Exhibit 10.8


 




 





	
  Published CUSIP Numbers:

  
	
  Deal: 137671AA1

  
	
  Revolver: 137671AB9

  
	
  Term: 137671AC7

  



 


 


CREDIT
AGREEMENT


 


 


Dated
as of January 5, 2006


 


among


 


CANNERY CASINO RESORTS, LLC,

THE CANNERY HOTEL AND CASINO, LLC,

RAMPART RESORT MANAGEMENT, LLC

and

NEVADA PALACE, LLC,

as the Borrowers,


 


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,


 


CIT LENDING SERVICES CORPORATION,

as Syndication Agent,


 


GENERAL ELECTRIC CAPITAL CORPORATION,

as Documentation
Agent,


 


and


 


The
Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND ACCOUNTING
  TERMS

  	
  1

  
	
   

  	
  1.01

  	
  Defined Terms

  	
  1

  
	
   

  	
  1.02

  	
  Other Interpretive
  Provisions

  	
  29

  
	
   

  	
  1.03

  	
  Accounting Terms

  	
  30

  
	
   

  	
  1.04

  	
  Rounding

  	
  31

  
	
   

  	
  1.05

  	
  Times of Day

  	
  31

  
	
   

  	
  1.06

  	
  Letter of Credit Amounts

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  	
  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
  31

  
	
   

  	
  2.01

  	
  Committed Loans

  	
  31

  
	
   

  	
  2.02

  	
  Borrowings, Conversions
  and Continuations of Committed Loans

  	
  32

  
	
   

  	
  2.03

  	
  Letters of Credit

  	
  33

  
	
   

  	
  2.04

  	
  Swing Line Loans

  	
  42

  
	
   

  	
  2.05

  	
  Prepayments

  	
  44

  
	
   

  	
  2.06

  	
  Termination or Reduction
  of Revolving Commitments

  	
  45

  
	
   

  	
  2.07

  	
  Repayment of Loans

  	
  46

  
	
   

  	
  2.08

  	
  Interest

  	
  48

  
	
   

  	
  2.09

  	
  Fees

  	
  49

  
	
   

  	
  2.10

  	
  Computation of Interest
  and Fees

  	
  49

  
	
   

  	
  2.11

  	
  Evidence of Debt

  	
  50

  
	
   

  	
  2.12

  	
  Payments Generally;
  Administrative Agent’s Clawback

  	
  50

  
	
   

  	
  2.13

  	
  Sharing of Payments by
  Lenders

  	
  52

  
	
   

  	
  2.14

  	
  Increase in Commitments

  	
  53

  
	
   

  	
  2.15

  	
  Joint and Several
  Liability

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  	
  TAXES, YIELD PROTECTION
  AND ILLEGALITY

  	
  55

  
	
   

  	
  3.01

  	
  Taxes

  	
  55

  
	
   

  	
  3.02

  	
  Illegality

  	
  57

  
	
   

  	
  3.03

  	
  Inability to Determine
  Rates

  	
  58

  
	
   

  	
  3.04

  	
  Increased Costs; Reserves
  on Eurodollar Rate Loans

  	
  58

  
	
   

  	
  3.05

  	
  Compensation for Losses

  	
  60

  
	
   

  	
  3.06

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
  60

  
						



 


i

















 


	
   

  	
  3.07

  	
  Survival

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
   

  	
  CONDITIONS PRECEDENT TO
  CREDIT EXTENSIONS

  	
  61

  
	
   

  	
  4.01

  	
  Conditions of
  Effectiveness

  	
  61

  
	
   

  	
  4.02

  	
  Conditions to all Credit
  Extensions

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  66

  
	
   

  	
  5.01

  	
  Existence, Qualification and
  Power; Compliance with Laws

  	
  66

  
	
   

  	
  5.02

  	
  Authorization; No
  Contravention

  	
  67

  
	
   

  	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  67

  
	
   

  	
  5.04

  	
  Binding Effect

  	
  67

  
	
   

  	
  5.05

  	
  Financial Statements; No
  Material Adverse Effect; No Internal Control Event

  	
  67

  
	
   

  	
  5.06

  	
  Litigation

  	
  68

  
	
   

  	
  5.07

  	
  No Default

  	
  68

  
	
   

  	
  5.08

  	
  Ownership of Property;
  Liens

  	
  68

  
	
   

  	
  5.09

  	
  Environmental Compliance

  	
  69

  
	
   

  	
  5.10

  	
  Insurance

  	
  69

  
	
   

  	
  5.11

  	
  Taxes

  	
  69

  
	
   

  	
  5.12

  	
  ERISA Compliance

  	
  69

  
	
   

  	
  5.13

  	
  Subsidiaries; Equity
  Interests

  	
  70

  
	
   

  	
  5.14

  	
  Margin Regulations;
  Investment Company Act; Public Utility Holding Company Act

  	
  70

  
	
   

  	
  5.15

  	
  Disclosure

  	
  70

  
	
   

  	
  5.16

  	
  Compliance with Laws

  	
  70

  
	
   

  	
  5.17

  	
  Intellectual Property;
  Licenses, Etc

  	
  71

  
	
   

  	
  5.18

  	
  Collateral Documents

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
  71

  
	
   

  	
  6.01

  	
  Financial Statements

  	
  71

  
	
   

  	
  6.02

  	
  Certificates; Other
  Information

  	
  72

  
	
   

  	
  6.03

  	
  Notices

  	
  74

  
	
   

  	
  6.04

  	
  Payment of Obligations

  	
  75

  
	
   

  	
  6.05

  	
  Preservation of Existence,
  Etc

  	
  75

  
	
   

  	
  6.06

  	
  Maintenance of Properties

  	
  75

  
	
   

  	
  6.07

  	
  Maintenance of Insurance

  	
  76

  
						



 


ii

















 


	
   

  	
  6.08

  	
  Compliance with Laws

  	
  76

  
	
   

  	
  6.09

  	
  Books and Records

  	
  76

  
	
   

  	
  6.10

  	
  Inspection Rights

  	
  76

  
	
   

  	
  6.11

  	
  Use of Proceeds

  	
  76

  
	
   

  	
  6.12

  	
  Compliance With Agreements

  	
  77

  
	
   

  	
  6.13

  	
  Environmental Covenant

  	
  77

  
	
   

  	
  6.14

  	
  Accuracy of Information

  	
  77

  
	
   

  	
  6.15

  	
  Significant Subsidiaries

  	
  77

  
	
   

  	
  6.16

  	
  Construction Covenants

  	
  78

  
	
   

  	
  6.17

  	
  In Balance Covenants

  	
  78

  
	
   

  	
  6.18

  	
  Pledge Undertakings

  	
  78

  
	
   

  	
  6.19

  	
  Third Closing Undertakings

  	
  78

  
	
   

  	
  6.20

  	
  Acquisition of Property or
  Vessel

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  	
  NEGATIVE COVENANTS

  	
  79

  
	
   

  	
  7.01

  	
  Liens

  	
  79

  
	
   

  	
  7.02

  	
  Investments

  	
  79

  
	
   

  	
  7.03

  	
  Indebtedness

  	
  80

  
	
   

  	
  7.04

  	
  Fundamental Changes

  	
  80

  
	
   

  	
  7.05

  	
  Dispositions

  	
  81

  
	
   

  	
  7.06

  	
  Restricted Payments

  	
  81

  
	
   

  	
  7.07

  	
  Change in Nature of
  Business

  	
  82

  
	
   

  	
  7.08

  	
  Transactions with
  Affiliates

  	
  83

  
	
   

  	
  7.09

  	
  Burdensome Agreements

  	
  83

  
	
   

  	
  7.10

  	
  Use of Proceeds

  	
  83

  
	
   

  	
  7.11

  	
  Financial Covenants

  	
  83

  
	
   

  	
  7.12

  	
  Capital Expenditures

  	
  84

  
	
   

  	
  7.13

  	
  Payment of Subordinated
  Debt

  	
  85

  
	
   

  	
  7.14

  	
  Construction of the
  Project

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  	
  EVENTS OF DEFAULT AND
  REMEDIES

  	
  87

  
	
   

  	
  8.01

  	
  Events of Default

  	
  87

  
	
   

  	
  8.02

  	
  Remedies Upon Event of
  Default

  	
  90

  
	
   

  	
  8.03

  	
  Application of Funds

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  	
  ADMINISTRATIVE AGENT

  	
  91

  



 


iii

















 


	
   

  	
  9.01

  	
  Appointment and Authority

  	
  91

  
	
   

  	
  9.02

  	
  Rights as a Lender

  	
  91

  
	
   

  	
  9.03

  	
  Exculpatory Provisions

  	
  92

  
	
   

  	
  9.04

  	
  Reliance by Administrative
  Agent

  	
  93

  
	
   

  	
  9.05

  	
  Delegation of Duties

  	
  93

  
	
   

  	
  9.06

  	
  Resignation of
  Administrative Agent

  	
  93

  
	
   

  	
  9.07

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  94

  
	
   

  	
  9.08

  	
  No Other Duties, Etc

  	
  94

  
	
   

  	
  9.09

  	
  Administrative Agent May
  File Proofs of Claim

  	
  94

  
	
   

  	
  9.10

  	
  Collateral and Guaranty
  Matters

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  	
  MISCELLANEOUS

  	
  96

  
	
   

  	
  10.01

  	
  Amendments, Etc

  	
  96

  
	
   

  	
  10.02

  	
  Notices; Effectiveness;
  Electronic Communication

  	
  97

  
	
   

  	
  10.03

  	
  No Waiver; Cumulative
  Remedies

  	
  99

  
	
   

  	
  10.04

  	
  Expenses; Indemnity;
  Damage Waiver

  	
  99

  
	
   

  	
  10.05

  	
  Payments Set Aside

  	
  101

  
	
   

  	
  10.06

  	
  Successors and Assigns

  	
  102

  
	
   

  	
  10.07

  	
  Treatment of Certain
  Information; Confidentiality

  	
  106

  
	
   

  	
  10.08

  	
  Right of Setoff

  	
  107

  
	
   

  	
  10.09

  	
  Interest Rate Limitation

  	
  107

  
	
   

  	
  10.10

  	
  Counterparts; Integration;
  Effectiveness

  	
  108

  
	
   

  	
  10.11

  	
  Survival of
  Representations and Warranties

  	
  108

  
	
   

  	
  10.12

  	
  Severability

  	
  108

  
	
   

  	
  10.13

  	
  Replacement of Lenders

  	
  108

  
	
   

  	
  10.14

  	
  Governing Law;
  Jurisdiction; Etc

  	
  109

  
	
   

  	
  10.15

  	
  Waiver of Jury Trial

  	
  110

  
	
   

  	
  10.16

  	
  USA PATRIOT Act Notice

  	
  110

  
	
   

  	
  10.17

  	
  Cooperation with Gaming
  Boards

  	
  110

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  



 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.01

  	
  Commitments
  and Pro Rata Shares

  	
   

  
	
   

  	
  5.06

  	
  Litigation

  	
   

  
	
   

  	
  5.13

  	
  Subsidiaries;
  Other Equity Investments; Equity Interests in the Borrower

  	
   

  
	
   

  	
  7.01

  	
  Existing
  Liens

  	
   

  
	
   

  	
  7.03

  	
  Existing
  Indebtedness

  	
   

  
	
   

  	
  10.02

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  	
   

  
	
   

  	
  10.06

  	
  Processing
  and Recordation Fees

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A

  	
  Committed
  Loan Notice

  	
   

  
	
   

  	
  B

  	
  Swing Line
  Loan Notice

  	
   

  
	
   

  	
  C-1

  	
  Term Note

  	
   

  
	
   

  	
  C-2

  	
  Revolving
  Note

  	
   

  
	
   

  	
  C-3

  	
  Swing Line
  Note

  	
   

  
	
   

  	
  D

  	
  Compliance
  Certificate

  	
   

  
	
   

  	
  E

  	
  Assignment
  and Assumption

  	
   

  
	
   

  	
  F-1

  	
  Subsidiary
  Guaranty

  	
   

  
	
   

  	
  F-2

  	
  Members’
  Guaranty

  	
   

  
	
   

  	
  G-1

  	
  Opinion of
  Santoro, Driggs, Walch, Kearney, Johnson & Thompson, Ltd

  	
   

  
	
   

  	
  G-2

  	
  Opinion of
  Schreck Brignone

  	
   

  
	
   

  	
  H

  	
  Third
  Closing Opinion Matters

  	
   

  
	
   

  	
  I

  	
  Nevada
  Palace Lease

  	
   

  
	
   

  	
  J

  	
  Equity
  Pledge Subordination Agreement

  	
   

  
	
   

  	
  K

  	
  Management
  Subordination Agreement

  	
   

  



 


v

















 


CREDIT
AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of January 5, 2006 among
CANNERY CASINO RESORTS, LLC, a Nevada limited liability company (“CCR”),
THE CANNERY HOTEL AND CASINO, LLC, a Nevada limited liability company (“CHC”),
NEVADA PALACE, LLC, a Nevada limited liability company (“Nevada Palace, LLC”)
and RAMPART RESORT MANAGEMENT, LLC, a Nevada limited liability company (“Rampart”;
Rampart, Nevada Palace, LLC, CHC, CCR and any other entity that may from time
to time be joined as a borrower hereunder are individually a “Borrower”
and collectively, the “Borrowers”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”),
CIT LENDING SERVICES CORPORATION., as Syndication Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer.  Banc of America
Securities LLC is the sole lead arranger and sole book manager of the
facilities provided under this Agreement.


 


The Borrowers have requested
that the Lenders provide a revolving credit and term loan facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.


 


In consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01                        Defined Terms.  As used in this Agreement, the following
terms shall have the meanings set forth below:


 


“Acquisition” means
any transaction, or any series of related transactions, by which the Borrowers
directly or indirectly (i) acquire any going business or all or
substantially all of the assets of any firm, partnership, joint venture,
limited liability company, corporation or division thereof, whether through
purchase of assets, merger or otherwise, or (ii) acquire (in one
transaction or as the most recent transaction in a series of transactions)
control of at least a majority in ordinary voting power of the securities of a
corporation which have ordinary voting power for the election of directors, or
(iii) acquire control of a 50% or more ownership interest in any
partnership, limited liability company or joint venture.


 


“Act” has the meaning
specified in Section 10.16.


 


“Administrative Agent”
means Bank of America in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.


 


“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account
as the Administrative Agent may from time to time specify by notice to the
Borrowers and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent to the Lenders.


 


1

















 


“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.


 


“Agent Parties” has
the meaning specified in Section 10.02(c).


 


“Aggregate Commitments”
means the Commitments of all the Lenders.


 


“Aggregate Credit
Exposures” means, at any time, the sum of (i) the unused portion of
the Aggregate Revolving Commitment then in effect, (ii) the unused portion
of each Term Loan Commitment then in effect and (iii) the Total
Outstandings at such time.


 


“Aggregate Revolving
Commitments” means the Revolving Commitments of all Revolving Lenders.  As of the Closing Date, the Aggregate
Revolving Commitments are $140,000,000.


 


“Agreement” means
this Credit Agreement.


 


“Applicable Rate”
means the following percentages per annum, based upon the Consolidated Total
Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 6.02(b):


 


Applicable
Rate


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Total

  Leverage Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar

  Rate and

  Letter of Credit

  Fee

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  <2.00:1

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  	
  0.00

  	
  %

  
	
  2

  	
   

  	
  >2.00:1 but <2.50:1

  	
   

  	
  0.25

  	
  %

  	
  1.50

  	
  %

  	
  0.25

  	
  %

  
	
  3

  	
   

  	
  >2.50:1 but <3.00:1

  	
   

  	
  0.30

  	
  %

  	
  1.75

  	
  %

  	
  0.50

  	
  %

  
	
  4

  	
   

  	
  >3.00:1 but <3.50:1

  	
   

  	
  0.375

  	
  %

  	
  2.00

  	
  %

  	
  0.75

  	
  %

  
	
  5

  	
   

  	
  >3.50:1 but <4.00:1

  	
   

  	
  0.375

  	
  %

  	
  2.25

  	
  %

  	
  1.00

  	
  %

  
	
  6

  	
   

  	
  >4.00:1

  	
   

  	
  0.50

  	
  %

  	
  2.50

  	
  %

  	
  1.25

  	
  %

  



 


Any increase or decrease in
the Applicable Rate resulting from a change in the Consolidated Total Leverage
Ratio shall become effective as of the first Business Day immediately following
the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level 6 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered.  The 


 


2

















 


Applicable Rate in effect from the Closing Date through the date that
the Borrowers deliver a Compliance Certificate for the fiscal quarter ending on
December 31, 2005 shall be determined based upon Pricing Level 5.


 


“Approved Acquisition”
means an Acquisition by a Borrower or a Restricted Subsidiary of a Borrower of
a Venture that has been approved by a vote of the Required Lenders, and which,
after giving pro forma effect thereto, would result in Consolidated EBITDA for
the Borrowers of at least $55,000,000 for the four fiscal quarters prior to
such Acquisition.  No Acquisition shall
be an Approved Acquisition if the board of directors or management of the
Person to be acquired has notified a Borrower that it opposes such Acquisition
and such notice has not been withdrawn.


 


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


 


“Arranger” means Banc
of America Securities LLC, in its capacity as sole lead arranger and sole book
manager.


 


“Assignee Group”
means two or more Eligible Assignees that are Affiliates of one another or two
or more Approved Funds managed by the same investment advisor.


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required
by Section 10.06(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.


 


“Audited Financial
Statements” means the audited consolidated balance sheet of CCR and its
consolidated Subsidiaries for the fiscal year ended December 31, 2004, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for such fiscal
year of CCR and its consolidated Subsidiaries, including the notes thereto.


 


“Auto Extension Letter of
Credit” has the meaning specified in Section 2.03(b)(iii).


 


“Availability Period”
means the period from and including the Effective Date to the earliest of (a)
the Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of
the commitment of each Revolving Lender to make Loans and of the obligation of
the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


“Bank of America”
means Bank of America, N.A. and its successors.


 


3

















 


“Base Rate” means for
any day a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime
rate.”  The “prime rate” is a rate set by
Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate.  Any change in
such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


“Base Rate Committed Loan”
means a Committed Loan that is a Base Rate Loan.


 


“Base Rate Loan”
means a Loan that bears interest based on the Base Rate.


 


“Borrower” has the
meaning specified in the introductory paragraph hereto.


 


“Borrower Materials”
has the meaning specified in Section 6.02.


 


“Borrowing” means a
Committed Borrowing or a Swing Line Borrowing, as the context may require.


 


“Budget” means the
budget for the design and construction of the Project as a whole from the
commencement of construction thereof through Completion that is prepared by the
Borrowers and approved by the Construction Consultant.


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks
are authorized to close under the Laws of, or are in fact closed in, the State
of Nevada or the State of Texas and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by
and between banks in the London interbank eurodollar market.


 


“Cannery” means the
Cannery Casino and Hotel which is owned by CHC and located in North Las Vegas,
Nevada.


 


“Cannery II” means
the Project to be constructed adjacent to the existing Nevada Palace.


 


“Capital Expenditure”
means any expenditure that is capitalized on the balance sheet in accordance
with GAAP.


 


“Cash Collateralize”
has the meaning specified in Section 2.03(g).


 


“Casino Businesses”
means all personal property interests in the Cannery, the Rampart Casino, the
Nevada Palace (as of the Third Closing) or any additional Ventures pledged
pursuant to Section 6.15 (exclusive of any gaming licenses and
equipment to the extent the pledge thereof is prohibited by local law or
contract).


 


“Casino Real Estate”
means the fee interest in real property underlying the Cannery and the
leasehold interest in the Rampart Casino and (as of the Third Closing) the
Nevada Palace, and any real property interest in any additional Ventures
pledged pursuant to Section 6.15,


 


4

















 


together in each case with any fixtures and other real property
improvements now existing or to be constructed on any of such properties
(exclusive of any gaming equipment to the extent the pledge thereof is
prohibited by local law or contract).


 


“CCR” has the meaning
specified in the introductory paragraph hereof.


 


“Certificate of Occupancy”
means a temporary or permanent certificate of occupancy, in either case, for
the Cannery II issued by the Clark County building department pursuant to
applicable Laws which permanent or temporary certificate of occupancy shall
permit the Cannery II to be used for its intended purposes and shall be in full
force and effect and, in the case of a temporary certificate of occupancy, if
such temporary certificate of occupancy shall provide for an expiration date,
any items which must be completed in order for such temporary certificate of occupancy
to be renewed or extended shall be completed no later than 15 days prior to the
applicable expiration date.


 


“Change in Law” means
the occurrence, after the date of this Agreement, of any of the following: (a)
the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.


 


“Change of Control”
means an event or series of events by which:


 


(a)                                  prior to the date of the Third Closing, the
Existing Owners shall, directly or indirectly, cease to hold 100% of the equity
securities of CCR entitled to vote for members of the board of directors or
equivalent governing body of CCR on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right);


 


(b)                                 from and after the date of the Third Closing,
(i) the Existing Owners shall, directly or indirectly, cease to hold 35%
or more of the equity securities of CCR entitled to vote for members of the
board of directors or equivalent governing body of CCR on a fully-diluted basis
(and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right) or (ii) OCM shall, directly
or indirectly, cease to hold 33% or more of the equity securities of CCR
entitled to vote for members of the board of directors or equivalent governing
body of CCR on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right);


 


(c)                                  each of the Existing Owners shall at any time
cease to be a member of the board of directors of CCR;


 


(d)                                 from and after the date of the Third Closing,
OCM shall at any time cease to have at least two members of the board of
directors of CCR;


 


(e)                                  from and after the date of the Third Closing,
the Existing Owners and OCM shall at any time cease to hold the power to
appoint a majority of the members of the board of directors of CCR; or


 


5

















 


(f)                                    any Person or two or more Persons acting in
concert (other than the Existing Owners and OCM and its Affiliates) shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a controlling influence over
the management or policies of CCR, or control over the equity securities of CCR
entitled to vote for members of the board of directors or equivalent governing
body of CCR on a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire pursuant to any
option right) representing 15% or more of the combined voting power of such
securities.


 


“CHC” has the meaning
specified in the introductory paragraph hereof.


 


“Closing Date” means
the date that this Agreement has been executed by all parties hereto.


 


“Code” means the
Internal Revenue Code of 1986.


 


“Collateral” means,
collectively, the Casino Real Estate, the Casino Businesses, the property
described in the Pledge Agreement, the property described in the Security
Agreement, all property pledged pursuant to Section 6.15 and all other
property and interests pledged as collateral security for the Secured
Obligations.  Collateral shall not
include any right, title or interest of the Borrowers or any of their
Subsidiaries in any Gaming License.


 


“Committed Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period made
by each of the Term Loan Lenders pursuant to Section 2.01 or by each of
the Revolving Lenders pursuant to Section 2.01(b).


 


“Committed Loan”
means a Loan made or to be made by a Lender pursuant to Section 2.01.


 


“Committed Loan Notice”
means (i) a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other, or (c) a continuation of Eurodollar
Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A or (ii) a deemed Committed
Loan Notice pursuant to Section 2.04(c)(i) or (ii).


 


“Commitment” means
for each Lender, such Lender’s Revolving Commitment and/or Term Loan
Commitment.


 


“Commitments” means
the Revolving Commitments and the Term Loan Commitments.


 


“Completion” means
completion of the Project in substantial conformance with the Plans and
Specifications such that when completed, a Certificate of Occupancy will be
issued.


 


“Compliance Certificate”
means a certificate substantially in the form of Exhibit D.


 


“Consolidated EBITDA”
means, for any period, for the Borrowers and their Restricted Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such


 


6

















 


period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) pre-opening expenses during
such period, (ii) prepayment penalties and expenses incurred in connection
with the Transaction during such period, (iii) Consolidated Interest
Charges for such period, (iv) depreciation and amortization expense during
such period, (v) other extraordinary noncash charges of the Borrowers and
their Restricted Subsidiaries during such period, and (vi) extraordinary
losses during such period, and minus (b) the following to the
extent included in calculating such Consolidated Net Income:
(i) consolidated interest income of the Borrowers and their Restricted
Subsidiaries for such period, (ii) all non-cash items increasing Consolidated
Net Income for such period, and (iii) extraordinary gains during such
period.


 


“Consolidated Fixed
Charges Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending
on such date minus all Maintenance Capital Expenditures, permitted tax
distributions pursuant to Section 7.06(b) and other permitted
distributions during such period to
(b) the sum of all Consolidated Interest Charges and all payments of
principal required to be made during such period by the Borrowers and their
Restricted Subsidiaries.


 


“Consolidated Interest
Charges” means, for any period, for the Borrowers and their Restricted
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrowers
and their Restricted Subsidiaries paid in cash in connection with borrowed
money or in connection with the deferred purchase price of assets, in each case
to the extent treated as interest in accordance with GAAP, and (b) the
portion of rent expense of the Borrowers and their Restricted Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP.


 


“Consolidated Net Income”
means, for any period, for the Borrowers and their Restricted Subsidiaries on a
consolidated basis, the net income of the Borrowers and their Restricted
Subsidiaries from continuing operations (excluding extraordinary gains and any
extraordinary losses) for that period.


 


“Consolidated Senior
Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Total Indebtedness as of such date minus
Subordinated Debt as of such date to (b) Consolidated EBITDA for the
period of four fiscal quarters ended on such date.


 


“Consolidated Total
Indebtedness” means, as of any date of determination, for the Borrowers and
their Restricted Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments,
(d) all obligations in respect of the deferred purchase price of property
or services (other than trade accounts payable in the ordinary course of
business), (e) Attributable Indebtedness in respect of capital leases,
(f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Borrowers or any Restricted Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited


 


7

















 


liability company) in which the Borrowers or a Restricted Subsidiary is
a general partner or joint venturer and as such, Borrowers or such Restricted
Subsidiary is generally liable for its debts, or where unless such Indebtedness
is expressly made non-recourse to the Borrowers or such Restricted Subsidiary.


 


“Consolidated Total
Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four fiscal
quarters ended on such date.


 


“Construction Consultant”
means Professional Associates Construction Services, or any other Person
designated from time to time by the Administrative Agent to serve as the
Construction Consultant hereunder


 


“Contractual Obligation”
means, 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” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.


 


“CPI” means the
Consumer Price Index, Urban Wage Earners and Clerical Workers for West Urban,
all items (1982-1984=100), as published by the Bureau of Labor Statistics
of the United States Department of Labor. 
If the CPI is calculated from a base different from the base period 1982-84 = 100,
such CPI shall be converted to a base period of 1982-84 = 100
by use of a conversion factor supplied by said Bureau of Labor Statistics.  If the CPI is discontinued or replaced during
the term, such other comparable governmental cost of living index or
computation which replaces the CPI shall be use in order to obtain
substantially the same result as would be obtained if the CPI had not been
discontinued or replaced.


 


“CUP Agreement” means
that certain First Amendment and Restatement of Contribution and Unit Purchase
Agreement, dated as of September 23, 2005, by and among William J.
Paulos, William C. Wortman, Millennium Gaming, Inc., a Nevada corporation,
Cannery Casino Resorts, LLC, a Nevada limited liability company, MGIM, LLC, a
Nevada limited liability company, NP Land, LLC, a Nevada limited liability
company, WCW Landco, LLC, a Nevada limited liability company, OCM InvestCo,
LLC, a Nevada limited liability company, OCM AcquisitionCo, LLC, a Nevada
limited liability company, and OCM LandCo, LLC, a Delaware limited liability
company.


 


“Debtor Relief Laws”
means 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.


 


8

















 


“Deed of Trust” means
each Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Financing Statement, executed and delivered pursuant to Section 4.01(a)(iv),
6.15 or 6.20 as amended, supplemented, restated or otherwise
modified from time to time.


 


“Default” means any
event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit Fees, an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate,
if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.


 


“Defaulting Lender”
means any Lender that (a) has failed to fund any portion of the Committed
Loans, participations in L/C Obligations, L/C Advances, or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property (exclusive of ordinary course
gaming payouts) by any Person, including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable
or any rights and claims associated therewith.


 


“Dollar” and “$”
mean lawful money of the United States.


 


“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any political
subdivision of the United States.


 


“Effective Date”
means the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section 10.01 and the first
Borrowing is made.


 


“Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)
any other Person (other than a natural person) approved by (i) the
Administrative Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless
an Event of Default has occurred and is continuing, the Borrowers (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries.


 


“Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment and
natural resources, or the release of any materials into the


 


9

















 


environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.


 


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Borrowers, any other Loan Party or any of their respective Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.


 


“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable with such Person
for shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, options or rights for the purchase or acquisition from such
Person of such securities (or such other interests), and all of the other
ownership or profit interests in such Person (including partnership, member or
trust interests therein), whether voting or nonvoting.


 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Borrowers within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).


 


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


 


“Esquire” means
Esquire, Ltd., Inc., a Nevada corporation.


 


“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA


 


10

















 


LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at
such time for any reason, then the “Eurodollar Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.


 


“Eurodollar Rate Loan”
means a Committed Loan that bears interest at a rate based on the Eurodollar
Rate.


 


“Event of Default”
has the meaning specified in Section 8.01.


 


“Excess Cash Flow”
means, for any period, (a) Consolidated EBITDA for that period, plus
(b) Net Cash Proceeds from any Disposition of assets during that period
(other than Dispositions permitted by Sections 7.05(a) through 7.05(e)
and Section 7.05(g)), minus (c) Capital Expenditures made in
cash during that period (other than (i) Capital Expenditures made at the
Third Closing to acquire certain non-land assets related to the Nevada Palace,
acquire an option for certain real estate (or alternatively, acquire such real
estate related to the Nevada Palace) and make a security deposit for the right
to lease certain real estate assets held by NP Land, and Capital Expenditures
to finance other acquisitions during that period of new gaming and resort
properties that are permitted or consented to hereunder in an aggregate amount
not to exceed $75,000,000 during the term of this Agreement), minus
(d) Consolidated Interest Charges for that period, minus
(e) Restricted Payments permitted under Section 7.06(d) made
during that period, plus (f) any decrease (or minus any increase)
in the Borrowers’ working capital during that period, minus (g) any
repayments with respect to the Term Loan (whether voluntary or mandatory) made
during that period, minus (h) any mandatory prepayments with
respect to the Aggregate Revolving Commitments during such period which require
a concurrent reduction in the amount of the Aggregate Revolving Commitments,
minus (i) any pre-opening expenses during such period, and minus
(j) prepayment penalties and expenses incurred in connection with the
Transaction during such period.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer,
the Swing Line Lender, or any other recipient of any payment to be made by or
on account of any obligation of the Borrowers hereunder or under the Fee
Letter, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrowers are
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrowers under Section 10.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party


 


11

















 


hereto (or designates a new Lending Office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, immediately prior to the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding tax
pursuant to Section 3.01(a).


 


“Existing Credit
Agreement” means that certain Credit Agreement dated as of
September 28, 2004 among the Borrowers, The CIT Group, as agent, and a
syndicate of lenders.


 


“Existing Owner” means
each of Bill Paulos and Bill Wortman.


 


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


 


“Fee Letter” means
the letter agreement, dated August 9, 2005, among Millennium, CCR, OCM
InvestCo, LLC, the Administrative Agent and the Arranger.


 


“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrowers are resident for tax purposes.  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


“FRB” means the Board
of Governors of the Federal Reserve System of the United States.


 


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


 


“GAAP” means
generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.


 


“Gaming Board” means
any governmental agency that holds regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by the Borrowers or any of
their Subsidiaries within its jurisdiction.


 


12

















 


“Gaming Laws” means
all Laws pursuant to which any Gaming Board possesses regulatory, licensing or
permit authority over gambling, gaming or casino activities conducted by the
Borrowers or any of their Subsidiaries within its jurisdiction.


 


“Gaming License”
means any license, permit, franchise, finding of suitability, registration or
other authorization issued by or from any Gaming Board under Gaming Laws that
is required to own, lease, operate or otherwise conduct the gaming business of
the Borrowers or any of their Subsidiaries or to own an interest in the
Borrowers or any of their Subsidiaries that conducts a gaming business.


 


“Governmental Authority”
means the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Granting Lender” has
the meaning specified in Section 10.06(h).


 


“Guarantee” means, as
to any Person, any (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other financial obligation payable or performable by another Person (the
“primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or financial performance thereof or to protect
such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guarantors” means,
collectively, Millennium, MGIM (which shall be released as a Guarantor as of
the Third Closing), OCM (only as of the Third Closing), Esquire (which shall be
released as a Guarantor as of the Third Closing) and any other Significant
Subsidiary of CCR; provided, however, that recourse to each of
Millennium, MGIM and OCM shall be limited to their Equity Interests in CCR
pledged pursuant to the Pledge Agreement and that recourse to


 


13

















 


Esquire shall be limited to the amount of all Investments made by the
Borrowers in or to Esquire after the Effective Date.


 


“Guaranty” means the
Guaranty made by the Guarantors in favor of the Administrative Agent and the
Lenders, substantially in the form of Exhibit F-1 or F-2, as
appropriate.


 


“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.


 


“Hazardous Materials
Indemnity” means that certain Hazardous Materials Indemnity executed and
delivered pursuant to Section 4.01(a)(xii), as amended, supplemented,
restated or otherwise modified from time to time.


 


“In Balance” will be
deemed to exist when the available Revolving Commitments, cash on hand in
excess of the greater of (x) $20,000,000 or (y) cash required to be
maintained by the Borrowers under Gaming Laws, unused availability under
committed credit facilities and Projected Free Cash Flow of the Borrowers and
their Restricted Subsidiaries equal or exceed the aggregate of, without
duplication, (i) the costs required to achieve Completion; (ii) all
retainage amounts; and (iii) the amount of all reserves and contingencies
reasonably determined by the Construction Consultant to be necessary, as such
costs and amounts may be reasonably estimated by the Administrative Agent after
consultation with the Construction Consultant from time to time.


 


“Increase Effective Date”
has the meaning specified in Section 2.14.


 


“Increase Option Amount”
has the meaning specified in Section 2.14(a).


 


“Indebtedness” means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)                                  all obligations of such Person for borrowed
money and all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;


 


(b)                                 all direct or contingent obligations of such
Person arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)                                  net obligations of such Person under any Swap
Contract;


 


(d)                                 all obligations of such Person to pay the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business);


 


14

















 


(e)                                  indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(f)                                    capital leases and Synthetic Lease
Obligations;


 


(g)                                 all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and


 


(h)                                 all Guarantees of such Person in respect of
any of the foregoing.


 


For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such
Person.  The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date.  The
amount of any capital lease or Synthetic Lease Obligation as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Indemnitees” has the
meaning specified in Section 10.04(b).


 


“Information” has the
meaning specified in Section 10.07.


 


“Interest Payment Date”
means, (a) as to any Loan other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and the applicable Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b)
as to any Base Rate Loan (including a Swing Line Loan), the last Business Day
of each March, June, September and December and the applicable Maturity Date.


 


“Interest Period”
means, as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrowers in their Committed Loan Notice; provided that:


 


(i)                                     any Interest Period that would otherwise end
on a day that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;


 


(ii)                                  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


 


15

















 


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; and


 


(iii)                               no Interest Period shall extend beyond the
applicable Maturity Date.


 


“InvestCo” means OCM
InvestCo, LLC, a Nevada limited liability company


 


“Investment” means,
as to any Person, any direct or indirect acquisition or investment by such
Person in another Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of such other Person, (b) a
loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, such other Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the
investor Guarantees Indebtedness of such other Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.


 


“IP Rights” has the
meaning specified in Section 5.17.


 


“IRS” means the
United States Internal Revenue Service.


 


“ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).


 


“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Borrowers (or any Restricted Subsidiary) or in favor of the L/C Issuer
and relating to any such Letter of Credit.


 


“Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


 


“L/C Advance” means,
with respect to each Revolving Lender, such Revolving Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.


 


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


 


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


 


16

















 


“L/C Issuer” means
Bank of America in its capacity as issuer of Letters of Credit hereunder, or
any successor issuer of Letters of Credit hereunder.


 


“L/C Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Lease Termination
Payment” has the meaning specified in Section 2.07(b)(F).


 


“Lender” has the
meaning specified in the introductory paragraph hereto and, as the context
requires, includes the Swing Line Lender.


 


“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time specify by notice to the Borrowers and the
Administrative Agent.


 


“Letter of Credit”
means any standby letter of credit issued hereunder.


 


“Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


 


“Letter of Credit
Expiration Date” means the day that is seven days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day).


 


“Letter of Credit Fee”
has the meaning specified in Section 2.03(i).


 


“Letter of Credit
Sublimit” means an amount equal to $15,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


“License Revocation”
means the revocation, failure to renew or suspension of, or the appointment of
a receiver, supervisor or similar official with respect to any casino,
gambling, gaming or liquor license issued by any Gaming Board or applicable
Governmental Authority covering any casino or gaming facility.


 


“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title
to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).


 


“Loan” means an
extension of credit by a Lender to the Borrowers under Article II in the form
of a Committed Loan or a Swing Line Loan.


 


17

















 


“Loan Documents”
means this Agreement, each Note, each Issuer Document, the Fee Letter, the
Security Agreement, the Pledge Agreement, the Deeds of Trust, the Hazardous
Materials Indemnity, the Subordination Agreement, the Security Interest
Subordination Agreement and the Guaranty.


 


“Loan Parties” means,
collectively, the Borrowers and each Guarantor.


 


“Maintenance Capital
Expenditures” means Capital Expenditures for the maintenance, repair,
restoration or refurbishment of tangible property, but excluding any
Capital Expenditures which adds to or significantly improves any such property.


 


“Mandatory Payments”
has the meaning specified in Section 2.07(b).


 


“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent) or
condition (financial or otherwise) of the Borrowers and their Restricted
Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which
it is a party.


 


“Maturity Date” means
the date that is 5 years after the Effective Date.


 


“Meadows Holdings”
means PA MezzCo, LLC, a Delaware limited liability company.


 


“MGIM” means MGIM,
LLC, a Nevada limited liability company.


 


“MGIM Obligations”
means, with respect to MGIM’s property (including its Equity Interests in CCR),
the obligations of MGIM to InvestCo and its successors arising from the pledge
and security agreements and guarantees it shall execute in InvestCo’s favor
pursuant to the CUP Agreement and the loans by InvestCo to MGIM as contemplated
therein.


 


“Millennium” means
Millennium Gaming, Inc., a Nevada corporation.


 


“Multiemployer Plan”
means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrowers or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.


 


“Net Cash Proceeds”
means:


 


(a)                                  with respect to the sale of any asset by the
Borrowers or any of their Restricted Subsidiaries, the excess, if any, of (i)
the sum of cash and cash equivalents received in connection with such sale
(including any cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness
that is secured by such asset and that is required to be repaid in connection
with the sale thereof (other than Indebtedness under the Loan Documents), (B)
the out-of-pocket expenses incurred by the Borrowers or any such Subsidiary in


 


18

















 


connection with such sale and (C) income taxes reasonably estimated to
be actually payable within two years of the date of the relevant asset sale as
a result of any gain recognized in connection therewith; and


 


(b)                                 with respect to the sale of any Equity
Interest or Indebtedness, the excess of (i) the sum of the cash and cash
equivalents received in connection with such sale over (ii) the
underwriting discounts and commissions, fees and other out-of-pocket expenses,
incurred by the Borrowers in connection with such sale.


 


“Nevada Palace, LLC”
has the meaning specified in the introductory paragraph hereof.


 


“Nevada Palace” means
the Nevada Palace casino which is located on Boulder Highway in Las Vegas,
Nevada.


 


“Nevada Palace Lease”
means that certain lease agreement to be entered into at the Third Closing by
and between NP Land, as landlord, and Nevada Palace, LLC, as tenant,
substantially in the form of Exhibit I, pursuant to which NP Land
will lease all of the real property owned by NP Land to Nevada Palace, LLC.


 


“Note” means a
promissory note made by the Borrowers in favor of a Lender evidencing Loans
made by such Lender, substantially in the form of Exhibit C-1, C-2
or C-3.


 


“NP” means Nevada
Palace, Inc., a Nevada corporation.


 


“Oaktree” means
Oaktree Capital Management, LLC, a California limited liability company.


 


“Oaktree Liens” means
the Liens on Millennium’s and MGIM’s Equity Interests in CCR, in favor of
InvestCo, OCM, and their successors and assigns, and arising from pledges in
support of loans made by InvestCo and OCM to MGIM to fund the purchase by MGIM
of a 331/3% ownership interest in CCR for $70 million, which Liens shall be
subordinated to the Liens in favor of the Administrative Agent on terms
reasonably acceptable to the Administrative Agent.


 


“Obligations” means
all advances to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any
Loan or Letter of Credit or of any Loan Party arising under any Swap Contract
with any Lender or Affiliate thereof, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“OCM” means OCM
AcquisitionCo., LLC, a limited liability company organized under the laws of
Nevada.


 


“Organization Documents”
means, (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to
any limited liability company, the


 


19

















 


certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust
or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.


 


“Other Taxes” means
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 under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.


 


“Outstanding Amount”
means (i) with respect to Committed Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans and Swing Line
Loans, as the case may be, occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrowers of Unreimbursed
Amounts, including L/C Borrowings.


 


“Participant” has the
meaning specified in Section 10.06(d).


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


“Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrowers or any ERISA Affiliate or to
which the Borrowers or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.


 


“Permitted Holders”
means the Existing Owners, OCM, or any Affiliate or principal thereof.


 


“Permitted Liens”
means, with respect to any property (i) reversionary interests of a lessor
under a lease of property, whether real or personal, tangible or intangible, or
(ii) Liens, or options or rights to acquire Liens, that are:


 


(a)                                  Liens pursuant to any Loan Document;


 


(b)                                 Liens existing on the date hereof and listed
on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or benefited
thereby is not increased, (iii) the direct or any contingent obligor with
respect thereto is not changed, and (iv) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);


 


20

















 


(c)                                  Liens for taxes, assessments or other
governmental charges or levies not yet delinquent or thereafter payable without
penalty not yet due or which are being contested in good faith and by
appropriate actions, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance, and to the extent required
by, with GAAP;


 


(d)                                 carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens (i) arising in the ordinary
course of business which are not overdue for a period of more than 60 days, or
(ii) which are being contested in good faith and by appropriate actions, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person, or (iii) which have been bonded or which the Title Company
has agreed to insure over, in either case in a manner satisfactory to the
Administrative Agent;


 


(e)                                  pledges or deposits in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by ERISA;


 


(f)                                    deposits to secure the performance of bids,
trade contracts and leases (other than Indebtedness), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;


 


(g)                                 inchoate Liens incident to construction or
maintenance of real property; or Liens incident to construction or maintenance
of real property now or hereafter filed of record for which adequate reserves
have been set aside and which are being contested in good faith by appropriate
actions and have not proceeded to judgment or which the Title Company has
agreed to insure over, provided that, by reason of nonpayment of the
obligations secured by such Liens, no material property is subject to a
material risk of loss or forfeiture;


 


(h)                                 easements, rights-of-way, restrictions and
other similar encumbrances affecting real property which, in the aggregate and
which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;


 


(i)                                     present or future zoning laws and ordinances
or other laws and ordinances restricting the occupancy, use, or enjoyment of
real property;


 


(j)                                     Liens securing writs of attachments or
similar instruments or judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);


 


(k)                                  Liens securing Indebtedness permitted under Sections 7.03(e)
and (g); provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition; and


 


(l)                                     the
Oaktree Liens.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


21

















 


“Plan” means any
“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrowers or, with respect to any such plan that is subject
to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.


 


“Plans and Specifications”
means all plans, specifications, design documents, schematic drawings and
related items for the design, architecture and construction of the Project that
are prepared by the Borrowers’ architect and approved by the Construction
Consultant.


 


“Platform” has the
meaning specified in Section 6.02.


 


“Pledge Agreement”
means the pledge agreement executed and delivered pursuant to Section 6.18,
as such agreement may be amended, supplemented, restated or otherwise modified
from time to time.


 


“Project” means the
construction of the Cannery II in accordance with the Plans and Specifications,
Timetable and Budget approved by the Construction Consultant.


 


“Projected Free Cash Flow”
means as of the last day of any fiscal quarter, the product of (a) 1⁄4 times
(b) Consolidated EBITDA for the four prior fiscal quarters ending on such
date minus Maintenance Capital Expenditures, permitted tax
distributions, Consolidated Interest Charges and principal payments during such
period times (c) the number of fiscal quarters from such date through and
including the date of Completion.


 


“Pro Rata Share”
means, with respect to any Commitment of Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the respective Commitment of such Lender at
such time and the denominator of which is the amount of the aggregate amount of
such Commitments at such time or, in the case of the Term Loan Lenders from and
after the Effective Date, a fraction (expressed as a percentage, carried out to
the ninth decimal place), the numerator of which is the amount of Term Loans of
such Term Loan Lender and the denominator of which is the Outstanding Amount of
all Term Loans; provided that if the commitment of each Revolving Lender
to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, then the Pro
Rata Share of each Revolving Lender shall be determined based on the Pro Rata
Share of such Revolving Lender immediately prior to such termination and after
giving effect to any subsequent assignments made pursuant to the terms hereof.


 


“Public Lender” has
the meaning specified in Section 6.02.


 


“Rampart” has the
meaning specified in the introductory paragraph hereof.


 


“Rampart Casino”
means the Rampart Casino which is leased by Rampart and located in Summerlin,
Nevada.


 


“Rampart Lease” means
that certain sublease agreement dated as of April 1, 2002 by and between
Hotspur Casinos Nevada, Inc., as lessor, and Rampart, as lessee, in respect of
the Rampart Casino, as the same may be amended pursuant to Section 7.07
hereof.


 


22

















 


“Register” has the
meaning specified in Section 10.06(c).


 


“Registered Public
Accounting Firm” has the meaning specified in the Securities Laws and shall
be independent of the Borrowers as prescribed by the Securities Laws.


 


“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.


 


“Replacement Project”
means, if the Borrowers shall elect not to develop the Cannery II, a Venture
identified by the Borrowers and submitted to the Administrative Agent and the
Lenders for approval in accordance with the provisions of Section 6.02(g)
hereof.


 


“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.


 


“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required Lenders”
means, as of any date of determination, Lenders having more than 50% of the sum
of (i) the Aggregate Revolving Commitments and (ii) prior to the Effective
Date, the Term Loan Commitments and thereafter the aggregate Outstanding Amount
of all Term Loans or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more
than 50% of the Total Outstandings (with the aggregate amount of each Lender’s
risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.


 


“Required Revolving
Lenders” means, as of any date of determination, Revolving Lenders having
more than 50% of the Aggregate Revolving Commitments or, if the commitment of
each Revolving Lender to make Revolving Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section
8.02, Revolving Lenders holding in the aggregate more than 50% of the Total
Revolving Outstandings (with the aggregate amount of each Revolving Lender’s
risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Revolving Lender for purposes of this definition);
provided that the Commitment of, and the portion of the Total Revolving
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Revolving Lenders.


 


“Responsible Officer”
means the chief executive officer, president, chief financial officer,
treasurer or assistant treasurer, managing member or manager (or such manager’s
authorized designee) of a Loan Party. 
Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by


 


23

















 


all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Loan Party.


 


“Restricted Indebtedness”
means (i) any Subordinated Debt in excess of $125,000,000 and
(ii) any other Indebtedness of a Loan Party, in each case not otherwise
permitted hereunder but the terms and provisions of which have been approved by
the Required Lenders.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of the
Borrowers or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrowers’ stockholders, partners or
members (or the equivalent Person thereof) or any payment of management,
advisory or similar fees to any shareholder of the Borrowers or any Affiliate
thereof.


 


“Restricted Subsidiary”
means each Subsidiary of the Borrowers that is not an Unrestricted Subsidiary.


 


“Revolving Commitment”
means, as to each Revolving Lender, its obligation to (a) make Revolving
Loans to the Borrowers pursuant to Section 2.01(b), (b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Revolving
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.  The Revolving Commitments may be increased in
accordance with Section 2.14.


 


“Revolving Lender”
means each Lender that holds a Revolving Commitment.


 


“Revolving Loan”
means each Loan made by a Revolving Lender under the Revolving Commitment.


 


“Revolving Note”
means the promissory note made by the Borrowers to a Revolving Lender
evidencing that Lender’s Pro Rata Share of the Revolving Commitment,
substantially in the form of Exhibit C-2, either as originally executed
or as the same may from time to time be supplemented, modified, amended,
renewed, extended or supplanted.


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


“Schiff Land Purchase”
means the exercise by CCR or a Restricted Subsidiary of that certain option to
purchase the Schiff Property and the purchase of the Schiff Property for $2.75
million by CCR, pursuant to the terms of the Schiff Lease-Option Agreement.


 


“Schiff Lease-Option
Agreement” shall mean that certain Lease-Option Agreement, dated as of
April 1, 1999, by and between Renate Schiff of Schiff Properties and NP and
Esquire.


 


24

















 


“Schiff
Property” means certain real property located in Clark County, Nevada,
together with all buildings, structures, facilities, fixtures, parking areas,
landscaping and other improvements thereto, that is
described in the Schiff Lease-Option Agreement.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Secured
Obligations” means, collectively, the Obligations and all obligations of
any Loan Party to any Lender or any Affiliate of a Lender under any Swap
Contracts.


 


“Secured
Parties” means, collectively, the Lenders, any Affiliate or any Lender that
is a party to any Swap Contract with a Borrower and the Administrative Agent.


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the foregoing may
be amended and in effect on any applicable date hereunder.


 


“Security
Agreement” means the security agreement executed and delivered pursuant to Section
4.01(a)(iii), as such agreement may be amended, supplemented, restated or
otherwise modified from time to time, which will cover all of the personal
property and rights described therein that can be pledged without the consent
of any third party; provided, however, that recourse to each of
Millennium, MGIM, and OCM shall be limited to their Equity Interests in CCR
pledged pursuant to the Pledge Agreement and that recourse to Esquire shall be
limited to the amount of such Person's loan from InvestCo.


 


“Significant
Subsidiary” means each Restricted Subsidiary (including such Restricted
Subsidiary’s interest in its direct and indirect Restricted Subsidiaries) of
CCR that


 


(a)                                  is
designated with an asterisk in Schedule 5.13;


 


(b)                                 accounted
for at least 5% of consolidated revenues of CCR and its Restricted Subsidiaries or 5% of Consolidated
EBITDA of CCR and its Restricted Subsidiaries
in each case for the four fiscal quarters of CCR ending on the last day of the
last fiscal quarter of CCR immediately preceding the date as of which any such
determination is made; or


 


(c)                                  has
assets which represent at least 5% of the consolidated assets of CCR and its Restricted Subsidiaries as
of the last day of the last fiscal quarter of CCR immediately preceding the
date as of which any such determination is made,


 


all of which,
with respect to clauses (b) and (c), shall be as reflected on the financial
statements of CCR for the period, or as of the date, in question, adjusted for
the pro forma effect of any Restricted
Subsidiary acquired (or disposed of) by CCR during such period or
concurrently with the date as of which such determination is made.  No Unrestricted Subsidiary shall ever be a
Significant Subsidiary.


 


25

















 


“SPC”
has the meaning specified in Section 10.06(h).


 


“Subordinated
Debt” means all unsecured Indebtedness of the Borrowers for money borrowed,
the terms of which shall require no principal payments thereon prior to the six
month anniversary of the Maturity Date and shall otherwise be reasonably
satisfactory to the Required Lenders and which shall be subordinated, upon
terms reasonably satisfactory to the Required Lenders, in right of payment to
the payment in full in cash of all Obligations.


 


“Subordination
Agreement” means that certain subordination agreement executed and
delivered pursuant to Section 4.01(a)(xxi), as such agreement may
be amended, supplemented, restated or otherwise modified from time to time.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time beneficially
owned by such Person.  Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrowers.


 


“Swap
Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


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


 


“Swing
Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.


 


26

















 


“Swing
Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.


 


“Swing
Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.


 


“Swing
Line Loan” has the meaning specified in Section 2.04(a).


 


“Swing
Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.


 


“Swing
Line Note” means the promissory note made by the Borrowers to the Swing
Line Lender, substantially in the form of Exhibit C-3, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplemented.


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $10,000,000
and (b) the Aggregate Revolving
Commitments.  The Swing Line Sublimit is
part of, and not in addition to, the Aggregate Revolving Commitments.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“Tax Amount”
means, (a) with respect to any period ending on or prior to the Third Closing,
an amount equal to the estimated federal income taxes attributable to the
members' distributive share of CCR's taxable income (taking into account both
items separately stated under Code §702(a)(1) through (7) and non-separately
stated items under Code §702(a)(8)) applying a forty percent (40%) marginal tax
rate, and (b) relative to any period ending on or after the Third Closing, an
amount equal to (i) the lowest aggregate amount of distributions to members of
CCR (based on pro rata distributions to the members) such that each member
receives an amount sufficient to equal (x) the amount of taxable income
allocated to such member of CCR in respect of such period (taking into account
any Code § 704(c) items and annualizing the estimated taxable income (excluding
extraordinary items, which shall be taken into account separately) for
distributions with respect to periods of less than a fiscal year), multiplied
by (y) the highest maximum combined marginal federal, state and local income
tax rates to which any member of CCR may be subject (taking into account the
deductibility of state income tax for federal income tax purposes), plus (ii)
an additional amount (distributed to the CCR members pro rata in the proportion
to their percentage interests under the CCR operating agreement) such that,
after giving effect to distributions of such additional amount, each member of
CCR will satisfy the safe harbor for estimated tax payments based on prior year
tax liability under Code §§ 6654 or 6655 (and analogous state or local
provisions) assuming that each member’s only income were from CCR.


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


27

















 


“Term Loan”
has the meaning set forth in Section 2.01(a).


 


“Term Loan
Commitment” means, as to each Term Loan Lender, the commitment of that
Lender to make its Term Loan.  As of the
Closing Date, the aggregate Term Loan Commitment is $110,000,000 and the
respective Pro Rata Shares of the Term Loan Lenders with respect to the Term
Loan Commitment are set forth in the records of the Administrative Agent.  The Term Loan Commitment may be increased in
accordance with Section 2.14.


 


“Term Loan
Lender” means each Lender that holds a Term Loan and/or a Term Loan
Commitment.


 


“Term Note”
means the promissory note made by the Borrowers to a Term Loan Lender
evidencing that Lender’s Pro Rata Share of the Term Loan Commitment,
substantially in the form of Exhibit C-1, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.


 


“Third
Closing” means the first date on which all of the
following have been completed: 
(a) CCR has completed its purchase of certain non-land assets
related to Nevada Palace and its contribution of such assets to Nevada Palace,
LLC, (b) CCR or a Restricted
Subsidiary shall have entered into the Nevada Palace Lease and shall have paid
a security deposit of $3,000,000 plus interest to NP Land, LLC in connection
therewith, (c) NP Land, LLC shall be owned 662/3%
by Bill Wortman or his Affiliates and 331/3%
by OCM or its Affiliates, (d) OCM has completed its acquisition of 331/3% of the Equity Interests of CCR from MGIM through the
exchange of its $64 million bridge loan to MGIM for Equity Interests in
CCR, and (e) the Administrative Agent shall have received all of the
following:  (i) a Deed of Trust, an
ALTA lender title insurance policy in favor of the Administrative Agent on
behalf of the Secured Parties in an amount equal to $18,000,000, subject to
Permitted Liens and otherwise in form and substance satisfactory to the
Administrative Agent and issued by the Title Company, and other documentation
required by Sections 4.01(a)(v) and (vii) hereof from Nevada
Palace, LLC in respect of its leasehold interests in the Nevada Palace,
together with a joinder to the Hazardous Materials Indemnity and all other
documentation required thereunder including a so-called “phase one”
environmental audit for the real property to be encumbered by such Deed of
Trust, (ii) legal opinions in form and substance satisfactory to the Administrative
Agent, as to the matters set forth in Exhibit H, and (iii) an
estoppel agreement, in a form reasonably acceptable to the Administrative Agent
and the Required Lenders from the fee owner of the Nevada Palace.


 


“Timetable”
means the schedule for construction and Completion of the Project which has
been prepared by the Borrowers and approved by the Construction Consultant.


 


“Title
Company” means Nevada Title Company or such other title insurance company
as may be reasonably acceptable to the Administrative Agent.


 


“Title
Policy” is defined in Section 4.01(a)(iv).


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all
L/C Obligations.


 


28

















 


“Total
Revolving Outstandings” means the aggregate Outstanding Amount of all
Revolving Loans, Swing Line Loans and all L/C Obligations.


 


“Transaction”
means all of the following:  (i) the
redemption of Renate Schiff’s 60% ownership interest in NP and Esquire for
approximately $14.9 million, financed through bridge loans made by
InvestCo and OCM, (ii) the purchase by an affiliate of Millennium of a 331/3% ownership interest in CCR for $70 million,
financed through bridge loans made by OCM and InvestCo, (iii) the purchase
by CCR of certain non-land assets related to Nevada Palace, and the assumption
by CCR of certain debt related to Nevada Palace, for approximately
$7.6 million plus interest, (iv) the repayment of a bridge loan of up
to $6.0 million made by InvestCo to help finance the purchase in (ii)
above, (v) the refinancing of approximately $109.6 million of
existing debt (including prepayment penalties) of CCR, (vi) the exchange
of a $64.0 million bridge loan made by OCM to help finance the purchase in
(ii) above for the 331/3% ownership interest in CCR
acquired in (ii) above, (vii) the payment of a $3 million, plus
interest, security deposit to NP Land, LLC in connection with the Lease,
(viii) the exchange of an approximately $4.3 million bridge loan made
by OCM to help finance the redemption referenced in (i) above, for a 331/3% ownership interest in NP Land, LLC, (ix) the
payment of related transaction costs in connection with the foregoing and
(x) the financing to the Borrowers under this Agreement.


 


“Type”
means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


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


 


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


 


“Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).


 


“Unrestricted
Subsidiary” means Meadows Holdings and each of its Subsidiaries, so long as
the business of Meadows Holdings and such Subsidiaries is limited to the
acquisition, development, ownership, management and operation of the Meadows
race track and casino in Pittsburgh, Pennsylvania and activities incidental
thereto.


 


“Venture”
means any casino, hotel, casino/hotel, resort, resort/hotel, riverboat,
riverboat/dockside casino, horse racing track, entertainment center or similar
facility (or any site or proposed site for any of the foregoing), and any and
all reasonably related businesses necessary for, in support, furtherance or
anticipation of and/or ancillary to or in preparation for, any such business,
including off-track betting facilities and golf courses.


 


“Voting
Stock” means securities of any class or classes of any Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for
corporate directors (or Persons performing equivalent functions).


 


1.02                        Other Interpretive Provisions. 
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:


 


29

















 


(a)                                  The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a
Loan Document to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


 


(b)                                 In the computation of periods of time
from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to
but excluding;” and the word “through” means “to and including.”


 


(c)                                  Section headings herein and in the other
Loan Documents are included for convenience of reference only and shall not
affect the interpretation of this Agreement or any other Loan Document.


 


1.03                        Accounting Terms.  (a) Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement not specifically or
completely defined herein shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.


 


(b)                                 Changes in GAAP. 
If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrowers or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrowers shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided  that,
until so amended, (i) such ratio or requirement shall continue to be computed
in accordance with GAAP prior to such change therein and (ii) the
Borrowers shall 


 


30

















 


provide
to the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


 


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


 


1.05                        Times of Day.  Unless otherwise specified, all
references herein to times of day shall be references to Pacific time (daylight
or standard, as applicable).


 


1.06                        Letter of Credit Amounts. 
Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time less amounts that have been drawn prior to such time and not reinstated; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.


 


ARTICLE II.

the COMMITMENTS and Credit Extensions


 


2.01                        Committed Loans.


 


(a)                                  Subject to the terms and conditions set
forth herein, each Term Loan Lender severally agrees to lend to the Borrowers
its Pro Rata Share of the Term Loan Commitment (each individually, a “Term
Loan” and, collectively, the “Term Loans”).  Subject to Section 2.14, the Term
Loans shall be made by the Term Loan Lenders in a single Borrowing on the
Effective Date and shall be made by the Term Loan Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
no Term Loan Lender shall be responsible for any failure by any other Term Loan
Lender to perform its obligation to make any Term Loan hereunder nor shall the
Term Loan Commitment of any Term Loan Lender be increased or decreased as a
result of any such failure.  Once repaid,
Term Loans may not be reborrowed.


 


(b)                                 Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make Revolving Loans to the
Borrowers from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender’s Revolving Commitment; provided, however, that
after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
and (ii) the aggregate Outstanding Amount of the Revolving Loans of any
Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Revolving


 


31

















 


Commitment.  Within the limits of each Revolving Lender’s
Revolving Commitment, and subject to the other terms and conditions hereof, the
Borrowers may borrow under this Section 2.01(b), prepay under Section 2.05,
and reborrow under this Section 2.01(b).  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


 


2.02                        Borrowings, Conversions and Continuations
of Committed Loans.


 


(a)                                  Each Committed Borrowing, each conversion
of Committed Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrowers’ irrevocable notice to
the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed
Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed
Loans.  Each telephonic notice by the Borrowers
pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrowers.  Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof.  Each
Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrowers are requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted, (v) whether the Borrowing is to be of
Term Loans or Revolving Loans, (vi) the Borrower that will receive the
proceeds of the Borrowing and (vii) if applicable, the duration of the
Interest Period with respect thereto.  If
the Borrowers fail to specify a Type of Committed Loan in a Committed Loan
Notice or if the Borrowers fail to give a timely notice requesting a conversion
or continuation, then new borrowings of applicable Committed Loans shall be
made as Base Rate Loans and previously outstanding Committed Loans will continue
as the same Type with an Interest Period of one month.  If the Borrowers request a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fail to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


 


(b)                                 Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender that holds a
Commitment for the type of Loan requested of the amount of its Pro Rata Share
of the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrowers, the Administrative Agent shall
notify each applicable Lender of the details of any automatic continuation of
Loans described in the preceding subsection. 
In the case of a Committed Borrowing, each Lender that holds a
Commitment for the type of Loan requested shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02


 


32

















 


(and,
if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the
Borrowers in like funds as received by the Administrative Agent by crediting an
account of the Borrowers on the books of the Administrative Agent with the
amount of such funds; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by the Borrowers,
there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and second,
shall be made available to the Borrowers as provided above.


 


(c)                                  Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan. 
During the existence of a Default, no Term Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the consent of the
Term Loan Lenders holding more than 50% of the outstanding Term Loans and no
Revolving Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Required Revolving Lenders.


 


(d)                                 The Administrative Agent shall promptly
notify the Borrowers and the Lenders funding such Loans of the interest rate
applicable to any Interest Period for Eurodollar Rate Loans upon determination
of such interest rate.  At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrowers and the Lenders holding such Loans of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public
announcement of such change.


 


(e)                                  After giving effect to all Committed
Borrowings, all conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there shall not be more
than ten Interest
Periods in effect with respect to Committed Loans.


 


2.03                        Letters of Credit.


 


(a)                                  The Letter of Credit Commitment.


 


(i)                                     Subject to the terms and conditions set
forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
other Revolving Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Effective Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrowers or their Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings under
the Letters of Credit; and (B) the Revolving Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrowers or
their Restricted Subsidiaries and
any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Lender’s Commitment (except, with
respect to the Swing Line Lender, as permitted pursuant to Section 2.04(a)),
and (z) the Outstanding


 


33

















 


Amount of the L/C Obligations shall not
exceed the Letter of Credit Sublimit. 
Each request by the Borrowers for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrowers that the L/C
Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. 
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.  


 


(ii)                                  The L/C Issuer shall not issue any Letter
of Credit, if:


 


(A)                              subject
to Section 2.03(b)(iii), the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required Revolving Lenders
have approved such expiry date; or


 


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


 


(iii)                               The L/C Issuer shall not be under any
obligation to issue any Letter of Credit if:


 


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


 


(B)                                the issuance of such Letter of Credit
would violate any Laws or one or more policies of the L/C Issuer;


 


(C)                                except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial
stated amount less than $500,000;


 


(D)                               such Letter of Credit is to be
denominated in a currency other than Dollars;


 


(E)                                 such
Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or


 


34

















 


(F)                                 a
default of any Revolving Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with the Borrowers or
such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.


 


(iv)                              The L/C Issuer shall be under no
obligation to amend any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.


 


(v)                                 The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the L/C Issuer.


 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension Letters of Credit.


 


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


 


35

















 


(ii)                                  Promptly after receipt of any Letter of
Credit Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of such Letter of Credit Application from the Borrowers and, if not, the L/C
Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from any Revolving Lender, the Administrative Agent or any Loan Party,
at least one Business Day prior to the requested date of issuance or amendment
of the applicable Letter of Credit, that one or more applicable conditions
specified in Section 4.02 is not then satisfied, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrowers (or any
of them, or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be,
in each case in accordance with the L/C Issuer’s usual and customary business
practices.  Immediately upon the issuance
of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Letter of Credit.


 


(iii)                               If
the Borrowers so request in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit the L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the Borrowers shall not be required to make a specific request to the L/C
Issuer for any such extension.  Once an
Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later than
the Letter of Credit Expiration Date; provided, however, that the
L/C Issuer shall not permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of Section
2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before
the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Revolving Lender or the Borrowers that one
or more of the applicable conditions specified in Section 4.02 is not
then satisfied, and in each such case directing the L/C Issuer not to permit
such extension.


 


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


 


36

















 


(c)                                  Drawings and Reimbursements; Funding of
Participations.


 


(i)                                     Upon receipt from the beneficiary of any
Letter of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrowers and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrowers shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.  If the Borrowers fail to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Revolving Lender’s Pro
Rata Share thereof.  In such event, the
Borrowers shall be deemed to have requested a Committed Borrowing of Base Rate
Loans under the Revolving Commitment to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.


 


(ii)                                  Each Revolving Lender shall upon any
notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Revolving Lender that so makes funds available shall be
deemed to have made a Base Rate Committed Loan to the Borrowers in such
amount.  The Administrative Agent shall
remit the funds so received to the L/C Issuer.


 


(iii)                               With respect to any Unreimbursed Amount
that is not fully refinanced by a Committed Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be satisfied or
for any other reason, the Borrowers shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Revolving Lender in satisfaction of its participation obligation under
this Section 2.03.


 


(iv)                              Until each Revolving Lender funds its
Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


37

















 


(v)                                 Each Revolving Lender’s obligation to
make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the L/C Issuer, the Borrowers or
any other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Revolving Lender’s obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrowers of a Committed Loan Notice).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrowers to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.


 


(vi)                              If any Revolving Lender fails to make
available to the Administrative Agent for the account of the L/C Issuer any
amount required to be paid by such Revolving Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
Revolving Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a
rate determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation.  A certificate of
the L/C Issuer submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.


 


(d)                                 Repayment of Participations.


 


(i)                                     At any time after the L/C Issuer has made
a payment under any Letter of Credit and has received from any Revolving Lender
such Lender’s L/C Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the L/C
Issuer any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrowers or otherwise, including proceeds
of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Revolving Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.


 


(ii)                                  If any payment received by the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)
is required to be returned under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the L/C Issuer
in its discretion), each Revolving Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Revolving Lender, at a rate per annum
equal


 


38

















 


to
the Federal Funds Rate from time to time in effect.  The obligations of the Revolving Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)                                  Obligations Absolute.  The obligation of the Borrowers to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following (without prejudice to any rights the
Borrowers may have against such L/C Issuer for the same, but subject to the
limitations hereafter set forth):


 


(i)                                     any lack of validity or enforceability of
such Letter of Credit, this Agreement, or any other Loan Document;


 


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


 


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


 


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


 


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


 


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


 


(f)                                    Role of L/C Issuer.  Each Revolving Lender and the
Borrowers agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required


 


39

















 


by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Revolving Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Revolving Lenders or the Required
Revolving Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. 
The Borrowers hereby assume all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude the Borrowers’ pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrowers which the Borrowers prove were caused by the L/C
Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any notice
or information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


(g)                                 Cash Collateral. 
Upon the request of the Administrative Agent, (i) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding,
the Borrowers shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. 
Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder.  For purposes of this Section 2.03, Section
2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Revolving Lenders). 
Derivatives of such term have corresponding meanings.  The Borrowers hereby grant to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked deposit accounts at the Administrative Agent.


 


40

















 


(h)                                 Applicability of ISP and UCP.  Unless otherwise expressly agreed
by the L/C Issuer and the Borrowers when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Letter of Credit, and
(ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial Letter of Credit.


 


(i)                                     Letter of Credit Fees. 
The Borrowers shall pay to the Administrative Agent for the account of
each Revolving Lender in accordance with its Pro Rata Share a Letter of Credit
fee (the “Letter of Credit Fee”) for
each Letter of Credit equal to the Applicable Rate times the daily
amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) computed on
a quarterly basis in arrears and (ii) due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand.  If there
is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.


 


(j)                                     Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer.  The Borrowers shall pay directly
to the L/C Issuer for its own account a fronting fee with respect to each
Letter of Credit, at the rate per annum specified in the Fee Letter, computed
on the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears.  Such
fronting fee shall be due and payable on the first Business Day after the end
of each March, June, September and December in respect of the most recently-ended quarterly period (or
portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  In addition, the Borrowers shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


(k)                                  Conflict with Issuer Documents. 
In the event of any conflict between the terms hereof and the terms of
any Issuer Document, the terms hereof shall control.


 


(l)                                     Letters
of Credit Issued for Restricted Subsidiaries.  Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Restricted Subsidiary, the Borrowers shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter
of Credit.  The Borrowers hereby
acknowledges that the issuance of Letters of Credit for the account of
Restricted Subsidiaries


 


41

















 


inures to the
benefit of the Borrowers, and that the Borrowers’ business derives substantial
benefits from the businesses of such Restricted Subsidiaries.


 


2.04                        Swing Line Loans.


 


(a)                                  The Swing Line. 
Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth
in this Section 2.04, to make loans (each such loan, a “Swing Line
Loan”) to the Borrowers from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Loans and L/C Obligations of the Revolving
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Revolving Lender (other than
the Swing Line Lender), plus such Revolving Lender’s Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Revolving
Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Revolving Commitment, and provided, further,
that the Borrowers shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. 
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender
a risk participation in such Swing Line Loan in an amount equal to the product
of such Revolving Lender’s Pro Rata Share times the amount of such Swing
Line Loan.


 


(b)                                 Borrowing Procedures. 
Each Swing Line Borrowing shall be made upon the Borrowers’ irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which shall be
a minimum of $100,000, and (ii) the requested borrowing date, which shall be a
Business Day.  Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrowers.  Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof.  Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B)
that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line


 


42

















 


Loan
Notice, make the amount of its Swing Line Loan available to the Borrowers at
its office by crediting the account of the Borrowers on the books of the Swing
Line Lender in immediately available funds.


 


(c)                                  Refinancing of Swing Line Loans.


 


(i)                                     The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrowers (which
hereby irrevocably authorize the Swing Line Lender to so request on its
behalf), that each Revolving Lender make a Base Rate Committed Loan in an
amount equal to such Revolving Lender’s Pro Rata Share of the amount of Swing
Line Loans then outstanding.  Such
request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Commitments and
the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrowers with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Revolving Lender shall make an amount
equal to its Pro Rata Share of the amount specified in such Committed Loan
Notice available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent’s Office not
later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so
makes funds available shall be deemed to have made a Base Rate Revolving Loan to
the Borrowers in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


(ii)                                  If for any reason any Swing Line Loan
cannot be refinanced by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Revolving Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Revolving Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of
such participation.


 


(iii)                               If any Revolving Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Revolving Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the
Swing Line Lender at a rate per annum equal to the greater of the Federal Funds
Rate and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation. 
A certificate of the Swing Line Lender submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.


 


43

















 


(iv)                              Each Revolving Lender’s obligation to
make Committed Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the Swing Line Lender, the Borrowers or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Revolving Lender’s obligation to make Committed Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrowers to repay Swing Line
Loans, together with interest as provided herein.


 


(d)                                 Repayment of Participations.


 


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


 


(ii)                                  If any payment received by the Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Revolving Lender shall
pay to the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate.  The Administrative Agent will make
such demand upon the request of the Swing Line Lender.  The obligations of the Revolving Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)                                  Interest for Account of Swing Line Lender. 
The Swing Line Lender shall be responsible for invoicing the Borrowers
for interest on the Swing Line Loans. 
Until each Revolving Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender’s
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.


 


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


 


2.05                        Prepayments.


 


(a)                                  The Borrowers may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or


 


44

















 


penalty;
provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the
date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base
Rate Committed Loans shall be in a principal amount of $100,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. 
Each such notice shall specify the date and amount of such prepayment,
whether the Loans to be prepaid are Term Loans or Revolving Loans, and the
Type(s) of Committed Loans to be prepaid. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment.  If such notice is given by
the Borrowers, the Borrowers shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Revolving Lenders or Term Loan Lenders, as applicable,
in accordance with their respective Pro Rata Share.  Once prepaid, Term Loans may not be
reborrowed.


 


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


 


(c)                                  If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments then in
effect, the Borrowers shall immediately prepay Revolving Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrowers shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Revolving Loans and Swing Line Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Commitments then in
effect.


 


(d)                                 All
prepayments of Term Loans shall be applied ratably to the remaining
installments of Term Loans.


 


2.06                        Termination or Reduction of Revolving Commitments.


 


(a)                                  The
Borrowers may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $2,000,000 or any whole multiple
of $1,000,000 in excess thereof, (iii) the Borrowers shall not terminate
or reduce the Aggregate Revolving Commitments if, after giving effect thereto
and to


 


45

















 


any concurrent
prepayments hereunder, the Total Revolving Outstandings would exceed the
Aggregate Revolving Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit
or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving
Commitments, the applicable sublimit(s) shall be automatically reduced by the
amount of such excess.  The
Administrative Agent will promptly notify the Revolving Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments.  Any reduction of the Aggregate Revolving
Commitments shall be applied to the Commitment of each Revolving Lender
according to its Pro Rata Share.  All
fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.


 


(b)                                 If
(i) the Borrowers shall have notified the Administrative Agent and the
Lenders that they will not be developing the Cannery II and the Required
Lenders have not approved a Replacement Project within 180 days of their
receipt of such notice, or (ii) the Borrowers intend to develop the
Cannery II but construction of the Cannery II has not commenced by
June 30, 2007, then on the earlier of such dates the Aggregate Revolving
Commitments shall immediately reduce by $50,000,000.


 


2.07                        Repayment of Loans.


 


(a)                                  The
Borrowers shall make repayments of the Term Loans on the last day of each
March, June, September and December, commencing March 31, 2006 in an
amount equal to 0.25% of the aggregate principal amount of Term Loans advanced
on the Effective Date plus, following each Increase Effective Date, if any, the
aggregate principal amount of increased Term Loans advanced on each such
Increase Effective Date.  The Borrowers
shall repay the outstanding principal amount of all Term Loans on the Maturity
Date.


 


(b)                                 In
addition to the scheduled amortization set forth in clause (a) above, the
Borrowers shall make mandatory payments (“Mandatory Payments”) from the
following sources:


 


(A)                              If
the Borrowers or any Restricted Subsidiary sells any asset permitted by Section
7.05(f) and the Net Cash Proceeds thereof, when aggregated with all other
Net Cash Proceeds realized after the Closing Date from sales pursuant to Section 7.05(f),
will result in the realization by the Borrowers or such Restricted Subsidiary of
Net Cash Proceeds (determined as of the date such Net Cash Proceeds are
received by the Borrowers or such Restricted Subsidiary) in excess of
$5,000,000, the Borrowers shall make a mandatory prepayment of the Loans in the
amount of such excess immediately upon receipt of such Net Cash Proceeds by the
Borrowers or such Restricted Subsidiary.


 


(B)                                Upon
the sale by any Borrower or any Restricted Subsidiary of any of its Equity
Interests (exclusive of any Equity Interests sold to Permitted Holders), the
Borrowers shall make a mandatory prepayment of the Loans by the amount equal to
50% of the Net Cash Proceeds of such sale.


 


46

















 


(C)                                For
each fiscal year, within five Business Days after financial statements have been
delivered pursuant to Section 6.01(a) and the related Compliance
Certificate has been delivered pursuant to Section 6.02(b), the
Borrowers shall make a mandatory prepayment of the Loans by an amount equal to
the applicable percentage of Excess Cash Flow for the fiscal year covered by
such financial statements as more particularly set forth below.  Such percentage shall be determined by
reference to the Consolidated Total Leverage Ratio reflected in such Compliance
Certificate, as follows:


 


	
  Consolidated Total Leverage

  Ratio

  	
   

  	
  Percentage of Excess

  Cash Flow

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 4.0x

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than
  4.0x but greater than or equal to 3.0x

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than
  3.0x

  	
   

  	
  0

  	
  %

  



 


(D)                               Within
five Business Days after receipt thereof, the Borrowers shall make a mandatory
prepayment of the Loans by an amount equal to the Net Cash Proceeds received
from the issuance of any Restricted Indebtedness.


 


(E)                                 Within
five Business Days after receipt thereof, but subject to all terms of the Deeds
of Trust, the Borrowers shall make a mandatory prepayment of the Loans by an
amount equal to all net cash proceeds received by the Borrowers or any
Restricted Subsidiary from any condemnation awards or casualty losses net of
out of pocket expenses incurred in connection with such condemnation
proceedings or the adjustment of such casualty.


 


(F)                                 Within
five Business Days after receipt thereof, the Borrowers shall make a mandatory
prepayment of the Loans by an amount equal to 100% of the amount received
pursuant to Section 2.9 of the Rampart Lease (the "Lease
Termination Payment").


 


(c)                                  Amounts
paid or prepaid pursuant to subsection (b) shall be applied as follows:


 


(A)                              So
long as no Event of Default has occurred and is continuing, the Lenders shall
apply such amounts to the pro rata payment of the outstanding principal amount
of the Term Loans and Revolving Loans; provided that no prepayments of
Revolving Loans shall reduce the Revolving Commitment until all Term Loans have
been repaid.


 


(B)                                After
an Event of Default has occurred and so long as such Event of Default is
continuing, all amounts received by the Lenders shall be applied first, to the
costs and expenses of protecting and preserving the security interests of the
Lenders under the Loan Documents, second, to the costs and expenses of


 


47

















 


protecting and
preserving the Collateral, third, to all other outstanding financial
Obligations due under this Agreement and the other Loan Documents (other than
principal and interest on the Loans), fourth, to the Lenders for accrued and
unpaid interest on the Loans and for all interest payments due to them or their
Affiliates under any Swap Contracts, pro rata, fifth, to the pro rata payment
of the aggregate outstanding principal balance of the Term Loans and Revolving
Loans and of the Swap Termination Value due to any Lenders or their Affiliates
under any Swap Contracts and, after all outstanding amounts evidenced and
secured by the Loan Documents have been paid in full and the Loan Parties have
performed their obligations under the Loan Documents and the Commitments have
terminated, the balance, if any, shall be delivered to the Borrowers.


 


(C)                                All
prepayments of Term Loans shall be applied to the ratable payment of the
remaining installments of Term Loans.


 


(d)                                 The
Borrowers shall repay to the Revolving Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.


 


(e)                                  The Borrowers shall repay each Swing Line
Loan on the earlier to occur of (i) the date ten Business Days after such Loan
is made and (ii) the Maturity Date.


 


2.08                        Interest.


 


(a)                                  Subject to the provisions of subsection
(b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate;
(ii) each Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; and (iii) each Swing
Line Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.


 


(b)                                 (i)                                     If any amount of principal of any Loan is
not paid when due, whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


(ii)                                  If any amount (other than principal of
any Loan) payable by the Borrowers under any Loan Document is not paid when
due, whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.


 


(iii)                               Upon the request of the Required Lenders,
while any Event of Default exists, the Borrowers shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


48

















 


(iv)                              Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.


 


(c)                                  Interest on each Loan shall be due and
payable in arrears on each Interest Payment Date applicable thereto and at such
other times as may be specified herein. 
Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.


 


2.09                        Fees.  In addition to
certain fees described in subsections (i) and (j) of Section 2.03:


 


(a)                                  Commitment Fee.  The Borrowers shall pay to the
Administrative Agent for the account of each Revolving Lender in accordance
with its Pro Rata Share of the Aggregate Revolving Commitments, a commitment
fee equal to the Applicable Rate times the actual daily amount by which
the Aggregate Revolving Commitments exceed the sum of (i) the Outstanding
Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations.  The commitment fee shall
accrue at all times during the Availability Period, including at any time after
the Effective Date during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such date to
occur after the Effective Date, and on the Maturity Date.  The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(b)                                 Other Fees.  (i)  The Borrowers shall pay to the Arranger and
the Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


(ii)                                  The Borrowers shall pay to the Lenders
such fees as shall have been separately agreed upon in writing in the amounts
and at the times so specified.  Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.


 


2.10                        Computation of Interest and Fees.  All computations of interest for Base Rate Loans when the
Base Rate is determined by Bank of America’s “prime rate” shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed.  All other computations of fees
and interest hereunder shall be made on the basis of a 360-day year and actual
days elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 


49

















 


2.11                        Evidence
of Debt.


 


(a)                                  The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrowers and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrowers shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.


 


(b)                                 In
addition to the accounts and records referred to in subsection (a), each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such
Revolving Lender of participations in Letters of Credit and Swing Line Loans. In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Revolving Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.


 


2.12                        Payments
Generally; Administrative Agent’s Clawback.


 


(a)                                  General.
All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrowers hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrowers shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.


 


(b)                                 (i) 
Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender’s share of such


 


50

















 


Committed
Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with Section 2.02
(or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Committed Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrowers severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date
such amount is made available to the Borrowers to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) in the case of a payment to be made by the
Borrowers, the interest rate applicable to such Borrowing. If the Borrowers and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the
Borrowers the amount of such interest paid by the Borrowers for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s
Committed Loan included in such Committed Borrowing and any amount previously
repaid by the Borrowers shall be redisbursed to the Borrowers. Any payment by
the Borrowers shall be without prejudice to any claim the Borrowers may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.


 


(ii)                                  Payments
by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrowers prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrowers will not make such
payment, the Administrative Agent may assume that the Borrowers have made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be,
the amount due. In such event, if the Borrowers have not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in immediately
available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


A notice of the Administrative Agent to any Lender or the Borrowers
with respect to any amount owing under this subsection (b) shall be
conclusive, absent manifest error.


 


(c)                                  Failure
to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and such funds are
not made available to the Borrowers by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


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(d)                                 Obligations
of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans and the obligations of the Revolving Lenders to fund
participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Committed Loan, to fund any such participation
or to make any payment under Section 10.04(c) on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).


 


(e)                                  Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.


 


2.13                        Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Committed Loans made by it, or the participations
in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed
Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Committed
Loans and subparticipations in L/C Obligations and Swing Line Loans of the
other Lenders, or make such other adjustments as shall be equitable, so that
the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided
that:


 


(i)                                     if
any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and


 


(ii)                                  the
provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Committed
Loans or subparticipations in L/C Obligations or Swing Line Loans to any
assignee or participant, other than to the Borrowers or any Subsidiary thereof
(as to which the provisions of this Section shall apply).


 


Each Loan Party consents to the foregoing and agrees, to the extent it may effectively
do so under applicable Law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Loan Party rights
of setoff and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of such Loan Party in the amount of such
participation.


 


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2.14                        Increase
in Commitments.


 


(a)                                  Request
for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from
time to time request an increase in the Aggregate Revolving Commitment or Term
Loans by an aggregate amount (for all such requests) not exceeding $50,000,000
(the “Increase Option Amount”); provided that (i) any such
request for an increase shall be in a minimum amount of $25,000,000 (or the
difference between the initial request and the Increase Option Amount, if the
initial request was for an amount greater than $25,000,000), and (ii) the
Borrowers may make a maximum of two such requests. 


 


(b)                                 Lender
Elections to Increase. Each Lender shall notify the Administrative Agent
within five Business Days from the date of delivery of such notice whether or
not it agrees to increase its Revolving Commitment or Term Loans and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share of
such requested increase. Any Lender not responding within such time period
shall be deemed to have declined to increase its Revolving Commitment and/or
Term Loans, as the case may be.


 


(c)                                  Notification
by Administrative Agent; Additional Lenders. The Administrative Agent shall
notify the Borrowers and each Lender of the Lenders’ responses to each request
made hereunder. Subject to the approval of the Administrative Agent and, in the
case of the Revolving Commitments, the L/C Issuer (which approvals shall not be
unreasonably withheld), the Borrowers may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


(d)                                 Effective
Date and Allocations. If the Revolving Commitment and/or the Term Loans are
increased in accordance with this Section, the Administrative Agent and the
Borrowers shall determine the effective date (the “Increase Effective Date”)
and the final allocation of such increase. The Administrative Agent shall
promptly notify the Borrowers and the Lenders of the final allocation of such
increase and the Increase Effective Date.


 


(e)                                  Conditions
to Effectiveness of Increase. As a condition precedent to such increase,
the Borrowers shall deliver to the Administrative Agent a certificate of each
Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrowers, certifying
that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists. If the Borrowers shall increase the Revolving
Commitment, the Borrowers shall prepay any Revolving Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Revolving


 


53

















 


Loans
ratable with any revised Pro Rata Shares arising from any nonratable increase
in the Revolving Commitments under this Section. The Borrowers shall also pay
any costs and expenses (including, without limitation reasonable attorney
costs, title insurance premiums and filing fees) incurred in connection with
the increase of any Commitment pursuant to this Section 2.14.


 


(f)                                    Notwithstanding
anything to the contrary herein, in no event shall the interest rate payable on
any increased Revolving Commitment or increased Term Loan exceed the interest
rate from time to time payable on Revolving Loans or Term Loans, nor shall any
Increased Term Loan mature prior to the Maturity Date or amortize faster than
the Term Loans;


 


(g)                                 Conflicting
Provisions. This Section shall supersede any provisions in Sections
2.13 or 10.01 to the contrary.


 


2.15                        Joint
and Several Liability.


 


(a)                                  Each
Borrower agrees that it is jointly and severally liable to the Administrative
Agent, the L/C Issuer and the Lenders for the payment of all Obligations arising
under this Agreement, and that such liability is independent of the obligations
of the other Borrowers. Each obligation, promise, covenant, representation and
warranty in this Agreement shall be deemed to have been made by, and be binding
upon, each Borrower, unless this Agreement expressly provides otherwise. The
Administrative Agent, the L/C Issuer and the Lenders may bring an action
against any Borrower, whether an action is brought against the other Borrowers.


 


(b)                                 Each
Borrower agrees that any release which may be given by the Administrative
Agent, the L/C Issuer or the Lenders to the other Borrowers or any Guarantor
will not release such Borrower from its Obligations under this Agreement.


 


(c)                                  Each
Borrower waives, to the extent it may effectively do so under applicable
Law, any right to assert against the Administrative Agent, the L/C Issuer or
the Lenders any defense, setoff or counterclaim it may have against the
other Borrowers arising hereunder, or claims which such Borrower may have
against the other Borrowers arising hereunder.


 


(d)                                 Each
Borrower waives, to the extent it may effectively do so under applicable
Law, any defense it may have against the Administrative Agent, the L/C
Issuer or the Lenders by reason of any other Borrower’s defense, disability, or
release from liability, except payment in full of the outstanding Obligations. The
Administrative Agent, the L/C Issuer and the Lenders can exercise their rights
against each Borrower even if any other Borrower or any other person no longer is
liable because of a statute of limitations or for other reasons.


 


(e)                                  Each
Borrower agrees that it is solely responsible for keeping itself informed as to
the financial condition of the other Borrowers and of all circumstances which
bear upon the risk of nonpayment. Each Borrower waives, to the extent it may effectively
do so under applicable Law, any right it may have to require the
Administrative Agent, the L/C Issuer and the Lenders to disclose to such
Borrower any


 


54

















 


information which
the Administrative Agent, the L/C Issuer and the Lenders may now or
hereafter acquire concerning the financial condition of the other Borrowers.


 


(f)                                    Each
Borrower waives, to the extent it may effectively do so under applicable
Law, all rights to notices of default or nonperformance by any other Borrower
under this Agreement. Each Borrower further waives, to the extent it may effectively
do so under applicable Law, all rights to notices of the existence or the
creation of new Indebtedness by any other Borrower and all rights to any other
notices to any party liable on any of the credit extended under this Agreement.


 


(g)                                 The
Borrowers represent and warrant to the Administrative Agent, the L/C Issuer and
the Lenders that each will derive benefit, directly and indirectly, from the
collective administration and availability of credit under this Agreement. The
Borrowers agree that the Administrative Agent, the L/C Issuer and the Lenders
will not be required to inquire as to the disposition by any Borrower of funds
disbursed in accordance with the terms of this Agreement.


 


(h)                                 Until
all outstanding Obligations of the Borrowers to the Administrative Agent, the
L/C Issuer and the Lenders under this Agreement have been paid in full and the
Commitments of the Lenders under this Agreement have been terminated, each
Borrower, to the extent it may effectively do so under applicable Law, (a) waives
any right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including without limitation, any claim
or right of subrogation under the Bankruptcy Code (Title 11, United States
Code) or any successor statute, which such Borrower may now or hereafter
have against any other Borrower with respect to the Obligations incurred under
this Agreement; and (b) waives any right to enforce any remedy which the
Administrative Agent, the L/C Issuer or the Lenders now have or may hereafter
have against any other Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by the Administrative Agent,
the L/C Issuer or the Lenders.


 


(i)                                     Each
Borrower waives any right to require the Administrative Agent, the L/C Issuer
and the Lenders to proceed against any other Borrower or any other person;
proceed against or exhaust any security; or pursue any other remedy. Further,
each Borrower consents to the taking of, or failure to take, any action by the
Administrative Agent, the L/C Issuer and the Lenders which might in any manner
or to any extent vary the risks of the Borrowers under this Agreement or which,
but for this provision, might operate as a discharge of the Borrowers.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Payments
Free of Taxes. Any and all payments by or on account of any obligation of
the Borrowers hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes,


 


55

















 


provided
that if the Borrowers shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions and (iii) the
Borrowers shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


(b)                                 Payment
of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above,
the Borrowers shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  Indemnification
by the Borrowers. The Borrowers shall indemnify the Administrative Agent,
each Lender and the L/C Issuer, within 30 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority; provided, however, that
the Borrowers shall have no liability hereunder in respect of penalties,
interest and other liabilities attributable to any Indemnified Taxes or Other
Taxes if such penalties, interest or other liabilities are attributable to the
gross negligence or willful misconduct of an Administrative Agent, Lender or
L/C Issuer. A certificate as to the amount of such payment or liability
delivered to the Borrowers by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.


 


(d)                                 Evidence
of Payments. As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrowers to a Governmental Authority, the Borrowers
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(e)                                  Status
of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrowers are resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrowers (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrowers or the Administrative Agent, 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 of withholding. In
addition, any Lender, if requested by the Borrowers or the Administrative
Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrowers or the Administrative Agent as will
enable the Borrowers or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements.


 


56

















 


Without limiting the generality of the foregoing, in the event that the
Borrowers are resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Borrowers and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of the Borrowers or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


(i)                                     duly
completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is
a party,


 


(ii)                                  duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)                               in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrowers within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of
the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN,
or


 


(iv)                              any
other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrowers to determine the withholding or deduction required
to be made.


 


(f)                                    Treatment
of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Borrowers or
with respect to which the Borrowers have paid additional amounts pursuant to
this Section, it shall pay to the Borrowers an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrowers under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrowers,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agree to repay the amount paid over to the Borrowers (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrowers or any other Person.


 


3.02                        Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable


 


57

















 


Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or
charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank
market, then, on notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrowers that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrowers
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans
to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,
the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.


 


3.03                        Inability
to Determine Rates. If the Required Lenders determine that for any reason
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable
means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrowers and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrowers may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or, failing that, will be deemed to have converted such request into
a request for a Committed Borrowing of Base Rate Loans in the amount specified
therein.


 


3.04                        Increased
Costs; Reserves on Eurodollar Rate Loans.


 


(a)                                  Increased
Costs Generally. If any Change in Law shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
any reserve requirement contemplated by
Section 3.04(e)) or the L/C Issuer;


 


(ii)                                  subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Eurodollar Rate Loan made by it hereunder, or change the basis of
taxation of payments to such Lender or the L/C Issuer in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender or the L/C Issuer); or


 


58

















 


(iii)                               impose
on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans
made hereunder by such Lender or any Letter of Credit or participation therein;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or the L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon the written request of such Lender or
the L/C Issuer, the Borrowers will pay to such Lender or the L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered following the receipt of such request.


 


(b)                                 Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in
Law affecting such Lender or the L/C Issuer or any Lending Office of such
Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender’s or the L/C Issuer’s capital or on the capital of such
Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Borrowers will pay to such Lender or the L/C Issuer, as the case may be,
upon the written request of such Lender, such additional amount or amounts as
will compensate such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company for any such reduction suffered following the receipt
of such request.


 


(c)                                  Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting
forth the amount or amounts necessary to compensate such Lender or the L/C
Issuer or its holding company, as the case may be, as specified in subsection (a) or
(b) of this Section and delivered to the Borrowers shall be
conclusive absent manifest error. The Borrowers shall pay such Lender or the
L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d)                                 Delay
in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrowers shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrowers of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change


 


59

















 


in Law
giving rise to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of retroactive
effect thereof).


 


(e)                                  Reserves
on Eurodollar Rate Loans. The Borrowers shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrowers shall have received at least 10 days’ prior notice (with a copy
to the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.


 


3.05                        Compensation
for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrowers shall promptly compensate such Lender
for and hold such Lender harmless from any loss, cost or expense incurred by it
as a result of:


 


(a)                                  any
continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on
a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b)                                 any
failure by the Borrowers (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrowers; or


 


(c)                                  any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrowers pursuant to Section 10.13;


 


including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which such
funds were obtained. The Borrowers shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 3.05, each Lender shall be deemed to
have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for
such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan was in fact so funded.


 


3.06                        Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its


 


60

















 


rights
and obligations hereunder to another of its offices, branches or affiliates,
if, in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrowers hereby
agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.


 


(b)                                 Replacement
of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01
or if any Lender ceases to make available Eurodollar Rate Loans pursuant to Section 3.02,
the Borrowers may replace such Lender in accordance with Section 10.13.


 


3.07                        Survival.
All of the Borrowers’ obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01                        Conditions
of Effectiveness. The effectiveness of this Agreement is subject to
satisfaction of the following conditions precedent:


 


(a)                                  The
Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, and each in form and substance satisfactory to the Administrative
Agent and each of the Lenders:


 


(i)                                     executed
counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrowers;


 


(ii)                                  a
Note executed by the Borrowers and dated as of the Effective Date in favor of
each Lender requesting a Note;


 


(iii)                               the
Security Agreement, dated as of the Effective Date, duly executed by each Loan
Party, covering all of each such Person’s equipment, gaming devices (but only
to the extent permitted by applicable law and contract) and associated
equipment, fixtures, furnishings, inventory, accounts, intangibles and other
personal property of every kind and description, including, to the extent
permitted by the terms of the financing or leasing agreements applicable
thereto, all furniture, fixtures and equipment that are financed or leased, but
excluding any Gaming License of any entity, together with


 


(A)                              acknowledgment
copies of properly filed Uniform Commercial Code financing statements (Form UCC-1),
dated a date reasonably near to and prior to the Effective Date, or such other
evidence of filing as may be acceptable to the Administrative Agent,
naming each of the Loan Parties (as appropriate) as the debtor, and the Administrative
Agent on behalf of the Secured Parties, as the


 


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secured party, or
other similar instruments or documents, filed under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interest of the
Administrative Agent pursuant to the Security Agreement;


 


(B)                                Uniform Commercial
Code termination statements necessary to release all Liens and other rights of
any Person securing any existing Liens (other than Permitted Liens), together
with such other Uniform Commercial Code termination statements as the
Administrative Agent may reasonably request; and


 


(C)                                certified
copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-3),
or a similar search report certified by a party selected by and acceptable to
the Administrative Agent, dated a date reasonably near to the Effective Date,
listing all effective financing statements which name any of the Loan Parties
(under their present names and any previous names) as the debtor and which are
filed in the jurisdictions in which filings were made pursuant to clause (A) above,
together with copies of such financing statements (none of which (other than those
described in clause (A), if such Form UCC-3 or search report, as the case may be,
is current enough to list such financing statements described in clause (A))
shall cover any Collateral described in the Security Agreement except as
permitted by Section 7.01);


 


provided,
however, that recourse to each of Millennium, MGIM, and OCM shall be
limited to their Equity Interests in CCR pledged pursuant to the Pledge
Agreement and that recourse to Esquire shall be limited to the amount of all
Investments made by the Borrowers in or to Esquire after the Effective Date;


 


(iv)                              executed
counterparts of a Deed of Trust dated on or before the Effective Date with
respect to the Casino Real Estate of CHC and, to the extent described therein,
the related Casino Businesses, duly executed by CHC, together with


 


(A)                              evidence
of the completion (or satisfactory arrangements for the completion) of all
recordings and filings of each of the Deed of Trust as may be necessary
or, in the reasonable opinion of the Administrative Agent, desirable
effectively to record the Deed of Trust as valid, perfected Liens against the
Casino Real Estate of CHC which Liens are subject to no Liens other than
Permitted Liens;


 


(B)                                ALTA
lender title insurance policy (the “Title Policy”) in favor of the
Administrative Agent on behalf of the Secured Parties providing title insurance
for the Cannery in the amount of $232,000,000, subject only to Permitted Liens
and with no survey exception and otherwise in form and substance
satisfactory to the Administrative Agent and issued by the Title Company, with
respect to the Deed of Trust; and


 


(C)                                such
other approvals or documents in connection with the foregoing as the
Administrative Agent may reasonably request;


 


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(v)                                 [Intentionally
Omitted];


 


(vi)                              “phase
one” environmental audits dated reasonably near to and prior to the Effective
Date and covering the Casino Real Estate of CHC from environmental consulting
firms reasonably satisfactory to the Administrative Agent and otherwise in form and
substance reasonably satisfactory to the Administrative Agent;


 


(vii)                           an
appraisal dated reasonably near to and prior to the Effective Date for the
Cannery in form and substance reasonably satisfactory to the
Administrative Agent;


 


(viii)                        a Security
Interest Subordination Agreement, dated as of the Effective Date, duly executed
by InvestCo and OCM, substantially in the form of Exhibit J
(the “Security Interest Subordination Agreement”);


 


(ix)                                such
evidence as the Administrative Agent deems appropriate that (A) Millennium
owns 662/3%
and MGIM owns 331/3%
of the equity interests of CCR, (B) CHC shall own and operate the Cannery
and Rampart shall lease and operate the Rampart Casino, (C) Millennium,
Bill Paulos and Bill Wortman, collectively own 100% of the equity interests of
MGIM, (D) MGIM shall have outstanding not less than $64,000,000 of
Indebtedness to OCM which shall, but its terms, be exchangeable into equity of
CCR at the time of the Third Closing, and (E) Renate Schiff’s 60% interest
in NP and Esquire shall have been redeemed for approximately $14,900,000;


 


(x)                                   a
certificate dated as of the Effective Date signed by a Responsible Officer of
the Borrowers certifying that (A) the Total Leverage Ratio as of the
Effective Date is not greater than 3.50 to 1.00 and (B) there exists not
less than $75,000,000 of availability under the Revolving Commitment;


 


(xi)                                evidence
of the following insurance coverages with respect to each of the Cannery and
the Rampart Casino:


 


(A)                              Comprehensive
general public liability insurance in an amount reasonably satisfactory to the
Administrative Agent and the Borrowers covering the Borrowers;


 


(B)                                Worker’s
compensation insurance (or self insurance therefor) and employer’s liability
insurance for the Borrowers, all in such amounts as may be required by
statute;


 


(C)                                If
commercially available, flood insurance if either the Rampart Casino or
the Cannery is located in an area designated by the Secretary of Housing and
Urban Development as a special flood hazard area; and


 


(D)                               Rental
or business interruption insurance in amounts sufficient to pay operating
expenses, lost rental income and debt service for a period of up to six months;


 


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All policies of insurance required to be
maintained by the Borrowers and the Guarantors shall be issued by companies
reasonably satisfactory to the Administrative Agent and shall have coverages
and endorsements (including, without limitation, waivers of subrogation and
waivers of breach of warranty) and be written for such amount as the
Administrative Agent may reasonably require. All policies of insurance
required to be maintained must name the Administrative Agent as mortgagee,
where applicable, and additional insured or loss payee, must insure the
interest of the Administrative Agent in the property as mortgagee and must
provide that no cancellation or material modification of the policies will be
made without thirty days’ prior written notice to Administrative Agent. Certificates
for all such policies must be delivered to the Administrative Agent and
approved by the Administrative Agent;


 


(xii)                             the
Hazardous Materials Indemnity, dated as of the Effective Date, duly executed by
each Borrower or Restricted Subsidiary of Borrower that owns or leases real
property Collateral;


 


(xiii)                          unaudited
consolidated financial statements of the Borrowers and their Subsidiaries dated
as of September 30, 2005; and financial projections of the Borrowers and
their Subsidiaries through December 31, 2011, including projections of
quarterly financials through completion of the construction of the Cannery II,
all in form and substance reasonably satisfactory to the Administrative
Agent;


 


(xiv)                         such
assurances as the Administrative Agent deems appropriate that the relevant
Gaming Boards have approved the transactions contemplated by the Loan Documents
(other than the Pledge Agreement), to the extent that such approval is required
by applicable Gaming Laws and that the Borrowers have all applicable Gaming
Licenses for the operation of the Cannery and the Rampart Casino;


 


(xv)                            such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may 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;


 


(xvi)                         such
documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that
each Loan Party is validly existing, in good standing and qualified to engage
in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;


 


(xvii)                      favorable
opinions of Santoro, Driggs, Walch, Kearney, Johnson & Thompson, Ltd.,
and Schreck Brignone, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit G-1
and G-2;


 


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(xviii)                   a certificate
of a Responsible Officer of each Borrower, dated as of the Effective Date,
attaching copies of all licenses required in the operation of the Cannery and
the Rampart Casino and such licenses shall be in full force and effect;


 


(xix)                           a
certificate signed by a Responsible Officer of the Borrowers, dated as of the
Effective Date, certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) a
calculation of the Consolidated Total Leverage Ratio based on Consolidated
Total Indebtedness pro  forma as of the Effective Date to
Consolidated EBITDA for the four fiscal quarters ended September 30, 2005;


 


(xx)                              [Intentionally
Omitted];


 


(xxi)                           a
Subordination Agreement, dated as of the Effective Date, duly executed by
Millennium Management Group II, LLC and any other manager of the Casino
Businesses, in substantially the form of Exhibit K;


 


(xxii)                        evidence
that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect;


 


(xxiii)                     evidence that
the Existing Credit Agreement and all other agreements of the Borrowers
evidencing outstanding Indebtedness have been or concurrently with the
Effective Date are being terminated and all Liens securing obligations under
the Existing Credit Agreement and all other agreements of the Borrowers
evidencing outstanding Indebtedness have been or concurrently with the
Effective Date are being released; and


 


(xxiv)                    such other
assurances, certificates, documents, consents or opinions as the Administrative
Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably
may require.


 


(b)                                 Any
fees required to be paid on or before the Effective Date shall have been paid.


 


(c)                                  Unless
waived by the Administrative Agent, the Borrowers shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent to the extent invoiced
prior to or on the Effective Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such
fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrowers and the Administrative
Agent).


 


(d)                                 The
Effective Date shall have occurred on or before January 31, 2006.


 


Without limiting the generality of the provisions of Section 9.04,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved


 


65

















 


by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from such Lender
prior to the proposed Effective Date specifying its objection thereto.


 


4.02                        Conditions
to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type, or a continuation of
Eurodollar Rate Loans) is subject to the following conditions precedent:


 


(a)                                  The
representations and warranties of the Borrowers and each other Loan Party
contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.


 


(b)                                 No
Default shall exist, or would result from such proposed Credit Extension or
from the application of the proceeds thereof.


 


(c)                                  In
respect of the initial Credit Extension to be made in connection with the
commencement of construction of the Project, a certificate from the
Construction Consultant, dated prior to the commencement of such construction,
confirming that the preliminary construction Budget, Timetable and Plans and
Specifications for the Project are reasonable and feasible.


 


(d)                                 The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.


 


Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrowers shall be
deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrowers represent and warrant to the Administrative Agent and the
Lenders that:


 


5.01                        Existence,
Qualification and Power; Compliance with Laws. Each Loan Party (a) is
duly organized or formed, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the


 


66

















 


conduct
of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c) or
(d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.02                        Authorization;
No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly
authorized by all necessary corporate or other organizational action, and do
not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a
party or affecting such Person or the properties of such Person or any of its
Restricted Subsidiaries or (ii) any order, injunction, writ or decree of
any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law. Each Loan Party is in
compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.03                        Governmental
Authorization; Other Consents. Except for such authorizations, approvals
and notices to or from any Gaming Board which have not yet been obtained as of
the Effective Date but will be applied for after Closing as contemplated by Section 6.18
(including approvals of any pledges of Equity Interests in Loan Parties
licensed by or registered with any Gaming Board), and except for post-Closing
informational filings required pursuant to Regulation 8.130 of the Nevada
Gaming Commission, and except for approval of any future pledge of any
additional Equity Interests in Loan Parties licensed by or registered with any
Gaming Board, no approval, consent, exemption, authorization, or registration
from or by, or notice to, or filing with, any Governmental Authority is
necessary in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Documents.


 


5.04                        Binding
Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan
Party that is party thereto. This Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally, and general principles of
equity.


 


5.05                        Financial
Statements; No Material Adverse Effect; No Internal Control Event.


 


(a)                                  The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein and (ii) fairly present the financial condition of
CCR and its Subsidiaries as of the date thereof and their results of operations
for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein.


 


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(b)                                 The
unaudited consolidated balance sheet of CCR and its Subsidiaries dated September 30,
2005, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of CCR and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments. 


 


(c)                                  Since
the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.


 


(d)                                 The
consolidated pro forma balance sheet of CCR, Nevada Palace, LLC and their
respective consolidated Subsidiaries as at September 30, 2005, and the
related consolidated pro forma statements of income and cash flows of CCR,
Nevada Palace, LLC and their respective consolidated Subsidiaries for the nine
months then ended, were prepared in good faith based upon assumptions believed
to be reasonable at the time of the preparation thereof and present the consolidated
pro forma financial condition of CCR, Nevada Palace, LLC and their respective
consolidated Subsidiaries as at such date and the consolidated pro forma
results of operations of CCR, Nevada Palace, LLC and their respective
consolidated Subsidiaries for the period ended on such date.


 


(e)                                  The
consolidated forecasted balance sheet and statements of income and cash flows
of CCR and its Subsidiaries delivered pursuant to Section 6.01(c) were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions are believed by the Borrowers to be reasonable at the time.


 


5.06                        Litigation.
There are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrowers
threatened at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrowers or any of their Restricted Subsidiaries
or against any of their properties or revenues that (a) purport to affect
or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06, either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect,
and there has been no adverse change in the status, or financial effect on any
Loan Party or any Restricted
Subsidiary thereof, of the matters described on Schedule 5.06.


 


5.07                        No
Default. Neither any Borrower nor any of their Restricted Subsidiaries is
in default under or with respect to any Contractual Obligation that could,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.


 


5.08                        Ownership
of Property; Liens. Each of the Borrowers and each of their Restricted
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for


 


68

















 


such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The property of the Borrowers and
their Restricted Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01 and the Liens under the Existing Credit
Agreement being terminated concurrently with the Effective Date.


 


5.09                        Environmental
Compliance. The Borrowers and their Restricted Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and
properties, and as a result thereof the Borrowers have reasonably concluded
that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


5.10                        Insurance.
The properties of the Borrowers and their Restricted Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrowers, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrowers or
the applicable Restricted Subsidiary operates.


 


5.11                        Taxes.
The Borrowers and their Restricted Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP and except
immaterial taxes and tax returns so long as no material portion of the
Collateral is in jeopardy of being seized, levied upon or forfeited. There is
no proposed tax assessment against the Borrowers or any Restricted Subsidiary
that would, if made, have a Material Adverse Effect. Neither any Borrower nor
any Restricted Subsidiary thereof is party to any tax sharing agreement.


 


5.12                        ERISA
Compliance.


 


(a)                                  Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. Each Plan that is intended
to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrowers, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrowers and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.


 


(b)                                 There
are no pending or, to the best knowledge of the Borrowers, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.


 


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(c)                                  (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither
the Borrowers nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA.


 


5.13                        Subsidiaries;
Equity Interests. As of the Effective Date, CCR has no Subsidiaries other than those specifically disclosed
in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid
and nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens except Permitted Liens. As
of the Effective Date, CCR has no equity investments in any other corporation
or entity other than those specifically disclosed in Part(b) of Schedule 5.13.
With the exception of the MGIM Obligations, all of the outstanding Equity
Interests in CCR have been validly issued, are
fully paid and nonassessable and are owned by Millennium in the amounts
specified on Part (c) of Schedule 5.13 free and clear of
all Liens except Permitted Liens.


 


5.14                        Margin
Regulations; Investment Company Act; Public Utility Holding Company Act.


 


(a)                                  The
Borrowers are not engaged and will not engage, principally or as one of their
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock. 


 


(b)                                 None
of the Borrowers, any Person Controlling the Borrowers, or any Subsidiary (i) is
a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company,”
within the meaning of the Public Utility Holding Company Act of 1935, or (ii) is
or is required to be registered as an “investment company” under the Investment
Company Act of 1940.


 


5.15                        Disclosure.
No report, financial statement, certificate or other information furnished
by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Borrowers represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.


 


5.16                        Compliance
with Laws. Each of the Borrowers and each Restricted Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs,


 


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injunctions
and decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


5.17                        Intellectual
Property; Licenses, Etc. The Borrowers and their Restricted Subsidiaries
own, or possess the right to use, all of the material trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, “IP Rights”) that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Borrowers, no slogan or other advertising device, product, process, method,
substance, part or other material that is material to the business of the
Borrowers and their Restricted Subsidiaries now employed, or now contemplated
to be employed, by the Borrowers or any Restricted Subsidiary infringes upon
any rights held by any other Person. No claim or litigation regarding any of
the foregoing is pending or, to the best knowledge of the Borrowers,
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.


 


5.18                        Collateral
Documents. The provisions of the Deeds of Trust, the Pledge Agreement and
the Security Agreement are effective to create, in favor of the Administrative
Agent (for the benefit of the Lenders), valid and perfected first priority
Liens on the Casino Real Estate, the Casino Businesses, the Equity Interests
subject to the Pledge Agreement and all personal property described in the
Security Agreement and the Deeds of Trust subject only to the Permitted Liens,
to the extent that such Liens can be perfected by filing or recording. Except
for the approvals required for the execution of the Pledge Agreement and the
attachment and perfection of the Administrative Agent’s Lien on the Equity
Interests subject thereto as contemplated by Section 6.18, all
governmental approvals necessary or desirable to perfect and protect, and
establish and maintain the priority of, such Liens – insomuch as such are not
required of the Lender, the L/C Issuer, the Swing Line Lender or the Required
Lenders, have been duly effected or taken, including any such approvals
reasonably requested by the Administrative Agent.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrowers shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03)
cause each Restricted Subsidiary to:


 


6.01                        Financial
Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  as
soon as available, but in any event within 120 days after the end of each
fiscal year of the Borrowers (commencing
with the fiscal year ended December 31, 2005), a consolidated
balance sheet of the Borrowers and their consolidated Restricted Subsidiaries
as at


 


71

















 


the
end of such fiscal year, and the related consolidated statements of operations,
members’ equity and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of Piercy Bowler Taylor & Kern or another
nationally recognized Registered Public Accounting Firm reasonably acceptable
to the Required Lenders, which report and opinion shall be prepared in
accordance with standards established by the Public Company Accounting
Oversight Board (United States) and shall not be subject to any “going concern”
or like qualification or exception or any qualification or exception as to the
scope of such audit;


 


(b)                                 as
soon as available, but in any event within 60 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrowers (commencing with the fiscal quarter ended March 31,
2006), a consolidated balance sheet of the Borrowers and their
Restricted Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of operations, members’ equity and cash flows for such
fiscal quarter and for the portion of the Borrowers’ fiscal year then ended,
setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, certified by a
Responsible Officer of the Borrowers as fairly presenting the financial
condition, results of operations, members’ equity and cash flows of the
Borrowers and their Restricted Subsidiaries in accordance with GAAP, except
that substantially all the disclosures frequently presented in the footnotes may be
omitted;


 


(c)                                  as
soon as available, but in any event not more than 120 days after the end
of each fiscal year of the Borrowers, an updated budget and projection model
prepared by management of the Borrowers, in form satisfactory to the
Administrative Agent and the Required Lenders, such information to be presented
on a quarterly basis through Completion; .


 


(d)                                 as
soon as available, but in any event within 30 days after the end of each month,
monthly operating statements in form satisfactory to the Administrative
Agent and the Required Lenders; and


 


(e)                                  as
soon as available, but in any event within 60 days after the end of each fiscal
quarter, income statements for each of the Borrowers, on a property-by-property
basis, in form satisfactory to the Administrative Agent and the Required
Lenders.


 


As to any information contained in materials furnished pursuant to Section 6.02(d),
the Borrowers shall not be separately required to furnish such information
under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrowers to furnish the information and
materials described in clauses (a) and (b) above at the times
specified therein.


 


6.02                        Certificates;
Other Information. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  concurrently
with the delivery of the financial statements referred to in Section 6.01(a),
a letter from its registered independent public accounting firm indicating that
during the performance of the financial statement audit no knowledge was
obtained of any


 


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Default
under the financial covenants set forth in Section 7.11 or, if any
such Default shall exist, stating the nature and status of such event;


 


(b)                                 within
five Business Days after the delivery of the financial statements referred to
in Sections 6.01(a) and (b) (commencing with the
delivery of the financial statements for the fiscal year ended December 31,
2005), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrowers;


 


(c)                                  promptly
after any request by the Administrative Agent or any request by a Lender, made
through the Administrative Agent, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of the Borrowers by independent
accountants in connection with the accounts or books of the Borrowers or any
Restricted Subsidiary, or any audit of any of them;


 


(d)                                 promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Borrowers, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrowers may file or be required to
file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;


 


(e)                                  promptly
after the same are available, copies of any external auditor’s report with
respect to Nevada “Regulation 6.090 Report” and any other report filed by the
Borrowers or any Restricted Subsidiary with any Governmental Authority (other
than routine reports);


 


(f)                                    promptly
after the furnishing thereof, copies of any statement or report furnished to
any holder of debt securities of any Loan Party or any Restricted Subsidiary
thereof pursuant to the terms of any indenture, loan or credit or similar
agreement and not otherwise required to be furnished to the Lenders pursuant to
Section 6.01 or any other clause of this Section 6.02;


 


(g)                                 if
the Borrowers shall elect not to develop the Cannery II, promptly after such
decision has been made, written notice to the Administrative Agent and the
Lenders of such decision and, in the event the Borrowers shall propose a
Replacement Project, an additional written notice to the Administrative Agent
and Lenders of such Replacement Project, including a description thereof together
with such additional information (including a budget and projections) regarding
the Replacement Project as the Administrative Agent may request (it being
understood that any approval by the Required Lenders of a Replacement Project
will be in the discretion of the Lenders and subject to appropriate adjustments
to the financial covenants); and


 


(h)                                 promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrowers or any Restricted Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender acting
through the Administrative Agent may from time to time reasonably request.


 


Documents required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(d) (to the extent any such
documents are included in materials otherwise filed with the SEC) may


 


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be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the Borrowers post such documents, or provides a link thereto on the Borrowers’
website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such documents are posted on the Borrowers’ behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the
Borrowers shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrowers to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrowers shall provide
to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents and the Administrative Agent shall notify each
Lender (by telecopier or electronic mail) of the posting of any such documents.
Notwithstanding anything contained herein, in every instance the Borrowers
shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrowers with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.


 


The Borrowers hereby acknowledge that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrowers
hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrowers or their
securities) (each, a “Public Lender”). The Borrowers hereby agree that
(w) all Borrower Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to
have authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrowers or their securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative
Agent and the Arranger shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.” 
Notwithstanding the foregoing,
the Borrowers shall be under no obligation to mark any Borrower Materials “PUBLIC.”


 


6.03                        Notices.
Promptly notify the Administrative Agent and each Lender:


 


(a)                                  of
the occurrence of any Default;


 


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(b)                                 of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or
any default under, a Contractual Obligation of the Borrowers or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension
between the Borrowers or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrowers or any Subsidiary, including pursuant to any applicable
Environmental Laws;


 


(c)                                  of
the occurrence of any ERISA Event;


 


(d)                                 of
any material change in accounting policies or financial reporting practices by
the Borrowers or any Subsidiary; and


 


(e)                                  notice
of noncompliance with Chapter 53 (Monetary Transactions) of Title 31
of the United States Code Annotated.


 


Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrowers setting forth details of
the occurrence referred to therein and stating what action the Borrowers have
taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


6.04                        Payment
of Obligations. Pay and discharge as the same shall become due and payable,
all its obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets,
unless the same are being contested in good faith by appropriate actions
diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Borrowers or such Restricted Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property, unless
the same are being contested in good faith by appropriate proceedings
diligently conducted and with adequate reserves in accordance with GAAP; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.


 


6.05                        Preservation
of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction
of its organization except in a transaction permitted by Section 7.04
or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses (including, without limitation, liquor licenses)
and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.


 


6.06                        Maintenance
of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to


 


75

















 


have a
Material Adverse Effect; and (c) use
the standard of care typical in the industry in the operation and maintenance
of its facilities.


 


6.07                        Maintenance
of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrowers, insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar circumstances by such
other Persons and providing for not less than
30 days’ prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance.


 


6.08                        Compliance
with Laws. Comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate actions; or (b) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.


 


6.09                        Books
and Records. (a)  Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrowers or such Restricted Subsidiary, as the case
may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrowers or such Restricted
Subsidiary, as the case may be.


 


6.10                        Inspection
Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrowers and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrowers; provided, however, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrowers at any time during normal business
hours and without advance notice.


 


6.11                        Use
of Proceeds. Use the proceeds of the Credit Extensions for any one or more
of the following:  (a) to refinance
all outstanding Indebtedness under the Existing Credit Agreement and other
financing arrangements, (b) at the Third Closing, to make a distribution
of up to $6,000,000 plus interest to MGIM in order to fund the repayment of a
loan by InvestCo to MGIM in the same amount, (c) at the Third Closing, to
pay a security deposit of $3,000,000 plus interest to NP Land, LLC, (d) at
the Third Closing, to purchase certain non-land assets of the Nevada Palace for
a price not to exceed $7,610,000, plus interest, (e) to finance capital
improvements of the Borrowers, including the development and construction of
the Cannery II, (f) $2.75 million to fund the Schiff Land Purchase, and/or
(g) to pay fees and expenses in connection with the foregoing and the
transactions contemplated by this Agreement, and general corporate purposes not
in contravention of any Law or of any Loan Document.


 


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6.12                        Compliance
With Agreements. Comply with all Contractual Obligations under all material
agreements, indentures, leases and/or instruments to which any one or more of
them is a party, whether such material agreements, indentures, leases or
instruments are with a Lender or another Person, except for any such
Contractual Obligations (a) the performance of which would cause a Default
or (b) then being contested by any of them in good faith by appropriate
actions or (c) to the extent that the failure to comply with such
Contractual Obligations does not constitute a Material Adverse Effect.


 


6.13                        Environmental
Covenant. Use and operate all of its facilities and properties in material
compliance with all applicable Environmental Laws, keep all material permits,
approvals, certificates, licenses and other authorizations required pursuant to
applicable Environmental Laws in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with all
applicable Environmental Laws; promptly notify the Administrative Agent and
provide copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties under, or
compliance of its facilities and properties with, applicable Environmental
Laws, and shall promptly commence and diligently proceed to cure, to the
reasonable satisfaction of the Administrative Agent any actions and proceedings
relating to violations of compliance with applicable Environmental Laws; and provide
such information and certifications which the Administrative Agent may reasonably
request from time to time to evidence compliance with this Section 6.13.


 


6.14                        Accuracy
of Information. Cause all factual information furnished after the date of
execution and delivery of this Agreement by or on behalf of the Borrowers or
any Guarantor in writing to the Administrative Agent or any Lender for purposes
of or in connection with this Agreement or any transaction contemplated hereby
to be true and accurate in all material respects on the date as of which such
information is dated or certified, and such information shall not be incomplete
by omitting to state any material fact necessary to make such information not
misleading.


 


6.15                        Significant
Subsidiaries. Promptly upon the determination that any Restricted
Subsidiary has become a Significant Subsidiary, cause such Significant
Subsidiary to execute and deliver to the Administrative Agent for the benefit
of the Lenders (i) an amendment to the Guaranty, if such Subsidiary is not
already a party thereto, joining such Subsidiary as a party thereto, (ii) if
such Subsidiary owns a real property interest in a Venture that are not Casino
Real Estate, one or more Deeds of Trust, title insurance consistent with Section 4.01(a)(iv)(B) and
other documentation required by Sections 4.01(a)(v) and (vii) hereof,
together with a joinder to the Hazardous Materials Indemnity and all other
documentation required thereunder including a so-called “phase one”
environmental audit for the real property to be encumbered by such Deed of
Trust, encumbering such Casino Real Estate, (iii) an amendment to the
Security Agreement, if such Subsidiary is not already a party thereto, joining
such Subsidiary as a party thereto, (iv) legal opinions in each case
similar to the opinions given at the Effective Date as to the then-encumbered
Subsidiaries, in form and substance satisfactory to the Administrative
Agent, (v) an amendment to the Pledge Agreement encumbering the Equity
Interests in such Significant Subsidiary, and (vi) the documentation
required by clauses (xv) and (xvi) of Section 4.01(a) hereof
in respect of such Significant Subsidiary.


 


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6.16                        Construction
Covenants. Prior to the commencement of development and construction of the
Cannery II (either by way of construction of the Cannery II or the commencement
of substantial demolition activities in respect of the existing Nevada Palace):


 


(a)                                  the
Borrowers shall agree to reimburse the Administrative Agent for the reasonable
costs of the Construction Consultant, who shall be allowed full access to the
Project site and prepare a monthly construction progress report;


 


(b)                                 the
Construction Consultant shall have reviewed the final proposed prime
construction contract, Budget, Timetable and Plans and Specifications (and any
geotechnical and other reports and assessments as they reasonably shall
require) and shall have concurred that the Plans and Specifications are
reasonable and feasible; and


 


(c)                                  collateral
assignments of the prime construction, architectural and engineering contracts
for the Cannery II shall have been made to the Administrative Agent.


 


6.17                        In
Balance  Covenants. Immediately prior to
commencement of development and construction of the Cannery II, and quarterly
thereafter through the issuance of a Certificate of Occupancy for the Cannery
II, the Borrowers shall deliver to the Administrative Agent a certification
that the Project is In Balance, with such supporting documentation as the
Administrative Agent or Construction Consultant may reasonably require.


 


6.18                        Pledge
Undertakings. Within six months after the Closing Date, have received from
the appropriate Gaming Boards all required approvals in connection with the
Pledge Agreement to be executed by Millennium, MGIM and CCR and shall have
executed and delivered the Pledge Agreement to the Administrative Agent,
together with (a) certificates evidencing 100% of the issued and
outstanding Equity Interests of CCR and each Restricted Subsidiary of CCR, and (b) stock
powers duly endorsed in blank covering all of the shares described in clause (a) above;
provided, however, that such six month period shall be extended
by an additional three months so long as within 60 days after the Closing Date
CCR has filed with the appropriate Gaming Boards all applications required to
effect the foregoing.


 


6.19                        Third
Closing Undertakings. On or before December 31, 2006, the Third
Closing shall have occurred.


 


6.20                        Acquisition
of Property or Vessel. Upon the acquisition by the Borrowers or any
Significant Subsidiary of the Schiff Property or any real property or any
vessel having (i) a purchase price, or (ii) a combination of purchase
price and anticipated Capital Expenditures in connection therewith in excess of
$5,000,000, the Borrowers shall deliver or cause any Significant Subsidiary to
deliver, a Deed of Trust or first preferred ship mortgage, as applicable, with
respect thereto, together with such title insurance (in the case of real
estate) and other ancillary documents as may be requested by the
Administrative Agent.


 


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ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrowers shall not, nor shall they permit
any Restricted Subsidiary to, directly or indirectly:


 


7.01                        Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than
Permitted Liens.


 


7.02                        Investments.
Make any Investments, except:


 


(a)                                  Investments
held by the Borrowers or such Restricted Subsidiary in any of the
following:  (i) certificates of
deposit; (ii)  U.S. treasury bills and other obligations of the federal
government; (iii) US Corporate Bonds, rated at least BAA or higher by
Standard & Poor’s, or common stocks with an Standard & Poor’s
Stock Guide Rating of at least B or higher and listed on the New York Stock
Exchange, American Stock Exchange, or National Association of Securities
Dealers Automated Quotations, and commercial paper rated at least A-1 by
Standard & Poor’s or at least P-1 or MIG-1 by Moody’s Investors Service, Inc.;
(iv)  bankers’ acceptances issued by financial institutions rated at least
first tier paper by a National Recognized Statistical Rating Organization
(NRSRO); (v)  repurchase agreements covering U.S. government securities;
and (vi)  money market funds that comply with all provisions of Rule 2a-7
of the Investment Act of 1940;


 


(b)                                 advances
to officers, directors and employees of the Borrowers and Restricted
Subsidiaries, for travel, entertainment, relocation and analogous ordinary
business purposes, consistent with past practice;


 


(c)                                  Investments
of the Borrowers in any Guarantor and Investments of any Guarantor in the
Borrowers or in another Guarantor;


 


(d)                                 Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(e)                                  Guarantees
permitted by Section 7.03;


 


(f)                                    Capital
Expenditures permitted by Section 7.12(d);


 


(g)                                 Investments
in an aggregate amount not exceeding $12,000,000 in connection with the
acquisition of the non-land assets of the Nevada Palace;


 


(h)                                 Loans
or investments not to exceed $2,750,000 in connection with the Schiff Land
Purchase;


 


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(i)                                     Investments
by one or more of the Borrowers in an Unrestricted Subsidiary to the extent
that such Borrower has substantially concurrently received an equivalent amount
of proceeds from the sale of Equity Interests to Permitted Holders; provided
that such Investments be made exclusively to acquire, develop, manage or
operate the Meadows race track and casino in Pittsburgh, Pennsylvania and
activities related thereto; and


 


(j)                                     Investments
consisting of loans by CCR to a Permitted Holder to the extent that CCR has
substantially concurrently received an equivalent amount of proceeds from the
sale of Equity Interests to Permitted Holders; provided that such
Investments be made exclusively to acquire, develop, manage or operate the
Meadows race track and casino in Pittsburgh, Pennsylvania and activities
related thereto;


 


provided,
however, that so long as Esquire is a Guarantor the Borrowers shall not
make any Investments in Esquire without the prior written consent of the
Required Lenders.


 


7.03                        Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)                                  Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;


 


(c)                                  Guarantees
of any Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of a Borrower or any other Guarantor;


 


(d)                                 obligations
under Swap Contracts entered into by the Borrowers with any Lender or Affiliate
of any Lender, which obligations shall be ratably secured by the Collateral; provided,
in no event shall the notional principal amount for all such secured
obligations exceed the Aggregate Commitments (it being understood that the
notional amount of each such Swap Contract shall be included in such
calculation); and


 


(e)                                  Indebtedness
in respect of purchase money obligations and equipment financing for fixed or
capital assets within the limitations set forth in the proviso to
clause (k) of the definition of the term “Permitted Liens”; provided,
however, that the aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed $10,000,000;


 


(f)                                    Subordinated
Debt in an aggregate principal amount not to exceed $125,000,000; and


 


(g)                                 Indebtedness
in an aggregate amount at any time not to exceed $15,000,000 in respect of
capital leases and Synthetic Lease Obligations for fixed or capital assets.


 


7.04                        Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of
transactions) all or


 


80

















 


substantially
all of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except that, so long as no Default exists or would result
therefrom:


 


(a)                                  any
Restricted Subsidiary may merge with (i) a Borrower, provided
that the Borrower shall be the continuing or surviving Person, or (ii) any
one or more other Restricted Subsidiaries, provided that when any
Guarantor is merging with any Restricted Subsidiary that is not a Guarantor,
the Guarantor shall be the continuing or surviving Person; and


 


(b)                                 any
Restricted Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to a Borrower or to another
Restricted Subsidiary; provided that if the transferor in such a
transaction is a Guarantor, then the transferee must either be a Borrower or a
Guarantor.


 


7.05                        Dispositions.
Make any Disposition or enter into any agreement to make any Disposition,
except:


 


(a)                                  Dispositions
of obsolete, surplus or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;


 


(b)                                 Dispositions
of inventory in the ordinary course of business;


 


(c)                                  Dispositions
of equipment to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;


 


(d)                                 Dispositions
of property by any Restricted Subsidiary to the Borrowers or to a wholly-owned
Restricted Subsidiary; provided that if the transferor of such property
is a Guarantor, the transferee thereof must either be the Borrowers or a
Guarantor;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


(f)                                    Dispositions
by the Borrowers and their Restricted Subsidiaries not otherwise permitted
under this Section 7.05; provided that (i) at the time
of such Disposition, no Default shall exist or would result from such
Disposition, and (ii) if the aggregate Net Cash Proceeds from all such
Dispositions exceed $5,000,000, the excess thereof shall be applied as more
particularly set forth in Section 2.07; and


 


(g)                                 Dispositions
of property associated with the Nevada Palace at the time of or in connection
with, the Project;


 


provided, however,
that any Disposition pursuant to clauses (a) through (g) shall be for
fair market value.


 


7.06                        Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except that,


 


(a)                                  so
long as no Default shall have occurred and be continuing at the time of any
action described below or would result therefrom:


 


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(i)                                     each
Subsidiary may make Restricted Payments to the Borrowers, the Guarantors
and any other Person that owns an Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;


 


(ii)                                  the
Borrowers and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the common stock or other common Equity
Interests of such Person;


 


(iii)                               the
Borrowers and each Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common Equity
Interests; and


 


(iv)                              from
and after the Third Closing, CCR may make a distribution of up to $6
million plus interest to MGIM for the purpose of repaying the loan of the same
amount by InvestCo to MGIM;


 


(b)                                 for
so long as CCR is treated as a partnership or other substantially similarly
treated pass-through entity for United States federal income tax purposes, CCR
shall be permitted to make Restricted Payments to the members of CCR, in an
amount not to exceed the Tax Amount for the related period; provided, however,
that (i) prior to any distributions of Tax Amounts, CCR shall deliver an
officers’ certificate to the Administrative Agent to the effect that CCR is a
partnership or other substantially similarly treated pass-through entity, for
United States federal income tax purposes and (ii) at the time of such
distributions, the most recent audited financial statements of CCR required to
have been furnished pursuant to Section 6.01(a) reflect that
CCR is treated as a partnership or other substantially similarly treated
pass-through entity for United States federal income tax purposes for the
period covered by such financial statements; and provided  further
that no such Restricted Payment shall be made if the Administrative Agent shall
have given the Borrowers notice of the existence and continuance of an Event of
Default under Section 7.11(a);


 


(c)                                  so
long as no Default under Section 8.01(a) or Event of Default
shall have occurred and be continuing at the time thereof or that would result
therefrom, the Borrowers may pay management fees to Millennium Management Group
II, LLC in the following amounts: (a) with respect to the Cannery,
$1,000,000 per year, (b) with respect to the Rampart, $2,000,000 per year
and (c) with respect to the Cannery II or any other new project following
its opening, the greater of $750,000 or 4% of such property’s EBITDA per fiscal
year, all of which fees shall increase annually by the percentage increase in
the CPI from and after December 31, 2005; and


 


(d)                                 Nevada
Palace, LLC may make lease payments to NP Land in an amount not to exceed
$2,100,000 (increased annually by the percentage increase in the CPI from and
after December 31, 2005) in any calendar year in accordance with the
Nevada Palace Lease.


 


7.07                        Change
in Nature of Business.


 


(a)                                  Except
with the approval of the Required Lenders, engage in any material line of
business substantially different from those lines of business conducted by the


 


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Borrowers and
their Subsidiaries on the date hereof or any business substantially related or
incidental thereto, other than an Approved Acquisition.


 


(b)                                 Amend
or modify the Rampart Lease, if such amendment or modification accelerates
or increases payments thereunder or shortens the term thereof, or reduces the
amount of any payment to Rampart pursuant to Section 2.9 thereof,
without the prior written consent of the Required Lenders.


 


7.08                        Transactions
with Affiliates. Except as set forth on Schedule 7.08, enter
into any transaction of any kind with any Affiliate of the Borrowers, whether
or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to the Borrowers or such Restricted Subsidiary
as would be obtainable by the Borrowers or such Subsidiary at the time in a
comparable arm’s length transaction with a Person other than an Affiliate,
provided that the foregoing restriction shall not apply to transactions between
or among the Borrowers and any Guarantor or between and among any Guarantors.


 


7.09                        Burdensome
Agreements. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability (i) of
any Restricted Subsidiary to make Restricted Payments to the Borrowers or any
Guarantor or to otherwise transfer property to the Borrowers or any Guarantor, (ii) of
any Restricted Subsidiary to Guarantee the Indebtedness of the Borrowers or (iii) of
the Borrowers or any Restricted Subsidiary to create, incur, assume or suffer
to exist Liens on property of such Person; provided, however,
that this clause (iii) shall not prohibit any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under Section 7.03(e) or
(g) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires
the grant of a Lien to secure an obligation of a Borrower or a Subsidiary
thereof if a Lien is granted to secure another obligation of such Person.


 


7.10                        Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.


 


7.11                        Financial
Covenants.


 


(a)                                  Consolidated
Fixed Charges Coverage Ratio. Permit the Consolidated Fixed Charges Coverage
Ratio as of the end of any fiscal quarter of the Borrowers to be less than 1.25
to 1.00 (or such other ratio as may be specified by the Required Lenders
in connection with their approval of any Replacement Project).


 


(b)                                 Consolidated
Total Leverage Ratio. If the Borrowers shall undertake the redevelopment of the
Nevada Palace, permit the Consolidated Total Leverage Ratio as of the end of
any fiscal quarter of the Borrowers set forth below to be greater than the
ratio set forth below opposite such date (or such other ratios as may be
specified by the Required Lenders in connection with their approval of any
Replacement Project):


 


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  Four Fiscal Quarters Ending

  	
   

  	
  Maximum

  Consolidated

  Total Leverage

  Ratio

  
	
  March 31, 2006 through the fiscal quarter preceding commencement
  of construction of Cannery II (“Construction Commencement”)

  	
   

  	
  3.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  Fiscal quarter of Construction Commencement and next 2 fiscal
  quarters

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  Next 4 fiscal quarters

  	
   

  	
  4.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  Next fiscal quarter

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  Next fiscal quarter

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  Next 2 fiscal quarters

  	
   

  	
  3.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  3.00 to 1.00

  






 


provided, however,
that in the event that the Borrowers shall decide not to develop the Cannery II
and do not propose a Replacement Project (or a proposed Replacement Project is
not approved by the Required Lenders), then the Consolidated Total Leverage
Ratio shall not exceed 3.5 to 1.0 from March 31, 2006 through June 30,
2007 and 3.0 to 1.0 thereafter;


 


provided  further
that if an Approved Acquisition shall be consummated and in connection therewith
the Borrowers shall issue any Subordinated Debt, (a) the ratios set forth
above shall cease to be operative and the maximum Consolidated Total Leverage
Ratio at any time during any period of four fiscal quarters of the Borrowers
shall not exceed 5.0 to 1.0 and (b) the maximum Consolidated Senior
Leverage Ratio, if introduced by the Required Lenders, at any time during any
period of four fiscal quarters of the Borrowers shall not exceed 3.25 to 1.0
(or such lesser ratios as may be specified by the Required Lenders in
connection with their approval of such Approved Acquisition); and


 


provided, further,
that in the event that the Rampart Lease has been terminated and the Lease
Termination Payment has been applied in accordance with Section 2.07(b)(F),
then the Consolidated Total Leverage Ratio and, if applicable, the Consolidated
Senior Leverage Ratio set forth above shall be increased by 0.50 for all
measurement periods.


 


7.12                        Capital
Expenditures. Make or become legally obligated to make any expenditure in
respect of the purchase or other acquisition of any fixed or capital asset
except for (a) Maintenance Capital Expenditures in any fiscal year in an
amount not to exceed the greater of (i) 5% of the Borrowers’ consolidated
net revenue for the most recent fiscal year for which a Compliance Certificate
has been delivered pursuant to Section 6.02(b) or (ii) $10,000,000;


 


84

















 


provided,
however, that so long as no Default has occurred and is continuing or
would result from such expenditure, any portion of such amount, if not expended
in the fiscal year for which it is permitted, may be carried over to the
following fiscal year, (b) Capital Expenditures of up to $160,000,000 to
develop and construct the Cannery II or any approved Replacement Project, (c) Capital
Expenditures to complete the construction of the proposed expansion of the
Cannery (to include the multi-screen movie theater and other features) in
accordance with the budget for such project, (d) prior to the acquisition
of certain assets of the Nevada Palace by CCR, CCR and its Subsidiaries shall
not make Investments in, or make Capital Expenditures in respect of, Nevada
Palace, LLC or the Nevada Palace in excess of $10,000,000, except in connection
with the Schiff Land Purchase,(e) other non-Maintenance Capital
Expenditures in an aggregate amount not to exceed $10,000,000 from the Closing
Date through the Maturity Date, (f) amounts used to purchase certain
assets of the Nevada Palace by CCR in accordance with Section 6.11(d) hereof,
(g) amounts used to effect the Schiff Land Purchase in accordance with Section 6.11(f) hereof,
and (h) Capital Expenditures of up to $175,000,000 in connection with an
Approved Acquisition so long as not less than $125,000,000 thereof is from the
proceeds of Subordinated Debt and both before and after giving effect thereto
no Default has occurred and is continuing or would result from such
expenditure; provided, however, that so long as no Default has
occurred and is continuing or would result from such expenditure, any portion
of any amount set forth above, if not expended in the fiscal year for which it
is permitted above, may be carried over to the next following fiscal year.


 


7.13                        Payment
of Subordinated Debt. Prepay any principal (including sinking fund
payments) or any other amount with respect to any Subordinated Debt, or
purchase or redeem (or offer to purchase or redeem) any Subordinated Debt prior
to the scheduled maturity date thereof, or deposit any monies, securities or
other Property with any trustee or other Person to provide assurance that the
principal or any portion thereof of any Subordinated Debt will be paid when due
or otherwise to provide for the defeasance of any Subordinated Debt provided
that so long as no Default then exists or would result therefrom, the
Borrowers may make payments of scheduled interest on any Subordinated Debt
in accordance with the terms thereof.


 


7.14                        Construction
of the Project. In the event that the Borrowers elect to construct the
Cannery II or any Replacement Project,


 


(a)                                  fail
to diligently pursue such Project to Completion in accordance with the Plans
and Specifications, Budget and Timetable;


 


(b)                                 fail
to provide the Construction Consultant with all reasonably requested access to
the Project’s construction site without unreasonable delay (including any
advance notice which is reasonable under the circumstances), and access to the
Plans and Specifications, Budget, Timetable, all related plans, budgets,
drawings, timetables, and other related papers, including a status report and
log describing all executed contracts and subcontracts to which Borrowers or
any of their Subsidiaries are party for such work, and the then current lists
of the names, addresses and telephone numbers of each material contractor,
material subcontractor and material supplier with respect to such Project and
the dollar value and amounts paid with respect to the related contracts;


 


85

















 


(c)                                  fail
to cause the architect and prime contractor for the Project to promptly and in
any event within 15 days of the date of any written request by the
Administrative Agent to certify, in the manner contemplated by an Application
and Certification for Payment in the form commonly referred to as American
Institute of Architects Document G702 and a detailed continuation sheet in the form commonly
referred to as American Institute of Architects Document G703, that the
construction of the Project conforms, as of a specified date, in all material
respects to the Plans and Specifications, and that amounts payable to the
Contractor in connection therewith are in conformity with the Budget;


 


(d)                                 fail
to maintain a full set of the current working drawings available for review by
the Construction Consultant at the construction office for the Project or at
another location reasonably acceptable to the Construction Consultant;


 


(e)                                  amend
the Timetable in any manner which would defer the completion of any material
construction benchmark set forth therein unless the prime contractor concurs
that such amendment will not cause the Borrowers to fail to achieve Completion
of that Project by the date which is twenty-four (24) months from the start of
construction or fail to provide the Construction Consultant, if requested, with
a letter from the prime contractor to the Construction Consultant indicating
its concurrence that the revised Timetable is reasonable and feasible;


 


(f)                                    amend
the Budget in a manner which both deviates from the Budget approved by the Construction Consultant and
which increases the overall Budget to an amount (including for this purpose,
capitalized interest and capitalized pre-opening expenses) which would result
in prospective non-compliance with Section 6.17 or Section 7.12;


 


(g)                                 fail
to construct the Project in a good and workmanlike manner in accordance with
sound building practices and without material deviation from the Plans and
Specifications, and comply in all material respects with all existing Laws and
requirements of all Governmental Authorities having jurisdiction over the
Project;


 


(h)                                 fail
to promptly pay prior to delinquency (subject to applicable retentions) or
otherwise discharge all Liens and other material claims for labor done and
materials and services furnished in connection with the construction of the
Project, except for Liens and other claims contested in good faith by
appropriate actions and without prejudice to the Timetable except to the extent
not prohibited hereby, provided that any such claims and Liens are
covered by such payment bonds or title insurance policy endorsements as may be
reasonably requested by the Administrative Agent;


 


(i)                                     fail
to properly obtain as and when required, comply with and keep in effect all
material permits, licenses and approvals which are required to be obtained from
Government Agencies in order to construct and occupy the Project as of the then
current stage of construction;


 


(j)                                     fail
to make the permits, licenses and approvals required by clause (i) of this
Section available for review by the Construction Consultant and deliver
copies of all such permits, licenses and approvals to the Construction
Consultant promptly following a written request therefor;


 


86

















 


(k)                                  fail
to promptly notify the Construction Consultant if Borrowers pay $2,500,000 or
more, in the aggregate, for any tangible construction materials for the Project
that are not located on the site of the Project, or will not be delivered
within thirty days after such payment (describing such construction materials,
the purchase price therefor and the location thereof) and, if requested by the
Construction Consultant in writing provide to the Construction Consultant the
written acknowledgment of the Person having custody of such construction
materials of the existence of the Construction Consultant’s Lien on such
construction materials and the right of the Construction Consultant, as against
such Person, to have access to and to remove such construction materials
(subject to the requirement of the payment of any remaining purchase price for
such materials);


 


(l)                                     fail
on or before the opening for business of the Project, to provide the
Administrative Agent with a written certificate executed by the prime
architect, prime contractor and the Construction Consultant (and any other
relevant contracting parties reasonably requested by the Construction
Consultant) certifying that such Project has been completed in all material
respects in accordance with the Plans and Specifications and that the Project
has been or is ready to be opened for business together with a Certificate
executed by a Responsible Officer to that effect;


 


(m)                               fail
promptly, and in any event within ten Business Days of any written request by
the Construction Consultant, to provide to the Construction Consultant such
assurances as the Construction Consultant may reasonably require that the
Project complies in all material respects with all applicable zoning, building
and land use Laws; or


 


(n)                                 fail,
as soon as practicable after the substantial completion of the physical
improvements associated with the Project, to provide the Administrative Agent
with an “as built” ALTA survey of that Project as of the date of Completion
that (i) sets forth all recorded easements and licenses burdening the
project site as of Completion, (ii) reflects no unpermitted encroachments
onto that property or onto adjoining real property, and (iii) certifies
the legal description of the property subject to the related Deed of Trust in
favor of the Administrative Agent to be the same as that set forth in the
related title insurance policies, together with an endorsement to its ALTA
policy of title insurance covering the Project that reflects the elements
contained in this clause (n) and the Lien-free completion of the Project (other
than encumbrances reflected in such title policy or which are otherwise treated
as Permitted Liens).


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01                        Events
of Default. Any of the following shall constitute an Event of Default:


 


(a)                                  Non-Payment.
The Borrowers or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three Business Days after the same becomes due,
any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) within three Business Days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or


 


87

















 


(b)                                 Specific
Covenants. The Borrowers fail to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.07, 6.10, 6.11 or 6.18 or Article VII; or


 


(c)                                  Other
Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days; or


 


(d)                                 Representations
and Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of a Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or


 


(e)                                  Cross-Default.
(i) Any Borrower or any Restricted Subsidiary (A) fails to make any
payment when due after giving effect to any applicable notice and cure periods
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than $7,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, in each case after giving effect to any
applicable notice and cure periods, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an “Early Termination Date” (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which any Borrower or any Restricted Subsidiary is the “Defaulting
Party” (as defined in such Swap Contract) or (B) any “Termination Event”
(as so defined) under such Swap Contract as to which any Borrower or any
Restricted Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by such Borrower or such Restricted Subsidiary
as a result thereof is greater than $7,000,000 and the Borrower or such
Restricted Subsidiary, as the case may be, has not paid such “Termination
Value” within 60 days of the due date thereof, unless such termination or such “Termination
Value” is being contested in good faith by appropriate proceedings and
appropriate reserves in accordance with GAAP have been established; or


 


(f)                                    Insolvency
Proceedings, Etc. Any Loan Party or any of its Significant Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,


 


88

















 


conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)                                 Inability
to Pay Debts; Attachment. (i) Any Loan Party or any of its Significant
Subsidiaries becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against all
or any material part of the property of any such Person and is not
released, vacated or fully bonded within 60 days after its issue or levy; or


 


(h)                                 Judgments.
There is entered against any Borrower or any Restricted Subsidiary (i) a
final judgment or order for the payment of money in an aggregate amount
exceeding $7,500,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 20
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


(i)                                     ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability
of any Borrower under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) any
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $5,000,000; or


 


(j)                                     Invalidity
of Loan Documents. Any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or


 


(k)                                  Change
of Control. There occurs any Change of Control; or


 


(l)                                     License
Revocation. The occurrence of a License Revocation that continues for seven
consecutive calendar days with respect to gaming operations at any gaming
facility of any Borrower or any Significant Subsidiary or the denial by the
applicable Gaming Board of the applications described in Section 6.18
or the withdrawal of such applications; or


 


(m)                               Governmental
Approvals. Any Loan Party shall fail to obtain, renew, maintain or comply
with any such governmental approvals as shall be necessary (1) for the
execution, delivery or performance by such Loan Party of its obligations, or the
exercise of its rights, under


 


89

















 


the
Loan Documents, or (2) for the grant of the Liens created under the Deeds
of Trust, the Pledge Agreement or the Security Agreement or for the validity
and enforceability or the perfection of or exercise by the Administrative Agent
of its rights and remedies under the Deeds of Trust, the Pledge Agreement or
the Security Agreement; or any such governmental approval shall be revoked,
terminated, withdrawn, suspended, modified or withheld or shall cease to be
effective; or any proceeding shall be commenced by or before any Governmental
Authority for the purpose of revoking, terminating, withdrawing, suspending,
modifying or withholding any such governmental approval and such proceeding is
not dismissed within 60 days; or


 


(n)                                 Subordinated
Debt. The subordination provisions of any Subordinated Debt cease to be in
full force and effect; or any Loan Party or any other Person contests in any
manner the validity or enforceability of such subordination provisions.


 


8.02                        Remedies
Upon Event of Default. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request of, or may, with the consent of,
the Required Lenders, take any or all of the following actions:


 


(a)                                  declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)                                 declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrowers;


 


(c)                                  require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal
to the then Outstanding Amount thereof); and


 


(d)                                 exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


8.03                        Application
of Funds. After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized
as set forth in the proviso to Section 8.02), any amounts received
on account of the Obligations shall be applied by the Administrative Agent in
the following order:


 


90

















 


First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;


 


Second, to payment
of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal, interest and Letter of Credit Fees) payable to
the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III),
ratably among them in proportion to the respective amounts described in this
clause Second payable to them;


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid Letter of
Credit Fees and interest on the Loans, L/C Borrowings and other Obligations,
ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;


 


Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans
and L/C Borrowings and payments due to any Lender or Affiliate of a Lender
under a Swap Contract, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Fourth
held by them;


 


Fifth, to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and


 


Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrowers or as otherwise required by Law.


 


Subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01                        Appointment
and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither any Borrower nor any other Loan Party
shall have rights as a third party beneficiary of any of such
provisions.


 


9.02                        Rights
as a Lender. The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may


 


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exercise
the same as though it were not the Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrowers or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.


 


9.03                        Exculpatory
Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Administrative
Agent:


 


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable law; and


 


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrowers or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by a Borrower, a Lender or the L/C Issuer.


 


The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV


 


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or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.


 


9.04                        Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Administrative Agent also may rely
upon any statement made to it orally or by telephone and reasonably believed by
it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to
such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be
counsel for the Borrowers), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


9.05                        Delegation
of Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may perform any
and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06                        Resignation
of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrowers. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrowers, to appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the L/C Issuer under any of the Loan
Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to


 


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each
Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrowers to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrowers and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing
Line Lender. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit.


 


9.07                        Non-Reliance
on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document
or any related agreement or any document furnished hereunder or thereunder.


 


9.08                        No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Syndication Agent, the Documentation Agent, the
Sole Lead Arranger or the Sole Book Manager listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.


 


9.09                        Administrative
Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of any
Loan or L/C Obligation shall then be due and


 


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payable
as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and the L/C Issuer to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.


 


Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.


 


9.10                        Collateral
and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,


 


(a)                                  to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii) that
is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 10.01,
if approved, authorized or ratified in writing by the Required Lenders;


 


(b)                                 to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 7.01; and


 


(c)                                  to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


 


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Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s authority to release
or subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.


 


ARTICLE X.

MISCELLANEOUS


 


10.01                 Amendments,
Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrowers or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrowers or the applicable Loan Party, as the case may be,
and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such amendment,
waiver or consent shall:


 


(a)                                  waive
any condition set forth in Section 4.01(a) without the written
consent of each Lender;


 


(b)                                 extend
or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of
such Lender;


 


(c)                                  postpone
any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the
Lenders (or any of them) or any scheduled or mandatory reduction of the
Aggregate Commitments hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;


 


(d)                                 reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of the Borrowers to pay interest or Letter of Credit Fees at the
Default Rate or (ii) except as otherwise provided in clause (i) below,
to amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


(e)                                  change
Section 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender;


 


(f)                                    change
any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of
each Lender;


 


(g)                                 impose
any greater restriction on the ability of any Lender to assign any of its
rights or obligations hereunder without the written consent of Lenders having
more than 50% of


 


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the
Aggregate Credit Exposures then in effect within each of the following classes
of Commitments, Loans and other Credit Extensions:  (i) the class consisting of the
Revolving Commitment, and (ii) the class consisting of the Term Loan
Commitment. For purposes of this clause the aggregate amount of each Revolving
Lender’s risk participation and funded participation in L/C Obligations and
Swing Line Loans shall be deemed to be held by such Revolving Lender;


 


(h)                                 release
any Guarantor from the Guaranty (except as specified therein) or to release or
subordinate any portion of the Collateral having an aggregate value in excess
of $5,000,000 without the written consent of each Lender; or


 


(i)                                     approve
any increase in the maximum Consolidated Total Leverage Ratio to a ratio which
is in excess of 5.00 to 1.00 or, if such ratio shall be introduced in
connection with an Approved Acquisition, any increase in the maximum
Consolidated Senior Leverage Ratio to a ratio which is in excess of 3.25 to
1.00, except as specifically contemplated by the second proviso to Section 7.11(b),
without the written consent of each Lender;


 


and, provided  further, that (i) no amendment, waiver
or consent shall, unless in writing and signed by the L/C Issuer in addition to
the Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders
required above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; (iv) Section 10.06(h) may not
be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the
time of such amendment, waiver or other modification; and (v) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, nor will such Defaulting
Lender’s Commitment or Loans be included for the purposes of determining
Aggregate Revolving Commitments, the Term Loan Commitments or the Total
Outstandings or the Required Lenders for purposes of this Section 10.01,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.


 


10.02                 Notices;
Effectiveness; Electronic Communication.


 


(a)                                  Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:


 


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(i)                                     if
to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and


 


(ii)                                  if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


 


Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as
provided in such subsection (b).


 


(b)                                 Electronic
Communications. Notices and other communications to the Lenders and the L/C
Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall
not apply to notices to any Lender or the L/C Issuer pursuant to Article II
if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrowers may, in
their discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.


 


Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient
(such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement), provided that if such notice
or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


 


(c)                                  The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of
its Related Parties (collectively, the “Agent Parties”) have any
liability to the


 


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Borrowers,
any Lender, the L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrowers’ or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrowers, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


(d)                                 Change
of Address, Etc. Each of the Borrowers, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the Borrowers, the Administrative Agent, the L/C Issuer and the
Swing Line Lender. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be
sent and (ii) accurate wire instructions for such Lender.


 


(e)                                  Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent,
the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrowers even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify the Administrative Agent, the L/C
Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrowers. All telephonic
notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


10.03                 No
Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder 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.


 


10.04                 Expenses;
Indemnity; Damage Waiver.


 


(a)                                  Costs
and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and of the Construction Consultant), in connection with the syndication
of the credit facilities provided for herein, the


 


99

















 


preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any
Lender or the L/C Issuer (including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the
L/C Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


 


(b)                                 Indemnification
by the Borrowers. The Borrowers shall indemnify the Administrative Agent
(and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee) incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrowers or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrowers
or any of their Subsidiaries, or any Environmental Liability related in any way
to the Borrowers or any of their Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrowers or any other Loan Party, and regardless
of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrowers or any
other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrowers or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders. To the extent that the Borrowers for any reason fails to pay
any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-


 


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agent),
the L/C Issuer or such Related Party, as the case may be, such Lender’s
Pro Rata Share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against
the Administrative Agent (or any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting
for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)                                 Waiver
of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrowers shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.


 


(e)                                  Payments.
All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.


 


(f)                                    Survival.
The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer,
the replacement of any Lender, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.


 


10.05                 Payments
Set Aside. To the extent that any payment by or on behalf of the Borrowers
is made to the Administrative Agent, the L/C Issuer or any Lender, or the
Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


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10.06                 Successors
and Assigns.


 


(a)                                  Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of
pledge or assignment of a security interest subject to the restrictions of subsection (f) of
this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of
this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                                 Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that


 


(i)                                     except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of such Commitment (which for this
purpose includes Loans outstanding thereunder) or, if such Commitment is not
then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrowers otherwise
consent (each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;


 


(ii)                                  each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii) shall
not apply to rights in respect of Swing Line Loans;


 


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(iii)                               any
assignment of a Term Loan Commitment must be approved by the Administrative
Agent (which approval shall not be unreasonably withheld or delayed) unless the
Person that is the proposed assignee is itself a Lender, an Affiliate of a
Lender or an Approved Fund (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee);


 


(iv)                              any
assignment of a Revolving Commitment must be approved by (A) the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals
shall not be unreasonably withheld or delayed) unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee) and (B) so long as no
Event of Default has occurred and is continuing, the Borrowers (which approval
shall not be unreasonably withheld or delayed) unless the Person that is the
proposed assignee is itself a Lender, an Affiliate of a Lender or an Approved
Fund (whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and


 


(v)                                 the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount, if any, required as set forth in Schedule 10.06,
and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrowers (at their expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d) of
this Section.


 


(c)                                  Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrowers and the L/C


 


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Issuer
at any reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender may request
and receive from the Administrative Agent a copy of the Register.


 


(d)                                 Participations.
Any Lender may at any time, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrowers or any of the Borrowers’ Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement.


 


Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 10.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section, provided, that any such payment shall make the Lender granting
such participation subject to the terms of Section 10.13. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13
as though it were a Lender.


 


(e)                                  Limitations
upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrowers’ prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless
the Borrowers are notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)                                    Certain
Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


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(g)                                 Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.


 


(h)                                 Special
Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrowers (an “SPC”)
the option to provide all or any part of any Committed Loan that such
Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Committed Loan, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Committed Loan, the Granting Lender shall be obligated to make such Committed
Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.12(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor
the exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrowers under this
Agreement (including its obligations under Section 3.04), (ii) no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver
or other modification of any provision of any Loan Document, remain the lender
of record hereunder. The making of a Committed Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Committed Loan were made by such 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
senior debt 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 proceeding under the laws of the United States or
any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of the
Borrowers and the Administrative Agent and with the payment of a processing fee
in the amount of $2,500, assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Committed Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.


 


(i)                                     Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Commitment and Loans pursuant to subsection (b) above,
Bank of America may, (i) upon 30 days’ notice to the Borrowers and the
Revolving Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice
to the Borrowers, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be entitled
to appoint from among the Revolving Lenders a successor L/C Issuer or Swing
Line


 


105

















 


Lender
hereunder; provided, however, that no failure by the Borrowers to
appoint any such successor shall affect the resignation of the previous L/C
Issuer or Swing Line Lender, as the case may be. A resigning L/C Issuer
shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Revolving Lenders to make Base Rate
Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). A resigning Swing Line Lender shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to
Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Revolving Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the resigning L/C Issuer
to effectively assume the obligations of the resigning L/C Issuer with respect
to such Letters of Credit.


 


10.07                 Treatment
of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrowers and their
obligations, (g) with the consent of the Borrowers or (h) to the
extent such Information (x) becomes publicly available other than as a result
of a breach of this Section or (y) becomes available to the Administrative
Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrowers and not known to
them to be under any duty of confidentiality to the Borrowers or their
Subsidiaries.


 


For purposes of this Section, “Information” means all
information received from the Loan Parties or their Affiliates relating to any
Loan Party, any Affiliate thereof, any Borrower or any of its Subsidiaries or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrowers or any Subsidiary. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied


 


106

















 


with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrowers or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.


 


10.08                 Right
of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, after obtaining the prior written
consent of the Administrative Agent, to
the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any
and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement
or any other Loan Document to such Lender or the L/C Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under
this Agreement or any other Loan Document and although such obligations of the
Borrowers or such Loan Party may be contingent or unmatured or are owed
to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Anything in this Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no
Lender shall take any action to protect or enforce its rights arising out of
this Agreement or any other Loan Document (including exercising any rights of
setoff) without first obtaining the prior written consent of Agent and Required
Lenders, it being the intent of Lenders that any such action to protect or
enforce rights under this Agreement and the other Loan Documents shall be taken
in concert and at the direction or with the consent of Agent or Required
Lenders.


 


10.09                 Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by
applicable Law (the “Maximum Rate”). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrowers. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder, in each case, provided
that the Loan Parties are not thereby required to make any greater payments
hereunder than would be required prior to any such action.


 


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10.10                 Counterparts;
Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


10.11                 Survival
of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or
any Letter of Credit shall remain outstanding.


 


10.12                 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


10.13                 Replacement
of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender ceases to make Eurodollar Rate Loans pursuant to Section 3.02,
or if
any Lender is a Defaulting Lender or if
any other circumstance exists hereunder that gives the Borrowers the right to
replace a Lender as a party hereto, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), 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:


 


(a)                                  the
Borrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);


 


108

















 


(b)                                 such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts);


 


(c)                                  in
the case of any such assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such
assignment will result in avoidance of or a reduction in such compensation or
payments thereafter; and


 


(d)                                 such
assignment does not conflict with applicable Laws.


 


A Lender shall not be required to make any such assignment or
delegation if, prior thereto, such Lender waives receipt of compensation under Section 3.04
or payment to it or on its behalf of additional amounts pursuant to Section 3.01
and such Lender reimburses Borrowers for any amounts previously paid.


 


10.14                 Governing
Law; Jurisdiction; Etc.


 


(a)                                  GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEVADA.


 


(b)                                 SUBMISSION
TO JURISDICTION. THE BORROWERS AND
EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMIT, FOR
THEMSELVES AND THEIR PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEVADA SITTING
IN CLARK COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF NEVADA, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEVADA
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING
IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWERS OR ANY
OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c)                                  WAIVER
OF VENUE. THE BORROWERS AND EACH
OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY


 


109

















 


NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


 


(d)                                 SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.


 


10.15                 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


10.16                 USA
PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrowers in
accordance with the Act.


 


10.17                 Cooperation
with Gaming Boards. The Administrative Agent and each of the Lenders
hereunder agrees to cooperate with the Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrowers and their
Subsidiaries, including the provision of such documents or other information as
may be requested by such Gaming Boards relating to Borrowers or any of the
Subsidiaries or to the Loan Documents. The Borrowers and each of their
Affiliates hereby consents to any such disclosure by the Lenders and
Administrative Agent to any Gaming Board and releases such parties from any
liability for any such disclosure. The rights, remedies and powers provided in
this Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of the


 


110

















 


Gaming
Laws and if prior approval of any Gaming Boards is required therefor, such
approval shall be obtained.


 


111

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.


 


	
   

  	
  CANNERY
  CASINO RESORTS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  J. Paulos

  	
   

  
	
   

  	
  Name:

  	
  William J.
  Paulos

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  THE
  CANNERY HOTEL AND CASINO, LLC

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Cannery
  Casino Resorts, LLC

  
	
   

  	
  Its:

  	
  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  J. Paulos

  	
   

  
	
   

  	
  Name:

  	
  William J.
  Paulos

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  RAMPART RESORT
  MANAGEMENT, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Cannery
  Casino Resorts, LLC

  
	
   

  	
  Its:

  	
  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  J. Paulos

  	
   

  
	
   

  	
  Name:

  	
  William J.
  Paulos

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  NEVADA
  PALACE, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Cannery
  Casino Resorts, LLC

  
	
   

  	
  Its:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J.
  Paulos

  	
   

  
	
   

  	
  Name:

  	
  William J.
  Paulos

  
	
   

  	
  Title:

  	
  Manager

  
						



 


S-1

















 


	
   

  	
  BANK OF
  AMERICA, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris M.
  Levine

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Chris M.
  Levine

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  	
   

  
						



 


S-2

















 


	
   

  	
  BANK OF
  AMERICA, N.A., as a Lender, L/C

  
	
   

  	
  Issuer and
  Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter J.
  Vitale

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Peter J.
  Vitale

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-3

















 


	
   

  	
  CIT
  LENDING SERVICES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven
  K. Reedy

  	
   

  
	
   

  	
  Name:

  	
  Steven K.
  Reedy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


S-4

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  DiBiasi

  	
   

  
	
   

  	
  Name:

  	
  Peter
  DiBiasi

  	
   

  
	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  	
   

  
						



 


S-5

















 


	
   

  	
  ALLIED
  IRISH BANKS, P.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  Farrar

  	
   

  
	
   

  	
  Name:

  	
  John Farrar

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-6

















 


	
   

  	
  BANK OF
  SCOTLAND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen
  Weich

  	
   

  
	
   

  	
  Name:

  	
  Karen Weich

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  	
   

  
						



 


S-7

















 


	
   

  	
  COMERICA
  WEST INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan C.
  Camden

  	
   

  
	
   

  	
  Name:

  	
  Bryan C.
  Camden

  	
   

  
	
   

  	
  Title:

  	
  Corporate
  Banking Officer

  	
   

  
						



 


S-8

















 


	
   

  	
  COMMUNITY
  BANK OF NEVADA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce
  Ford

  	
   

  
	
   

  	
  Name:

  	
  Bruce Ford

  	
   

  
	
   

  	
  Title:

  	
  Chief Credit
  Officer

  	
   

  
						



 


S-9

















 


	
   

  	
  FIRST
  NATIONAL BANK OF NEVADA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E.
  Philip Potamitis

  	
   

  
	
   

  	
  Name:

  	
  E. Philip
  Potamitis

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
						



 


S-10

















 


	
   

  	
  HIBERNIA
  NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris
  Haskew

  	
   

  
	
   

  	
  Name:

  	
  Chris Haskew

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-11

















 


	
   

  	
  NEVADA
  FIRST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vincent
  Telles

  	
   

  
	
   

  	
  Name:

  	
  Vincent
  Telles

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-12

















 


	
   

  	
  NEVADA
  STATE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  Rimpo

  	
   

  
	
   

  	
  Name:

  	
  James Rimpo

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-13

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denette
  Corrales

  	
   

  
	
   

  	
  Name:

  	
  Denette Corrales

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


S-14

















 


	
   

  	
  WELLS
  FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peitty
  Chou

  	
   

  
	
   

  	
  Name:

  	
  Peitty Chou

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


S-15