Exhibit 4.1




 





 


 


CREDIT AGREEMENT




Dated as of November 7, 2007




among


 


STATION CASINOS, INC.

as Borrower,


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Administrative Agent




THE OTHER LENDERS PARTY HERETO,




DEUTSCHE BANK SECURITIES INC. and


J.P. MORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners,


 


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent




and


 


 


BANK OF SCOTLAND plc,


BANK OF AMERICA, N.A., and


WACHOVIA BANK, N.A.,




as Co-Documentation Agents




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS
  AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01. Defined
  Terms

  	
   

  	
  1

  
	
  SECTION 1.02. Other
  Interpretive Provisions

  	
   

  	
  44

  
	
  SECTION 1.03. Accounting
  Terms

  	
   

  	
  44

  
	
  SECTION 1.04. Rounding

  	
   

  	
  45

  
	
  SECTION 1.05. References
  to Agreements, Laws, Etc.

  	
   

  	
  45

  
	
  SECTION 1.06. Times of Day

  	
   

  	
  45

  
	
  SECTION 1.07. Timing of
  Payment or Performance

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE
  COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. The
  Revolving Credit Borrowings

  	
   

  	
  45

  
	
  SECTION 2.02. Borrowings,
  Conversions and Continuations of Loans

  	
   

  	
  45

  
	
  SECTION 2.03. Letters of
  Credit

  	
   

  	
  47

  
	
  SECTION 2.04. Swing Line
  Loans

  	
   

  	
  54

  
	
  SECTION 2.05. Prepayments

  	
   

  	
  56

  
	
  SECTION 2.06. Termination
  or Reduction of Commitments.

  	
   

  	
  59

  
	
  SECTION 2.07. Repayment of
  Loans

  	
   

  	
  59

  
	
  SECTION 2.08. Interest

  	
   

  	
  59

  
	
  SECTION 2.09. Fees

  	
   

  	
  60

  
	
  SECTION 2.10. Computation
  of Interest and Fees

  	
   

  	
  60

  
	
  SECTION 2.11. Evidence of
  Indebtedness

  	
   

  	
  61

  
	
  SECTION 2.12. Payments
  Generally

  	
   

  	
  61

  
	
  SECTION 2.13. Sharing of
  Payments

  	
   

  	
  63

  
	
  SECTION 2.14. Incremental
  Credit Extensions

  	
   

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE III TAXES,
  INCREASED COSTS PROTECTION AND ILLEGALITY

  	
   

  	
  65

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. Taxes

  	
   

  	
  65

  
	
  SECTION 3.02. Illegality

  	
   

  	
  67

  
	
  SECTION 3.03. Inability to
  Determine Rates

  	
   

  	
  67

  
	
  SECTION 3.04. Increased
  Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Loans

  	
   

  	
  68

  
	
  SECTION 3.05. Funding
  Losses

  	
   

  	
  68

  
	
  SECTION 3.06. Matters
  Applicable to All Requests for Compensation

  	
   

  	
  69

  
	
  SECTION 3.07. Replacement
  of Lenders under Certain Circumstances

  	
   

  	
  70

  
	
  SECTION 3.08. Survival

  	
   

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
  71

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01. Conditions
  of Initial Credit Extension

  	
   

  	
  71

  
	
  SECTION 4.02. Conditions
  to All Credit Extensions

  	
   

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01. Existence,
  Qualification and Power; Compliance with Laws

  	
   

  	
  75

  
	
  SECTION 5.02. Authorization;
  No Contravention

  	
   

  	
  75

  



 

















 


	
  SECTION 5.03. Governmental
  Authorization; Other Consents

  	
   

  	
  75

  
	
  SECTION 5.04. Binding
  Effect

  	
   

  	
  76

  
	
  SECTION 5.05. Financial
  Statements; No Material Adverse Effect

  	
   

  	
  76

  
	
  SECTION 5.06. Litigation

  	
   

  	
  77

  
	
  SECTION 5.07. No Default

  	
   

  	
  77

  
	
  SECTION 5.08. Ownership of
  Property; Liens

  	
   

  	
  77

  
	
  SECTION 5.09.
  Environmental Compliance

  	
   

  	
  78

  
	
  SECTION 5.10. Taxes

  	
   

  	
  79

  
	
  SECTION 5.11. ERISA
  Compliance

  	
   

  	
  79

  
	
  SECTION 5.12.
  Subsidiaries; Equity Interests

  	
   

  	
  79

  
	
  SECTION 5.13. Margin
  Regulations; Investment Company Act

  	
   

  	
  79

  
	
  SECTION 5.14. Disclosure

  	
   

  	
  80

  
	
  SECTION 5.15. Intellectual
  Property; Licenses, Etc.

  	
   

  	
  80

  
	
  SECTION 5.16. Solvency

  	
   

  	
  80

  
	
  SECTION 5.17. Maintenance
  of Insurance.

  	
   

  	
  81

  
	
  SECTION 5.18.
  Subordination of Junior Financing

  	
   

  	
  81

  
	
  SECTION 5.19. Labor
  Matters

  	
   

  	
  81

  
	
  SECTION 5.20. Transaction
  Documentation

  	
   

  	
  81

  
	
  SECTION 5.21. Collateral

  	
   

  	
  81

  
	
  SECTION 5.22. Location of
  Real Property.

  	
   

  	
  81

  
	
  SECTION 5.23. Permits.

  	
   

  	
  81

  
	
  SECTION 5.24. Fiscal Year

  	
   

  	
  81

  
	
  SECTION 5.25. Patriot Act.

  	
   

  	
  82

  
	
  SECTION 5.26. Use of
  Proceeds

  	
   

  	
  82

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  AFFIRMATIVE COVENANTS

  	
   

  	
  82

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. Financial
  Statements

  	
   

  	
  82

  
	
  SECTION 6.02.
  Certificates; Other Information

  	
   

  	
  83

  
	
  SECTION 6.03. Notices

  	
   

  	
  85

  
	
  SECTION 6.04. Payment of
  Obligations

  	
   

  	
  85

  
	
  SECTION 6.05. Preservation
  of Existence, Etc.

  	
   

  	
  86

  
	
  SECTION 6.06. Maintenance
  of Properties

  	
   

  	
  86

  
	
  SECTION 6.07. Maintenance
  of Insurance

  	
   

  	
  86

  
	
  SECTION 6.08. Compliance
  with Laws

  	
   

  	
  86

  
	
  SECTION 6.09. Books and
  Records

  	
   

  	
  86

  
	
  SECTION 6.10. Inspection
  Rights

  	
   

  	
  86

  
	
  SECTION 6.11. Covenant to
  Guarantee Obligations and Give Security

  	
   

  	
  87

  
	
  SECTION 6.12. Compliance
  with Environmental Laws

  	
   

  	
  89

  
	
  SECTION 6.13. Further
  Assurances and Post-Closing Conditions.

  	
   

  	
  89

  
	
  SECTION 6.14. Designation
  of Subsidiaries

  	
   

  	
  90

  
	
   

  	
   

  	
   

  
	
  SECTION 6.15. Information
  Regarding Collateral.

  	
   

  	
  90

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII NEGATIVE
  COVENANTS

  	
   

  	
  90

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01. Liens

  	
   

  	
  91

  
	
  SECTION 7.02. Investments

  	
   

  	
  93

  
	
  SECTION 7.03. Indebtedness

  	
   

  	
  96

  
	
  SECTION 7.04. Fundamental
  Changes

  	
   

  	
  99

  
	
  SECTION 7.05. Dispositions

  	
   

  	
  100

  



 


ii

















 


	
  SECTION 7.06. Restricted
  Payments

  	
   

  	
  101

  
	
  SECTION 7.07. Change in
  Nature of Business

  	
   

  	
  103

  
	
  SECTION 7.08. Transactions
  with Affiliates

  	
   

  	
  103

  
	
  SECTION 7.09. Burdensome
  Agreements

  	
   

  	
  103

  
	
  SECTION 7.10. Use of
  Proceeds

  	
   

  	
  104

  
	
  SECTION 7.11. Financial
  Covenants

  	
   

  	
  104

  
	
  SECTION 7.12. Accounting
  Changes

  	
   

  	
  105

  
	
  SECTION 7.13. Prepayments,
  Etc. of Indebtedness

  	
   

  	
  105

  
	
  SECTION 7.14. Equity
  Interests of the Borrower and Restricted Subsidiaries

  	
   

  	
  106

  
	
  SECTION 7.15. The Holding
  Companies

  	
   

  	
  106

  
	
  SECTION 7.16. Capital
  Expenditures

  	
   

  	
  106

  
	
  SECTION 7.17.
  Sale-Leaseback Transactions

  	
   

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII EVENTS
  OF DEFAULT AND REMEDIES

  	
   

  	
  107

  
	
  0

  	
   

  	
   

  
	
  SECTION 8.01. Events of
  Default

  	
   

  	
  107

  
	
  SECTION 8.02. Remedies
  Upon Event of Default

  	
   

  	
  109

  
	
  SECTION 8.03. Exclusion of
  Immaterial Subsidiaries

  	
   

  	
  110

  
	
  SECTION 8.04. Application
  of Funds

  	
   

  	
  110

  
	
  SECTION 8.05. Borrower’s
  Right to Cure

  	
   

  	
  111

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  ADMINISTRATIVE AGENT AND OTHER AGENTS

  	
   

  	
  111

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01. Appointment
  and Authorization of Agents

  	
   

  	
  111

  
	
  SECTION 9.02. Delegation
  of Duties

  	
   

  	
  112

  
	
  SECTION 9.03. Liability of
  Agents

  	
   

  	
  112

  
	
  SECTION 9.04. Reliance by
  Agents

  	
   

  	
  113

  
	
  SECTION 9.05. Notice of
  Default

  	
   

  	
  113

  
	
  SECTION 9.06. Credit
  Decision; Disclosure of Information by Agents

  	
   

  	
  113

  
	
  SECTION 9.07.
  Indemnification of Agents

  	
   

  	
  114

  
	
  SECTION 9.08. Agents in
  their Individual Capacities

  	
   

  	
  114

  
	
  SECTION 9.09. Successor
  Agents

  	
   

  	
  115

  
	
  SECTION 9.10.
  Administrative Agent May File Proofs of Claim

  	
   

  	
  115

  
	
  SECTION 9.11. Collateral
  and Guaranty Matters

  	
   

  	
  116

  
	
  SECTION 9.12. Other
  Agents; Joint Lead Arrangers and Managers

  	
   

  	
  116

  
	
  SECTION 9.13. Appointment
  of Supplemental Administrative Agents

  	
   

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  MISCELLANEOUS

  	
   

  	
  118

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01. Amendments,
  Etc.

  	
   

  	
  118

  
	
  SECTION 10.02. Notices and
  Other Communications; Facsimile Copies

  	
   

  	
  119

  
	
  SECTION 10.03. No Waiver;
  Cumulative Remedies

  	
   

  	
  120

  
	
  SECTION 10.04. Attorney
  Costs, Expenses and Taxes

  	
   

  	
  120

  
	
  SECTION 10.05.
  Indemnification by the Borrower

  	
   

  	
  121

  
	
  SECTION 10.06. Payments
  Set Aside

  	
   

  	
  122

  
	
  SECTION 10.07. Successors
  and Assigns

  	
   

  	
  122

  
	
  SECTION 10.08.
  Confidentiality

  	
   

  	
  126

  
	
  SECTION 10.09. Setoff

  	
   

  	
  126

  
	
  SECTION 10.10. Interest
  Rate Limitation

  	
   

  	
  126

  
	
  SECTION 10.11.
  Counterparts

  	
   

  	
  127

  
	
  SECTION 10.12. Integration

  	
   

  	
  127

  



 


iii

















 


	
  SECTION 10.13. Survival of
  Representations and Warranties

  	
   

  	
  127

  
	
  SECTION 10.14.
  Severability

  	
   

  	
  128

  
	
  SECTION 10.15. Tax Forms

  	
   

  	
  128

  
	
  SECTION 10.16. GOVERNING
  LAW

  	
   

  	
  129

  
	
  SECTION 10.17. WAIVER OF
  RIGHT TO TRIAL BY JURY

  	
   

  	
  130

  
	
  SECTION 10.18. Binding
  Effect

  	
   

  	
  130

  
	
  SECTION 10.19. Lender
  Action

  	
   

  	
  130

  
	
  SECTION 10.20.
  Acknowledgments

  	
   

  	
  130

  
	
  SECTION 10.21. USA PATRIOT Act

  	
   

  	
  131

  
	
  SECTION 10.22. Gaming
  Authorities and Liquor Authorities

  	
   

  	
  131

  
	
  SECTION 10.23. Certain
  Matters Affecting Lenders

  	
   

  	
  131

  



 


iv

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01B

  	
   

  	
  Certain
  Security Interests and Guarantees

  
	
  1.01C

  	
   

  	
  Unrestricted
  Subsidiaries

  
	
  1.01D

  	
   

  	
  Existing
  Letters of Credit

  
	
  1.01F

  	
   

  	
  [Reserved.]

  
	
  1.01H

  	
   

  	
  Sale
  Leasebacks

  
	
  1.01I

  	
   

  	
  Immaterial
  Subsidiaries and Native American Subsidiaries

  
	
  1.01J

  	
   

  	
  Material
  Contracts

  
	
  1.01K

  	
   

  	
  Casino
  Subleases

  
	
  1.01L

  	
   

  	
  CMBS
  Subsidiaries

  
	
  1.01M

  	
   

  	
  Scotia
  Bank Letters of Credit

  
	
  1.01N

  	
   

  	
  Principal
  Control Persons

  
	
  2.01

  	
   

  	
  Commitments

  
	
  5.03

  	
   

  	
  Consents

  
	
  5.05

  	
   

  	
  Certain
  Liabilities

  
	
  5.09

  	
   

  	
  Environmental
  Matters

  
	
  5.10

  	
   

  	
  Taxes

  
	
  5.11

  	
   

  	
  ERISA
  Compliance

  
	
  5.12

  	
   

  	
  Subsidiaries
  and Other Equity Investments

  
	
  5.17

  	
   

  	
  Insurance

  
	
  5.20

  	
   

  	
  Transaction
  Documents

  
	
  5.22

  	
   

  	
  Location
  of Real Property

  
	
  7.01(b)

  	
   

  	
  Existing
  Liens

  
	
  7.02(f)

  	
   

  	
  Existing
  Investments

  
	
  7.02(r)

  	
   

  	
  Real
  Estate to be Invested by Native American Subsidiaries

  
	
  7.03(b)

  	
   

  	
  Existing
  Indebtedness

  
	
  7.05(k)

  	
   

  	
  Dispositions

  
	
  7.08

  	
   

  	
  Transactions
  with Affiliates

  
	
  7.09

  	
   

  	
  Existing
  Restrictions

  
	
  10.02

  	
   

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Committed
  Loan Notice

  
	
  B

  	
   

  	
  Swing
  Line Loan Notice

  
	
  C-1

  	
   

  	
  Term
  Note

  
	
  C-2

  	
   

  	
  Revolving
  Credit Note

  
	
  D

  	
   

  	
  Compliance
  Certificate

  
	
  E

  	
   

  	
  Assignment
  and Assumption

  
	
  F

  	
   

  	
  Guaranty

  
	
  G-1

  	
   

  	
  Security
  Agreement

  
	
  G-2

  	
   

  	
  Pledge
  Agreement

  
	
  G-3

  	
   

  	
  Shareholder
  Pledge Agreement

  
	
  H

  	
   

  	
  Mortgage

  
	
  I

  	
   

  	
  Intellectual
  Property Security Agreement

  
	
  J

  	
   

  	
  Opinion
  Matters — Counsel to Loan Parties

  



 


v

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”) is entered into as of November 7, 2007, among
STATION CASINOS, INC., a Nevada corporation (the “Borrower”),
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (in such
capacity, together with any successor thereto, the “Administrative
Agent”), each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”), DEUTSCHE BANK SECURITIES INC. and J.P. MORGAN
SECURITIES INC., as Joint Lead Arrangers and Joint Bookrunners (in such
capacity, collectively, the “Joint Lead Arrangers”
and individually, a “Joint Lead Arranger”),
JPMORGAN CHASE BANK, N.A., as Syndication Agent (in such capacity, “Syndication Agent”) and BANK OF SCOTLAND plc, BANK OF
AMERICA, N.A., and WACHOVIA BANK, N.A., as Co-Documentation Agents (in such
capacities, the “Co-Documentation Agents”).


 


PRELIMINARY STATEMENTS


 


WHEREAS, pursuant to the
Acquisition Agreement (as this and other capitalized terms used in these
preliminary statements are defined in Section 1.01 below), Fertitta Colony
Partners, LLC, a Nevada limited liability company (“FCP”),
through its wholly-owned Subsidiary, FCP Holding, Inc., a Nevada corporation (“FCP Holding”), Fertitta Partners LLC, a Nevada limited
liability company (“Fertitta Partners”)
and FCP Voteco, LLC, a Nevada limited liability company (“FCP Voteco”)
have, collectively, acquired all of the outstanding Equity Interests of the
Borrower (the “Acquisition”).


 


WHEREAS, the Borrower has
requested that, simultaneously with the consummation of the Acquisition, the
Lenders extend credit to the Borrower in the form of (a) a $250,000,000 Term
Loan and (b) a Revolving Credit Facility in an initial aggregate amount of
$650,000,000. The Revolving Credit Facility may include one or more Swing Line
Loans and one or more Letters of Credit from time to time.


 


WHEREAS, the proceeds of the
Term Loans and the Revolving Credit Loans made on the Closing Date will be used
to finance the repayment of certain other existing Indebtedness of the Borrower
and its Subsidiaries and pay a portion of the purchase price for the
Acquisition and the Transaction Expenses. The proceeds of Revolving Credit
Loans made after the Closing Date will be used for working capital and other
general corporate purposes of the Borrower and its Subsidiaries, including the
financing of Permitted Acquisitions. Swing Line Loans and Letters of Credit
will be used for general corporate purposes of the Borrower and its
Subsidiaries.


 


WHEREAS, the applicable
Lenders have indicated their willingness to lend, and the L/C Issuers have
indicated their willingness to issue Letters of Credit, in each case, on the
terms and subject to the conditions set forth herein.


 


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


 


ARTICLE I


 


Definitions and Accounting Terms


 


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


 


“6% Senior Notes” means the 6% Senior Notes due 2012 issued
by Borrower pursuant to the Indenture dated as of March 17, 2004.


 

















 


“61⁄2% Senior Subordinated Notes” means the 61⁄2% Senior
Subordinated Notes due 2014 issued by Borrower pursuant to the Indenture dated
as of January 29, 2004.


 


“6 5/8% Senior Subordinated Notes” means the 6 5/8% Senior
Subordinated Notes due 2018 issued by Borrower pursuant to the Indenture dated
as of March 13, 2006.


 


“6 7/8% Senior Subordinated Notes” means the 6 7/8% Senior
Subordinated Notes due 2016 issued by Borrower pursuant to the Indenture dated
as of February 27, 2004.


 


“7.75% Senior Notes” means the 7.75% Senior Notes due 2016
issued by Borrower pursuant to the Indenture dated as of August 1, 2006.


 


“Acquired EBITDA” means, with respect to any Acquired Entity
or Business for any period, the amount for such period of Consolidated EBITDA
of such Acquired Entity or Business (determined as if references to the
Borrower and the Restricted Subsidiaries in the definition of Consolidated
EBITDA were references to such Acquired Entity or Business and its
Subsidiaries), all as determined on a consolidated basis for such Acquired
Entity or Business.


 


“Acquired Entity or Business” has the meaning set forth in
the definition of the term “Consolidated EBITDA”.


 


“Acquisition”
has the meaning set forth in the first preliminary statement hereto.


 


“Acquisition
Agreement” means the Agreement and Plan of Merger dated as of
February 23, 2007 (as amended by the amendment thereto dated May 4, 2007) by
and among the Borrower, FCP and FCP Acquisition, as may be further amended in
accordance with the terms hereof.


 


“Additional
Lender” has the meaning set forth in Section 2.14(a).


 


“Adjusted
LIBO Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100,000 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves, to the extent
applicable to any Lender.


 


“Administrative
Agent” has the meaning specified in the preamble hereto.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address as set
forth on Schedule 10.02 or such other address as the Administrative Agent may
from time to time notify the Borrower and the Lenders.


 


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


 


“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. “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.


 


“Agent-Related
Persons” means the Agents, together with their respective
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.


 


2

















 


“Agents”
means, collectively, the Administrative Agent, the Syndication Agent, the
Co-Documentation Agents and the Supplemental Administrative Agents (if any).


 


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


 


“Agreement”
means this Credit Agreement.


 


“Aliante”
means Aliante Station Hotel and Casino, a project currently in development by a
joint venture in which Aliante Station, LLC, a wholly-owned Subsidiary of
Borrower, is a joint venturer.


 


“Applicable Rate” means a percentage per annum equal to, (a)
until delivery of financial statements for the first full fiscal quarter
commencing on or after the Closing Date pursuant to Section 6.01, (A) for
Eurodollar Loans, 2.50%, (B) for Base Rate Loans, 1.50%, (C) for Letter of
Credit fees, 2.50% and (D) for commitment fees, 0.375% and (b) thereafter, the
following percentages per annum, based upon the 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

  	
   

  	
  Total Leverage Ratio

  	
   

  	
  Eurodollar

  and

  Letter of

  Credit Fees

  	
   

  	
  Base Rate

  	
   

  	
  Commitment

  Fee

  Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  < 4.00:1

  	
   

  	
  1.25

  	
  % 

  	
  0.25

  	
  % 

  	
  0.250

  	
  %

  
	
  2

  	
   

  	
  > 4.00:1 but < 4.50:1

  	
   

  	
  1.50

  	
  % 

  	
  0.50

  	
  % 

  	
  0.300

  	
  %

  
	
  3

  	
   

  	
  > 4.50:1 but < 5.00:1

  	
   

  	
  1.75

  	
  % 

  	
  0.75

  	
  % 

  	
  0.300

  	
  %

  
	
  4

  	
   

  	
  > 5.00:1 but < 6.00:1

  	
   

  	
  2.00

  	
  % 

  	
  1.00

  	
  % 

  	
  0.300

  	
  %

  
	
  5

  	
   

  	
  > 6.00:1 but < 7.00:1.0

  	
   

  	
  2.25

  	
  % 

  	
  1.25

  	
  % 

  	
  0.375

  	
  %

  
	
  6

  	
   

  	
  > 7.00:1.0

  	
   

  	
  2.50

  	
  % 

  	
  1.50

  	
  % 

  	
  0.375

  	
  %

  



 


Any increase or decrease in
the Applicable Rate resulting from a change in the 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 that at the option of the Administrative Agent or
the Required Lenders, the highest Pricing Level shall apply as of the first
Business Day after the date on which a Compliance Certificate was required to
have been delivered but was not delivered, and shall continue to so apply to
and including the date on which such Compliance Certificate is so delivered
(and thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply). In the event that any financial statement or
certification delivered pursuant to Section 5.1 is shown to be inaccurate, and
such inaccuracy, if corrected, would have led to the application of a higher
Applicable Rate for any period (an “Applicable Period”)
than the Applicable Rate applied for such Applicable Period, then the Borrower
shall immediately (i) deliver to the Administrative Agent a corrected
Compliance Certificate for such Applicable Period, (ii) determine the
Applicable Rate for such Applicable Period based upon the corrected Compliance
Certificate and (iii) immediately pay to the Administrative Agent the accrued
additional interest owing as a result of such increased Applicable Rate for
such Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with Section 2.13. It is acknowledged and
agreed that nothing contained herein shall limit the rights of the
Administrative Agent and the Lenders under the Credit Documents, including
their rights under Section 2.08 and Article VIII and other of their respective
rights under this Agreement.


 


3

















 


“Appropriate
Lender” means, at any time, (a) with respect to Loans of any Class,
the Lenders of such Class, (b) with respect to Letters of Credit, (i) the
relevant L/C Issuers and (ii) the Revolving Credit Lenders and (c) with respect
to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing
Line Loans are outstanding pursuant to Section 2.04(a), the Revolving
Credit Lenders.


 


“Approved
Bank” has the meaning specified in clause (c) of the definition of
“Cash Equivalents”.


 


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


 


“Assignees”
has the meaning specified in Section 10.07(b).


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in
the form of Exhibit E.


 


“Attorney
Costs” means and includes all reasonable fees, expenses and
disbursements of any law firm or other external legal counsel.


 


“Audited
Financial Statements” means the audited consolidated balance sheets
of Borrower and its Subsidiaries as of each of December 31, 2006, 2005 and
2004, and the related audited Consolidated statements of income, stockholders’
equity and cash flows for Borrower and its Subsidiaries for the fiscal years
ended December 31, 2006, 2005 and 2004, respectively.


 


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


 


“Available
Distribution Amount” means, as of any date, the cumulative amount of
dividends and distributions in the form of cash and Cash Equivalents received
by the Borrower or any Restricted Subsidiary during the period from the Closing
Date to the date of determination from Unrestricted Subsidiaries or joint
ventures not constituting Subsidiaries.


 


“Base Rate”
means, for any day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Rate in effect on
such day plus 1/2 of 1%. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective as of the opening
of business on the effective date of such change in the Prime Rate or the
Federal Funds Rate, respectively.


 


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


 


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


 


“Borrower
Parties” means the collective reference to the Borrower and the
Restricted Subsidiaries, and “Borrower Party” means any one of them.


 


“Borrower”
has the meaning specified in the preamble hereto.


 


“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing, or a Term
Borrowing, as the context may require.


 


4

















 


“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized or required by law to close in New York City; provided, however, that
when used in connection with a Eurodollar Loan (including with respect to all
notices and determinations in connection therewith and any payments of
principal, interest or other amounts thereon), the term “Business Day” shall
also exclude any day on which banks are not open for dealings in Dollar
deposits in the London interbank market.


 


“Capital
Expenditures” means, for any period, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities) by the Borrower and the
Restricted Subsidiaries during such period that, in conformity with GAAP, are
or are required to be included as additions during such period to property,
plant or equipment reflected in the consolidated balance sheet of the Borrower
and the Restricted Subsidiaries, (b) provided that
the term “Capital Expenditures” shall not include (i) expenditures made in
connection with the replacement, substitution, restoration or repair of
assets to the extent financed with (x) insurance proceeds paid on account
of the loss of or damage to the assets being replaced, restored or repaired or
(y) awards of compensation arising from the taking by eminent domain or condemnation
of the assets being replaced, (ii) the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit granted
by the seller of such equipment for the equipment being traded in at such time,
(iii) the purchase of plant, property or equipment or software to the
extent financed with the proceeds of Dispositions that are not required to be
applied to prepay Term Loans pursuant to Section 2.05(b),
(iv) expenditures that constitute any part of Consolidated Lease Expense,
(v) expenditures that are accounted for as capital expenditures by the
Borrower or any Restricted Subsidiary and that actually are paid for by a
Person other than the Borrower or any Restricted Subsidiary and for which
neither the Borrower nor any Restricted Subsidiary has provided or is required
to provide or incur, directly or indirectly, any consideration or obligation to
such Person or any other Person (whether before, during or after such period),
(vi) the book value of any asset owned by the Borrower or any Restricted
Subsidiary prior to or during such period to the extent that such book value is
included as a capital expenditure during such period as a result of such Person
reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to
permit such asset to be reused shall be included as a Capital Expenditure
during the period in which such expenditure actually is made and (y) such
book value shall have been included in Capital Expenditures when such asset was
originally acquired, or (vii) expenditures that constitute Permitted
Acquisitions.


 


“Capitalized
Lease Indebtedness” means, on any date, in respect of any
Capitalized 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.


 


“Capitalized
Leases” means all leases that have been or should be, in accordance
with GAAP, recorded as capitalized leases; provided that
for all purposes hereunder the amount of obligations under any Capitalized
Lease shall be the amount thereof accounted for as a liability in accordance
with GAAP.


 


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


 


“Cash
Collateral Account” means a blocked account at DBTCA (or another
commercial bank selected in compliance with Section 9.09) in the name of
the Administrative Agent and under the sole dominion and control of the
Administrative Agent, and otherwise established in a manner satisfactory to the
Administrative Agent.


 


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


 


5

















 


“Cash
Equivalents” means any of the following types of Investments, to the
extent owned by the Borrower or any Restricted Subsidiary:


 


(a)  Dollars;


 


(b)  readily marketable obligations issued or
directly and fully guaranteed or insured by the government or any agency or
instrumentality of the United States having average maturities of not more than
12 months from the date of acquisition thereof; provided
that the full faith and credit of the United States is pledged in support
thereof;


 


(c)  time deposits with, or insured certificates
of deposit or bankers’ acceptances of, any commercial bank that (i)  is a Lender or (ii) (A) is organized under
the Laws of the United States, any state thereof or the District of Columbia or
is the principal banking Subsidiary of a bank holding company organized under
the Laws of the United States, any state thereof or the District of Columbia,
and is a member of the Federal Reserve System, and (B) has combined capital and
surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or
(ii) being an “Approved Bank”), in
each case with average maturities of not more than 12 months from the date of
acquisition thereof;


 


(d)  commercial paper and variable or fixed rate
notes issued by an Approved Bank (or by the parent company thereof) or any
variable or fixed rate note issued by, or guaranteed by, a corporation rated
A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent
thereof) or better by Moody’s, in each case with average maturities of not more
than 12 months from the date of acquisition thereof;


 


(e)  repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer, in each case, having capital and surplus in
excess of $250,000,000 for direct obligations issued by or fully guaranteed or
insured by the government or any agency or instrumentality of the United States
in which such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations;


 


(f)  securities with average maturities of 12
months or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political subdivision
or taxing authority of any such state, commonwealth or territory or by any
foreign government having an investment grade rating from either S&P or
Moody’s (or the equivalent thereof);


 


(g)  Investments with average maturities of 12
months or less from the date of acquisition in money market funds rated AAA-
(or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent
thereof) or better by Moody’s;


 


(h)  instruments equivalent to those referred to
in clauses (a) through (g) above denominated in Euros or any other foreign
currency comparable in credit quality and tenor to those referred to above and
customarily used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Restricted Subsidiary organized
in such jurisdiction; and


 


(i)  Investments, classified in accordance with
GAAP as current assets of the Borrower or any Restricted Subsidiary, in money
market investment programs which are registered under the


 


6

















 


Investment Company Act of
1940 or which are administered by financial institutions having capital of at
least $250,000,000, and, in either case, the portfolios of which are limited
such that substantially all of such investments are of the character, quality
and maturity described in clauses (a) through (h) of this definition.


 


“Cash Management Obligations” means obligations owed by the
Borrower or any Restricted Subsidiary to any Lender or any Affiliate of a
Lender in respect of any overdraft and related liabilities arising from
treasury, depository and cash management services or any automated clearing
house transfers of funds except to the extent that any such obligations are not
subject to any Lien in favor of any such Lender or Affiliate of such Lender and
such Lender or Affiliate of each Lender and Borrower or the applicable
Restricted Subsidiary have so notified the Administrative Agent in writing.


 


“Casino
Licenses” means, collectively, all licenses that are required to be
granted by any applicable federal, state, local, tribal or other regulatory
body, gaming board or other agency that has jurisdiction over (i) any
casino now or hereafter located in the State of Nevada, and (ii) any other
casinos otherwise owned or operated by the Borrower or any Restricted
Subsidiary.


 


“Casino Sale
Leaseback Transaction” means the collective transactions involving
the sale and leaseback of the properties listed on Schedule 1.01H pursuant to
the Purchase and Sale Agreement, the Master Lease and the Casino Subleases.


 


“Casino
Subleases” means the subleases described on Schedule 1.01K entered
into in respect of the Casino Sale Leaseback Transaction.


 


“Casualty
Event” means any event that gives rise to the receipt by the
Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation
awards in respect of any equipment, fixed assets or real property (including
any improvements thereon) to replace or repair such equipment, fixed assets or
real property.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as subsequently amended.


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.


 


“Change of Control” means (a) any event constituting a “Change
of Control Trigger Event” under any Existing Senior Notes Indenture or Existing
Senior Subordinated Notes Indenture or (b) (i) prior to the occurrence of a
Qualifying IPO, (x) the Permitted Holders shall fail to collectively own
directly or indirectly, beneficially and of record, Equity Interests that
represent greater than 50% of the aggregate equity value represented by the
issued and outstanding Equity Interests in the Borrower or (y) the Principal
Control Persons shall fail to collectively retain Control of the Borrower; or
(ii) after the occurrence of a Qualifying IPO, the consummation of any
transaction (including, without limitation, any merger or consolidation) as a
result of which (x) (A) any person, entity or “group” (within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended), other than
the Permitted Holders and Principal Control Persons, becomes the beneficial
owner of more than twenty-five percent (25%) of the aggregate direct or
indirect ordinary voting power and aggregate equity value represented by the
issued and outstanding Equity Interests in the Borrower and (B) such ownership
represents a percentage of the aggregate direct or indirect ordinary voting
power or economic interest greater than the percentage of the ordinary voting
power or economic interest in respect of which the Principal Control Persons
and Permitted Holders are collectively the direct or indirect beneficial owners
or (y) Continuing Directors shall not constitute at least a majority of the
board of directors of the Borrower.


 


7

















 


“Charges”
has the meaning specified in Section 10.10.


 


“Class”
(a) when used with respect to Lenders, refers to whether such Lenders are
Revolving Credit Lenders or Term Lenders, (b) when used with respect to Loans
or a Borrowing, refers to whether such Loans, or the Loans comprising such
Borrowing, are Revolving Credit Loans, Swing Line Loans or Term Loans and, (c)
when used with respect to any Commitment, refers to whether such Commitment is
a Revolving Credit Commitment or a Term Loan Commitment.


 


“Closing Date”
means the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section 4.01.


 


“CMBS
Facility” means, collectively, the secured mortgage and mezzanine
loan facilities provided to the CMBS Subsidiary pursuant to the CMBS Loan
Documents.


 


“CMBS
Flowback Amount” means, an amount, for each fiscal period, equal to
the amount of dividends or distributions made by the CMBS Subsidiary to
Borrower during such period.


 


“CMBS Loan
Documents” means the Loan and Security Agreement dated November 7,
2007 entered into by FCP PropCo, LLC, as Borrower, German American Capital
Corporation, as a Lender, and JPMorgan Chase Bank, N.A., as a Lender and the
other Loan Documents as defined therein.


 


“CMBS
Subsidiary” means, (a) collectively, FCP MezzCo Parent Sub, LLC, a
Delaware limited liability company and each of the direct and indirect,
wholly-owned subsidiaries of FCP MezzCo Parent Sub, LLC described on Schedule
1.01L hereto or (b) FCP PropCo, LLC, as applicable.


 


“Code”
means the U.S. Internal Revenue Code of 1986 and rules and regulations related
thereto.


 


“Co-Documentation
Agents” has the meaning set forth in the preamble hereto.


 


“Collateral”
means all the “Collateral” as defined in any Collateral Document and shall
include the Mortgaged Properties.


 


“Collateral
and Guarantee Requirement” means, at any time, subject to applicable
Gaming Laws, the requirement that:


 


(a)  the Administrative Agent shall have received
each Collateral Document required to be delivered on the Closing Date pursuant
to Section 4.01(a)(iii) or at any other time pursuant to Section 6.11 at the
time so required, duly executed by each Loan Party thereto;


 


(b)  all Obligations shall have been
unconditionally guaranteed by each Restricted Subsidiary that is not an
Excluded Subsidiary (each, a “Guarantor”);


 


(c)  all guarantees issued or to be issued in
respect of the Existing Senior Subordinated Notes (i) shall be subordinated to
the Guaranty to the same extent that the Existing Senior Subordinated Notes are
subordinated to the Obligations and (ii) shall provide for their automatic
release upon a release of the Guaranty;


 


(d)  the Obligations and the Guaranty shall have
been secured by a first-priority security interest in (i) all the Equity
Interests of the Borrower and (ii) all Equity Interests owned (directly or
indirectly) by Borrower in each Restricted Subsidiary (other than, to the
extent prohibited by law or, with


 


8

















 


the consent of the
Administrative Agent, such consent not to be unreasonably withheld, the
applicable management contract, Equity Interests in Native American
Subsidiaries);


 


(e)  except to the extent otherwise permitted
hereunder or under any Collateral Document, the Obligations and the Guaranty
shall have been secured by a security interest in, and mortgages on,
substantially all tangible and intangible assets of the Borrower and each
Guarantor other than any Immaterial Subsidiary (including accounts, inventory,
equipment, investment property, contract rights, intellectual property, other
general intangibles, owned and leased real property and proceeds of the
foregoing), in each case, with the priority required by the Collateral
Documents; provided that (x) security interests in
real property shall be limited to (i) the land, improvements and other real
property relating to the hotel casino properties known as Fiesta Rancho, Fiesta
Henderson, Santa Fe Station and Texas Station, in each case, including all
adjoining or adjacent land owned or leased by the Borrower and its
Subsidiaries, (ii) in the case of any capital project of the Borrower or its
Subsidiaries (other than any Unrestricted Subsidiaries and Native American
Subsidiaries) that is initiated or implemented after the Closing Date for which
the overall budget for Capital Expenditures exceeds $100,000,000, the land,
improvements and other real property in respect of such project and, (iii) in
the case of any other casino or hotel property now or hereafter owned or
operated by Borrower or its Subsidiaries (excluding Unrestricted Subsidiaries
and Native American Subsidiaries) whose individual Consolidated EBITDA for the
then most recently ended 12-month period for which financial statements are
then available exceeds $10,000,000, the land, improvements and other real
property relating to such property, and (y) security interests in the assets of
Native American Subsidiaries shall, to the extent prohibited by law or, with
the consent of the Administrative Agent, such consent not to be unreasonably
withheld, the applicable management contract, exclude security interests in
Native American Contracts (provided, however, that security interests shall be granted in respect
of all rights to receive income and cash flows attributable to Native American
Contracts);


 


(f)  none of the Collateral shall be subject to
any Liens other than Permitted Liens; and


 


(g)  the Administrative Agent shall have received
(i) counterparts of a Mortgage with respect to each owned or leased
property described in paragraph (e) above or required to be delivered pursuant to
Section 6.11 (the “Mortgaged
Properties”) duly executed and delivered by the record
owner of such property, (ii) a policy or policies of title insurance
issued by a nationally recognized title insurance company insuring the Lien of
each such Mortgage as a valid Lien on the property described therein, free of
any other Liens except Permitted Liens, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request,
and (iii) such surveys, abstracts, appraisals, legal opinions and other
documents as the Administrative Agent may reasonably request with respect to
any such Mortgaged Property.


 


The foregoing definition
shall not require the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance or surveys with respect to,
particular assets if and for so long as, in the reasonable judgment of the
Administrative Agent (confirmed in writing by notice to the Borrower), the cost
of creating or perfecting such pledges or security interests in such assets or
obtaining title insurance or surveys in respect of such assets shall be
excessive in view of the benefits to be obtained by the Lenders therefrom. The
Administrative Agent may grant extensions of time for the perfection of security
interests in or the obtaining of title insurance with respect to particular
assets (including extensions beyond the Closing Date for the perfection of
security interests in the assets of the Loan Parties on such date) where it
reasonably determines, in consultation with the Borrower, that perfection
cannot be accomplished without undue effort or expense by the time or times at
which it would otherwise be required by this Agreement or the Collateral
Documents.


 


9

















 


Notwithstanding the
foregoing provisions of this definition or anything in this Agreement or any
other Loan Document to the contrary, (a) Liens required to be granted from time
to time pursuant to the Collateral and Guarantee Requirement shall be subject
to exceptions and limitations set forth in the Collateral Documents to the
extent appropriate and agreed between the Administrative Agent and the Borrower
and (b) the Collateral shall not include Excluded Assets.


 


“Collateral
Documents” means, collectively, the Security Agreement, the Pledge
Agreement, the Shareholder Pledge Agreement, the Intellectual Property Security
Agreement, the Mortgages, each of the mortgages, collateral assignments,
Security Agreement Supplements, Pledge Agreement Supplements, security
agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent and the Lenders from time to time pursuant to
Section 6.11 or Section 6.13, the Guaranty and each of the other
agreements, instruments or documents that creates or purports to create a Lien
or Guarantee in favor of the Administrative Agent for the benefit of the
Secured Parties.


 


“Commitment”
means a Revolving Credit Commitment or a Term Loan Commitment.


 


“Commitment
Letter” means the Third Amended and Restated Commitment Letter dated
as of October 15, 2007 among FCP, DBTCA, DBSI, JPMorgan and JPMCB.


 


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


 


“Compensation
Period” has the meaning specified in Section 2.12(c)(ii).


 


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


 


“Consolidated
EBITDA” means, for any period, the Consolidated Net Income for such
period, plus:


 


(a)  without duplication and to the extent already
deducted (and not added back) in arriving at such Consolidated Net Income, the
sum of the following amounts for such period:


 


(i)  total Consolidated Interest Expense and, to
the extent not reflected in such total Consolidated Interest Expense, any
losses on hedging obligations or other derivative instruments entered into for
the purpose of hedging interest rate risk of the Borrower or its Subsidiaries,
net of interest income, premiums received and gains on such hedging
obligations, and costs of surety bonds in connection with financing activities,


 


(ii)  provision for taxes based on income, profits
or capital of the Borrower and the Restricted Subsidiaries, including state,
franchise and similar taxes and foreign withholding taxes paid or accrued
during such period,


 


(iii)  depreciation and amortization,


 


(iv)  Non-Cash Charges,


 


(v)  extraordinary losses and unusual or
non-recurring charges (including, without limitation, Pre-Opening Expenses)
severance, relocation costs and curtailments or modifications to pension and
post-retirement employee benefit plans,


 


10

















 


(vi)  restructuring charges or reserves (including
restructuring costs related to acquisitions after the date hereof and to
closure/consolidation of facilities),


 


(vii)  any deductions attributable to minority interests,


 


(viii)  the amount of management, monitoring,
consulting and advisory fees and related expenses paid to the Sponsors; provided that the aggregate amount added pursuant to this
clause shall not exceed $15,000,000 for any period consisting of four
consecutive quarters,


 


(ix)  any costs or expenses incurred by the
Borrower or a Restricted Subsidiary pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or agreement
or any stock subscription or shareholder agreement, to the extent that such
costs or expenses are funded with cash proceeds contributed to the capital of
the Borrower or net cash proceeds of an issuance of Equity Interests of the
Borrower (other than Disqualified Equity Interests)


 


(x)  the amount of net cost savings projected by
the Borrower in good faith to be realized as a result of specified actions
taken during such period (calculated on a pro forma basis as though such cost
savings had been realized on the first day of such period), net of the amount
of actual benefits realized during such period from such actions; provided that (A) such cost savings are reasonably
identifiable and factually supportable, (B) such actions are taken within
48 months after the Closing Date, (C) no cost savings shall be added
pursuant to this clause (x) to the extent duplicative of any expenses or
charges relating to such cost savings that are included in clause (vi)
above with respect to such period and (D) the aggregate amount of cost savings
added pursuant to this clause in respect of cost savings (other than in respect
of Permitted Acquisitions) (x) shall not exceed $40,000,000 for any period
consisting of four consecutive quarters,


 


(xi)  the Borrower’s share (based on its economic
interest in such entities at the time of calculation) of the earnings (whether
positive or negative) before interest and taxes (calculated in a manner
consistent with the definition of Consolidated EBITDA, except that depreciation
and amortization will not be added back to such earnings) of Aliante and Green
Valley Ranch Gaming LLC, less


 


(b)  without duplication and to the extent
included in arriving at such Consolidated Net Income, the sum of the following
amounts for such period:


 


(i)  extraordinary gains and unusual or non-recurring
gains,


 


(ii)  non-cash gains (excluding any non-cash gain
to the extent it represents the reversal of an accrual or reserve for a
potential cash item that reduced Consolidated EBITDA in any prior period),


 


(iii)  gains on asset sales (other than asset sales
in the ordinary course of business),


 


(iv)  any net after-tax income from the early
extinguishment of Indebtedness or hedging obligations or other derivative
instruments, and


 


(v)  all gains from investments recorded using the
equity method.


 


in each case, as determined on a consolidated basis for the Borrower
and the Restricted Subsidiaries in accordance with GAAP; provided
that, to the extent included in Consolidated Net Income,


 


11

















 


(i)  there shall be excluded in determining
Consolidated EBITDA currency translation gains and losses related to currency
remeasurements of Indebtedness (including the net loss or gain resulting from
Swap Contracts for currency exchange risk);


 


(ii)  there shall be excluded in determining
Consolidated EBITDA for any period any adjustments resulting from the
application of Statement of Financial Accounting Standards No. 133;


 


(iii)  there shall be included in determining
Consolidated EBITDA for any period, without duplication, (A) the Acquired
EBITDA of any Person, property, business or asset acquired by the Borrower or
any Restricted Subsidiary during such period (but not the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired),
to the extent not subsequently sold, transferred or otherwise disposed by the
Borrower or such Restricted Subsidiary (each such Person, property, business or
asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), based on the
actual Acquired EBITDA of such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition) and
(B) for the purposes of the definition of the term “Permitted Acquisition”
and Section 7.11, an adjustment in respect of each Acquired Entity or
Business equal to the amount of the Pro Forma Adjustment with respect to such
Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) as specified in a certificate executed by
a Responsible Officer and delivered to the Lenders and the Administrative Agent
and (C) for purposes of determining the Total Leverage Ratio, Senior Secured
Leverage Ratio or Interest Coverage Ratio only, there shall be excluded in determining
Consolidated EBITDA for any period the Disposed EBITDA of any Person, property,
business or asset sold, transferred or otherwise disposed of, closed or
classified as discontinued operations by the Borrower or any Restricted
Subsidiary during such period (each such Person, property, business or asset so
sold or disposed of, a “Sold Entity or
Business”), based on the actual Disposed EBITDA of such Sold Entity
or Business for such period (including the portion thereof occurring prior to
such sale, transfer or disposition); and


 


(iv)  there shall be included in determining
Consolidated EBITDA for any period, without duplication, the New Property
EBITDA for such period of any New Property, to the extent not subsequently
sold, transferred or otherwise disposed of by the Borrower or the Restricted
Subsidiary that owns such New Property.


 


For the purpose of the
definition of Consolidated EBITDA, “Non-Cash Charges”
means (a) losses on asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets, long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c) all
losses from investments recorded using the equity method, (d) stock-based
awards compensation expense, and (e) other non-cash charges (provided that if any non-cash charges referred to in this
clause (e) represent an accrual or reserve for potential cash items in any
future period, the cash payment in respect thereof in such future period shall
be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period).


 


“Consolidated
Interest Expense” means, for any period, the sum of (i) the
cash interest expense and capitalized interest (including that attributable to
Capitalized Leases), net of cash interest income, of the Borrower and the
Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP, with respect to all outstanding Indebtedness of the Borrower and the
Restricted Subsidiaries, including all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers’ acceptance
financing and net costs under Swap Contracts and (ii) any cash payments made
during such period in respect of obligations referred to in clause (b) below
relating to


 


12

















 


Funded Debt that were
amortized or accrued in a previous period (other than any such obligations
resulting from the discounting of Indebtedness in connection with the
application of purchase accounting in connection with the Transaction or any
Permitted Acquisition), but excluding, however, (a) amortization of deferred
financing costs and any other amounts of non-cash interest, (b) the accretion
or accrual of discounted liabilities during such period, and (c) all
non-recurring cash interest expense consisting of liquidated damages for
failure to timely comply with registration rights obligations and financing
fees, all as calculated on a consolidated basis in accordance with GAAP; provided that for purposes of the definition of the term
“Permitted Acquisition” and Section 7.11, there shall be included in determining
Consolidated Interest Expense for any period the cash interest expense (or
income) and capitalized interest of any Acquired Entity or Business acquired
during such period, based on the cash interest expense (or income) or
capitalized interest of such Acquired Entity or Business for such period (including
the portion thereof occurring prior to such acquisition) assuming any
Indebtedness incurred or repaid in connection with any such acquisition had
been incurred or prepaid on the first day of such period. Notwithstanding
anything to the contrary contained herein, for purposes of determining
Consolidated Interest Expense for any period ending prior to the first
anniversary of the Closing Date, Consolidated Interest Expense shall be an
amount equal to actual Consolidated Interest Expense from the Closing Date
through the date of determination multiplied by a fraction the numerator of
which is 365 and the denominator of which is the number of days from the
Closing Date through the date of determination.


 


“Consolidated
Lease Expense” means, for any period, all rental expenses of the
Borrower and the Restricted Subsidiaries during such period under operating
leases for real or personal property (including in connection with
sale-leaseback transactions permitted by Section 7.05(f)), excluding real
estate taxes, insurance costs and common area maintenance charges and net of
sublease income, other than (a) obligations under vehicle leases entered into
in the ordinary course of business, (b) all such rental expenses associated
with assets acquired pursuant to a Permitted Acquisition to the extent such
rental expenses relate to operating leases in effect at the time of (and
immediately prior to) such acquisition and related to periods prior to such
acquisition and (c) all obligations under Capitalized Leases, all as determined
on a consolidated basis in accordance with GAAP.


 


“Consolidated
Net Income” means, for any period, the net income (loss) of the
Borrower and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, plus, to the extent not included in
the calculation of such net income (loss), the CMBS Flowback Amount for such
period, if any, excluding, without duplication, (a) extraordinary items
for such period, (b) the cumulative effect of a change in accounting principles
during such period to the extent included in Consolidated Net Income, (c)
Transaction Expenses, (d) any fees and expenses incurred during such period, or
any amortization thereof for such period, in connection with any acquisition,
investment, asset disposition, issuance or repayment of debt, issuance of equity
securities, refinancing transaction or amendment or other modification of any
debt instrument (in each case, including any such transaction consummated prior
to the Closing Date and any such transaction undertaken but not completed) and
any charges or non-recurring merger costs incurred during such period as a
result of any such transaction, and (e) any income (loss) for such period
attributable to the early extinguishment of Indebtedness. There shall be
excluded from Consolidated Net Income for any period the purchase accounting
effects of adjustments to property and equipment, software and other intangible
assets and deferred revenue in component amounts required or permitted by GAAP
and related authoritative pronouncements (including the effects of such
adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a
result of the Transaction, any acquisition consummated prior to the Closing
Date, any Permitted Acquisitions, or the amortization or write-off of any
amounts thereof. There shall be excluded from Consolidated Net Income the
income (or loss) of any Person that is not a Restricted Subsidiary (including
joint venture investments recorded using the equity method), except to the
extent of the amount of dividends or other distributions actually paid to
Borrower or a Restricted Subsidiary during such period.


 


13

















 


“Consolidated
Senior Secured Debt” means, as of any date of determination, the
aggregate principal amount of Indebtedness of the Borrower and the Restricted
Subsidiaries outstanding on such date (other than Indebtedness under clause (c)
of such term to the extent that no termination event has occurred thereunder),
determined on a consolidated basis in accordance with GAAP that is secured by
first priority (other than Permitted Liens) Liens or Permitted Liens on the
properties and assets of Borrower and Restricted Subsidiaries, and Capitalized
Leases.


 


“Consolidated
Total Net Debt” means, as of any date of determination, (a) the
aggregate principal amount of Indebtedness of the Borrower and the Restricted
Subsidiaries outstanding on such date, determined on a consolidated basis in
accordance with GAAP (but excluding the effects of any discounting of
Indebtedness resulting from the application of purchase accounting in
connection with the Transaction or any Permitted Acquisition), consisting of
Indebtedness for borrowed money, obligations in respect of Capitalized Leases
(but excluding, for the avoidance of doubt, amounts payable under operating
leases), debt obligations evidenced by promissory notes or similar instruments,
the maximum amount (after giving effect to any prior drawings or
reductions which may have been reimbursed) of all (or, solely for purposes of
determining compliance with Section 7.11(a), the amount of reasonably
anticipated usage of) letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds, performance bonds and
similar instruments issued or created by or for the account of such Persons,
all obligations of to pay the deferred purchase price of property or services
(other than (i) trade accounts payable in the ordinary course of business and
(ii) any earn-out obligation until such obligation becomes a liability on the
balance sheet in accordance with GAAP) and, without duplication, all Guarantees
with respect to outstanding Indebtedness of the types described above, minus (b) the aggregate amount of
cash and Cash Equivalents (in each case, free and clear of all Liens, other
than nonconsensual Permitted Liens and Liens permitted by Section 7.01(s) and
clauses (i) and (ii) of Section 7.01(t)) included in the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as of such date.


 


“Consolidated
Working Capital” means, at any date, the excess of (a) the sum of
all amounts (other than cash and Cash Equivalents) that would, in conformity
with GAAP, be set forth opposite the caption “total current assets” (or any
like caption) on a consolidated balance sheet of the Borrower and the
Restricted Subsidiaries at such date over (b) the sum of all amounts that
would, in conformity with GAAP, be set forth opposite the caption “total
current liabilities” (or any like caption) on a consolidated balance sheet of
the Borrower and the Restricted Subsidiaries on such date, including deferred
revenue but excluding, without duplication, (i) the current portion of any
Funded Debt, (ii) all Indebtedness consisting of Loans and L/C Obligations to
the extent otherwise included therein, (iii) the current portion of
interest and (iv) the current portion of current and deferred income taxes.


 


“Continuing
Director” means, at any date, an individual (a) who is a member of
the board of directors of the Borrower on the date hereof, (b) who, as of the
date of determination, has been a member of such board of directors for at
least the twelve preceding months, (c) who has been nominated to be a member of
such board of directors, directly or indirectly, by a Principal Control Person
or Persons nominated by a Principal Control Person or (d) who has been
nominated to be a member of such board of directors by a majority of the other
Continuing Directors then in office.


 


“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”
(a) as used in clause (b) of the definition of “Change of Control” means (i)
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise (provided


 


14

















 


that the granting of major
decision veto rights (including, without limitation, with respect to decisions
regarding the sale of material assets, the incurrence or refinancing of debt,
the institution of insolvency, bankruptcy or other proceedings with respect to
debtor protection, and the merger, consolidation, liquidation or dissolution of
such Person) in favor of a Person shall not be deemed to constitute “Control”),
together with (ii) the ownership, direct or indirect, of no less than 51% of
the voting securities of such Person, and the terms Controlled, Controlling and
Common Control shall have correlative meanings and (b) for all other purposes
hereunder, has the meaning specified in the definition of “Affiliate.”


 


“Core
Property” means, collectively, the hotel, resort and casino
properties commonly known as Palace Station, Boulder Station, Texas Station,
Santa Fe Station, Sunset Station, Fiesta Henderson, Fiesta Rancho and Red Rock
Casino, Resort and Spa and (b) each casino or hotel property hereafter owned or
operated by Borrower or a Guarantor and its Subsidiaries (but not any such
property owned or operated by an Unrestricted Subsidiary) whose individual
Consolidated EBITDA for the then most recently ended twelve-month period for
which financial statements are then available exceeds $10,000,000, excluding
any real property or improvements that have been released from the Liens of the
Administrative Agent.


 


“Corporate Head Office Sale
Leaseback Transaction”
means the sale and leaseback by Borrower of its corporate headquarters building
located at 1505 South Pavilion Center Drive, Las Vegas, Nevada 89135 on terms
and subject to documentation reasonably acceptable to the Administrative Agent.


 


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


 


“Cumulative
Excess Cash Flow” means the sum of Excess Cash Flow for the fiscal
quarter ending March 31, 2008 and Excess Cash Flow for each succeeding and
completed fiscal year.


 


“DBSI”
means Deutsche Bank Securities Inc.


 


“DBTCA”
means Deutsche Bank Trust Company Americas.


 


“Debt
Issuance” means the issuance by any Person and its Subsidiaries of
any Indebtedness for borrowed money.


 


“Debt
Prepayment” means the prepayment by the Borrower on the Closing Date
of any Indebtedness outstanding under the Existing Credit Agreement.


 


“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.


 


“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 an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate,
if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a Eurodollar Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any


 


15

















 


Applicable Rate) otherwise
applicable to such Loan plus 2.0% per annum, in each case, to the fullest
extent permitted by applicable Laws.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Term Loans, Revolving Credit Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one (1) Business Day of the date required to be funded by it hereunder, unless
the subject of a good faith dispute or subsequently cured, (b) has otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one (1) Business Day of the
date when due, unless the subject of a good faith dispute or subsequently
cured, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.


 


“Designated
Obligations” means all obligations of the Borrower with respect to
(a) principal of and interest on the Loans, (b) Unreimbursed Amounts and
interest thereon and (c) accrued and unpaid fees under the Loan Documents.


 


“Disposed
EBITDA” means, with respect to any Sold Entity or Business for any
period, the amount for such period of Consolidated EBITDA of such Sold Entity
or Business (determined as if references to the Borrower and the Restricted Subsidiaries
in the definition of Consolidated EBITDA were references to such Sold Entity or
Business and its Subsidiaries), all as determined on a consolidated basis for
such Sold Entity or Business.


 


“Disposition”
or “Dispose” means the sale, transfer, license,
lease or other disposition (including any sale and leaseback transaction and
any sale of Equity Interests) of any property 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; provided that “Disposition” and “Dispose” shall not be
deemed to include any issuance by the Holding Companies of any of their
respective Equity Interests to another Person.


 


“Disqualified
Equity Interests” means any Equity Interest that, by its terms (or
by the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than
solely for Qualified Equity Interests), pursuant to a sinking fund obligation
or otherwise (except as a result of a change of control or asset sale so long
as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the
Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in
part, (c) provides for the scheduled payments of dividends in cash, or (d) is
or becomes convertible into or exchangeable for Indebtedness or any other
Equity Interests that would constitute Disqualified Equity Interests, in each
case, prior to the date that is ninety-one (91) days after the Maturity Date.


 


“Disqualified
Institutions” means any banks, financial institutions or other
Persons separately identified by the Borrower to the Joint Lead Arrangers in
writing prior to the Closing Date.


 


“Disqualified Transferee” means any proposed
transferee that (i) has been convicted in a criminal proceeding for a felony or
a crime involving moral turpitude or that is an organized crime figure or is
reputed (as determined by Administrative Agent in its reasonable discretion) to
have substantial business or other affiliations with an organized crime figure
or (ii) has been found by a court of competent jurisdiction or other
governmental authority in a comparable proceeding to have violated any federal
or state securities laws or regulations promulgated thereunder.


 


16

















 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the Laws of
the United States, any state thereof or the District of Columbia.


 


“Eligible
Assignee” means any Assignee permitted by and consented to in
accordance with Section 10.07(b).


 


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


 


“Environmental
Permit” means any permit, approval, identification number, license
or other authorization required under any Environmental Law.


 


“Equity
Contributions” means, collectively, (a) the contribution by one or
more of the Affiliates of Colony Capital LLC of an aggregate amount of cash of
not less than $2,404,621,790 to the Holding Companies and (b) the further
contribution to the Borrower of any portion of such cash contribution proceeds
not used by any Holding Company on or prior to the Closing Date to pay
Transaction Expenses.


 


“Equity
Interests” means, with respect to any Person, all of the shares,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase,
acquisition or exchange from such Person of any of the foregoing (including
through convertible securities).


 


“Equity
Investors” means the Sponsors, the Management Stockholders and Blake
and Delise Sartini.


 


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


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated)
that is under common control with any Loan Party within the meaning of
Section 414 of the Code or Section 4001 of ERISA.


 


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) incurrence of
a liability with respect to a withdrawal by any Loan Party or any ERISA
Affiliate from a


 


17

















 


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) incurrence of a liability with respect to a complete or partial withdrawal
by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of
a notice of intent to terminate, the treatment of a 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 funding contributions in the ordinary
course or PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Loan Party or any ERISA Affiliate.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


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


 


“Excess Cash
Flow” means, for any period, an amount equal to the excess of:


 


(a)  the sum, without duplication, of:


 


(i)  Consolidated Net Income for
such period,


 


(ii)  an amount equal to the
amount of all non-cash charges (including depreciation and amortization) to the
extent deducted in arriving at such Consolidated Net Income,


 


(iii)  decreases in Consolidated
Working Capital and long-term account receivables for such period (other than
any such decreases arising from acquisitions by the Borrower and the Restricted
Subsidiaries during such period),


 


(iv)  an amount equal to the
aggregate net non-cash loss on Dispositions by the Borrower and the Restricted
Subsidiaries during such period to the extent deducted in arriving at such
Consolidated Net Income, and


 


(v)  the amount of tax expense
that was deducted in determining Consolidated Net Income for such period, to
the extent it exceeds the amount of cash taxes paid in such period;


 


less


 


(b)  the sum, without duplication, of


 


(i)  an amount equal to the
amount of all non-cash credits included in arriving at such Consolidated Net
Income,


 


(ii)  without duplication of
amounts deducted pursuant to clause (xi) below in prior fiscal years, the
amount of Capital Expenditures made in cash or accrued during such period
pursuant to Section 7.16, except to the extent that such Capital Expenditures


 


18

















 


were
financed with the proceeds of Indebtedness of the Borrower or the Restricted
Subsidiaries (other than the Revolving Credit Facility),


 


(iii)  the aggregate amount of
all principal payments of Indebtedness of the Borrower and the Restricted
Subsidiaries (including (A) the principal component of payments in respect of
Capitalized Leases and (B) the amount of any mandatory prepayment of Term Loans
to the extent required due to a Disposition that resulted in an increase to
Consolidated Net Income and not in excess of the amount of such increase but
excluding all prepayments of Revolving Credit Loans and Swing Line Loans) made
during such period (other than in respect of any revolving credit facility to
the extent there is not an equivalent permanent reduction in commitments
thereunder) except to the extent financed with the proceeds of other
Indebtedness of the Borrower or the Restricted Subsidiaries,


 


(iv)  an amount equal to the
aggregate net non-cash gain on Dispositions by the Borrower and the Restricted
Subsidiaries during such period to the extent included in arriving at such
Consolidated Net Income,


 


(v)  increase in Consolidated
Working Capital and long-term account receivables for such period (other than
any such increases arising from acquisitions by the Borrower and the Restricted
Subsidiaries during such period),


 


(vi)  cash payments by the
Borrower and the Restricted Subsidiaries during such period in respect of
long-term liabilities of the Borrower and the Restricted Subsidiaries other
than Indebtedness,


 


(vii)  without duplication of
amounts deducted pursuant to clause (viii) below in prior fiscal years, the
amount of cash Investments and acquisitions made during such period pursuant to
Section 7.02 (other than Section 7.02(a) and 7.02(c)) to the extent that such
Investments and acquisitions were financed with internally generated cash flow
of the Borrower and the Restricted Subsidiaries (or funded with proceeds of the
Revolving Credit Facility),


 


(viii)  the amount of Restricted
Payments paid during such period pursuant to Section 7.06(g) to the extent such
Restricted Payments were paid with internally generated cash flow of the
Borrower and the Restricted Subsidiaries,


 


(ix)  the aggregate amount of
expenditures actually made by the Borrower and the Restricted Subsidiaries in
cash during such period (including expenditures for the payment of financing
fees) to the extent that such expenditures are not expenses during such period,


 


(x)  the aggregate amount of any
premium, make-whole or penalty payments actually paid in cash by the Borrower
and the Restricted Subsidiaries during such period that are required to be made
in connection with any prepayment of Indebtedness,


 


(xi)  without duplication of
amounts deducted from Excess Cash Flow in prior periods, the aggregate
consideration required to be paid in cash by the Borrower or any of the
Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during
such period relating to Permitted Acquisitions or Capital Expenditures to be
consummated or made during the period of four consecutive fiscal


 


19

















 


quarters
of the Borrower following the end of such period; provided
that to the extent the aggregate amount of internally generated cash actually
utilized to finance such Permitted Acquisitions during such period of four
consecutive fiscal quarters is less than the Contract Consideration, the amount
of such shortfall shall be added to the calculation of Excess Cash Flow at the
end of such period of four consecutive fiscal quarters, and


 


(xii)  the amount of cash taxes
paid in such period to the extent they exceed the amount of tax expense
deducted in determining Consolidated Net Income for such period.


 


“Exchange Act”
means the Securities Exchange Act of 1934.


 


“Excluded Assets” has the meaning given in the Security
Agreement.


 


“Excluded Subsidiary” means any Restricted Subsidiary acquired
pursuant to a Permitted Acquisition financed with secured Indebtedness incurred
pursuant to Section 7.03(g) and each Restricted Subsidiary thereof that
guarantees such Indebtedness (in each case to the extent that Guaranteeing the
Obligations or granting a security interest in support thereof is prohibited by
such Indebtedness); provided that
each such Restricted Subsidiary shall cease to be an Excluded Subsidiary
hereunder if such secured Indebtedness is repaid or becomes unsecured or if
such Restricted Subsidiary ceases to guarantee such secured Indebtedness, as applicable.


 


“Existing
Credit Agreement” means the Amended and Restated Loan Agreement
dated as of December 15, 2005, among the Palace Station Hotel & Casino,
Inc., Boulder Station, Inc., Texas Station, LLC, Santa Fe Station, Inc., Sunset
Station, Inc., Lake Mead Station Holdings, LLC, Lake Mead Station, Inc., Fiesta
Station Holdings, LLC, Fiesta Station, Inc., Charleston Station, LLC, the
lenders  named therein, Bank of America,
N.A., as Administrative Agent, Wells Fargo Bank, N.A., as Syndication Agent,
DBTCA, The Royal Bank of Scotland plc, Wachovia Bank, National Association and
Bank of Scotland, as Co-Documentation Agents, and Banc of America Securities
LLC and Walls Fargo Bank, N.A., as joint Lead Arrangers and join Book Managers.


 


“Existing
Indebtedness” means  the Existing
Credit Facility, the Scotia Bank LCs, the Existing Notes and each other item of
Indebtedness set forth on Schedule 7.03(b).


 


“Existing
Letters of Credit” means the letters of credit outstanding on the
Closing Date and set forth on Schedule 1.01D.


 


“Existing Notes” means, collectively, the Existing Senior
Notes and the Existing Senior Subordinated Notes.


 


“Existing Senior Notes” means, collectively, the 6% Senior
Notes and the 7.75% Senior Notes.


 


“Existing Senior Notes Documentation” means the Existing Senior
Notes, the Existing Senior Notes Indentures and all other documents executed
and delivered with respect to the Existing Senior Notes.


 


“Existing
Senior Notes Indentures” means, collectively, means the 6% Senior
Notes Indenture dated as of March 17, 2004 and the 7.75% Senior Notes Indenture
dated as of August 1, 2006.


 


20
















 


“Existing
Senior Subordinated Notes” means, collectively, the 61⁄2% Senior
Subordinated Notes, the 6 5/8% Senior Subordinated Notes and the 6 7/8% Senior
Subordinated Notes.


 


“Existing Senior Subordinated Notes Documentation” means the
Existing Senior Subordinated Notes, the Existing Senior Subordinated Notes
Indentures and all other documents executed and delivered with respect to the
Existing Senior Subordinated Notes.


 


“Existing
Senior Subordinated Notes Indentures” means, collectively, the 61⁄2%
Senior Subordinated Notes Indenture dated as of January 29, 2004, the 6 5/8%
Senior Subordinated Notes Indenture dated as of March 13, 2006 and the 6 7/8%
Senior Subordinated Notes Indenture dated as of February 27, 2004.


 


“Facility”
means the Term Loan Facility, the Revolving Credit Facility, the Swing Line
Sublimit or the Letter of Credit Sublimit, as the context may require.


 


“Family Trust”
shall mean, with respect to an individual, any trust or entity owned,
controlled by or established for the benefit of, or the estate of, such
individual or that individual’s spouse or lineal descendants (including adopted
children and their lineal descendants.)


 


“FCP”
has the meaning specified in the recitals hereto.


 


“FCP Holding”
has the meaning specified in the recitals hereto.


 


“FCP Voteco”  has the meaning specified in the recitals hereto.


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates (rounded upwards, if necessary, to the next 1/100
of 1%) 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 JPMorgan Chase Bank on such day on such transactions as determined
by the Administrative Agent.


 


“Fee Letter”
means the Amended and Restated Fee Letter dated as of October 15, 2007, among
FCP and DBSI, DBTCA, JPMorgan and JPMCB, as amended, amended and restated,
supplemented or otherwise modified from time to time.


 


“Fertitta
Brothers” shall mean Frank J. Fertitta III and Lorenzo J. Fertitta.


 


“Fertitta Partners” has the meaning specified in the recitals
hereto.


 


“Foreign Lender” has the meaning specified in
Section 10.15(a)(i).


 


“Former
Lender” has the meaning specified in Section 10.23(a).


 


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


 


21

















 


“Funded Debt”
means all Indebtedness of the Borrower and the Restricted Subsidiaries for
borrowed money that matures more than one year from the date of its creation or
matures within one year from such date that is renewable or extendable, at the
option of such Person, to a date more than one year from such date or arises
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date,
including Indebtedness in respect of the Loans.


 


“GAAP”
means generally accepted accounting principles in the United States of America,
as in effect from time to time; provided, however, that if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the Closing Date in GAAP or
in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.


 


“Gaming
Authorities” shall mean, in any jurisdiction in which the Borrower
or any of its Subsidiaries manages or conducts any racing, riverboat and/or
casino gaming operations or activities (including any Acquired Business), the
applicable gaming board, commission or other governmental authority responsible
for interpreting, administering and enforcing the Gaming Laws including the
Nevada Gaming Commission and State Gaming Control Board and any agency or
authority with jurisdiction over gaming operations on Native American tribal
lands.


 


“Gaming Laws”
shall mean all laws, rules, regulations, orders and other enactments applicable
to racing, riverboat and/or casino gaming operations or activities (including
any Acquired Business of the Borrower or any of its Subsidiaries in any
jurisdiction), as in effect from time to time, including the policies,
interpretations and administration thereof by any Gaming Authorities, including
the Nevada Gaming Control Act, as codified in Chapter 463 of the Nevada Revised
Statutes, as amended from time to time, and the regulations of the Nevada
Gaming Commission promulgated thereunder, as amended from time to time .


 


“Governmental
Authority” means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Granting
Lender” has the meaning specified in Section 10.07(h).


 


“Guarantee”
means, as to any Person, without duplication, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other monetary 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 monetary obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or monetary other obligation of the
payment or performance of such Indebtedness or other monetary 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 monetary
obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in 


 


22

















 


respect of such Indebtedness
or other monetary obligation of the payment or 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
monetary obligation of any other Person, whether or not such Indebtedness or
monetary other obligation is assumed by such Person (or any right, contingent
or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business, or
customary and reasonable indemnity obligations in effect on the Closing Date or
entered into in connection with any acquisition or disposition of assets
permitted under this Agreement (other than such obligations with respect to
Indebtedness). The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantors”
has the meaning set forth in the definition of “Collateral and Guarantee
Requirement”.


 


“Guaranty”
means, collectively, (a) the Guaranty Agreement made by each Subsidiary
Guarantor in favor of the Administrative Agent on behalf of the Secured
Parties, substantially in the form of Exhibit F and (b) each other guaranty and
guaranty supplement delivered pursuant to Section 6.11.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or 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.


 


“Hedge Bank”
means any Person that is a Lender or an Affiliate of a Lender at the time it
enters into a Secured Hedge Agreement, in its capacity as a party thereto.


 


“Holding
Companies” means, collectively, FCP Holding, Fertitta Partners and
FCP Voteco.


 


“Honor Date”
has the meaning specified in Section 2.03(c)(i).


 


“Immaterial
Subsidiaries” means (a) as of the Closing Date, those Subsidiaries
of Borrower which are designated as such on Schedule 1.01I, and (b) each
additional Subsidiary of Borrower which is hereafter designated as such from
time to time by written notice to Administrative Agent in a manner consistent
with the provisions of Section 6.14(b); provided that
no Person shall be so designated (i) if, as of the date of its designation, its
Consolidated EBITDA for the then most recent period of twelve months is in
excess of $10,000,000, (ii) at any time when the aggregate book value (as
reasonably determined by Borrower) of the assets of all Immaterial Subsidiaries
would thereby be in excess of $300,000,000, (iii) if it owns any interest in
any Core Property or any Equity Interests in Borrower or any Guarantor, (iv) if
it owns any material assets which are used in connection with any gaming,
lodging or hospitality business, or (v) when any Default or Event of Default
has occurred and remains continuing.


 


“Incremental Amendment” has the meaning set forth in
Section 2.14(a).


 


“Incremental Facility Closing Date” has the meaning set forth
in Section 2.14(a).


 


“Incremental Revolving Credit Loans” has the meaning set forth
in Section 2.14(a).


 


“Incremental Term Loans” has the meaning set forth in
Section 2.14(a).


 


23

















 


“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)  the maximum amount (after giving effect to
any prior drawings or reductions which may have been reimbursed) of all letters
of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds, performance bonds and similar instruments issued or
created by or for the account of such Person;


 


(c)  net obligations of such Person
under any Swap Contract (or, to the extent of any related Swap Contracts
entered into with the same counterparty and which provide that amounts due
thereunder may be set off among such Swap Contacts, the net obligations of such
Person under all such related Swap Contracts);


 


(d)  all obligations of such Person to pay the
deferred purchase price of property or services (other than (i) trade accounts
payable in the ordinary course of business and (ii) any earn-out
obligation until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP);


 


(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 and mortgage, industrial revenue bond, industrial
development bond and similar financings), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;


 


(f)  all Capitalized Lease Indebtedness;


 


(g)  all obligations of such Person in respect of
Disqualified Equity Interests;


 


(h)  obligations under Support Agreements; and


 


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


 


For all purposes hereof, the
Indebtedness of any Person shall (A) 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, except to the extent such Person’s liability for
such Indebtedness is otherwise limited and only to the extent such Indebtedness
would be included in the calculation of Consolidated Total Net Debt, (B) in the
case of the Borrower and the Guarantors, exclude all intercompany Indebtedness
having a term not exceeding 364 days (inclusive of any roll-over or extensions
of terms) and made in the ordinary of business consistent with past practice
and (C) exclude the Indebtedness evidenced by the unsecured note in the
principal amount of $100,000,000 dated February 16, 2007 issued by GV Ranch
Station Capital Holdings, LLC to Green Valley Ranch Gaming LLC. The amount of
any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value as of such date. The amount of Indebtedness
represented by Guarantees and Support Agreements 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; provided, that in no event shall such amount be less than
the amount required to be reflected in the consolidated balance sheet of the 


 


24

















 


Person providing such
Guarantee or Support Agreement in accordance with GAAP (including Financial Standards
Board Statement No. 5). The amount of Indebtedness of any Person for purposes
of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) the fair market value of the
property encumbered thereby as determined by such Person in good faith.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees”
has the meaning set forth in Section 10.05.


 


“Information”
has the meaning specified in Section 10.08.


 


“Intellectual
Property Security Agreement” means the Intellectual Property
Security Agreement, substantially in the form attached as Exhibit K.


 


“Interest
Coverage Ratio” means, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis, as of the end of any fiscal
quarter of the Borrower for the Test Period ending on such date, the ratio of
(a) Consolidated EBITDA to (b) Consolidated Interest Expense.


 


“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 Maturity
Date; provided that if any Interest Period for
a Eurodollar 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; (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 Maturity
Date and (c) as to any Swing Line Loan, the day that such Loan is required to
be repaid.


 


“Interest
Period” means, as to each Eurodollar Loan, the period commencing on
the date such Eurodollar Loan is disbursed or converted to or continued as a
Eurodollar Loan and (i) with respect to Borrowings prior to the date that is
the earlier to occur of the thirtieth day after the Closing Date and the date
upon which the Joint Lead Arrangers determine in their sole discretion that
primary syndication of the Revolving Credit Facility and the Term Loans has
been completed ending one month after the Closing Date and (ii) thereafter
ending one, two, three or six months after the date of such Borrowing as
selected by the Borrower in its Committed Loan Notice; provided
that:


 


(a)  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;


 


(b)  any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period; and


 


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


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests or debt or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of Indebtedness of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture
interest in such other Person or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of all or substantially all of the
property and assets or business of another Person or assets constituting a
business unit, line of business or division 


 


25

















 


of such Person. 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
Collateral” means all “Intellectual Property Collateral” referred to
in the Collateral Documents and all of the other IP Rights that are or are
required by the terms hereof or of the Collateral Documents to be subject to
Liens in favor of the Administrative Agent for the benefit of the Secured
Parties.


 


“IP Rights”
has the meaning set forth in Section 5.15.


 


“IRS”
means the United States Internal Revenue Service.


 


“Joint Lead
Arrangers” has the meaning specified in the preamble hereto.


 


“JPMCB” means JPMorgan Chase Bank, N.A. and its successors.


 


“JPMorgan”
means J.P. Morgan Securities Inc.


 


“Junior
Financing” has the meaning specified in Section 7.13.


 


“Junior
Financing Documentation” means any documentation governing any
Junior Financing.


 


“Land Loan”
means, collectively, the real estate-backed delayed draw term loans provided to
the Land Loan Subsidiaries pursuant to the Land Loan Documents.


 


“Land Loan
Subsidiaries” means one or more special purpose Unrestricted Subsidiaries
of the Borrower, to be formed immediately prior to consummation of the initial
advance under the Land Loan, into which the Land Loan Property shall be
transferred by its current owner.


 


“Land Loan
Documents” means the Loan Documents as such term is defined in the
Commitment Letter dated November 2, 2007 between DBTCA, JPMCB and FCP regarding
the $250,000,000 delayed draw term loan to be provided pursuant to the terms
thereof.


 


“Land Loan
Property” means, collectively, the Wild Wild West Assemblage and the
Cactus Assemblage, in each case as defined in the Land Loan Documents.


 


“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 Credit Lender, such 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 Revolving Credit Borrowing.


 


26

















 


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


 


“L/C Issuer”
means DBTCA and any other Lender that becomes an L/C Issuer in accordance with
Section 2.03(k) or 10.07(j), in each case, in its capacity as an issuer of
Letters of Credit (including Existing 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
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.


 


“Lender”
means each Person from time to time part hereto as a Lender, including any
Person that becomes party hereto pursuant to an Assignment and Assumption and,
as the context requires, includes each L/C Issuer and the Swing Line Lender,
and their respective successors and assigns as permitted hereunder, each of
which is referred to herein as a “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 notify the Borrower
and the Administrative Agent.


 


“Letter of
Credit” means any Existing Letter of Credit or any letter of credit
issued hereunder. A Letter of Credit may be a commercial letter of credit or a
standby letter of credit.


 


“Letter of
Credit Application” 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 relevant L/C Issuer.


 


“Letter of
Credit Expiration Date” means the day that is five (5) Business Days
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of
Credit Sublimit” means an amount equal to the lesser of
(a) $100,000,000 and (b) the aggregate amount of the Revolving Credit
Commitments. The Letter of Credit Sublimit is part of, and not in addition to,
the Revolving Credit Facility.


 


“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, the
rate for eurodollar deposits for a period equal to one, two, three or six
months (as selected by the Borrower) appearing on Reuters Screen LIBOR1 Page; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
“LIBO Rate” shall be the interest rate per annum determined by the
Administrative Agent to be the average of the rates per annum at which deposits
in dollars are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of such Interest Period.


 


“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 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 Capitalized Lease having substantially the same economic effect as any of
the foregoing).


 


“Liquor Authorities” means, in any
jurisdiction in which the Borrower or any of its Subsidiaries sells and
distributes liquor, the applicable alcoholic beverage commission or
other Governmental Authority responsible for interpreting, administering and
enforcing the Liquor Laws.


 


27

















 


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


 


“Loan”
means an extension of credit by a Lender to the Borrower under Article 2 in the
form of a Term Loan, Revolving Credit Loan or a Swing Line Loan.


 


“Loan
Documents” means, collectively, (i) this Agreement, (ii) the Notes,
(iii) the Guaranty, (iv) the Collateral Documents, (v) each Letter of Credit
Application, (vi) the Commitment Letter and (vii) the Fee Letter.


 


“Loan Parties”
means, collectively, the Borrower, each Restricted Subsidiary and each other
Affiliate of the Borrower required to execute and deliver any Loan Document.


 


“Management
Stockholders” means the members of management of the Borrower or its
Subsidiaries who are investors in the Borrower or any direct or indirect parent
thereof.


 


“Master
Agreement” has the meaning specified in the definition of “Swap
Contract.”


 


“Master Lease”
means the triple net lease agreement dated as of November 7, 2007 between the
CMBS Subsidiary and the Borrower.


 


“Material Adverse Change” means a material
adverse effect on the assets or liabilities, business, financial condition or
results of operations of the Borrower and its Subsidiaries, taken as a whole; provided, however, that
in no event shall any of the following, alone or in combination, be deemed to
constitute, nor shall any of the following be taken into account in determining
whether there has been, a Material Adverse Change:  (A) any fact, change, development,
circumstance, event, effect or occurrence (an “Effect”)
in general economic or political conditions, whether locally, nationally or
internationally, or in the financial or securities markets, or any outbreak or
escalation of hostilities or declared or undeclared acts of terrorism; (B) any
Effect generally affecting, or resulting from general changes or developments
in, the travel, hospitality or gaming industries; (C) any failure to meet
internal or published projections, forecasts or revenue or earnings predictions
for any period (provided that the underlying
causes of such failures shall not be excluded); (D) any change in the price or
trading volume of the Shares in and of itself (provided
that the underlying causes of such changes shall not be excluded); (E) any
Effect that is demonstrated to have resulted from the announcement of the
proposal of the Acquisition or the Acquisition Agreement and the transactions
contemplated thereby, or the identity of FCP or any of its Affiliates as the
acquirer of the Borrower; (F) any Effect arising from any action taken by the
Borrower to comply with its obligations under the Acquisition Agreement; or (G)
any changes in Law or GAAP (or the interpretation thereof), except, in the case
of clauses (A) and (B), to the extent such Effects referred to therein have had
a materially disproportionate impact on the assets or liabilities, business,
financial condition or results of operations of the Borrower and its
Subsidiaries, taken as a whole, relative to other participants in the travel,
hospitality or gaming industries.


 


“Material
Adverse Effect” means any change, occurrence, event, circumstance or
development that has had or could reasonably be expected to have a material
adverse effect on (a) the business, property, condition (financial or
otherwise), operation or performance of the Borrower and its Subsidiaries,
taken as a whole or (b) the validity or enforceability of any of the Loan
Documents or the rights and remedies of the Administrative Agent and other
Secured Parties.


 


28

















 


“Material
Contracts” means each of the Master Lease, each Casino Sublease,
each Existing Senior Notes Indenture, each Existing Senior Subordinated Notes
Indenture and each contract set forth on Schedule 1.01J, in each case as in
effect on the date hereof or as amended, restated, supplemented or otherwise
modified in accordance with the provisions of the Loan Documents.


 


“Maturity
Date” means the date that is
fifty-seven (57) months after the Closing Date; provided,
however, that the Borrower may request,
no later than fifteen (15) days prior to such date, a single fifteen (15)-month
extension of the Maturity Date, and the Maturity Date shall be so extended, so
long as (i) no Event of Default has occurred and is continuing, (ii) the CMBS
Subsidiary shall have refinanced the CMBS Facility and (iii) at the time
Borrower requests such extension, Borrower delivers Projections (which shall be
reasonably acceptable to the Administrative Agent) in respect of such
additional fifteen (15)-month period that project that Borrower will remain in
compliance with the covenants set forth in Section 7.11 during such additional
fifteen (15)-month period after taking into account any change in the amount of
rent to be paid under the Master Lease during such fifteen (15)-month period
and after giving pro forma effect to the refinancing of the CMBS Facility.


 


“Maximum Rate”
has the meaning specified in Section 10.10.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Mortgage”
means, collectively, the deeds of trust, trust deeds, hypothecs and mortgages
made by the Loan Parties in favor or for the benefit of the Administrative
Agent on behalf of the Lenders substantially in the form of Exhibit H (with
such changes as may be customary to account for local Law matters), and any
other mortgages executed and delivered pursuant to Section 6.11.


 


“Mortgage
Policies” has the meaning specified in Section 6.13(b)(ii).


 


“Mortgaged
Properties” has the meaning specified in paragraph (j) of the
definition of Collateral and Guarantee Requirement.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which any Loan Party 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.


 


“Native
American Contracts” means contracts between Borrower or any of its
Restricted Subsidiaries and Native American tribes, bands or other forms of
government, or their agencies and instrumentalities, related to the
development, construction, management or operation of gaming, lodging and other
related businesses.


 


“Native
American Subsidiary” means (a) as of the Closing Date, those
Subsidiaries of the Borrower which are designated as such on Schedule 1.01I and
(b) each additional Subsidiary of Borrower which is hereafter designated as
such from time to time by written notice to the Administrative Agent in a
manner consistent with the provisions of Section 6.14(b); provided,
that no such Subsidiary shall be so designated (i) unless at all times such
Subsidiary is engaging exclusively in the business of managing, constructing,
developing, servicing, and otherwise supporting gaming, lodging and other
related businesses under the auspices of a Native American tribe, band or other
forms of government, (ii) unless at all times it does not own any interest in
any Core Property or any Equity Interests in any Person that is not itself a
Native American Subsidiary or (iii) when any Default or Event of Default has
occurred and is continuing.


 


29

















 


“Net Cash
Proceeds” means:


 


(a)  with respect to the Disposition of any asset
by the Borrower or any Restricted Subsidiary or any Casualty Event, the
remainder, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such Disposition or Casualty Event (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received and, with
respect to any Casualty Event, any insurance proceeds or condemnation awards in
respect of such Casualty Event actually received by or paid to or for the
account of the Borrower or any Restricted Subsidiary) minus (ii) the sum
of (A) the principal amount, premium or penalty, if any, interest and other amounts
on any Indebtedness that is secured by the asset subject to such Disposition or
Casualty Event and that is required to be repaid (and is timely repaid) in
connection with such Disposition or Casualty Event (other than Indebtedness
under the Loan Documents), (B) the out-of-pocket expenses (including attorneys’
fees, investment banking fees, survey costs, title insurance premiums, and
related search and recording charges, transfer taxes, deed or mortgage
recording taxes, other customary expenses and brokerage, consultant and other
customary fees) actually incurred by the Borrower or such Restricted Subsidiary
in connection with such Disposition or Casualty Event, (C) taxes paid or
reasonably estimated to be actually payable in connection therewith, and (D)
any reserve for adjustment in respect of (x) the sale price of such asset or
assets established in accordance with GAAP and (y) any liabilities associated
with such asset or assets and retained by the Borrower or any Restricted
Subsidiary after such sale or other disposition thereof, including pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with such transaction and it being understood that “Net Cash Proceeds” shall
include any cash or Cash Equivalents (i) received upon the Disposition of any
non-cash consideration received by the Borrower or any Restricted Subsidiary in
any such Disposition and (ii) upon the reversal (without the satisfaction of any
applicable liabilities in cash in a corresponding amount) of any reserve
described in clause (D) of the preceding sentence or, if such liabilities have
not been satisfied in cash and such reserve is not reversed within three
hundred and sixty-five (365) days after such Disposition or Casualty Event, the
amount of such reserve; provided that
(x) no net cash proceeds calculated in accordance with the foregoing
realized in a single transaction or series of related transactions shall
constitute Net Cash Proceeds unless such net cash proceeds shall exceed
$10,000,000 and (y) no such net cash proceeds shall constitute Net Cash
Proceeds under this clause (a) in any fiscal year until the aggregate amount of
all such net cash proceeds in such fiscal year shall exceed $25,000,000 (and
thereafter only net cash proceeds in excess of such amount shall constitute Net
Cash Proceeds under this clause (a)); and


 


(b)  with respect to the incurrence or issuance of
any Indebtedness by the Borrower or any Restricted Subsidiary or any Permitted
Equity Issuance, the excess, if any, of (i) the sum of the cash received by the
Borrower or a Restricted Subsidiary in connection with such incurrence or
issuance over (ii) the investment banking fees, underwriting discounts,
commissions, costs and other out-of-pocket expenses and other customary
expenses, incurred by the Borrower or such Restricted Subsidiary in connection
with such incurrence or issuance.


 


“New Property”
means, with respect to any period, any new hotel and/or casino and related
amenities (as opposed to any expansion to existing properties) opened for
business to the public by Borrower or its Restricted Subsidiaries during such
period.


 


“New Property
EBITDA” means, with respect to any New Property for any period, the
amount for such period of Consolidated EBITDA of such New Property (determined
as if references to the Borrower and the Restricted Subsidiaries in the
definition of Consolidated EBITDA were references 


 


30

















 


to the Person that owns such
New Property and its Subsidiaries), all as determined on a consolidated basis
for such New Property; provided that,
for any period, if the New Property was not opened on the first day of such
period, then the New Property EBITDA for such period shall be equal to (i) the
actual Consolidated EBITDA for such New Property during such period as
determined above, divided by (ii) the number of days during such period from
and after the opening of such New Property, times (iii) the total number of
days in such period.


 


“Non-Cash
Charges” has the meaning set forth in the definition of the term
“Consolidated EBITDA”.


 


“Non-Consenting Lenders” has the meaning specified in Section
3.07(d).


 


“Nonrenewal
Notice Date” has the meaning specified in Section 2.03(b)(iii).


 


“Note”
means a Term Note or a Revolving Credit Note, as the context may require.


 


“Not
Otherwise Applied” means, with reference to (i) any amount of Net
Cash Proceeds of any transaction or event, (ii) Excess Cash Flow or (iii) the
Available Distributions Amount, that such amount (a) was not required to be
applied to prepay the Loans pursuant to Section 2.5(b), and (b) was not
previously taken into account in permitting a transaction under the Loan
Documents where such permissibility is (or may have been) contingent on the
amount of Net Cash Proceeds, Cumulative Excess Cash Flow or Available
Distributions Amount received or generated. For the avoidance of doubt, the
aggregate amount of Investments, Restricted Payments and Capital Expenditures
made in reliance on the amount of Net Cash Proceeds, Cumulative Excess Cash
Flow and/or Available Distributions Amount pursuant to Sections 7.02(n)(iv),
7.06(g) and/or 7.16(a)(vii) shall reduce the amount “Not Otherwise Applied” of
any Net Cash Proceeds, Cumulative Excess Cash Flow and Available Distributions
Amount, as applicable. The Borrower shall promptly notify the Administrative
Agent of any application of such amount as contemplated by (b) above.


 


“Notice of
Intent to Cure” has the meaning specified in Section 6.02(b).


 


“NPL”
means the National Priorities List under CERCLA.


 


“Obligations”
means all (x) advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party and its Subsidiaries arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, 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
Subsidiary 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, (y) obligations of any Loan Party and its
Subsidiaries arising under any Secured Hedge Agreement and (z) Cash Management
Obligations. Without limiting the generality of the foregoing, the Obligations
of the Loan Parties under the Loan Documents (and of their Subsidiaries to the
extent they have obligations under the Loan Documents) include (a) the
obligation (including guarantee obligations) to pay principal, interest, Letter
of Credit commissions, reimbursement obligations, charges, expenses, fees,
Attorney Costs, indemnities and other amounts payable by any Loan Party or its
Subsidiaries under any Loan Document and (b) the obligation of any Loan Party
or any of its Subsidiaries to reimburse any amount in respect of any of the
foregoing that any Lender, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party or such Subsidiary.


 


31

















 


“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 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”
has the meaning specified in Section 3.01(b).


 


“Outstanding
Amount” means (a) with respect to the Term Loans, Revolving Credit
Loans and Swing Line Loans on any date, the aggregate amount thereof after
giving effect to any borrowings and prepayments or repayments of Term Loans,
Revolving Credit Loans (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit
Borrowing) and Swing Line Loans, as the case may be, occurring on such date;
and (b) with respect to any L/C Obligations on any date, the aggregate amount
thereof on such date after giving effect to any L/C Credit Extension occurring
on such date and any other changes thereto as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any Letters
of Credit (including any refinancing of outstanding unpaid drawings under
Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or
any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.


 


“Participant”
has the meaning specified in Section 10.07(e).


 


“Patriot Act”
has the meaning specified in Section 10.21.


 


“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 any Loan Party or any
ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes
or has an obligation to contribute.


 


“Permits”
means any and all franchises, licenses, leases, permits, approvals,
notifications, certifications, registrations, authorizations, exemptions,
qualifications, easements, rights of way, Liens and other rights, privileges
and approvals required under any applicable Law.


 


“Permitted
Acquisition” has the meaning specified in Section 7.02(i).


 


“Permitted
Equity Issuance” means (i) an issuance of Qualified Equity Interests
to managers of Borrower and its Subsidiaries as incentive compensation or to
Holdings Companies, (ii) any issuance of Qualified Equity Interests by any one
or more of the Holding Companies, prior to a Qualifying IPO, (iii) any issuance
of Qualified Equity Interests in respect of a Qualifying IPO and (iv) any
issuance of Qualified Equity Interests by Borrower following a Qualifying IPO.


 


“Permitted
Holders” means (a) one or more Affiliates of Colony Capital, LLC,
(b) Frank J. Fertitta III, his Affiliates, personal investment vehicles,
spouse, lineal descendants (including adopted children and their lineal
descendants) and any trust or entity owned, controlled by or established for
the benefit of, or the estate of, any of the foregoing, (c) Lorenzo J.
Fertitta, his Affiliates, personal 


 


32

















 


investment vehicles, spouse,
lineal descendants (including adopted children and their lineal descendants)
and any trust or entity owned, controlled by or established for the benefit of,
or the estate of, any of the foregoing, (d) Blake and Delise Sartini, their
Affiliates, personal investment vehicles, lineal descendants (including adopted
children and their lineal descendants) and any trust or entity owned,
controlled by or established for the benefit of, or the estate of, any of the
foregoing, and (e) Thomas J. Barrack, Jr., his Affiliates, personal investment
vehicles, spouse, lineal descendants (including adopted children and their
lineal descendants) and any trust or entity owned, controlled by or established
for the benefit of, or the estate of, any of the foregoing. For purposes of
this definition, the term “Affiliate” shall mean, with respect to any specified
Person, any other Person directly or indirectly Controlling or Controlled by or
under direct or indirect Common Control with, or any general partner or
managing member in, such specified Person.


 


“Permitted Land Loan Investment” means, from time to time,
one or more Investments in the Land Loan Subsidiaries in an aggregate amount no
greater than the amount necessary to repay or prepay the outstanding principal
amount of the Land Loan when due or permitted to be paid under the Land Loan
Documents; provided that (a) after giving effect to
such repayment or prepayment, the excess of the Revolving Credit Commitment
over the sum of the Outstanding Amount of Revolving Credit Loans, Swing Line
Loans and L/C Obligations will exceed $100,000,000, (b) the Total Leverage
Ratio calculated at such time for the Test Period, after giving pro forma
effect to such Investment, is no greater than 0.50:1.00 less than the maximum
Total Leverage Ratio permitted pursuant to Section 7.11(a) as of such last day
of the Test Period and (c) the Total Leverage Ratio calculated at such time for
the Test Period, after giving pro forma effect to such Investment, is no higher
than the Total Leverage Ratio for the Test Period calculated on the Closing
Date. In calculating the Total Leverage Ratio for purposes of determining
whether an Investment constitutes a Permitted Land Loan Investment, (i) pro
forma effect will be given to any Revolving Credit Borrowing made to fund any
portion of such Investment and (ii) in the event that, during the fiscal
quarter of the Borrower immediately preceding the date of calculation, the CMBS
Flowback Amount is less than it would have been but for a limitation imposed on
the payment thereof by the terms of the CMBS Loan Documents (the “CMBS Flowback Deficiency”), the amount of the CMBS Flowback
Deficiency will be given pro forma effect as if it applied during each of the
four fiscal quarters during the applicable Test Period. For the avoidance of
doubt, in the event that, pursuant to this definition, only a portion of the
Investment that the Borrower proposes to make in the Land Loan Subsidiaries would
constitute a Permitted Land Loan Investment (the “Reduced
Permitted Land Loan Investment”), the Borrower will be permitted to
make an Investment in the Land Loan Subsidiaries in an amount not to exceed
Reduced Permitted Land Loan Investment; provided, however, that in no case shall the aggregate Investments in
the Land Loan Subsidiaries made pursuant to Section 7.02(s) exceed the
aggregate amount necessary to repay or prepay the outstanding principal amount
of the Land Loan.


 


“Permitted
Lien” means each Lien permitted under Section 7.01.


 


“Permitted
Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal or extension of any Indebtedness of such
Person; provided that (a) the principal amount
(or accreted value, if applicable) thereof does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness so modified, refinanced,
refunded, renewed or extended except by an amount equal to unpaid accrued
interest and premium thereon plus other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any
existing commitments unutilized thereunder, (b) other than with respect to a Permitted
Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e),
such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being modified, refinanced, refunded,
renewed or extended, (c) other than with respect to a Permitted 


 


33

















 


Refinancing in respect of
Indebtedness permitted pursuant to Section 7.03(e), at the time thereof, no
Event of Default shall have occurred and be continuing, and (d) if such
Indebtedness being modified, refinanced, refunded, renewed or extended is
Indebtedness permitted pursuant to Section 7.03(b), 7.03(t) or 7.13(a), (i) to
the extent such Indebtedness being modified, refinanced, refunded, renewed or
extended is subordinated in right of payment to the Obligations, such
modification, refinancing, refunding, renewal or extension is subordinated in
right of payment to the Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness
being modified, refinanced, refunded, renewed or extended, (ii) the terms and
conditions of any such modified, refinanced, refunded, renewed or extended
Indebtedness, taken as a whole, are not materially less favorable to the
interests of the Lenders than the terms and conditions of the Indebtedness
being modified, refinanced, refunded, renewed or extended; provided
that a certificate of a Responsible Officer delivered to the Administrative
Agent at least five Business Days prior to the incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating
thereto, stating that the Borrower has determined in good faith that such terms
and conditions satisfy the foregoing requirement shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period
that it disagrees with such determination (including a reasonable description
of the basis upon which it disagrees) and (iii) such modification, refinancing,
refunding, renewal or extension is incurred by the Person who is the obligor of
the Indebtedness being modified, refinanced, refunded, renewed or extended.


 


“Permitted Subordinated Indebtedness” shall
mean Indebtedness of the Borrower that (a) does not mature, and is not subject
to mandatory repurchase, redemption or amortization (other than pursuant to
customary asset sale or change in control provisions requiring redemption or
repurchase only if and to the extent then permitted by this Agreement), in each
case, prior to the date that is six months after the Maturity Date, (b) is not
secured by any assets of any Borrower or any Subsidiary, (c) is not
exchangeable or convertible into any other Indebtedness of any Borrower or any
Disqualified Equity Issuance, (d) is, together with any Guarantee thereof by
any Subsidiary, subordinated to the obligations under the Loan Documents
pursuant to a written instrument either (i) in the form set forth in the
most recently executed indenture for senior subordinated notes, or (ii)
otherwise containing subordination terms and in form and
substance satisfactory, to the Administrative Agent (it being agreed that, at
any given time, in determining whether any such subordination
terms proposed under (ii) above  are reasonably satisfactory to the
Administrative Agent, the Administrative Agent will, in good faith, take into
consideration then prevailing market conditions), (e) contains covenants and
events of default, which, when taken as a whole, are determined in good faith
by a Responsible Officer to be consistent with customary high yield
documentation and in any event to be no less favorable, when taken as a whole,
to the Borrower in any material respect than the covenants and events of
default herein, (f) shall accrue interest at a rate determined in good faith by
the board of directors of the Borrower to be a market rate of interest for such
Indebtedness at the time of issuance thereof and (g) so long as immediately
after giving effect to any such Indebtedness, no Default has occurred and is
continuing and the Borrower and the Restricted Subsidiaries will be in Pro
Forma Compliance with the covenants set forth in Section 7.11.


 


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


 


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


 


34

















 


“Pledge
Agreement” means, collectively, the Pledge Agreement executed by the
Loan Parties, substantially in the form of Exhibit G-2, together with each
other pledge agreement supplement executed and delivered pursuant to
Section 6.11.


 


“Pledge
Agreement Supplement” has the meaning specified in the Security
Agreement.


 


“Pledged Debt”
means, as the context may require, the meaning specified in the Security
Agreement or the Pledge Agreement.


 


“Pledged
Equity” means, as the context may require, the meaning specified in
the Security Agreement or the Shareholder Pledge Agreement.


 


“Post-Acquisition
Period” means, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on
the last day of the sixth full consecutive fiscal quarter immediately following
the date on which such Permitted Acquisition is consummated.


 


“Pre-Opening
Expenses” means, with respect to any fiscal period, the amount of
expenses (other than Consolidated Interest Expense) classified as “pre-opening
expenses” on the applicable financial statements of Borrower and its
Subsidiaries for that period, prepared in accordance with GAAP consistently
applied.


 


“Prime Rate”
means the rate of interest per annum publicly announced from time to time by
DBTCA as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective as of the opening of business on
the date such change is publicly announced as being effective. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually available.


 


“Principal
Control Persons” means (a) one or more affiliates of Colony Capital,
LLC (or, subject to such Persons being licensed as and when required in
accordance with applicable Gaming Laws, its five most senior executive
officers, including, without limitation, Thomas J. Barrack’s successor as Chief
Executive Officer of Colony Capital, LLC), (b) Frank J. Fertitta III, (c)
Lorenzo J. Fertitta, (d) Thomas J. Barrack, Jr., (e) any other Person expressly
agreed to in writing by Lenders to be a Principal Control Person and (f) in the
event that both Fertitta Brothers are deceased or incapacitated, one of the
Persons identified on Schedule 1.01N designated by Borrower (subject to
compliance with applicable Gaming Laws and provided that
the Person so designated shall not be a Disqualified Transferee) as a Principal
Control Person in lieu of the Fertitta Brothers.


 


“Principal
L/C Issuer” means any L/C Issuer that has issued Letters of Credit
having an aggregate Outstanding Amount in excess of $2,000,000.


 


“Pro Forma
Adjustment” means, for any Test Period that includes all or any part
of a fiscal quarter included in any Post-Acquisition Period, with respect to
the Acquired EBITDA of the applicable Acquired Entity or Business or the
Consolidated EBITDA of the Borrower, the pro forma increase or decrease in such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by
the Borrower in good faith as a result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable
and factually supportable cost savings or (b) any additional costs incurred
during such Post-Acquisition Period, in each case in connection with the
combination of the operations of such Acquired Entity or Business with the
operations of the Borrower and the Restricted Subsidiaries; provided that, so long as such actions are taken during such
Post-Acquisition Period or such costs are incurred during such Post-Acquisition
Period, as applicable, the cost 


 


35

















 


savings related to such
actions or such additional costs, as applicable, it may be assumed, for
purposes of projecting such pro forma increase or decrease to such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, that such cost
savings will be realizable during the entirety of such Test Period, or such
additional costs, as applicable, will be incurred during the entirety of such
Test Period; provided further that any such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, shall be without duplication for cost savings or
additional costs already included in such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, for such Test Period.


 


“Pro Forma Balance Sheet” has the meaning set forth in
Section 5.05(a)(ii).


 


“Pro Forma
Basis”, “Pro Forma Compliance”
and “Pro Forma Effect” mean, with respect to
compliance with any test or covenant hereunder, that (A) to the extent
applicable, the Pro Forma Adjustment shall have been made and (B) all Specified
Transactions and the following transactions in connection therewith shall be
deemed to have occurred as of the first day of the applicable period of
measurement in such test or covenant: 
(a) income statement items (whether positive or negative) attributable
to the property or Person subject to such Specified Transaction, (i) in the
case of a Disposition of all or substantially all Equity Interests in any
Subsidiary of the Borrower or any division, product line, or facility used for
operations of the Borrower or any of its Subsidiaries, shall be excluded, and
(ii) in the case of a Permitted Acquisition or Investment described in the
definition of  “Specified Transaction”,
shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness
incurred or assumed by the Borrower or any of the Restricted Subsidiaries in
connection therewith and if such Indebtedness has a floating or formula rate,
shall have an implied rate of interest for the applicable period for purposes
of this definition determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of
determination; provided that, without limiting
the application of the Pro Forma Adjustment pursuant to (A) above, the
foregoing pro forma adjustments may be applied to any such test or covenant
solely to the extent that such adjustments are consistent with the definition
of Consolidated EBITDA and give effect to events (including operating expense
reductions) that are (i) (x) directly attributable to such transaction, (y)
expected to have a continuing impact on the Borrower and the Restricted
Subsidiaries and (z) factually supportable or (ii) otherwise consistent with
the definition of Pro Forma Adjustment.


 


“Pro Forma
Financial Statements” has the meaning set forth in
Section 5.05(a)(ii).


 


“Pro Rata
Share” means, with respect to each 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 Commitments of such Lender under the
applicable Facility or Facilities at such time and the denominator of which is
the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time; provided that
if such Commitments under a Facility have been terminated, then the Pro Rata
Share of each Lender with respect to such Facility shall be determined based on
the Pro Rata Share of such Lender with respect to such Facility immediately
prior to such termination and after giving effect to any subsequent assignments
made pursuant to the terms hereof.


 


“Projections” shall have the meaning set forth in
Section 6.01(d).


 


“Purchase and
Sale Agreement” means that certain Purchase and Sale Agreement dated
as of February 23, 2007 among Boulder Station, Inc., Fiesta Station Holdings,
LLC, Lake Mead Station Holdings, LLC, Palace Station Hotel & Casino, Inc.,
Santa Fe Station, Inc., Sunset Station, Inc. and FCP Newco, LLC.


 


36

















 


“Qualified Equity Interests” means any Equity Interests that
are not Disqualified Equity Interests.


 


“Qualifying
IPO” means the issuance by the Borrower or any direct or indirect
parent of the Borrower of its common Equity Interests in an underwritten
primary public offering (other than a public offering pursuant to a
registration statement on Form S-8) pursuant to an effective registration
statement filed with the SEC in accordance with the Securities Act (whether
alone or in connection with a secondary public offering) that results in gross
cash proceeds to the Borrower and/or its parent entities of at least
$250,000,000.


 


“Real
Property” means all Mortgaged Property and all other real property
owned or leased from time to time by any of the Borrower or any Subsidiary.


 


“Red Rock”
means the hotel casino commonly known as Red Rock Casino, Resort and Spa
located on the southeast corner of the intersection of the Beltway (I-215) and
Charleston Blvd. in Clark County, Nevada.


 


“Register”
has the meaning set forth in Section 10.07(d).


 


“Regulation T”
means Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Regulation U”
means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Regulation X”
means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


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


 


“Request for
Credit Extension” means (a) with respect to a Borrowing, conversion
or continuation of Term Loans or Revolving Credit 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 the (a) 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) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit 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; provided, further that in the event the
“Required Lenders” determined in accordance with the foregoing constitute less
than three Lenders (and three or more Lenders (other than Defaulting Lenders)
then exist), the “Required Lenders” shall mean such Lenders plus the number of
additional Lenders (that are not Defaulting Lenders) necessary so that the
Required Lenders constitute three Lenders.


 


“Responsible
Officer” means the chief executive officer, president, vice
president, principal accounting officer, treasurer or assistant treasurer or
other similar officer of a Loan Party and, as 


 


37

















 


to any document delivered on
the Closing Date, any secretary or assistant secretary 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 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
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest of the
Borrower 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, defeasance, acquisition,
cancellation or termination of any such Equity Interest, or on account of any
return of capital to any Holding Company or the Borrower’s other stockholders,
partners or members (or the equivalent Persons thereof) or any option, warrant
or other right to acquire any such Equity Interests in the Borrower or any
Restricted Subsidiary.


 


“Restricted
Subsidiary” means any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.


 


“Revolving
Commitment Increase” has the meaning set forth in
Section 2.14(a).


 


“Revolving
Commitment Increase Lender” has the meaning set forth in
Section 2.14(a).


 


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


 


“Revolving
Credit Commitment” means, as to Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to
Section 2.01(b), (b) purchase participations in L/C Obligations in respect of
Letters of Credit 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, and opposite such Lender’s name on Schedule 2.01 under the caption
“Revolving Credit Commitment” or in an Incremental Amendment or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. The aggregate Revolving Credit Commitments of all
Revolving Credit Lenders shall be $650,000,000 on the Closing Date, as such
amount may be adjusted from time to time in accordance with the terms of this
Agreement.


 


“Revolving
Credit Exposure” means, as to each Revolving Credit Lender, the sum
of the outstanding principal amount of such Revolving Credit Lender’s Revolving
Credit Loans and its Pro Rata Share of the L/C Obligations and the Swing Line
Obligations at such time.


 


“Revolving
Credit Lender” means, at any time, any Lender that has a Revolving
Credit Commitment at such time.


 


“Revolving
Credit Loan” has the meaning specified in Section 2.01(b).


 


“Revolving Credit Facility” means, at any time, the aggregate
amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such
time.


 


38

















 


“Revolving
Credit Note” means a promissory note of the Borrower payable to any
Revolving Credit Lender or its registered assigns, in substantially the form of
Exhibit C-2 hereto, evidencing the aggregate Indebtedness of the Borrower to
such Revolving Credit Lender resulting from the Revolving Credit Loans made by
such Revolving Credit Lender.


 


“Rollover
Amount” has the meaning set forth in Section 7.15(b).


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.


 


“Scotia Bank
LCs” means, collectively, the letters of credit issued by the Bank
of Nova Scotia pursuant to the unsecured Reimbursement Agreement dated January
6, 2006, entered into between Borrower and the Bank of Nova Scotia, as issuing
bank, which letters of credit are itemized on Schedule 1.01M.


 


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


 


“Secured
Hedge Agreement” means any Swap Contract permitted under
Article 7 that is entered into by and between any Loan Party or any
Restricted Subsidiary and any Hedge Bank, except to the extent that the parties
thereto agree in writing that such Swap Contract shall not be secured by any
Liens on the Collateral and such parties have delivered such writing to the
Administrative Agent.


 


“Secured
Obligations” has the meaning specified in the Security Agreement.


 


“Secured
Parties” means, collectively, the Administrative Agent, the Lenders,
the Hedge Banks, the Supplemental Administrative Agent and each co-agent or
sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 9.02.


 


“Securities
Act” means the Securities Act of 1933.


 


“Security
Agreement” means, collectively, the Security Agreement executed by
the Loan Parties, substantially in the form of Exhibit G-1, together with each
other security agreement supplement executed and delivered pursuant to
Section 6.11.


 


“Security
Agreement Supplement” has the meaning specified in the Security
Agreement.


 


“Senior Secured Leverage Ratio”
means, with respect to any Test Period, the ratio of (a) Consolidated
Senior Secured Debt as of the last day of such Test Period to (b) Consolidated
EBITDA for such Test Period.


 


“Shareholder
Pledge Agreement” means the Shareholder Pledge and Security
Agreement executed by the Holding Companies, substantially in the form of
Exhibit G-3.


 


“Sold Entity
or Business” has the meaning set forth in the definition of the term
“Consolidated EBITDA”.


 


“Solvent”
and “Solvency” mean, with respect to any
Person on any date of determination, that on such date (a) the fair value of
the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person, (b) the present fair salable
value of 


 


39

















 


the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such
Person’s property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.


 


“SPC”
has the meaning specified in Section 10.07(h).


 


“Specified
FF&E” means, with respect to each Casino Sublease, the
furniture, fixtures and equipment owned by the tenant under such Casino
Sublease that are located within the premises leased under such Casino Sublease
and that are required to be pledged by such tenant in favor of the landlord
under such Casino Sublease to secure such tenant’s obligations under such
Casino Sublease as in effect on the date hereof.


 


“Specified
FF&E and Reserve Accounts Lien” has the meaning specified in
Section 7.01(x).


 


“Specified
Transaction” means, with respect to any period, any Investment,
Disposition, incurrence or repayment of Indebtedness, Restricted Payment,
Subsidiary designation, Incremental Term Loan or Revolving Commitment Increase
that by the terms of this Agreement requires “Pro Forma Compliance” with a test
or covenant hereunder or requires such test or covenant to be calculated on a
“Pro Forma Basis”.


 


“Sponsors”
means, collectively, one or more Affiliates of Colony Capital, LLC
(collectively, “Colony”), Mr. Frank J. Fertitta III
and his personal investment vehicles and Mr. Lorenzo J. Fertitta and his
personal investment vehicles, together with other co-investors that are
reasonably acceptable to the Joint Lead Arrangers prior to the Closing Date and
their respective Affiliates.


 


“Statutory
Reserves” means a fraction (expressed as a decimal), the numerator
of which is the number one minus the aggregate of the maximum reserve
percentage (including any marginal, special, emergency or supplemental
reserves) applicable on the interest rate determination date (expressed as a
decimal) established by the Board and applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency Liabilities (as defined in
Regulation D of the Board) and the denominator of which is the number one.


 


“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 Borrower.


 


“Substitute
Lender” has the meaning specified in Section 10.23(a).


 


“Supplemental
Administrative Agent” has the meaning specified in
Section 9.13(a) and “Supplemental Administrative Agents” shall have the
corresponding meaning.


 


40

















 


“Support
Agreement” means (a) the guaranty by the Borrower or a Restricted
Subsidiary of the completion of the development, construction and opening of a
new gaming facility by any Affiliate or Subsidiary of Borrower (including a
Native American Subsidiary) or of any gaming facility owned by others which is
to be managed exclusively by any such Affiliate or Subsidiary, (b) the
agreement by Borrowers or a Restricted Subsidiary to advance funds, property or
services to or on behalf of an Affiliate or Subsidiary (including a Native
American Subsidiary) in order to maintain the financial condition or level of
any balance sheet item of such Subsidiary or Affiliate (including “keep well”
or “make well” agreements) in connection with the development, construction and
operations of a new gaming facility by such Native American Subsidiary (or of
any gaming facility owned by others which is to be managed exclusively by such
Subsidiary or Affiliate; provided that
such guaranty or agreement is entered into in connection with obtaining
financing for such gaming facility or is required by a Governmental Agency.


 


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


 


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


 


“Swing Line
Lender” means DBTCA, 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.


 


41

















 


“Swing Line
Obligations” means, as at any date of determination, the aggregate
principal amount of all Swing Line Loans outstanding.


 


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $25,000,000 and
(b) the aggregate amount of the Revolving Credit Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Revolving Credit Commitments.


 


“Syndication
Agent” has the meaning set forth in the preamble hereto.


 


“Taxes”
has the meaning specified in Section 3.01(a).


 


“Term
Borrowing” means a borrowing consisting of simultaneous Term Loans
of the same Type and currency and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the Term Lenders pursuant to
Section 2.14.


 


“Term Lender”
means, at any time, any Lender that has a Term Loan at such time.


 


“Term Loan”
means a Loan made pursuant to Section 2.01(a) or an Incremental Term Loan.


 


“Term Loan
Commitment” means, with respect to each Lender, the commitment of
such Lender to make Term Loans on the Closing Date pursuant to Section 2.01(a)
in an aggregate amount not to exceed the amount set forth opposite such
Lender’s name on Schedule 2.01 under the caption “Term Loan Commitment”. The
aggregate amount of the Term Loan Commitments of all Term Lenders on the
Closing Date is $250,000,000.


 


“Term Loan
Facility” means the Term Loan Commitment and all Term Loans made
hereunder.


 


“Term Note”
means a promissory note of the Borrower payable to any Term Lender or its
registered assigns, in substantially the form of Exhibit C-1 hereto, evidencing
the aggregate Indebtedness of the Borrower to such Term Lender resulting from
the Term Loans made by such Term Lender.


 


“Test Period”
means, for any determination under this Agreement, the four consecutive fiscal
quarters of the Borrower then last ended.


 


“Threshold
Amount” means $50,000,000.


 


“Total Leverage Ratio” means, with
respect to any Test Period, the ratio of (a) Consolidated Total Net Debt
as of the last day of such Test Period to (b) Consolidated EBITDA for such
Test Period.


 


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


 


“Tranche”
means a category of Commitments or Credit Extensions thereunder. For purposes
hereof, each of the following comprises a separate Tranche:  (a) the unused Revolving Credit Commitments,
(b) the outstanding Revolving Credit Loans and L/C Obligations in respect of
Letters of Credit and (c) the outstanding Term Loans.


 


42

















 


“Transaction”
means, collectively, (a) the Equity Contributions, (b) the Acquisition, (c) the
funding of the Term Loans and up to $260,000,000 of Revolving Credit Loans on
the Closing Date, (e) the funding of the CMBS Facility on the Closing Date, (f)
the Casino Sale Leaseback Transaction, (g) the consummation of any other
transactions in connection with the foregoing, and (h) the payment of the fees
and expenses incurred in connection with any of the foregoing.


 


“Transaction Documents” means the Acquisition Agreement and all
other material documents, instruments and certificates delivered pursuant to
the Acquisition Agreement.


 


“Transaction
Expenses” means any fees or expenses incurred or paid by the Holding
Companies, the Borrower or any Restricted Subsidiary in connection with the
Transaction, this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby.


 


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


 


“Unaudited
Financial Statements” has the meaning set forth in Section 4.01(g).


 


“Uniform
Commercial Code” means the Uniform Commercial Code as the same may
from time to time be in effect in the State of New York or the Uniform
Commercial Code (or similar code or statute) of another jurisdiction, to the
extent it may be required to apply to any item or items of Collateral.


 


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


 


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


 


“Unrestricted
Subsidiary” means (i) each Subsidiary of the Borrower listed on
Schedule 1.01C and (ii) any Subsidiary of the Borrower designated by the board
of directors of Borrower as an Unrestricted Subsidiary pursuant to
Section 6.14 subsequent to the date hereof. For the avoidance of doubt,
“Unrestricted Subsidiary” includes the CMBS Subsidiary.


 


“U.S. Lender”
has the meaning set forth in Section 10.15(b).


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at
any date, the number of years obtained by dividing: (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such
date and the making of such payment; by (ii) the then outstanding
principal amount of such Indebtedness.


 


“wholly owned” means, with respect to a Subsidiary of a Person,
a Subsidiary of such Person all of the outstanding Equity Interests of which
(other than (x) director’s qualifying shares and (y) shares issued to foreign
nationals to the extent required by applicable Law) are owned by such Person
and/or by one or more wholly owned Subsidiaries of such Person.


 


“Wild Wild
West” means the Wild Wild West Gaming Hall & Hotel, together
with any real property interests associated therewith and adjacent real
property, collectively owned or leased by the following wholly-owned Unrestricted
Subsidiaries of Borrower: Vista Holdings, LLC; Tropicana Station, Inc.;
Tropicana Acquisitions, LLC and the Land Loan Subsidiaries.


 


43

















 


SECTION 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:


 


(a)  The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.


 


(b)  (i) 
The words “herein,” “hereto,” “hereof” and “hereunder” and words of
similar import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.


 


(i)  Article, Section, Exhibit and Schedule
references are to the Loan Document in which such reference appears.


 


(ii)  The terms “include,” “includes” and
“including” are each by way of example and not limitation and shall be deemed
to be followed by the phrase “without limitation.”


 


(iii)  The term “documents” includes any and all
instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.


 


(c)  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.”


 


(d)  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.


 


(e)  The words “asset” and “property” shall be
construed as having the same meaning and effect and to refer to any and all
rights and interests in tangible and intangible assets and properties of any
kind whatsoever, whether real, personal or mixed, including cash, securities,
Equity Interests, accounts and contract rights.


 


(f)  The words  “to
the knowledge of the Borrower” mean, when modifying a representation, warranty
or other statement, that the fact or situation described therein is known by a
Responsible Officer of Borrower or with the exercise of reasonable due
diligence under the circumstances (in accordance with the standards of what a
reasonable Person in similar circumstances would have done) would have been
known by a Responsible Officer of the Borrower.


 


SECTION 1.03. Accounting Terms


 


. (a)  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 shall be prepared in
conformity with, GAAP, applied in a manner consistent with that used in
preparing the Audited Financial Statements, except as otherwise specifically
prescribed herein.


 


(a)  Notwithstanding anything to the contrary
herein, for purposes of determining compliance with any test or covenant
contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Total Leverage Ratio, Senior Secured Leverage
Ratio and Interest Coverage Ratio shall be calculated with respect to such
period and such Specified Transaction on a Pro Forma Basis.


 


44
















 


SECTION 1.04. Rounding. Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement (or required to be
satisfied in order for a specific action to be permitted under 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).


 


SECTION 1.05. References to Agreements, Laws, Etc. Unless
otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
permitted by any Loan Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.


 


SECTION 1.06. Times of Day. Unless otherwise specified, all
references herein to times of day shall be references to the time of day in New
York, New York (daylight savings or standard, as applicable).


 


SECTION 1.07. Timing of Payment or Performance. When the payment
of any obligation or the performance of any covenant, duty or obligation is
stated to be due or performance required on a day which is not a Business Day,
the date of such payment (other than as described in the definition of Interest
Period) or performance shall extend to the immediately succeeding Business Day.


 


ARTICLE II


 


The Commitments and Credit Extensions


 


SECTION 2.01. The Loans. (a) The Term Loans.
Subject to the terms and conditions set forth herein, each Term Loan Lender
severally agrees to make to the Borrower on the Closing Date a single loan
denominated in Dollars in an amount equal to such Lender’s Term Loan Commitment.
Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed. Term Loans made under this Section 2.01(a) may be Base Rate Loans
or Eurodollar Loans, as further provided herein.


 


(b)  The Revolving Credit
Borrowings. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender severally agrees to make loans to the Borrower as
elected by the Borrower pursuant to Section 2.02 (each such loan, including
each loan made pursuant to a Revolving Commitment Increase, a “Revolving Credit Loan”) from time to time, on any Business
Day until the Maturity Date, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving Credit
Borrowing, (i) the aggregate Outstanding Amount of the Revolving Credit Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Revolving Credit
Commitment and (ii)  the aggregate amount of Revolving Credit Loans made
on the Closing Date shall not exceed $260,000,000. Within the limits of each
Lender’s Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving Credit
Loans may be Base Rate Loans or Eurodollar Loans, as further provided herein.


 


SECTION 2.02. Borrowings, Conversions and Continuations of Loans.
(a)  Each Term Borrowing, each Revolving
Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans 


 


45

















 


from one Type to the other, and each continuation of Eurodollar Loans
shall be made upon the Borrower’s 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 12:30 p.m. (i) three (3)
Business Days prior to the requested date of any Borrowing of Eurodollar Loans
or continuation thereof or any conversion of Base Rate Loans to Eurodollar
Loans, and (ii) no later than 12:00 noon New York time on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
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 Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Loans shall be in a principal
amount of $5,000,000 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 Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Term Borrowing, Revolving Credit Borrowing, a conversion of Term Loans or
Revolving Credit Loans from one Type to the other, or a continuation of
Eurodollar 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 Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Term Loans or Revolving Credit
Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in
a Committed Loan Notice or fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans or Revolving Credit
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Loans.
If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
(1) month.


 


(b)  Following receipt of a Committed Loan Notice,
the Administrative Agent shall promptly notify each Lender of the amount of its
Pro Rata Share of the applicable Class of Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans or continuation described in Section 2.02(a). In the case
of each Borrowing, each Appropriate Lender shall make the amount of its 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 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of the Administrative Agent with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided that
if, on the date the Committed Loan Notice with respect to such Borrowing is
given by the Borrower, there are Swing Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to
the payment in full of any such L/C Borrowings, second, to the payment in full
of any such Swing Line Loans, and third, to the Borrower as provided above.


 


(c)  Except as otherwise provided herein, a
Eurodollar Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Loan unless the Borrower pays the amount
due, if any, under Section 3.05 in connection therewith. During the
existence of an Event of Default, the Administrative Agent or the Required
Lenders may require that no Loans may be converted to or continued as Eurodollar
Loans.


 


46

















 


(d)  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the interest rate applicable to any
Interest Period for Eurodollar Loans upon determination of such interest rate. The
determination of the Adjusted LIBO Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in the DBTCA prime rate used in determining the Base Rate
promptly following the public announcement of such change.


 


(e)  After giving effect to all Term Borrowings,
all Revolving Credit Borrowings, all conversions of Term Loans or Revolving
Credit Loans from one Type to the other, and all continuations of Term Loans or
Revolving Credit Loans as the same Type, there shall not be more than ten (10)
Interest Periods in effect.


 


(f)  The failure of any Lender to make the Loan to
be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any
Borrowing.


 


SECTION 2.03. Letters of Credit. (a)  The Letter of Credit
Commitment. (i)   On and after
the Closing Date, the Existing Letters of Credit will constitute Letters of
Credit under this Agreement and for purposes hereof will be deemed to have been
issued on the Closing Date; provided, however, that no Existing Letter of Credit shall be
permitted to be renewed upon the expiration thereof; provided
that Existing Letters of Credit may be replaced by letters of credit issued by
DBTCA as L/C Issuer upon request by Borrower and satisfaction of the
requirements therefor set forth herein. Subject to the terms and conditions set
forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of
the other Revolving Credit Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower (provided, that
any Letter of Credit may be for the benefit of any Subsidiary of the Borrower; provided, further, to the
extent that any such Subsidiary is not a Loan Party, such Letter of Credit
shall be deemed an Investment in such Subsidiary and shall only be issued so
long as it is permitted under Section 7.02) and to amend or renew Letters of
Credit previously issued by it, in accordance with Section 2.03(b), and
(2) to honor drafts under the Letters of Credit, and (B) the Revolving Credit
Lenders severally agree to participate in Letters of Credit issued pursuant to
this Section 2.03; provided that
no L/C Issuer shall be obligated to make any L/C Credit Extension with respect
to any Letter of Credit, and no Lender shall be obligated to participate in any
Letter of Credit if as of the date of such L/C Credit Extension, (x) the
Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving
Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.


 


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


 


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


 


47

















 


Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date (for which such L/C Issuer is not
otherwise compensated hereunder);


 


(B)  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 renewal, unless the Required Lenders
have approved such expiry date;


 


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


 


(D)  the issuance of such Letter of Credit would
violate any Laws binding upon such L/C Issuer.


 


(iii)  An L/C Issuer shall be under no obligation to
amend any Letter of Credit if (A) such 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.


 


(b)  Procedures for Issuance
and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit. (i) 
Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Borrower delivered to an L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower. Such
Letter of Credit Application must be received by the relevant L/C Issuer and
the Administrative Agent not later than 12:30 p.m. at least two (2) Business
Days prior to the proposed issuance date or date of amendment, as the case may
be; or, in each case, such later date and time as the relevant L/C Issuer
may agree in a particular instance in its sole discretion. 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 reasonably satisfactory to the relevant 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 relevant L/C Issuer may reasonably request. 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 reasonably
satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a Business
Day); (3) the nature of the proposed amendment; and (4) such other matters as
the relevant L/C Issuer may reasonably request.


 


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


 


48

















 


(iii)  If the Borrower so requests in any applicable
Letter of Credit Application, the relevant L/C Issuer shall agree to issue a
standby Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must
permit the relevant L/C Issuer to prevent any such renewal at least once in
each twelve month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the “Nonrenewal Notice Date”)
in each such twelve month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the
Borrower shall not be required to make a specific request to the relevant L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require)
the relevant L/C Issuer to permit the renewal of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer shall not permit any
such renewal if (A) the relevant L/C Issuer has determined that it would have
no obligation at such time to issue such Letter of Credit in its renewed form
under the terms hereof (by reason of the provisions of Section 2.03(a)(ii)
or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Nonrenewal Notice Date from the Administrative Agent, any Revolving Credit
Lender or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied.


 


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


 


(c)  Drawings and
Reimbursements; Funding of Participations. (i) 
Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the relevant L/C Issuer shall
notify promptly the Borrower and the Administrative Agent thereof. Not later
than 3:00 p.m. on the Business Day on which any payment by an L/C Issuer under
a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse such L/C Issuer by such time, the Administrative
Agent shall promptly notify each Appropriate Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Appropriate Lender’s Pro Rata Share
thereof. In such event, the Borrower shall be deemed to have requested a
Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans but subject to the amount of the unutilized portion of the Revolving
Credit Commitments of the Appropriate Lenders and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice). Any
notice given by an 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 Appropriate Lender (including any Lender
acting as an L/C Issuer) shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for
the account of the relevant L/C Issuer, in Dollars, at the Administrative Agent’s
Office for payments 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 Appropriate Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
relevant L/C Issuer.


 


49

















 


(iii)  With respect to any Unreimbursed Amount that
is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be satisfied or
for any other reason, the Borrower shall be deemed to have incurred from the
relevant 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 Appropriate Lender’s payment to the Administrative Agent for
the account of the relevant 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 Lender in satisfaction of its
participation obligation under this Section 2.03.


 


(iv)  Until each Appropriate Lender funds its
Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the relevant 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 relevant L/C Issuer.


 


(v)  Each Revolving Credit Lender’s obligation to
make Revolving Credit Loans or L/C Advances to reimburse an 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
relevant L/C Issuer, the Borrower 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 that each Revolving Credit
Lender’s obligation to make Revolving Credit Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Committed Loan
Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the relevant L/C Issuer for the amount
of any payment made by such L/C Issuer under any Letter of Credit, together
with interest as provided herein.


 


(vi)  If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the relevant L/C
Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from
such 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 such L/C Issuer
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
A certificate of the relevant L/C Issuer submitted to any Revolving Credit
Lender (through the Administrative Agent) with respect to any amounts owing
under this Section 2.03(c)(vi) shall be conclusive absent manifest error.


 


(d)  Repayment of
Participations.


 


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


 


50

















 


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 an L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by such
L/C Issuer in its discretion), each Appropriate Lender shall pay to the
Administrative Agent for the account of such 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 Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect.


 


(e)  Obligations Absolute.
The obligation of the Borrower to reimburse the relevant L/C Issuer for each
drawing under each Letter of Credit issued by it 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:


 


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


 


(ii)  the existence of any claim, counterclaim,
setoff, defense or other right that Borrower 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
relevant 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 relevant 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 relevant 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;


 


(v)  any exchange, release or nonperfection of any
Collateral, or any release or amendment or waiver of or consent to departure
from the Guaranty or any other guarantee, for all or any of the Obligations any
Loan Party in respect of such Letter of Credit; or


 


(vi)  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, any Loan Party;


 


provided that the foregoing shall not excuse any L/C
Issuer from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are waived by the
Borrower to the extent permitted by applicable Law) suffered by the Borrower
that are caused by such 


 


51

















 


L/C Issuer’s gross
negligence or willful misconduct when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof.


 


(f)  Role of L/C Issuers.
Each Lender and the Borrower agree that, in paying any drawing under a Letter
of Credit, the relevant L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuers, any Agent-Related Person
nor any of the respective correspondents, participants or assignees of any L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted
in connection herewith at the request or with the approval of the Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not,
preclude the Borrower’s 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 Issuers, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (vi)
of Section 2.03(e); provided that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against an L/C Issuer, and such L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by such L/C Issuer’s willful misconduct or gross negligence
or such L/C Issuer’s willful or grossly negligent 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, each
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 no L/C Issuer shall be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


(g)  Cash Collateral.
(i) If an 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 and the
conditions set forth in Section 4.02 to a Revolving Credit Borrowing
cannot then be met, (ii) if, as of the Letter of Credit Expiration Date,
any Letter of Credit may for any reason remain outstanding and partially or
wholly undrawn, (iii) if any Event of Default occurs and is continuing and the
Administrative Agent or the Required Lenders, as applicable, require the
Borrower to Cash Collateralize the L/C Obligations pursuant to Section 8.02(c)
or (iv) an Event of Default set forth under Section 8.01(f) occurs and is
continuing, then the Borrower shall Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to such Outstanding Amount
determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be), and shall do so not later than 2:00 P.M.
on (x) in the case of the immediately preceding clauses (i) through (iii), (1)
the Business Day that the Borrower receives notice thereof, if such notice is
received on such day prior to 12:00 Noon or (2) if clause (1) above does not
apply, the Business Day immediately following the day that the Borrower
receives such notice and (y) in the case of the immediately preceding clause
(iv), the Business Day on which an Event of Default set forth under Section 8.01(f)
occurs or, if such day is not a Business Day, the Business Day immediately
succeeding such day. For purposes hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the relevant L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances (“Cash Collateral”)
pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the relevant L/C Issuer 


 


52

















 


(which documents are hereby consented to by the Lenders). Derivatives
of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuers and the 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 accounts at DBTCA and may be invested in readily available Cash
Equivalents. If at any time the Administrative Agent determines that any funds
held as Cash Collateral are subject to any right or claim of any Person other
than the Administrative Agent (on behalf of the Secured Parties) or that the
total amount of such funds is less than the aggregate Outstanding Amount of all
L/C Obligations, the Borrower will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited and
held in the deposit accounts at DBTCA as aforesaid, an amount equal to the
excess of (a) such aggregate Outstanding Amount over (b) the total amount of
funds, if any, then held as Cash Collateral that the Administrative Agent
reasonably determines to be free and clear of any such right and claim. Upon
the drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under
applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount
of any Cash Collateral exceeds the then Outstanding Amount of such L/C
Obligations and so long as no Event of Default has occurred and is continuing,
the excess shall be refunded to the Borrower.


 


(h)  Letter of Credit Fees.
The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Pro Rata Share a Letter of
Credit fee for each Letter of Credit issued pursuant to this Agreement equal to
the Applicable Rate times the daily maximum amount then available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit if such maximum amount increases
periodically pursuant to the terms of such Letter of Credit). Such letter of
credit fees shall be computed on a quarterly basis in arrears. Such letter of
credit fees shall be due and payable in Dollars 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 maximum amount of 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.


 


(i)  Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuers. The
Borrower shall pay directly to each L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit issued by it equal to 0.25% per annum
(but in no event less than $500) of the daily maximum amount then available to
be drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit if such maximum amount increases
periodically pursuant to the terms of such Letter of Credit). Such fronting
fees shall be computed on a quarterly basis in arrears. Such fronting fees
shall be 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. In addition, the Borrower shall pay directly to
each L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
such 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 within ten
(10) Business Days of demand and are nonrefundable.


 


(j)  Conflict with Letter of
Credit Application. Notwithstanding anything else to the contrary in
this Agreement, in the event of any conflict between the terms hereof and the
terms of any Letter of Credit Application, the terms hereof shall control.


 


(k)  Addition of an L/C Issuer.
A Revolving Credit Lender may become an additional L/C Issuer hereunder
pursuant to a written agreement among the Borrower, the Administrative Agent
and 


 


53

















 


such Revolving Credit Lender. The Administrative Agent shall notify the
Revolving Credit Lenders of any such additional L/C Issuer.


 


SECTION 2.04. Swing Line Loans. (a)  The Swing Line.
Subject to the terms and conditions set forth herein, the Swing Line Lender
agrees to make loans (each such loan, a “Swing Line Loan”)
to the Borrower from time to time on any Business Day (other than the Closing
Date) until the Maturity Date in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving
Credit Commitment; provided that,
after giving effect to any Swing Line Loan, the aggregate Outstanding Amount of
the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Credit Commitment then in effect; provided
further that, the Borrower 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 Borrower 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 Credit 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 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 Borrower’s irrevocable notice
to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which 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 Borrower. 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 Revolving Credit 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
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.


 


(c)  Refinancing of Swing Line
Loans. (i)  The Swing Line
Lender at any time in its sole and absolute discretion may request, on behalf
of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to
so request on its behalf), that each Revolving Credit Lender make a Base Rate
Loan in an amount equal to such 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 Credit Commitments and the conditions set forth in Section 4.02.
The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Committed 


 


54

















 


Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Credit 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 Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


(ii)  If for any reason any Swing Line Loan cannot
be refinanced by such a Revolving Credit Borrowing in accordance with
Section 2.04(c)(i), the request for Base Rate 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 Credit Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Credit 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 Credit 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 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 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 Federal Funds Rate from time
to time in effect. A certificate of the Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.


 


(iv)  Each Revolving Credit Lender’s obligation to
make Revolving Credit 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 Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided that each Revolving Credit
Lender’s obligation to make Revolving Credit 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 Borrower to repay Swing Line Loans,
together with interest as provided herein.


 


(d)  Repayment of
Participations.


 


(i)  At any time after any Revolving Credit 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 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 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 10.06 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Revolving Credit Lender
shall pay to the Swing 


 


55

















 


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.


 


(e)  Interest for Account of
Swing Line Lender. The Swing Line Lender shall be responsible for
invoicing the Borrower for interest on the Swing Line Loans. Until each
Revolving Credit Lender funds its Base Rate 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 Borrower shall make all payments of principal and
interest in respect of the Swing Line Loans directly to the Swing Line Lender.


 


SECTION 2.05. Prepayments.


 


(a)   Optional (i)
The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Term Loans and Revolving Credit Loans in whole
or in part without premium or penalty; provided that
(1) such notice must be received by the Administrative Agent not later than
12:30 p.m. (A) three (3) Business Days prior to any date of prepayment of
Eurodollar Loans and (B) on the date of prepayment of Base Rate Loans; (2) any
prepayment of Eurodollar Loans shall be in a principal amount of $5,000,000 or
a whole multiple of $1,000,000 in excess thereof; and (3) any prepayment of
Base Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 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 and the Class(es) and Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Appropriate 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 Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a
Eurodollar Loan shall be accompanied by all accrued interest thereon, together
with any additional amounts required pursuant to Section 3.05. Each
prepayment of the Loans pursuant to this Section 2.05(a) shall be paid to
the Appropriate Lenders in accordance with their respective Pro Rata Shares. Each
prepayment of Term Loans pursuant to this Section 2.05(a) shall be applied in
such order as directed by the Borrower.


 


(ii)  The Borrower 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
(1) 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 (2) any such prepayment shall be in a minimum principal amount of $100,000
or a whole multiple of $100,000 in excess thereof or, if less, the entire
principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.


 


(iii)  Notwithstanding anything to the contrary
contained in this Agreement, the Borrower may rescind any notice of prepayment
under Section 2.05(a)(i)or 2.05(a)(ii) if such prepayment would have
resulted from a refinancing of all of the Facilities, which refinancing shall
not be consummated or shall otherwise be delayed.


 


56

















 


(b)  Mandatory. (i)
No later than the earlier of (x) 90 days after the end of each fiscal year of
the Borrower, commencing with the fiscal year ending on December 31, 2007, and
(y) the date on which the financial statements with respect to such period have
been delivered pursuant to Section 6.01(a) and the related Compliance Certificate
have been delivered pursuant to Section 6.02(b), the Borrower shall cause
outstanding Incremental Term Loans to be prepaid in an amount equal to (A) 50%
of Excess Cash Flow, if any, for the fiscal year then ended minus (B)
the sum of (i) all voluntary prepayments of Term Loans during such fiscal year
and (ii) all voluntary prepayments of Revolving Credit Loans during such fiscal
year to the extent the Revolving Credit Commitments are permanently reduced by
the amount of such payments, in the case of each of the immediately preceding
clauses (i) and (ii), to the extent such prepayments are not funded with the
proceeds of Indebtedness; provided that
(1) the percentage set forth in clause (A) above shall be 25% if the Total
Leverage Ratio for the Test Period as of the last day of the fiscal year
covered by such financial statements was less than or equal to 6.00:1 and
greater than 5.00:1 and no Default or Event of Default has occurred and is
continuing on the date determined pursuant to clauses (x) and (y) above and (2)
no payment of any Loans shall be required under this Section 2.05(b)(i) if the
Total Leverage Ratio for the Test Period as of the last day of the fiscal year
covered by such financial statements was less than 5.00:1 and no Default or Event
of Default has occurred and is continuing on the date determined pursuant to
clauses (x) and (y) above.


 


(ii)  (A) If (x), the Borrower or any Restricted
Subsidiary Disposes of any property or assets (other than any Disposition of
any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the
extent constituting a Disposition by any Restricted Subsidiary to a Loan
Party), (e), (h), (k) or (y) any Casualty Event occurs, which in the aggregate
results in the realization or receipt by the Borrower or such Restricted
Subsidiary of Net Cash Proceeds, the Borrower shall cause the Term Loans to be
prepaid, on or prior to the date which is ten (10) Business Days after the date
of the realization or receipt of such Net Cash Proceeds in an amount equal to
100% of all Net Cash Proceeds received; provided that
no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A)
with respect to such portion of such Net Cash Proceeds that the Borrower shall
have, on or prior to such date, given written notice to the Administrative
Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B)
(which notice may only be provided if no Event of Default has occurred and is
then continuing);


 


(B)
With respect to any Net Cash Proceeds realized or received with respect to any
Disposition (other than any Disposition specifically excluded from the
application of Section 2.05(b)(ii)(A)) or any Casualty Event, the Borrower may
reinvest all or any portion of such Net Cash Proceeds in assets useful for its
business within (x) fifteen (15) months following receipt of such Net Cash
Proceeds or (y) if the Borrower enters into a legally binding commitment to
reinvest such Net Cash Proceeds within fifteen (15) months following receipt
thereof, within one hundred and eighty (180) days of the date of such legally
binding commitment; provided that
(i) so long as an Event of Default shall have occurred and be continuing, the
Borrower (x) shall not be permitted to make any such reinvestments (other than
pursuant to a legally binding commitment that the Borrower entered into at a
time when no Event of Default is continuing) and (y) shall not be required to
apply such Net Cash Proceeds which have been previously applied to prepay
Revolving Credit Loans to the prepayment of Term Loans until such time as the
relevant investment period has expired and no Event of Default is continuing
and (ii) if any Net Cash Proceeds are no longer intended to be or cannot be so
reinvested at any time after deliver of a notice of reinvestment election or if
any Net Cash Proceeds are not reinvested by the expiration of the relevant time
periods set forth above, an amount equal to any such Net Cash Proceeds shall be
applied to the prepayment of the Term Loans as set forth in this Section 2.05
within five (5) Business Days after the Borrower reasonably determines that
such Net Cash Proceeds are no longer intended to be or cannot be so reinvested
or the expiration of such time periods.


 


57

















 


(iii)
 If the Borrower or any Restricted
Subsidiary incurs or issues any Indebtedness not expressly permitted to be
incurred or issued pursuant to Section 7.03, the Borrower shall cause Loans
(first, the Term Loans and, to the extent of any excess Net Cash Proceeds, the
Revolving Credit Loans) to be prepaid in an amount equal to 100% of all Net
Cash Proceeds received therefrom on or prior to the date which is five (5)
Business Days after the receipt of such Net Cash Proceeds.


 


(iv)  If for any reason the aggregate Revolving
Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments
then in effect, the Borrower shall promptly prepay or cause to be promptly
prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(d) unless after
the prepayment in full of the Revolving Credit Loans and Swing Line Loans such
aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments
then in effect.


 


(v)  Each prepayment of Term Loans pursuant to
this Section 2.05(b) shall be applied in direct order of maturity to repayments
thereof and each such prepayment shall be paid to the Lenders in accordance
with their respective Pro Rata Shares, subject to clause (vi) of this Section
2.05(b).


 


(vi)  The Borrower shall notify the Administrative
Agent in writing of any mandatory prepayment of Term Loans required to be made
pursuant to clauses (i) through (iii) and (v) of this Section 2.05(b) at least
three (3) Business Days prior to the date of such prepayment. Each such notice
shall specify the date of such prepayment and provide a reasonably detailed calculation
of the amount of such prepayment. The Administrative Agent will promptly notify
each Appropriate Lender of the contents of the Borrower’s prepayment notice and
of such Appropriate Lender’s Pro Rata Share of the prepayment.


 


(c)  Funding Losses, Etc. All
prepayments under this Section 2.05 shall be made together with, in the
case of any such prepayment of a Eurodollar Loan on a date other than the last
day of an Interest Period therefor, any amounts owing in respect of such
Eurodollar Loan pursuant to Section 3.05. Notwithstanding any of the other
provisions of this Section 2.05, so long as no Event of Default shall have
occurred and be continuing, if any prepayment of Eurodollar Loans is required
to be made under this Section 2.05, other than on the last day of the
Interest Period therefor, the Borrower may, in its sole discretion, deposit the
amount of any such prepayment otherwise required to be made thereunder into a
Cash Collateral Account until the last day of such Interest Period, at which time
the Administrative Agent shall be authorized (without any further action by or
notice to or from the Borrower or any other Loan Party) to apply such amount to
the prepayment of such Loans in accordance with this Section 2.05. Upon
the occurrence and during the continuance of any Event of Default, the
Administrative Agent shall also be authorized (without any further action by or
notice to or from the Borrower or any other Loan Party) to apply such amount to
the prepayment of the outstanding Loans in accordance with this
Section 2.05.


 


SECTION 2.06. Termination or Reduction of
Commitments. (a)  Optional. The Borrower may, upon written notice to the
Administrative Agent, terminate the unused Commitments of any Class, or from
time to time permanently reduce the unused Commitments of any Class; provided that (i) any such notice shall be received by the
Administrative Agent three (3) Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii)
if, after giving effect to any reduction of the Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving
Credit Facility, such sublimit shall be automatically reduced by the amount of
such excess.


 


58

















 


The amount of any Revolving Credit Commitment reduction shall not be
applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless
otherwise specified by the Borrower. Notwithstanding the foregoing, the
Borrower may rescind or postpone any notice of termination of the Commitments
if such termination would have resulted from a refinancing of the Facility,
which refinancing shall not be consummated or otherwise shall be delayed.


 


(b)  Application of Commitment
Reductions; Payment of Fees.
The Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit, or the Swing
Line Sublimit or the Class of unused Commitments under this Section 2.06. Upon
any reduction of Class of unused Commitments, the Commitment of each Lender of
such Class shall be reduced by such Lender’s Pro Rata Share of the amount by
which such Commitments are reduced (other than the termination of the
Commitment of any Lender as provided in Section 3.07). All commitment fees
accrued until the effective date of any termination of the Revolving Credit
Commitments shall be paid on the effective date of such termination.


 


SECTION 2.07. Repayment of Loans. (a) 
Term Loans. The Borrower shall repay to
the Administrative Agent for the ratable account of the Term Loan Lenders (i)
on the last Business Day of each March, June, September and December, commencing
on March 31, 2008, an amount equal to 0.25% of the aggregate amount of all Term
Loans outstanding on the Closing Date (which payments shall be reduced as a
result of the application of prepayments in accordance with Section 2.05(b)(v))
and (ii) on the Maturity Date, the aggregate principal amount of all Term Loans
outstanding on such date. Notwithstanding anything to the contrary contained in
this Agreement, the foregoing amortization payments shall be for the benefit of
the Term Loans made on the Closing Date only, and any scheduled amortization
payments with respect to any Incremental Term Loans shall be independently
agreed between the Borrower and the providers of such Incremental Term Loans.


 


(b)  Revolving Credit Loans.
The Borrower shall repay to the Administrative Agent for the ratable account of
the Appropriate Lenders on the Maturity Date the aggregate principal amount of
all of its Revolving Credit Loans outstanding on such date.


 


(c)  Swing Line Loans.
The Borrower shall repay each Swing Line Loan on the earlier to occur of (i)
the date ten (10) Business Days after such Loan is made and (ii) the
Maturity Date.


 


SECTION 2.08. Interest. (a) 
Subject to the provisions of Section 2.08(b), (i) each Eurodollar
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Adjusted LIBO Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate 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 for Revolving Credit Loans,
less the Commitment Fee Rate.


 


(b)  The Borrower shall pay interest on past due
amounts hereunder at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws. 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.


 


59

















 


(d)  Until the day that is three (3) Business Days
after the Closing Date, each Loan shall be a Base Rate Loan.


 


SECTION 2.09. Fees. In addition to
certain fees described in Sections 2.03(h) and (i):


 


(a)  Commitment Fee.
The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee
equal to the Applicable Rate with respect to commitment fees times the actual
daily amount by which the aggregate Revolving Credit Commitment exceeds the sum
of (A) Outstanding Amount of Revolving Credit Loans and (B) the
Outstanding Amount of L/C Obligations; provided that
any commitment fee accrued with respect to any of the Revolving Credit
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender except to the
extent that such commitment fee shall otherwise have been due and payable by
the Borrower prior to such time; provided, further, that no commitment fee shall accrue on any of the
Revolving Credit Commitments of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender. The commitment fee shall accrue at all times from the
date hereof until the Maturity Date, including at any time during which one or
more of the conditions in Article 4 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
Closing 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. The
Borrower shall pay to the Agents the fees set forth in the Fee Letter and such
other 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 (except as expressly agreed
between the Borrower and the applicable Agent).


 


SECTION 2.10. Computation of Interest and
Fees. All computations of interest for Base Rate Loans when the Base Rate
is determined by the Prime Rate shall be made on the basis of a year of three
hundred and sixty-five (365) days and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a three hundred
and sixty (360) day year and actual days elapsed. 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
(1) 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.


 


SECTION 2.11. Evidence of Indebtedness.
(a)  The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and evidenced by one or more entries in the Register maintained by the
Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c),
as agent for the Borrower, in each case in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender
shall be prima facie evidence absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower 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 Borrower 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 Borrower shall 


 


60

















 


execute and deliver to such Lender (through the Administrative Agent) a
Note payable to such Lender, 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 Section 2.11(a), each Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records and,
in the case of the Administrative Agent, entries in the Register, evidencing
the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and
records maintained by the Administrative Agent and the accounts and records of
any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.


 


(c)  Entries made in good faith by the
Administrative Agent in the Register pursuant to Sections 2.11(a) and (b), and
by each Lender in its account or accounts pursuant to Sections 2.11(a) and (b),
shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error; provided that
the failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement and the other Loan Documents.


 


SECTION 2.12. Payments Generally. (a)  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. All payments by the Borrower hereunder shall be made to
the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable 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 in each case be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue.


 


(b)  If any payment to be made by the Borrower
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; provided
that, if such extension would cause payment of interest on or principal of
Eurodollar Loans to be made in the next succeeding calendar month, such payment
shall be made on the immediately preceding Business Day.


 


(c)  Unless the Borrower or any Lender has
notified the Administrative Agent, prior to the date any payment is required to
be made by it to the Administrative Agent hereunder, that the Borrower or such
Lender, as the case may be, will not make such payment, the Administrative
Agent may assume that the Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto. If
and to the extent that such payment was not in fact made to the Administrative
Agent in immediately available funds, then:


 


(i)  if the Borrower failed to make such payment,
each Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the Administrative
Agent to 


 


61

















 


such Lender to the date such
amount is repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and


 


(ii)  if any Lender failed to make such payment,
such Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the Administrative
Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the Federal Funds Rate from
time to time in effect. When such Lender makes payment to the Administrative
Agent (together with all accrued interest thereon), then such payment amount
(excluding the amount of any interest which may have accrued and been paid in
respect of such late payment) shall constitute such Lender’s Loan included in
the applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent may
make a demand therefor upon the Borrower, and the Borrower shall pay such
amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender hereunder.


 


A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this Section 2.12(c) shall be conclusive, absent manifest
error.


 


(d)  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 2, and such funds are not made
available to the Borrower by the Administrative Agent because the conditions to
the applicable Credit Extension set forth in Article 4 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.


 


(e)  The obligations of the Lenders hereunder to
make Loans and to fund participations in Letters of Credit and Swing Line Loans
are several and not joint. The failure of any Lender to make any Loan or to
fund any such participation 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
Loan or purchase its participation.


 


(f)  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.


 


(g)  Whenever any payment received by the
Administrative Agent under this Agreement or any of the other Loan Documents is
insufficient to pay in full all amounts due and payable to the Administrative
Agent and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of
priority set forth in Section 8.04. If the Administrative Agent receives
funds for application to the Obligations of the Loan Parties under or in
respect of the Loan Documents under circumstances for which the Loan Documents
do not specify the manner in which such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to
each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum
of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the
Outstanding 


 


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Amount of all L/C Obligations outstanding at such time, in repayment or
prepayment of such of the outstanding Loans or other Obligations then owing to
such Lender.


 


SECTION 2.13. Sharing of Payments. If,
other than as expressly provided elsewhere herein, any Lender shall obtain on
account of the Loans made by it, or the participations in L/C Obligations and
Swing Line Loans held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) in excess of its
ratable share (or other share contemplated hereunder) thereof, such Lender
shall immediately (a) notify the Administrative Agent of such fact, and
(b) purchase from the other Lenders such participations in the Loans made
by them and/or such subparticipations in the participations in L/C Obligations
or Swing Line Loans held by them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such Loans
or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment
is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender’s ratable share (according to the proportion of
(i) the amount of such paying Lender’s required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered, without further interest thereon. The Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by applicable Law, exercise all its rights of payment
(including the right of setoff, but subject to Section 10.09) with respect
to such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section 2.13 and will in
each case notify the Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section 2.13 shall
from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.


 


SECTION 2.14. Incremental Credit
Extensions. (a)  The Borrower may, at
any time or from time to time on or after the date that is 180 days after the
Closing Date, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders),
request (a) one or more new tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases
in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”); provided
that (i) both at the time of any such request and upon the effectiveness
of any Incremental Amendment referred to below, no Default or Event of Default
shall exist and at the time that any such Incremental Term Loan is made (and
after giving effect thereto) no Default or Event of Default shall exist and
(ii) the Borrower shall (unless, with respect to a Revolving Commitment
Increase, no Revolving Credit Borrowing will be made on the effective date
thereof) be in compliance with each of the covenants set forth in
Section 7.11 determined on a Pro Forma Basis as of the date of such
Incremental Term Loan or Revolving Commitment Increase and the last day of the
most recent Test Period, in each case, as if such Incremental Term Loans or
Revolving Commitment Increases, as applicable, had been outstanding on the last
day of such fiscal quarter of the Borrower for testing compliance therewith. Each
tranche of Incremental Term Loans and each Revolving Commitment Increase shall
be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if
such amount represents all remaining availability under the limit set forth in
the next sentence). Notwithstanding anything to the contrary herein, the
aggregate amount of the Incremental Term Loans and the Revolving Commitment
Increases shall not exceed $100,000,000. The Incremental Term Loans
(a) shall rank pari  passu in right of payment and of security with the 


 


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Revolving Credit Loans and the Term Loans, (b) shall not mature
earlier than the Maturity Date, (c) shall have a Weighted Average Life to
Maturity equal to or in excess of the then longest maturing tranche of Term
Loans and (d) except as set forth above, shall be treated substantially the
same as the Term Loans (in each case, including with respect to mandatory and
voluntary prepayments but not with respect to scheduled amortization payments
(which shall be independently agreed between the Borrower and the providers of
such Incremental Term Loans)); provided that
(i) the terms and conditions applicable to Incremental Term Loans may be
materially different from those of the Term Loans to the extent such
differences are reasonably acceptable to the Joint Lead Arrangers and
(ii) the interest rates and amortization schedule applicable to the
Incremental Term Loans shall be determined by the Borrower and the lenders
thereof. Each notice from the Borrower pursuant to this Section shall set forth
the requested amount and proposed terms of the relevant Incremental Term Loans
or Revolving Commitment Increases. Incremental Term Loans may be made, and
Revolving Commitment Increases may be provided, by any existing Lender or by
any other bank or other financial institution (any such other bank or other
financial institution being called an “Additional Lender”);
provided that the Administrative Agent
shall have consented (not to be unreasonably withheld) to such Lender’s or
Additional Lender’s making such Incremental Term Loans or providing such
Revolving Commitment Increases if such consent would be required under
Section 10.07(b) for an assignment of Loans or Revolving Credit
Commitments, as applicable, to such Lender or Additional Lender. Commitments in
respect of Incremental Term Loans and Revolving Commitment Increases shall
become Commitments (or in the case of a Revolving Commitment Increase to be
provided by an existing Revolving Credit Lender, an increase in such Lender’s
applicable Revolving Credit Commitment) under this Agreement pursuant to an
amendment (an “Incremental Amendment”) to this
Agreement and, as appropriate, the other Loan Documents, executed by the
Borrower, each Lender agreeing to provide such Commitment, if any, each
Additional Lender, if any, and the Administrative Agent. The Incremental
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent to effect
the provisions of this Section. The effectiveness of any Incremental Amendment
shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the
conditions set forth in Section 4.02 (it being understood that all
references to “the date of such Credit Extension” or similar language in such
Section 4.02 shall be deemed to refer to the effective date of such
Incremental Amendment) and such other conditions as the parties thereto shall
agree. The Borrower will use the proceeds of the Incremental Term Loans and
Revolving Commitment Increases for any purpose not prohibited by this Agreement.
No Lender shall be obligated to provide any Incremental Term Loans or Revolving
Commitment Increases, unless it so agrees. Upon each increase in the Revolving
Credit Commitments pursuant to this Section, each Revolving Credit Lender
immediately prior to such increase will automatically and without further act
be deemed to have assigned to each Lender providing a portion of the Revolving
Commitment Increase (each a “Revolving Commitment
Increase Lender”) in respect of such increase, and each such
Revolving Commitment Increase Lender will automatically and without further act
be deemed to have assumed, a portion of such Revolving Credit Lender’s
participations hereunder in outstanding Letters of Credit and Swing Line Loans
such that, after giving effect to each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding
(i) participations hereunder in Letters of Credit and
(ii) participations hereunder in Swing Line Loans held by each Revolving
Credit Lender (including each such Revolving Commitment Increase Lender) will
equal the percentage of the aggregate Revolving Credit Commitments of all
Revolving Credit Lenders represented by such Revolving Credit Lender’s
Revolving Credit Commitment and (b) if, on the date of such increase, there are
any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or
prior to the effectiveness of such Revolving Commitment Increase be prepaid
from the proceeds of additional Revolving Credit Loans made hereunder
(reflecting such increase in Revolving Credit Commitments), which prepayment
shall be accompanied by accrued interest on the Revolving Credit Loans being
prepaid and any costs incurred by any Lender in accordance with
Section 3.05. The Administrative Agent and the Lenders hereby agree that
the minimum borrowing, pro rata borrowing and pro rata payment 


 


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requirements contained elsewhere in this Agreement shall not apply to
the transactions effected pursuant to the immediately preceding sentence.


 


(b)  This Section 2.14 shall supersede any
provisions in Section 2.13 or 10.01 to the contrary.


 


ARTICLE III


 


Taxes, Increased Costs Protection and
Illegality


 


SECTION 3.01. Taxes. (a)  Except as provided in this Section 3.01,
any and all payments by the Borrower (the term Borrower under Article 3 being
deemed to include any Subsidiary for whose account a Letter of Credit is
issued) to or for the account of any Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities (including additions
to tax, penalties and interest) with respect thereto, excluding, in the case of
each Agent and each Lender, taxes imposed on or measured by its net income or
overall gross income (including branch profits), and franchise (and similar)
taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any
political subdivision thereof) under the Laws of which such Agent or such
Lender, as the case may be, is organized or maintains a Lending Office, and all
liabilities (including additions to tax, penalties and interest) with respect
thereto (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as “Taxes”). If the
Borrower shall be required by any Laws to deduct any Taxes or Other Taxes from
or in respect of any sum payable under any Loan Document to any Agent or any
Lender, (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 3.01), each of such Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Laws, and
(iv) within thirty (30) days after the date of such payment (or, if
receipts or evidence are not available within thirty (30) days, as soon as
possible thereafter), the Borrower shall furnish to such Agent or Lender (as
the case may be) the original or a certified copy of a receipt evidencing
payment thereof to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. If the Borrower fails to pay any Taxes or Other Taxes
when due to the appropriate taxing authority or fails to remit to any Agent or
any Lender the required receipts or other required documentary evidence, the
Borrower shall indemnify such Agent and such Lender for any incremental taxes,
interest or penalties that may become payable by such Agent or such Lender
arising out of such failure.


 


(b)  In addition, the Borrower agrees to pay any
and all present or future stamp, court or documentary taxes and any other
excise, property, intangible or mortgage recording taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)  The Borrower agrees to indemnify each Agent
and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.01) paid by such Agent and such
Lender and (ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided
such Agent or Lender, as the case may be, 


 


65

















 


provides the Borrower with a written statement thereof setting forth in
reasonable detail the basis and calculation of such amounts. Payment under this
Section 3.01(c) shall be made within thirty (30) days after the date such
Lender or such Agent makes a demand therefor.


 


(d)  The Borrower shall not be required pursuant
to this Section 3.01 to pay any additional amount to, or to indemnify, any
Lender or Agent, as the case may be, to the extent that such Lender or such
Agent becomes subject to Taxes subsequent to the Closing Date (or, if later,
the date such Lender or Agent becomes a party to this Agreement) as a result of
a change in the place of organization of such Lender or Agent or a change in
the lending office of such Lender, except to the extent that any such change is
requested or required in writing by the Borrower (and provided
that nothing in this clause (d) shall be construed as relieving the Borrower
from any obligation to make such payments or indemnification in the event of a
change in lending office or place of organization that precedes a change in Law
to the extent such Taxes result from a change in Law).


 


(e)  Notwithstanding anything else herein to the
contrary, if a Lender or an Agent is subject to withholding tax imposed by any
jurisdiction in which the Borrower is formed or organized at a rate in excess
of zero percent at the time such Lender or such Agent, as the case may be,
first becomes a party to this Agreement, withholding tax imposed by such
jurisdiction at such rate shall be considered excluded from Taxes unless and
until such Lender or Agent, as the case may be, provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided that, if at the date of the Assignment
and Acceptance pursuant to which a Lender becomes a party to this Agreement,
the Lender assignor was entitled to payments under clause (a) of this
Section 3.01 in respect of withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition
to withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) withholding tax, if any, applicable with respect
to the Lender assignee on such date.


 


(f)  If any Lender or Agent determines, in its
reasonable discretion, that it has received a refund in respect of any Taxes or
Other Taxes as to which indemnification or additional amounts have been paid to
it by the Borrower pursuant to this Section 3.01, it shall promptly remit
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 3.01 with respect to the
Taxes or Other Taxes giving rise to such refund plus any interest included in
such refund by the relevant taxing authority attributable thereto) to the
Borrower, net of all out-of-pocket expenses of the Lender or Agent, as the case
may be and without interest (other than any interest paid by the relevant
taxing authority with respect to such refund); provided
that the Borrower, upon the request of the Lender or Agent, as the case may be,
agrees promptly to return such refund to such party in the event such party is
required to repay such refund to the relevant taxing authority. Such Lender or
Agent, as the case may be, shall, at the Borrower’s request, provide the
Borrower with a copy of any notice of assessment or other evidence of the
requirement to repay such refund received from the relevant taxing authority (provided that such Lender or Agent may delete any
information therein that such Lender or Agent deems confidential). Nothing
herein contained shall interfere with the right of a Lender or Agent to arrange
its tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent
to claim any tax refund or to make available its tax returns or disclose any
information relating to its tax affairs or any computations in respect thereof
or require any Lender or Agent to do anything that would prejudice its ability
to benefit from any other refunds, credits, reliefs, remissions or repayments
to which it may be entitled.


 


(g)  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 3.01(a) or (c) with
respect to such Lender it will, if requested by the Borrower, use commercially
reasonable efforts (subject to such Lender’s overall internal policies of
general application and legal and regulatory restrictions) to designate another
Lending Office for any Loan or Letter of Credit 


 


66

















 


affected by such event; provided that
such efforts are made on terms that, in the sole judgment of such Lender, cause
such Lender and its Lending Office(s) to suffer no economic, legal or
regulatory disadvantage; provided, further, that nothing in this Section 3.01(g) shall
affect or postpone any of the Obligations of the Borrower or the rights of such
Lender pursuant to Section 3.01(a) or (c).


 


SECTION 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 Lending Office to make, maintain
or fund Eurodollar Loans, or to determine or charge interest rates based upon
the Adjusted LIBO Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar 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 Loans to such day, or promptly, if such Lender may
not lawfully continue to maintain such Eurodollar Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted and all amounts due, if any, in connection with
such prepayment or conversion under Section 3.05. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.


 


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


 


SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurodollar Loans. (a)  If
any Lender determines that as a result of the introduction of or any change in
or in the interpretation of any Law, in each case after the date hereof, or
such Lender’s compliance therewith, there shall be any increase in the cost to
such Lender of agreeing to make or making, funding or maintaining Eurodollar
Loans or (as the case may be) issuing or participating in Letters of Credit, or
a reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this Section 3.04(a)
any such increased costs or reduction in amount resulting from (i) Taxes
or Other Taxes (as to which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income
(including branch profits), and franchise (and similar) taxes imposed in lieu
of net income taxes, by the United States or any political subdivision thereof
under the Laws of which such Lender is organized or maintains a Lending Office
and (iii) reserve requirements contemplated by Section 3.04(c), then
from time to time within fifteen (15) days after demand by such Lender setting
forth in reasonable detail such increased costs (with a copy of such demand to
the Administrative Agent given in accordance with Section 3.06), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.


 


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(b)  If any Lender determines that the
introduction of any Law regarding capital adequacy or any change therein or in
the interpretation thereof, in each case after the date hereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing
the rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital), then from time to time upon demand of such
Lender setting forth in reasonable detail the charge and the calculation of
such reduced rate of return (with a copy of such demand to the Administrative
Agent given in accordance with Section 3.06), the Borrower shall pay to
such Lender such additional amounts as will compensate such Lender for such
reduction within fifteen (15) days after receipt of such demand.


 


(c)  The Borrower shall pay to each Lender,
(i) 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, additional interest on the unpaid principal amount of each
Eurodollar 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 in the absence of manifest error), and (ii) as long as
such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory
authority imposed in respect of the maintenance of the Commitments or the
funding of the Eurodollar Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive absent manifest error) which in each case shall be due and
payable on each date on which interest is payable on such Loan; provided the Borrower shall have received at least fifteen
(15) days’ prior notice (with a copy to the Administrative Agent) of such
additional interest or cost from such Lender. If a Lender fails to give notice
fifteen (15) days prior to the relevant Interest Payment Date, such additional
interest or cost shall be due and payable fifteen (15) days from receipt of
such notice.


 


(d)  Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 3.04 shall not constitute a
waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to
Section 3.04(a), (b) or (c) for any such increased cost or reduction
incurred more than one hundred and eighty (180) days prior to the date that
such Lender demands, or notifies the Borrower of its intention to demand,
compensation therefore; provided, further, that, if the circumstance giving rise to such
increased cost or reduction is retroactive, then such 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.


 


(e)  If any Lender requests compensation under
this Section 3.04, then such Lender will, if requested by the Borrower,
use commercially reasonable efforts to designate another Lending Office for any
Loan or Letter of Credit affected by such event; provided
that such efforts are made on terms that, in the reasonable judgment of such
Lender, cause such Lender and its Lending Office(s) to suffer no material
economic, legal or regulatory disadvantage; provided, further,  that nothing
in this Section 3.04(e) shall affect or postpone any of the Obligations of
the Borrower or the rights of such Lender pursuant to Section 3.04(a),
(b), (c) or (d).


 


SECTION 3.05. Funding Losses. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense (but not loss of profit margin) incurred by it as a result of:


 


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(a)  any continuation, conversion, payment or
prepayment of any Loan other than a Base 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); or


 


(b)  any failure by the Borrower (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 Borrower;


 


including any loss or expense
(but not loss of profit margin) 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.


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Loan made by it at
the Adjusted LIBO 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 Loan was in fact so funded.


 


SECTION 3.06. Matters Applicable to All Requests for Compensation.
 (a) 
Any Agent or any Lender claiming compensation under this Article 3 shall
deliver a certificate to the Borrower setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Agent or such Lender may use
any reasonable averaging and attribution methods.


 


(b)  With respect to any Lender’s claim for
compensation under Section 3.01, 3.02, 3.03 or 3.04, the Borrower shall
not be required to compensate such Lender for any amount incurred more than one
hundred eighty (180) days prior to the date that such Lender notifies the
Borrower of the event that gives rise to such claim; provided
that, if the circumstance giving rise to such claim is retroactive, then such
180-day period referred to above shall be extended to include the period of
retroactive effect thereof. If any Lender requests compensation by the Borrower
under Section  3.04, the Borrower may, by notice to such Lender (with a
copy to the Administrative Agent), suspend the obligation of such Lender to
make or continue from one Interest Period to another Eurodollar Loans, or to
convert Base Rate Loans into Eurodollar Loans, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.06(c) shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.


 


(c)  If the obligation of any Lender to make or
continue from one Interest Period to another any Eurodollar Loan, or to convert
Base Rate Loans into Eurodollar Loans shall be suspended pursuant to
Section 3.06(b) hereof, such Lender’s Eurodollar Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Loans (or, in the case of an
immediate conversion required by Section 3.02, on such earlier date as
required by Law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04
hereof that gave rise to such conversion no longer exist:


 


(i)  to the extent that such Lender’s Eurodollar
Loans have been so converted, all payments and prepayments of principal that
would otherwise be applied to such Lender’s Eurodollar Loans shall be applied
instead to its Base Rate Loans; and


 


(ii)  all Loans that would otherwise be made or
continued from one Interest Period to another by such Lender as Eurodollar
Loans shall be made or continued instead as Base Rate Loans, and all Base Rate 


 


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Loans of such Lender that
would otherwise be converted into Eurodollar Loans shall remain as Base Rate
Loans.


 


(d)  If any Lender gives notice to the Borrower
(with a copy to the Agent) that the circumstances specified in Section 3.01,
3.02, 3.03 or 3.04 hereof that gave rise to the conversion of such Lender’s
Eurodollar Loans pursuant to this Section 3.06 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when Eurodollar Loans made by other Lenders are outstanding, such Lender’s
Base Rate Loans shall be automatically converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Eurodollar Loans and by such Lender are held pro rata (as
to principal amounts, interest rate basis, and Interest Periods) in accordance
with their respective Commitments.


 


SECTION 3.07. Replacement of Lenders under
Certain Circumstances.  (a)  If at any time (i) the Borrower becomes
obligated to pay additional amounts or indemnity payments described in
Section 3.01 or 3.04 as a result of any condition described in such
Sections or any Lender ceases to make Eurodollar Loans as a result of any
condition described in Section 3.02 or Section 3.04, (ii) any Lender
becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting
Lender, then the Borrower may, on ten (10) Business Days’ prior written notice
to the Administrative Agent and such Lender, replace such Lender by causing
such Lender to (and such Lender shall be obligated to) assign pursuant to
Section 10.07(b) (with the assignment fee to be paid by the Borrower in
such instance) all of its rights and obligations under this Agreement to one or
more Eligible Assignees; provided that
neither the Administrative Agent nor any Lender shall have any obligation to
the Borrower to find a replacement Lender or other such Person; provided, further, that (A)
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 a reduction in such
compensation or payments and (B) in the case of any such assignment resulting
from a Lender becoming a Non-Consenting Lender, the applicable Eligible
Assignees shall have agreed to the applicable departure, waiver or amendment of
the Loan Documents.


 


(b)  Any Lender being replaced pursuant to
Section 3.07(a) above shall (i) execute and deliver an Assignment and
Assumption with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans, and (ii) deliver any
Notes evidencing such Loans to the Borrower or Administrative Agent. Pursuant
to such Assignment and Assumption, (A) the assignee Lender shall acquire
all or a portion, as the case may be, of the assigning Lender’s Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans,
(B) all obligations of the Borrower owing to the assigning Lender relating
to the Loans and participations so assigned shall be paid in full by the
assignee Lender to such assigning Lender concurrently with such assignment and
assumption and (C) upon such payment and, if so requested by the assignee
Lender, delivery to the assignee Lender of the appropriate Note or Notes
executed by the Borrower, the assignee Lender shall become a Lender hereunder
and the assigning Lender shall cease to constitute a Lender hereunder with
respect to such assigned Loans, Commitments and participations, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such assigning Lender.


 


(c)  Notwithstanding anything to the contrary contained
above, any Lender that acts as an L/C Issuer may not be replaced hereunder at
any time that it has any Letter of Credit outstanding hereunder unless
arrangements reasonably satisfactory to such L/C Issuer (including the
furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer reasonably satisfactory to such L/C Issuer or the
depositing of cash collateral into a cash collateral account in amounts and
pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been
made with respect to each such outstanding Letter of Credit and the Lender that
acts as the Administrative Agent may not be replaced hereunder except in
accordance with the terms of Section 9.09.


 


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(d)  In the event that (i) the Borrower or
the Administrative Agent has requested that the Lenders consent to a departure
or waiver of any provisions of the Loan Documents or agree to any amendment
thereto, (ii) the consent, waiver or amendment in question requires the
agreement of all affected Lenders in accordance with the terms of Section 10.01
or all the Lenders with respect to a certain Class of the Loans and
(iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting
Lender.”


 


SECTION 3.08. Survival.  All of the Borrower’s obligations under this
Article 3 shall survive termination of the Aggregate Commitments and
repayment of all other Obligations hereunder.


 


ARTICLE IV


 


Conditions Precedent to Credit Extensions


 


SECTION 4.01. Conditions of Initial Credit
Extension.  The obligation of each
Lender to make its initial Credit Extension hereunder 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, each in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:


 


(i)  executed counterparts of this Agreement and
the Guaranty;


 


(ii)  a Note executed by the Borrower in favor of
each Lender that has requested a Note at least two Business Days in advance of
the Closing Date;


 


(iii)  each Collateral Document set forth on
Schedule 1.01B, duly executed by each Loan Party thereto, together with:


 


(A)  certificates, if any, representing the
Pledged Equity referred to therein accompanied by undated stock powers executed
in blank and instruments evidencing the Pledged Debt indorsed in blank,


 


(B)  opinions of counsel for the Loan Parties in
states in which the Loan Parties are formed or the Mortgaged Properties are
located, with respect to perfection of the Liens granted pursuant to the
Collateral Documents (including the Mortgages) and any related filings,
recordations or notices (including fixture filings), in each case, in form and
substance reasonably satisfactory to the Administrative Agent; and


 


(C)  evidence that all other actions, recordings
and filings that the Administrative Agent may deem reasonably necessary to
satisfy the Collateral and Guarantee Requirement (including UCC Financing
Statements), and other filings, recordations or notices and with respect to the
Mortgaged Properties, title insurance, surveys and environmental assessments)
shall have been taken, completed or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent;


 


provided, however, that the
procurement of title insurance with respect to each Mortgage shall not be a
condition to the Closing Date; provided,
further, that with respect to any
Collateral the security interest in which may not be perfected by filing of a
UCC financing statement,


 


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recordation of a Mortgage or
delivery to Administrative Agent (or, if delivery to Administrative Agent
cannot be made on or prior to the Closing Date because gaming approval of the
relevant pledge has not yet been obtained, delivery into escrow) of a physical
stock certificate (or other Equity Interest certificate), if the perfection of
the Administrative Agent’s security interest in such Collateral may not be accomplished
prior to the Closing Date without undue delay, burden or expense, then delivery
of documents and instruments for perfection of such security interest shall not
constitute a condition precedent to the Closing Date hereunder; provided that the Borrower shall deliver
or cause to be delivered such documents and instruments, and take or cause to
be taken such other actions, as may be required to perfect such security
interests (and, if not procured on or prior to the Closing Date, to procure
lender title insurance policies in form and substance reasonably satisfactory
to the Administrative Agent), within 90 days after the Closing Date (or within
180 days after the Closing Date in respect of the delivery of stock
certificates (or other Equity Interest certificates) that requires gaming
approval);


 


(iv)  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 reasonably require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party or
is to be a party on the Closing Date;


 


(v)  a legal opinion from Milbank, Tweed, Hadley
& McCloy LLP, New York counsel to the Loan Parties substantially in the
form of Exhibit J;


 


(vi)  a certificate signed by a Responsible Officer
of the Company certifying that there has been no change, effect, event or
occurrence since December 31, 2006, that has had or could reasonably be
expected to result in a Material Adverse Change;


 


(vii)  a certificate attesting to the Solvency of
the Loan Parties (taken as a whole) after giving effect to the Transaction,
from the principal accounting officer of the Borrower;


 


(viii)  evidence that all insurance (including title
insurance) required to be maintained pursuant to the Loan Documents has been
obtained and is in effect and that the Administrative Agent has been named as
loss payee under each insurance policy with respect to such insurance as to
which the Administrative Agent shall have requested to be so named;


 


(ix)  certified copies of the Acquisition
Agreement, duly executed by the parties thereto, together with all Material
Contracts and all material agreements, instruments and other documents
delivered in connection therewith as the Administrative Agent shall reasonably
request, each including certification by a Responsible Officer of the Borrower
that such documents are in full force and effect as of the Closing Date; and


 


(x)  a Committed Loan Notice or Letter of Credit
Application, as applicable, relating to the initial Credit Extension.


 


(b)  All costs, fees and expenses required to be
paid hereunder and invoiced before the Closing Date shall have been paid in
full in cash.


 


(c)  Prior to or simultaneously with the initial
Credit Extension, the Holding Companies, collectively, shall have received
equity contributions in an aggregate amount equal to at least $3,750,735,410
and the Holding Companies shall have either (x) contributed as a common equity


 


72

















 


contribution all proceeds of such equity contribution to the Borrower
or (y) otherwise applied such proceeds, or caused such proceeds to be applied
to finance the Acquisition.


 


(d)  Prior to or simultaneously with the initial
Credit Extensions, the Borrower shall have terminated the Existing Credit
Agreement.


 


(e)  The CMBS Subsidiary shall have received gross
proceeds in an aggregate amount of no less than $2,475,000,000 from the CMBS
Facility (and, to the extent that the proceeds of the CMBS Facility do not
equal $2,475,000,000, from additional Equity Contributions) which CMBS Facility
shall be on terms and conditions satisfactory to the Joint Lead Arrangers.


 


(f)  After giving effect to the consummation of
the Acquisition, (a) Borrower and its Subsidiaries shall have no outstanding
preferred Equity Interests or Indebtedness, except for (i) (A) Indebtedness incurred
pursuant to the Existing Senior Subordinated Notes and the Existing Senior
Notes, in an aggregate principal amount of not more than $2,300,000,000, (B)
the Obligations, (C) Indebtedness incurred pursuant to the CMBS Facility, (D)
Indebtedness incurred pursuant to the Corporate Head Office Sale Leaseback
Transaction, (E) Indebtedness evidenced by an unsecured note in the principal
amount of $100,000,000 dated February 16, 2007 issued by GV Ranch Station
Capital Holdings, LLC to Green Valley Ranch Gaming LLC; (F) Indebtedness
evidenced by a series of unsecured notes in an aggregate principal amount of
$9,200,000 issued by a Subsidiary of the Borrower having a weighted average
interest rate of 7.1% and maturity dates ranging from 2009 to 2026 and (g) Indebtedness
in respect of Support Agreements relating to Aliante and (ii) preferred stock
held by the Borrower in its Subsidiaries and preferred stock held by one Loan
Party in another Loan Party, so long as, in each such case, such preferred
stock does not constitute Disqualified Equity Interests, is not otherwise
entitled to any mandatory dividends or redemptions, and contains terms that are
otherwise reasonably satisfactory to the Joint Lead Arrangers (provided that the Joint Lead Arrangers shall approve such
terms so long as they are not adverse to the interests of the Secured Parties),
(b) all stock of Borrower shall be owned, collectively, by the Holding
Companies free and clear of Liens (other than those securing the Obligations);
(c) the Casino Sale Leaseback Transaction shall have been implemented in a
manner consistent with the structure previously disclosed to the Joint Lead
Arrangers and pursuant to documentation reasonably satisfactory to the Joint
Lead Arrangers.


 


(g)  The Joint Lead Arrangers and the Lenders
shall have received (i) the Audited Financial Statements and the audit
report for such financial statements (which shall not be subject to any
qualification) and (ii) unaudited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of the Borrower and
its Subsidiaries for (A) each subsequent fiscal quarter ended at least
forty-five (45) days before the Closing Date and (B) to the extent
reasonably available and, in any event, excluding footnotes, each fiscal month
after the most recent fiscal period for which financial statements were
received by the Joint Lead Arrangers and the Lenders as described above and
ended at least thirty (30) days before the Closing Date (collectively, the
“Unaudited Financial Statements”),
which financial statements described in clauses (i) and (ii)(A) shall
be prepared in accordance with GAAP.


 


(h)  The Joint Lead Arrangers and the Lenders
shall have received the Pro Forma Financial Statements.


 


(i)  The Acquisition Agreement shall be in full
force and effect and any amendment, restatement, supplement or other
modification shall be reasonably satisfactory to the Administrative Agent.


 


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(j)  The Acquisition shall have been consummated,
or substantially simultaneously with the initial Borrowings under the Facility
shall be consummated, in accordance with the Acquisition Agreement, and all
conditions precedent to the consummation of the Acquisition, as set forth in
the documentation relating thereto, shall have been satisfied (and would have
been satisfied without taking into consideration the application of the last
paragraph of Section 6.1 of the Acquisition Agreement) or (subject to the
following clause) waived, and no item requiring consent of FCP (including
pursuant to Section 6.1 of the Acquisition Agreement) that is material to the
interests of the Secured Parties shall have been given and no condition
material to the interests of the Secured Parties shall have been waived except,
in each such case, with the consent of the Joint Lead Arrangers (such consent
not to be unreasonably withheld or delayed).


 


(k)  After giving effect to the consummation of
the Acquisition, the Principal Investors (as defined in the Commitment Letter),
collectively, shall beneficially own and control, with unrestricted voting
power, at least 70% of the voting equity of Borrower pursuant to arrangements
consistent with the arrangements previously disclosed to the Joint Lead
Arrangers.


 


(l)  All material Permits necessary in connection
with the consummation of the transactions contemplated by the Loan Documents
(including all necessary regulations and gaming approvals) and the continuing
operations of the Borrower, its Subsidiaries (including shareholder approvals,
if any) shall have been obtained on terms satisfactory to the Joint Lead
Arrangers and the Lenders and shall be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions upon the consummation of the transactions
contemplated by the Loan Documents.


 


(m)  There shall not exist any action, suit,
investigation, litigation or proceeding pending or threatened in any court or
before any arbitrator or governmental authority that would permit FCP not to
consummate the Acquisition.


 


SECTION 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 Loans to the other Type, or a
continuation of Eurodollar Loans) is subject to the following conditions
precedent:


 


(a)  The representations and warranties of the
Borrower and each other Loan Party contained in Article 5 (or, with
respect to the initial Credit Extension, only Sections 5.01(a) and (b)(ii),
5.02, 5.03, 5.04, 5.13 and 5.21) or any other Loan Document shall be true and
correct in all material respects on and as of the date of such Credit
Extension; provided that, to the
extent that such representations and warranties specifically refer to an
earlier date, they shall be true and correct in all material respects as of
such earlier date; provided, further
that, any representation and warranty that is qualified as to
“materiality,” “Material Adverse Effect” or similar language shall be true and
correct in all respects on such respective dates.


 


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


 


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


 


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Each Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Loans) submitted by the
Borrower 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 Borrower represents and
warrants to the Agents, the L/C Issuer and the Lenders that:


 


SECTION 5.01. Existence, Qualification and
Power; Compliance with Laws.  Each of
Borrower, each other Loan Party and each of their Subsidiaries (a) is a Person
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 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 in good
standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, (d) is in compliance with all Laws, orders, writs, injunctions
and orders and (e) has all requisite governmental licenses, authorizations,
consents and approvals to operate its business as currently conducted; except
in each case referred to in clause (c), (d) or (e), to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect
(or, with respect to clauses (a) and (b)(ii) above as of the Closing Date only,
a Material Adverse Change).


 


SECTION 5.02. Authorization; No
Contravention.  The execution, delivery
and performance by the Borrower and each other Loan Party of each Loan Document
to which such Person is a party, and the consummation of the Transaction, are
within such Loan Party’s corporate or other powers, 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 (other than Permitted Liens), or require any
payment to be made under (i) (x) any Existing Notes Documentation or (y)
any other Contractual Obligation to which such Person is a party or affecting
such Person or the properties of such Person or any of its Subsidiaries or (ii) any
material 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 material Law.


 


SECTION 5.03. Governmental Authorization; Other Consents.  No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or enforcement
against, the Holding Companies or any other Loan Party of this Agreement or any
other Loan Document, or for the consummation of the Transaction, (b) the grant
by the Holding Companies or any other Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (c) the perfection or maintenance of the
Liens created under the Collateral Documents (including the priority thereof)
or (d) the exercise by the Administrative Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for (i) filings necessary to perfect
the Liens on the Collateral granted by the Holding Companies and the other Loan
Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions,
authorizations, actions, notices and filings which have been duly obtained,
taken, given or made and are in full force and effect, (iii) filings necessary
to release collateral provided under the Existing Credit Facility which have
been delivered to the Collateral Agent for filing and for which a payoff letter
has been obtained acknowledging that such collateral has been released from any
Lien


 


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created thereunder, (iv) those items set forth on Schedule 5.03, (v)
approvals, consents, authorization or Permits from a Governmental Authority in
connection with an exercise of remedies under any of the Collateral Documents
with respect to Equity Interests  and
(vi) those approvals, consents, exemptions, authorizations or other
actions, notices or filings, the failure of which to obtain or make could not
reasonably be expected to cause a Material Adverse Change or, after the Closing
Date, have a Material Adverse Effect.


 


SECTION 5.04. Binding Effect.  This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party thereto.
This Agreement and each other Loan Document constitutes, a legal, valid and
binding obligation of such Loan Party, enforceable against each such Person
that is party thereto in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and by general principles
of equity.


 


SECTION 5.05. Financial Statements; No Material Adverse Effect.


 


(a)  (i)  The Audited Financial Statements and the
Unaudited Financial Statements fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries as of the dates
thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the periods covered thereby, except
as otherwise expressly noted therein. During the period from December 31, 2006
to and including the Closing Date, there has been (i) no sale, transfer or
other disposition by the Borrower or any of its Subsidiaries of any material
part of the business or property of the Borrower or any of its Subsidiaries,
taken as a whole and (ii) no purchase or other acquisition by the Borrower or
any of its Subsidiaries of any business or property (including any Equity
Interests of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, in each case, which
is not reflected in the foregoing financial statements or in the notes thereto
or has not otherwise been disclosed in writing to the Lenders prior to the
Closing Date.


 


(ii)  The unaudited pro forma consolidated balance
sheet of the Borrower and its Subsidiaries as at June 30, 2007 (the “Pro Forma Balance Sheet”) and the unaudited
pro forma consolidated statement of operations of the Borrower and its
Subsidiaries for the most recent fiscal year, the quarter ended June 30, 2007
and the 12-month period ending on June 30, 2007 (together with the Pro Forma
Balance Sheet, the “Pro Forma Financial
Statements”), copies of which have heretofore been furnished to each
Lender, have been prepared giving effect (as if such events had occurred on
such date or at the beginning of such periods, as the case may be) to the
Transaction, each material acquisition by the Borrower or any of its
Subsidiaries consummated after June 30, 2007 and prior to the Closing Date and
all other transactions that would be required to be given pro forma effect by
Regulation S-X promulgated under the Exchange Act (including other adjustments
consistent with the definition of Pro Forma Adjustment or as otherwise agreed
between the Borrower and the Joint Lead Arrangers). The Pro Forma Financial
Statements have been prepared in good faith, based on assumptions believed by
the Borrower to be reasonable as of the date of delivery thereof, and present
fairly in all material respects on a pro forma basis and in accordance with
GAAP the estimated financial position of the Borrower and its Subsidiaries as
at June 30, 2007 and their estimated results of operations for the periods
covered thereby, assuming that the events specified in the preceding sentence
had actually occurred at such date or at the beginning of the periods covered
thereby.


 


(b)  Since the Closing Date, 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.


 


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(c)  The forecasts of consolidated balance sheets,
income statements and cash flow statements of the Borrower and its Subsidiaries
for each fiscal year ending after the Closing Date until the fifth anniversary
of the Closing Date, copies of which have been furnished to the Administrative
Agent prior to the Closing Date in a form reasonably satisfactory to it, have
been prepared in good faith on the basis of the assumptions stated therein,
which assumptions were believed to be reasonable at the time of preparation of
such forecasts, it being understood that actual results may vary from such
forecasts and that such variations may be material.


 


(d)  As of the Closing Date, neither the Borrower
nor any Subsidiary has any Indebtedness or other obligations or liabilities,
direct or contingent (other than (i) the liabilities reflected on
Schedule 5.05, (ii) obligations arising under this Agreement and
(iii) liabilities incurred in the ordinary course of business) that,
either individually or in the aggregate, have had or could reasonably be expected
to have a Material Adverse Effect.


 


SECTION 5.06. Litigation.  There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Borrower, threatened in
writing or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries
or against any of their properties or revenues that either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.07. No Default.  Neither the Borrower nor any Subsidiary is in
default under or with respect to, or a party to, any Contractual Obligation
that could, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.


 


SECTION 5.08. Ownership of Property; Liens.  (a) 
Each of the Borrower and each of the Subsidiaries has good and
marketable title to, or valid leasehold (or subleasehold, as applicable)
interests in, all its material properties and assets (including all Real
Property), except for minor defects in title that, in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or interfere with its ability to conduct its business
as currently conducted or to utilize such properties and assets for their
intended purposes and subject to Permitted Liens and except, in the case of any
Unrestricted Subsidiaries, any failures to so hold good and marketable title or
valid leasehold that could not reasonably be expected to have a Material
Adverse Effect. Except where the failure could not reasonably be expected to
have a Material Adverse Effect, each parcel of Real Property is free from
material structural defects and all building systems contained therein are in
good working order and condition, ordinary wear and tear excepted, suitable for
the purposes for which they are currently being used. No portion of the Real
Property has suffered any material damage by fire or other casualty loss that
has not heretofore been completely repaired and restored to its original
condition, except where such damage could not reasonably be expected to have a
Material Adverse Effect. Each parcel of Real Property and the current use
thereof complies in all material respects with all applicable laws (including
building and zoning ordinances and codes) and with all insurance requirements,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. None of the Real Property constitutes a non-conforming
use under applicable zoning ordinances and codes, except where such
non-conforming use could not reasonably be expected to have a Material Adverse
Effect.


 


(b)           Except as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(i) none of the Borrower or the Subsidiaries, or, to the knowledge of the
Borrower, any other party thereto, is in material default under any material
leases to which it is a party and no event has occurred and no fact exists
which could become a default with the giving of notice or the passage of time
and all such leases are legal, valid, binding and in full force and effect and
are enforceable in accordance with their terms, (ii) each of the Borrower and the
Subsidiaries enjoys peaceful


 


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and
undisturbed possession under all such material leases and (iii) no landlord
Lien has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any lease payment under any material lease.


 


(c)           As of the Closing Date, none of the
Borrower or any of the other Loan Parties has received any notice of, nor has
any knowledge of, any pending or contemplated condemnation proceeding affecting
any Real Property or any sale or disposition thereof in lieu of condemnation


 


(d)           As of the Closing Date, none of the
Borrower or any other Loan Party, or, to the knowledge of the Borrower, any
other party thereto, is in default under any Material Contract.


 


(e)           There are no Liens of any nature
whatsoever on any of the properties or assets of the Borrower or any of the or
the other Loan Parties (other than, in the case of any assets other than Equity
Interests representing Collateral, Permitted Liens).


 


SECTION 5.09. Environmental Compliance.  (a) 
There are no claims, actions, suits, or proceedings alleging potential
liability or responsibility for violation of, or otherwise relating to, any
Environmental Law that could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


(b)  Except as specifically disclosed in
Schedule 5.09(b) or except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, (i) none of the
properties currently or formerly owned, leased or operated by any Loan Party or
any of its Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to any
such property; (ii) there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned, leased or operated by any
Loan Party or any of its Subsidiaries or, to the Borrower’s knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; (iii) there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries; and (iv) Hazardous Materials have not been released,
discharged or disposed of by any Person on any property currently or formerly
owned, leased or operated by any Loan Party or any of its Subsidiaries and
Hazardous Materials have not otherwise been released, discharged or disposed of
by any of the Loan Parties and their Subsidiaries at any other location.


 


(c)  The properties owned, leased or operated by
the Borrower and the Subsidiaries do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation
of, (ii) require remedial action under, or (iii) could give rise to
liability under, Environmental Laws, which violations, remedial actions and
liabilities, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.


 


(d)  Except as specifically disclosed in
Schedule 5.09(d), neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law except for such investigation or
assessment or remedial or response action that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


(e)  All Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its


 


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Subsidiaries have been disposed of in a manner not reasonably expected
to result, individually or in the aggregate, in a Material Adverse Effect.


 


(f)  Except as would not reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect, none of
the Loan Parties and their Subsidiaries has contractually assumed any liability
or obligation under or relating to any Environmental Law.


 


SECTION 5.10. Taxes.  Except
as set forth in Schedule 5.10 and except as could not, either individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, the Borrower and its Subsidiaries have filed all Federal and state and
other tax returns and reports required to be filed by them and all such tax
returns are correct and complete. Each of the Borrower and its Subsidiaries has
timely paid or timely caused to be paid all Federal and state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those
(a) which are not overdue by more than thirty (30) days or (b) which
are being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP. No
Tax Lien has been filed, and to the knowledge of the Borrower, no claim is
being asserted, with respect to any Tax.


 


SECTION 5.11. ERISA Compliance.  (a) 
Except as set forth in Schedule 5.11(a) or as could not, either
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, each Plan is in compliance in with the applicable
provisions of ERISA, the Code and other Federal or state Laws.


 


(a)  (i) No ERISA Event has occurred during the
five year period prior to the date on which this representation is made or
deemed made or is reasonably expected to occur with respect to any Pension
Plan; (ii) no Pension Plan has an “accumulated funding deficiency” (as
defined in Section 412 of the Code), whether or not waived, has been or is
reasonably expected to be determined “at risk” (as defined in Title IV of
ERISA) or not satisfying minimum funding standards (within the meaning of
Section 412 of the Code or 302 of ERISA); and (iii) neither any Loan Party
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA, except, with respect to each of the
foregoing clauses of this Section 5.11(b), as could not reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.


 


SECTION 5.12. Subsidiaries; Equity Interests.  As of the Closing Date, neither Borrower nor
any other Loan Party has any Subsidiaries other than those specifically
disclosed in Schedule 5.12, and all of the outstanding Equity Interests in
material Subsidiaries have been validly issued, are fully paid and
nonassessable and all Equity Interests owned by Borrower or any of its
Subsidiaries are owned free and clear of all Liens except (i) those
created under the Collateral Documents and (ii) any nonconsensual
Permitted Lien. As of the Closing Date, Schedule 5.12 (a) sets forth
the name and jurisdiction of each Subsidiary, (b) sets forth the ownership
interest of Borrower and any other Subsidiary in Borrower and each Subsidiary,
including the percentage of such ownership, (c) identifies each Subsidiary
the Equity Interests of which are required to be pledged on the Closing Date
pursuant to the Collateral and Guarantee Requirement and (d) identifies the
Immaterial Subsidiaries, the Unrestricted Subsidiaries and the Native American
Subsidiaries.


 


SECTION 5.13. Margin Regulations; Investment Company Act.  (a)   No
Loan Party is engaged nor will it engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board), or extending credit
for the purpose of purchasing or carrying margin stock, and no proceeds of any
Borrowings or drawings under any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or
ultimately, for purchasing or carrying margin stock or for the purpose of
purchasing,


 


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carrying or trading in any securities under such circumstances as to
involve the Borrower in a violation of Regulation X or to involve any broker or
dealer in a violation of Regulation T. No Indebtedness being reduced or retired
out of the proceeds of any Loans or Letters of Credit was or will be incurred
for the purpose of purchasing or carrying any margin stock. Following the
application of the proceeds of the Loans and the Letters of Credit, margin
stock will not constitute more than 25% of the value of the assets of the
Borrower and its Subsidiaries. None of the transactions contemplated by this
Agreement will violate or result in the violation of any of the provisions of
the Regulations of the Board, including Regulation T, U or X. If requested
by any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation U.


 


(a)  None of the Borrower, any Person Controlling
the Borrower, or any Subsidiary  is required to be registered as an
“investment company” under the Investment Company Act of 1940.


 


SECTION 5.14. Disclosure.  No report, financial statement, certificate or
other written information furnished by or on behalf of any Loan Party or any
Affiliate of a Loan Party to any Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or any other Loan Document (as modified or supplemented by
other information so furnished) when taken as a whole 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 materially misleading; provided that,
with respect to projected financial information and pro forma financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time of
preparation; it being understood that such projections may vary from actual
results and that such variances may be material.


 


SECTION 5.15. Intellectual Property; Licenses, Etc.  Each of the Loan Parties and their
Subsidiaries own, license or possess the right to use, all of the trademarks,
service marks, trade names, domain names, copyrights, patents, patent rights,
licenses, technology, software, know-how database rights, design rights and
other intellectual property rights (collectively, “IP Rights”)
that are reasonably necessary for the operation of their respective businesses
as currently conducted, and, without conflict with the rights of any Person,
except to the extent such conflicts, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. No IP
Rights, advertising, product, process, method, substance, part or other
material used by any Loan Party or any Subsidiary in the operation of their
respective businesses as currently conducted infringes upon any rights held by
any Person except for such infringements, individually or in the aggregate,
which could not reasonably be expected to have a Material Adverse Effect. No
claim or litigation regarding any of the IP Rights, is pending or, to the
knowledge of the Borrower, threatened against any Loan Party or Subsidiary,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


SECTION 5.16. Solvency.  On the Closing Date after giving effect to the
Transaction, the Loan Parties, on a consolidated basis, are Solvent.


 


SECTION 5.17. Maintenance of Insurance.  The Borrower and the other Loan Parties, as
applicable, maintain insurance in accordance with the requirements set forth in
Section 6.07. None of the Borrower or any of its Subsidiaries (a) has
received notice from any insurer (or any agent thereof) that substantial
capital improvements or other substantial expenditures will have to be made in
order to continue such insurance or (b) has any reason to believe that it
will not be able to renew its existing coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a substantially
similar cost except in each case as would not, individually or in the
aggregate, have a


 


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Material Adverse Effect. Schedule 5.17 sets forth a true, complete and
correct description of all insurance maintained by or on behalf of the Borrower
and the other Loan Parties as of the Closing Date.


 


SECTION 5.18. Subordination of Junior Financing.  The Obligations are “Senior Debt,” “Senior
Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any Junior Financing Documentation.


 


SECTION 5.19. Labor Matters.  Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:  (a) there are no strikes or other labor
disputes against any of the Borrower or its Subsidiaries pending or, to the
knowledge of Borrower, threatened; (b) hours worked by and payment made to
employees of each of the Borrower or its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Laws dealing
with such matters; and (c) all payments due from any of the Borrower or
its Subsidiaries on account of employee health and welfare insurance have been
paid or accrued as a liability on the books of the relevant party.


 


SECTION 5.20. Transaction Documentation.  (a)  The
Transaction Documents listed on Schedule 5.20 constitute all of the material
agreements, instruments and undertakings to which the Borrower or any of the
Subsidiaries is bound or by which any of their respective property or assets is
bound or affected relating to, or arising out of, the Acquisition. Except as
described in Schedule 5.20, none of the Transaction Documents has been amended,
supplemented or otherwise modified, and all such Transaction Documents are in
full force and effect. To the knowledge of the Responsible Officers, no party
to any of the Transaction Documents is in default thereunder as of the Closing
Date.


 


(b)  As of the Closing Date, the representations
and warranties of the applicable Loan Parties and their Affiliates set forth in
the Transaction Documentation are true and correct in all material respects.


 


SECTION 5.21. Collateral.
 To the extent required by the Collateral
and Guarantee Requirement and Section 4.01(a), the provisions of the Collateral
Documents are effective to create in favor of the Collateral Agent for the
benefit of the Secured Parties a legal, valid and enforceable first priority
Lien (subject to Permitted Liens) on all right, title and interest of the
respective Loan Parties in the Collateral, and no filing, recording,
registration or other action will be necessary to perfect or protect such
Liens.


 


SECTION 5.22. Location of Real Property.   Schedule 5.22 lists completely and
correctly, as of the Closing Date, all material owned or leased Real Property
and the addresses thereof, indicating for each parcel whether it is owned or
leased, including in the case of leased Real Property, the landlord name, lease
date and lease expiration date. The Borrower and its Subsidiaries own in fee or
have valid leasehold interests in, as the case may be, all the real property
set forth on Schedule 5.22.


 


SECTION 5.23. Permits.  (a)
The Borrower and each Restricted Subsidiary has obtained and holds all Permits
required in respect of all Real Property and for any other property otherwise
operated by or on behalf of, or for the benefit of, such person and for the
operation of each of its businesses as presently conducted and as proposed to
be conducted, (b) all such Permits are in full force and effect, and each such
Person has performed and observed all requirements of such Permits, (c) no
event has occurred that allows or results in, or after notice or lapse of time
would allow or result in, revocation or termination by the issuer thereof or in
any other impairment of the rights of the holder of any such Permit, (d) no
such Permits contain any restrictions, either individually or in the aggregate,
that are materially burdensome to any such Person, or to the operation of any
of its businesses or any property owned, leased or otherwise operated by such
person, (e) each such Person reasonably believes that each of its Permits will
be timely renewed and complied with, without material expense, and that any


 


81

















 


additional Permits that may be required of such Person will be timely
obtained and complied with, without material expense and (f) no such Person has
any knowledge or reason to believe that any Governmental Authority is
considering limiting, suspending, revoking or renewing on materially burdensome
terms any such Permit, in each case except as which could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 5.24. Fiscal Year.  The fiscal year of each the Borrower and each
Restricted Subsidiary ends on December 31 of each calendar year.


 


SECTION 5.25. Patriot Act. 
To the extent applicable, each Loan Party is in compliance, in all
material respects, with the (a) Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (b) the
Patriot Act.


 


SECTION 5.26. Use of Proceeds.  The Borrower will use the proceeds of the
Loans only as permitted hereunder to effect the Acquisition and for general
corporate purposes of the Borrower and the other Loan Parties.


 


ARTICLE VI


 


Affirmative Covenants


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower 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:


 


SECTION 6.01. Financial Statements.  Deliver to the Administrative Agent for prompt
further distribution to each Lender:


 


(a)  as soon as available, but in any event within
ninety (90) days after the end of each fiscal year of the Borrower beginning
with the 2007 fiscal year, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, stockholders’ 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 Ernst
& Young LLP or any other independent registered public accounting firm of
nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards 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
forty-five (45) days after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related (i) consolidated statements of income or operations for such fiscal
quarter and for the portion of the fiscal year then ended and (ii) consolidated
statements of cash flows for the portion of the 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 and certified by a Responsible
Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations, stockholders’ equity and cash


 


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flows of the Borrower and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;


 


(c)  as soon as available, but in any event within
30 days after the end of the first two fiscal months of each fiscal quarter of
the Borrower and its Subsidiaries, a consolidated balance sheet and related
statements of income of the Borrower and its Subsidiaries showing the financial
condition of the Borrower and its Subsidiaries during such fiscal month and the
then elapsed portion of the fiscal year, all in reasonable detail and certified
by a Responsible Officer of the Borrower as fairly presenting in all material
respects the financial condition and results of operations of the Borrower and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;


 


(d)  as soon as available, and in any event no
later than ninety (90) days after the end of each fiscal year of the Borrower,
a detailed consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the following fiscal year, the related consolidated statements of
projected cash flow and projected income and a summary of the material
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the “Projections”),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any material
respect; and


 


(e)  simultaneously with the delivery of each set
of consolidated financial statements referred to in Sections 6.01(a) and
6.01(b) above, related unaudited consolidating financial statements reflecting
the adjustments necessary to eliminate the accounts of Unrestricted
Subsidiaries (if any) from such consolidated financial statements in a form to
be mutually agreed by Borrower and Administrative Agent.


 


Notwithstanding the foregoing, the obligations in paragraphs (a) and
(b) of this Section 6.01 may be satisfied with respect to financial information
of the Borrower and the Restricted Subsidiaries by furnishing the Borrower’s
(or any direct or indirect parent thereof, as applicable) Form 10-K or 10-Q, as
applicable, filed with the SEC; provided
that, to the extent such information relates to a parent company of the
Borrower, such information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating
to such parent, on the one hand, and the information relating to the Borrower
and the Restricted Subsidiaries on a standalone basis, on the other hand and
(ii) to the extent such information is in lieu of information required to be
provided under Section 6.01(a), such materials are accompanied by a report and
opinion of Ernst & Young LLP or any other independent registered public
accounting firm of nationally recognized standing, which report and opinion
shall be prepared in accordance with generally accepted auditing standards 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.


 


SECTION 6.02. Certificates; Other Information.  Deliver to the Administrative Agent for prompt
further distribution to each Lender:


 


(a)  no later than five (5) days after the
delivery of the financial statements referred to in Section 6.01(a), a
certificate of its independent registered public accounting firm certifying
such financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Event of Default under
Section 7.11 or, if knowledge of any such Event of Default was so
obtained, relevant information stating the nature and status of such event;


 


83

















 


(b)  no later than five (5) days after the
delivery of the financial statements referred to in Section 6.01(a) and
(b), a duly completed Compliance Certificate signed by a Responsible Officer of
the Borrower and, if such Compliance Certificate demonstrates an Event of
Default of any covenant under Section 7.11, any of the Equity Investors
may deliver, together with such Compliance Certificate, notice of their intent
to cure (a “Notice of Intent to Cure”)
such Event of Default pursuant to Section 8.05; provided
that the delivery of a Notice of Intent to Cure shall in no way affect or alter
the occurrence, existence or continuation of any such Event of Default or the
rights, benefits, powers and remedies of the Administrative Agent and the
Lenders under any Loan Document;


 


(c)  promptly after the same are publicly
available, copies of all annual, regular, periodic and special reports and
registration statements which the Borrower files with the SEC or with any
Governmental Authority that may be substituted therefor (other than amendments
to any registration statement (to the extent such registration statement, in
the form it became effective, is delivered), exhibits to any registration
statement and, if applicable, any registration statement on Form S-8) and in
any case not otherwise required to be delivered to the Administrative Agent
pursuant hereto;


 


(d)  promptly after the furnishing thereof, copies
of any material requests or material notices received by the Borrower or any
Restricted Subsidiary (other than in the ordinary course of business) or
material statements or material reports furnished to any holder of debt
securities of the Borrower or any Restricted Subsidiary pursuant to the terms
of any Existing Notes Documentation, Junior Financing Documentation, the CMBS
Loan Documents, the Land Loan Documents or any other Indebtedness of the
Borrower or any Restricted Subsidiary in a principal amount greater than the
Threshold Amount and not otherwise required to be furnished to the Lenders
pursuant to any other clause of this Section 6.02;


 


(e)  together with the delivery of each Compliance
Certificate pursuant to Section 6.02(b), (i) a report setting forth
the information required by Section 3.03(c) of the Security Agreement or
confirming that there has been no change in such information since the Closing
Date or the date of the last such report), (ii) a description of each
event, condition or circumstance during the last fiscal quarter covered by such
Compliance Certificate requiring a mandatory prepayment under
Section 2.05(b) and (iii) a list of each Subsidiary that identifies
each Subsidiary as a Restricted Subsidiary, Immaterial Subsidiary or an
Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate;
and


 


(f)  promptly, such additional information
regarding the business, legal, financial or corporate affairs of any Loan Party
or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender 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 be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or
another relevant 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) upon written request by the Administrative Agent, the Borrower shall
deliver paper copies of such documents to the Administrative Agent for further
distribution to each Lender until a written request to cease delivering paper
copies is given by the Administrative Agent and (ii) the Borrower shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
of the posting of any such documents and provide to the Administrative Agent


 


84

















 


by electronic mail
electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Each
Lender shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such documents from the Administrative
Agent and maintaining its copies of such documents.


 


SECTION 6.03. Notices.  Promptly after obtaining knowledge thereof,
notify the Administrative Agent of:


 


(a)  the occurrence of any Default;


 


(b)  any material amendment, waiver or other
material modification made to, or delivery of any notice of default or
termination of, or the entry into, any Material Contract (together with a copy
of any such amendment, waiver, modification or notice);


 


(c)  the entering into by any Borrower or
Subsidiary of any management contract (together with a copy of any such
management contract) whereby another Person will manage the gaming operations
at one or more of the properties owned or leased by Borrower or its
Subsidiaries;


 


(d)  any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect, including
arising out of or resulting from (i) breach or non-performance of, or any
default or event of default under, a Contractual Obligation of any Loan Party
or any Subsidiary, (ii) any dispute, litigation, investigation, proceeding
or suspension between any Loan Party or any Subsidiary and any Governmental
Authority, (iii) the commencement of, or any material development in, any
litigation or proceeding affecting any Loan Party or any Subsidiary, including
pursuant to any applicable Environmental Laws or in respect of IP Rights or the
assertion or occurrence of any noncompliance by any Loan Party or as any of its
Subsidiaries with, or liability under, any Environmental Law or Environmental
Permit, or (iv) the occurrence of any ERISA Event;


 


(e)  the occurrence of a casualty event or the
damage or destruction of a material portion of the Collateral; and


 


(f)  with respect to Plan years beginning on or
after December 31, 2007, any documents or notices described in Sections 101(k)
and (m) of ERISA that any Loan Party or ERISA Affiliate is permitted to request
with respect to any Multiemployer Plan, and provide copies of such documents or
notices on annual basis.


 


Each notice pursuant to this
Section shall be accompanied by a written statement of a Responsible Officer of
the Borrower (x) that such notice is being delivered pursuant to
Section 6.03(a) or (b) (as applicable) and (y) setting forth details
of the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto.


 


SECTION 6.04. Payment of Obligations.  Pay, discharge or otherwise satisfy as the
same shall become due and payable, all its obligations and liabilities in
respect of taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, except, in each
case, to the extent the failure to pay or discharge the same could not
reasonably be expected to have a Material Adverse Effect.


 


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SECTION 6.05. Preservation of Existence, Etc.  Preserve, renew and maintain in full force
and effect its legal existence under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05 and
(b) take all reasonable action to maintain all rights, privileges
(including its good standing), permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except (i) to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect or (ii) pursuant to a transaction permitted by Section 7.04 or 7.05.


 


SECTION 6.06. Maintenance of Properties.  Except if the failure to do so could not
reasonably be expected to have a Material Adverse Effect, (a) maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order, repair and condition,
ordinary wear and tear excepted and casualty or condemnation excepted, and
(b) make all necessary renewals, replacements, modifications,
improvements, upgrades, extensions and additions thereof or thereto in
accordance with prudent industry practice.


 


SECTION 6.07. Maintenance of Insurance.  Maintain with financially sound and reputable
insurance companies, 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 (after
giving effect to any self-insurance reasonable and customary for similarly
situated Persons engaged in the same or similar businesses as the Borrower and
the Restricted Subsidiaries) as are customarily carried under similar
circumstances by such other Persons and ensure that the Agents and the Lenders
are additional insureds and/or loss payees, as applicable. under such
insurance, as reasonably requested by the Administrative Agent or the
Collateral Agent.


 


SECTION 6.08. Compliance with Laws.  Comply in all material respects with and
requirements of all Laws, all orders, writs, injunctions and decrees, of any
Governmental Authority applicable to it or to its business or property, except
if the failure to do so could not reasonably be expected to have a Material
Adverse Effect.


 


SECTION 6.09. Books and Records.  Maintain proper books of record and account,
in which entries that are full, true and correct in all material respects and
are in conformity with GAAP consistently applied shall be made of all material
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.


 


SECTION 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 officers and independent public
accountants, all at the reasonable expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower; provided
that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise rights of the Administrative Agent and the Lenders under this
Section 6.10 and the Administrative Agent shall not exercise such rights more
often than two (2) times during any calendar year absent the existence of an
Event of Default and only one (1) such time shall be at the Borrower’s expense;
provided, further,
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 Borrower at any time during normal
business hours and upon reasonable advance notice. The Administrative Agent and
the Lenders shall give the Borrower the opportunity to participate in any
discussions with the Borrower’s independent public accountants.


 


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SECTION 6.11. Covenant to Guarantee Obligations and Give Security.
 At the Borrower’s expense, take all
action necessary or reasonably requested by the Administrative Agent to ensure
that the Collateral and Guarantee Requirement continues to be satisfied,
including:


 


(a)  upon the formation or acquisition of any new
direct or indirect wholly owned Domestic Subsidiary (other than an Unrestricted
Subsidiary or an Excluded Subsidiary) by any Loan Party or the designation in
accordance with Section 6.14(a) of any existing direct or indirect wholly
owned Domestic Subsidiary as a Restricted Subsidiary, or upon an Immaterial
Subsidiary’s ceasing to be designated as such pursuant to Section 6.14(b):


 


(i)  within thirty (30) days after such formation,
acquisition or designation or such longer period as the Administrative Agent
may agree in its discretion:


 


(A)  cause each such Restricted Subsidiary that is
required to grant Liens on its property under the Collateral and Guarantee
Requirement to furnish to the Administrative Agent a description of the real
properties owned or leased by such Restricted Subsidiary that generate
Consolidated EBITDA in excess of $10,000,000 on an annualized basis, in detail
reasonably satisfactory to the Administrative Agent;


 


(B)  cause (x) each such Restricted Subsidiary
that is required to grant Liens on its property pursuant to the Collateral and
Guarantee Requirement to duly execute and deliver to the Administrative Agent
Mortgages, Security Agreement Supplements, Pledge Agreement Supplements,
Intellectual Property Security Agreements and to execute, deliver, file and record
any such other documents, statements, assignment, instrument, agreement or
other paper and take all other actions necessary in order to create a perfected
security interest in all of its assets that are required to be pledged pursuant
to the Collateral and Guarantee Requirement (including, with respect to
Mortgages, the documents listed in Section 6.13(b)), as reasonably
requested by and in form and substance reasonably satisfactory to the
Administrative Agent (to the extent applicable due to similar jurisdiction
and/or type of property, consistent with the Mortgages, Security Agreement,
Pledge Agreement, Intellectual Property Security Agreements and other security
agreements in effect on the Closing Date), in each case granting Liens required
by the Collateral and Guarantee Requirement and (y) each direct or
indirect parent of each such Restricted Subsidiary to duly execute and deliver
to the Administrative Agent such Security Agreement Supplements and Pledge
Agreement Supplements to execute, deliver, file and record any such other
documents, statements, assignment, instrument, agreement or other paper and
take all other actions (with the priority required by the Collateral Documents)
as reasonably requested by and in form and substance reasonably satisfactory to
the Administrative Agent (to the extent applicable due to similar jurisdiction
and/or type of property, consistent with the Security Agreements in effect on
the Closing Date), in each case granting Liens required by the Collateral and
Guarantee Requirement;


 


(C)  (x) cause each such Restricted
Subsidiary to deliver any and all certificates representing Equity Interests
(to the extent certificated) that are required to be pledged pursuant to the
Collateral and Guarantee Requirement, accompanied by undated stock powers or
other appropriate instruments of transfer executed in blank and instruments
evidencing the intercompany Indebtedness held by such Restricted Subsidiary and
required to be pledged pursuant to the Collateral Documents, indorsed in blank to
the Administrative Agent and (y) cause each direct or indirect parent of
such Restricted Subsidiary to deliver any and all certificates representing the
outstanding Equity Interests


 


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(to the extent certificated)
of such Restricted Subsidiary that are required to be pledged pursuant to the
Collateral and Guarantee Requirement, accompanied by undated stock powers or
other appropriate instruments of transfer executed in blank and instruments
evidencing the intercompany Indebtedness issued by such Restricted Subsidiary
and required to be pledged in accordance with the Collateral Documents indorsed
in blank to the Administrative Agent;


 


(D)  take and cause such Restricted Subsidiary and
each direct or indirect parent of such Restricted Subsidiary to take whatever
action (including the recording of Mortgages, the filing of Uniform Commercial
Code financing statements and delivery of stock and membership interest
certificates, the delivery of promissory notes duly endorsed in favor of the
Administrative Agent (if any such Investment is by way of loan or advance)) may
be necessary in the reasonable opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid Liens required by the Collateral and Guarantee
Requirement, enforceable against all third parties in accordance with their
terms, except as such enforceability may be limited by Debtor Relief Laws and
by general principles of equity;


 


(E)  cause each such Restricted Subsidiary that is
required to become a Guarantor under the Collateral and Guarantee Requirement
to duly execute and deliver to the Administrative Agent a supplement to an
existing Guaranty or a new guaranty, in each case in form and substance
reasonably satisfactory to the Administrative Agent, guaranteeing the
Obligations;


 


(F)  cause each such Restricted Subsidiary to
deliver to the Administrative Agent such documents and certificates as would
have been required pursuant to Sections 4.01(a)(iii) and (iv) had such wholly
owned Subsidiary been a Subsidiary on the Closing Date;


 


(ii)  within thirty (30) days after the request
therefor by the Administrative Agent, deliver to the Administrative Agent a
signed copy of an opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to such matters of law set forth in this
Section 6.11(a) as the Administrative Agent may reasonably request;


 


(iii)  as promptly as practicable after the request
therefor by the Administrative Agent, deliver to the Administrative Agent with
respect to each parcel of real property that is required to be subject to a
Lien for the benefit of the Lenders pursuant to the Collateral and Guarantee
Requirement any existing title reports, surveys or environmental assessment
reports; and


 


(iv)  after the Closing Date, concurrently with (x)
the acquisition of any material personal property by any Restricted Subsidiary
other than an Immaterial Subsidiary, (y) the acquisition of any owned real
property by any Restricted Subsidiary that is required to be subject to a Lien
for the benefit of the Lenders pursuant to the Collateral and Guarantee
Requirement or (z) the entering into, or renewal, by any Restricted Subsidiary
of a lease in respect of real property that is required to be subject to a Lien
for the benefit of the Lenders pursuant to the Collateral and Guarantee
Requirement, and such personal property, owned real property or lease shall not
already be subject to a perfected Lien pursuant to the Collateral and Guarantee
Requirement, the Borrower shall give notice thereof to the Administrative Agent
and promptly thereafter shall cause such assets to be subjected to a Lien to
the extent required by the Collateral and Guarantee Requirement and will take,
or cause the relevant Loan Party to take, such actions as shall be


 


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necessary or reasonably
requested by the Administrative Agent to grant and perfect or record such Lien,
including, as applicable, the actions referred to in Section 6.13(b) with
respect to real property.


 


SECTION 6.12. Compliance with Environmental Laws.  Except, in each case, to the extent that the
failure to do so could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, comply, and take all reasonable
actions to cause all lessees and other Persons operating or occupying its
properties to comply with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and, in each case to the extent required by
Environmental Laws, conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove
and clean up all Hazardous Materials from any of its properties, in accordance
with the requirements of all Environmental Laws.


 


SECTION 6.13. Further Assurances and Post-Closing Conditions.  (a) 
Promptly upon reasonable request by the Administrative Agent
(i) correct any material defect or error that may be discovered in the
execution, acknowledgment, filing or recordation of any Collateral Document or
other document or instrument relating to any Collateral, and (ii) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent may reasonably request from time
to time in order to carry out more effectively the purposes of the Collateral
Documents.


 


(b)  In the case of any real property referred to
in Section 6.11, provide the Administrative Agent with Mortgages with respect
to such owned real property within thirty (30) days of the acquisition of, or,
if requested by the Administrative Agent, entry into, or renewal of, a ground
lease in respect of, such real property, together with:


 


(i)  evidence that counterparts
of the Mortgages have been duly executed, acknowledged and delivered and are in
form suitable for filing or recording in all filing or recording offices that
the Administrative Agent may deem reasonably necessary or desirable in order to
create a valid and subsisting perfected Lien on the property and/or rights
described therein in favor of the Administrative Agent for the benefit of the
Secured Parties and that all filing and recording taxes and fees have been paid
or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent;


 


(ii)  fully paid American Land
Title Association Lender’s Extended Coverage title insurance policies or the
equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements
and in amount, reasonably acceptable to the Administrative Agent (not to exceed
the value of the real properties covered thereby), issued, coinsured and
reinsured by title insurers reasonably acceptable to the Administrative Agent,
insuring the Mortgages to be valid subsisting Liens on the property described
therein, free and clear of all defects and encumbrances, subject to Permitted
Liens, and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents) and such coinsurance
and direct access reinsurance as the Administrative Agent may reasonably
request;


 


(iii)  opinions of local counsel
for the Loan Parties in states in which the real properties are located, with
respect to the enforceability and perfection of the Mortgages and any related
fixture filings in form and substance reasonably satisfactory to the
Administrative Agent; and


 


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(iv)  such other evidence that
all other actions that the Administrative Agent may reasonably deem necessary
or desirable in order to create valid and subsisting Liens on the property
described in the Mortgages has been taken.


 


SECTION 6.14. Designation of Subsidiaries.  (a)  The
Borrower may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such
designation, no Default shall have occurred and be continuing, (ii) immediately
after giving effect to such designation, the Borrower and the Restricted
Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants
set forth in Section 7.11 (and, as a condition precedent to the
effectiveness of any such designation, the Borrower shall deliver to the
Administrative Agent a certificate setting forth in reasonable detail the
calculations demonstrating such compliance), (iii) no Subsidiary may be
designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for
the purpose of the Existing Notes or any Junior Financing, as applicable, and
(iv) no Restricted Subsidiary may be designated as an Unrestricted
Subsidiary if it was previously designated an Unrestricted Subsidiary. The
designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an
Investment by the Borrower therein at the date of designation in an amount
equal to the net book value of the Borrower’s (as applicable) investment
therein. The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute the incurrence at the time of designation of any
Indebtedness or Liens of such Subsidiary existing at such time.


 


(b)  The Borrower may, at any
time, designate a Restricted Subsidiary as an Immaterial Subsidiary, but only
to the extent that such designation is consistent with the definition of
“Immaterial Subsidiary” or as a Native American Subsidiary, but only to the
extent that such designation is consistent with the definition of “Native
American Subsidiary”. Upon any Immaterial Subsidiary’s or Native American
Subsidiary’s (whether designated as such on the Closing Date or thereafter
pursuant to the preceding sentence) ceasing to satisfy the requirements set
forth in the definition of such term, the Borrower shall notify the
Administrative Agent thereof and shall take the actions required pursuant to
Section 6.11 and such Subsidiary shall cease to be an Immaterial Subsidiary or
Native American Subsidiary, as the case may be.


 


SECTION 6.15. Information Regarding Collateral.  SECTION 6.16. Furnish to the Administrative
Agent and prompt written notice of any change (a) in any Loan Party’s corporate
name, (b) in the location of any Loan Party’s chief executive office, its
principal place of business, and, upon request of the Administrative Agent, in
the location of any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by
it is located (including the establishment of any such new office or facility),
(c) in any Loan Party’s identity or corporate structure or (d) in any Loan
Party’s US Federal Taxpayer Identification Number, as applicable, and, in any
event, no such change shall be effected or permitted unless all filings have been
made (or will be made on a timely basis) under applicable Laws or otherwise and
all other actions have been taken (or will be taken on a timely basis) that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral.


 


ARTICLE VII


 


Negative Covenants


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any of
the Restricted Subsidiaries to, directly or indirectly:


 


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SECTION 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 the following:


 


(a)  Liens pursuant to any Loan Document;


 


(b)  Liens existing on the date hereof and listed
on Schedule 7.01(b) and any modifications, replacements, renewals or extensions
thereof; provided that (i) any such Lien does not
extend to any additional property other than (A) after-acquired property that
is affixed or incorporated into the property covered by such Lien, and (B)
proceeds and products thereof, and (ii) such Liens shall secure only those
obligations which they secure on the Closing Date and refinancings, extensions,
renewals and replacements thereof permitted hereunder;


 


(c)  Liens for taxes, assessments or governmental
charges which are not overdue for a period of more than thirty (30) days or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


(d)  statutory Liens of landlords, carriers,
warehousemen, mechanics, materialmen, repairmen, construction contractors or
other like Liens arising in the ordinary course of business which secure
amounts not overdue for a period of more than thirty (30) days or if more than
thirty (30) days overdue, are unfiled and no other action has been taken to
enforce such Lien or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;


 


(e)   (i) pledges or deposits in the ordinary
course of business in connection with workers’ compensation, unemployment insurance
and other social security legislation and (ii) pledges and deposits in the
ordinary course of business securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borrower or any Restricted
Subsidiary;


 


(f)  deposits to secure the performance of bids,
trade contracts, governmental contracts and leases (other than Indebtedness for
borrowed money and Capitalized Leases), statutory obligations, surety, stay,
customs and appeal bonds, performance bonds and other obligations of a like
nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business;


 


(g)  public and private easements, rights-of-way,
restrictions, encroachments, protrusions, franchises, licenses, permits, zoning
laws, covenants, conditions, restrictions and other similar encumbrances and
minor title defects affecting real property which, in the aggregate, do not in
any case materially interfere with the ordinary conduct of the business of the
Borrower or any material Subsidiary;


 


(h)  Liens securing judgments for the payment of
money not constituting an Event of Default under Section 8.01(h);


 


(i)  Liens securing Indebtedness permitted under
Section 7.03(e); provided that
(i) such Liens attach concurrently with or within two hundred seventy
(270) days after the acquisition, repair, replacement, construction or
improvement (as applicable) of the property subject to such Liens,
(ii) such Liens do not at any time encumber any property except for the
property financed by such Indebtedness, accessions thereto and the proceeds and
the products thereof and (iii) with respect to Capitalized Leases, such
Liens do not at any time extend to or cover any assets (except for accessions
to such assets) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment


 


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provided by one lender may be cross collateralized to other financings
of equipment provided by such lender;


 


(j)  leases, licenses, subleases or sublicenses
granted to others in the ordinary course of business which do not
(i) interfere in any material respect with the business of the Borrower or
any material Subsidiary or (ii) secure any Indebtedness;


 


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


 


(l)  Liens (i) of a collection bank arising
under Section 4-210 of the Uniform Commercial Code on items in the course
of collection, (ii) attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of business; and
(iii) in favor of a banking institution arising as a matter of law
encumbering deposits (including the right of set-off) and which are within the
general parameters customary in the banking industry;


 


(m)  Liens (i) on cash advances in favor of the
seller of any property to be acquired in an Investment permitted pursuant to
Sections 7.02(g), (i) and (n) to be applied against the purchase price for such
Investment, and (ii) consisting of an agreement to Dispose of any property in a
Disposition permitted under Section 7.05, in each case, solely to the
extent such Investment or Disposition, as the case may be, would have been
permitted on the date of the creation of such Lien;


 


(n)  Liens in favor of the Borrower or a
Restricted Subsidiary securing Indebtedness permitted under

Section 7.03(d);


 


(o)  Liens existing on property at the time of its
acquisition or existing on the property of any Person at the time such Person
becomes a Restricted Subsidiary (other than by designation as a Restricted
Subsidiary pursuant to Section 6.14), in each case after the date hereof (other
than Liens on the Equity Interests of any Person that becomes a Restricted
Subsidiary); provided that (i) such Lien
was not created in contemplation of such acquisition or such Person becoming a
Restricted Subsidiary, (ii) such Lien does not extend to or cover any
other assets or property (other than the proceeds or products thereof and other
than after-acquired property subjected to a Lien securing Indebtedness and
other obligations incurred prior to such time and which Indebtedness and other
obligations are permitted hereunder that require, pursuant to their terms at
such time, a pledge of after-acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and
(iii) the Indebtedness secured thereby is permitted under Section 7.03(e),
(g) or (k);


 


(p)  any interest or title of a lessor under
leases entered into by the Borrower or any of the Restricted Subsidiaries in
the ordinary course of business;


 


(q)  Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale of goods entered into
by the Borrower or any of the Restricted Subsidiaries in the ordinary course of
business permitted by this Agreement;


 


(r)  Liens deemed to exist in connection with
Investments in repurchase agreements under Section 7.02;


 


(s)  Liens encumbering reasonable customary
initial deposits and margin deposits and similar Liens attaching to commodity
trading accounts or other brokerage accounts incurred in the ordinary course of
business and not for speculative purposes;


 


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(t)  Liens that are contractual rights of set-off
(i) relating to the establishment of depository relations with banks not
given in connection with the issuance of Indebtedness, (ii) relating to
pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary
to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Borrower and the Restricted Subsidiaries or
(iii) relating to purchase orders and other agreements entered into with
customers of the Borrower or any Restricted Subsidiary in the ordinary course
of business;


 


(u)  Liens solely on any cash earnest money
deposits made by the Borrower or any of the Restricted Subsidiaries in
connection with any letter of intent or purchase agreement permitted hereunder;


 


(v)  (i) Liens placed upon the Equity Interests of
any Restricted Subsidiary acquired pursuant to a Permitted Acquisition to
secure Indebtedness incurred pursuant to Section 7.03(g) in connection with
such Permitted Acquisition and (ii) Liens placed upon the assets of such
Restricted Subsidiary and any of its Subsidiaries to secure a Guarantee by such
Restricted Subsidiary and its Subsidiaries of any such Indebtedness incurred
pursuant to Section 7.03(g);


 


(w)  ground leases in respect of real property on
which facilities owned or leased by the Borrower or any of its Subsidiaries are
located;


 


(x)  Liens in favor of the Borrower as landlord
under each Casino Sublease on Specified FF&E owned by a Guarantor that is
the tenant under the Casino Sublease and on FF&E reserve accounts
established under such Casino Sublease and that secure such Guarantor’s
obligations to Borrower under such Casino Sublease (“Specified FF&E and Reserve Accounts Liens”);


 


(y)  Liens upon the Borrower’s rights as secured
party with respect to the Specified FF&E and Reserve Accounts Liens pledged
by the Borrower in favor of the landlord under the Master Lease to secure the
Borrower’s obligations under the Master Lease; and


 


(z)  other Liens securing Indebtedness outstanding
in an aggregate principal amount not to exceed $65,000,000.


 


SECTION 7.02. Investments.  Make or hold any Investments, except:


 


(a)  Investments by the Borrower or a Restricted
Subsidiary in assets that were Cash Equivalents when such Investments were
made;


 


(b)  loans or advances to officers, directors and
employees of the Borrower and the Restricted Subsidiaries (i) for reasonable
and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes so long as made in accordance with applicable law,
(ii) in connection with such Person’s purchase of Equity Interests of any
of the Holding Companies (or any direct or indirect parent thereof) (provided that the amount of such loans and advances shall be
contributed to the Borrower in cash as common equity) and (iii) for purposes
not described in the foregoing clauses (i) and (ii), in an aggregate principal
amount outstanding not to exceed $5,000,000;


 


(c)  Investments by the Borrower or any Restricted
Subsidiary in any Restricted Subsidiary that is a Guarantor (excluding any new
Restricted Subsidiary which becomes a Guarantor or by a Restricted Subsidiary
in Borrower);


 


(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


 


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received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the
ordinary course of business;


 


(e)  Investments consisting of Liens,
Indebtedness, fundamental changes, Dispositions and Restricted Payments
permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively; provided that for purposes of any Indebtedness incurred by a
Restricted Subsidiary that is not a Guarantor in favor of a Guarantor, and any
Dispositions by a Guarantor to a Restricted Subsidiary that is not a Guarantor,
such Investments shall be permitted pursuant to the other provisions of this
Section 7.02 (and not solely pursuant to this clause (e));


 


(f)  Investments (i) existing on the date hereof
and set forth on Schedule 7.02(f) and (ii) existing on the date hereof by the
Borrower or any Restricted Subsidiary in the Borrower or any other Restricted
Subsidiary; provided that the amount of the original
Investment is not increased except by the terms of such Investment or as
otherwise permitted by this Section 7.02;


 


(g)  Investments in Swap Contracts permitted under
Section 7.03;


 


(h)  promissory notes and other noncash
consideration received in connection with Dispositions permitted by
Section 7.05;


 


(i)  the purchase or other acquisition of property
and assets or businesses of any Person or of assets constituting a business
unit, a line of business or division of such Person, or Equity Interests in a
Person (including as a result of a merger or consolidation); provided that, with respect to each purchase or other
acquisition made pursuant to this Section 7.02(i) (each, a “Permitted Acquisition”):


 


(A)  subject to clause (B) below, all property,
assets and businesses acquired in such purchase or other acquisition shall
constitute Collateral (unless the same constitute Excluded Assets) and each
applicable Loan Party and any such newly created or acquired Subsidiary (and,
to the extent required under the Collateral and Guarantee Requirement, the
Subsidiaries of such created or acquired Subsidiary) shall be a Guarantor and
shall have complied with the requirements of Section 6.11, within the
times specified therein;


 


(B)  the aggregate amount of consideration (cash
and noncash and including the fair market value of all Equity Interests issued
or transferred to the sellers thereof, all indemnities, earnouts and other contingent
payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the sellers
thereof, all write-downs of property and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in
connection therewith) paid in respect of acquisitions of Persons that do not
become Guarantors (including Persons who do not become wholly-owned
Subsidiaries of the Borrower) shall not exceed $75,000,000 (net of any return
representing a return of capital in respect of any such Investment);


 


(C)  the acquired property, assets, business or
Person is in the same line of business as the Borrower or a Subsidiary;


 


(D)  (1) immediately before and immediately after
giving Pro Forma Effect to any such purchase or other acquisition, no Default
shall have occurred and be continuing and (2) immediately after giving effect
to such purchase or other acquisition (including any Indebtedness incurred in
connection therewith), the Borrower and the Restricted Subsidiaries shall be in
Pro Forma Compliance with all of the covenants set forth in


 


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Section 7.11, such
compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01(a) or (b) as though such purchase or other acquisition had
been consummated as of the first day of the fiscal period covered thereby and
evidenced by a certificate from the principal accounting officer of the
Borrower demonstrating such compliance calculation in reasonable detail; and


 


(E)  the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lenders, no later than five (5) Business
Days after the date on which any such purchase or other acquisition is
consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (i) have been satisfied or will be
satisfied on or prior to the consummation of such purchase or other
acquisition;


 


(j)  the Transaction;


 


(k)  Investments in the ordinary course of
business consisting of Article 3 of the Uniform Commercial Code endorsements
for collection or deposit and Article 4 of the Uniform Commercial Code
customary trade arrangements with customers consistent with past practices;


 


(l)  Investments (including debt obligations and
Equity Interests) received in connection with the bankruptcy or reorganization
of suppliers and customers or in settlement of delinquent obligations of, or
other disputes with, customers and suppliers arising in the ordinary course of
business or upon the foreclosure with respect to any secured Investment or
other transfer of title with respect to any secured Investment;


 


(m)  loans and advances to any of the Holding
Companies (or any direct or indirect parent thereof) in lieu of, and not in
excess of the amount of (after giving effect to any other loans, advances or
Restricted Payments in respect thereof), Restricted Payments to the extent
permitted to be made to such Holding Company (or such parent) in accordance
with Section 7.06(f);


 


(n)  so long as immediately after giving effect to
any such Investment, no Default has occurred and is continuing and the Borrower
and the Restricted Subsidiaries will be in Pro Forma Compliance with the
covenants set forth in Section 7.11:


 


(i)  Investments that are
required by the terms of Support Agreements permitted under Section 7.03(u) in
an amount not exceeding $200,000,000;


 


(ii)  Investments in Aliante in
an amount not to exceed $150,000,000 in the aggregate;


 


(iii)  Investments in Wild Wild
West (other than Permitted Land Loan Investments) in an amount not to exceed
$65,000,000 in the aggregate; and


 


(iv)  Investments of $566,835,410
plus (A) Net Cash Proceeds of Permitted Equity Issuances (other than
Permitted Equity Issuances made pursuant to Section 8.05) that are Not
Otherwise Applied, and (B) so long as (after giving Pro Forma Effect to such
Investments) the Borrower and its Restricted Subsidiaries will be in Pro Forma
Compliance with the covenants set forth in Section 7.11, an amount equal to the
sum of (x) 50% of Cumulative Excess Cash Flow, excluding therefrom any amounts
constituting the Available Distributions Amount, plus (y) 100% of the


 


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Available
Distribution Amount, to the extent that such sum is Not Otherwise Applied, it
being understood that, subject to the limitations set forth in this Section
7.02(n)(iv), the Borrower may make Investments that constitute payments in
respect of the Land Loan under this Section 7.02(n)(iv) regardless of whether
such Investments fail to constitute Permitted Land Loan Investments pursuant to
the definition thereof;


 


(o)  advances of payroll payments to employees in
the ordinary course of business;


 


(p)  Investments to the extent that payment for
such Investments is made solely with capital stock of the Borrower after a
Qualifying IPO of the Borrower;


 


(q)  Investments of a Restricted Subsidiary
acquired after the Closing Date or of a corporation merged into the Borrower or
merged or consolidated with a Restricted Subsidiary in accordance with Section
7.04 after the Closing Date to the extent that such Investments were not made
in contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation;


 


(r)  Investments consisting of the contribution or
other transfer or real estate described on Schedule 7.02(r) and owned on the
Closing Date by a Native American Subsidiary to an Unrestricted Subsidiary or
joint venture or pursuant to a Native American Contract;


 


(s)  Permitted Land Loan Investments that are used
entirely to repay or prepay the outstanding principal amounts under the Land
Loan; and


 


(t)  Investments consisting of contributions to
the Land Loan Subsidiaries from time to time in an amount at any time not to
exceed the amount then necessary to replenish the interest reserve account
required to be maintained under the Land Loan Documents, which Investments
shall in no case exceed $30,000,000 in any calendar year.


 


provided that
no Investment in an Unrestricted Subsidiary that would otherwise be permitted
under this Section 7.02 shall be permitted hereunder to the extent that any
portion of such Investment is used to make any prepayments, redemptions,
purchases, defeasances and other payments in respect of Junior Financings.


 


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


 


(a)  Indebtedness of the Borrower and any of its
Subsidiaries under the Loan Documents;


 


(b)  Indebtedness outstanding on the date hereof
and listed on Schedule 7.03(b) and any Permitted Refinancing thereof;


 


(c)  Guarantees by the Borrower and the Restricted
Subsidiaries in respect of Indebtedness of the Borrower otherwise permitted
hereunder; provided that (A) no Guarantee by any
Restricted Subsidiary of any Existing Note or Junior Financing shall be
permitted unless such Restricted Subsidiary shall have also provided a
Guarantee of the Obligations substantially on the terms set forth in the
Subsidiary Guaranty and (B) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination of such Indebtedness;


 


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(d)  Indebtedness of the Borrower or any
Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary
to the extent constituting an Investment permitted by Section 7.02; provided that, all such Indebtedness of any Guarantor owed
to any Person that is not a Guarantor shall be subject to the subordination
terms set forth in Section 5.03 of the Security Agreement; provided
that any such Indebtedness shall be evidenced by a note and pledged to the
Administrative Agent for the benefit of the Secured Parties in accordance with
the Collateral Documents and Section 6.11;


 


(e)  (i) so long as immediately after giving
effect to the incurrence of any such Indebtedness, no Event of Default has
occurred and is continuing and the Borrower and the Restricted Subsidiaries
will be in Pro Forma Compliance with the covenants set forth in Section 7.11,
Capitalized Lease Indebtedness and other Indebtedness (including Capitalized
Leases) financing the acquisition, construction, repair, replacement or improvement
of fixed or capital assets; provided that
such Indebtedness is incurred concurrently with or within two hundred seventy
(270) days after the applicable acquisition, construction, repair, replacement
or improvement, (ii) Capitalized Lease Indebtedness arising out of
sale-leaseback transactions permitted by Section 7.05(f) and (iii) any
Permitted Refinancing of any Indebtedness set forth in the immediately
preceding clauses (i) and (ii); provided that
the aggregate principal amount of all Indebtedness permitted under clause (i)
of this Section 7.03(e) shall not exceed $50,000,000 at any time outstanding;


 


(f)  Indebtedness in respect of Swap
Contracts designed to hedge against interest rates, foreign exchange rates or
commodities pricing risks of the Borrower or its Subsidiaries incurred in the
ordinary course of business and not for speculative purposes;


 


(g)  Indebtedness of Restricted Subsidiaries or
Guarantors (i) assumed in connection with any Permitted Acquisition or (ii)
incurred to finance a Permitted Acquisition, in each case, that is secured only
by the assets or business acquired in the applicable Permitted Acquisition
(including any acquired Equity Interests) and so long as both immediately prior
and after giving effect thereto, (A) no Default shall exist or result
therefrom, (B) the Borrower and the Restricted Subsidiaries will be in Pro
Forma Compliance  with the covenants set forth in
Section 7.11, and (C) the aggregate principal amount of such Indebtedness
and all Indebtedness resulting from any Permitted Refinancing thereof at any
time outstanding pursuant to this paragraph (g) does not exceed $100,000,000;


 


(h)  (i) Indebtedness of the Borrower and the
Restricted Subsidiaries (A) assumed in connection with any Permitted
Acquisition; provided that such Indebtedness
is not incurred in contemplation of such Permitted Acquisition, or (B) incurred
to finance a Permitted Acquisition and (ii) any Permitted Refinancing of the
foregoing; provided, in each case that such
Indebtedness and all Indebtedness resulting from any Permitted Refinancing
thereof (v) is unsecured and is subordinated to the Obligations on terms no
less favorable to the Lenders than the subordination terms set forth in the
Existing Senior Subordinated Notes Indentures as of the Closing Date, (w) both
immediately prior and after giving effect thereto, (1) no Default shall exist
or result therefrom and (2) the Borrower and the Restricted Subsidiaries will
be in Pro Forma Compliance with the covenants set forth in Section 7.11,
(x) matures after, and does not require any scheduled amortization or other
scheduled payments of principal prior to, the Maturity Date (it being
understood that such Indebtedness may have mandatory prepayment, repurchase or
redemptions provisions satisfying the requirement of clause (y) hereof), (y)
has terms and conditions (other than interest rate, redemption premiums and
subordination terms), taken as a whole, that are not materially less favorable
to the Borrower as the terms and conditions of the Senior Subordinated Notes of
the Closing Date; provided that a certificate of a
Responsible


 


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Officer delivered to the
Administrative Agent at least five Business Days prior to the incurrence of
such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto, stating that the Borrower has determined in
good faith that such terms and conditions satisfy the foregoing requirement
shall be conclusive evidence that such terms and conditions satisfy the
foregoing requirement unless the Administrative Agent notifies the Borrower
within such five Business Day period that it disagrees with such determination
(including a reasonable description of the basis upon which it disagrees); and
(z) with respect to such Indebtedness described in the immediately preceding
clause (B), is incurred by the Borrower or a Guarantor.


 


(i)  Indebtedness representing deferred compensation
to employees of the Borrower and the Restricted Subsidiaries incurred in the
ordinary course of business;


 


(j)  Indebtedness consisting of promissory notes
issued by any Loan Party to current or former officers, directors and
employees, their respective estates, spouses or former spouses to finance the
purchase or redemption of Equity Interests of any of the Holding Companies
permitted by Section 7.06;


 


(k)  Indebtedness incurred by the Borrower or the
Restricted Subsidiaries in a Permitted Acquisition, any other Investment
expressly permitted hereunder or any Disposition, in each case, constituting
indemnification obligations or obligations in respect of purchase price or
other similar adjustments;


 


(l)  Indebtedness consisting of obligations of the
Borrower or the Restricted Subsidiaries under deferred compensation or other
similar arrangements incurred by such Person in connection with the Transaction
and Permitted Acquisitions or any other Investment expressly permitted
hereunder;


 


(m)  Cash Management Obligations and other
Indebtedness in respect of netting services, overdraft protections and similar
arrangements in each case in connection with deposit accounts;


 


(n)  Indebtedness in an aggregate principal amount
not to exceed $150,000,000 at any time outstanding;


 


(o)  Indebtedness consisting of (a) the financing
of insurance premiums or (b) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business;


 


(p)  Indebtedness incurred by the Borrower or any
of the Restricted Subsidiaries in respect of letters of credit, bank
guarantees, bankers’ acceptances or similar instruments issued or created in
the ordinary course of business, including in respect of workers compensation
claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement
obligations in respect thereof are reimbursed within 30 days following the
incurrence thereof;


 


(q)  obligations in respect of performance, bid,
appeal and surety bonds and performance and completion guarantees and similar
obligations provided by the Borrower or any of the Restricted Subsidiaries or
obligations in respect of letters of credit, bank guarantees or similar
instruments related thereto, in each case in the ordinary course of business or
consistent with past practice;


 


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(r)  Indebtedness supported by a Letter of Credit,
in a principal amount not to exceed the face amount of such Letter of Credit;


 


(s)  Permitted Subordinated Indebtedness;


 


(t)  all premiums (if any), interest (including
post-petition interest), fees, expenses, charges and additional or contingent
interest on obligations described in clauses (a) through (u) above;


 


(u)  Indebtedness or Guarantees consisting of
Support Agreements of Borrower and its Restricted Subsidiaries in amounts not
exceeding $200,000,000; and


 


(v)  Indebtedness pursuant to the corporate Head
Office Sale Leaseback Transaction.


 


SECTION 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 substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that:


 


(a)  any Restricted Subsidiary may merge with (i)
the Borrower; provided that (x) the Borrower
shall be the continuing or surviving Person and (y) such merger does not result
in the Borrower ceasing to be incorporated under the Laws of the United States,
any state thereof or the District of Columbia, or (ii) any one or more other
Restricted Subsidiaries; provided that
when any Restricted Subsidiary that is a Guarantor is merging with another
Restricted Subsidiary, a Guarantor shall be the continuing or surviving Person;


 


(b)  (i) any Subsidiary that is not a
Guarantor may merge or consolidate with or into any other Subsidiary that is
not a Guarantor (provided that (A) the
Borrower shall own, directly or indirectly, Equity Interests representing a
percentage of the aggregate ordinary voting power and aggregate equity value
represented by the issued and outstanding Equity Interests in such surviving
Subsidiary that is equal to or greater than the percentage of the aggregate
ordinary voting power and the aggregate equity value represented by the issued
and outstanding Equity Interests that were owned immediately prior to such
merger or consolidation, directly or indirectly, by the Borrower in such other
merged or consolidated Subsidiary, and (B) if any person other than the
Borrower or a Guarantor receives any consideration in connection with such
transaction, such transaction shall comply with the provisions of Section 7.02)
and (ii) any Subsidiary may liquidate or dissolve or change its legal form
(provided that (A) such transaction
shall not reduce the Borrower’s direct or indirect share of the aggregate
ordinary voting power and aggregate equity value in such Subsidiary,
(B) if such Subsidiary is a Guarantor it shall continue to be a Guarantor,
(C) the Borrower or Subsidiary shall comply with its obligations under
Section 6.14 in connection with such transaction and (D) such transaction
shall have been undertaken for a valid purpose (which includes the reduction of
taxes for direct or indirect owners of Equity Interests in the Borrower) and
shall not be disadvantageous to the Lenders in any manner);


 


(c)  any Restricted Subsidiary may Dispose of all
or substantially all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or to another Restricted Subsidiary; provided
that if the transferor in such a transaction is a Guarantor or the Borrower,
then (i) the transferee must either be the Borrower or a Guarantor or (ii) to
the extent constituting an Investment, such Investment must be a permitted
Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan
Party in accordance with Sections 7.02 and 7.03, respectively;


 


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(d)  so long as no Default exists or would result
therefrom, any Restricted Subsidiary may merge with any other Person in order
to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a
Restricted Subsidiary, which together with each of its Restricted Subsidiaries,
shall have complied with the requirements of Section 6.11;


 


(e)  the Borrower and the Restricted Subsidiaries
may consummate the Transaction;


 


(f)  Borrower may distribute, or cause to be
distributed, the Equity Interests of the CMBS Subsidiary to one or more of the
Holding Companies or their Affiliates.


 


(g)  so long as no Default exists or would result
therefrom, a merger, dissolution, liquidation, consolidation or Disposition,
the purpose of which is to effect a Disposition permitted pursuant to
Section 7.05;


 


provided that
in the case of clauses (a), (b) and (c) above, (x) the security interest of the
Administrative Agent in the property of such person formed by such merger or
consolidation (or such Person resulting from such change in corporate form)
shall be no less favorable than the security interest of the Administrative
Agent in the property of the Borrower or Subsidiary prior to such merger or
consolidation (or change in corporate form) and (y) the Guarantee by such
person formed by such merger or consolidation (or such Person resulting from
such change in corporate form) of the Obligations shall be no less favorable to
the Lenders than the Guarantees of the Obligations of the Subsidiary prior to
such merger or consolidation (or change in corporate form), in each case, as
reasonably determined by the Administrative Agent.


 


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


 


(a)  Dispositions of obsolete or worn out
property, whether now owned or hereafter acquired, in the ordinary course of
business and Dispositions of property no longer used or useful in the conduct
of the business of the Borrower and the Restricted Subsidiaries;


 


(b)  Dispositions of inventory (including cage
cash) and immaterial assets in the ordinary course of business;


 


(c)  Dispositions of property 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
promptly applied to the purchase price of such replacement property;


 


(d)  Dispositions of property to the Borrower or
to a Restricted Subsidiary; provided that
if the transferor of such property is a Guarantor or the Borrower (i) the
transferee thereof must either be the Borrower or a Guarantor or (ii) to the
extent such transaction constitutes an Investment, such transaction is permitted
under Section 7.02;


 


(e)  Dispositions permitted by Sections 7.04 and
7.06 and Permitted Liens;


 


(f)  the Casino Sale Leaseback Transaction and the
Corporate Head Office Sale Leaseback Transaction;


 


(g)  Dispositions of Cash Equivalents;


 


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(h)  leases, subleases, licenses or sublicenses,
in each case in the ordinary course of business and which do not materially
interfere with the business of the Borrower or the Restricted Subsidiaries;


 


(i)  transfers of property subject to Casualty
Events upon receipt of the Net Cash Proceeds of such Casualty Event;


 


(j)  Dispositions of property not otherwise
permitted under this Section 7.05; provided that
(i) at the time of such Disposition (other than any such Disposition made
pursuant to a legally binding commitment entered into at a time when no Default
exists), no Default shall exist or would result from such Disposition,
(ii) the aggregate fair market value of all property Disposed of in
reliance on this clause (j) shall not exceed $200,000,000 in the aggregate and
(iii) with respect to any Disposition pursuant to this clause (j) for a
purchase price in excess of $25,000,000, the Borrower or a Restricted
Subsidiary shall receive not less than 75% of such consideration in the form of
cash or Cash Equivalents (in each case, free and clear of all Liens at the time
received, other than nonconsensual Permitted Liens and Liens permitted by
Section 7.01(r) and clauses (i) and (ii) of Section 7.01(t)); provided, however, that
for the purposes of this clause (iii), each of the following shall be deemed to
be cash: (A) any liabilities (as shown on the Borrower’s or such Restricted
Subsidiary’s most recent balance sheet provided hereunder or in the footnotes
thereto) of the Borrower or such Restricted Subsidiary, other than liabilities
that are by their terms subordinated to the payment in cash of the Obligations,
that are assumed by the transferee with respect to the applicable Disposition
and for which the Borrower and all of the Restricted Subsidiaries shall have
been validly released by all applicable creditors in writing and (B) any
securities received by the Borrower or such Restricted Subsidiary from such
transferee that are converted by the Borrower or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days following the
closing of the applicable Disposition;


 


(k)  Dispositions listed on Schedule 7.05(k);


 


(l)  Dispositions of Real Property owned by Native
American Subsidiaries; and


 


(m)  Dispositions of Investments in joint ventures
to the extent required by, or made pursuant to customary buy/sell arrangements
between, the joint venture parties set forth in joint venture arrangements and
similar binding arrangements.


 


provided that (1) any Disposition of any property
pursuant to this Section 7.05 (except pursuant to Sections 7.05(e) and
except for Dispositions from a Guarantor to another Guarantor), shall be for no
less than the fair market value of such property at the time of such
Disposition and (2) in no case shall the Borrower or any Subsidiary be
permitted to effect a Disposition of Lake Mead Station, Inc., Fiesta Station,
Inc., Santa Fe Station, Inc., or Texas Station, LLC or a significant portion of
their respective properties other than in connection with the Corporate Head
Office Sale Leaseback Transaction. To the extent any Collateral is Disposed of
as expressly permitted by this Section 7.05 to any Person other than the
Borrower or any Restricted Subsidiary, such Collateral shall be sold free and
clear of the Liens created by the Loan Documents, and the Administrative Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.


 


SECTION 7.06. Restricted Payments.  Declare or make or agree to declare or make,
directly or indirectly, any Restricted Payment, or incur any obligations
(contingent or otherwise) to do so, except:


 


(a)  each Restricted Subsidiary may make
Restricted Payments to the Borrower and to other Restricted Subsidiaries and,
in the case of a Restricted Payment by a non-wholly owned Restricted


 


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Subsidiary, to the Borrower and any other Restricted Subsidiary and to
each other owner of Equity Interests of such Restricted Subsidiary based on
their relative ownership interests of the relevant class of Equity Interests;


 


(b)  the Borrower and each Restricted Subsidiary
may declare and make dividend payments or other distributions payable solely in
the Equity Interests (other than Disqualified Equity Interests not otherwise
permitted by Section 7.03) of such Person; provided that
to the extent required pursuant to the Collateral Documents, such Equity
Interests shall be pledged to the Administrative Agent and, in the case of a Restricted
Payment by a non-wholly owned Restricted Subsidiary, to the Borrower  and any other Restricted Subsidiary and to
each other owner of Equity Interests of such Restricted Subsidiary based on
their relative ownership interests of the relevant class of Equity Interests;


 


(c)  Restricted Payments made within 60 days after
the Closing Date to pay (or reimburse Persons for) fees, costs and expenses
incurred through the Closing Date to consummate the Transaction;


 


(d)  to the extent constituting Restricted
Payments, the Borrower and the Restricted Subsidiaries may enter into and
consummate transactions expressly permitted by any provision of
Section 7.04 or 7.08 other than Section 7.08(f);


 


(e)  the Borrower, after a Qualifying IPO (or
before a Qualifying IPO if approved in writing by the Required Lenders), may
pay (or make Restricted Payments to allow any direct or indirect parent thereof
to pay) for the repurchase, retirement or other acquisition or retirement for
value of Equity Interests of the Borrower by any future, present or former
employee or director of the Borrower or any of its Subsidiaries pursuant to any
employee or director equity plan, employee or director stock option plan or any
other employee or director benefit plan or any agreement (including any stock
subscription or shareholder agreement) with any employee or director of the
Borrower or any of its Subsidiaries;


 


(f)  the Borrower and its Restricted Subsidiaries
may make Restricted Payments to the Holding Companies:


 


(i)  if and to the extent that the Holding
Companies are required to pay taxes on the income generated by the Borrower and
its Subsidiaries, the proceeds of which will be used to pay (or to make
Restricted Payments to allow any direct or indirect parent of a Holding Company
to pay) the liability to each relevant jurisdiction in respect of such taxes;


 


(ii)  the proceeds of which shall be used by a
Holding Company to pay (or to make Restricted Payments to allow any direct or
indirect parent of such Holding Company to pay) the compensation of Frank
Fertitta or Lorenzo Fertitta in accordance with the employment contracts for
such persons in effect on the date hereof;


 


(iii)  the proceeds of which shall be used by a
Holding Company to pay franchise taxes and other fees, taxes and expenses
required to maintain its (or any of its direct or indirect parents’) corporate
existence; and


 


(iv)  of up to $25,000 per year, the proceeds of
which shall be used to by the Holding Companies to pay corporate overhead
expenses.


 


(g)  in addition to the foregoing Restricted
Payments and so long as no Default shall have occurred and be continuing or
would result therefrom, the Borrower may make additional Restricted Payments to
one or more of the Holding Companies in an aggregate amount, together with the
aggregate


 


102

















 


amount of loans and advances to one or more of the Holding Companies
made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by
this clause (g), not to exceed the sum of (i) $100,000,000, (ii) the aggregate
amount of the Net Cash Proceeds of Permitted Equity Issuances (other than
Permitted Equity Issuances made pursuant to Section 8.05) that are Not
Otherwise Applied and, and (iii) so long as (after giving Pro Forma Effect to
such additional Restricted Payments) the Borrower and its Restricted
Subsidiaries will be in Pro Forma Compliance with the covenants set forth in
Section 7.11, the sum of (x) 50% of Cumulative Excess Cash Flow, excluding
therefrom any amounts constituting the Available Distributions Amount, plus (y)
100% of the Available Distribution Amount, to the extent that such sum is Not
Otherwise Applied.


 


SECTION 7.07. Change in Nature of Business.  Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and the Restricted Subsidiaries on the date hereof or any business reasonably
related or ancillary thereto.


 


SECTION 7.08. Transactions with Affiliates.  Enter into any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than (a) transactions among Guarantor or any entity that
becomes a Guarantor as a result of such transaction, (b) on terms substantially
as favorable to the Borrower or such Guarantor as would be obtainable by the
Borrower or such Guarantor at the time in a comparable arm’s-length transaction
with a Person other than an Affiliate, (c) the payment of fees and expenses
related to the Transaction, (d) the issuance of Equity Interests to the
management of the Borrower or any of its Subsidiaries in connection with the
Transaction, (e) loans and other transactions by the Borrower and the
Restricted Subsidiaries to the extent permitted under this Article 7, (f)
employment and severance arrangements between the Borrower and the Restricted
Subsidiaries and their respective officers and employees in the ordinary course
of business, (g) payments by the Borrower (and any direct or indirect parent
thereof) and the Restricted Subsidiaries pursuant to the tax sharing agreements
among the Borrower (and any such parent thereof) and the Restricted
Subsidiaries on customary terms to the extent attributable to the ownership or
operation of the Borrower and the Restricted Subsidiaries, (h) the payment of
customary fees and reasonable out of pocket costs to, and indemnities provided
on behalf of, directors, officers and employees of the Borrower and the
Restricted Subsidiaries in the ordinary course of business to the extent
attributable to the ownership or operation of the Borrower and the Restricted
Subsidiaries, (j) transactions pursuant to permitted agreements in existence on
the Closing Date and set forth on Schedule 7.08 or any amendment thereto to the
extent such an amendment is not adverse to the Lenders in any material respect,
(k) dividends, redemptions and repurchases permitted under Section 7.06,
and (m) customary payments by the Borrower and any Restricted Subsidiaries to
the Holding Companies or the Equity Investors made for any financial advisory,
financing, underwriting or placement services or in respect of other investment
banking activities (including in connection with acquisitions or divestitures),
which payments are approved by the majority of the members of the board of
directors or a majority of the disinterested members of the board of directors
of the Borrower, in good faith.


 


SECTION 7.09. Burdensome Agreements.  Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that limits
the ability of (a) any Restricted Subsidiary of the Borrower to pay dividends
or other distributions with respect to any of its Equity Interests or to make
or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary or (b) the
Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on
property of such Person for the benefit of the Lenders with respect to the
Facilities and the Obligations or under the Loan Documents; provided that the foregoing clauses (a) and (b) shall not
apply to Contractual Obligations which (i) (x) exist on the date hereof and (to
the extent not otherwise permitted by this Section 7.09) are listed on
Schedule 7.09 and (y) to the extent Contractual Obligations permitted by clause
(x) are set forth in an agreement evidencing Indebtedness, are set forth in any
agreement evidencing any permitted renewal, extension or refinancing


 


103

















 


of such Indebtedness so long as such renewal, extension or refinancing
does not, in the reasonable opinion of the Administrative Agent, expand the
scope of such Contractual Obligation, (ii) are binding on a Restricted
Subsidiary at the time such Restricted Subsidiary first becomes a Restricted
Subsidiary of the Borrower, so long as such Contractual Obligations were not
entered into solely in contemplation of such Person becoming a Restricted
Subsidiary of the Borrower; provided, further, that this clause (ii) shall not apply to
Contractual Obligations that are binding on a Person that becomes a Restricted
Subsidiary pursuant to Section 6.14, (iii) represent Indebtedness of a
Restricted Subsidiary of the Borrower which is not a Loan Party which is
permitted by Section 7.03, (iv) arise in connection with any Disposition
permitted by Section 7.05, (v) subject to Section 6.13, are customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures permitted under Section 7.02 and applicable solely to
such joint venture entered into in the ordinary course of business, (vi) are
negative pledges and restrictions on Liens in favor of any holder of
Indebtedness permitted under Section 7.03 but solely to the extent any negative
pledge related to the property financed by or the subject of such Indebtedness
(and excluding in any event any Indebtedness constituting any Junior
Financing), (vii) are customary restrictions on leases, subleases, licenses or
asset sale agreements otherwise permitted hereby so long as such restrictions
relate to the assets subject thereto, (viii) comprise restrictions imposed by
any agreement relating to secured Indebtedness permitted pursuant to
Section 7.03(e) or 7.03(g) to the extent that such restrictions apply only
to the property or assets securing such Indebtedness or, in the case of
Indebtedness incurred pursuant to Section 7.03(g) only, to the Restricted
Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or any Restricted Subsidiary, (x) subject to
Section 6.13, are customary provisions restricting assignment of any agreement
entered into in the ordinary course of business, and (xi) are restrictions on
cash or other deposits imposed by customers under contracts entered into in the
ordinary course of business.


 


SECTION 7.10. Use of Proceeds.  Use the proceeds of any Credit Extension,
whether directly or indirectly, in a manner inconsistent with the uses set
forth in the preliminary statements to this Agreement; provided,
however, that no more than $260,000,000
of Revolving Credit Loans may be utilized for payment of the consideration for
the Acquisition and Transaction Expenses.


 


SECTION 7.11. Financial Covenants


 


(a)  Total Leverage Ratio.
Permit the Total Leverage Ratio as of the last day of any Test Period
(beginning with the Test Period ending on March 31, 2008) to be greater than
the ratio set forth below opposite the last day of such Test Period:


 


	
  Fiscal Year

  	
   

  	
  March 31

  	
   

  	
  June 30

  	
   

  	
  September 30

  	
   

  	
  December 31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  8.50:1.00

  	
   

  	
  8.25:1.00

  	
   

  	
  8.00:1.00

  	
   

  	
  7.75:1.00

  	
   

  
	
  2009

  	
   

  	
  7.50:1.00

  	
   

  	
  7.25:1.00

  	
   

  	
  7.00:1.00

  	
   

  	
  6.75:1.00

  	
   

  
	
  2010

  	
   

  	
  6.25:1.00

  	
   

  	
  6.00:1.00

  	
   

  	
  6.00:1.00

  	
   

  	
  6.00:1.00

  	
   

  
	
  2011

  	
   

  	
  5.75:1.00

  	
   

  	
  5.50:1.00

  	
   

  	
  5.50:1.00

  	
   

  	
  5.00:1.00

  	
   

  
	
  2012

  	
   

  	
  5.00:1.00

  	
   

  	
  5.00:1.00

  	
   

  	
  5.00:1.00

  	
   

  	
  5.00:1.00

  	
   

  
	
  2013

  	
   

  	
  5.00:1.00

  	
   

  	
  5.00:1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(b)  Senior Secured Leverage
Ratio. Permit the Senior Secured Leverage Ratio as of the last day
of any Test Period (beginning with the Test Period ending on March 31, 2008) to
be greater than the ratio set forth below opposite the last day of such Test
Period:


 


104

















 


	
  Fiscal Year

  	
   

  	
  March 31

  	
   

  	
  June 30

  	
   

  	
  September 30

  	
   

  	
  December 31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  2.25:1.00

  	
   

  	
  2.25:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2009

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2010

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2011

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2012

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2013

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(c)  Interest Coverage Ratio.
Permit the Interest Coverage Ratio for any Test Period (beginning with the Test
Period ending on March 31, 2008) to be less than the ratio set forth below
opposite the last day of such Test Period:


 


	
  Fiscal Year

  	
   

  	
  March 31

  	
   

  	
  June 30

  	
   

  	
  September 30

  	
   

  	
  December 31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  1.50:1.00

  	
   

  	
  1.50:1.00

  	
   

  	
  1.75:1.00

  	
   

  	
  1.75:1.00

  	
   

  
	
  2009

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  	
  2.00:1.00

  	
   

  
	
  2010

  	
   

  	
  2.25:1.00

  	
   

  	
  2.25:1.00

  	
   

  	
  2.25:1.00

  	
   

  	
  2.25:1.00

  	
   

  
	
  2011

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  
	
  2012

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  
	
  2013

  	
   

  	
  2.50:1.00

  	
   

  	
  2.50:1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


SECTION 7.12. Accounting Changes.  Make any change in fiscal year; provided, however, that
the Borrower may, upon written notice to the Administrative Agent, change its
fiscal year to any other fiscal year reasonably acceptable to the
Administrative Agent, in which case, the Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary to reflect such change in fiscal year.


 


SECTION 7.13. Prepayments, Etc. of Indebtedness.  (a) 
Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner (it being understood that payments of
regularly scheduled interest shall be permitted) the Existing Notes, any
subordinated Indebtedness incurred under Section 7.03(h) or any other
Indebtedness that is required to be subordinated to the Obligations pursuant to
the terms of the Loan Documents (collectively, “Junior
Financing”) or make any payment in violation of any subordination
terms of any Junior Financing Documentation, except (i) the refinancing
thereof with the Net Cash Proceeds of any Indebtedness (to the extent such
Indebtedness constitutes a Permitted Refinancing and, if applicable, is
permitted pursuant to Section 7.03(h)), to the extent not required to prepay
any Loans or Facility pursuant to Section 2.05(b), (ii) the
conversion of any Junior Financing to Equity Interests (other than Disqualified
Equity Interests) of any of the Holding Companies or any of its direct or
indirect parents, and (iii) the prepayment of Indebtedness of the Borrower or
any Restricted Subsidiary to the Borrower or any Loan Party to the extent
permitted by the Collateral Documents.


 


(b)  Amend, modify or change in any manner
materially adverse to the interests of the Lenders any term or condition of any
Junior Financing Documentation without the consent of the Joint Lead Arrangers.


 


(c)  Agree to (or vote in favor of) amending,
modifying or changing in any manner materially adverse to the interests of the
Lenders any term or condition of any Material Contract; it being acknowledged
and agreed by the parties hereto that any amendment or other modification which
would have the effect of (i) reducing any fees payable to the Borrower or any
Restricted Subsidiary under any Material Contract, (ii) shortening the term of
any Material Contract or (iii) allowing fees or other amounts


 


105

















 


under any Material Contract to be paid to Persons other than the
Borrower or a Restricted Subsidiary shall, in each case, be deemed to be
materially adverse to the interests of the Lenders.


 


(d)  (i) permit any waiver, supplement,
modification, amendment, termination or release of, or fail to enforce strictly
the terms and conditions of, any of the indemnities and licenses furnished to
the Holding Companies and their Affiliates and Subsidiaries pursuant to the
Acquisition Agreement except in the prudent conduct of the business of the
Borrower and the Subsidiaries or (ii) otherwise permit any waiver, supplement,
modification, amendment, termination or release of, or fail to enforce strictly
the terms and conditions of, any of the Acquisition Agreement except to the
extent that such waiver, supplement, modification, amendment, termination or
release or failure to enforce could not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 7.14. Equity Interests of the Borrower and Restricted
Subsidiaries.  Permit any Domestic
Subsidiary that is a Restricted Subsidiary to be a non-wholly owned Subsidiary,
except (i) as a result of or in connection with a dissolution, merger,
consolidation or Disposition of a Restricted Subsidiary permitted by
Section 7.04 or 7.05 or an Investment in any Person permitted under
Section 7.02 or (ii) so long as such Restricted Subsidiary continues to be a
Guarantor;


 


SECTION 7.15. The Holding Companies.  Permit any of the Holding Companies to
conduct, transact or otherwise engage in any business or operations other than
those incidental to (i) its ownership of the Equity Interests of the Borrower,
(ii) the maintenance of its legal existence, (iii) the performance of the Loan
Documents, the Acquisition Agreement and the other agreements contemplated by
the Acquisition Agreement, (iv) any public offering of its common stock or any
other issuance of its Equity Interests not prohibited by Article 7, and (v) any
transaction that such Holding Company is permitted to enter into or consummate
under this Article 7.


 


SECTION 7.16. Capital Expenditures.


 


(a)  Make any Capital Expenditure except for (i)
Capital Expenditures not exceeding, in the aggregate for the Borrower and the
Restricted Subsidiaries during each fiscal year, $85,000,000; provided that the amount of Capital Expenditures permitted
to be made in respect of any fiscal year shall be increased after the
consummation of any Permitted Acquisition in an amount equal to 10% of the pro
forma aggregate consolidated revenues of the Acquired Entity or Business so
acquired during the fiscal year of such Acquired Entity or Business beginning
after such Permitted Acquisition (such amount, the “Acquired Annual Capital Expenditure Amount”), (ii) so long as
Durango Station, Inc. is a Guarantor, $750,000,000 in the aggregate in respect
of the property being developed by Durango Station, Inc. and commonly referred
to as Durango Station, (iii) so long as Reno Land Holdings LLC is a Guarantor, $700,000,000
in the aggregate in respect of the property being developed by Reno Land
Holdings LLC and commonly referred to as the Reno Project, (iv) so long as
Centerline Holdings, LLC is a Guarantor, $90,000,000 in the aggregate in
respect of the property being developed by Centerline Holdings, LLC and
commonly referred to as the Castaways Project, (v) $20,000,000 in respect of
the Borrower’s corporate office building, (vi) $300,000,000 in the aggregate
with respect to all other Capital Expenditures related to new properties of the
Borrower and its Restricted Subsidiaries and (vii) Capital Expenditures made
with the proceeds of (A) Net Cash Proceeds of Permitted Equity Issuances (other
than Permitted Equity Issuances made pursuant to Section 8.05) that are Not
Otherwise Applied, and (B) so long as (after giving Pro Forma Effect to such
Capital Expenditures) the Borrower and its Restricted Subsidiaries will be in
Pro


 


 


 


106

















 


Forma Compliance with the covenants set forth in Section 7.11, the sum
of (x) 50% of Cumulative Excess Cash Flow, excluding therefrom any amounts
constituting the Available Distributions Amount, plus (y) 100% of the Available
Distribution Amount, to the extent that such sum is Not Otherwise Applied.


 


(b)  Notwithstanding anything to the contrary
contained in clause (a)(i) above, to the extent that the aggregate amount of
Capital Expenditures made by the Borrower and the Restricted Subsidiaries in
any fiscal year pursuant to Section 7.16(a)(i) is less than the maximum
amount of Capital Expenditures permitted by Section 7.16(a)(i) with respect to
such fiscal year, the amount of such difference (the “Rollover Amount”)  may be carried forward and used to make Capital Expenditures
in the next succeeding fiscal year; provided that
Capital Expenditures in any fiscal year shall be counted against the base
amount set forth in Section 7.16(a)(i) with respect to such fiscal year
after being counted against any Rollover Amount available with respect to such
fiscal year.


 


SECTION 7.17. Sale-Leaseback Transactions.  Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal or mixed, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred except (a)
to the extent that (i) the sale of such property is permitted by Section 7.05
and (ii) any Capitalized Leases or Liens arising in connection therewith
are permitted by Sections 7.01 and 7.03, respectively, (b) for the Casino Sale
Leaseback Transaction and (c) the Corporate Head Office Sale Leaseback Transaction.


 


ARTICLE VIII


 


Events Of Default and Remedies


 


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


 


(a)  Non-Payment.
The Borrower or any other Loan Party fails to pay, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise, (i) when and as required to be paid herein, any amount of
principal of any Loan, or (ii) within five (5) Business Days after the
same becomes due, any interest on any Loan or any other amount payable
hereunder or with respect to any other Loan Document; or


 


(b)  Specific Covenants.
The Borrower or any other Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.03(a) or 6.05(a) (solely with
respect to the Borrower) or Article 7; provided that
any Event of Default under Section 7.11 is subject to cure as contemplated
by Section 8.05; or


 


(c)  Other Defaults.
The Borrower or any other Loan Party fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days after notice thereof by the
Administrative Agent to the Borrower; or


 


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


 


107

















 


(e)  Cross-Default. Any
Loan Party or any other Restricted Subsidiary (i) fails to make any payment
beyond the applicable grace period with respect thereto, if any (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness (other than Indebtedness hereunder) having an
aggregate principal amount of not less than the Threshold Amount, or (ii) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness, or any other event occurs (other than, with respect to
Indebtedness consisting of Swap Contracts, termination events or equivalent
events pursuant to the terms of such Swap Contracts), the effect of which
default or other event is to cause, or to permit the holder or holders of such
Indebtedness (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 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; provided that this clause (e)(ii) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, if such sale or transfer is
permitted hereunder and under the documents providing for such Indebtedness; or


 


(f)  Insolvency Proceedings,
Etc. Any Loan Party or any of the Restricted 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, administrator, administrative receiver or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator,
administrator, administrative receiver or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for sixty (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 sixty (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 other Restricted
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts in excess of the Threshold Amount as they become due or makes
a general assignment for the benefit of its creditors, 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 the Loan Parties, taken as
a whole, and is not released, vacated or fully bonded within sixty (60) days
after its issue or levy; or


 


(h)  Judgments. There
is entered against any Loan Party or any Restricted Subsidiary a final judgment
or order for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer has been notified of such judgment or order
and has not denied coverage) and such judgment or order shall not have been
satisfied, vacated, discharged or stayed or bonded pending an appeal for a  period of sixty (60) consecutive days; 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 Loan
Party under Title IV of ERISA in an aggregate amount which could reasonably be
expected to result in a Material Adverse Effect, or (ii) any Loan Party 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 which could reasonably be expected to result in a Material Adverse
Effect; or


 


(j)  Invalidity of Loan
Documents. Any material provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or


 


108

















 


thereunder (including as a result of a transaction permitted under
Section 7.04 or 7.05) or as a result of acts or omissions by the
Administrative Agent or any Lender or the satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party contests
in writing the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies in writing that it has any or further liability
or obligation under any Loan Document (other than as a result of repayment in
full of the Obligations and termination of the Aggregate Commitments), or
purports in writing to revoke or rescind any Loan Document; or


 


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


 


(l)  Collateral Documents. (i)
Any Collateral Document after delivery thereof pursuant to Section 4.01 or
6.11 shall for any reason (other than pursuant to the terms thereof including
as a result of a transaction permitted under Section 7.04 or 7.05) cease
to create a valid and perfected lien, with the priority required by the
Collateral Documents, (or other security purported to be created on the
applicable Collateral) on and security interest in any material portion of the Collateral
purported to be covered thereby, subject to Permitted Liens, except to the
extent that any such loss of perfection or priority results from the failure of
the Administrative Agent to maintain possession of certificates actually
delivered to it representing securities pledged under the Collateral Documents
or to file Uniform Commercial Code continuation statements, or (ii) any of the
Equity Interests of the Borrower or any other Loan Party ceasing to be pledged
pursuant to the Security Agreement free of Liens other than Liens created by
the Security Agreement or any nonconsensual Liens arising solely by operation
of Law; or


 


(m)  Junior Financing
Documentation. (i) Any of the Obligations of the Loan Parties under
the Loan Documents for any reason shall cease to be “Senior Indebtedness” (or
any comparable term) or “Senior Secured Financing” (or any comparable term)
under, and as defined in any Junior Financing Documentation or (ii) the
subordination provisions set forth in any Junior Financing Documentation shall,
in whole or in part, cease to be effective or cease to be legally valid,
binding and enforceable against the holders of any Junior Financing, if
applicable; or


 


(n)  Loss or Revocation of
Casino License. Any Casino License (or the aggregate number of
licenses in the case of clause (ii) of the definition of “Casino Licenses”) for
any Core Property is revoked, suspended, rescinded, denied or not renewed when
required in accordance with its terms and as a result the casino or casinos
governed thereby are not able to operate for a period of three (3) or more
days; or


 


(o)  Amendment or Termination
of Material Contracts. Any Material Contract shall, in whole or in
part, be amended, supplemented, modified, terminated (other than upon the
expiration of the term thereof), cease to be effective or cease to be the
legally valid, binding and enforceable obligation in any material respect of
any party thereto, in each case if the effect of such amendment, supplement,
modification, termination or other action, could reasonably be expected to have
a Material Adverse Effect.


 


SECTION 8.02. Remedies Upon Event of Default.  If any Event of Default occurs and is
continuing, the Administrative Agent may and, at the request of the Required
Lenders, shall 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 Issuers 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


 


109

















 


be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower;


 


(c)  require that the Borrower 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 or applicable Law;


 


provided that upon the occurrence of any event
described in Section 8.01(f) (subject to Section 8.03) or actual or deemed
entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuers 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 Borrower 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.


 


SECTION 8.03. Exclusion of Immaterial Subsidiaries.  Solely for the purpose of determining whether
a Default has occurred under clause (e), (f), (g) or (h) of Section 8.01,
any reference in any such clause to any Restricted Subsidiary or Loan Party
shall be deemed not to include any Immaterial Subsidiary.


 


SECTION 8.04. 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:


 


First, to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (other than principal and interest, but including
Attorney Costs payable under Section 10.04 and amounts payable under
Article 3) 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 and interest) payable to the Secured
Parties (including Attorney Costs payable under Section 10.05 and amounts
payable under Article 3), ratably among them in proportion to the amounts
described in this clause Second
payable to them;


 


Third, to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Secured Parties 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, the termination value under Secured Hedge Obligations
and the Cash Management Obligations, ratably among the Lenders 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 Issuers, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit;


 


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Sixth, to the
payment of all other Obligations of the Loan Parties that are due and payable
to the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to
the Administrative Agent and the other Secured Parties on such date; and


 


Last, the
balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower 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 and, if
no Obligations remain outstanding, to the Borrower.


 


SECTION 8.05. Borrower’s Right to Cure.  Notwithstanding anything to the contrary
contained in Section 8.01, in the event of any Event of Default under any
covenant set forth in Section 7.11 and until the expiration of the tenth
(10th) day after the date on which financial statements are required
to be delivered with respect to the applicable fiscal quarter hereunder, the
Borrower may engage in a Permitted Equity Issuance to any of the Equity
Investors and apply the amount of the Net Cash Proceeds thereof to increase
Consolidated EBITDA with respect to such applicable quarter; provided that such Net Cash Proceeds (i) are actually
received by the Borrower (including through capital contribution of such Net
Cash Proceeds by the Holding Companies to the Borrower) no later than ten (10)
days after the date on which financial statements are required to be delivered
with respect to such fiscal quarter hereunder and (ii) do not exceed the
aggregate amount necessary to cure such Event of Default under
Section 7.11 for any applicable period; provided,
further, that the Borrower shall not be
permitted to engage in any more than two Permitted Equity Issuances in any
consecutive four fiscal-quarter period in reliance on this Section 8.05. The
parties hereby acknowledge that this Section 8.05(a) may not be relied on
for purposes of calculating any financial ratios other than as applicable to
Section 7.11 and shall not result in any adjustment to any amounts other
than the amount of the Consolidated EBITDA referred to in the immediately
preceding sentence.


 


(a)  In each period of four fiscal quarters, there
shall be at least two (2)  consecutive
fiscal quarters in which no cure set forth in Section 8.05(a) is made.


 


ARTICLE IX


 


Administrative Agent and Other Agents


 


SECTION 9.01. Appointment and Authorization of Agents.  Each Lender hereby irrevocably appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall have no duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be
deemed to have any fiduciary relationship with any Lender or participant, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term “agent” herein and in
the other Loan Documents with reference to any Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such


 


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term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent
contracting parties.


 


(a)  Each 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 each such L/C Issuer shall have all of the benefits
and immunities (i) provided to the Agents in this Article 9 with respect to any
acts taken or omissions suffered by such L/C Issuer in connection with Letters
of Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term “Agent” as used in this Article 9 and in the definition of
“Agent-Related Person” included such L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to such L/C
Issuer.


 


(b)  The Administrative Agent shall also act as
the “collateral agent” under the Loan Documents, and each of the Lenders (in
its capacities as a Lender, Swing Line Lender (if applicable), L/C Issuer (if
applicable) and a potential Hedge Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of (and to hold any
security interest created by the Collateral Documents for and on behalf of or
on trust for) such Lender for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of
the Secured Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as
“collateral agent” (and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.02 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article 9 (including,
Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact
were the “collateral agent” under the Loan Documents) as if set forth in full
herein with respect thereto.


 


SECTION 9.02. Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights and
remedies thereunder) by or through agents, employees or attorneys-in-fact
including for the purpose of any Borrowings, such sub-agents as shall be deemed
necessary by the Administrative Agent and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or sub-agent or attorney-in-fact that it
selects in the absence of gross negligence or willful misconduct (as determined
in the final judgment of a court of competent jurisdiction).


 


SECTION 9.03. Liability of Agents.  No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct,
as determined by the final judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof, contained
herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the perfection or
priority of any Lien or security interest created or purported to be created
under the Collateral Documents, or for any failure of any Loan Party or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or


 


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participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party or any Affiliate thereof.


 


SECTION 9.04. Reliance by Agents.  Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by such
Agent. Each Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.


 


(a)  For purposes of determining compliance with
the conditions specified in 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 by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.


 


SECTION 9.05. Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a “notice of default.” The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take such
action with respect to any Event of Default as may be directed by the Required
Lenders in accordance with Article 8; provided that
unless and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default as it
shall deem advisable or in the best interest of the Lenders.


 


SECTION 9.06. Credit Decision; Disclosure of Information by Agents.
 Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by any Agent hereafter taken, including any consent to and acceptance of
any assignment or review of the affairs of any Loan Party or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession.
Each Lender represents to each Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower and the other Loan Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis,


 


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appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrower and the
other Loan Parties. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by any Agent herein, such Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Loan Parties or
any of their respective Affiliates which may come into the possession of any
Agent-Related Person.


 


SECTION 9.07. Indemnification of Agents.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent, the Supplemental Administrative Agents (if any) and, to
the extent of any determinations required to be made under the Loan Documents
(including determinations pursuant to Sections 2.14, 4.01, 5.05(ii) and 7.13(b)
of this Agreement) each Joint Lead Arranger and, in each such case, their
respective Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons (to the extent not reimbursed by or on behalf
of any Loan Party and without limiting the obligation of any Loan Party to do
so), pro rata, and hold harmless each such Person from and against any and all
Indemnified Liabilities incurred by it in exercising the powers, rights and
remedies of the Administrative Agent or the Supplemental Administrative Agents
(if any) or performing duties of the Administrative Agent or the Supplemental
Administrative Agents (if any) hereunder or under the other Loan Documents or
otherwise in its capacity of the Administrative Agent or the Supplemental
Administrative Agents (if any) or, in the case of the Joint Lead Arrangers
their respective Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of the Joint Lead Arrangers, any and all Indemnified
Liabilities incurred by it in making any determinations of the Joint Lead
Arrangers as described above; provided that
no Lender shall be liable for the payment to any such Person of any portion of
such Indemnified Liabilities resulting from such Person’s own gross negligence
or willful misconduct, as determined by the final judgment of a court of
competent jurisdiction; provided that
no action taken in accordance with the directions of the Required Lenders (or
such other number or percentage of the Lenders as shall be required by the Loan
Documents) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section 9.07. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07
applies whether any such investigation, litigation or proceeding is brought by
any Lender or any other Person. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrower. The undertaking in this Section 9.07 shall
survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.


 


SECTION 9.08. Agents in their Individual Capacities.  DBTCA and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
Equity Interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Loan
Parties and their respective Affiliates as though DBTCA were not the
Administrative Agent or an L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, DBTCA or its Affiliates may receive information regarding any Loan
Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, DBTCA shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and


 


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powers as though it were not the Administrative Agent or an L/C Issuer,
and the terms “Lender” and “Lenders” include DBTCA in its individual capacity.


 


SECTION 9.09. Successor Agents.  The Administrative Agent may resign as the
Administrative Agent upon thirty (30) days’ notice to the Lenders and the
Borrower. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be consented to by the Borrower at all
times other than during the existence of an Event of Default under
Section 8.01(f) or (g) (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, the Person acting as such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term “Administrative Agent,” shall mean such
successor administrative agent and/or supplemental administrative agent, as the
case may be, and the retiring Administrative Agent’s appointment, powers and
duties as the Administrative Agent shall be terminated. After the retiring
Administrative Agent’s resignation hereunder as the Administrative Agent, the
provisions of this Article 9 and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as the Administrative Agent by the date which is thirty (30) days
following the retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Upon the acceptance of any appointment
as the Administrative Agent hereunder by a successor and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to (a) continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents or (b) otherwise ensure
that the Collateral and Guarantee Requirement is satisfied, the Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After the retiring Administrative Agent’s
resignation hereunder as the Administrative Agent, the provisions of this
Article 9 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the
Administrative Agent.


 


SECTION 9.10. 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 payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise:


 


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


 


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


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Agents and their respective 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 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.


 


SECTION 9.11. Collateral and Guaranty Matters.  The
Lenders irrevocably agree:


 


(a)  that any Lien on any property granted to or
held by the Administrative Agent under any Loan Document shall be automatically
released (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than (x) obligations under Secured Hedge
Agreements not yet due and payable, (y) Cash Management Obligations not yet due
and payable and (z) contingent indemnification obligations not yet accrued and
payable) and the expiration or termination of all Letters of Credit,
(ii) at the time the property subject to such Lien is transferred or to be
transferred as part of or in connection with any transfer permitted hereunder
or under any other Loan Document to any Person other than the Borrower or any
of its Domestic Subsidiaries that are Restricted Subsidiaries,
(iii) subject to Section 10.01, if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders, or (iv) if the
property subject to such Lien is owned by a Guarantor, upon release of such
Guarantor from its obligations under its Guaranty pursuant to clause (c) below;


 


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


 


(c)  that any Guarantor shall be automatically
released from its obligations under the Guaranty if such Person ceases to be a
Restricted Subsidiary as a result of a transaction or designation permitted
hereunder; provided that no such release shall
occur if such Guarantor continues to be a guarantor in respect of the Existing
Notes or any Junior Financing.


 


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 9.11. In each case
as specified in this Section 9.11, the Administrative Agent will (and each
Lender irrevocably authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as
such Loan Party may reasonably request to evidence the release or subordination
of such item of Collateral from the assignment and security interest granted
under the Collateral Documents, or to evidence the release of such Guarantor
from its obligations under the Guaranty, in each case in accordance with the
terms of the Loan Documents and this Section 9.11.


 


SECTION 9.12. Other Agents; Joint Lead Arrangers and Managers.  None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a


 


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“syndication agent”, “joint bookrunner” or “joint lead arranger” shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.


 


SECTION 9.13. Appointment of Supplemental Administrative Agents.
 (a) 
It is the purpose of this Agreement and the other Loan Documents that
there shall be no violation of any Law of any jurisdiction denying or
restricting the right of banking corporations or associations to transact
business as agent or trustee in such jurisdiction. It is recognized that in
case of litigation under this Agreement or any of the other Loan Documents, and
in particular in case of the enforcement of any of the Loan Documents, or in
case the Administrative Agent deems that by reason of any present or future Law
of any jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, the Administrative
Agent is hereby authorized to appoint an additional individual or institution
selected by the Administrative Agent in its sole discretion as a separate
trustee, co-trustee, administrative agent, collateral agent, administrative
sub-agent or administrative co-agent (any such additional individual or
institution being referred to herein individually as a “Supplemental
Administrative Agent” and collectively as “Supplemental
Administrative Agents”).


 


(a)  In the event that the Administrative Agent
appoints a Supplemental Administrative Agent with respect to any Collateral,
(i) each and every right, power, privilege or duty expressed or intended by
this Agreement or any of the other Loan Documents to be exercised by or vested
in or conveyed to the Administrative Agent with respect to such Collateral
shall be exercisable by and vest in such Supplemental Administrative Agent to
the extent, and only to the extent, necessary to enable such Supplemental
Administrative Agent to exercise such rights, powers and privileges with
respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Administrative Agent shall run to and be enforceable by either the
Administrative Agent or such Supplemental Administrative Agent, and (ii) the
provisions of this Article 9 and of Sections 10.04 and 10.05 that refer to the
Administrative Agent shall inure to the benefit of such Supplemental
Administrative Agent and all references therein to the Administrative Agent
shall be deemed to be references to the Administrative Agent and/or such
Supplemental Administrative Agent, as the context may require.


 


(b)  Should any instrument in writing from the
Borrower, or any other Loan Party be required by any Supplemental
Administrative Agent so appointed by the Administrative Agent for more fully
and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, the Borrower shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by the Administrative Agent. In case any Supplemental Administrative Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Administrative Agent, to the extent permitted by Law, shall vest in and be
exercised by the Administrative Agent until the appointment of a new
Supplemental Administrative Agent.


 


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ARTICLE X


 


Miscellaneous


 


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


 


(a)  extend or increase the Commitment of any
Lender without the written consent of each Lender directly affected thereby (it
being understood that a waiver of any condition precedent set forth in
Section 4.02 or the waiver of any Default, mandatory prepayment or
mandatory reduction of the Commitments shall not constitute an extension or
increase of any Commitment of any Lender);


 


(b)  postpone any date scheduled for, or reduce
the amount of, or subordinate any payment of principal or interest under
Section 2.07 or 2.08 or any fees (including fees set forth in Section
2.05(d)) without the written consent of each Lender directly affected thereby,
it being understood that the waiver of (or amendment to the terms of) any
mandatory prepayment of the Term Loans shall not constitute a postponement of
any date scheduled for the payment of principal or interest;


 


(c)  reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause
(iii) of the second proviso to this Section 10.01) any fees (including
fees set forth in Section 2.05(d)) or other amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby, it being understood that any change to the definition of
Total Leverage Ratio or in the component definitions thereof shall not
constitute a reduction in the rate; provided that,
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest at the Default Rate;


 


(d)  change any provision of this
Section 10.01, the definition of “Required Lenders” or “Pro Rata Share” or
Section 2.06(b), 8.04 or 2.13 without the written consent of all Lenders;


 


(e)  other than in a transaction permitted under
Section 7.05, release all or a substantial portion of the Collateral in
any transaction or series of related transactions, without the written consent
of each Lender; or


 


(f)  other than in connection with a transaction
permitted under Section 7.04 or 7.05, release all or a substantial portion
of the aggregate value of the Guarantees, without the written consent of each
Lender;


 


and provided
further that (i) no amendment, waiver or consent shall, unless
in writing and signed by each L/C Issuer in addition to the Lenders required
above, affect the rights or duties of an L/C Issuer under this Agreement or any
Letter of Credit Application relating to any Letter of Credit issued or to be
issued by it; (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, or any fees or other amounts payable to,
the Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.07(h) may not be amended, waived or otherwise modified without
the consent


 


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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 consent of Lenders holding
more than 50% of any Class of Commitments (or, in the event such Lenders
constitute less than three Lenders (and three or more Lenders holding such
Class of Commitments (other than Defaulting Lenders) then exist), the consent
of such Lenders plus a number of additional Lenders (that are not Defaulting
Lenders) holding such Class of Commitments so that the consent of not less than
three Lenders holding such Class of Commitments is obtained) shall be required
with respect to any amendment that (x) waives any condition precedent set forth
in Section 4.02 solely with respect to the making of Loans or other extensions
of credit by such Class (it being understood that a general waiver of a Default
or an Event of Default by the Required Lenders, as opposed to a waiver only for
the purposes of making Loans or other extensions of credit, shall not
constitute a waiver of a condition precedent governed under this clause) or (y)
by its terms adversely affects the rights of such Class in respect of payments
hereunder in a manner different than such amendment affects other Classes.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender (it being understood that any
Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of the
Lenders).


 


Notwithstanding the
foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
the Revolving Credit Loans and the accrued interest and fees in respect thereof
and (b) to include appropriately the Lenders holding such credit facilities in
any determination of the Required Lenders.


 


Notwithstanding anything to
the contrary contained in Section 10.01, guarantees, collateral security
documents and related documents executed by Foreign Subsidiaries in connection
with this Agreement may be in a form reasonably determined by the
Administrative Agent and may be, together with this Agreement, amended and
waived with the consent of the Administrative Agent at the request of the
Borrower without the need to obtain the consent of any other Lender if such
amendment or waiver is delivered in order (i) to comply with local Law or
advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause
such guarantee, collateral security document or other document to be consistent
with this Agreement and the other Loan Documents.


 


SECTION 10.02. Notices and Other Communications; Facsimile Copies.
General. Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder or
under any other Loan Document shall be in writing (including by facsimile
transmission). All such written notices shall be mailed, faxed or delivered to
the applicable address, facsimile number or electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:


 


(i)  if to the Borrower, the Administrative Agent,
an L/C Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the other parties; and


 


(ii)  if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such


 


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party in a notice to the
Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lender.


 


All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the relevant party hereto and (ii) (A) if delivered by
hand or by courier, when signed for by or on behalf of the relevant party
hereto; (B) if delivered by mail, four (4) Business Days after deposit in the
mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt
has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of Section 10.02(c)), when
delivered; provided that notices and other
communications to the Administrative Agent, the L/C Issuers and the Swing Line
Lender pursuant to Article 2 shall not be effective until actually received by
such Person. In no event shall a voice mail message be effective as a notice,
communication or confirmation hereunder.


 


(b)  Effectiveness of Facsimile
Documents and Signatures. Loan Documents may be transmitted and/or
signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually
signed originals and shall be binding on all Loan Parties, the Agents and the
Lenders.


 


(c)  Reliance by Agents and
Lenders. The Administrative Agent 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 Borrower
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 Borrower shall indemnify
each Agent-Related Person and each Lender 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 Borrower in the absence of gross
negligence or willful misconduct. All telephonic notices to the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.


 


SECTION 10.03. No Waiver; Cumulative Remedies. No failure by any
Lender or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document 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, and provided under each other Loan Document, are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by Law.


 


SECTION 10.04. Attorney Costs, Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent, the Syndication Agent,
the Co-Documentation Agents and the Joint Lead Arrangers for all reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation, syndication and execution of this Agreement and the other Loan
Documents, and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs of
Latham & Watkins LLP, and (b) to pay or reimburse the Administrative Agent,
the Syndication Agent, the Co-Documentation Agents, the Joint Lead Arrangers
and each Lender for all out-of-pocket costs and expenses incurred in connection
with the enforcement of any rights or remedies under this Agreement or the
other Loan Documents (including all such costs and expenses incurred during any
legal proceeding, including any proceeding under any Debtor Relief Law, and
including all Attorney Costs of counsel to the Administrative Agent). The
foregoing costs and expenses shall include all reasonable search, filing,
recording and title insurance charges and fees and taxes related thereto, and
other (reasonable, in the case 


 


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of Section 10.04(a)) out-of-pocket expenses incurred by any Agent.
The agreements in this Section 10.04 shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations. All amounts due
under this Section 10.04 shall be paid within ten (10) Business Days of receipt
by the Borrower of an invoice relating thereto setting forth such expenses in
reasonable detail. If any Loan Party fails to pay when due any costs, expenses
or other amounts payable by it hereunder or under any Loan Document, such
amount may be paid on behalf of such Loan Party by the Administrative
Agent  in its sole discretion.


 


SECTION 10.05. Indemnification by the Borrower. Whether or not
the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents,
trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of
or in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by an 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), or (c)
any actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related in
any way to the Borrower, any Subsidiary or any other Loan Party, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements resulted from the
gross negligence or willful misconduct of such Indemnitee or of any affiliate,
director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee,
in each case as determined by a final, non-appealable judgment. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee or any Loan Party have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an investigation,
litigation or other proceeding to which the indemnity in this
Section 10.05 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
directors, stockholders or creditors or an Indemnitee or any other Person,
whether or not any Indemnitee is otherwise a party thereto and whether or not
any of the transactions contemplated hereunder or under any of the other Loan
Documents is consummated. All amounts due under this Section 10.05 shall
be paid within ten (10) Business Days after demand therefor; provided, however, that
such Indemnitee shall promptly refund such amount to the extent that there is a
final judicial or arbitral determination that such Indemnitee was not entitled
to indemnification or contribution rights with respect to such payment pursuant
to the express terms of this Section 10.05. To the extent that the undertakings
to defend, indemnify, pay and hold harmless set forth in this Section 10.05 may
be unenforceable in whole or in part because they are violative of any Law or
public policy, the Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable


 


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law to the payment and satisfaction of all indemnified liabilities
incurred by any Indemnitee. The agreements in this Section 10.05 shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


SECTION 10.06. Payments Set Aside. To the extent that any
payment by or on behalf of the Borrower is made to any Agent or any Lender, or
any Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by any
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.


 


SECTION 10.07. Successors and Assigns.


 


(a)  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 the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee, (ii) by way of participation in accordance with the
provisions of Section 10.07(e), (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 10.07(g) or (iv)
to an SPC in accordance with the provisions of Section 10.07(h) (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
Section 10.07(e) and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)  (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees (other than to Disqualified
Institutions) (“Assignees”) all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
Section 10.07(b), participations in L/C Obligations and in Swing Line
Loans) at the time owing to it) with the prior written consent (such consent
not to be unreasonably withheld) of:


 


(A)  the Borrower; provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,
if an Event of Default has occurred and is continuing, any Assignee;


 


(B)  the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of a Term Loan to a
Lender or an Affiliate of a Lender and no consent of the Administrative Agent
shall be required for an assignment to an Agent or an Affiliate of an Agent;


 


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(C)  each Principal L/C Issuer at the time of such
assignment; provided that no
consent of the Principal L/C Issuers shall be required for any assignment to an
Agent or an Affiliate of an Agent; and


 


(D)  the Swing Line Lender; provided that no consent of the Swing Line
Lender shall be required for any assignment to an Agent or an Affiliate of an
Agent.


 


(ii)  Assignments shall be subject to the following
additional conditions:


 


(A)  except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans of any Class, the amount
of the Commitment or 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) shall not
be less than $1,000,000 unless each of the Borrower and the Administrative
Agent otherwise consents; provided
that (1) no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing and (2) such amounts shall be aggregated
in respect of each Lender and its Affiliates or Approved Funds, if any;


 


(B)  the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; and


 


(C)  the Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire;


 


(D)  none of the Holding Companies, any direct or
indirect holder of the Equity Interest in any Holding Company, the Borrower,
any Affiliate of the Borrower or any Person that has been denied an approval or
a license, or otherwise found unsuitable, under the Laws related to racing,
riverboat and/or casino gaming operations in any relevant jurisdiction
applicable to the Lenders shall be an Eligible Assignee.


 


This paragraph (b) shall not
prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis.


 


(c)  Subject to acceptance and recording thereof
by the Administrative Agent pursuant to Section 10.07(d), 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, 10.04 and 10.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, and
the surrender by the assigning Lender of its Note, the Borrower (at its
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 clause (c) 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 Section 10.07(e).


 


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(d)  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, 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 (and related interest amounts) of the
Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings
and amounts due under Section 2.03, owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, absent manifest error, and the
Borrower, the Agents and the Lenders shall 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 the Borrower, any Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(e)  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person) (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 Borrower, the Agents and the other Lenders 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 the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or the other Loan Documents; 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 directly
affects such Participant. Subject to Section 10.07(f), the Borrower agrees
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 Section 10.07(c) but shall not be
entitled to recover greater amounts under such Sections than the selling Lender
would be entitled to recover unless the sale of such participation was made
with Borrower’s prior consent. To the extent permitted by applicable Law, each
Participant also shall be entitled to the benefits of Section 10.09 as
though it were a Lender; provided that such
Participant agrees to be subject to Section 2.13 as though it were a
Lender.


 


(f)  A Participant shall not be entitled to
receive any greater payment under Section 3.01, 3.04 or 3.05 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 Borrower’s prior written consent. A
Participant shall not be entitled to the benefits of Section 3.01 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 10.15 as though it were a Lender.


 


(g)  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.


 


(h)  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 Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this


 


124

















 


Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. 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 Borrower under this Agreement (including its obligations
under Section 3.01, 3.04 or 3.05), (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 Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Borrower and the
Administrative Agent and with the payment of a processing fee of $3,500, assign
all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


(i)  Notwithstanding anything to the contrary
contained herein, (1) any Lender may in accordance with applicable Law create a
security interest in all or any portion of the Loans owing to it and the Note,
if any, held by it and (2) any Lender that is a Fund may create a security
interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes
a Lender in compliance with the other provisions of this Section 10.07,
(i) no such pledge shall release the pledging Lender from any of its
obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents
even though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.


 


(j)  Notwithstanding anything to the contrary
contained herein, any L/C Issuer or the Swing Line Lender may, upon thirty (30)
days’ notice to the Borrower and the Lenders, resign as an L/C Issuer or the
Swing Line Lender, respectively; provided that
on or prior to the expiration of such 30-day period with respect to such
resignation, the relevant L/C Issuer or the Swing Line Lender shall have
identified a successor L/C Issuer or Swing Line Lender reasonably acceptable to
the Borrower willing to accept its appointment as successor L/C Issuer or Swing
Line Lender, as applicable. In the event of any such resignation of an L/C
Issuer or the Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders willing to accept such appointment a successor L/C Issuer or
Swing Line Lender hereunder; provided that
no failure by the Borrower to appoint any such successor shall affect the
resignation of the relevant L/C Issuer or the Swing Line Lender, as the case
may be, except as expressly provided above. If an L/C Issuer resigns as an L/C
Issuer, it shall retain all the rights and obligations of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). If the Swing Line Lender resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c).


 


(k)  Notwithstanding anything to the contrary contained
herein, no Assignee shall have recourse to the provisions of Sections 3.01 and
3.05 if the condition upon which such recourse is based was in existence at the
time of the applicable assignment under this Section 10.07.


 


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SECTION 10.08. Confidentiality. Each of the Agents and the
Lenders agrees to use commercially reasonable efforts (equivalent to the
efforts each such Person applies to maintain the confidentiality of its own
confidential information) to maintain the confidentiality of the Information,
except that Information may be disclosed (a) to its Affiliates and its and its
Affiliates’ directors, officers, employees, trustees, investment advisors and
agents, including accountants, legal counsel and other advisors (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 Governmental
Authority; (c) to the extent required by applicable Laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this
Agreement; (e) subject to an agreement containing provisions substantially the
same as those of this Section 10.08 (or as may otherwise be reasonably
acceptable to the Borrower), to any pledgee referred to in Section 10.07(g),
counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement; (f) with the written consent of the
Borrower; (g) to the extent such Information becomes publicly available other
than as a result of a breach of this Section 10.08; (h) to any
Governmental Authority or examiner (including the National Association of
Insurance Commissioners or any other similar organization) regulating any
Lender; (i) in connection with the exercise of any remedies hereunder or under
the other Loan Documents or any suit, action or proceeding relating to the
enforcement of its rights hereunder or thereunder or (j) to any rating
agency when required by it (it being understood that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Information relating to the Loan Parties received by it from such
Lender). In addition, the Agents and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Agents and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions. For the purposes of this Section 10.08, “Information”
means all information received from any Loan Party relating to any Loan Party
or its business, other than any such information that is publicly available to
any Agent or any Lender prior to disclosure by any Loan Party other than as a
result of a breach of this Section 10.08; provided
that, in the case of information received from a Loan Party after the date
hereof, such information is clearly identified at the time of delivery as
confidential or (ii) is delivered pursuant to Section 6.01, 6.02 or 6.03
hereof.


 


SECTION 10.09. Setoff. In addition to any rights and remedies of
the Lenders provided by Law, upon the occurrence and during the continuance of
any Event of Default, each Lender and its Affiliates is authorized at any time
and from time to time, without prior notice to the Borrower or any other Loan
Party, any such notice being waived by the Borrower (on its own behalf and on
behalf of each Loan Party and its Subsidiaries) 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) at any time held by, and other
Indebtedness at any time owing by, such Lender and its Affiliates to or for the
credit or the account of the respective Loan Parties and their Subsidiaries
against any and all Obligations owing to such Lender and its Affiliates
hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not such Agent or such Lender or Affiliate shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set off and application made by such Lender; provided,
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of the Administrative Agent and each Lender
under this Section 10.09 are in addition to other rights and remedies
(including other rights of setoff) that the Administrative Agent and such
Lender may have.


 


SECTION 10.10. 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


 


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(collectively, the “Charges”) shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”). If any 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 Borrower. In determining whether
the interest contracted for, charged, or received by an 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. To the extent permitted by
applicable Law, the interest and other Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section 10.10 shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender. Thereafter, interest hereunder shall be paid at the
rate(s) of interest and in the manner provided in this Agreement, unless and
until the rate of interest again exceeds the Maximum Rate, and at that time
this paragraph shall again apply. In no event shall the total interest received
by any Lender pursuant to the terms hereof exceed the amount that such Lender
could lawfully have received had the interest due hereunder been calculated for
the full term hereof at the Maximum Rate. If the Maximum Rate is calculated
pursuant to this Section 10.10, such interest shall be calculated at a daily
rate equal to the Maximum Rate divided by the number of days in the year in
which such calculation is made. If, notwithstanding the provisions of this
Section 10.10, a court of competent jurisdiction shall finally determine that a
Lender has received interest hereunder in excess of the Maximum Rate, the
Administrative Agent shall, to the extent permitted by applicable Law, promptly
apply such excess in the order specified in this Agreement and thereafter shall
refund any excess to the Borrower or as a court of competent jurisdiction may
otherwise order.


 


SECTION 10.11. Counterparts. This Agreement and each other Loan
Document may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Delivery by telecopier of an executed counterpart of a signature
page to this Agreement and each other Loan Document shall be effective as
delivery of an original executed counterpart of this Agreement and such other
Loan Document. The Agents may also require that any such documents and
signatures delivered by telecopier be confirmed by a manually signed original
thereof; provided that the failure to request or
deliver the same shall not limit the effectiveness of any document or signature
delivered by telecopier.


 


SECTION 10.12. Integration. This Agreement, together with the
other Loan Documents, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the Agents or
the Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any
party, but rather in accordance with the fair meaning thereof.


 


SECTION 10.13. 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 each Agent
and each Lender, regardless of any investigation made by any Agent or any
Lender or on their behalf and notwithstanding that any Agent or any Lender may
have had notice or knowledge of any Default at the


 


127

















 


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.


 


SECTION 10.14. Severability. If any provision of this Agreement
or the other Loan Documents is held to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.


 


SECTION 10.15. Tax Forms. (i) 
Each Lender and Agent that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code (each, a “Foreign
Lender”) shall deliver to the Borrower and the Administrative Agent,
on or prior to the date which is ten (10) Business Days after the Closing Date
(or upon accepting an assignment of an interest herein), two duly signed,
properly completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, United States withholding tax on all payments to be made to such
Foreign Lender by the Borrower or any other Loan Party pursuant to this
Agreement or any other Loan Document) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrower or any other Loan Party pursuant to this Agreement or any other Loan
Document) or such other evidence reasonably satisfactory to the Borrower and
the Administrative Agent that such Foreign Lender is entitled to an exemption
from, or reduction of, United States withholding tax, including any exemption
pursuant to Section 871(h) or 881(c) of the Code, and in the case of a
Foreign Lender claiming such an exemption under Section 881(c) of the
Code, a certificate that establishes in writing to the Borrower and the
Administrative Agent that such Foreign Lender is not (i) a “bank” as defined in
Section 881(c)(3)(A) of the Code, (ii) a 10-percent stockholder within the
meaning of Section 871(h)(3)(B) of the Code, or (iii) a controlled foreign
corporation related to the Borrower with the meaning of Section 864(d) of
the Code. Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Borrower and the Administrative Agent such additional
duly completed and signed copies of one or more of such forms or certificates
(or such successor forms or certificates as shall be adopted from time to time
by the relevant United States taxing authorities) as may then be available
under then current United States Laws and regulations to avoid, or such
evidence as is reasonably satisfactory to the Borrower and the Administrative
Agent of any available exemption from, or reduction of, United States
withholding taxes in respect of all payments to be made to such Foreign Lender
by the Borrower or other Loan Party pursuant to this Agreement, or any other
Loan Document, in each case, (1) on or before the date that any such form,
certificate or other evidence expires or becomes obsolete, (2) after the
occurrence of any event requiring a change in the most recent form, certificate
or evidence previously delivered by it to the Borrower and the Administrative
Agent and (3) from time to time thereafter if reasonably requested by the
Borrower or the Administrative Agent, and (B) promptly notify the Borrower and
the Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction.


 


(ii)  Each Foreign Lender, to the extent it does
not act or ceases to act for its own account with respect to any portion of any
sums paid or payable to such Foreign Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Foreign Lender),
shall deliver to the Borrower and the Administrative Agent on the date when
such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Borrower or the Administrative Agent (in
either case, in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such
Foreign Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Foreign Lender acts for its own
account that is not subject to United States withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any


 


128

















 


successor thereto), together
with any information such Foreign Lender chooses to transmit with such form,
and any other certificate or statement of exemption required under the Code, to
establish that such Foreign Lender is not acting for its own account with
respect to a portion of any such sums payable to such Foreign Lender.


 


(iii)  The Borrower shall not be required to pay any
additional amount or any indemnity payment under Section 3.01 to (A) any
Foreign Lender if such Foreign Lender shall have failed to satisfy the
foregoing provisions of this Section 10.15(a), or (B) any U.S. Lender if
such U.S. Lender shall have failed to satisfy the provisions of
Section 10.15(b); provided
that (i) if such Lender shall have satisfied the requirement of this or
Section 10.15(b), as applicable, on the date such Lender became a Lender
or ceased to act for its own account with respect to any payment under any of
the Loan Documents, nothing in this Section 10.15(a) or
Section 10.15(b) shall relieve the Borrower of its obligation to pay any
amounts pursuant to Section 3.01 in the event that, as a result of any
change in any applicable Law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that such Lender or
other Person for the account of which such Lender receives any sums payable
under any of the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate and (ii) nothing in this Section 10.15(a)
shall relieve the Borrower of its obligation to pay any amounts pursuant to
Section 3.01 in the event that the requirements of 10.15(a)(ii) have not
been satisfied if the Borrower is entitled, under applicable Law, to rely on any
applicable forms and statements required to be provided under this
Section 10.15 by the Foreign Lender that does not act or has ceased to act
for its own account under any of the Loan Documents, including in the case of a
typical participation.


 


(iv)  The Administrative Agent may deduct and
withhold any taxes required by any Laws to be deducted and withheld from any
payment under any of the Loan Documents.


 


(b)  Each Lender and Agent that is a “United
States person” within the meaning of Section 7701(a)(30) of the Code
(each, a “U.S. Lender”) shall
deliver to the Administrative Agent and the Borrower two duly signed, properly
completed copies of IRS Form W-9 on or prior to the Closing Date (or on or
prior to the date it becomes a party to this Agreement), certifying that such
U.S. Lender is entitled to an exemption from United States backup withholding
tax, or any successor form. If such U.S. Lender fails to deliver such forms,
then the Administrative Agent may withhold from any payment to such U.S. Lender
an amount equivalent to the applicable backup withholding tax imposed by the
Code.


 


SECTION 10.16. GOVERNING LAW. THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.


 


(a)  ANY LEGAL ACTION OR PROCEEDING ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER,
EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE


 


129

















 


GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.


 


(b)  NOTWITHSTANDING THE FOREGOING PROVISIONS OF
THIS SECTION 10.16, NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE
AGENTS, THE JOINT LEAD ARRANGERS, THE L/C ISSUER OR ANY LENDER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS AGAINST THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY OF THEIR
PROPERTIES OR ASSETS IN THE COURTS OF ANY JURISDICTION.


 


SECTION 10.17. Waiver of Right to Trial by Jury. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.


 


SECTION 10.18. Binding Effect. This Agreement shall become
effective when it shall have been executed by each party hereto and thereafter
shall be binding upon and inure to the benefit of the Borrower, each Agent and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders except as
permitted by Section 7.04.


 


SECTION 10.19. Lender Action. Each Lender agrees that it shall
not take or institute any actions or proceedings, judicial or otherwise, for
any right or remedy against any Loan Party or any other obligor under any of
the Loan Documents or the Secured Hedge Agreements (including the exercise of
any right of setoff, rights on account of any banker’s lien or similar claim or
other rights of self-help), or institute any actions or proceedings, or
otherwise commence any remedial procedures, with respect to any Collateral or
any other property of any such Loan Party, without the prior written consent of
the Administrative Agent. The provision of this Section 10.20 are for the
sole benefit of the Lenders and shall not afford any right to, or constitute a
defense available to, any Loan Party.


 


SECTION 10.20. Acknowledgments. The Borrower hereby acknowledges
that:


 


(a)  it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents;


 


(b)  no Joint Lead Arranger, Agent or Lender has
any fiduciary relationship with or duty to the Borrower or any other Loan Party
arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Joint Lead Arrangers, the Agents
and the Lenders, on one hand, and the Borrower and the other Loan Parties, on
the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and


 


130

















 


(c)  no joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Joint Lead Arrangers, the Agents and the Lenders
or among the Borrower, the other Loan Parties and the Lenders. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.


 


SECTION 10.21. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot  Act”), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.


 


SECTION 10.22. Gaming Authorities and Liquor Authorities. This
Agreement is subject to the Gaming Laws and the Liquor Laws. Without limiting
the foregoing, the Agents and the Lenders acknowledge that rights, remedies and
powers in or under this Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provisions of the Gaming Laws
and the Liquor Laws and only to the extent that any required approvals
(including prior approvals) are obtained from the requisite Gaming Authorities
and the Liquor Authorities. Each of the Joint Lead Arrangers, the Agents and
Lenders agrees to cooperate with the applicable Gaming Authorities in
connection with the administration of their regulatory jurisdiction over the
Borrower and the other Loan Parties, including, without limitation, to the
extent not inconsistent with the internal policies of such Joint Lead Arranger,
Agent or Lender and any applicable legal or regulatory restrictions, the
provision of such documents or other information as may be requested by any
such Gaming Authorities relating to the Joint Lead Arrangers, the Agents, any
of the Lenders or the Borrower or any other Loan Party, or the Loan Documents.
Notwithstanding any other provision of this Agreement, the Borrower expressly
authorizes, and will cause each other Loan Party to authorize, each Joint Lead
Arranger, Agent and Lender to cooperate with the applicable Gaming Authorities
as described above.


 


SECTION 10.23. Certain Matters Affecting Lenders. (a) If
any Gaming Authority shall determine that any Lender does not meet suitability
standards prescribed under applicable Gaming Laws (a “Former
Lender”), the Administrative Agent shall have the right (but not the
duty) to cause such Former Lender (and such Former Lender hereby irrevocably
agrees) to assign its outstanding Loans and its Revolving Credit Commitments,
if any, in full to one or more Eligible Assignees (each a “Substitute
Lender”) in accordance with the provisions of Section 10.07 and
the Former Lender shall pay any fees payable thereunder in connection with such
assignment; provided, (1) on the date of such
assignment, the Substitute Lender shall pay to the Former Lender an amount
equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Former Lender, (B) an
amount equal to all unreimbursed drawings that have been funded by such Former
Lender, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid Fees
owing to such Former Lender; (2) on the date of such assignment, the
Borrower shall pay any amounts payable to such Former Lender pursuant to
Article III; or otherwise as if it were a prepayment. The Borrower shall bear
the costs and expenses of any Lender required by any Gaming Authorities to file
an application for a finding of suitability in connection with the
investigation of an application by the Borrower or the other Loan Parties for a
license to operate a gaming establishment.


 


(b)  Notwithstanding the provisions of
Section 10.23(a), if any Lender becomes a Former Lender, and if the
Administrative Agent fails to find a Substitute Lender pursuant to
Section 10.23(a) within any time period specified by the appropriate
Gaming Authority for the withdrawal of a Former Lender (the “Withdrawal Period”), the Borrower shall
immediately prepay in full the outstanding amount of all Term Loans and
Revolving Exposure of such Former Lender, together with all unpaid fees owing
to


 


131

















 


such Former Lender pursuant to Section 2.09 and any amounts
payable to such Former Lender pursuant to Article III or otherwise as if it
were a prepayment and, in each case where applicable, with accrued interest
thereon to the earlier of (x) the date of payment or (y) the last day
of the applicable Withdrawal Period. Upon the prepayment of all amounts owing
to any Former Lender and the termination of such Former Lender’s Revolving
Credit Commitments, if any (whether pursuant to Section 10.23(a) or
10.23(b)), such Former Lender shall no longer constitute a “Lender” for
purposes hereof; provided, any rights of such
Former Lender to indemnification hereunder shall survive as to such Former Lender.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]


 


132

















 


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


 


	
   

  	
  STATION
  CASINOS, INC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  
	
   

  	
   

  	
   /s/  Thomas M. Friel

  
	
   

  	
   

  	
    Name: Thomas
  M. Friel

  
	
   

  	
   

  	
    Title:   Executive
  Vice President, Chief

  
	
   

  	
   

  	
                Accounting
  Officer & Treasurer

  
				



 

















 


	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as Administrative
  Agent, L/C Issuer and

  Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  
	
   

  	
   

  	
   /s/  Mary Kay Coyle

  
	
   

  	
   

  	
    Name: Mary
  Kay Coyle

  
	
   

  	
   

  	
    Title:   Managing
  Director

  
				



 


133

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as Syndication Agent,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  
	
   

  	
   

  	
   /s/  Donald
  Shokrian

  
	
   

  	
   

  	
    Name:
  Donald Shokrian

  
	
   

  	
   

  	
    Title:   Managing
  Director

  
				



 


134

















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
    /s/ G. Lee Wagner, Jr.

  
	
   

  	
   

  	
    Name:
  G. Lee Wagner, Jr.

  
	
   

  	
   

  	
    Title:   Vice
  President

  
				



 

















 


	
   

  	
  UNION
  BANK OF CALIFORNIA, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   /s/  Clifford F. Cho

  
	
   

  	
   

  	
    Name: Clifford
  F. Cho

  
	
   

  	
   

  	
    Title:   Vice President

  
				



 

















 


	
   

  	
  BANK OF HAWAII,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Steven R. Nakahara

  
	
   

  	
   

  	
  Name: Steven
  R. Nakahara

  
	
   

  	
   

  	
  Title:   Vice President

  
				



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Jennifer Mesa

  
	
   

  	
   

  	
    Jennifer
  Mesa

  
	
   

  	
   

  	
    Vice President

  
				



 

















 


	
   

  	
  BNP
  PARIBAS

  
	
   

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   /s/  Janice
  S. Ho

  
	
   

  	
   

  	
    Name: Janice
  S. Ho

  
	
   

  	
   

  	
    Title:   Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   /s/  Mitchell
  Ozawa

  
	
   

  	
   

  	
    Name: Mitchell
  Ozawa

  
	
   

  	
   

  	
    Title:   Managing
  Director

  
				



 

















 


	
   

  	
  NATIXIS, NEW YORK BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Peyman Parhami

  
	
   

  	
   

  	
  Name: Peyman
  Parhami

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Mark A. Harrington

  
	
   

  	
   

  	
  Name: Mark
  A. Harrington

  
	
   

  	
   

  	
  Title:   Senior Managing Director

  
				



 

















 


	
   

  	
  ERSTE BANK DER OESTERREICHISCHEN

  
	
   

  	
  SPARKASSEN
  AG, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Robert J. Wagman

  
	
   

  	
   

  	
  Name: Robert
  J. Wagman

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ERSTE
  BANK DER OESTERREICHISCHEN

  
	
   

  	
  SPARKASSEN
  AG, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Bryan Lynch

  
	
   

  	
   

  	
  Name: Bryan
  Lynch

  
	
   

  	
   

  	
  Title:   Managing Director

  
				



 

















 


	
   

  	
  BANK OF SCOTLAND PLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Karen Weich

  
	
   

  	
   

  	
  Name: Karen
  Weich

  
	
   

  	
   

  	
  Title:   Vice President

  
				



 

















 


	
   

  	
    Bank
  of Nevada

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ Todd Skadberg

  
	
   

  	
   

  	
  Name: Todd
  Skadberg

  
	
   

  	
   

  	
  Title:   SVP

  
				



 

















 


	
   

  	
    First Tennessee Bank National Association,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
  /s/ James H. Moore Jr.

  
	
   

  	
   

  	
  Name: James
  H. Moore Jr.

  
	
   

  	
   

  	
  Title:   Senior Vice President