, affected and
hypothecated or, as set forth above, collaterally assigned or pledged, unto and in favor of
Beneficiary until the full and final payment, performance and observance of the Secured Obligations
secured by this Mortgage.



With respect to the proceeds attributable to the insured loss of all or any part of the
Property referred to in (i) above and in Section 5.5 hereof, this Mortgage is a collateral
assignment thereof pursuant to La. R.S. § 9:5386 et seq., whether such proceeds or any of them now
exist or arise in the future, and Trustor does hereby irrevocably make, constitute and appoint
Beneficiary and the agents of Beneficiary as the true and lawful mandataries and attorneys-in-fact
of Trustor to carry out and enforce all of the proceeds hereby collaterally assigned, subject to
the Credit Agreement. The mandatory and attorney-in-fact designation set forth in the preceding
sentence shall be coupled with an interest and may not be revoked by Trustor so long as this
Mortgage remains in effect. Such proceeds shall otherwise be included in the term “Property,” for
all purposes of this Mortgage. The collateral assignment herein made of the aforesaid proceeds
shall not be construed as imposing upon Beneficiary any obligations with respect thereto unless and
until Beneficiary shall become the absolute owner thereof and Trustor shall have been wholly
dispossessed thereof.



Trustor shall and will warrant and forever defend the Property and the quiet and peaceable
possession of the Beneficiary, its successors and assigns against all and every person or persons
lawfully claiming or to claim the whole or any part thereof. Trustor agrees that any greater title
to the Property hereafter acquired by Trustor during the term hereof shall be subject hereto.




1.2 Secured Obligations.



1.2.1 Trustor makes the mortgage, hypothecation, pledge, grant, transfer and assignment set
forth in Section 1.1 and the assignment set forth in Article 2 and grants the security interest set
forth in Article 3 for the purpose of securing payment and performance of the



 


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following obligations (collectively, the “Secured Obligations”) in any order of priority that
Beneficiary may choose:




(a) The payment and performance of all indebtedness and other obligations of Trustor
under the Subsidiary Guaranty;




(b) The payment and performance of all obligations of Trustor under this Mortgage;




(c) The payment and performance of all future advances and other obligations that
Trustor, Borrower or any other person may owe to Beneficiary and/or any Lenders (whether as
principal, surety or guarantor), when a writing evidences Trustor’s and Beneficiary’s
agreement that such advances or obligations be secured by this Mortgage; and




(d) The payment and performance of all modifications, amendments, extensions and
renewals, however evidenced, of any of the Secured Obligations described in clauses (a), (b)
or (c), above.



1.2.2 All persons who may have or acquire an interest in all or any part of the Property will
be considered to have notice of, and will be bound by, the terms of the Secured Obligations and
each other agreement or instrument made or entered into in connection with each of the Secured
Obligations. Such terms include any provisions in the Credit Agreement or the other Loan Documents
which permit borrowing, repayment and reborrowing, or which provide that the interest rate on one
or more of the Secured Obligations may vary from time to time.



1.3 This Mortgage secures the prompt payment and performance of the Secured Obligations,
including, without limitation, the payment of the Notes and all amounts owing under the Credit
Agreement and the Loan Documents and the payment and performance of all other obligations, whether
presently existing, now arising or incurred hereafter, whether incurred for personal or
non-business purpose, or for any other purpose related or unrelated, or similar or dissimilar, to
the purpose of the Loan, whether or not such Secured Obligations are of the same type or character.
Trustor and Beneficiary acknowledge and agree that this Mortgage may secure Secured Obligations
that have been or will be borrowed, repaid and reborrowed from time to time, one or more, times,
and that this Mortgage shall be effective, as to all future advances, as of the date of execution
and recordation hereof, it being intended that this Mortgage be a mortgage to secure present and
future obligations to the fullest extent permitted by La. Civ. Code art. 3298.



NOTWITHSTANDING ANY PROVISION OF THIS MORTGAGE TO THE CONTRARY, THE MAXIMUM PRINCIPAL AMOUNT OF THE
SECURED OBLIGATIONS THAT MAY BE OUTSTANDING AT ANY TIME AND FROM TIME TO TIME THAT THIS MORTGAGE
SECURES, INCLUDING, WITHOUT LIMITATION, AS A MORTGAGE AND AS A COLLATERAL ASSIGNMENT OF LEASES AND
RENTS, INCLUDING ALL PRINCIPAL, INTEREST AND ANY EXPENSES OR ADDITIONAL OBLIGATIONS INCURRED BY THE
BENEFICIARY


 


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AND ALL OTHER AMOUNTS INCLUDED WITHIN THE SECURED OBLIGATIONS, IS $750,000,000.00.




1.4 No Paraphs. Trustor and Beneficiary acknowledge that neither the Notes, any other
note nor any other written evidence of indebtedness has been paraphed for identification with this
Mortgage.



2. Assignment of Rents and Leases.



2.1 Absolute Assignment. Trustor hereby irrevocably, absolutely, presently and
unconditionally assigns, transfers and sets over to Beneficiary all of the right, title and
interest which Trustor now has or may later acquire in and to the Rents and the Leases, and confers
upon Beneficiary the right, upon the occurrence and during the continuance of an Event of Default
(hereinafter defined), to collect such Rents and enforce the provisions of the Leases with or
without taking possession of the Property. The assignment of Leases and Rents to Beneficiary
herein is made pursuant to La. R.S. § 9:4401.



2.2 Prior to an Event of Default. Beneficiary shall have the right to collect and
retain the Rents as they become due and payable, so long as no Event of Default, as defined in
Section 6.1, shall exist and be continuing. If an Event of Default has occurred and is continuing,
the assignment of Leases and Rents to Beneficiary shall become absolute as provided in La. R.S. §
9:4401.



2.3 Grant of License. Beneficiary hereby confers upon Trustor a license (“License”)
to collect and retain the Rents as they become due and payable; provided that if an Event of
Default has occurred and is continuing, Beneficiary shall have the right, which it may choose to
exercise in its absolute discretion, to terminate this License without notice to or demand upon
Trustor, and without regard to the adequacy of Beneficiary’s security under this Mortgage; provided
further that until Beneficiary has terminated the License as provided herein, Trustor may continue
to collect and retain the Rents pursuant to the License.



2.4 Collection and Application of Rents. Subject to the License granted to Trustor
under Section 2.3 above, and only upon the occurrence and during the continuance of an Event of
Default, Beneficiary shall have the right, power and authority to collect any and all Rents and
exercise Trustor’s right, title and interest under the Leases. Trustor hereby appoints Beneficiary
as its mandatory attorney-in-fact (which appointment is irrevocable and coupled with an interest)
to perform any and all of the following acts upon the occurrence and during the continuance of an
Event of Default, if and at the times when Beneficiary, in its absolute discretion, may so choose:




(a) Demand, receive and enforce payment of any and all Rents and any other right, title
and interest of Trustor under the Leases;




(b) Give receipts, releases and satisfactions for any and all Rents and any other
obligations and duties under the Leases; or




(c) Sue either in the name of Trustor or in the name of Beneficiary for any and all
Rents and to enforce any other obligations and duties under the Leases.


 


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Beneficiary’s right to the Rents and the Leases does not depend on whether or not Beneficiary takes
possession of the Property as permitted under Section 6.2.3 hereof, or as permitted under
applicable law. In Beneficiary’s absolute discretion, Beneficiary may choose to collect Rents and
exercise the right, title and interest of Trustor under the Leases either with or without taking
possession of the Property. Beneficiary shall apply all Rents collected by it in the manner
provided under Section 6.5. If an Event of Default shall have occurred and Beneficiary is in
possession of all or part of the Property as Keeper (hereinafter defined) thereof or otherwise and
is collecting and applying Rents and exercising any right, title and interest of Trustor under the
Leases as permitted under this Mortgage, then Beneficiary and any Keeper shall nevertheless be
entitled to exercise and invoke every right and remedy afforded any of them under this Mortgage and
at law and in equity.



2.5 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any
duty to produce Rents from the Property or maintain the Leases. Regardless of whether or not
Beneficiary, in person or by agent, takes actual possession of the Land and Improvements as Keeper
or otherwise, Beneficiary is not and shall not be deemed to be:




(a) a “mortgagee in possession” for any purpose;




(b) responsible for performing any of the obligations under any Lease;




(c) responsible for any waste committed by lessees or any other parties, any dangerous
or defective condition of the Property, or any negligence in the management, upkeep, repair
or control of the Property; or




(d) liable in any manner for the Property or the use, occupancy, enjoyment or operation
of all or any part of it.



2.6 Leasing. Without Beneficiary’s prior written consent, Trustor shall not accept
any deposit or prepayment of Rents for any period exceeding one month, and Trustor shall not lease
the Property or any part of it except strictly in accordance with the Loan Documents. Trustor
shall not apply any Rents in any manner prohibited by the Loan Documents.



2.7 Maximum Amount Secured. NOTWITHSTANDING ANY PROVISION OF THIS MORTGAGE TO THE
CONTRARY, THE MAXIMUM PRINCIPAL AMOUNT OF THE SECURED OBLIGATIONS THAT MAY BE OUTSTANDING AT ANY
TIME AND FROM TIME TO TIME THAT THIS MORTGAGE SECURES, INCLUDING, WITHOUT LIMITATION, AS A MORTGAGE
AND AS A COLLATERAL ASSIGNMENT OF LEASES AND RENTS, INCLUDING ALL PRINCIPAL, INTEREST AND ANY
EXPENSES OR ADDITIONAL OBLIGATIONS INCURRED BY THE BENEFICIARY AND ALL OTHER AMOUNTS INCLUDED
WITHIN THE SECURED OBLIGATIONS, IS $750,000,000.00.



3. Grant of Security Interest.



3.1 Security Agreement. The parties intend for this Mortgage to create a lien on and
security interest in the Property, and an absolute assignment of the Rents and the Leases, all in
favor of Beneficiary. The parties acknowledge that some of the Property and some of the Rents and
Leases may be determined under applicable law to be personal property or fixtures. To the



 


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extent such Property, Rents or Leases constitute personal property, Trustor, as debtor, hereby
grants to Beneficiary, as secured party, a security interest in all such Property, Rents and
Leases, to secure payment and performance of the Secured Obligations, and Trustor, as debtor, also
has granted a security interest in such Property, Rents and Leases pursuant to a certain Security
Agreement of even date herewith, executed by Trustor and by certain other parties, as debtors, in
favor of Beneficiary, as secured party. This Mortgage constitutes a security agreement under
Chapter 9 of the Louisiana Commercial Laws, La. R.S. § 10:91-101 et seq. (“Chapter 9”), as amended
or recodified from time to time, covering all such Property, Rents and Leases. To the extent such
Property, Rents or Leases are not immovable property encumbered by the lien created by Section 1.1,
above, and are not assigned by the assignment set forth in Section 2.1, above, it is the intention
of the parties that such Property, Rents and/or Leases shall constitute “proceeds, products,
offspring, or profits” and/or “rents” of the Land and Improvements, and/or “fees, charges,
accounts, or other payments for the use or occupancy of rooms and other public facilities in ...
lodging properties,” as applicable (as such terms are defined in and for the purposes of Section
552(b) of the United States Bankruptcy Code, as such Section may be modified or supplemented).



3.2 Financing Statements. Trustor hereby authorizes Beneficiary to execute one or
more financing statements and such other documents as Beneficiary may from time to time require to
perfect or continue the perfection of Beneficiary’s security interest in any Property, Rents or
Leases. As provided in Section 5.11, Trustor shall pay all fees and costs that Beneficiary may
incur in filing such documents in public offices and in obtaining such record searches as
Beneficiary may reasonably require. If Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor hereby appoints
Beneficiary as its true and lawful mandatory attorney-in-fact (which appointment is irrevocable and
coupled with an interest) to execute any such documents on its behalf. If any financing statement
or other document is filed in the records normally pertaining to personal property, that filing
shall never be construed as in any way derogating from or impairing this Mortgage or the rights or
obligations of the parties under it.



4. Intentionally Omitted.



5. Rights and Duties of the Parties.



5.1 Representations and Warranties. Trustor represents and warrants that, except as
previously disclosed to Beneficiary in Schedule 7.3(f) attached to the Credit Agreement:




(a) This Mortgage creates a first and prior lien on and security interest in the
Property, subject only to the Liens permitted by Section 7.3 of the Credit Agreement, and
other encumbrances and rights permitted by this Mortgage;




(b) The Property includes all material property and rights which may be reasonably
necessary or desirable for the use, if any, of the Property;




(c) Trustor’s place of business, or its chief executive office if it has more than one
place of business, is located at the address specified above;


 


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(d) This Mortgage does not encumber Land on which Improvements are located in an area
that has been identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968, except any Land on which Improvements are located as
to which flood insurance as required by Regulation H has been obtained and is in full force
and effect as required by the Credit Agreement; and




(e) Trustor’s correct name and federal employer identification number are as set forth
on the first Page hereof.



5.2 Taxes and Assessments. To the extent required under the Credit Agreement, Trustor
shall pay prior to delinquency all taxes, levies, charges and assessments, including assessments on
appurtenant water stock, imposed by any public or quasi-public authority or utility company which
are (or if not paid, may become) a lien on or security interest in all or part of the Property or
any interest in it, or which may cause any decrease in the value of the Property or any part of it.
If any such taxes, levies, charges or assessments become delinquent, Beneficiary may require
Trustor to present evidence that they have been paid in full, on ten days’ written notice by
Beneficiary to Trustor. This Section 5.2 is subject to the right granted to Trustor in the Credit
Agreement to contest in good faith certain taxes, assessments, charges and levies (and Trustor’s
failure to pay any immaterial tax shall not constitute an Event of Default hereunder to the extent
Trustor is excused from paying such tax pursuant to Section 4.10 of the Credit Agreement);
otherwise, should Trustor fail to pay any of the aforesaid taxes, levies, charges or assessments
prior to the date that same become delinquent, Beneficiary, at its sole option, shall have the
right, but not the obligation, to pay such taxes, levies, charges and assessments and all amounts
advanced by Beneficiary for such purpose, together with interest thereon at the rate of 2.0% above
the Base Rate from the fifth day following the date of demand for payment by Beneficiary until
repaid, shall be secured by this Mortgage and payable on demand.



5.3 Performance of Secured Obligations. Trustor shall promptly pay and perform or
cause the payment and performance of, each Secured Obligation in accordance with its terms.



5.4 Liens, Charges and Encumbrances. Trustor shall promptly discharge any lien on or
security interest in the Property to which Beneficiary has not consented in writing, except any
Liens permitted by Section 7.3 of the Credit Agreement. Subject to any applicable rights to
contest set forth in the Credit Agreement: (a) Trustor shall pay when due each obligation secured
by or reducible to a lien, security interest, charge or encumbrance which now does or later may
encumber or appear to encumber all or part of the Property or any interest in it, whether the lien,
security interest, charge or encumbrance is or would be senior or subordinate to this Mortgage; and
(b) should Trustor fail to perform its obligations under this Section 5.4, Beneficiary, at its
option, shall have the right, but not the obligation, to advance funds which may be necessary to
protect and preserve Beneficiary’s liens hereunder, and to discharge Trustor’s obligations under
this Section 5.4, and all amounts so advanced by Beneficiary, together with interest thereon at the
rate provided for in Section 2.16(c)(ii) of the Credit Agreement from the fifth day following the
date of demand for payment by Beneficiary until repaid, shall be secured by this Mortgage and
payable on demand.


 


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5.5 Damages and Insurance and Condemnation Proceeds.



5.5.1 The following claims, causes of action, awards, payments and rights to payment are
subject to the Borrower’s rights to use such proceeds as provided in the Credit Agreement:




(a) All awards of damages and all other compensation payable directly or indirectly
because of a condemnation, proposed condemnation or taking for public or private use which
affects all or part of the Property or any interest in it;




(b) All other awards, claims and causes of action, arising out of any warranty
affecting all or any part of the Property, or for damage or injury to or decrease in value
of all or part of the Property or any interest in it;




(c) All proceeds of any insurance policies payable because of loss sustained to all or
part of the Property; and




(d) All interest which may accrue on any of the foregoing.




5.5.2 Trustor shall promptly notify Beneficiary in writing if:




(a) Any damage occurs or any injury or loss is sustained in the amount of $1,000,000 or
more to all or part of the Property, or any action or proceeding relating to any such
damage, injury or loss is commenced; or




(b) Any offer is made, or any action or proceeding is commenced, which relates to any
actual or proposed condemnation or taking of all or material part of the Property.



5.5.3 Subject to the Credit Agreement, including, without limitation, Section 2.13 thereof, if
Beneficiary chooses to do so, Beneficiary may in its own name appear in or prosecute any action or
proceeding to enforce any cause of action based on warranty, or for damage, injury or loss to all
or part of the Property, and Beneficiary may make any compromise or settlement of such action or
proceeding; provided, however, that, prior to the occurrence of an Event of Default, Beneficiary
shall not settle or compromise any such action or proceeding without the prior written consent of
Trustor (which consent shall not be unreasonably withheld or delayed). Beneficiary, if it so
chooses, may participate in any action or proceeding relating to condemnation or taking of all or
part of the Property, and may join Trustor in adjusting any loss covered by insurance. Trustor
hereby irrevocably appoints Beneficiary as its true and lawful mandatory and attorney-in-fact for
all such purposes. The power of attorney granted hereunder is coupled with an interest and is
irrevocable. Trustor shall not settle, adjust or compromise any such action or proceeding without
the prior written approval of Beneficiary.



5.5.4 All proceeds of these assigned claims, other property and rights which Trustor may
receive or be entitled to (collectively, “Proceeds”) shall be administered in



 


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accordance with the terms of the Credit Agreement, including, without limitation, Section 2.13
thereof. Any and all Proceeds (including, without limitation, any Net Claims Proceeds) held by
Beneficiary from time to time shall be collateral for the Secured Obligations, and Trustor hereby
grants to Beneficiary a security interest in and lien on such Proceeds and all rights and remedies
available under applicable laws with respect to such Proceeds, including, without limitation, all
rights and remedies under Chapter 9. Trustor shall execute and deliver to Beneficiary and the
Lenders any and all documents reasonably requested by Beneficiary in order to confirm, create and
perfect such security interest in and lien on such Proceeds.



5.5.5 Trustor hereby specifically, unconditionally and irrevocably waives all rights of a
property owner granted under applicable laws which provide for allocation of condemnation proceeds
between a property owner and a lienholder up to the principal amount of Secured Obligations under
the Credit Agreement, and any other law or successor statute of similar import. Trustor hereby
specifically, unconditionally and irrevocably waives all right to recover against Beneficiary or
any Lender (or any officer, employee, agent or representative of Beneficiary or any Lender) for any
loss incurred by Trustor from any cause insured against or required by any Loan Document to be
insured against; provided, however, that this waiver of subrogation shall not be effective with
respect to any insurance policy if the coverage thereunder would be materially reduced or impaired
as a result.




5.6 Maintenance and Preservation of Property.



5.6.1 Subject to Section 6.5 of the Credit Agreement, Trustor shall keep all Property useful
and necessary in its business in good working order and condition, ordinary wear and tear excepted.



5.6.2 Subject to the terms of Section 2.13 of the Credit Agreement, if all or part of the
Property becomes damaged or destroyed and Trustor elects to repair and/or restore all or part of
the Property, Trustor shall promptly and completely repair and/or restore the Property in a good
and workmanlike manner in accordance with sound building practices. If Trustor elects to repair
and/or restore all or part of the Property, Trustor shall be obligated to repair and/or restore the
Property in accordance with the immediately preceding sentence even if no insurance proceeds are
available or the available insurance proceeds are not sufficient to pay for the entire cost of such
repair and/or restoration.



5.6.3 Trustor shall not commit or allow any act upon or use of the Property which would
violate: (i) any applicable law or order of any Governmental Authority, whether now existing or
later to be enacted and whether foreseen or unforeseen (except to the extent that noncompliance
would not cause a Material Adverse Effect or a License Revocation); or (ii) any public or private
covenant, condition, restriction, equitable servitude or Contractual Obligation affecting the
Property (except to the extent such violation is being contested by Trustor in good faith by
appropriate proceedings or such violation would not cause a Material Adverse Effect). Trustor
shall not bring or keep any article on the Property or cause or allow any condition to exist on it
that invalidates any insurance coverage required to be maintained by Trustor on the Property or any
part of it under this Mortgage or the Loan Documents.



5.6.4 Trustor shall not commit or allow material waste of the Property.


 


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5.6.5 Should Trustor fail to perform its obligations under this Section 5.6, Beneficiary, at
its sole option, shall have the right, but not the obligation, to advance funds for the protection,
preservation, repair or recovery of the Property, and all amounts so advanced by Beneficiary,
together with interest thereon at 2.0% above the Base Rate from the fifth day following the date of
demand for payment by Beneficiary until repaid, shall be secured by this Mortgage and payable on
demand.




5.7 Insurance.



5.7.1 Trustor shall maintain with financially sound and reputable insurance companies
insurance on all of its Property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in the same or a similar
business.



5.7.2 When any insurance policy required hereunder expires, Trustor shall furnish Beneficiary
with proof acceptable to Beneficiary that the policy has been reinstated, renewed or a new policy
issued, continuing in force the insurance covered by the policy which expired.



5.7.3 Should Trustor fail to procure any of the insurance required by this Section 5.7,
Beneficiary, at its sole option, shall have the right, but not the obligation, to purchase such
insurance and all amounts advanced by Beneficiary for such purpose, together with interest thereon
at the rate provided for in Section 2.16(c)(ii) of the Credit Agreement shall be secured by this
Mortgage and payable on demand.




5.8 [Intentionally Left Blank.]




5.9 Releases, Extensions, Modifications and Additional Security.



5.9.1 From time to time, Beneficiary may perform any of the following acts without incurring
any liability or giving notice to any person, and without affecting the personal liability of any
person for the payment of the Secured Obligations (except as provided below), and without affecting
the security hereof for the full amount of the Secured Obligations on all Property remaining
subject hereto, and without the necessity that any sum representing the value of any portion of the
Property affected by Beneficiary’s action(s) be credited on the Secured Obligations:




(a) Release any person liable for payment of any Secured Obligation, except as
permitted by Section 10.15 of the Credit Agreement;




(b) Extend the time for payment, or otherwise alter the terms of payment, of any
Secured Obligation;




(c) Accept additional real, immovable, movable or personal property of any kind as
security for any Secured Obligation, whether evidenced by deeds of trust, mortgages,
security agreements or any other instruments of security;


 


12









 






(d) Alter, substitute or release any property securing the Secured Obligations;




(e) Consent to the making of any plat or map of the Property or any part of it;




(f) Join in granting any easement or creating any restriction affecting the Property;




(g) Join in any subordination or other agreement affecting this Mortgage or the lien or
security interest of it; or




(h) Release the Property or any part of it from the lien of this Mortgage, in
accordance with the Credit Agreement.



5.10 Termination of Mortgage. In the event that (i) Trustor has requested Beneficiary
release the Property, or portions thereof, from the lien of this Mortgage pursuant to a Disposition
permitted under the terms of the Credit Agreement, or (ii) all Secured Obligations (other than
contingent indemnity obligations and obligations in respect of the Specified Hedge Agreements) are
paid and performed in full and neither Trustor nor Beneficiary is bound, to one another or to a
third party, to permit the incurrence of additional Secured Obligations, Trustor may give notice to
Beneficiary of its intent to terminate this Mortgage and may request that Beneficiary execute a
release of this Mortgage, or partial release, at the expense of Trustor. Such termination shall
not become effective, and Beneficiary shall not be obligated to execute such a release, until sixty
(60) days after Beneficiary has actually received such notice in the manner required by Section
9.11 hereof and until Beneficiary has determined, in good faith, that Trustor is entitled to
terminate this Mortgage and obtain such release under the terms of this Section 5.10.




5.11 Compensation, Exculpation, Indemnification.



5.11.1 Trustor agrees to pay fees in the maximum amounts legally permitted, or reasonable fees
as may be charged by Beneficiary when the law provides no maximum limit, for any services that
Beneficiary may render in connection with this Mortgage, including Beneficiary’s providing a
statement of the Secured Obligations or Beneficiary’s rendering of services in connection with a
release or termination of this Mortgage. Trustor shall also pay or reimburse all of Beneficiary’s
costs and expenses which may be incurred in rendering any such services. Trustor further agrees to
pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or
made by Beneficiary in any efforts to enforce any terms of this Mortgage to the extent provided in
Section 9.7 of the Credit Agreement. If Beneficiary chooses to dispose of the Property through
more than one Foreclosure Sale, Trustor shall pay all costs, expenses or other advances that may be
incurred or made by Beneficiary in each of such Foreclosure Sales.



5.11.2 Beneficiary shall not be directly or indirectly liable to Trustor or any other person
as a consequence of any of the following:




(a) Beneficiary’s exercise of, or failure to exercise, any rights, remedies or powers
granted to Beneficiary in this Mortgage;


 


13









 






(b) Beneficiary’s failure or refusal to perform or discharge any obligation or
liability of Trustor under any agreement related to the Property or under this Mortgage; or




(c) Any loss sustained by Trustor or any third party resulting from Beneficiary’s
failure to lease or operate the Property, or from any other act or omission of Beneficiary
in managing the Property, after an Event of Default, unless the loss is caused by the gross
negligence or willful misconduct of Beneficiary.



Trustor hereby expressly waives and releases all liability (other than liability for loss caused by
the gross negligence or willful misconduct of Beneficiary) of the types described above, and agrees
that no such liability shall be asserted against or imposed upon Beneficiary.



5.11.3 Trustor agrees to, and does hereby, indemnify Beneficiary and the Lenders and their
respective agents, employees, officers, directors, consultants, shareholders, attorneys and Keepers
(collectively, the “Indemnitees”) to the extent provided in Section 9.7 of the Credit Agreement.



5.12 Defense and Notice of Claims and Actions. At Trustor’s sole expense, Trustor
shall protect, preserve and defend the Property and title to and right of possession of the
Property, and the security of this Mortgage and the rights and powers of Beneficiary created under
it, against all adverse claims. Trustor shall give Beneficiary prompt notice in writing if any
claim is asserted in writing which does or could affect the title to or right of possession of the
Property (other than personal property the loss of which would not disrupt the operations of
Trustor), or the security of this Mortgage or the rights and powers of Beneficiary under this
Mortgage, or if any action or proceeding is commenced which alleges or relates to any such claim.




5.13 [Intentionally Left Blank.]



5.14 Subrogation. Beneficiary shall be subrogated to the liens and security interests
of all encumbrances, whether released of record or not, which are discharged in whole or in part by
Beneficiary in accordance with this Mortgage or with the proceeds of any Secured Obligations
secured by this Mortgage.



5.15 Site Visits, Observation and Testing. Beneficiary and its agents and
representatives shall have the right at any reasonable time upon reasonable written advance notice
to enter and visit the Property for the purpose of performing appraisals. In addition, Beneficiary
and its agents and representatives shall have the right at any reasonable time upon reasonable
written advance notice to enter and visit the Property for the purposes of observing the Property,
taking and removing soil or groundwater samples, and conducting tests on any part of the Property.
Beneficiary or its agents and representatives have no duty, however, to visit or observe the
Property or to conduct tests, and no site visit or observation by Beneficiary or its agents or
representatives shall impose any liability on Beneficiary or any other person entitled to
indemnification pursuant to Section 9.7 of the Credit Agreement (collectively, the “Indemnified
Parties”). In no event shall any site visit, observation or testing by any Indemnified Party be a
representation that Materials of Environmental Concern are or are not present in, on, or under the



 


14









 






Property, or that there has been or shall be compliance with any Environmental Law, or any
other applicable Law. Neither Trustor nor any other party is entitled to rely on any site visit,
observation or testing by any Indemnified Party. The Indemnified Parties owe no duty of care to
protect Trustor or any other person against, or to inform Trustor or any other person of, any
Materials of Environmental Concern or any other adverse condition affecting the Property.
Beneficiary shall give Trustor reasonable notice before entering the Property. Beneficiary shall
make reasonable efforts to avoid interfering with Trustor’s use of the Property in exercising any
rights provided in this Section.



5.16 Notice of Change. Trustor shall give Beneficiary prior written notice of (a) any
change in the location of Trustor’s place of business or its chief executive office if it has more
than one place of business, (b) any change in the location of its Books and Records, and (c) any
change to Trustor’s name, jurisdiction of formation, entity structure or federal employer
identification number. Unless otherwise approved by Beneficiary in writing, all Property that
consists of personal property, the removal of which would disrupt the operations of Trustor
(including the Books and Records), will be located on the Land.



5.17 Title Insurance. At any time and from time to time, Trustor, at its sole cost
and expense, shall deliver to Beneficiary title insurance endorsements and reinsurance as
Beneficiary may reasonably request with respect to the priority of this Mortgage, issued by title
insurance companies, all in form and substance and reasonably satisfactory to Beneficiary, with
respect to this Mortgage, including, without limitation, endorsements insuring that each Loan
advance is secured by this Mortgage (without any exception not set forth in the policy of title
insurance insuring this Mortgage other than (i) liens for taxes and assessments not yet due and
payable and (ii) Permitted Encumbrances insured to be subordinate to this Mortgage), and
endorsements insuring the priority of this Mortgage over any mechanic’s lien.



6. Defaults and Remedies.



6.1 Events of Default. Trustor will be in default under this Mortgage upon the
occurrence of any Event of Default (as defined in the Credit Agreement or any other Loan Document)
or any other default herein (subject to any cure periods applicable to defaults under the Loan
Documents as provided in the Credit Agreement).



6.2 Remedies. At any time after and during the continuance of an Event of Default,
and provided that Beneficiary has received any consents or approvals of any other Lenders to the
extent required under the Credit Agreement, Beneficiary will be entitled to exercise any or all of
the following rights and remedies and any other rights and/or remedies available to Beneficiary at
law or in equity (subject to any restrictions on those rights and remedies imposed by applicable
Gaming Laws), all of which will be cumulative, and the exercise of any one or more of which shall
not constitute an election of remedies:



6.2.1 Acceleration. Beneficiary may declare any or all of the Secured Obligations to
be due and payable immediately without notice to or demand upon Borrower, Trustor or any other
person or entity. Trustor acknowledges that Beneficiary and the Lenders are making one or more
advances under the Credit Agreement in reliance on the expertise, skill and



 


15









 






experience of Borrower and Trustor; thus, the Secured Obligations include material elements
similar in nature to a personal service contract.



6.2.2 Receiver or Keeper. Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver or Keeper for the Property; and
Beneficiary, to the extent permitted by applicable law, may request, in connection with any
foreclosure proceeding hereunder, that the Louisiana Gaming Control Board petition a District Court
of the State of Louisiana for the appointment of a supervisor to conduct the normal gaming
activities on the Property concurrently with or following such foreclosure proceeding.



6.2.3 Entry. Beneficiary, in person, by agent or by court-appointed receiver or
Keeper, may enter, take possession of, manage and operate all or any part of the Property, and may
also do any and all other things in connection with those actions that Beneficiary may in its
absolute discretion consider necessary and appropriate to protect the security of this Mortgage.
Such other things may include, without limitation: taking and possessing all of Trustor’s or the
then owner’s Books and Records; entering into, enforcing, modifying, or canceling Leases on such
terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; collecting
and receiving any payment of money owing to Trustor; completing construction; and/or contracting
for and making repairs and alterations. If Beneficiary so requests, Trustor shall assemble all of
the Property that has been removed from the Land and make all of it available to Beneficiary at the
site of the Land. Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor’s
mandatory and attorney-in-fact (which appointment is irrevocable and coupled with an interest) to
perform such acts and execute such documents as Beneficiary in its absolute discretion may consider
to be appropriate in connection with taking these measures, including endorsement of Trustor’s name
on any instruments. Regardless of any provision of this Mortgage or the Credit Agreement,
Beneficiary shall not be considered to have accepted any personal or movable property in
satisfaction of any obligation of Trustor to Beneficiary unless Beneficiary has given express
written notice of Beneficiary’s election of that remedy in accordance with La. R.S. § 10:9-505, as
it may be amended or recodified from time to time.



6.2.4 Cure; Protection of Security. Beneficiary may cure any breach or default of
Trustor and, if it chooses to do so in connection with any such cure, Beneficiary may also enter
the Property and/or do any and all other things which either may in its absolute discretion
consider necessary and appropriate to protect the security of this Mortgage. Such other things may
include, without limitation: appearing in and/or defending any action or proceeding which purports
to affect the security of, or the rights or powers of Beneficiary under, this Mortgage; paying,
purchasing, contesting or compromising any encumbrance, charge, lien, security interest or claim of
lien or security interest which (in Beneficiary’s sole judgment) is or may be senior in priority to
this Mortgage, such judgment of Beneficiary to be conclusive as among the parties to this Mortgage;
obtaining insurance and/or paying any premiums or charges for insurance required to be carried
under this Mortgage and the other Loan Documents; otherwise caring for and protecting, preserving,
repairing or recovering any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary. Beneficiary may take any of the
actions permitted under this Section 6.2.4 upon giving Trustor prior written notice of such
action(s), or if Beneficiary has reasonably determined that providing



 


16









 






such prior written notice is not feasible, then substantially concurrent written notice of
such action(s).



6.2.5 Chapter 9 Remedies. Beneficiary may exercise any or all of the remedies granted
to a secured party under Chapter 9, as amended or recodified from time to time.



6.2.6 Judicial Action. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Mortgage or to obtain specific enforcement of any of the covenants
or other terms of this Mortgage.



6.2.7 Power of Sale. Beneficiary shall have the discretionary right to cause some or
all of the Property, including any Property which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by applicable law.




(a) Sales of Personal Property.




(i) Beneficiary may elect to treat as personal property any Property which is
intangible or which are fixtures, as defined in Chapter 9, which can be severed from
the Land or Improvements without causing structural damage. If it chooses to do so,
Beneficiary may dispose of any personal property separately from the sale of
immovable property, in any manner permitted by Chapter 9, as amended or recodified
from time to time, including any public or private sale, or in any manner permitted
by any other applicable law. Any proceeds of any such disposition shall not cure
any Event of Default.




(ii) In connection with any sale or other disposition of such Property, Trustor
agrees that the following procedures constitute a commercially reasonable sale:
Beneficiary shall mail written notice of the sale as required by Chapter 9. Once
per week during the three weeks immediately preceding such sale, Beneficiary will
publish notice of the sale in a local daily newspaper of general circulation. Upon
receipt of any written request, Beneficiary will make the Property available to any
bona fide prospective purchaser for inspection during reasonable business hours.
Notwithstanding any provision to the contrary, Beneficiary shall be under no
obligation to consummate a sale if, in its judgment, none of the offers received by
it equals the fair value of the Property offered for sale. The foregoing procedures
do not constitute the only procedures that may be commercially reasonable.




6.2.8 Foreclosure Sales.




(a) For purposes of executory process under applicable Louisiana law, Trustor hereby
acknowledges the Secured Obligations, CONFESSES JUDGMENT thereon and consents that judgment
be rendered and signed, whether during the court’s term or during vacation, in favor of the
Beneficiary, for the full amount of the Secured Obligations, including but not limited to
the Notes, the Credit Agreement, the other Loan Documents and the other Secured Obligations,
in principal, interest, costs and attorney’s fees, together with all charges and expenses
whatsoever owing pursuant to this Mortgage. Upon the occurrence and during the continuance
of an Event of Default, and in addition


 


17









 






to all of its rights, powers and remedies under this Mortgage and applicable law,
Beneficiary may, at its option, cause all or any part of the Property to be seized and sold
(any such sale or disposition being referred to herein as a “Foreclosure Sale”) under
executory process or under writ of fieri facias issued in execution of an ordinary judgment
obtained upon the Secured Obligations, without appraisement to the highest bidder, for cash
or upon such terms as Beneficiary deems acceptable. Trustor hereby waives all and every
appraisement of the Property and waives and renounces the benefit of appraisement and the
benefit of all laws relative to the appraisement of the Property seized and sold under
executory or other legal process. Trustor agrees to waive, and does hereby specifically
waive:




(i) the benefit of appraisement provided for in Articles 2332, 2336, 2723 and
2724, Louisiana Code of Civil Procedure, and all other laws conferring such
benefits;




(ii) the demand and three (3) days delay accorded by Articles 2639 and 2721,
Louisiana Code of Civil Procedure;




(iii) the notice of seizure required by Articles 2293 and 2721, Louisiana Code
of Civil Procedure;




(iv) the three (3) days delay provided by Articles 2331 and 2722, Louisiana
Code of Civil Procedure;




(v) the benefit of the other provisions of Articles 2331, 2722 and 2723,
Louisiana Code of Civil Procedure;




(vi) the benefit of the provisions of any other articles of the Louisiana Code
of Civil Procedure not specifically mentioned above; and




(vii) all pleas of division and discussion with respect to the Secured
Obligations.



In the event Beneficiary elects, at its option, to enter suite via ordinaria on the Secured
Obligations, in addition to the foregoing confession of judgment, Trustor hereby waives citation,
other legal process and legal delays and hereby consents that judgment for the unpaid principal due
on the Secured Obligations, together with interest, attorneys’ fees, costs and other charges that
may be due on the Secured Obligations, be rendered and signed immediately.




(b) Pursuant to the authority contained in La. R.S. 9:5136 through 9:5140.2, as the
same may hereafter be amended or supplemented Trustor and Beneficiary do hereby expressly
designate Beneficiary or its designee to be keeper or receiver (“Keeper”) for the benefit of
Beneficiary or any assignee of Beneficiary, such designation to take effect immediately upon
any seizure of any of the Property under writ of executory process or under writ of
sequestration or fieri facias as an incident to an action brought by Beneficiary. The
Keeper shall be entitled to a reasonable fee and to the reimbursement of all reasonable
out-of-pocket expenses incurred by it as Keeper, and the


 


18









 






payment of such fees and expenses shall be secured by the mortgage, assignment and
security interest in the Property granted in this Mortgage.



6.2.9 Other Permitted Remedies. Beneficiary and the Lenders may refuse to make any
advance to, or issue any Letter of Credit for the account of Borrower or Trustor. Beneficiary and
the Lenders may exercise any and all other rights and remedies available under the Loan Documents
and applicable law, including, without limitation, the right to file applications to change, and to
exercise all other rights and remedies available under applicable law with respect to, all water
permits and rights relating to the Property; provided, however, that, notwithstanding the foregoing
or any other provision contained in this Mortgage, the remedies provided by this Mortgage shall not
include the right to take any action that violates applicable Gaming Laws.



6.3 Credit Bids. At any Foreclosure Sale, any person, including Trustor or
Beneficiary, may bid for and acquire the Property or any part thereof to the extent permitted by
then applicable law. Instead of paying cash for such Property, Beneficiary may settle for the
purchase price by crediting against the sales price of the Property or any part thereof any or all
of the outstanding Secured Obligations (including without limitation the portion of the Secured
Obligations attributable to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to pay or reimburse Beneficiary or the Lenders under Section 5.11) or
otherwise in such order and proportions as Beneficiary in its absolute discretion may choose.



6.4 Application of Foreclosure Sale Proceeds. Beneficiary shall apply the proceeds of
any Foreclosure Sale or other sale or disposition pursuant to Section 6.2 hereof in the manner
required by applicable law; provided that all proceeds that are to be applied against the Secured
Obligations shall, except as otherwise required by applicable law, be applied against the Secured
Obligations in any order and proportions as Beneficiary in its absolute discretion may choose
(subject to any applicable provisions for priority of application of proceeds set forth in the
Credit Agreement).



6.5 Application of Rents and Other Sums. Beneficiary shall apply any and all Rents
collected by it, and any and all sums other than proceeds of a Foreclosure Sale or other sale or
disposition which Beneficiary may receive or collect under Section 6.2, or otherwise, in the
following manner:




(a) First, to pay the portion of the Secured Obligations attributable to the costs and
expenses of operation and collection that may be incurred by Beneficiary or any receiver or
Keeper;




(b) Second, to pay all other Secured Obligations in any order and proportions as
Beneficiary in its absolute discretion may choose (subject to the provisions for priority of
application of payments set forth in the Credit Agreement); and




(c) Third, to remit the remainder, if any, to the person or persons entitled to it.
Beneficiary shall have no liability for any funds which it does not actually receive.


 


19









 





7. Leasehold Mortgage Provisions. The provisions of this Article 7 shall apply in the
event that, and so long as, any portion of the Property consists of Mortgagor’s interests as tenant
under any lease or leases encumbered by this Mortgage (collectively, including the Existing Ground
Lease, the “Ground Leases”). Unless otherwise expressly provided, the lien of this Mortgage shall
encumber all of Trustor’s rights and interests under and in connection with any Ground Lease,
including without limitation, renewal and extension rights, options to expand, and purchase options
(all of which rights shall be collectively referred to herein as a “Ground Leasehold”). Trustor
hereby agrees, with respect to each Ground Lease, as follows:



7.1 Trustor shall timely perform its obligations in connection with each Ground Lease.
Without limiting the generality of Section 6.2.4 above, Trustor specifically acknowledges
Beneficiary’s right, while any default by Trustor under any Ground Lease remains uncured, to
perform the defaulted obligations and take all other actions which Beneficiary deems necessary to
protect its interests with respect thereto, and Trustor hereby irrevocably appoints Beneficiary its
true and lawful attorney-in-fact (which appointment is irrevocable and coupled with an interest) in
its name or otherwise to execute all documents, and perform all other acts, which Beneficiary
reasonably deems necessary to preserve its or Trustor’s rights with respect to any Ground Lease.
Any amounts advanced by Beneficiary pursuant to this Section shall be included in the Secured
Obligations.



7.2 Except as not prohibited by the Credit Agreement, Trustor shall not, without Beneficiary’s
prior written consent, modify, or cause or permit the termination of, any Ground Lease, or waive or
in any way release the landlord under any Ground Lease of or from any obligation or condition.



7.3 Trustor shall notify Beneficiary promptly in writing of (i) the occurrence of any material
default by the landlord under any Ground Lease, and (ii) the receipt by Trustor of any notice
claiming the occurrence of any default by Trustor under any Ground Lease or the occurrence of any
event which, with the passage of time or the giving of notice or both, would constitute a material
default by Trustor under any Ground Lease (and Trustor shall also promptly deliver a copy of any
such notice to Beneficiary) or would otherwise permit the landlord under such Ground Lease to
terminate the Ground Lease.



7.4 Unless Beneficiary otherwise consents in writing, so long as any Secured Obligation
remains outstanding, neither the fee title to, nor any other estate or interest in, the real
property subject to any Ground Lease shall merge with any Ground Leasehold, notwithstanding the
union of such estates in the landlord or the tenant or in a third party. Any acquisition of the
landlord’s interest in any Ground Lease by Trustor or any affiliate of Trustor shall be
accomplished in such a manner as to avoid a merger of the interests of Landlord and tenant unless
Beneficiary consents to such merger in writing.



7.5 If Trustor acquires fee title to any portion of the real property subject to any Ground
Lease, this Mortgage shall automatically be a lien on such fee title.



7.6 Unless otherwise expressly obligated to do so by the terms and provisions of any Lease
(and then only to the extent of any such obligation), Trustor shall not subordinate any Ground
Lease or Ground Leasehold to any mortgage or other encumbrance of, or lien on, any



 


20









 






interest in the real property subject to such Ground Leasehold without the prior written
consent of Beneficiary. Any such prohibited subordination without such consent shall, at
Beneficiary’s option, be void.



7.7 All material subleases entered into by Trustor with respect to all or any portion of the
Property (and all existing subleases modified by Trustor) shall provide that such subleases are
subordinate to the lien of this Mortgage and any modifications of this Mortgage and the obligations
secured hereby and that, if Beneficiary forecloses under this Mortgage or enters into a new lease
with any landlord under any Ground Lease pursuant to the provisions for a new lease, if any,
contained in the applicable Ground Lease or in any other document or agreement, the subtenant shall
attorn to Beneficiary or its assignee and the sublease shall remain in full force and effect in
accordance with its terms notwithstanding the termination of the applicable Ground Lease.



7.8 Trustor shall exercise any option or right to renew or extend the term of any Ground Lease
prior to the date of termination of any such option or right, shall give immediate written notice
thereof to Beneficiary, and shall execute, deliver and record any documents requested by
Beneficiary to evidence the lien of this Mortgage on such extended or renewed lease term unless
such Ground Lease is not renewed or extended as permitted pursuant to the Credit Agreement. If
Trustor fails to exercise any such option or right as required herein, Beneficiary may exercise the
option or right as Trustor’s agent and attorney-in-fact pursuant to this Mortgage, or in
Beneficiary’s own name or in the name of and on behalf of a nominee of Beneficiary, as Beneficiary
chooses in its absolute discretion; provided, if Trustor shall fail to exercise any option or right
to renew or extend the term of any Ground Lease, Trustor shall give Beneficiary reasonable prior
notice. Beneficiary shall thereafter provide Trustor prior written notice of such action(s), or if
Beneficiary reasonably determines that providing such prior written notice is not feasible, then
substantially concurrent written notice of such action(s).



7.9 As security for the Secured Obligations, Trustor hereby assigns to Beneficiary a security
interest in all prepaid rents and security deposits and all other security which the landlords
under the Ground Leases hold for the performance of Trustor’s obligations thereunder.



7.10 Promptly upon demand by Beneficiary, Trustor shall use reasonable efforts to obtain from
the landlord under any Ground Lease and furnish to Beneficiary an estoppel certificate of such
landlord stating the date through which rent has been paid, whether or not there are any defaults,
and the specific nature of any claimed defaults.




7.11 Intentionally Deleted.



7.12 To the extent permitted by law, the price payable by Trustor or any other party in the
exercise of the right of redemption, if any, from any sale under, or decree of foreclosure of, this
Mortgage shall include all rents and other amounts paid and other sums advanced by Beneficiary on
behalf of Trustor as the tenant under the Ground Leases.



7.13 In addition to all other Events of Default described in this Mortgage, the occurrence of
any of the following shall be an Event of Default hereunder:


 


21









 






(a) A breach or default by Trustor under any Ground Lease, subject to any applicable
cure period; or




(b) The occurrence of any event or circumstance which gives the landlord under any
Ground Lease a right to terminate such Ground Lease.



7.14 As used in this Mortgage, the “Bankruptcy Code” shall mean 11 U.S.C. §§ 101, et seq., as
modified and/or recodified from time to time. Notwithstanding anything to the contrary contained
herein with respect to any Ground Lease:




(a) The lien of this Mortgage attaches to all of Trustor’s rights under subsection
365(h) of the Bankruptcy Code, including without limitation, any and all elections to be
made thereunder, any and all rights under any Ground Lease which Trustor is entitled to
retain pursuant to 11 U.S.C. § 365(h)(1)(A)(ii) in the event of a rejection under the
Bankruptcy Code of such Ground Lease by the landlord thereunder (or any trustee thereof),
and any and all rights of offset under or as described in 11 U.S.C. § 365(h)(1)(B).




(b) Trustor acknowledges and agrees that, by the terms hereof and by operation of 11
U.S.C. § 365(h)(1)(D), Beneficiary has, and until this Mortgage has been fully reconveyed
continuously shall have, whether before or after any default under any of the Secured
Obligations or the taking of any action to enforce any of Beneficiary’s rights and remedies
under this Mortgage or any foreclosure sale hereunder, the complete, unfettered and
exclusive right, in its sole and absolute discretion, to elect (the “365(h) Election”)
whether (i) any Ground Lease that has been rejected under the Bankruptcy Code by the
landlord thereunder (or any trustee therefor) shall be treated as terminated under 11 U.S.C.
§ 365(h)(1)(A)(i), or (ii) the rights under such Ground Lease that are in or appurtenant to
the real property, as described in 11 U.S.C. § 365(h)(1)(A)(ii), should be retained pursuant
to that subsection. To the extent that, notwithstanding the preceding sentence and 11
U.S.C. § 365(h)(1)(D), Trustor now or at any time in the future has any right to make, or to
participate in or otherwise in any manner affect the making of, the 365(h) Election with
respect to any Ground Lease, Trustor hereby absolutely assigns and conveys to Beneficiary
any and all such rights, and all of Trustor’s right, title and interest therein, which may
be used and exercised by Beneficiary completely, exclusively, and without any restriction
whatsoever, in Beneficiary’s sole and absolute discretion, whether before or after any
default upon any of the Secured Obligations, the taking of any action to enforce any of
Beneficiary’s rights and remedies under this Mortgage, or any foreclosure sale hereunder.
Trustor hereby unconditionally and irrevocably appoints Beneficiary as its attorney-in-fact
(which appointment is coupled with an interest) to exercise Trustor’s right, if any, to
make, or participate in, or otherwise in any matter affecting the making of, the 365(h)
Election with respect to any Ground Lease. Trustor shall not in any manner impede or
interfere with any action taken by Beneficiary and, at the request of Beneficiary, Trustor
shall take or join in the taking of any action to make, or participate in or otherwise in
any manner affect the making of, the 365(h) Election with respect to any Ground Lease;
provided such action and such Election are consistent with all applicable Laws, in such
manner as Beneficiary determines in its sole and absolute discretion. Unless and until
instructed to do so by Beneficiary (as determined by


 


22









 






Beneficiary in its sole and absolute discretion), Trustor shall not take any action to
make, or participate in or otherwise in any manner affect the making of, the 365(h) Election
with respect to any Ground Lease, including in particular, but without limitation, any
election to treat any Ground Lease as terminated. Beneficiary shall have no obligation
whatsoever to Trustor or any other person or entity in connection with the making of the
365(h) Election with respect to any Ground Lease or any instruction by Beneficiary to
Trustor given, withheld or delayed in respect thereof, nor shall Beneficiary have any
liability to Trustor or any other person or entity arising from any of the same.




(c) As security for the Secured Obligations, Trustor hereby irrevocably assigns to
Beneficiary all of Trustor’s rights to damages arising from any rejection by any landlord
(or any trustee thereof) of any Ground Lease under the Bankruptcy Code. Beneficiary and
Trustor shall proceed jointly or in the name of Trustor in respect of any claim or
proceeding relating to the rejection of any Ground Lease, including without limitation, the
right to file and prosecute any proofs of claim, complaints, motions and other documents,
provided the same shall be well grounded in fact or law, in any case in respect of such
landlord under the Bankruptcy Code. This assignment shall continue in effect until all of
the Secured Obligations have been satisfied in full. Any amounts received by Beneficiary or
Trustor as damages arising from the rejection of any Ground Lease as aforesaid shall be
applied first to all costs reasonably incurred by Beneficiary (including attorneys’ fees) in
connection with this subsection (c) and then in accordance with other applicable provisions
of this Mortgage.




(d) If, pursuant to the Bankruptcy Code, Trustor seeks to offset against the rent
reserved in any Ground Lease the amount of any damages caused by the nonperformance of the
landlord’s obligations after the rejection by the landlord (or any trustee thereof) of such
Ground Lease, Trustor shall, prior to effecting such offset, notify Beneficiary in writing
of its intent to do so, setting forth the amounts proposed to be offset and, in the event
that Beneficiary objects, Trustor shall not effect any offset of the amounts to which
Beneficiary objects. If Beneficiary fails to object within 10 days following receipt of
such notice, Trustor may offset the amounts set forth in Trustor’s notice.




(e) If any legal proceeding is commenced with respect to any Ground Lease in connection
with any case under the Bankruptcy Code, Beneficiary and Trustor shall cooperatively conduct
any such proceeding with counsel reasonably agreed upon between Trustor and Beneficiary.
Trustor shall, upon demand, pay to Beneficiary all costs (including attorneys’ fees)
reasonably incurred by Beneficiary in connection with any such proceeding.




(f) Trustor shall immediately notify Beneficiary orally upon learning of any filing by
or against any landlord of a petition under the Bankruptcy Code. Trustor shall thereafter
promptly give written notice of such filing to Beneficiary, setting forth any information
available to Trustor with respect to the date of such filing, the court in which such
petition was filed, and the relief sought therein. Trustor shall promptly deliver to
Beneficiary all notices, pleadings and other documents received by Trustor in connection
with any such proceeding.


 


23









 





7.15 No maintenance, repair or other obligation of Trustor hereunder which relates to the
“Property” shall apply to any Ground Leasehold with respect to which the applicable Ground Lease
imposes such obligation on the landlord so long as (a) Trustor does not own the landlord’s
interest; (b) such landlord is performing such obligation in accordance with the terms of such
Ground Lease; and (c) the Ground Lease has not been rejected by the landlord (or any trustee
thereof) under the Bankruptcy Code.



7.16 The generality of the provisions of this Mortgage shall not be limited by any provision
of this Article 7 that sets forth particular obligations of Trustor as the tenant under the Ground
Leases.




7.17 Trustor hereby represents and warrants to Beneficiary as follows:




(a) The Ground Leases are in full force and effect;




(b) Trustor owns the entire tenant’s interest under the Ground Leases and has the right
under the Ground Leases to execute this Mortgage; and




(c) No default under the Existing Ground Leases remains uncured, nor has any event
occurred which, with the passage of time or service of notice or both, would constitute such
a default.



7.18 Upon the expiration of any Ground Lease, or any early termination by Trustor of such
Ground Lease as provided herein, Beneficiary agrees to release the parcel leased pursuant such
Ground Lease from the Property and any lien secured on the parcel leased pursuant such Ground Lease
by this Mortgage.



8. Suretyship Provisions. The following provisions shall apply to the extent that all
or any portion of the obligations secured hereby now or hereafter constitute obligations of
person(s) other than, or in addition to, Trustor, including, without limitation, the Borrower:



8.1 Conditions to Exercise of Rights. Trustor hereby waives any right it may now or
hereafter have to require Beneficiary, as a condition to the exercise of any remedy or other right
against Trustor hereunder or under any other document executed by Trustor in connection with any
Secured Obligation, (a) to proceed against Borrower or any other person, or against any other
collateral assigned to or encumber in favor of Beneficiary by Trustor or Borrower or any other
person, (b) to pursue any other right or remedy in Beneficiary’s power, (c) to give notice of the
time, place or terms of any public or private sale of real or personal property collateral assigned
to or encumber in favor of Beneficiary by Borrower or any other person (other than Trustor), or
otherwise to comply with La. R.S. § 10:9-504 (as modified or recodified from time to time) with
respect to any such personal property collateral, or (d) to make or give (except as otherwise
expressly provided in the Loan Documents) any presentment, demand, protest, notice of dishonor,
notice of protest or other demand or notice of any kind in connection with any Secured Obligation
or any collateral (other than the Property) for any Secured Obligation. Trustor also waives any
defense in any way related to the foregoing.



8.2 Waiver of Defenses. Trustor hereby waives any defense it may now or hereafter
have that relates to: (a) any disability or other defense of Borrower or any other person; (b) the



 


24









 






cessation, from any cause other than full performance, of the obligations of Borrower or any
other person; (c) the application of the proceeds of any Secured Obligation, by Borrower or any
other person, for purposes other than the purposes represented to Trustor by Borrower or otherwise
intended or understood by Trustor or Borrower; (d) any act or omission by Beneficiary which
directly or indirectly results in or contributes to the release of Borrower or any other person or
any collateral for any Secured Obligation; (e) the unenforceability or invalidity of any collateral
assignment or encumbrance (other than this Mortgage) or guaranty with respect to any Secured
Obligation, or the lack of perfection or continuing perfection or lack of priority of any lien
which secures any Secured Obligation; (f) any failure of Beneficiary to marshal assets in favor of
Trustor or any other person; (g) any modification of any Secured Obligation, including any renewal,
extension, acceleration or increase in interest rate, or (h) any election of remedies by
Beneficiary that impairs any subrogation or other right of Trustor to proceed against Borrower or
any other person, including any loss of rights resulting from deficiency judgment laws relating to
foreclosures of immovable property or other laws limiting, qualifying or discharging obligations or
remedies (including La. R.S. §§ 13:4106 through 13:4108.3, inclusive, as modified or recodified
from time to time); (l) 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; (j)
any failure of Beneficiary to file or enforce a claim in any bankruptcy or other proceeding with
respect to any person; (k) the election by Beneficiary, in any bankruptcy proceeding of any person,
of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code;
(I) any extension of credit or the grant of any lien under Section 364 of the United States
Bankruptcy Code; (m) any use of cash collateral under Section 363 of the United States Bankruptcy
Code; or (n) any agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any person.



The Trustor waives all rights and defenses that the Trustor may have because Borrower’s debt
is secured by immovable property. This means, among other things:




	 	(1)	 	The Beneficiary may foreclose, under this Mortgage, without first foreclosing
on any immovable or personal property collateral pledged by Borrower or any other
person.

	 
	 	(2)	 	If the Beneficiary forecloses on any immovable property collateral pledged or
otherwise encumbered by Borrower or any other person:







	 	(A)	 	The amount of the Secured Obligations may be reduced only by
the price for which that collateral is sold at the foreclosure sale, even if
the collateral is worth more than the sale price.







	 	(B)	 	The Beneficiary may foreclose on any such immovable property
collateral even if the Beneficiary, by foreclosing on such immovable property





 


25









 











	 	 	 	collateral, has destroyed any right the Trustor may have to collect from
Borrower or any other person.






This is an unconditional and irrevocable waiver of any and all rights and defenses the Trustor
may have because Borrower’s debt is secured by immovable property.



The Trustor also waives all rights and defenses arising out of an election of remedies by the
Beneficiary, even though that election of remedies, such as a foreclosure with respect to security
for a guaranteed obligation, has destroyed the Trustor’s rights of subrogation and reimbursement
against the principal by operation of applicable law or otherwise.



8.3 Subrogation. Trustor hereby waives, until such time as all Secured Obligations
are fully paid and performed, (a) all rights of subrogation against Borrower or any other person
that relates to any Secured Obligation, (b) all rights to enforce any remedy Beneficiary may now or
hereafter have against Borrower or any other person, and (c) all rights to participate in any
collateral now or hereafter assigned to Beneficiary with respect to any Secured Obligation.



8.4 Trustor Information. Trustor warrants and agrees that: (a) Trustor has not
relied, and will not rely, on any representations or warranties by Beneficiary to Trustor with
respect to the creditworthiness of Borrower or any other person or the prospects of repayment of
any Secured Obligation from sources other than the Property; (b) Trustor has established and/or
will establish adequate means of obtaining from Borrower and each other person liable, directly or
through a guaranty or pledge or encumbrance of collateral, for the repayment of the Secured
Obligations, on a continuing basis financial and other information pertaining to the business
operations, if any, and financial condition of Borrower and each such other person; (c) Trustor
assumes full responsibility for keeping informed with respect to the business operations, if any,
and financial condition of Borrower and each such other person; and (d) Beneficiary shall have no
duty to disclose or report to Trustor any information now or hereafter known to Beneficiary or any
of the Lenders with respect to Borrower or other person, including, without limitation information
relating to Borrower’s or other person’s business operations or financial condition.



8.5 Other Rights of Sureties. Trustor hereby waives all other rights it may now or
hereafter have, whether or not similar to any, of the foregoing, by reason of laws of the State of
Louisiana pertaining to sureties or suretyship.



8.6 Reinstatement of Lien. Beneficiary’s rights hereunder shall be reinstated and
revived, and the enforceability of this Mortgage shall continue, with respect to any amount at any
time paid on account of any Secured Obligation which Beneficiary is thereafter required to restore
or return in connection with a bankruptcy, insolvency, reorganization or similar proceeding with
respect to Borrower or any other person.



8.7 Subordination. Until all of the Secured Obligations have been fully paid and
performed, (a) Trustor hereby agrees that all existing and future indebtedness and other
obligations of Borrower and of each “other person” described in Section 8.3 or 8.4 hereof to
Trustor (collectively, the “Subordinated Debt”) shall be and are hereby subordinated to all Secured
Obligations which constitute obligations of Borrower or other person, and the payment



 


26









 






thereof is hereby deferred in right of payment to the prior payment and performance of all
Secured Obligations; (b) unless an Event of Default has occurred and is continuing, Trustor shall
not collect or receive any cash or non-cash payments on any Subordinated Debt or transfer all or
any portion of the Subordinated Debt; and (c) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, Borrower or other person, with respect to any
Subordinated Debt is received by Trustor, such payment or distribution shall be held in trust and
immediately paid over to Beneficiary, is hereby assigned to Beneficiary as security for the Secured
Obligations, and shall be held by Beneficiary in a non-interest bearing account until all Secured
Obligations have been fully paid and performed.



8.8 Lawfulness and Reasonableness. Trustor warrants that all of the waivers in this
Mortgage are made with full knowledge of their significance, and of the fact that events giving
rise to any defense or other benefit waived by Trustor may destroy or impair rights which Trustor
would otherwise have against Beneficiary, other Lenders, Borrower and other persons, or against
collateral. Trustor agrees that all such waivers are reasonable under the circumstances and
further agrees that, if any such waiver is determined (by a court of competent jurisdiction) to be
contrary to any law or public policy, such waiver shall be effective to the fullest extent
permitted by law.



9. Miscellaneous Provisions.




9.1 Additional Provisions. The Loan Documents fully state all of the terms and
conditions of the parties’ agreement regarding the matters mentioned in or incidental to this
Mortgage. The Loan Documents also grant further rights to Beneficiary and contain further
agreements and affirmative and negative covenants by Trustor which apply to this Mortgage and to
the Property. If there is a conflict between the terms of this Mortgage and the terms of the
Credit Agreement, the terms of the Credit Agreement shall control.




9.2 No Waiver or Cure.



9.2.1 Each waiver by Beneficiary must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary to take
action on account of any default of Trustor. Consent by Beneficiary to any act or omission by
Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive
the requirement for Beneficiary’s consent to be obtained in any future or other instance.



9.2.2 If any of the events described below occurs, that event alone shall not: cure or waive
any breach, Event of Default or notice of default under this Mortgage or invalidate any act
performed pursuant to any such default or notice; or nullify the effect of any notice of default or
sale (unless all Secured Obligations then due have been paid and performed in full and all other
defaults under the Loan Documents have been cured); or impair the security of this Mortgage; or
prejudice Beneficiary or any receiver or Keeper in the exercise of any right or remedy afforded any
of them under this Mortgage; or be construed as an affirmation by Beneficiary of any tenancy, Lease
or option, or a subordination of the lien, encumbrance or security interest of this Mortgage:


 


27









 






(a) Beneficiary, its agent or a receiver or Keeper takes possession of all or any part
of the Property in the manner provided in Section 6.2.3 or otherwise.




(b) Beneficiary or a receiver or Keeper collects and applies Rents as permitted under
Sections 2.3 and 6.5 or exercises Trustor’s right, title and interest under the Leases,
either with or without taking possession of all or any part of the Property.




(c) Beneficiary receives and applies to any Secured Obligation proceeds of any
Property, including any proceeds of insurance policies, condemnation awards, or other
claims, property or rights assigned to or encumber in favor of Beneficiary under Section 1.1
or 5.5 or otherwise; provided such application is in accordance with the provisions of the
Credit Agreement.




(d) Beneficiary makes a site visit, observes the Property and/or conducts tests as
permitted under Section 5.15.




(e) Beneficiary receives any sums under this Mortgage or any proceeds of any collateral
held for any of the Secured Obligations, and applies them to one or more Secured
Obligations.




(f) Beneficiary, or any receiver or Keeper invokes any right or remedy provided under
this Mortgage.



9.3 Powers of Beneficiary.



9.3.1 [Intentionally Left Blank.]



9.3.2 If Beneficiary performs any act which it is empowered or authorized to perform under
this Mortgage, including, without limitation, any act permitted by Section 5.9 or Section 6.2.4,
that act alone shall not release or change the personal liability of any person for the payment and
performance of the Secured Obligations then outstanding, or the lien or encumbrance or security
interest of this Mortgage on all or the remainder of the Property for full payment and performance
of all outstanding Secured Obligations. The liability of the original Trustor shall not be
released or changed if Beneficiary grants any successor in interest to Borrower or Trustor any
extension of time for payment, or modification of the terms of payment, of any Secured Obligation.
Beneficiary shall not be required to comply with any demand by the original Trustor that
Beneficiary refuse to grant such an extension or modification to, or commence proceedings against,
any such successor in interest.



9.3.3 Beneficiary may take any of the actions permitted under Sections 6.2.2 and/or 6.2.3
regardless of the adequacy of the security for the Secured Obligations, or whether any or all of
the Secured Obligations have been declared to be immediately due and payable, or whether notice of
default and election to sell has been given under, or notice of seizure given with respect to, this
Mortgage.



9.3.4 From time to time, Beneficiary may apply to any court of competent jurisdiction for aid
and direction in enforcing the rights and remedies created under this



 


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Mortgage. Beneficiary may from time to time obtain orders or decrees directing, confirming or
approving acts in enforcing these rights and remedies.



9.4 Merger. No merger shall occur as a result of Beneficiary’s acquiring any other
estate in or any other lien on or security interest in the Property unless Beneficiary consents to
a merger in writing.



9.5 Applicable Law. This Mortgage shall be governed by and construed in accordance
with the laws of the State of Louisiana.



9.6 Successors in Interest. The terms, covenants and conditions of this Mortgage
shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties.




9.7 Interpretation.



9.7.1 Whenever the context requires, all words used in the singular will be construed to have
been used in the plural, and vice versa, and each gender will include any other gender. The
captions of the sections of this Mortgage are for convenience only and do not define or limit any
terms or provisions. The word “include(s)” means “include(s), without limitation,” and the word
“including” means “including, but not limited to.” The word “person” includes individuals and
entities.



9.7.2 The word “obligations” is used in its broadest and most comprehensive sense, and
includes all primary, secondary, direct, indirect, fixed and contingent obligations. It further
includes all principal, interest, reimbursement and indemnity obligations, prepayment charges, late
charges, loan fees and any other fees and charges accruing or assessed at any time, as well as all
obligations to perform acts or satisfy conditions.



9.7.3 No listing of specific instances, items or matters in any way limits the scope or
generality of any language of this Mortgage. All Exhibits and/or Schedules attached to this
Mortgage are hereby incorporated in this Mortgage.



9.8 In-House Counsel Fees. Whenever Trustor is obligated to pay or reimburse
Beneficiary for reasonable attorneys’ fees, those fees shall include the allocated costs for
services of in-house counsel.



9.9 Waiver of Marshalling. To the extent permitted by applicable law, Trustor waives
all rights, legal and equitable, it may now or hereafter have to require marshalling of assets or
to require foreclosure sales of assets in a particular order. Each successor and assign of
Trustor, including any holder of a lien or encumbrance or security interest subordinate to this
Mortgage, by acceptance of its interest or lien or encumbrance or security interest, agrees that it
shall be bound by the above waiver, as if it had given the waiver itself.



9.10 Severability. Any provision in this Mortgage that is held to be inoperative,
unenforceable or invalid as to any party or circumstance or in any jurisdiction shall, as to that
party or circumstance or jurisdiction, be inoperative, unenforceable or invalid without affecting
the remaining provisions or the operation, enforceability or validity of that provision as to any



 


29









 






other party or circumstance or in any other jurisdiction, and to this end the provisions of
this Mortgage are declared to be severable.



9.11 Statute of Frauds Clause. Oral agreements or commitments to loan money, extend
credit or to forbear from enforcing repayment of a debt including promises to extend or renew such
debt are not enforceable. To protect you (borrower(s)) and us (creditor) from misunderstanding or
disappointment, any agreements we reach covering such matters are contained in this writing, which
is the complete and exclusive statement of the agreement between us, except as we may later agree
in writing to modify it.



9.12 Assignment of Rents After Commencement of Foreclosure. The right of Beneficiary
to collect and receive the Rents or to take possession of the Property, or to exercise any of the
rights or powers herein granted to Beneficiary shall, to the extent not prohibited by law, also
extend to the period from and after the filing of any suit to foreclose the lien of this Mortgage,
including any period allowed by law for the redemption of the Property after any foreclosure sale.



9.13 Continuation of Foreclosure. In the event any foreclosure advertisement is
running or has run at the time of an appointment of a substitute Trustee, the substitute Trustee
may, to the extent permitted by applicable law, consummate the advertised sale without the
necessity of republishing such advertisement.



9.14 Notices. Trustor hereby requests that a copy of all notices required hereunder
or by applicable law be mailed to it at the address set forth below. That address is also the
mailing address of Trustor as debtor under Chapter 9, as amended or recodified from time to time.
Beneficiary’s address given below is the address for Beneficiary as secured party under Chapter 9,
as amended or recodified from time to time.



	 	 	 
	Address Where

	 	Address Where
	Notices to Trustor

	 	Notices to Beneficiary
	Are to Be Sent:

	 	Are to Be Sent:






9.15 Waiver of Trial by Jury. To the extent permitted by law, Trustor and Beneficiary
hereby waive trial by jury in any action, proceeding or counterclaim brought by either party
against the other on any matter arising our of on in any way connected with this Mortgage.


 


30









 





THUS DONE AND PASSED, in the State of California, County of Los Angeles, on the
 _____ 
day of
                    , 2010, in the presence of the undersigned competent witnesses, who hereunder sign
their names with Trustor and me, Notary, after due reading of the whole.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	TRUSTOR:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	NOTARY PUBLIC
	 	 	 	 	 	 	 	 	 	 	 	 
	My Commission Expires:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 






 


31









 





THUS DONE AND PASSED, in the State of California, County of Los Angeles, on the
 _____ 
day of
                    , 2010, in the presence of the undersigned competent witnesses, who hereunder sign their
names with Trustor and me, Notary, after due reading of the whole.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	BENEFICIARY:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	BARCLAYS BANK PLC

as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	NOTARY PUBLIC
	 	 	 	 	 	 	 	 	 	 	 	 
	My Commission Expires:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 






 


32









 





EXHIBIT A to MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND COLLATERAL
ASSIGNMENT OF PROCEEDS executed as of                     , 2010 by                     , a Louisiana corporation,
as “Trustor”, in favor of BARCLAYS BANK PLC, in its capacity as Administrative Agent, as
“Beneficiary.”



PROPERTY DESCRIPTION





 


33











 





EXHIBIT D



FORM OF

PREFERRED SHIP MORTGAGE




THIS PREFERRED SHIP MORTGAGE (“Mortgage”) on the vessel                      No.                     , dated
                    ,
20_____, is made by                     , a Louisiana corporation (“Owner”), in
favor of BARCLAYS BANK PLC, in its capacity as Administrative Agent (herein, “Mortgagee”)
for the benefit of itself and the “Lenders” party to the Credit Agreement as defined below (such
parties being referred to herein collectively and individually as “Lenders”). Any
capitalized term used herein and not defined herein shall have the meaning ascribed thereto in the
Credit Agreement (as defined below in Recital D).



RECITALS




A. Owner is the sole owner of the whole of the Vessel named (and as defined) herein and a
subsidiary of Pinnacle Entertainment, Inc., a Delaware corporation (“Borrower”), and has
agreed to give this Mortgage as security for the Secured Obligations described below.



B. The total amount of this Mortgage is $                     plus interest and performance of mortgage
covenants and the discharge amount is the same as the total amount.



C. Borrower is a party to that certain Third Amended and Restated Credit Agreement, dated as
of February _____, 2010 (the “Credit Agreement”), among the Borrower, the lenders party
thereto (the “Existing Lenders”), and the Mortgagee, as administrative agent for such
Existing Lenders, under which Borrower borrowed funds pursuant to a revolving credit facility and
term loans as provided in the Credit Agreement.



F. It is a condition precedent to the extension of credit facilities under the Credit
Agreement that this Mortgage be executed to provide security for Owner’s “Guarantied
Obligations” under that certain Second Amended and Restated Subsidiary Guaranty dated as of
December 14, 2005 (the “Subsidiary Guaranty”), made by the Owner and other
“Guarantors” (as defined therein) in favor of the Lenders (the “Secured
Obligations”). Owner expects to realize direct and indirect benefits as the result of the
availability of the aforementioned credit facilities to Borrower.



AGREEMENT




NOW, in consideration of the premises and for other good and valuable consideration, receipt
of all of which is acknowledged, and to secure payment of the Secured Obligations and the
performance of all covenants relating hereto and thereto, Owner mortgages and conveys unto
Mortgagee, its successors and assigns, the whole of the Vessel named (and as defined) below and as
further described in the most recent Certificate of Documentation issued and identified as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Vessel:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Official No.:

	 	 	 	Gross Tons:
	 	 	 	Net Tons:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Certificate issued by:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 





 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	Date of Issuance:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 






together with (i) all masts, boilers, cables, engines, machinery, bowsprits, sails, rigging,
anchors, chains, tackle, apparel, furniture, fittings, tools, pumps, equipment, radar, sonar,
navigational devices and supplies, and all fishing and other appurtenances and accessories and
additions, improvements and replacements whether on board or removed, (ii) the foregoing
Certificate of Documentation, which is included herein by reference, and (iii) all earnings,
freight, sub-freights, charter hires and sub-charter hires, if any, all of which shall be included
in the term “Vessel”;



TO HAVE AND TO HOLD all and singular the Vessel unto Mortgagee, its successors and assigns,
forever, upon the terms herein set forth for the enforcement of the Secured Obligations, including,
without limitation, to secure performance of, and compliance with all agreements, covenants, terms
and conditions in, this Mortgage and the Subsidiary Guaranty;



PROVIDED, HOWEVER, this Mortgage shall cease, if Owner, or its successors or assigns (i) perform
and observe all and singular the terms, covenants and agreements secured hereby and set forth
herein, (ii) cease to be a Subsidiary as a result of a transaction permitted under the terms of the
Credit Agreement, or (iii) secure a release of this Mortgage in accordance with Section 10.l5 of
the Credit Agreement; otherwise this Mortgage is to remain in full force and effect.



Nothing in any agreement or other document evidencing the Secured Obligations or in any other
agreement between the parties shall be deemed a waiver by Mortgagee of any of the benefits of
Chapter 313 of Title 46, U.S. Code (“Chapter 313”) unless such waiver is contained in a written
agreement specifically stating that it is the intention of the Mortgagee to waive such benefits.



Owner agrees to perform the Secured Obligations, with interest as provided by the terms thereof,
and to perform and observe the further terms, covenants and agreements contained herein, and to
hold the Vessel subject thereto.



Owner is organized and is and shall continue in good standing under the laws of the State of
Louisiana and is authorized to do business and is in good standing in each other state where the
nature of Owner’s activities (including, without limitation, operation of the Vessel) requires it
to be so authorized and in good standing, except where failure to so qualify or be in good standing
would not constitute a Material Adverse Effect.



ARTICLE I.

PARTICULAR COVENANTS OF OWNER




Owner covenants:



1.1 Owner is and continues to be a citizen of the United States entitled to own and operate
the Vessel under her certificate of documentation, which Owner shall maintain in full force and
effect. All actions necessary for the execution, delivery and performance of this Mortgage and the
Subsidiary Guaranty have been duly taken, and each such agreement or instrument is the valid and
legally binding obligation of Owner and enforceable against Owner according to its respective
terms.


 


2









 





1.2 Owner lawfully owns and possesses the Vessel free from all liens and encumbrances
whatsoever (except as may be expressly permitted by the terms hereof or of the Credit Agreement)
and shall warrant and defend title to and possession of all and every part for the benefit of
Mortgagee against all persons, subject to Liens permitted under Section 7.3 of the Credit
Agreement. Owner shall not set up against Mortgagee and/or any assignee of this Mortgage any claim
of Owner against Mortgagee and/or assignee under any past or future transaction.



1.3 All risk of loss, damage or destruction to or arising from the Vessel shall at all times
be on Owner. Owner shall maintain at all times throughout the term of this Mortgage and at Owner’s
sole expense, the policies of insurance required to be maintained by the Owner pursuant to the
terms of the Credit Agreement, which shall additionally insure the Vessel. The insurance required
hereby shall be in such amounts, against such risks, in such form and with such insurers as
responsible companies engaged in similar businesses and owning similar assets would maintain and
shall otherwise be satisfactory to Mortgagee. In no event shall Mortgagee be responsible for
premiums, warranties, conditions or representations to any insurer or any agent thereof. The
insurance maintained by Owner shall be primary without any right of contribution from insurance
which may be maintained by Mortgagee. Owner shall furnish to Mortgagee a certificate or other
evidence satisfactory to Mortgagee that such insurance coverage is in effect. However, Mortgagee
shall be under no duty to ascertain the existence or adequacy of such insurance.



1.4 Owner shall comply with and shall not permit the Vessel to be operated contrary to any
provision of the insurance policies covering the Vessel or contrary to any provision of laws,
treaties, conventions, rules, regulations or orders of the United States, any state and/or any
other jurisdiction where operated. Owner shall not abandon the Vessel in any foreign port, nor,
without the prior written consent of Mortgagee, permit the Vessel to venture outside the
territorial waters of the United States. Unless otherwise permitted under the Credit Agreement,
Owner shall do everything necessary from time to time to establish and maintain this Mortgage as a
Preferred Ship Mortgage pursuant to Chapter 313.



1.5 Owner agrees to indemnify and hold Mortgagee harmless from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, judgments or suits (and all
costs, fees and expenses related thereto), arising out of or related to this Mortgage, the Vessel,
or Mortgagee’s interest therein and the manufacture, purchase, possession, use, selection,
operation or condition of the Vessel or any part thereof.



1.6 Neither the Owner nor any agent, master or charterer has the right, power or authority to
create, incur or permit to be placed or imposed on the Vessel in whole or in part any lien other
than for Mortgagee or for crew’s wages or salvage and other than Liens permitted under the Credit
Agreement.



1.7 Owner will carry or cause to be carried a properly certified copy of this Mortgage on
board the Vessel with the documents of the Vessel to be exhibited to any and all persons having
business with the Vessel which might give rise to a maritime lien thereon or to any sale,
conveyance, mortgage or lease thereof, and to any representative of Mortgagee; and will cause to be
placed and kept prominently displayed in the chart room and in the Master’s cabin of the Vessel a
notice, framed under glass, typewritten in plain type of such size that the paragraph



 


3









 






of reading matter shall cover a space not less than six inches wide and nine inches high,
reading as follows:




“NOTICE OF PREFERRED SHIP MORTGAGE




This vessel is owned by                     , a                      corporation, and is subject to a
Preferred Ship Mortgage in favor of Barclays Bank PLC (and its successors and
assigns in such capacity), as Mortgagee in its capacity as Administrative Agent for
itself and the Lenders party to a certain credit facility. Under the terms of the
Preferred Ship Mortgage, neither the owner, any charterer, the master, nor any other
person has the right, power or authority to create, incur or permit to be placed or
imposed upon this vessel, its freight, profits or hire, any lien whatsoever, other
than the liens explicitly permitted by the terms of the Preferred Ship Mortgage.”



1.8 Owner shall pay, when due, all taxes, assessments, governmental charges, fines and
penalties lawfully imposed and promptly, discharge any and all Liens upon the Vessel, other than
taxes, assessments, governmental charges, fines and penalties and Liens which are being contested
in good faith by appropriate proceedings and as to which adequate reserves have been established
and maintained in conformity with GAAP so long as the Vessel is not in jeopardy of being seized,
levied upon or forfeited as a result of such unpaid tax, assessment, governmental charge or Lien.
Except as permitted by Section 6.5 of the Credit Agreement, Owner shall, at its own expense, at all
times maintain the Vessel in thorough repair and working order and shall make all proper renewals
and replacements. Except as permitted by Section 6.5 of the Credit Agreement, Owner shall, at its
own expense, at all times maintain and preserve the Vessel and all its equipment, outfit and
appurtenances tight, staunch, strong, in good condition, working order and repair and (to the
extent necessary or desirable for its present use) in all respects seaworthy, and if classed by the
American Bureau of Shipping or other classification society, will keep the Vessel in such condition
as to entitle her to such classification. Owner shall immediately notify Mortgagee of any casualty
or damage to the Vessel in an amount equal to or in excess of $500,000, or of the disappearance
thereof.



1.9 If the Vessel shall be libeled, attached, detained, seized or levied upon or taken into
custody under process or under color of any authority, Owner shall forthwith notify Mortgagee by
facsimile, confirmed by letter, and immediately get it released, and in any event within fifteen
(15) days after such libel, attachment, detention, seizure, levy or taking into custody. If any
lien or encumbrance, other than as permitted by Paragraph 1.6, is claimed against the Vessel, which
would constitute a prior lien to this Mortgage or would adversely affect the value of Mortgagee’s
security, Mortgagee may, in its discretion, pay and discharge such lien or encumbrance.



1.10 Owner and any charterer shall at all times afford Mortgagee complete opportunity to
inspect the Vessel and cargoes and papers, and to examine Owner’s and any charterer’s related
accounts and records; and shall certify from time to time, at such intervals as Mortgagee shall
determine, that all wages and all other claims which might give rise to a lien upon the Vessel have
been paid (except as otherwise permitted by Paragraph 1.6).


 


4









 





1.11 Except as otherwise permitted under the Credit Agreement, Owner shall not (a) sell,
mortgage, deliver or lease the Vessel, nor charter the Vessel, nor in any manner transfer or agree
to sell, mortgage, lease, charter, deliver or otherwise transfer, to any person, any interest or
control in the Vessel, except with the prior written consent of Mortgagee, and then only if (i) to
persons, and for uses, lawful for American vessels and (ii) the insurance required to be maintained
hereby is unaffected or adequately replaced to the satisfaction of Mortgagee; nor (b) without the
prior written consent of Mortgagee, merge or consolidate with any other person, firm or
corporation, or dissolve. Paragraphs 1.6, 1.7 and 1.10 hereof, and this Paragraph 1.11, shall be
included in any charter party with respect to the Vessel.



1.12 From time to time, Owner shall execute and deliver such other and further instruments and
assurance as, in the opinion of Mortgagee’s counsel, may reasonably be required to subject the
Vessel more effectively to the lien of this Mortgage and as security for the performance of the
Secured Obligations and for operation of the Vessel as provided herein, and to arrange sales as
provided in Paragraph 2.1(c) of Article II.



ARTICLE II.

DEFAULT




2.1 If an “Event of Default” (under and as defined in the Credit Agreement) shall have
occurred and be continuing under the Credit Agreement or any other Loan Document (as defined in the
Credit Agreement), then, Mortgagee may:




(a) Declare the Secured Obligations to be, and they shall be, due and payable; and/or




(b) Recover judgment for, and collect out of any property of Owner, any amount due;
and/or collect all earned charter hire and freight monies relating to services performed by
the Vessel, if any, Owner assigning to Mortgagee all such charter hire and freight monies
then owing; and/or




(c) Retake the Vessel, with or without legal process, at any time, at any place, and,
without being responsible for loss or damage, hold and in Mortgagee’s or in Owner’s name
lease, charter, operate or otherwise use the Vessel for such time and on such terms as
Mortgagee may deem advisable, being accountable only for net profits, if any, and with the
right to dock the Vessel free of charge at Owner’s premises or elsewhere at Owner’s expense;
and/or sell the Vessel, free from any claim by Owner of any nature whatsoever, in any manner
permitted by law; to the extent so permitted, such sale may be public or private, without
notice, without having the Vessel present, and Mortgagee may become the purchaser.




For such purpose Mortgagee and its agents are irrevocably appointed the true and lawful
attorneys of Owner in its name and stead to make all necessary transfers of the Vessel thus
sold.



2.2 In the event the Vessel shall be arrested or detained by any officer of any court or by
any other authority, Owner authorizes Mortgagee, its officers, representatives and



 


5









 






appointees, in the name of Owner or of Mortgagee, to receive or to take possession, and to
defend any action and/or discharge any lien.



2.3 Each and every power or remedy given to Mortgagee shall be cumulative, and in addition to
all powers or remedies now or later existing in admiralty, in equity, at law or by statute, and may
be exercised as often as may be deemed expedient by Mortgagee. No delay or omission by Mortgagee
shall impair any right, power or remedy, and no waiver of any default shall waive any other
default. In any suit Mortgagee shall be entitled to obtain appointment of a receiver of the Vessel
and its earnings, who shall have full rights and powers to use and operate the Vessel, and to
obtain a decree ordering and directing its sale and disposition.



2.4 The net proceeds of any judicial or other sale, and any lease, charter, management,
operation or other use of the Vessel by Mortgagee, of any claim for damages, of any judgment, and
any insurance received by Mortgagee (except to the extent paid to Owner or applied in payment of
repairs or otherwise for Owner’s benefit) shall be applied as follows:



	 	 	 	 	 
	 

	 	FIRST:
	 	To the payment of all Attorney Costs, court costs, and any other expenses,
losses, charges, damages incurred or advances made by Mortgagee or Lenders in order to
protect their rights or caused by Owner’s failure to perform any of the Secured
Obligations or any other obligations hereunder, with interest on all such amounts at
the rate set forth in Section 2.16 of the Credit Agreement, and to provide adequate
indemnity against any liens for which priority over this Mortgage is claimed;
	 
	 	 	 	 
	 

	 	SECOND:
	 	To the payment of the Secured Obligations, and any other obligations of
Owner hereunder, together with interest thereon, all in such order of application as
may be required or permitted by the Loan Documents.







Mortgagee shall be entitled to collect any deficiency from Owner. Owner shall be entitled
to any surplus, subject to setoff in favor of Mortgagee or any Lender for any other
indebtedness of Owner under the Loan Documents.



2.5 All advances and expenditures which Mortgagee or any Lender in their discretion may make
for repairs, insurance, payment of liens or other claims, defense of suits, or for any other
related purpose, and all damages sustained by Mortgagee or any Lender because of defaults, shall be
repaid by Owner on demand with interest at a rate per annum equal to the interest rate then
applicable to Obligations under the Credit Agreement, and until so paid shall be a debt due from
Owner to Mortgagee or such Lender, secured by the lien hereof. Neither Mortgagee nor any Lender
shall be obligated to make any such advances or expenditures, but if made, the Owner is not
relieved of any obligation.



ARTICLE III.

POSSESSION UNTIL EVENT OF DEFAULT




Unless an Event of Default shall have occurred and is continuing, Owner shall be permitted to
retain actual possession and use of the Vessel.


 


6









 





ARTICLE IV.

SUNDRY PROVISIONS




All covenants and agreements of Owner shall bind Owner and its successors and assigns, and shall
inure to the benefit of Mortgagee and Lenders and their respective successors and assigns. In case
any term or provision of this Mortgage shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other term or provision of the Mortgage, and
this Mortgage shall be construed as if such invalid or unenforceable term or provision was
nonexistent.



For purposes of Section 102(c) of Public Law 100-710 (46 U.S.C. § 31321(b)(3)), the total amount
that is or may become secured by this Mortgage (excluding interest, expenses and fees) is
$                    ; and the discharge amount is the same as the total amount and, although it is not
intended that this Mortgage include any property other than the Vessel, if any determination is
made at any time that for any reason this Mortgage does include any property other than a “vessel”
within the meaning of Section 31322 of Title 46 of the United States Code, then such property may
be separately discharged from the lien of the Mortgage.



The parties hereto acknowledge that certain exercises of rights and remedies hereunder may require
compliance with applicable Gaming Laws, including the Louisiana Gaming Control Law, La. R.S. 27:1,
et seq., together with the regulations applicable to Riverboat Gaming, La. Admin. Code Tit. 42,
Part XIII.



Notwithstanding any other provisions of this Mortgage to the contrary, nothing in this Mortgage
shall (i) effect any transfer of any ownership interest in Mortgagor or (ii) effect any transfer,
sale, purchase, lease or hypothecation of, or any borrowing or loaning of money against, or any
establishment of any voting trust agreement or similar agreement with respect to any certificate of
suitability or any owner’s license heretofore or hereinafter issued to any person, including
Mortgagor, all within the meaning of La. R.S. 27:31 and La. Admin. Code Tit. 42, Pt. XIII, Ch. 25,
particularly, and any other applicable provisions of the Louisiana Gaming Control Law.



If there is a conflict between this Mortgage and the Credit Agreement, the terms of the Credit
Agreement shall control.




 


7









 







IN WITNESS WHEREOF, on the day and year first above written, Owner has caused this Mortgage to be
executed in its name by its properly authorized officer.



	 	 	 	 	 	 	 	 	 
	 	 	Owner-Mortgagor:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 





 


 









 





ACCEPTED AND AGREED

AS OF THE DATE FIRST

ABOVE WRITTEN:




“Secured Party”




BARCLAYS BANK PLC

as Administrative Agent, and for

and on behalf of the Lenders




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 







 


 












 




EXHIBIT H



FORM OF




NOTICE OF BORROWING




                     ___, 20__




Barclays Bank PLC,




as Administrative Agent

200 Park Avenue

New York, New York 10166

Attention: Craig Malloy




Pinnacle Entertainment, Inc.




Ladies and Gentlemen:



Pursuant to that certain Third Amended and Restated Credit Agreement, dated as of
February _____,
2010 (as amended, restated, amended and restated, supplemented, replaced or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used but not defined herein having
the meanings given such terms in the Credit Agreement), among Pinnacle Entertainment, Inc., a
Delaware corporation (the “Borrower”), each bank and other financial institution or entity
from time to time party thereto, and Barclays Bank PLC, as administrative agent (the
“Administrative Agent”), the Borrower hereby gives the Administrative Agent irrevocable
notice that the Borrower hereby requests a Loan or Swing Line Loan under the Credit Agreement, and
in that connection sets forth below the information relating to such Loan or Swing Line Loan:




	 	1.	 	The Borrower hereby requests (Check one box only):







(a). A Loan under Revolving Commitment o




(b). A Swing Line Loan under Revolving Commitment o




(c). A Loan under the Incremental Term Commitment o




(d). A Loan under the Incremental Delayed Draw Term Loan Commitment o




	 	2.	 	The aggregate amount of the proposed Loan is $                    .

	 
	 	3.	 	The Business Day of the proposed Loan is                     

	 
	 	4.	 	Type of the proposed Loan elected (Check one box only):







(a). Base Rate Loan o


 


1









 






(b). Eurodollar Loan                      with an interest period of                      months.1 o



In connection with the requested Loan or Swing Line Loan, the Borrower hereby certifies that
the following statements are true and correct on the date hereof, and will be true and correct on
the date of the proposed Loan, Swing Line Loan:



(a) Each of the representations and warranties made by any Loan Party in or pursuant to the
Loan Documents is true and correct in all material respects on and as of the date hereof as if made
on and as of the date hereof, except for representations and warranties expressly stated to relate
to a specific earlier date, in which case such representations and warranties are true and correct
as of such earlier date.



(b) No Default or Event of Default has occurred and is continuing on the date hereof, or would
result from the proposed Loan or Swing Line Loan or the application of the proceeds thereof.



The Borrower agrees that, if prior to the time of the proposed Loan or Swing Line Loan any of
the foregoing certifications shall cease to be true and correct, the Borrower shall forthwith
notify the Administrative Agent thereof in writing (any such notice, a “Non-Compliance
Notice”). Except to the extent, if any, that prior to the time of the proposed Loan or Swing
Line Loan the Borrower shall deliver a Non-Compliance Notice to the Administrative Agent, each of
the foregoing certifications shall be deemed to be made additionally on the date of the proposed
Loan or Swing Line Loan as if made on such date.


 





	 	 	 
	1	 	Specify 1, 2, 3 or 6 months Interest Period (any other
period is subject to certain consent requirements set forth in Section 10.1 of
the Credit Agreement).




 


2









 









	 	 	 	 	 
	 	Very truly yours,



PINNACLE ENTERTAINMENT, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


1











 





EXHIBIT I-1



FORM OF INCREMENTAL TERM NOTE




                     20__




THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.



$                                        




                     __, 20__




FOR VALUE RECEIVED, the undersigned, PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to                                          or its registered
assign at the Payment Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of the United States and in immediately available funds, the principal amount of
                     dollars ($                    ) (the “Loan”), together with interest thereon,
in accordance with the terms set forth in the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.



The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, the
date, type and amount of the Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to another Type, each
continuation of all or a portion thereof as the same Type and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto. Each such endorsement absent manifest error
shall constitute prima facie evidence of the accuracy of the information so
endorsed. The failure to make any such endorsement or any error in any such endorsement shall not
affect the obligations of the Borrower in respect of the Loan.



This Note (a) is one of the Incremental Term Notes referred to in the Third Amended and
Restated Credit Agreement dated as of February
_____, 2010 (as the same may be further amended,
restated, amended and restated, supplemented, replaced or otherwise modified from time to time, the
“Credit Agreement”), by and among the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto, BANC OF AMERICA SECURITIES LLC AND
JPMORGAN SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and BARCLAYS BANK PLC,
as administrative agent, (b) is subject to the provisions of the Credit Agreement, and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were granted and the
rights of the holder of this Note in respect thereof.


 


 









 





Upon the occurrence and during the continuance of any Event of Default, all principal and all
accrued interest then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.



All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	PINNACLE ENTERTAINMENT, INC.

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





Schedule A

to Incremental Term Note




LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount	 	 	 	 	 	 	Amount of Base Rate	 	 	 	 	 	 	 
	 	 	Amount of Base Rate	 	 	Converted to	 	 	Amount of Principal of	 	 	Loans Converted to	 	 	Unpaid Principal Balance	 	 	Notation	 
	Date	 	Loans	 	 	Base Rate Loans	 	 	Base Rate Loans Repaid	 	 	Eurodollar Loans	 	 	of Base Rate Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


 









 





Schedule B

to Incremental Term Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Converted	 	 	Interest Period and	 	 	Amount of Principal	 	 	Amount of Eurodollar	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	to Eurodollar	 	 	Eurodollar Rate with	 	 	of Eurodollar Loans	 	 	Loans Converted to	 	 	Balance of	 	 	Notation	 
	Date	 	Eurodollar Loans	 	 	Loans	 	 	Respect Thereto	 	 	Repaid	 	 	Base Rate Loans	 	 	Eurodollar Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


 












 




EXHIBIT I-2



FORM OF INCREMENTAL DELAYED DRAW TERM NOTE




                     20__




THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.



			
	 	 	 
	$                    
	 	                    .






               
     , 20__




FOR VALUE RECEIVED, the undersigned, PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to                                          or its registered
assign at the Payment Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of the United States and in immediately available funds, the principal amount of
                     dollars ($                    ) (the “Loan”), together with interest thereon, in
accordance with the terms set forth in the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.



The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, the
date, type and amount of the Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to another Type, each
continuation of all or a portion thereof as the same Type and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto. Each such endorsement absent manifest error
shall constitute prima facie evidence of the accuracy of the information so
endorsed. The failure to make any such endorsement or any error in any such endorsement shall not
affect the obligations of the Borrower in respect of the Loan.



This Note (a) is one of the Incremental Delayed Draw Term Notes referred to in the Third
Amended and Restated Credit Agreement dated as of February _____, 2010 (as the same may be further
amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”), by and among the Borrower, the several banks and other
financial institutions or entities from time to time parties thereto, BANC OF AMERICA SECURITIES
LLC AND JPMORGAN SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and BARCLAYS
BANK PLC, as administrative agent, (b) is subject to the provisions of the Credit Agreement, and
(c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were granted and the
rights of the holder of this Note in respect thereof.


 


 









 





Upon the occurrence and during the continuance of any Event of Default, all principal and all
accrued interest then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.



All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	PINNACLE ENTERTAINMENT, INC.

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





Schedule A

to Incremental Delayed Draw Term Note




LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount	 	 	 	 	 	 	Amount of Base Rate	 	 	 	 	 	 	 
	 	 	Amount of Base Rate	 	 	Converted to	 	 	Amount of Principal of	 	 	Loans Converted to	 	 	Unpaid Principal Balance	 	 	Notation 	 
	Date	 	Loans	 	 	Base Rate Loans	 	 	Base Rate Loans Repaid	 	 	Eurodollar Loans	 	 	of Base Rate Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


 









 





Schedule B

to Incremental Delayed Draw Term Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Converted	 	 	Interest Period and	 	 	Amount of Principal	 	 	Amount of Eurodollar	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	to Eurodollar	 	 	Eurodollar Rate with	 	 	of Eurodollar Loans	 	 	Loans Converted to	 	 	Balance of	 	 	Notation	 
	Date	 	Eurodollar Loans	 	 	Loans	 	 	Respect Thereto	 	 	Repaid	 	 	Base Rate Loans	 	 	Eurodollar Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


 











 




EXHIBIT I-3



FORM OF REVOLVING CREDIT NOTE




                    , 2010




THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.



$                    




                     __, 20__




FOR VALUE RECEIVED, the undersigned, PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to the several banks and other financial institutions
or entities from time to time parties to the Credit Agreement ( as hereinafter defined) (the
“Lenders”) or their registered assigns at the Payment Office specified in the Credit
Agreement in lawful money of the United States and in immediately available funds, on or before the
Revolving Credit Termination Date the principal amount of (a)                      dollars
($                    ), or, if less, (b) the aggregate unpaid principal amount of all Revolving Credit
Loans made by the Lender to the Borrower, together with interest thereon, pursuant to the terms of
the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.



The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, the
date, type and amount of each Revolving Credit Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto. Each such endorsement absent manifest error
shall constitute prima facie evidence of the accuracy of the information so endorsed. The failure
to make any such endorsement or any error in any such endorsement shall not affect the obligations
of the Borrower in respect of any Revolving Credit Loan.



This Note (a) is one of the Revolving Credit Notes referred to in the Third Amended and
Restated Credit Agreement dated as of February
_____, 2010 (as the same may be amended, restated,
amended and restated, supplemented, replaced or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the Lenders, BANC OF AMERICA SECURITIES LLC and
JPMORGAN SECURITIES, INC., as joint lead arrangers and joint book runners, and BARCLAYS BANK PLC,
as administrative agent, (b) is subject to the provisions of the Credit Agreement, and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the



 


 









 






security and the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect thereof.



Upon the occurrence and during the continuance of any Event of Default, all principal and all
accrued interest then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.



All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	PINNACLE ENTERTAINMENT, INC.

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





Schedule A

to Revolving Credit Note




LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount	 	 	 	 	 	 	Amount of Base Rate	 	 	 	 	 	 	 
	 	 	Amount of Base Rate	 	 	Converted to	 	 	Amount of Principal of	 	 	Loans Converted to	 	 	Unpaid Principal Balance	 	 	Notation	 
	Date	 	Loans	 	 	Base Rate Loans	 	 	Base Rate Loans Repaid	 	 	Eurodollar Loans	 	 	of Base Rate Loans	 	 	 Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


 









 







Schedule B

to Revolving Credit Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount Converted	 	 	Interest Period and	 	 	Amount of Principal	 	 	Amount of Eurodollar	 	 	Unpaid Principal	 	 	 	 
	 	 	Amount of	 	 	to Eurodollar	 	 	Eurodollar Rate with	 	 	of Eurodollar Loans	 	 	Loans Converted to	 	 	Balance of	 	 	Notation	 
	Date	 	Eurodollar Loans	 	 	Loans	 	 	Respect Thereto	 	 	Repaid	 	 	Base Rate Loans	 	 	Eurodollar Loans	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


 











 




EXHIBIT I-4



FORM OF SWING LINE NOTE




                     20     




THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.



$                    




                          , 20     




FOR VALUE RECEIVED, the undersigned, PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay                      (the “Swing Line Lender”) or its
registered assigns at the payment office specified in the Credit Agreement (as herein defined) in
lawful money of the United States and in immediately available funds, on or before the Revolving
Credit Termination Date the principal amount of (a)                      dollars ($                    ), or, if
less, (b) the aggregate unpaid principal amount of all Swing Line Loans made by the Swing Line
Lender to the Borrower, together with interest thereon, pursuant to the terms of the Credit
Agreement. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.



The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereto or on a continuation thereof which shall be attached hereto and made a part hereof, the
date and amount of each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof. Each such endorsement absent manifest
error shall constitute prima facie evidence of the accuracy of the information so
endorsed. The failure to make any such endorsement or any error in any such endorsement shall not
affect the obligations of the Borrower in respect of any Swing Line Loan.



This Note (a) is one of the Swing Line Notes referred to in the Third Amended and Restated
Credit Agreement dated as of February
_____, 2010 (as the same may be amended, restated, amended and
restated, supplemented, replaced or otherwise modified from time to time, the “Credit
Agreement”), among Borrower, the Lenders, BANC OF AMERICA SECURITIES LLC AND JPMORGAN
SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and BARCLAYS BANK PLC, as
administrative agent, (b) is subject to the provisions of the Credit Agreement, and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This
Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the
Loan Documents for a description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.


 


 









 





Upon the occurrence and during the continuance of any Event of Default, all principal and all
accrued interest then remaining unpaid on this note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.



All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 	 	 	 	 
	 	 	PINNACLE ENTERTAINMENT, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	BY:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






 


 









 





Schedule A

to Swing Line Note




LOANS AND REPAYMENTS OF SWING LINE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	Amount of Principal of Swing Line	 	Unpaid Principal Balance of Swing	 	 
	Date	 	Swing Line Loans	 	Loans Repaid	 	Line Loans	 	Notation Made By






 


 











 




EXHIBIT J



FORM OF EXEMPTION CERTIFICATE




                     20          




Reference is made to the Third Amended and Restated Credit Agreement, dated as of February           ,
2010 (as the same may be further amended, restated, amended and restated, supplemented, replaced or
otherwise modified from time to time, the “Credit Agreement”) among PINNACLE ENTERTAINMENT,
INC., a Delaware corporation (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to the Credit Agreement, BANC OF AMERICA
SECURITIES LLC AND JPMORGAN SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and
BARCLAYS BANK PLC, as administrative agent. Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement.                                         
(the “Non-U.S. Lender”) is providing this certificate pursuant to the Credit Agreement.
The Non-U.S. Lender hereby represents and warrants that:



1. The Non-U.S. Lender is the sole record and beneficial owner of the Loans or the obligations
evidenced by Note(s) in respect of which it is providing this certificate.



2. The Non-U.S. Lender is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”). In this regard, the Non-U.S. Lender further
represents and warrants that:



(a) the Non-U.S. Lender is not subject to regulatory or other legal requirements as a bank in
any jurisdiction; and



(b) the Non-U.S. Lender has not been treated as a bank for purposes of any tax, securities law
or other filing or submission made to any Governmental Authority, any application made to a rating
agency or qualification for any exemption from tax, securities law or other legal requirements;



3. The Non-U.S. Lender is not a 10-percent shareholder of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code; and



4. The Non-U.S. Lender is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code.



IN WITNESS WHEREOF, the undersigned has duly executed this certificate.



	 	 	 	 	 	 	 	 	 
	 	 	[NAME OF NON-U.S. LENDER]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






Date:                                         





 














 




EXHIBIT K



FORM OF CLOSING CERTIFICATE




Pursuant to Section 5.1(k) of the Third Amended and Restated Credit Agreement dated as of
February
_____, 2010 (the “Credit Agreement”) (capitalized terms not otherwise defined herein are used
herein as so defined in the Credit Agreement), among PINNACLE ENTERTAINMENT, INC., a Delaware
corporation (“Borrower”), the several banks and other financial institutions or entities parties
thereto (the “Lenders”), BANC OF AMERICA SECURITIES LLC and JPMORGAN SECURITIES, INC., as joint
lead arrangers and joint book runners, and BARCLAYS BANK PLC, as administrative agent (the
“Administrative Agent”), the undersigned, Stephen H. Capp and John A. Godfrey, hereby certify as
follows this
 _____ 
 day of February, 2010:




1. That they are, respectively, either the chief financial officer or the treasurer of
each of the entities listed below (individually, a “Company” and collectively, the
“Companies”) (or, in the case of a limited liability company or a partnership, the manager,
the chief financial officer or treasurer of the member and/or manager and/or managing member
or partner of such limited liability company or partnership, respectively).




2. The representations and warranties of each of the Loan Parties contained in the
Credit Agreement and the Loan Documents to which it is a party are true and correct in all
material respects on and as of the date hereof with the same effect as if made on the date
hereof.




3. No Default or Event of Default has occurred and is continuing as of the date hereof
or after giving effect to the Loans to be made and/or Letters of Credit to be issued on the
date hereof.




4. There are no liquidation or dissolution proceedings pending or to my knowledge
threatened against the Company, nor has any other event occurred adversely affecting or
threatening the continued corporate existence of the Company.




5. The execution, delivery and performance of each Loan Document to which each Company
is a party and, in the case of Borrower, to borrow under the Credit Agreement, was duly
authorized by resolutions duly adopted by the appropriate governing body of the applicable
Company (the “Resolutions”), a true, correct and complete copy of which is attached hereto
as Exhibit A and incorporated herein by this reference, and the Resolutions remain
in full force and effect as of the date hereof and are the only corporate proceedings of the
Companies now in force relating to or affecting the matters referred to therein.




6. Attached hereto as Exhibit B are true, correct and complete copies of all
the articles (or certificates) of incorporation (or, in the case of a limited liability
company or a partnership, the certificates of formation or articles of organization) of each
of the Companies.




7. Attached hereto as Exhibit C are true, correct and complete copies of all
the bylaws (or, in the case of a limited liability company or a partnership, the operating


 


 









 






agreement or partnership agreement) of the Companies, except to the extent there have
been no changes to any such bylaws, operating agreement or partnership agreement since
December 14, 2005.




8. Attached hereto as Exhibit D are Certificates of Good Standing or
Certificates of Existence with respect to each Company from the issuing governmental agency
of each Company’s respective jurisdiction of formation.




9. Attached hereto as Exhibit E are Certificates of Good Standing as foreign
entities from the issuing governmental agency of each jurisdiction where each Company’s
ownership, lease or operation of Property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or be in good
standing could not reasonably be expected to have a Material Adverse Effect.




10. Pursuant to the Resolutions, and the undersigned, or in our absence any other
appropriate officer of the Companies, have been designated to execute the Loan Documents
referred to in the Resolutions to which each Company is a party.


 


 









 





This certificate is being delivered to the Administrative Agent pursuant to Section 5.1(k) of
the Credit Agreement, and the Administrative Agent and the Lenders are authorized to rely on this
Certificate in connection with the Credit Agreement and the transactions contemplated thereby. In
addition, each legal counsel rendering an Opinion of Counsel is authorized to rely on this
Certificate in connection with the Credit Agreement and the transactions contemplated thereby.



	 	 	 	 	 
	 	Pinnacle Entertainment, Inc.,

a Delaware corporation



BILOXI CASINO CORP.,

a Mississippi corporation



Casino Magic Corp.,

a Minnesota corporation



Casino One Corporation,

a Mississippi corporation



PNK (BOSSIER CITY), INC.,

a Louisiana corporation



St. Louis Casino Corp.,

a Missouri corporation



President Riverboat Casino-Missouri, Inc.,

a Missouri corporation

 	 
	 	By:  	
 	 
	 	 	Stephen H. Capp 	 
	 	 	Chief Financial Officer or Treasurer 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Belterra Resort Indiana, LLC,

a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc., its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Boomtown, LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc., its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Louisiana-I Gaming,

a Louisiana Partnership in Commendam	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Boomtown, LLC,

its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Pinnacle Entertainment, Inc., its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Stephen H. Capp
	 	 
	 

	 	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	OGLE HAUS, LLC,

an Indiana limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Belterra Resort Indiana, LLC, its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Pinnacle Entertainment, Inc., its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Stephen H. Capp,
	 	 
	 

	 	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (LAKE CHARLES), L.L.C.,

a Louisiana limited liability company	 	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc., its Sole Member and Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (Reno), LLC,

a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (ES), LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (STLH), LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (ST. LOUIS RE), LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (CHILE 1), LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (CHILE 2), LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Stephen H. Capp	 	 
	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PNK (BATON ROUGE) PARTNERSHIP,

a Louisiana partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	PNK Development 8, LLC,	 	 
	 	 	 	 	its Managing Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Pinnacle Entertainment, Inc.,	 	 
	 	 	 	 	 	 	its sole member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Stephen H. Capp
	 	 
	 

	 	 	 	 	 	 	 	Chief Financial Officer	 	 






 


 









 





	 	 	 	 	 
	 	PNK Development 7, LLC,

a Delaware limited liability company

 	 
	 	By: 	Pinnacle Entertainment, Inc.,
 	 
	 	 	its sole member 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Stephen H. Capp 	 
	 	 	Chief Financial Officer 	 



	 	 	 	 	 
	 	PNK Development 8, LLC,

a Delaware limited liability company

 	 
	 	By: 	Pinnacle Entertainment, Inc.,
 	 
	 	 	its sole member 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Stephen H. Capp 	 
	 	 	Chief Financial Officer 	 



	 	 	 	 	 
	 	PNK Development 9, LLC,

a Delaware limited liability company

 	 
	 	By: 	Pinnacle Entertainment, Inc.,
 	 
	 	 	its sole member 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Stephen H. Capp 	 
	 	 	Chief Financial Officer 	 



	 	 	 	 	 
	 	PNK (SCB), L.L.C.,

a Louisiana limited liability company

 	 
	 	By:  	PNK Development 7, LLC,
 	 
	 	 	its sole member 	 



	 	 	 	 	 
	 	By: 	                     Pinnacle Entertainment, Inc.,
 	 
	 	 	its sole member 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Stephen H. Capp 	 
	 	 	Chief Financial Officer 	 



 


 









 





	 	 	 	 	 
	 	YANKTON INVESTMENTS, LLC,

a Nevada limited liability company

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 






	 	 	 	 	 
	ACCEPTED AND AGREED TO:	 	 
	 
	 	 	 	 
	BARCLAYS BANK PLC,

as Administrative Agent	 	 
	 
	 	 	 	 
	By:  
	 	 	 
	 

	Name:  
	 	 	 
	 

	Title:	 	 	 







 


 











 




EXHIBIT L



FORM OF IN-BALANCE TEST CERTIFICATE




This In-Balance Test Certificate (“Certificate”) is delivered to Barclays Bank PLC, as
Administrative Agent pursuant to Section 6.13(b) of the Third Amended and Restated Credit
Agreement, dated as of February
_____, 2010 (as amended, restated, amended and restated, supplemented,
replaced or modified from time to time, the “Credit Agreement”), among PINNACLE
ENTERTAINMENT, INC., a Delaware corporation (the “Borrower”), the several banks and other
financial institutions or entities from time to time parties thereto, BANC OF AMERICA SECURITIES
LLC and JPMORGAN SECURITIES, INC., as joint lead arrangers and joint book runners and BARCLAYS BANK
PLC, as administrative agent. Capitalized terms used in this Certificate and all Attachments
hereto but not defined herein or therein shall have the meanings given to such terms in the Credit
Agreement.




	 	1.	 	I am a duly elected, qualified and acting
_____ officer of
the Borrower.

	 
	 	2.	 	I have reviewed and am familiar with the contents of this
Certificate.

	 
	 	3.	 	Attached hereto as Attachment 1.I are the In-Balance
Projections prepared for the In-Balance Test for the following Project:






	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 







	 	4.	 	The In-Balance Projections are based on reasonable estimates,
information and assumptions and I have no reason to believe that such
In-Balance Projections are incorrect or misleading in any material respect.

	 
	 	5.	 	Attached hereto as Attachment 1.II are the calculations
of the Project Sources and the Project Uses for the Project as of the date set
forth thereto showing compliance with the In-Balance Test.






IN WITNESS WHEREOF, I execute this Certificate this                      day of                     , 20___.



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	PINNACLE ENTERTAINMENT, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


 









 





ATTACHMENT 1




The information described herein is as of                     
_____, 20_____
(the “Certification
Date”), and pertains to the period from                     
_____, 20_____
to                     
_____, 20_____
1.




	I.	 	IN-BALANCE PROJECTIONS







	 	A.	 	In-Balance Projections means, with respect to any In-Balance Test, good faith
projections of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for the period from the first day of the calendar month in which In-Balance Test is
being made through the end of the Project Period for the applicable Project.






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Projection for
	 	 	 	 	 	 	 	 	 	 	Quarter
	 	 	Projection	 	Projection for	 	Projection for	 	 	 	Ending at the
	 	 	for Quarter	 	Quarter	 	Quarter	 	[add more	 	end of the
	 	 	Ending	 	Ending	 	Ending	 	columns as	 	Project
	 	 	[___]	 	[___]	 	[___]	appropriate]	Period
	 
	 	 	 	 	 	 	 	 	 	 
	Consolidated Net Income
of the Borrower and its
Restricted Subsidiaries

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Plus:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	income tax expense
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Consolidated Interest
Expense of the Borrower
and its Restricted
Subsidiaries,
amortization or writeoff
of debt discount and debt
issuance costs and
commissions, discounts
and other fees and
charges associated with
Indebtedness
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	depreciation and
amortization expense
	 	 	 	 	 	 	 	 	 	 





 





	 	 	 
	1	 	Should be made through the end of the Project Period
for the applicable Project. The Project Period for any Project is the period
of time commencing on the date of the determination of the In-Balance Test with
respect to such Project and ending on the date six full months after the
scheduled opening date of the Project.




 


 









 









	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Projection for
	 	 	 	 	 	 	 	 	 	 	Quarter
	 	 	Projection	 	Projection for	 	Projection for	 	 	 	Ending at the
	 	 	for Quarter	 	Quarter	 	Quarter	 	[add more	 	end of the
	 	 	Ending	 	Ending	 	Ending	 	columns as	 	Project
	 	 	[___]	 	[___]	 	[___]	appropriate]	Period
	 
	 	 	 	 	 	 	 	 	 	 
	amortization and
write-off of intangibles
(including, but not
limited to, goodwill) and
organization costs

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	any extraordinary,
unusual or non-recurring
expenses or losses
(including, whether or
not otherwise includable
as a separate item in the
statement of such
Consolidated Net Income
for such period, losses
on sales of assets
outside of the ordinary
course of business)
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	pre-opening and related
promotional expenses
incurred in connection
with any Project
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	any other non-cash charges
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	any amount expended after
January 1, 2010 towards
the development of
businesses not prohibited
by Section 7.l4 of the
Credit Agreement, in an
amount not to exceed
$2,500,000 in any fiscal
year
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	minus:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	the sum of:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	interest income (except
to the extent deducted in
determining Consolidated
Interest Expense)
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	any extraordinary,
unusual or non-recurring
income or gains
(including, whether or
not otherwise includable
as a separate item in the
statement of such
Consolidated Net Income
for such period, gains on
	 	 	 	 	 	 	 	 	 	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Projection for
	 	 	 	 	 	 	 	 	 	 	Quarter
	 	 	Projection	 	Projection for	 	Projection for	 	 	 	Ending at the
	 	 	for Quarter	 	Quarter	 	Quarter	 	[add more	 	end of the
	 	 	Ending	 	Ending	 	Ending	 	columns as	 	Project
	 	 	[___]	 	[___]	 	[___]	appropriate]	Period
	 
	 	 	 	 	 	 	 	 	 	 
	sales of assets outside
of the ordinary course of
business, but not
including business
interruption insurance
proceeds)
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	any other non-cash income
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TOTAL CONSOLIDATED EBITDA
	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 
	II. IN-BALANCE TEST
	 	 	 	 
	A. Project Sources as of the Certification Date 
	 	 	 	 
	1. Total unrestricted Cash and Cash Equivalents of the Borrower
and its Restricted Subsidiaries minus the Minimum Cash Requirement as of such
date of determination:
	 	$	                    	 
	2. Amount of the Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries set forth in the In-Balance Projections for the
In-Balance Test with respect to such Project:
	 	$	                    	 
	3. Unutilized Commitments under the Revolving Credit Facility, any
Incremental Revolving Facility or any Incremental Delayed Draw Term Facility,
in each case, as of such date of determination:
	 	$	                    	 
	4. Unutilized committed lease financing or other form of committed
financing of the Borrower and its Restricted Subsidiaries as of such date of
determination for such Project (and for all other Unfinished Projects):
	 	$	                    	 






 


 









 





	 	 	 	 	 
	5. the Net Disposition Proceeds to be received by the Borrower and
its Restricted Subsidiaries from Dispositions which are subject to contractual
commitments as of such date of determination, so long as (i) such contractual
commitments are not subject to any conditions other than the passage of time
and the obtaining of any applicable Gaming Board approvals, (ii) such Net
Disposition Proceeds are reasonably expected to be received during the Project
Period, (iii) the Borrower has designated or re-designated such Net Disposition
Proceeds for use for such Project or any other Unfinished Project, plus other
sources of funds that other parties are contractually committed (such as
contractually committed proceeds of insurance payments and legal settlements
and awards) to make cash payments to the Borrower and its Restricted
Subsidiaries within the Project Period, so long as the Borrower has designated
or re-designated such cash payments for use for such Project or any other
Unfinished Project:2
	 	$	                    	 
	6. Aggregate amount of Project Sources (aggregate amount of
Project Sources described in A1 through A5):
	 	$	                    	 
	 
	 	 	 	 
	B. Project Uses as of the Certification Date
	 	 	 	 
	1. Forecasted cash interest costs of the Borrower and its
Restricted Subsidiaries from such date of determination through the end of the
Project Period for such Project:
	 	$	                    	 
	2. Projected Maintenance Capital Expenditures and all other
Capital Expenditures of the Borrower and its Restricted Subsidiaries (other
than Capital Expenditures for such Project and all other Unfinished Projects)
through the Project Period for such Project:
	 	$	                    	 
	3. All remaining Expenses for such Project and all other
Unfinished Projects (including any pre-opening costs) through the Project
Period for such Project:
	 	$	                    	 
	4. Forecasted cash income tax payments of the Borrower and its
Restricted Subsidiaries through the Project Period for such Project:
	 	$	                    	 
	5. Investments with respect to which the Borrower and/or any of
its Restricted Subsidiaries has entered into a written enforceable agreement or
contract to make at any time during the Project Period for such Project:
	 	$	                    	 
	6. Aggregate amount of Project Uses (aggregate amount of Project
Uses described in B1 through B5):
	 	$	                    	 





 





	 	 	 
	2	 	Amount shall not exceed $25,000,000 in the aggregate
for any Project.






 


 











 






	 	 	 	 	 
	C. Aggregate amount of Project Sources (amount in A6) minus Aggregate amount of
Project Uses (amount in B6):3
	 	$	                    	 
	 
	 	 	 	 
	                     Project is In-Balance (if amount in C is > 0)
	 	 	 	 
	                     Project is not In-Balance (if amount in C is < or equal to 0)
	 	 	 	 





 





	 	 	 
	3	 	The applicable Project shall satisfy the In-Balance
Test if, as of such date, the Project Sources exceed the Project Uses for such
Project (and for all other Unfinished Projects) for the Project Period for such
Project.






 


 











 




EXHIBIT O




FORM OF ASSIGNMENT AND ACCEPTANCE




_____________, 20____




Reference is made to the Third Amended and Restated Credit Agreement, dated as of February
 _____ 
,
2010 (as amended and as the same may be further amended, restated, amended and restated,
supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”),
among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “Borrower”), the several
banks and other financial institutions or entities from time to time parties to the Credit
Agreement, BANC OF AMERICA SECURITIES LLC AND JPMORGAN SECURITIES, INC., as Joint Lead Arrangers
and Joint Book Runners, and BARCLAYS BANK PLC as administrative agent. Capitalized terms used and
not defined herein shall have the meaning set forth in the Credit Agreement.



The Assignor identified on Schedule 1 hereto (the “Assignor”) and the Assignee
identified on Schedule 1 hereto (the “Assignee”) agree as follows:



1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below in paragraph 4), the interest
described on Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights
and obligations under the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an “Assigned
Facility” collectively, the “Assigned Facilities”), in a principal amount for each
Assigned Facility as set forth on Schedule 1 hereto.



2. The Assignor: (a) 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 with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free and clear of any
such adverse claim; (b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or any other obligor or
the performance or observance by the Borrower, any of its Subsidiaries or any other obligor of any
of their respective obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Facilities and (i) requests that the Administrative Agent, upon request by
the Assignee, exchange the attached Notes for a new Note or Notes payable to the Assignee and (ii)
if the Assignor has retained any interest in the Assigned Facility, requests that the
Administrative Agent exchange the attached Notes for a new Note or Notes payable to the Assignor,
in each case in amounts which reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).



3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section 4.1 and Section 6.1
thereof and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agents, the Arrangers or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit Agreement, the other
Loan Documents or any other


 


 









 






instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Agents to take such action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agents by the terms thereof together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender, including, without
limitation, if it is organized under the laws of a jurisdiction outside of the United States, its
obligation pursuant to Section 2.21 of the Credit Agreement.



4. The effective date of this Assignment and Acceptance shall be the “Effective Date of
Assignment” set forth in Schedule 1 hereto (the “Effective Date”). Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording by the
Administrative Agent).



5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between themselves.



6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.



7. This Assignment and Acceptance shall be governed by and construed in accordance with the
laws of the State of New York.



IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.



[Signature page to follow]



 


 









 







Schedule 1

to Assignment and Acceptance




Name of Assignor: __________________________




Name of Assignee: __________________________




Effective Date of Assignment:  _________________




	 	 	 	 	 
	 	 	 	 	Commitment Percentage
	Credit Facility Assigned	 	Principal Amount Assigned	 	Assigned1
	 	 	 	 	 
	 
	 	$ _____________________ 	 	 ________ . ________ %






[Name of Assignee]




By: _________________________

      Title: _____________________




[Name of Assignor]




By: _________________________

      Title: _____________________






	 	 	 
	1	 	Calculate the Commitment Percentage that is assigned to
at least 15 decimal places and show as a percentage of the aggregate
commitments of all Lenders.



 


 









 









Consented To:




PINNACLE ENTERTAINMENT, INC.,

a Delaware corporation2




By: _________________________

      Title: _____________________




BARCLAYS BANK PLC, as Administrative Agent




By: _________________________

      Title: _____________________




___________________, as Issuing Lender




By: _________________________

      Title: _____________________




___________________, as Swing Line Lender




By: _________________________

      Title: _____________________






	 	 	 
	2	 	The consents of the Borrower, the Administrative Agent,
the Issuing Lender and the Swing Line Lender may not be required. Typically,
the Credit Agreement provides that the consent of the Borrower, the
Administrative Agent, the Issuing Lender and the Swing Line Lender is required
unless (i) the assignee already is a Lender under the Credit Agreement and (ii)
in the case of the Issuing Lender and the Swing Lender, Revolving Credit
Commitments are not being assigned. Check Section 10.6 of the Credit Agreement
to determine what is needed.






 


 












 




EXHIBIT Q




FORM OF

DECLINING LENDER NOTICE




BARCLAYS BANK PLC

200 Park Avenue

New York, New York 10166




[Name and Address of Lender]




Attention of [          ]

Telecopy No. [          ]



[Date]




Ladies and Gentlemen:



The undersigned, BARCLAYS BANK PLC, as administrative agent (in such capacity, the
“Administrative Agent”), refers to that certain Third Amended and Restated Credit
Agreement, dated as of February
 _____, 2010 (as amended, supplemented or otherwise modified from time
to time, the “Credit Agreement”), among PINNACLE ENTERTAINMENT, INC., a Delaware
corporation (the “Borrower”), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “Lenders”), BANC OF AMERICA
SECURITIES LLC AND JPMORGAN SECURITIES, INC., as Joint Lead Arrangers and Joint Book Runners, and
the Administrative Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement. The Administrative
Agent hereby gives notice of an offer of prepayment made by the Borrower pursuant to Section 2.13
of the Credit Agreement of the prepayment amount. The portion of the prepayment amount to be
allocated to the Loan held by you and the date on which such prepayment will be made to you (should
you elect to receive such prepayment) are set forth below:



	 	 	 	 	 	 
	(A)

	 	Total prepayment amount	 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 
	(B)

	 	Portion of prepayment amount to be received by you	 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 
	(C)

	 	Mandatory prepayment date (5 Business Days after the
date of this Declining Lender Notice)	 	 	 
	 

	 	 	 	 	 






IF YOU DO NOT WISH TO RECEIVE ALL OF THE PREPAYMENT AMOUNT TO BE ALLOCATED TO YOU ON THE
MANDATORY PREPAYMENT DATE INDICATED IN PARAGRAPH (C) ABOVE, please sign this notice in the space
provided below and indicate the percentage of the prepayment amount otherwise payable WHICH YOU DO
NOT WISH TO RECEIVE. Please return this notice as so completed via telecopy to the attention of
[                    ] at [                    ], no later than 10:00 a.m., New York City time,
one business day prior to the mandatory prepayment date, at Telecopy No. [                    ].


 


 









 





IF YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE PREPAYMENT ALLOCATED TO YOU ON
THE MANDATORY PREPAYMENT DATE.



	 	 	 	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC,	 	 
	 	 	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






                                        , hereby DECLINES its option to receive all of the prepayment amount.




	 	 	 	 	 
	[Name of Lender]
	 
	 	 	 	 
	By:
	 	 	 
	 

	Name:
	 	 	 
	 

	Title: