Exhibit 10.1


 


THIRD AMENDED AND
RESTATED CREDIT AGREEMENT


 


among


 


ARGOSY GAMING COMPANY,


 


THE OTHER BORROWERS NAMED
HEREIN,


 


THE LENDERS NAMED HEREIN,


 


CALYON NEW YORK BRANCH
and BANK OF SCOTLAND


 


as Co-Syndication Agents,


 


MORGAN STANLEY BANK


 


as Documentation Agent


 


and


 


WELLS FARGO BANK,
NATIONAL ASSOCIATION,


 


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


 


Dated as of September 30,
2004


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I.

  	
   

  	
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.02.

  	
  GAAP

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.03.

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.04.

  	
  Plural
  Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.05.

  	
  Time

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.06.

  	
  Governing
  Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.07.

  	
  Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.08.

  	
  Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.09.

  	
  Calculation of Interest and Fees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.10.

  	
  References

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.11.

  	
  Other Interpretive Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  	
  CREDIT FACILITIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.01.

  	
  Revolving Loan Facility

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.02.

  	
  Term Loan Facility

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.03.

  	
  Letters
  of Credit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.04.

  	
  Swing
  Line

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.05.

  	
  Amount Limitations, Commitment Reductions, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.06.

  	
  Fees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.07.

  	
  Prepayments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.08.

  	
  Other Payment Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.09.

  	
  Loan Accounts; Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10.

  	
  Loan
  Funding

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.11.

  	
  Pro Rata Treatment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.12.

  	
  Change of Circumstances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.13.

  	
  Taxes
  on Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.14.

  	
  Funding Loss Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.15.

  	
  Security

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.16.

  	
  Replacement of the Lenders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.17.

  	
  Increases of the Total Revolving Loan
  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III.

  	
   

  	
  CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.01.

  	
  Initial Conditions Precedent

  	
   

  



 


i





















 


	
   

  	
  3.02.

  	
  Conditions Precedent to each Credit Event

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.03.

  	
  Covenant to Deliver

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV.

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.01.

  	
  Borrowers’ Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.01.

  	
  Affirmative Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.02.

  	
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.03.

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  	
  DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.01.

  	
  Events
  of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.02.

  	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.03.

  	
  Effect of Reverse Trigger Event

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  	
  THE ADMINISTRATIVE AGENT AND RELATIONS
  AMONG THE LENDERS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.01.

  	
  Appointment, Powers and Immunities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.02.

  	
  Reliance by the Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.03.

  	
  Defaults

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.04.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.05.

  	
  Non-Reliance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.06.

  	
  Resignation or Removal of the
  Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.07.

  	
  Authorization

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.08.

  	
  The Administrative Agent in its Individual
  Capacity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.01.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.02.

  	
  Expenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.03.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.04.

  	
  Waivers; Amendments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.05.

  	
  Successors and Assigns

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.06.

  	
  Setoff; Security Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.07.

  	
  No Third Party Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.08.

  	
  Partial Invalidity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.09.

  	
  Jury
  Trial

  	
   

  



 


ii





















 


	
   

  	
  8.10.

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.11.

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.12.

  	
  Consent to Jurisdiction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.13.

  	
  Joint and Several Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.14.

  	
  Assignment of Revolving Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.15.

  	
  Application of Gaming Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.16.

  	
  Damages; Insurance and Condemnation
  Proceeds

  	
   

  
	
   

  	
   

  
	
  Schedules and Exhibits

  	
   

  	
   

  
	
  Schedule I

  	
  The Lenders

  	
   

  
	
  Schedule II

  	
  Existing Letters of Credit

  	
   

  
	
  Schedule 4.01(g)

  	
  Litigation

  	
   

  
	
  Schedule 4.01(h)

  	
  Intercompany Notes and
  Real Property

  	
   

  
	
  Schedule 4.01(l)

  	
  Multiemployer Plans

  	
   

  
	
  Schedule 4.01(n)

  	
  Intellectual Property

  	
   

  
	
  Schedule 4.01(q)

  	
  Subsidiaries

  	
   

  
	
  Schedule 4.01(t)

  	
  Labor Matters

  	
   

  
	
  Schedule 4.01(z)

  	
  Existing Insurance

  	
   

  
	
  Schedule 4.01(aa)

  	
  Contingent Obligations

  	
   

  
	
  Schedule 5.02(a)

  	
  Existing Indebtedness

  	
   

  
	
  Schedule 5.02(b)

  	
  Existing Liens

  	
   

  
	
  Schedule 5.02(e)

  	
  Existing Investments

  	
   

  
	
  Schedule 5.03(e)

  	
  Specified Capital
  Expenditures

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Notice of Revolving Loan
  Borrowing

  	
   

  
	
  Exhibit B

  	
  Notice of Revolving Loan
  Conversion

  	
   

  
	
  Exhibit C

  	
  Notice of Revolving Loan
  Interest Period Selection

  	
   

  
	
  Exhibit D

  	
  Notice of Term Loan
  Conversion

  	
   

  
	
  Exhibit E

  	
  Notice of Term Loan
  Interest Period Selection

  	
   

  
	
  Exhibit F

  	
  Notice of Swing Loan
  Borrowing

  	
   

  
	
  Exhibit G

  	
  Revolving Loan Note

  	
   

  
	
  Exhibit H

  	
  Term Loan Note

  	
   

  
	
  Exhibit I

  	
  Swing Loan Note

  	
   

  
	
  Exhibit J

  	
  Assignment Agreement

  	
   

  
					



 


iii





















 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 30, 2004, is
entered into by and among: 
(1) ARGOSY GAMING COMPANY, a Delaware corporation (“Argosy”),
ALTON GAMING COMPANY, an Illinois corporation (“Alton Gaming”), ARGOSY
OF IOWA, INC., an Iowa corporation (“Argosy of Iowa”), ARGOSY OF
LOUISIANA, INC., a Louisiana corporation (“Argosy of Louisiana”), BELLE
OF SIOUX CITY, L.P., an Iowa limited partnership (“Belle of Sioux City”),
CATFISH QUEEN PARTNERSHIP IN COMMENDAM, a Louisiana partnership in commendam (“Catfish
Queen”), CENTROPLEX CENTRE CONVENTION HOTEL, L.L.C., a Louisiana limited
liability company (“Centroplex”), EMPRESS CASINO JOLIET CORPORATION, an
Illinois corporation (“Empress Casino Joliet”), INDIANA GAMING II, L.P.,
an Indiana limited partnership (“Indiana Gaming II”), THE INDIANA GAMING
COMPANY, an Indiana corporation (“Indiana Gaming Corporation”), INDIANA
GAMING HOLDING COMPANY, an Indiana corporation (“Indiana Gaming Holding”),
INDIANA GAMING COMPANY, L.P., an Indiana limited partnership (“Indiana
Gaming Partnership”), IOWA GAMING COMPANY, an Iowa corporation (“Iowa
Gaming”), JAZZ ENTERPRISES, INC., a Louisiana corporation (“Jazz
Enterprises”), and THE MISSOURI GAMING COMPANY, a Missouri corporation (“Missouri
Gaming”); (2) each of the financial institutions from time to time party
hereto (collectively, the “Lenders”); (3) CALYON NEW YORK BRANCH
and BANK OF SCOTLAND, as Co-Syndication Agents; (4) MORGAN STANLEY BANK,
as Documentation Agent; and (5) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as Administrative Agent, L/C Issuer and Swing
Line Lender.


 


RECITALS


 


A.            The Borrowers have requested that
(i) the Total R/C Commitment, the R/C Funded Outstandings (each as defined
in the Existing Credit Agreement) and the Existing Letters of Credit outstanding
under the Existing Credit Agreement be continued as or converted into (as the
case may be) Revolving Loan Commitments, Revolving Loans and Letters of Credit
under this Agreement, (ii) the Revolving Loan Commitment be increased to
$500,000,000, (iii) that the proceeds of the Term Loan hereunder and a portion
of the Revolving Loans hereunder be used to repay the “Term Lenders” under and
as defined in the Existing Credit Agreement and (iv) the Existing Credit
Agreement otherwise be amended and restated in its entirety as set forth below
in this Agreement.


 


B.            The Lenders are willing, on and
subject to the terms and conditions set forth in this Agreement, to amend and
restate the terms of the Existing Credit Agreement and to extend credit under
this Agreement as more particularly hereinafter set forth.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the above Recitals and the mutual covenants
herein contained, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement as follows:


 





















 


ARTICLE I.           INTERPRETATION.


 


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


 


“2001 Senior Subordinated Indenture” shall mean
that certain Indenture dated as of July 31, 2001 by and among Argosy, as
issuer, the Subsidiaries of Argosy referred to therein, as guarantors, and Bank
One Trust Company, NA, as trustee.


 


“2001
Senior Subordinated Notes” shall mean those certain $200 million 9.0%
Senior Subordinated Notes due 2011 issued by Argosy pursuant to the 2001 Senior
Subordinated Indenture.


 


“2004
Senior Subordinated Indenture” shall mean that certain Indenture dated as
of February 12, 2004, between Argosy and J.P. Morgan Trust Company, National
Association, as trustee.


 


“2004
Senior Subordinated Notes” shall mean the 7% Senior Subordinated Notes due
2014 issued by Argosy pursuant to the 2004 Senior Subordinated Indenture in the
original aggregate principal amount of $350,000,000.


 


“Administrative
Agent” shall mean Wells Fargo Bank, National Association, in its capacity
as administrative agent for the Lenders.


 


“Administrative
Agent’s Fee Letter” shall mean the letter agreement dated as of
June 30, 2004, between Argosy and the Administrative Agent regarding
certain fees payable by Argosy to the Administrative Agent.


 


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


 


“Agreement”
shall mean this Third Amended and Restated Credit Agreement.


 


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


 


“Applicable
Margin” shall mean:


 


2





















 


(a)           With respect to each Revolving Loan,
the per annum margin which is determined
pursuant to the Revolving Loan Pricing Grid and added to the Base Rate or LIBOR
Rate, as the case may be, for such Revolving Loan; provided, however,
that each Applicable Margin determined pursuant to the Revolving Loan Pricing
Grid shall be increased by two percent (2.00%) on the date an Event of Default
occurs and shall continue at such increased rate unless and until such Event of
Default is cured or waived in accordance with this Agreement.  The Applicable Margins set forth in this
subsection (a) shall be determined as provided in the Revolving Loan
Pricing Grid and may change as set forth in the definition of Revolving Loan
Pricing Grid.


 


(b)           With
respect to each Term Loan, the Applicable Margin for LIBOR Portions shall be
1.75%, and the Applicable Margin for Base Rate Portions shall be 0.50%; provided,
however, that each such Applicable Margin shall be increased by two
percent (2.00%) on the date an Event of Default occurs and shall continue at
such increased rate unless and until such Event of Default is cured or waived
in accordance with this Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Base
Rate” shall mean, on any day, the greater of (a) the Prime Rate in effect
on such date and (b) the Federal Funds Rate for such day plus one-half
percent (0.50%).


 


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


 


“Base
Rate Portion” shall mean, at any time, a Portion of the Term Loan Borrowing
or a Term Loan, as the case may be, which then bears interest at a rate
specified in clause (i) of Section 2.02(c).


 


“Borrowers”
shall mean, collectively, Argosy, Alton Gaming, Argosy of Iowa, Belle of Sioux
City, Argosy of Louisiana, Catfish Queen, Centroplex, Empress Casino Joliet,
Indiana Gaming II, Indiana Gaming Corporation, Indiana Gaming Holding, Indiana
Gaming Partnership, Iowa Gaming, Jazz Enterprises and Missouri Gaming.  Notwithstanding a transfer of the capital


 


3





















 


stock
of Empress Casino Joliet pursuant to the terms of the Transfer Agreement, until
a Sale (as defined in the Transfer Agreement) occurs, Empress Casino Joliet
shall remain a Borrower for all purposes of this Agreement (other than for
purposes of Section 2.01(a), 2.03(a)(i) or 2.04(a)).


 


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


 


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


 


“Capital
Adequacy Requirement” shall have the meaning given to that term in Section 2.12(d).


 


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


 


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


 


“Capital
Lease” shall mean any lease that, in accordance with GAAP, is required to
be capitalized on the books of a lessee.


 


“Cash
Collateral Account” shall mean the restricted depository savings account to
be established by the Borrowers or the Administrative Agent on behalf of the
Borrowers with the L/C Issuer at its offices located at 5340 Kietzke, Suite
201, Reno, Nevada, or at such other office located in the United States as may
be designated from time to time by the L/C Issuer, for the purpose of depositing
cash collateral for the Obligations upon the occurrence of any Event of
Default.


 


“Cash
Collateral Pledge Agreement” shall mean that certain Deposit Account Pledge
Agreement, dated as of September 30, 2004, among the Borrowers and the L/C
Issuer.


 


“Cash
Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, as collateral for the Obligations, cash or deposit account balances in
an amount equal to the L/C Obligations pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders).  Derivatives of such term shall have
corresponding meaning.  Each Borrower hereby
grants the Administrative Agent, for the benefit of the Administrative Agent
and the Lenders, a Lien on all such cash and deposit account balances as
security for the Obligations.  Cash
collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Wells Fargo or other institutions satisfactory to it.  The


 


4





















 


Lien
held by the Administrative Agent in such cash collateral to secure the
Obligations shall be released upon the satisfaction of each of the following
conditions: (a) no Letters of Credit shall be outstanding, (b) all L/C
Obligations shall have been repaid in full and (c) no Default shall have
occurred and be continuing.


 


“Cash
Equivalents” shall mean:


 


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


 


(b)           Investments in commercial paper
maturing within 270 days from the date of acquisition thereof and having, at
such date of acquisition, the highest credit rating obtainable from Standard
and Poor’s Rating Group or from Moody’s Investor Services, Inc.;


 


(c)           Investments in certificates of
deposit, banker’s acceptances and time deposits maturing within one year from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized or licensed under the laws of the United States of
America or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;


 


(d)           Fully collateralized repurchase
agreements with a term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above; and


 


(e)           Money market funds that (i) comply
with the criteria set forth in Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA by Standard and
Poor’s Rating Group and Aaa by Moody’s Investor Services, Inc. and (iii) have
portfolio assets of at least $5,000,000,000.


 


“Casinos” shall mean, collectively, the casinos
owned or operated by the Loan Parties from time to time.


 


“Change
of Control” shall mean:


 


(a)           Any “person” or “group” (as such
terms are defined in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended) acquires ownership or control of more than forty
percent (40%) of the voting common stock of Argosy; or


 


(b)           During any period of twenty-four (24)
consecutive months commencing after the Restatement Effective Date, individuals
who at the beginning of such period constituted Argosy’s Board of Directors
(together with any new or replacement directors whose election by Argosy’s
Board of Directors or whose nomination for election by Argosy’s shareholders,
was approved by a vote of at least a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was


 


5





















 


previously so approved) cease for any reason
to constitute a majority of the directors then in office.


 


“Change of Law” shall have the meaning given to
that term in Section 2.12(b).


 


“Class”
shall have the meaning given to that term in Section 1.10(e).


 


“Collateral”
shall mean all property in which the Administrative Agent or any Lender has a
Lien to secure the Obligations.


 


“Commitment
Fee Percentage” shall mean, with respect to the Revolving Loans at any
time, the per annum percentage which is used to
calculate Commitment Fees for the Revolving Loans.  The Commitment Fee Percentages shall be
determined as provided in the Revolving Loan Pricing Grid and may change as set
forth in the definition of Revolving Loan Pricing Grid.


 


“Commitment
Fees” shall have the meaning given to that term in Section 2.06(b).


 


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


 


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


 


“Contingent
Obligation” shall mean, with respect to any Person, (a) any Guaranty
Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner
or joint venturer in any partnership or joint venture, or (iii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered.  The amount of any
Contingent Obligation shall (subject, in the case of Guaranty Obligations, to
the last sentence of the definition of “Guaranty Obligation”) be deemed equal
to the maximum reasonably anticipated liability in respect thereof.


 


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


 


“Credit
Documents” shall mean and include this Agreement, the Notes, the Security
Documents, all Rate Protection Agreements of any Borrower with any Lender
related to any Loan, the Environmental Indemnity and the Administrative Agent’s
Fee Letter; all other documents, instruments and agreements delivered to the
Administrative Agent or any Lender pursuant to Section 3.01; and all
other documents, instruments and agreements delivered by any Loan Party to the
Administrative Agent or any Lender in connection with this Agreement on or


 


6





















 


after
the date of this Agreement, including, if applicable, the Guaranty or any
joinder agreement thereto, each as amended, modified or supplemented from time
to time.


 


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


 


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


 


“Defaulting
Lender” shall mean a Lender which has failed to fund its portion of any
Borrowing which it is required to fund under this Agreement and has continued
in such failure for three (3) Business Days after written notice from the
Administrative Agent.


 


“Departing
Lenders” shall mean Bank of America, N.A., First Hawaiian Bank and West
Coast Bank.


 


“Designated
Asset Sale Proceeds” shall mean the Net Proceeds payable to the Loan
Parties from the sale, transfer, lease or other disposition of assets or
property, other than any sale or other disposition permitted by clause (i),
(ii), (iv) or (v) of Section 5.02(c).


 


“Development
Agreements” shall mean, collectively, (i) that certain Agreement under date
of April 18, 1991 by and between the City of Alton, Illinois and the Alton
Riverboat Gambling Partnership (the predecessor in interest to Alton Gaming),
(ii) that certain Contract under date of September 21, 1994 by and among
the City of Baton Rouge, Louisiana, the Parish of East Baton Rouge and Jazz
Enterprises, (iii) that certain Riverboat Gaming Development Agreement between
the City of Lawrenceburg, Indiana, and the Indiana Gaming Company, L.P.,
executed by Indiana Gaming Partnership, and by the City of Lawrenceburg,
Indiana under date of April 13, 1994, as amended by that certain Amendment
Number One to Riverboat Gaming Development Agreement under date of
December 28, 1995 and by that certain Amendment Number Two to Riverboat
Gaming Development Agreement under date of August 20, 1996, (iv) that certain
Lease and Development Agreement executed by the City of Riverside, Missouri and
by Alton Gaming under date of June 7, 1993 and (v) that certain
Development Agreement under date of June 22, 1992, by and between the City
of Sioux City, Iowa and Sioux City Riverboat Corp., as assigned to Belle of
Sioux City by Sioux City Riverboat Corp., Inc. pursuant to that certain
Assignment and Assumption Agreement executed by Sioux City Riverboat Corp.,
Inc. and by Belle of Sioux City under date of December 1, 1994.


 


“Distributions”
shall mean dividends (in cash or property) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock of any Loan Party or of any
warrants, options or other rights to acquire the same.


 


“Documentation
Agent” shall mean Morgan Stanley Bank, in its capacity as the documentation
agent.


 


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


 


7





















 


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


 


“EBITDA”
shall mean, for any period, the sum of the following items of the Loan Parties:
(a) Net Income after tax for such period, (b) Interest Expense for such period,
(c) depreciation and amortization for such period, (d) all other non-cash
expenses (less non-cash gains) for such period, (e) income tax expense for such
period, (f) pre-opening expense for such period and (g) all extraordinary
items, including non-recurring fees incurred in connection with the
negotiation, execution and delivery of this Agreement and other Permitted
Indebtedness (in each instance to the extent deducted in the determination of
Net Income and in each case as determined in accordance with GAAP), after
giving effect on a pro forma basis to any acquisition of assets or Persons
permitted under Section 5.02(d) and/or any disposition of assets or
Persons permitted under Section 5.02(c) (as if such other
acquisition or disposition occurred on the first day of the relevant four
fiscal quarter period).


 


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


 


“Eligible
Assignee” shall mean a Person which (a) is to the extent required under
applicable Gaming Laws, registered or licensed with, approved or found suitable
by, or not disapproved, denied a license or approval or found unsuitable by
(whichever may be required under applicable Gaming Laws), any applicable
Governmental Authorities, (b) does not (either alone or as part of a “group” (as
defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), own or control more than 40% of the voting securities of any direct
competitor of Argosy or any of its Subsidiaries and (c) is (i) with respect to
the Revolving Loans, Revolving Loan Commitments or the Term Loans, (A) a
commercial bank organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least $100,000,000,
(B) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the “OECD”),
or a political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting through
a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD, (C) a Person that is primarily
engaged in the business of commercial lending and that is (1) a Subsidiary of a
Lender, (2) a Subsidiary of a Person of which a Lender is a Subsidiary or (3) a


 


8





















 


Person
of which a Lender is a Subsidiary or (D) an Approved Fund or (ii) solely with
respect to the Term Loans, any other entity that is an “accredited investor”
(as defined in Regulation D under the Securities Act of 1933) that extends
credit or buys loans as one of its businesses including insurance companies,
mutual funds, lease financing companies and investment funds.


 


“Employee
Benefit Plan” shall mean any employee benefit plan within the meaning of
section 3(3) of ERISA maintained or contributed to by Argosy or any ERISA
Affiliate, other than a Multiemployer Plan.


 


“Environmental
Indemnity” shall mean that certain Environmental Indemnity Agreement, dated
as of the date hereof, among the Borrowers and the Administrative Agent.


 


“Environmental
Damages” shall mean all claims, judgments, damages, losses, penalties,
liabilities (including strict liability), costs and expenses, including costs
of investigation, remediation, defense, settlement and reasonable attorneys’
fees and consultants’ fees, that are incurred at any time as a result of the
existence of any Hazardous Material upon, about or beneath any real property
owned by Argosy or any of its Subsidiaries or migrating or threatening to
migrate to or from any such real property, or arising from any investigation,
proceeding or remediation of any location at which Argosy, any of its
Subsidiaries or any predecessors are alleged to have directly or indirectly
disposed of Hazardous Materials or arising in any manner whatsoever out of any
violation of Environmental Laws.


 


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


 


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


 


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


 


“ERISA
Affiliate” shall mean any Person which is treated as a single employer with
Argosy under Section 414 of the IRC.


 


9





















 


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


 


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


 


“Evergreen
Letter of Credit” shall have the meaning given to that term in Section 2.03(b)(iii).


 


“Existing
Assignments” shall mean, collectively, each of the assignment agreements
set forth on Schedule I.


 


“Existing
Credit Agreement” shall mean that certain Second Amended and Restated
Credit Agreement, dated as of July 31, 2001, among the Borrowers, the Lenders
named therein, Wells Fargo, as Swingline Lender, L/C Issuer and Administrative
Agent, Credit Lyonnais, Los Angeles Branch, as Syndication Agent and Bank of
Scotland and Bankers Trust Company, as Documentation Agent, as amended,
supplemented or otherwise modified and in effect on the date hereof.


 


“Existing
Letters of Credit” shall mean the letters of credit described on Schedule
II.


 


“Existing
Mortgages” shall mean, collectively, each of the mortgages referenced on Schedule
III.


 


“Existing
Security Agreements” shall mean, collectively, each of the security
agreements referenced on Schedule IV.


 


“Existing
Ship Mortgages” shall mean, collectively, each of the ship mortgages referenced
on Schedule V.


 


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


 


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


 


10





















 


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


 


“Fixed
Charge Coverage Ratio” shall mean, as at any date of determination, the
ratio of (a) EBITDA for the period of four consecutive fiscal quarters
ending on or most recently ended prior to such date minus the sum of (i)
Distributions actually made in cash during such period (to the extent not
included in Fixed Charges) other than Distributions made to or for the account
of another Loan Party, (ii) income taxes actually paid in cash during such period  and (iii) Maintenance Capital Expenditures actually made
during such period, to (b) Fixed Charges for the period of four
consecutive fiscal quarters ending on or most recently ended prior to such
date.


 


“Fixed
Charges” shall mean, for any period, the sum, for the Loan Parties
(determined on a consolidated basis without duplication in accordance with
GAAP), of the following: (a) Interest Expense for such period,
(b) scheduled payments of principal on Indebtedness, to the extent
actually paid during such period, (c) the portion of  scheduled  payments
made under Capital Leases that should be treated as payment of principal in
accordance with GAAP, to the extent actually paid during such period  and (d) Distributions on the preferred capital stock of
Argosy to the extent actually paid in cash during such period, after giving
effect on a pro forma basis to any acquisition of assets or Persons permitted
under Section 5.02(d) and/or any disposition of assets or Persons
permitted under Section 5.02(c) (as if such acquisition or
disposition occurred on the first day of the relevant four fiscal quarter
period).


 


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


 


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


 


“Gaming
Authorities” shall mean, collectively, the Illinois Gaming Board, the
Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Louisiana
Gaming Control Board, the Missouri Gaming Commission and any other Governmental
Authorities which enforce the Gaming Laws.


 


“Gaming
Facility” shall mean each Casino and all other Property owned by a Loan
Party which is directly ancillary thereto or used in connection therewith,
including any hotels, resorts, card clubs, theaters, parking facilities,
recreational vehicle parks, timeshare operations, retail shops, restaurants,
other buildings, land, golf courses and other recreation and entertainment
facilities, marinas, vessels, barges, ships and related equipment.


 


“Gaming
Laws” shall mean all statutes, rules, regulations, ordinances, codes,
administrative or judicial orders or decrees or other laws pursuant to which
any Gaming


 


11





















 


Authority
or other Governmental Authority possesses regulatory, licensing or permit
authority over gambling or gaming activities conducted by any Loan Party within
its jurisdiction.


 


“Gaming
License” shall mean, collectively, any and all Governmental Authorizations
(i) necessary to enable any Loan Party to engage in the casino, gambling or
gaming business, including the operation of racetracks, and the conduct of
pari-mutual wagering and other gaming activities at such racetracks or
otherwise continue to conduct its business as it is conducted on the
Restatement Effective Date, or (ii) required by any Governmental Authority or
under any Gaming Law.


 


“Gaming
New Venture” shall mean any New Venture which (i) holds a Gaming License,
(ii) owns or operates a casino or racetrack or (iii) owns an asset or operates
a business adjacent to or within close proximity of an entity which holds a
Gaming License or owns or operates a casino or racetrack, including any hotel,
resort, card club, theater, parking facility, recreational vehicle park,
timeshare operation, retail shop, restaurant, golf course or other recreation
and entertainment facility, marina, vessel, barge or ship.


 


“Gaming
Subsidiary” shall mean any Subsidiary which (i) holds a Gaming License,
(ii) owns or operates a casino or racetrack or (iii) owns an asset or operates
a business adjacent to or within close proximity of an entity which holds a
Gaming License or owns or operates a casino or racetrack, including any hotel,
resort, card club, theater, parking facility, recreational vehicle park,
timeshare operation, retail shop, restaurant, golf course or other recreation
and entertainment facility, marina, vessel, barge or ship.


 


“Governmental
Authority” shall mean any domestic or foreign national, state or local
government, any political subdivision thereof, any department, agency,
authority or bureau of any of the foregoing, or any other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including the Federal Deposit Insurance Corporation,
the Federal Reserve Board, the Comptroller of the Currency, any central bank or
any comparable authority.


 


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


 


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


 


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


 


“Guarantor”
shall mean each Restricted Subsidiary which has executed and delivered a
Guaranty pursuant to Section 5.01(j).


 


12





















 


“Guaranty”
shall mean a General Continuing Subsidiary Guaranty executed by the Restricted
Subsidiaries in favor of the Administrative Agent on behalf of the Lenders from
time to time.


 


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


 


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


 


“Honor
Date” shall have the meaning given to that term in Section 2.03(c)(i).


 


“ICC”
shall have the meaning given to that term in Section 2.03(h).


 


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


 


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


 


(b)           All obligations of such Person for
the deferred purchase price of property or services;


 


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


 


(d)           All obligations of such Person as
lessee under or with respect to Capital Leases;


 


13





















 


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


 


(f)            The Termination Value (if negative)
with respect to all Rate Protection Agreements of such Person;


 


(g)           All Guaranty Obligations of such
Person with respect to the obligations of other Persons of the types described
in clauses (a) - (f) above and all other Contingent Obligations of such Person;
and


 


(h)           All obligations of other Persons of
the types described in clauses (a) - (f) above to the extent secured by (or for
which any holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property (including accounts and
contract rights) of such Person, even though such Person has not assumed or
become liable for the payment of such obligations.


 


“Intercompany Notes” shall mean, collectively,
the promissory notes described on Schedule 4.01(h).


 


“Interest Expense” shall mean, for any period,
the sum, for the Loan Parties (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest, fees,
charges and related expenses allocable to  such period in
connection with Indebtedness or the deferred purchase price of assets that is
treated as interest in accordance with GAAP, (b) the portion of rent actually
paid during such period under Capital Leases that should be treated as interest
in accordance with GAAP and (c) the net amounts payable (or minus the
net amounts receivable) under Rate Protection Agreements accrued during such
period (whether or not actually paid or received during such period); provided,
however, that the amortization of fees and expenses incurred and paid in
connection with the incurrence of any Indebtedness or entering into any Rate
Protection Agreements shall be excluded from the determination of Interest
Expense.


 


“Interest
Period” shall mean, with respect to any LIBOR Loan or LIBOR Portion, the
time periods selected by the Borrowers pursuant to Section 2.01(b), Section
2.01(d) or Section 2.02(d) which commences on the first day of
such Loan or Portion or the effective date of any conversion and ends on the
last day of such time period, and thereafter, each subsequent time period
selected by the Borrowers pursuant to Section 2.01(e) or Section 2.02(e)
which commences on the last day of the immediately preceding time period and
ends on the last day of that time period.


 


“Investment”
of any Person shall mean any loan or advance of funds by such Person to any
other Person, any purchase or other acquisition of any Equity Securities or
Indebtedness of any other Person, any capital contribution by such Person to
any other Person or any payment under any Guaranty Obligation by such Person in
respect of the Indebtedness of any other Person; provided, however,
that Investments shall not include (a) accounts receivable or other
indebtedness owed by customers of such Person which are current assets and
arise from sales of inventory in the ordinary course of such Person’s business
or (b) prepaid expenses of such Person incurred and prepaid in the ordinary
course of business.


 


14





















 


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


 


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


 


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


 


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


 


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


 


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


 


“Lender
Rate Protection Agreement(s)” shall mean one or more Rate Protection
Agreements with respect to the Indebtedness evidenced by this Agreement between
a Borrower and one or more of the Lenders (or an Affiliate of a Lender, whether
or not such Lender subsequently ceases to be a “Lender” hereunder for any
reason), on terms acceptable to that Borrower and such Lender or Lenders.  Each Lender Rate Protection Agreement shall
be a Loan Document and shall be secured by the Liens created by the Security
Documents to the extent set forth in Section 2.15.


 


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


 


“Letter of Credit” shall mean any letter of
credit issued hereunder and shall include the Existing Letters of Credit.  A Letter of Credit may be a commercial letter
of credit or a standby letter of credit.


 


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


 


“Letter
of Credit Expiration Date” shall mean the day that is five Business Days
prior to the Revolving Loan Maturity Date.


 


“Letter
of Credit Sublimit” shall mean an amount equal to the lesser of the Total
Revolving Loan Commitment and $50,000,000. 
The Letter of Credit Sublimit is part of, and not in addition to, the
Total Revolving Loan Commitment.


 


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


 


15





















 


“LIBOR
Portion” shall mean, at any time, a Portion of the Term Loan Borrowing or a
Term Loan, as the case may be, which then bears interest at a rate specified in
clause (ii) of Section 2.02(c).


 


“LIBOR
Rate” shall mean, with respect to any Interest Period for the LIBOR Loans
in any Revolving Loan Borrowing consisting of LIBOR Loans or any LIBOR Portion
of the Term Loan Borrowing, a rate per annum equal
to the quotient (rounded upward if necessary to the nearest 1/32 of one
percent) of (a) the rate per annum
appearing on the Telerate Page 3750 (or any successor publication) on the
second Business Day prior to the first day of such Interest Period at or about
11:00 a.m. (London time) (for delivery on the first day of such Interest
Period) for a term comparable to such Interest Period, divided by (b)
one minus the Reserve Requirement for such Loans or Portion in effect from time
to time.  If for any reason rates are not
available as provided in clause (a) of the preceding sentence, the rate to be
used in clause (a) shall be the rate per annum at
which Dollar deposits are offered to the Administrative Agent in the London
interbank eurodollar currency market on the second Business Day prior to the
commencement of such Interest Period at or about 10:00 a.m. (for delivery on
the first day of such Interest Period) for a term comparable to such Interest
Period and in an amount approximately equal to the amount of the Loan or
Portion to be made or funded by the Administrative Agent as part of such
Borrowing.  The LIBOR Rate shall be
adjusted automatically as to all LIBOR Loans and LIBOR Portions then
outstanding as of the effective date of any change in the Reserve Requirement.


 


“License
Revocation” shall mean the loss, revocation, failure to renew, termination
or suspension of any Gaming License issued by any Gaming Authority covering any
Gaming Facility; provided, that the transfer of the capital stock of
Empress Casino Joliet to the Trustee (as defined in the Transfer Agreement)
pursuant to the terms of the Transfer Agreement shall not constitute a License
Revocation.


 


“Liquor
Laws” shall have the meaning given to that term in Section 8.15.


 


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


 


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


 


“Loan
Account” shall have the meaning given to that term in Section 2.09(a).


 


“Loan
Parties” shall mean, collectively, the Borrowers and the Restricted
Subsidiaries.


 


“Maintenance
Capital Expenditures” shall mean Capital Expenditures by the Loan Parties,
on a consolidated basis, that are made to maintain, restore or refurbish the
condition or usefulness of property of Argosy or any of its Subsidiaries, or
otherwise to support the continuation of such Person’s day to day operations as
then conducted, but that are not properly chargeable to repairs and maintenance
in accordance with GAAP.


 


16





















 


“Margin
Stock” shall have the meaning given to that term in Regulation U issued by
the Federal Reserve Board.


 


“Material
Adverse Effect” shall mean a material adverse effect on: (a) the business,
operations or condition (financial or otherwise) of the Loan Parties, taken as
a whole; (b) the ability of any Borrower to pay or perform its Obligations in
accordance with the terms of this Agreement and the other Credit Documents; (c)
the rights or remedies of the Administrative Agent or any Lender under this
Agreement, the other Credit Documents or any related document, instrument or
agreement; (d) the value of the Collateral, the Administrative Agent’s or any
Lender’s security interest in the Collateral or the perfection or priority of
such security interests; (e) the validity of any of the Credit Documents;
or (f) the use, occupancy or operation of the Gaming Facilities taken as a
whole.


 


“Material
Agreements” shall mean, collectively, the certificate or articles of
incorporation and bylaws, partnership agreement, limited liability company or
operating agreement or other formation or organizational documents of each
Borrower, the Development Agreements, the Baton Rouge Leases, the 2001 Senior
Subordinated Indenture, the 2001 Senior Subordinated Notes, the 2004 Senior
Subordinated Indenture, the 2004 Senior Subordinated Notes and any other
documents or agreements evidencing the issuance of subordinated debt by any
Borrower.


 


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


 


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


 


“Net
Gaming Revenues” shall mean with respect to any fiscal period, all gaming
revenues of the Loan Parties which are subject to taxation by any Gaming
Authority.


 


“Net
Income” shall mean with respect to any Person for any fiscal period, the
net income of such Person determined in accordance with GAAP, consistently
applied.


 


“Net
Proceeds” shall mean:


 


(a)           With respect to any sale of any asset
or property by any Person, the aggregate consideration received by such Person
from such sale less the sum of (i) the amount of liabilities for taxes
incurred by such Person in connection with such sale (after taking into account
available deductions, credits, carry-backs, carry-forwards or similar items
relating to the assets or property sold) based upon the overall effective tax
rate payable by such Person for the tax year in question, (ii) the sum of the
actual amount of the reasonable fees and commissions payable to Persons other
than such Person or any Affiliate of such Person, the reasonable legal expenses
and other costs and expenses directly related to such sale that are to be paid
by such Person and (iii) the amount of any indebtedness (other than the
Obligations) which is secured by such asset and is required to be repaid or
prepaid by such Person as a result of such sale;


 


17





















 


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


 


(c)           With respect to any issuance of
Equity Securities by any Person, the aggregate consideration received by such
Person from such issuance less the sum of the actual amount of the
reasonable fees and commissions payable to Persons other than such Person or
any Affiliate of such Person and the other reasonable costs and expenses
(including reasonable legal expenses) directly related to such issuance that
are to be paid by such Person; provided, however, that for the
purpose of this clause (c), an issuance of Equity Securities shall not
include any of the following: (i) any capital contribution made by Argosy or
any Subsidiary of Argosy to any Subsidiary of Argosy, whether or not evidenced
by any issuance or sale of Equity Securities by any Subsidiary of Argosy to
Argosy or any other Subsidiary of Argosy; or (ii) any issuance by any
Subsidiary of Argosy of Equity Securities in connection with the formation of
Subsidiaries pursuant to transactions otherwise permitted pursuant to Sections 5.02(d)
and 5.02(e).


 


“Net Worth” shall mean, as at any date of
determination, total stockholders’ equity of the Loan Parties (determined on a
consolidated basis without duplication in accordance with GAAP).


 


“New Venture” shall mean a Person in which any
Loan Party has made an Investment that is not (either before or after giving
effect to such Investment) a Subsidiary.


 


“Non-Gaming
New Venture” shall mean any New Venture which is not a Gaming New Venture.


 


“Non-Gaming
Subsidiary” shall mean any Subsidiary which is not a Gaming Subsidiary.


 


“Nonrenewal Notice Date” shall have the meaning
given to that term in Section 2.03(b)(iii).


 


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


 


“Notice
of Borrowing” shall mean a Notice of Revolving Loan Borrowing, the Notice
of Term Loan Borrowing or a Notice of Swing Line Borrowing.


 


“Notice
of Interest Period Selection” shall mean a Notice of Revolving Loan
Interest Period Selection or Notice of Term Loan Interest Period Selection.


 


“Notice
of Conversion” shall mean a Notice of Revolving Loan Conversion or Notice
of Term Loan Conversion.


 


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


 


18





















 


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


 


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


 


“Notice
of Swing Line Borrowing” shall mean 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 F.


 


“Notice
of Term Loan Conversion” shall have the meaning given to that term in Section 2.02(d).


 


“Notice
of Term Loan Interest Period Selection” shall have the meaning given to
that term in Section 2.02(e).


 


“Obligations”
shall mean and include all loans, advances, debts, liabilities, and
obligations, howsoever arising, owed by any one or more of the Loan Parties to
the Administrative Agent or any Lender of every kind and description (whether
or not evidenced by any note or instrument and whether or not for the payment
of money), direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising pursuant to the terms of this Agreement or
any of the other Credit Documents, including all Loans, L/C Obligations,
interest (including interest that accrues after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws naming
such Person as the debtor in such proceeding), fees, charges, expenses,
attorneys’ fees and accountants’ fees owing by the Borrowers or payable by the
Borrowers hereunder or thereunder.


 


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


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation.


 


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


 


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


 


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


 


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


 


19





















 


“Pricing
Certificate” shall have the meaning given to that term in clause (iv) of Section 5.01(a).


 


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


 


“Proportionate
Share” shall mean (a) with respect to a Revolving Lender, its Revolving
Proportionate Share and (b) with respect to a Term Lender, its Term
Proportionate Share.


 


“Quarterly
Dates” shall mean the last day of March, June, September and December in
each year, the first of which shall be the first such day after the Restatement
Effective Date; provided, that if any such day is not a Business Day,
then such Quarterly Date shall be the next succeeding Business Day (unless such
Business Day falls in a subsequent calendar month, in which event such
Quarterly Date shall be the next preceding Business Day).


 


“Rate
Protection Agreements” shall mean one or more written agreements between a
Loan Party and one or more financial institutions providing for a “swap,” “cap,”
“collar” or other interest rate protection to such Loan Party with respect to
any Indebtedness of such Loan Party or a “swap,” “cap,” “collar” or other
foreign exchange protection to such Loan Party with respect to its operations
outside the United States.


 


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


 


“Reportable
Event” shall have the meaning given to that term in Section 4043(c) of
ERISA and applicable regulations thereunder, excluding any such event with
respect to which notice to the PBGC has been waived by regulation.


 


“Required
Class Lenders” shall mean, at any time, (a) with respect to the Class of
Revolving Loans, the Required Revolving Lenders and (b) with respect to the
Class of Term Loans, the Required Term Lenders.


 


“Required
Lenders” shall mean, at any time, the Lenders whose Proportionate Shares
then exceed 50% of the total Proportionate Shares of all Lenders, except that
the Proportionate Shares of any Lender that is a Defaulting Lender shall be
excluded in determining “Required Lenders”, and “Required Lenders” shall
thereupon mean non-Defaulting Lenders having total Proportionate Shares
exceeding 50% of the total Proportionate Shares of all non-Defaulting Lenders,
but in no event shall Required Lenders consist of fewer than three (3) Lenders;
provided, however, that if there are fewer than three (3) Lenders
at such time, Required Lenders shall mean all non-Defaulting Lenders at such
time.


 


“Required
Revolving Lenders” shall mean Revolving Lenders holding in excess of 50% of
the Revolving Loan Commitments (or, if the Revolving Loan Commitments are
terminated,


 


20





















 


Revolving
Lenders having in excess of 50% of the sum of (x) the Effective Amount of all
Revolving Loans and (y) the Revolving Proportionate Shares multiplied by the
Effective Amount of all L/C Obligations and all Swing Line Loans at any time
outstanding), except that the Revolving Loans and Revolving Proportionate
Shares of any Lender that is a Defaulting Lender shall be excluded in
determining “Required Revolving Lenders”, and “Required Revolving Lenders”
shall thereupon mean non-Defaulting Lenders having total Revolving Loan
Commitments exceeding 50% of the total Revolving Loan Commitments of all
non-Defaulting Lenders (or, if the Revolving Loan Commitments are terminated,
non-Defaulting Lenders having in excess of 50% of the sum of (x) the Effective
Amount of the total Revolving Loans of all non-Defaulting Lenders and (y) the
Revolving Proportionate Shares of all non-Defaulting Lenders multiplied by the
Effective Amount of all L/C Obligations and all Swing Line Loans at any time
outstanding).


 


“Required
Term Lenders” shall mean (a) on or prior to the Restatement Effective Date,
Term Lenders holding in excess of 50% of the Term Loan Commitments or (b) after
the Restatement Effective Date, Term Lenders having in excess of 50% of the
Effective Amount of all Term Loans, except that the Term Loan Commitments and
Term Loans of any Lender that is a Defaulting Lender shall be excluded in
determining “Required Term Lenders”, and “Required Term Lenders” shall
thereupon mean non-Defaulting Lenders having Term Loans exceeding 50% of the total
Term Loans of all non-Defaulting Lenders.


 


“Requirement
of Law” applicable to any Person shall mean (a) any Governmental Rule
applicable to such Person, (b) any conditions or requirements contained in any
license, permit, approval or other authorization granted by any Governmental
Authority to or for the benefit of such Person or (c) any judgment, decision or
determination of any Governmental Authority or arbitrator, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.


 


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


 


“Restatement
Effective Date” shall mean September 30, 2004.


 


“Restricted
Subsidiary” shall mean any Subsidiary of Argosy (other than the Borrowers)
designated by the Borrowers as a Restricted Subsidiary and meeting the
following conditions at the time of designation: (a) such Subsidiary is not
subject to any Liens except Permitted Liens and Liens created in connection
with a Security Agreement, (b) such Subsidiary has executed and delivered
to the Administrative Agent a joinder agreement to the Credit Agreement (unless
execution and delivery of a joinder agreement to the Credit Agreement is
prohibited by any Requirement of Law, in which case such Subsidiary shall have
executed and delivered to the Administrative Agent a joinder agreement to the
Guaranty (or if the Guaranty has not previously been executed, shall have
executed the Guaranty)) and has executed and delivered to the


 


21





















 


Administrative Agent such security instruments,
mortgages, ship mortgages and other documents as the Administrative Agent may
reasonably require for the purpose of adding its assets, real and personal, as
additional Collateral securing repayment of the Obligations and the Credit
Agreement or Guaranty, as applicable (each in form and substance satisfactory
to the Administrative Agent), (c) all of the Equity Securities of such
Subsidiary have been pledged in favor of the Administrative Agent by a Security
Agreement, and (d) such Subsidiary has been designated by Argosy to be a
Restricted Subsidiary by written notice thereof to the Administrative Agent,
subject to Argosy’s right to redesignate such Subsidiary as an Unrestricted
Subsidiary by written notice thereof to the Administrative Agent so long as:
(i) no Default or Event of Default has occurred and is continuing, and
(ii) giving effect to such redesignation as of the end of the most
recently ended Fiscal Quarter on a pro forma basis, no Default or Event of
Default would exist under the financial covenants set forth in Section 5.03;
provided, however, that (x) absent the prior written consent of
the Administrative Agent and the Required Lenders, each Gaming Subsidiary in
which 100% of the voting Equity Securities of such Subsidiary are beneficially
owned directly by Argosy and/or another Loan Party shall be a Restricted
Subsidiary (in which event the Borrowers shall comply, and shall cause such
Restricted Subsidiary to comply, with Section 5.01(j)) and (y) subject
to the foregoing clause (x), to the extent a newly formed or acquired
Gaming Subsidiary in which 100% of the voting Equity Securities of such
Subsidiary are beneficially owned directly by Argosy and/or another Loan Party
is not declared a Restricted Subsidiary or an Unrestricted Subsidiary within 90
days of its formation or acquisition and the Administrative Agent and the
Required Lenders have not provided written consent during such 90-day period
allowing the Borrowers to designate such Subsidiary as an Unrestricted
Subsidiary, such Subsidiary shall be deemed to have been designated by the
Borrowers as a Restricted Subsidiary.


 


“Reverse
Trigger Event” shall have the meaning set forth in the Transfer Agreement.


 


“Revolving
Lender” shall mean (a) on the Restatement Effective Date, the Lenders
having Revolving Loan Commitments at such time and (b) thereafter, the
Lenders from time to time holding Revolving Loans and Revolving Loan
Commitments after giving effect to any assignments permitted by Section 8.05(c).


 


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


 


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


 


“Revolving
Loan Commitment” shall mean, with respect to each Lender, the Dollar amount
set forth in the Register maintained with the Administrative Agent.


 


“Revolving
Loan Maturity Date” shall mean September 30, 2009; provided, that upon the
Borrowers’ written request made on or prior to September 30, 2009, such date
may be extended to September 30, 2010 with the approval of all of the Revolving
Lenders so long as no Default or Event of Default shall have occurred and be
continuing.


 


“Revolving
Loan Note” shall have the meaning given to that term in Section 2.09(b).


 


22





















 


“Revolving
Loan Pricing Grid” shall mean:


 


Revolving
Loan Pricing Grid


(rates
are expressed in basis points per annum)


 


	
  Tier

  	
   

  	
  Total Funded Debt to 

  EBITDA Ratio

  	
   

  	
  Applicable 

  Margin for 

  LIBOR 

  Loans 

  (bps)

  	
   

  	
  Applicable 

  Margin for 

  Base Rate 

  Loans 

  (bps)

  	
   

  	
  Commitment 

  Fee 

  Percentage 

  (bps)

  	
   

  
	
  1

  	
   

  	
  < 2.50

  	
   

  	
  125.0

  	
   

  	
  0

  	
   

  	
  25.0

  	
   

  
	
  2

  	
   

  	
  > 2.50, < 3.00

  	
   

  	
  137.5

  	
   

  	
  12.5

  	
   

  	
  25.0

  	
   

  
	
  3

  	
   

  	
  > 3.00, < 3.50

  	
   

  	
  150.0

  	
   

  	
  25.0

  	
   

  	
  37.5

  	
   

  
	
  4

  	
   

  	
  > 3.50, < 4.00

  	
   

  	
  175.0

  	
   

  	
  50.0

  	
   

  	
  37.5

  	
   

  
	
  5

  	
   

  	
  > 4.00, < 4.50

  	
   

  	
  200.0

  	
   

  	
  75.0

  	
   

  	
  37.5

  	
   

  
	
  6

  	
   

  	
  > 4.50

  	
   

  	
  225.0

  	
   

  	
  100.0

  	
   

  	
  50.0

  	
   

  



 


The
Applicable Margin for LIBOR Loans, the Applicable Margin for Base Rate Loans
and the Commitment Fee Percentage effective as of the Restatement Effective
Date shall be based upon the Pricing Certificate delivered on to the
Restatement Effective Date with respect to the period of four fiscal quarters
ending on June 30, 2004.  Thereafter, any
increase or decrease in the Applicable Margin for LIBOR Loans, the Applicable
Margin for Base Rate Loans and the Commitment Fee Percentage resulting from a
change in the Total Funded Debt to EBITDA Ratio shall become effective as of
the sixtieth day following the last day of the quarter prior to the date the
most recent Pricing Certificate is delivered pursuant to Section 5.01(a);
provided, however, that (1) if no Pricing Certificate is
delivered when due in accordance with such Section, then Tier 6 shall apply as
of the date of the failure to deliver such Pricing Certificate until such date
as Argosy delivers such Pricing Certificate and thereafter the Applicable
Margin for LIBOR Loans, the Applicable Margin for Base Rate Loans and the
Commitment Fee Percentage shall be based on the Total Funded Debt to EBITDA
Ratio indicated on such Pricing Certificate until such time as the Applicable
Margin for LIBOR Loans, the Applicable Margin for Base Rate Loans and the
Commitment Fee Percentage is further adjusted as set forth in this definition
and (2) if a Pricing Certificate erroneously indicates an Applicable Margin for
LIBOR Loans, Applicable Margin for Base Rate Loans or Commitment Fee Percentage
which is (x) more favorable to the Borrowers than should be afforded by the
actual calculation of the Total Funded Debt to EBITDA Ratio, the Borrowers
shall promptly pay additional interest and Commitment Fees to correct for such
error, and (y) less favorable to the Borrowers than should be afforded by the
actual calculation of the Total Funded Debt to EBITDA Ratio, the Revolving
Lenders shall promptly reimburse the Borrowers an amount equal to such excess
interest and Commitment Fees to correct for such error.


 


“Revolving
Proportionate Share” shall mean:


 


(a)           With respect to any Revolving Lender
at any time prior to the Restatement Effective Date, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the


 


23





















 


decimal point) of (i) such
Lender’s Revolving Loan Commitment at such time to (ii) the Total
Revolving Loan Commitment at such time;


 


(b)           With respect to any Revolving Lender
at any time after the Restatement Effective Date and prior to the Revolving
Loan Maturity Date, the ratio (expressed as a percentage rounded to the eighth
digit to the right of the decimal point) of (i) such Lender’s Revolving Loan
Commitment at such time to (ii) the Total Revolving Loan Commitment at
such time; and


 


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


 


 “Security Documents” shall mean and
include the Existing Assignments, the Existing Mortgages, the Existing Security
Agreements, the Existing Ship Mortgages, the Cash Collateral Pledge Agreement
and the Trademark Security Agreement, each as amended (or amended and restated)
in connection with this Agreement in form and substance satisfactory to the
Administrative Agent and the Lenders, all documents evidencing the creation or
perfection of a security interest by any Subsidiary of a Borrower pursuant to Section
5.01(j), and all other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing statements and fixture
filings and landlord waivers) delivered to the Administrative Agent or any
Lender in connection with any Collateral or to secure the Obligations.


 


“Senior
Funded Debt” shall mean, as at any date of determination, all Total Funded
Debt of the Loan Parties that is not Subordinated Indebtedness.


 


“Senior
Funded Debt to EBITDA Ratio” shall mean, as of each date of determination,
the ratio of (a) Senior Funded Debt as of that date, to (b) EBITDA for the four
consecutive fiscal quarter period most recently ended.


 


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


 


24





















 


“Subordinated
Indebtedness” shall mean the Indebtedness evidenced by the 2001 Senior
Subordinated Notes, the Indebtedness evidenced by the 2004 Senior Subordinated
Notes and all other subordinated Indebtedness permitted by Section
5.02(a)(viii) or 5.02(a)(xii).


 


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


 


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


 


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


 


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


 


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


 


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


 


“Swing
Line Note” shall have the meaning given to that term in Section 2.09(d).


 


“Swing
Line Sublimit” shall mean an amount equal to the lesser of (a) $20,000,000
and (b) the Total Revolving Loan Commitment. 
The Swing Line Sublimit is part of, and not in addition to, the Total
Revolving Loan Commitment.


 


“Syndication
Agent” shall mean each of Calyon New York Branch and Bank of Scotland in
their respective capacities as co-syndication agent.


 


“Taxes”
shall have the meaning given to such term in Section 2.13(a).


 


“Term
Lender” shall mean (a) on the Restatement Effective Date, the Lenders
having Term Loan Commitments at such time and (b) thereafter, the Lenders
from time to time holding Term Loans after giving effect to any assignments
permitted by Section 8.05(c)


 


“Term
Loan” shall have the meaning given to that term in Section 2.02(a).


 


25





















 


“Term
Loan Borrowing” shall mean the borrowing by the Borrowers consisting of the
Term Loans made by each of the Term Lenders.


 


“Term
Loan Commitment” shall mean, with respect to each Lender, the Dollar amount
set forth under the caption “Term Loan Commitment” in the Register maintained
by the Administrative Agent.


 


“Term
Loan Installment Date” shall have the meaning given to that term in Section 2.02(f).


 


“Term
Loan Maturity Date” shall mean June 30, 2011.


 


“Term
Loan Note” shall have the meaning given to that term in Section 2.09(c).


 


“Term
Proportionate Share” shall mean:


 


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


 


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


 


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


 


“Total Funded Debt” shall mean the obligations
of the Loan Parties on a consolidated basis which are described in clauses (a),
(b), (c), (d), (e) and (g) of the definition of “Indebtedness”; provided,
however, that guaranties by any Loan Party of Indebtedness of any Person
in an aggregate amount of up to $250,000,000 shall not constitute Total Funded
Debt except to the extent the amount of Indebtedness guaranteed is required to
be reflected as a liability on the Borrowers’ balance sheet in accordance with
GAAP.


 


“Total
Funded Debt to EBITDA Ratio” shall mean, as of each date of determination,
the ratio of (a) Total Funded Debt as of that date, to (b) EBITDA for the
four fiscal quarter period most recently ended.


 


26





















 


“Total
Revolving Loan Commitment” shall mean, at any time, Five Hundred Million
Dollars ($500,000,000) or, if such amount is reduced pursuant to Section
2.05 or increased pursuant to Section 2.17, the amount to which so
reduced or increased and in effect at such time.


 


“Total
Term Loan Commitment” shall mean, subject to Section 2.05(c)(iii), One Hundred Seventy Five Million Dollars
($175,000,000).


 


“Trade
Bank” shall mean Wells Fargo HSBC Trade Bank, N.A.


 


“Trademark
Security Agreement” shall mean that certain Second Amended and Restated
Trademark Security Agreement, dated as of July 31, 2001, by certain of the
Borrowers in favor of the Administrative Agent, as further amended or amended
and restated, in form and substance satisfactory to the Administrative Agent.


 


“Transfer
Agreement” shall mean that certain Transfer of Ownership Agreement, dated
as of July 24, 2001, among Argosy, Empress Casino Joliet and the Illinois
Gaming Board, as amended, restated, supplemented or otherwise modified from
time to time.


 


“Trigger
Event” shall have the meaning set forth in the Transfer Agreement.


 


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


 


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


 


“Unrestricted
Subsidiaries” shall mean all Subsidiaries of Argosy other than the
Restricted Subsidiaries.


 


“Unused
Commitment” shall mean, at any time, the remainder of (a) the Total
Revolving Loan Commitment at such time minus (b) the sum of (i) the
Effective Amount of all Revolving Loans outstanding at such time and (ii) the
Effective Amount of all L/C Obligations outstanding at such time.


 


“Vessels”
shall mean, collectively, the documented and undocumented vessels, barges,
watercraft and floating structures utilized by the Loan Parties, as of the
Restatement Effective Date or thereafter, in the operation of their riverboat
casino businesses.


 


“Wells
Fargo” shall mean Wells Fargo Bank, National Association.


 


1.02.        GAAP.  Unless
otherwise indicated in this Agreement or any other Credit Document, all
accounting terms used in this Agreement or any other Credit Document shall be
construed, and all accounting and financial computations hereunder or
thereunder shall be computed, in accordance with GAAP.  If GAAP changes during the term of this
Agreement such that any covenants contained herein would then be calculated in
a different manner or with different components, the Borrowers, the Lenders and
the Administrative Agent agree to negotiate in good faith to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating the Borrowers’ financial condition to substantially the



 


27





















 


same
criteria as were effective prior to such change in GAAP; provided, however,
that, until the Borrowers, the Lenders and the Administrative Agent so amend
this Agreement, all such covenants shall be calculated in accordance with GAAP
as in effect immediately prior to such change.


 


1.03.        Headings. 
Headings in this Agreement and each of the other Credit Documents are
for convenience of reference only and are not part of the substance hereof or
thereof.


 


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


 


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


 


1.06.        Governing Law. 
Unless otherwise expressly provided in any Credit Document, this
Agreement and each of the other Credit Documents shall be governed by and
construed in accordance with the laws of the State of New York.


 


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


 


1.08.        Entire Agreement.  This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of the
Borrowers, the Lenders and the Administrative Agent and supersede any and all
prior agreements, negotiations, correspondence, understandings and
communications among the parties, whether written or oral, respecting the
subject matter hereof (excluding the Administrative Agent’s Fee Letter).  To the extent that any term
or provision of this Agreement conflicts with any of the terms or provisions of
the Security Documents in effect as of the Restatement Effective Date, the
terms and provisions of this Agreement shall control except as otherwise
required by applicable law.


 


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


 


1.10.        References.


 


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


 


28





















 


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


 


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


 


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


 


(e)           References in this Agreement or any
other Credit Document to the “Class” of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Loan or a Term Loan, each of
which constitutes a Class.


 


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


 


ARTICLE II.              CREDIT FACILITIES.


 


2.01.        Revolving Loan Facility.


 


(a)           Revolving Loan Availability.  Subject to the terms and conditions of this
Agreement (including the amount limitations set forth in Section 2.05),
each Revolving Lender severally agrees to advance to the Borrowers from time to
time during the period beginning on the Restatement Effective Date and ending
on the Revolving Loan Maturity Date such loans as the Borrowers may request
under this Section 2.01 (individually, a “Revolving Loan”); provided,
however, that (i) the sum of (A) the Effective Amount of all Revolving
Loans made by such Revolving Lender at any time outstanding and (B) such
Revolving Lender’s Revolving Proportionate Share of the Effective Amount of all
L/C Obligations and all Swing Line Loans at any time outstanding shall not
exceed such Revolving Lender’s Revolving Loan Commitment at such time and (ii)
the sum of (A) the Effective Amount of all Revolving Loans made by all the
Revolving Lenders at any time outstanding and (B) the Effective Amount of all
L/C Obligations


 


29





















 


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


 


(b)           Notice of Revolving Loan Borrowing.  The Borrowers shall request each Revolving
Loan Borrowing by delivering to the Administrative Agent an irrevocable written
notice in the form of Exhibit A, appropriately completed (a “Notice
of Revolving Loan Borrowing”), which specifies, among other things:


 


(i)            The principal amount of the requested
Revolving Loan Borrowing, which shall be in the amount of (A) $1,000,000 or an
integral multiple of $100,000 in excess thereof in the case of a Borrowing
consisting of Base Rate Loans; or (B) $5,000,000 or an integral multiple of
$1,000,000 in excess thereof in the case of a Borrowing consisting of LIBOR
Loans;


 


(ii)           Whether the requested Revolving Loan
Borrowing is to consist of Base Rate Loans or LIBOR Loans;


 


(iii)          If the requested Revolving Loan
Borrowing is to consist of LIBOR Loans, the initial Interest Periods selected
by the Borrowers for such LIBOR Loans in accordance with Section 2.01(e);
and


 


(iv)          The date of the
requested Revolving Loan Borrowing, which date shall be a Business Day;


 


provided,
however, that all Revolving Loan Borrowings made during the period
commencing on the date of this Agreement and ending three (3) Business Days
thereafter shall consist solely of Base Rate Loans.  The Borrowers shall give each Notice of
Revolving Loan Borrowing to the Administrative Agent not later than 11:00 a.m.
at least three (3) Business Days before the date of the requested Revolving
Loan Borrowing in the case of a Revolving Loan Borrowing consisting of LIBOR
Loans and not later than 11:00 a.m. at least one (1) Business Day before the
date of the requested Revolving Loan Borrowing in the case of a Revolving Loan
Borrowing consisting of Base Rate Loans. 
Each Notice of Revolving Loan Borrowing shall be delivered by
first-class mail or facsimile to the Administrative Agent at the office or
facsimile number and during the hours specified in Section 8.01.  The Administrative Agent shall promptly
notify each Lender of the contents of each Notice of Revolving Loan Borrowing
and of the amount and Type of (and, if applicable, the Interest Period for) the
Revolving Loan to be made by such Lender as part of the requested Revolving
Loan Borrowing.


 


(c)           Revolving Loan Interest Rates.  The Borrowers shall pay interest on the
unpaid principal amount of each Revolving Loan from the date of such Revolving
Loan until the maturity thereof, at one of the following rates per annum:


 


30





















 


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


 


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


 


All
Revolving Loans in each Revolving Loan Borrowing shall, at any given time prior
to maturity, bear interest at one, and only one, of the above rates.  The number of Revolving Loan Borrowings
consisting of LIBOR Loans shall not exceed ten (10) at any time.


 


(d)           Conversion of Revolving Loans.  Subject to Section 2.14, the Borrowers
may convert any Revolving Loan Borrowing from one Type of Revolving Loan
Borrowing to the other Type; provided, however, that no Base Rate
Loan may be converted into a LIBOR Loan after the occurrence and during the
continuance of an Event of Default.  The
Borrowers shall request such a conversion by an irrevocable written notice to
the Administrative Agent in the form of Exhibit B, appropriately
completed (a “Notice of Revolving Loan Conversion”), which specifies,
among other things:


 


(i)            The Revolving Loan Borrowing which is
to be converted;


 


(ii)           The Type of Revolving Loan Borrowing
into which such Revolving Loan Borrowing is to be converted;


 


(iii)          If such Revolving Loan Borrowing is to
be converted into a Revolving Loan Borrowing consisting of LIBOR Loans, the
initial Interest Period selected by the Borrowers for such LIBOR Loans in
accordance with Section 2.01(e); and


 


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


 


The
Borrowers shall give each Notice of Revolving Loan Conversion to the Administrative
Agent not later than 11:00 a.m. at least three (3) Business Days before the
date of the requested conversion.  Each
Notice of Revolving Loan Conversion shall be delivered by first-class mail or
facsimile to the Administrative Agent at the office or to the facsimile number
and during the hours specified in Section 8.01.  The Administrative Agent shall promptly
notify each Lender of the contents of each Notice of Revolving Loan Conversion.


 


(e)           LIBOR Loan Interest Periods.


 


(i)            The initial and each subsequent
Interest Period selected by the Borrowers for a Revolving Loan Borrowing
consisting of LIBOR Loans shall be one (1), two (2), three (3) or six (6)
months; provided, however, that (A) any Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless such next Business Day falls in another
calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day; (B) any Interest Period


 


31





















 


which
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar month
and (C) no Interest Period shall end after the Revolving Loan Maturity Date.


 


(ii)           The Borrowers shall notify the
Administrative Agent by an irrevocable written notice in the form of Exhibit
C, appropriately completed (a “Notice of Revolving Loan Interest Period
Selection”), not later than 11:00 a.m. at least three (3) Business Days
prior to the last day of each Interest Period for a Revolving Loan Borrowing
consisting of LIBOR Loans of the Interest Period selected by the Borrowers for
the next succeeding Interest Period for such LIBOR Loans; provided, however,
that no LIBOR Loan shall be continued for an additional Interest Period after
the occurrence and during the continuance of an Event of Default.  Each Notice of Revolving Loan Interest Period
Selection shall be given by first-class mail or facsimile to the office or the
facsimile number and during the hours specified in Section 8.01.  If (A) the Borrowers fails to notify the
Administrative Agent of the next Interest Period for a Revolving Loan Borrowing
consisting of LIBOR Loans in accordance with this Section 2.01(e)
or (B) an Event of Default has occurred and is continuing on the last day of an
Interest Period for any LIBOR Loan, such LIBOR Loan(s) shall automatically convert
to Base Rate Loan(s) on the last day of the current Interest Period therefor.


 


(f)            Scheduled Revolving Loan Payments.  The Borrowers shall repay the principal
amount of the Revolving Loans on the Revolving Loan Maturity Date.  The Borrowers shall pay accrued interest on
the unpaid principal amount of each Revolving Loan in arrears (i) in the case
of a Base Rate Loan, on the last Business Day of each March, June, September
and December, (ii) in the case of a LIBOR Loan, on the last day of each Interest
Period therefor (and, if any such Interest Period is longer than three (3)
months, every three (3) months) and upon prepayment (to the extent thereof) and
(iii) in the case of all Revolving Loans, at maturity.


 


(g)           Purpose.  The Borrowers shall use the proceeds of the
Revolving Loans (i) to continue and convert R/C Funded Outstandings (as defined
in the Existing Credit Agreement) into Revolving Loans in accordance with Section
8.14, (ii) together with the proceeds of the Term Loans, to repay the
principal amount of, and all interest accrued on, the “Term Loan” under and as
defined in the Existing Credit Agreement, (iii) to refinance other existing
Indebtedness of the Borrowers, (iv) to finance capital expenditures and
permitted acquisitions and (v) to provide for working capital and other general
corporate purposes of the Borrowers.


 


2.02.        Term Loan Facility.


 


(a)           Term Loan Availability.  Subject to the terms and conditions of this
Agreement, each Term Lender severally agrees to advance to the Borrowers in a
single advance on the Restatement Effective Date a loan under this Section
2.02 (individually, a “Term Loan”); provided, however,
that (i) the principal amount of the Term Loan made by such Lender shall not
exceed such Lender’s Term Loan Commitment on such date and (ii) the aggregate
principal amount of all Term Loans made by all Lenders shall not exceed the
Total Term Loan Commitment on such date. 
The Term Loans shall be made on a pro rata basis
by the Term Lenders in accordance with their respective Term Proportionate
Shares, with the Term Loan Borrowing to be comprised of a Term Loan by each
Term Lender equal to such Lender’s Term 


 


32





















 


Proportionate Share of the Term Loan Borrowing.  The Borrowers may not reborrow the principal
amount of a Term Loan after repayment or prepayment thereof.


 


(b)           Term Loan Borrowing.  Each Term Lender severally agrees to make the
proceeds of its Term Loan available to the Borrowers on the proposed
Restatement Effective Date selected by the Borrowers; provided, that the
entire amount of the Term Loan Borrowing made on the Restatement Effective Date
shall be a Base Rate Portion.  If for any
reason the Restatement Effective Date shall occur on a date other than the date
proposed by the Borrowers and the Term Lenders shall have made the proceeds of
their Term Loans available to the Administrative Agent in anticipation of a
funding of the Term Loans, then (i) the Administrative Agent shall retain such
funds and, if practicable, invest such funds in overnight securities selected
by the Administrative Agent and (ii) the Borrowers shall pay interest on such
funds to the Term Lenders at a per annum rate
equal to the Base Rate plus 0.50% (after credit for any interest earned on such
overnight securities), whether or not the Restatement Effective Date shall
occur.  If for any reason the Restatement
Effective Date shall not occur on the next succeeding Business Day, the
Administrative Agent shall return such funds to the Term Lenders by 3:00 p.m.
on such next succeeding Business Day.


 


(c)           Term Loan Interest Rates.  The Borrowers shall pay interest on the
unpaid principal amount of each Term Loan from the date of such Term Loan until
the maturity thereof, at the following rates per annum:


 


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


 


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


 


Each
Base Rate Portion of the Term Loan Borrowing shall be in a minimum amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof and each LIBOR
Portion of the Term Loan Borrowing shall be in a minimum amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof (except to the extent
that any lesser Portion results from a mandatory prepayment of the Term Loans
pursuant to Section 2.07(c)).  The
number of LIBOR Portions of the Term Loan Borrowing shall not exceed six (6) at
any time.


 


(d)           Conversion of Term Loan Portions.  The Borrowers may convert any Portion of the
Term Loan Borrowing from one Type of Portion to another Type; provided, however,
that any conversion of a LIBOR Portion into a Base Rate Portion shall be made
on, and only on, the last day of an Interest Period for such LIBOR Portion and
that no Base Rate Portion may be converted into a LIBOR Portion after the
occurrence and during the continuance of an Event of Default.  The Borrowers shall request such a conversion
by an irrevocable written notice to the Administrative Agent in the form of Exhibit
D, appropriately completed (a “Notice of Term Loan Conversion”),
which specifies, among other things:


 


33





















 


(i)            The Portion of the Term Loan
Borrowing which is to be converted;


 


(ii)           The amount and Type of each Portion of
the Term Loan Borrowing into which it is to be converted;


 


(iii)          If any Portion of the Term Loan
Borrowing is to be converted into a LIBOR Portion, the initial Interest Period
selected by the Borrowers for such Portion in accordance with Section
2.02(e); and


 


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


 


The
Borrowers shall give each Notice of Term Loan Conversion to the Administrative
Agent not later than 11:00 a.m. at least three (3) Business Days before the
date of the requested conversion.  Each
Notice of Term Loan Conversion shall be delivered by first-class mail or
facsimile to the Administrative Agent at the office or to the facsimile number
and during the hours specified in Section 8.01.  The Administrative Agent shall promptly
notify each Lender of the contents of each Notice of Term Loan Conversion.


 


(e)           LIBOR Portion Interest Periods.


 


(i)            The initial and each subsequent
Interest Period selected by the Borrowers for a LIBOR Portion of the Term Loan
Borrowing shall be one (1), two (2), three (3) or six (6) months; provided,
however, that (A) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless such next Business Day falls in another calendar month, in which
case such Interest Period shall end on the immediately preceding Business Day;
(B) any Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar; (C) no Interest Period shall end after a Term Loan
Installment Date unless, after giving effect to such Interest Period, the
aggregate principal amount of the Base Rate Portion and all LIBOR Portions having
Interest Periods ending on or prior to such Term Loan Installment Date equals
or exceeds the principal payment due on such Term Loan Installment Date; (D) no
Interest Period shall end after the Term Loan Maturity Date; and (E) no LIBOR
Portion of the Term Loan Borrowing shall be continued for an additional
Interest Period after the occurrence and during the continuance of an Event of
Default.


 


(ii)           The Borrowers shall notify the
Administrative Agent by an irrevocable written notice in the form of Exhibit
E, appropriately completed (a “Notice of Term Loan Interest Period
Selection”), not later than 11:00 a.m. at least three (3) Business Days
prior to the last day of each Interest Period for a LIBOR Portion of the Term
Loan Borrowing of the Interest Period selected by the Borrowers for the next
succeeding Interest Period for such Portion. 
Each Notice of Term Loan Interest Period Selection shall be given by
first-class mail or facsimile to the office or the facsimile number and during
the hours specified in Section 8.01. 
If (A) the Borrowers fail to notify the Administrative Agent of the next
Interest Period for a LIBOR Portion of the Term Loan Borrowing in accordance
with this Section 2.02(e) or (B) an Event of Default has occurred and is
continuing on the last day of an Interest Period for any LIBOR


 


34





















 


Portion
of the Term Loan Borrowing, such LIBOR Portion shall automatically convert to a
Base Rate Portion on the last day of the current Interest Period therefor.


 


(f)            Scheduled Term Loan Payments.  The Borrowers shall repay the principal
amount of the Term Loans in (i) twenty-three installments of $437,500 each,
payable on the last  Business Day
in each March, June, September and December, commencing on December 31, 2004
and ending on June 30, 2010 and (ii) four installments of $41,234,375 each,
payable on the last  Business Day
in each March, June, September and December, commencing on September 30, 2010
and ending on the Term Loan Maturity Date (each date referred to in clause (i)
or clause (ii), a “Term Loan Installment Date”); provided, however,
that the principal payment due on the Term Loan Maturity Date shall be in the
amount necessary to pay all remaining unpaid principal on the Term Loans.  The Borrowers shall pay accrued interest on
the unpaid principal amount of each Term Loan in arrears (x) in the case of a
Base Rate Portion, on the last  Business Day
in each March, June, September and December, (y) in the case of a LIBOR
Portion, on the last day of each Interest Period (and if any such Interest
Period is equal to or longer than three (3) months, every three (3) months) and
upon prepayment (to the extent thereof); and (z) in the case of all Term Loans,
at maturity.


 


(g)           Purpose.  The Borrowers shall use the proceeds of the
Term Loans, together with a portion of the proceeds of the Revolving Loans, to
repay the principal amount of, and all interest accrued on, the “Term Loan”
under and as defined the Existing Credit Agreement.


 


2.03.        Letters of Credit.


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of
the other Revolving Lenders set forth in this Section 2.03, from time to
time on any Business Day during the period from the Restatement Effective Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of any Borrower, and to amend or renew Letters of Credit previously
issued by it, in accordance with subsection (b) below; and (B) the Revolving
Lenders severally agree to participate in Letters of Credit issued for the
account of any Borrower; provided, that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit,
and no Revolving Lender shall be obligated to participate in, any Letter of
Credit if as of the date of such L/C Credit Extension, (x) the aggregate
Effective Amount of the Revolving Loans of any Revolving Lender, plus
such Lender’s Revolving Proportionate Share of the Effective Amount of all L/C
Obligations, plus such Lender’s Revolving Proportionate Share of the
Effective Amount of all Swing Line Loans would exceed such Lender’s Revolving
Loan Commitment, or (y) the Effective 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 Borrowers’ ability to obtain Letters of Credit
shall be fully revolving, and accordingly any 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.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Restatement
Effective Date shall be subject to and governed by the terms and conditions
hereof.


 


35





















 


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


 


(A)          any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the
L/C Issuer from issuing such Letter of Credit, or any Requirement of Law
applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the
L/C Issuer (i) shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or (ii) unless agreed to be reimbursed by the Borrower,
(1) shall impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Restatement Effective
Date, or (2) shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Restatement Effective Date and which
the L/C Issuer in good faith deems material to it;


 


(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
Revolving Lenders have approved such expiry date;


 


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


 


(D)          such Letter of
Credit is in a face amount less than $100,000, in the case of a commercial
Letter of Credit, or $250,000, in the case of a standby Letter of Credit, or
denominated in a currency other than Dollars.


 


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


 


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


 


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


 


36





















 


certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require.  In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which date shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require.


 


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


 


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


 


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


 


37





















 


(c)           Drawings and Reimbursements;
Funding of Participations.


 


(i)            Upon any drawing under any Letter of
Credit, the L/C Issuer shall notify the Borrowers and the Administrative Agent
thereof.  Not later than 11:00 a.m. on
the date of any payment by the L/C Issuer under a Letter of Credit (each such
date, an “Honor Date”), the Borrowers shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing.  If the Borrowers fail to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and such Lender’s Revolving
Proportionate Share thereof.  In such
event, the Borrowers shall be deemed to have requested a Revolving Loan
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.01 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Total Revolving Loan
Commitment and the conditions set forth in Section 3.02 (other than the
delivery of a Revolving Loan Notice). 
Any notice given by the L/C Issuer or the Administrative Agent pursuant
to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.


 


(ii)           Each Revolving Lender (including the
Lender acting as 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 L/C Issuer at the Administrative Agent’s Office in an amount equal to
its Revolving Proportionate Share of the Unreimbursed Amount not later than
11:00 a.m. on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the applicable Borrower in such amount.  The Administrative Agent shall remit the funds
so received to the L/C Issuer.


 


(iii)          With respect to any Unreimbursed Amount
that is not fully repaid by the applicable Borrower or not fully refinanced by
a Revolving Loan Borrowing because the conditions set forth in Section 3.02
cannot be satisfied or for any other reason, such Borrower shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
rate applicable to Revolving Loans upon the occurrence and during the
continuance of an Event of Default.  In
such event, each Revolving Lender’s payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(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
Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section
2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter
of Credit, interest in respect of such Revolving Lender’s Revolving
Proportionate Share of such amount shall be solely for the account of the L/C
Issuer.


 


(v)           Each Revolving Lender’s obligation to
make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as 


 


38





















 


contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C
Issuer, any Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing.  Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrowers to reimburse
the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.


 


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


 


(d)           Repayment of Participations.


 


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


 


(ii)           If any payment received by the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)
is required to be returned, each Revolving Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Revolving
Proportionate Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such 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 Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit, and to repay each
L/C Borrowing and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Revolving Loans, shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement 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;


 


39





















 


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


 


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


 


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


 


(v)           any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrowers to the extent such circumstance or happening does
not result from the gross negligence or willful misconduct of the L/C Issuer.


 


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


 


(f)            Role of L/C Issuer.  Each of the Borrowers and the Lenders agrees
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.  Neither the Administrative Agent nor the L/C
Issuer nor any of their respective affiliates, directors, officers, employees,
agents or advisors nor any of the correspondents, participants or assignees of
the L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the
Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or (iii)
the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit
Application.  The Borrowers hereby assume
all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and


 


40





















 


shall
not, preclude the Borrowers’ pursuing such rights and remedies as they may have
against the beneficiary or transferee at law or under any other agreement.  Neither the Administrative Agent nor the L/C
Issuer nor any of their respective affiliates, directors, officers, employees,
agents or advisors nor any of the correspondents, participants or assignees of
the L/C Issuer shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrowers
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to
the Borrowers, to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by the Borrowers which the Borrowers
prove were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrowers shall
immediately Cash Collateralize the Obligations in an amount equal to the then
Effective Amount of the L/C Obligations.


 


(h)           Applicability of ISP98 and UCP.  Unless otherwise expressly agreed by the L/C
Issuer and the Borrowers when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time
of issuance) shall apply to each standby Letter of Credit, and (ii) the rules
of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the “ICC”) at the
time of issuance (including the ICC decision published by the Commission on
Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each commercial Letter of Credit.


 


(i)            Letter of Credit Fees.  The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its Revolving
Proportionate Share a Letter of Credit fee for each Letter of Credit equal to
the Applicable Margin for LIBOR Loans times the actual daily maximum
amount available to be drawn under each such Letter of Credit.  Such fee for each Letter of Credit shall be
due and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, and on the Letter of Credit Expiration Date.  If there is any change in the Applicable
Margin for LIBOR Loans during any quarter, the actual daily amount of each
Letter of Credit shall be computed and multiplied by the Applicable Margin for
LIBOR


 


41





















 


Loans
separately for each period during such quarter that such Applicable Margin for
LIBOR Loans was in effect.


 


(j)            Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer. 
The Borrowers shall pay directly to the L/C Issuer for its own account a
fronting fee in an amount with respect to each Letter of Credit equal to 1/4 of
1% of the amount of such Letter of Credit, due and payable upon each L/C Credit
Extension with respect to such Letter of Credit; provided, that in the
case of an increase in the amount of a Letter of Credit after the issuance
thereof, such fronting fee shall be payable only on the increased amount
thereof.  In addition, the Borrowers
shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect.  Such fees and charges
are due and payable on demand and are nonrefundable.


 


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


 


(l)            Trade Bank as L/C Issuer.  The parties hereto acknowledge and agree
that, at its option, Wells Fargo, as L/C Issuer may arrange for Letters of
Credit to be issued by Trade Bank as agent for Wells Fargo.  All parties hereto understand and agree that
to the extent any Letters of Credit are issued by Trade Bank as agent for Wells
Fargo, (i) Trade Bank is agent only to Wells Fargo and not to the Borrowers and
has no obligations to the Borrowers, (ii) the Letters of Credit issued by Trade
Bank will be deemed Letters of Credit issued by the L/C Issuer for all purposes
hereunder and (iii) any of the obligations performed or rights exercised
pursuant to or in connection with the issuance of any Letter of Credit by Trade
Bank shall be deemed obligations performed or rights exercised by Wells Fargo as
L/C Issuer.  To the extent that the L/C
Issuer is required to provide any notices to, or take any other actions for the
benefit of, the Administrative Agent hereunder, with respect to any Letter of
Credit issued by Trade Bank, no such notice or action shall be required.


 


2.04.        Swing Line.


 


(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 Borrowers from time to time on any Business Day during the
period from the Restatement Effective Date to the Revolving Loan Maturity Date
in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Effective Amount of Revolving Loans of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of
such Lender’s Commitment; provided, however, that after giving
effect to any Swing Line Loan (i) the aggregate Effective Amount of the
Revolving Loans of any Lender, plus such Lender’s Revolving
Proportionate Share of the Effective Amount of all L/C Obligations, plus
such Lender’s Revolving Proportionate Share of the Effective Amount of all
Swing Line Loans shall not exceed such Lender’s Revolving Loan Commitment and
(ii) the aggregate Effective Amount of all Revolving Loans made by all the
Revolving Lenders at any time outstanding plus the Effective Amount of
all L/C Obligations and Swing Line Loans at any time outstanding shall not


 


42





















 


exceed the Total Revolving Loan
Commitment at such time, and provided, further, that the Swing
Line Lender shall not make any Swing Line Loan to refinance an outstanding
Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrowers may borrow under this Section 2.04, prepay
under Section 2.07, and reborrow under this Section 2.04.  Immediately upon the making of a Swing Line
Loan, each 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 Revolving Proportionate Share times the amount of such Swing
Line Loan.


 


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Borrowers’ irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
11:00 a.m., on the requested borrowing date, and shall specify (i) the amount
to be borrowed, which amount shall be a minimum of $100,000, and (ii) the
requested borrowing date, which date 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 Notice of Swing Line Borrowing, appropriately completed and signed by
an authorized officer of the Borrowers. 
Promptly after receipt by the Swing Line Lender of any telephonic Notice
of Swing Line Borrowing, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Notice of Swing Line Borrowing and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or in writing)
of the contents thereof.  Unless the
Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 12:00
noon, on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.04(a), or
(B) that one or more of the applicable conditions specified in Section 3.02
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 1:00 p.m., on the borrowing date
specified in such Notice of Swing Line Borrowing, make the amount of its Swing
Line Loan available to the applicable Borrower at its office by crediting the
account of such Borrower on the books of the Swing Line Lender in immediately
available funds.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            The Swing Line Lender at any time in
its sole and absolute discretion may request, on behalf of the Borrowers (which
hereby irrevocably requests the Swing Line Lender to act on its behalf), that
each Revolving Lender make a Base Rate Loan in an amount equal to such
Revolving Lender’s Revolving Proportionate Share of the amount of Swing Line
Loans then outstanding.  Such request
shall be made in accordance with the requirements of Section 2.01,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Total
Revolving Loan Commitment and the conditions set forth in Section 3.02.  The Swing Line Lender shall furnish the
Borrowers with a copy of the applicable Revolving Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Revolving Lender shall make an amount
equal to its Revolving Proportionate Share of the amount specified in such Revolving
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


 


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12:00 noon,
on the day specified in such Revolving Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolving Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Borrowers in such amount.  The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


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


 


(iii)          If any Revolving Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such 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 Lender’s obligation to
make Revolving Loans or to purchase and fund 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 set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, any Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or Event of Default,
or (C) any other occurrence, event or condition, whether or not similar to any
of the foregoing.  Any such purchase of
participations shall not relieve or otherwise impair the obligation of the
Borrowers to repay Swing Line Loans, together with interest as provided herein.


 


(d)           Repayment of Participations.


 


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


 


(ii)           If any payment received by the Swing
Line Lender in respect of principal or interest on any Swing Line Loan is
required to be returned by the Swing Line Lender, each Revolving Lender shall
pay to the Swing Line Lender its Revolving Proportionate Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such



 


44





















 


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.  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 minus one percent (1.00%).  The Swing Line Lender shall be responsible
for invoicing the Borrowers for interest on the Swing Line Loans.  Until each Revolving Lender funds its Base Rate
Loan or participation pursuant to this Section 2.04 to refinance
such Revolving Lender’s Revolving Proportionate Share of any Swing Line Loan,
interest in respect of such Revolving Proportionate Share shall be solely for
the account of the Swing Line Lender. 
The Borrowers shall pay accrued interest on the unpaid principal amount
of each Swing Line Loan upon prepayment (to the extent thereof) and at
maturity.


 


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


 


2.05.        Amount Limitations, Commitment Reductions,
Etc.


 


(a)           Total Revolving Loan Commitment;
Total Term Loan Commitment.  The
Effective Amount of all Revolving Loans, L/C Obligations and Swing Line Loans
outstanding at any time shall not exceed the Total Revolving Loan Commitment at
such time, and the aggregate principal amount of all Term Loans made on the
Restatement Effective Date shall not exceed the Total Term Loan Commitment on
the date thereof.


 


(b)           Optional Reduction or Cancellation
of Commitments.  The Borrowers may,
upon five (5) Business Days written notice to the Administrative Agent,
permanently reduce the Total Revolving Loan Commitment by the amount of Five
Million Dollars ($5,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess thereof or cancel the Total Revolving Loan Commitment in
its entirety; provided, however, that:


 


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


 


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


 


(c)           Mandatory Reduction or Termination
of Commitments.


 


(i)            On each date upon which a mandatory
prepayment of the Term Loans pursuant to clause (iii), (iv), (v) or (vi) of Section 2.07(c)
is required which exceeds in amount the Effective Amount of the Term Loans
outstanding at such time (or would be required if any Term Loans were then
outstanding), then the Total Revolving Loan Commitment shall be permanently
reduced by the amount, if any, by which the amount required to be applied
pursuant to said clauses (determined as if an unlimited amount of Term
Loans were actually outstanding) 


 


45





















 


exceeds the aggregate principal
amount of the Term Loans then outstanding (whether or not any Revolving Loans,
Swing Line Loans or L/C Obligations shall then be outstanding).


 


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


 


(iii)          The Total Term Loan Commitment shall be
automatically reduced to zero at the close of business on the Restatement
Effective Date.


 


(d)           Effect of Commitment Reductions.  From the effective date of any reduction of
the Total Revolving Loan Commitment, the Commitment Fees payable pursuant to Section
2.06(b) shall be computed on the basis of the Total Revolving Loan
Commitment as so reduced.  Once reduced
or cancelled, the Total Revolving Loan Commitment may not be increased or
reinstated without the prior written consent of all Lenders.  Any reduction of the Total Revolving Loan
Commitment pursuant to Section 2.05(b) shall be applied ratably to
reduce each Lender’s Revolving Loan Commitment in accordance with clause (i) of
Section 2.11(a).


 


2.06.        Fees.


 


(a)           Administrative Agent’s Fee.  The Borrowers shall pay to the Administrative
Agent, for its own account, agent’s fees and other compensation in the amounts
and at the times set forth in the Administrative Agent’s Fee Letter.


 


(b)           Commitment Fees.  The Borrowers shall pay to the Administrative
Agent, for the ratable benefit of the Revolving Lenders as provided in clause
(v) of Section 2.11(a), commitment fees (collectively, the “Commitment
Fees”) equal to the Commitment Fee Percentage of the daily average Unused
Commitment for the period beginning on the date of this Agreement and ending on
the Revolving Loan Maturity Date.  The
Borrowers shall pay the Commitment Fees in arrears on the last Business Day in
each March, June, September and December (commencing September 30, 2004 for the
3-month period ending on such date) and on the Revolving Loan Maturity Date (or
if the Total Revolving Commitment is cancelled on a date prior to the Revolving
Loan Maturity Date, on such prior date). 
For the avoidance of doubt, Swing Line Loans, while considered
outstanding for purposes of testing availability, do not constitute usage for
purposes of calculating the Unused Commitment when determining the Commitment
Fees.


 


2.07.        Prepayments.


 


(a)           Terms of All Prepayments.  Upon the prepayment of any Loan (whether such
prepayment is an optional prepayment under Section 2.07(b), a mandatory
prepayment required by Section 2.07(c) or a mandatory prepayment
required by any other provision of this Agreement or the other Credit
Documents, including a prepayment upon acceleration), the Borrowers shall pay
to the Lender that made such Loan (i) all accrued interest (if such prepayment
is the prepayment of a LIBOR Loan or of a LIBOR Portion) and fees to the date
of such prepayment on the amount prepaid and (ii) if such prepayment is the
prepayment of a LIBOR Loan or of a LIBOR Portion on a day other than the last
day of an Interest Period for such LIBOR Loan or such LIBOR Portion, all
amounts payable to such Lender pursuant to Section 2.14.


 


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(b)                                 Optional
Prepayments.


 


(i)                                   At
their option, the Borrowers may, upon one (1) Business Day’s notice to the
Administrative Agent in the case of Base Rate Loans or Base Rate Portions or
three (3) Business Days’ notice to the Administrative Agent in the case of
LIBOR Loans or LIBOR Portions, prepay the Loans in any Borrowing in part, in a
minimum principal amount of (A) in the case of Base Rate Loans or Base Rate
Portions, $1,000,000 or an integral multiple of $100,000 in excess thereof, or
(B) in the case of LIBOR Loans or LIBOR Portions, $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, or in whole.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Borrowers, the Borrowers shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the
date specified therein.  If no Event of
Default has occurred and is continuing, (A) all prepayments under this Section
2.07(b) which are applied to reduce the principal amount of the Loans shall
be applied to the Loans as directed by the Borrowers and (B) if the Borrowers
fail to direct the application of any such principal prepayments, such
principal prepayments shall be applied first to the payment of the then outstanding
Swing Line Loans, then to the payment of the then outstanding Revolving Loans,
then to the payment of the then outstanding Term Loans and then to Cash
Collateralize the Obligations in an amount equal to the L/C Obligations and
shall in each case, to the extent possible, be first applied to prepay Base
Rate Portions and then if any funds remain, to prepay LIBOR Portions.  If an Event of Default has occurred and is
continuing, all prepayments under this Section 2.07(b) shall be applied
as set forth in Section 2.08(c).


 


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


 


(c)                                Mandatory
Prepayments.  The Borrowers shall
prepay the Loans as follows:


 


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


 


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


 


47





















 


(iii)                             If
for Argosy’s fiscal year ending December 31, 2004 or any fiscal year
thereafter, Designated Asset Sale Proceeds exceed $10,000,000  or if during the term of this Agreement, Designated Asset
Sale Proceeds exceed $50,000,000, the Borrowers shall, immediately after the
completion of each sale or other disposition which results in such an excess,
prepay the outstanding Term Loans in an aggregate principal amount equal to one
hundred percent (100%) of such excess. 
Notwithstanding the foregoing, the Borrowers shall not be required to
make a prepayment pursuant to this clause (iii) with respect to any sale (a “Relevant
Sale”) if any Borrower advises the Administrative Agent in writing at the
time the Net Proceeds from such Relevant Sale are received that they intend to
reinvest all or any portion of such Net Proceeds in assets useful to the
business of Argosy or a Subsidiary to the extent that the acquisition of such
assets occurs within 180 days from the date on which such Relevant Sale is
consummated; provided, that the Net Proceeds arising from any sale or
other disposition of the capital stock or assets of any Subsidiary after the
occurrence of a Trigger Event must be applied to immediately prepay the Term
Loans and may not be so reinvested, if the effect of such sale or other
disposition is to cause a Reverse Trigger Event.  If, at any time after the occurrence of a
Relevant Sale and prior to the acquisition of the related assets, the 180-day
period provided in clause (A) or (B) of the preceding sentence shall elapse
without execution of the related purchase contract (in the case of said clause
(A)) or the occurrence of the related acquisition (in the case of said clause (B))
or a Default shall occur, then the Borrowers shall immediately prepay the Loans
in the amount and in the manner described in the first sentence of this clause
(iii).


 


(iv)                            If,
at any time after the Restatement Effective Date, any Loan Party issues or sells
any Indebtedness for borrowed money (including Indebtedness evidenced by notes,
bonds, debentures or other similar instruments but excluding any Permitted
Indebtedness described in Section 5.02(a)(iv), (vii), (viii),
(xii) or (xiii), the Borrowers shall, immediately after such
issuance or sale, prepay the outstanding Term Loans in an aggregate principal
amount equal to one hundred percent (100%) of the Net Proceeds of such
Indebtedness.


 


(v)                               If,
at any time after the Restatement Effective Date, any Loan Party issues or
sells any Equity Securities yielding Net Proceeds in an aggregate amount in
excess of $25,000,000 during the term of this Agreement (other than Net
Proceeds from (x) the issuance and exercise of stock options granted to
officers and employees of any Loan Party in the ordinary course of business and
(y) the exercise of warrants issued by Argosy and existing on the Restatement
Effective Date), the Borrowers shall, immediately after such issuance or sale,
prepay the outstanding Term Loans in an aggregate principal amount equal to
fifty percent (50%) of the Net Proceeds of such Equity Securities.


 


(vi)                            If,
at any time after the Restatement Effective Date, any Loan Party receives
proceeds of insurance, a condemnation award or other compensation in respect of
any event described in Section 8.16(a) in excess of $25,000,000, the
Borrowers shall immediately prepay the outstanding Term Loans in an aggregate
principal amount equal to one hundred percent (100%) of such proceeds, except
as otherwise provided in Section 8.16(b).


 


(vii)                         The
Borrowers shall deliver to the Administrative Agent, at the time of each
prepayment required under this Section 2.07(c), a certificate signed by
the chief financial officer of Argosy setting forth in reasonable detail the
calculation of the amount of such prepayment. 
Each notice of prepayment shall specify the Type and principal amount of
each


 


48





















 


Loan (or portion thereof) to be prepaid.  In the event that the Borrowers shall
subsequently determine that the amount required to have been prepaid was
greater than the amount set forth in such certificate, the Borrowers shall
promptly make an additional prepayment of the Loans (and/or, if applicable, the
Revolving Loan Commitments shall be permanently reduced) in an amount equal to
the amount of such excess, and the Borrowers shall concurrently therewith
deliver to the Administrative Agent a certificate signed by the chief financial
officer of Argosy demonstrating the derivation of the additional amount
resulting in such excess.


 


(viii)                      If
an Event of Default has occurred and is continuing, all prepayments under this Section
2.07(c) shall be applied as set forth in Section 2.08(c).


 


(d)                               Application
of Term Loan Prepayments.  All
prepayments which are applied to reduce the principal amount of the Term Loans
shall reduce the aggregate principal amount payable by the Borrowers on the
then remaining Term Loan Installment Dates on a pro rata basis.  Without modifying the order of application of
Term Loan prepayments set forth in the preceding sentence, all such prepayments
shall, to the extent possible, be first applied to prepay Base Rate Portions
and then if any funds remain, to prepay LIBOR Portions.


 


2.08.                      Other Payment Terms.


 


(a)                                Place
and Manner.  All payments to be made
by the Borrowers under this Agreement or any other Credit Document shall be
made without condition or deduction for any counterclaim, defense, recoupment
or setoff.  The Borrowers shall make all
payments due to each Lender or the Administrative Agent under this Agreement or
any other Credit Document by payments to the Administrative Agent at the
Administrative Agent’s office located at the address specified in Section
8.01, with each payment due to a Lender to be for the account of such
Lender and such Lender’s Applicable Lending Office.  The Borrowers shall make all payments under
this Agreement or any other Credit Document in lawful money of the United
States and in same day or immediately available funds not later than 11:00 a.m.
on the date due.  The Administrative
Agent shall promptly disburse to each Lender each payment received by the
Administrative Agent for the account of such Lender.


 


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


 


(c)                                Application
of Payments.  Unless an Event of
Default shall have occurred and be continuing and except as expressly otherwise
provided in this Agreement, all payments hereunder shall be applied to
principal, interest, fees, costs and expenses as directed by the
Borrowers.  While an Event of Default has
occurred and is continuing, all payments hereunder shall be applied as follows:


 


First,
to the payment of the unpaid fees, costs and expenses of the Administrative
Agent then due and payable under this Agreement;


 


Second,
to accrued interest then due and payable under this Agreement and the other
Credit Documents;


 


49





















 


Third,
to reduce the principal amount of the outstanding Loans and L/C Borrowings and
to Cash Collateralize the remaining L/C Obligations on a pro rata basis between
the Revolving Lenders and the Term Lenders in accordance with the then
outstanding principal amount of the Loans and L/C Obligations (with the portion
allocated to the Revolving Lenders to be applied first to repay the Swing Line
Loans in full, second to repay the Revolving Loans in full and then to Cash
Collateralize the Obligations in an amount equal to the then Effective Amount
of all L/C Obligations); and


 


Finally,
to the payment of any other amounts due and payable under this Agreement.


 


(d)                               Failure
to Pay the Administrative Agent. 
Unless the Administrative Agent shall have received notice from the
Borrowers at least one (1) Business Day prior to the date on which any payment
is due to the Lenders hereunder that the Borrowers will not make such payment
in full, the Administrative Agent shall be entitled to assume that the
Borrowers have made or will make such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be paid to the Lenders on such due date an amount equal to
the amount then due such Lenders.  If and
to the extent the Borrowers shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at a per annum rate equal to (i) the Federal
Funds Rate for the first three (3) days and (ii) the rate applicable to Base
Rate Loans thereafter.  A certificate of
the Administrative Agent submitted to any Lender with respect to any amount
owing by such Lender under this Section 2.08(d) shall constitute prima facie evidence of such amount.


 


2.09.                      Loan Accounts; Notes.


 


(a)                                Loan
Accounts.  The obligation of the
Borrowers to repay the Loans made to it by each Lender and to pay interest
thereon at the rates provided herein shall be evidenced by an account or
accounts maintained by such Lender on its books (individually, a “Loan
Account”), except that any Lender may request that its Loans be evidenced
by a note or notes pursuant to Section 2.09(b) and Section 2.09(c).  Each Lender shall record in its Loan Accounts
(i) the date and amount of each Loan made by such Lender, (ii) the interest
rates applicable to each such Loan and each Portion thereof and the effective
dates of all changes thereto, (iii) the Interest Period for each LIBOR Loan and
LIBOR Portion, (iv) the date and amount of each principal and interest payment
on each Loan and Portion and (v) such other information as such Lender may
determine is necessary for the computation of principal and interest payable to
it by the Borrowers hereunder; provided, however, that any
failure by a Lender to make, or any error by any Lender in making, any such
notation shall not affect the Borrowers’ Obligations.  The Loan Accounts shall constitute prima facie evidence of the matters noted therein.  In addition to the Loan Accounts, each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records 


 


50





















 


of any Lender in respect of such
matters, the accounts and records of the Administrative Agent shall control.


 


(b)                               Revolving
Loan Notes.  If any Lender so
requests, such Lender’s Revolving Loans shall be evidenced by a promissory note
in the form of Exhibit G (individually, a “Revolving Loan Note”) which
note shall be (i) payable to the order of such Lender, (ii) in the amount of
such Lender’s Revolving Loan Commitment, (iii) dated the Restatement Effective
Date and (iv) otherwise appropriately completed.  Each Borrower authorizes each Lender to record
on the schedule annexed to such Lender’s Revolving Loan Note the date and
amount of each Revolving Loan made by such Lender and of each payment or
prepayment of principal thereon made by such Borrower, and agrees that all such
notations shall constitute prima facie
evidence of the matters noted; provided, however, that any
failure by a Lender to make, or any error by any Lender in making, any such
notation shall not affect the Borrowers’ Obligations.  Each Borrower further authorizes each Lender
to attach to and make a part of such Lender’s Revolving Loan Note continuations
of the schedule attached thereto as necessary. 
If, because any Lender designates separate Applicable Lending Offices
for Base Rate Loans and LIBOR Loans, such Lender requests that separate
promissory notes be executed to evidence separately such Loans, then each such
note shall be in the form of Exhibit G, mutatis
mutandis to reflect such division, and shall be (w) payable to the
order of such Lender, (x) in the amount of such Lender’s Commitment, (y) dated
the Restatement Effective Date and (z) otherwise appropriately completed.  Such notes shall, collectively, constitute a
Revolving Loan Note.


 


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


 


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


 


2.10.                      Loan Funding.


 


(a)                                Lender
Funding and Disbursement to the Borrowers. 
Each Lender shall, before 9:00 a.m. on the date of each Borrowing, make
available to the Administrative Agent at the Administrative Agent’s office
specified in Section 8.01, in same day or immediately available funds,
such Lender’s Revolving Proportionate Share or Term Proportionate Share, as the
case may be, of such Borrowing.  After
the Administrative Agent’s receipt of such funds and


 


51





















 


upon
satisfaction of the applicable conditions set forth in Section 3.02
(and, if such Borrowing is the initial Credit Extension, Section 3.01),
the Administrative Agent shall promptly make all funds so received available to
the Borrowers in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrowers on the books of Wells Fargo with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the
Borrowers; provided, however, that if, on the date of the
Borrowing there are Swing Line Loans and/or L/C Borrowings outstanding, then
the proceeds of such Borrowing shall be applied, first, to the payment
in full of any such L/C Borrowings, second, to the payment in full of
any such Swing Line Loans, and third, to the Borrowers as provided
above.


 


(b)                               Lender
Failure to Fund.  Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s Revolving Proportionate Share or Term Proportionate Share,
as the case may be, of such Borrowing, the Administrative Agent shall be
entitled to assume that such Lender has made or will make such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with Section 2.10(a), and the Administrative Agent may on
such date, in reliance upon such assumption, disburse or otherwise credit to
the Borrowers a corresponding amount.  If
any Lender does not make the amount of its such Lender’s Revolving
Proportionate Share or Term Proportionate Share, as the case may be, of any
Borrowing available to the Administrative Agent on or prior to the date of such
Borrowing, such Lender shall pay to the Administrative Agent, on demand,
interest which shall accrue on such amount from the date of such Borrowing
until such amount is paid to the Administrative Agent at rates equal to (i) the
daily Federal Funds Rate during the period from the date of such Borrowing through
the third Business Day thereafter and (ii) the rate applicable to Base Rate
Loans thereafter.  A certificate of the
Administrative Agent submitted to any Lender with respect to any amount owing
by such Lender under this Section 2.10(b) shall constitute prima facie evidence of such amount.  If the amount of any Lender’s Revolving
Proportionate Share or Term Proportionate Share, as the case may be, of any
Borrowing is not paid to the Administrative Agent by such Lender within three
(3) Business Days after the date of such Borrowing, the Borrowers shall repay
such amount to the Administrative Agent, on demand, together with interest
thereon, for each day from the date such amount was disbursed to the Borrowers
until the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to the Loans comprising such Borrowing.


 


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


 


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2.11.                      Pro Rata Treatment.


 


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


 


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


 


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


 


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


 


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


 


(v)                               Each
payment of Commitment Fees shall be shared among the Revolving Lenders (except
for Defaulting Lenders) pro rata
according to (A) their respective Revolving Proportionate Shares and (B) in the
case of each Lender which becomes a Lender hereunder after the date hereof, the
date upon which such Lender so became a Lender;


 


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


 


(vii)                         All
other payments under this Agreement and the other Credit Documents shall be for
the benefit of the Person or Persons specified.


 


(b)                               Sharing
of Payments, Etc.  If any Lender
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of the Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, in
excess of the payments to which it is entitled on account of the Loans and the
L/C Obligations obtained by all Lenders entitled to such payments, such Lender
shall forthwith purchase from the other Lenders such participations in the Loans
and/or participations in L/C Obligations or in Swing Line Loans as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender,
such purchase shall be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such other Lender’s ratable share (according to the
proportion of (i) the amount of such other Lender’s required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid 


 


53





















 


or payable by the purchasing
Lender in respect of the total amount so recovered.  Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section
2.11(b) may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of setoff) with respect to such participation
as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.


 


2.12.                      Change of Circumstances.


 


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


 


(b)                               Illegality.  If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in accordance
with the terms of such Governmental Rule as enacted, as a result of amendment
or otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Lender
with any request or directive (whether or not having the force of law) of any
Governmental Authority (a “Change of Law”) shall make it unlawful or
impossible for any Lender to make or maintain any LIBOR Loan or LIBOR Portion,
such Lender shall immediately notify the Administrative Agent and the Borrowers
of such Change of Law.  Upon receipt of
such notice, (i) the Borrowers’ right to request the making of, conversion to
or a new Interest Period for LIBOR Loans or LIBOR Portions shall be terminated,
and (ii) the Borrowers shall, at the request of such Lender, either (A)
pursuant to Section 2.01(d) or Section 2.02(d), as the case may
be, convert any such then outstanding LIBOR Loans or LIBOR Portions into Base
Rate Loans or Base Rate Portions, as the case may be, at the end of the current
Interest Period for such LIBOR Loans or LIBOR Portions or (B) immediately repay
or convert any such LIBOR Loans or LIBOR Portions if such Lender shall notify
the Borrowers that such Lender may not lawfully continue to fund and maintain
such LIBOR Loans or LIBOR Portions.  Any
conversion or prepayment of LIBOR Loans or LIBOR Portions made pursuant to the
preceding sentence prior to the last day of an Interest Period for such LIBOR
Loans or LIBOR Portions shall be deemed a prepayment thereof for purposes of Section
2.14.  After any Lender notifies the
Administrative Agent and the Borrowers of such a Change of Law and until such
Lender notifies the Administrative Agent and the Borrowers that it is no longer
unlawful or impossible for such Lender to make or maintain a LIBOR Loan or
LIBOR Portion, all Revolving Loans and all


 


54





















 


Portions
of the Term Loan of such Lender shall be Base Rate Loans and Base Rate
Portions, respectively.


 


(c)                                Increased
Costs.  If, after the date of this
Agreement, any Change of Law (other than any Change of Law relating to Taxes or
Other Taxes addressed in Section 2.13):


 


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


 


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


 


and
the effect of any of the foregoing is to increase the cost to such Lender of making,
renewing, or maintaining any such LIBOR Loan or LIBOR Portion or its
Commitments or to reduce any amount receivable by such Lender hereunder; then
the Borrowers shall from time to time, within ten (10) Business Days after
demand by such Lender, pay to such Lender additional amounts sufficient to
reimburse such Lender for such increased costs or to compensate such Lender for
such reduced amounts; provided, however, that the Borrowers shall
have no obligation to make any payment to any demanding party under this Section
2.12(c) on account of any such increased costs or reduced amounts unless
the Borrowers receive notice of such increased costs or reduced amounts from
the demanding party within six (6) months after they are incurred or
realized.  A certificate setting forth in
reasonable detail the amount of such increased costs or reduced amounts,
submitted by such Lender to the Borrowers shall be conclusive absent manifest
error.  The obligations of the Borrowers
under this Section 2.12(c) shall survive the payment and performance of
the Obligations and the termination of this Agreement.


 


(d)                               Capital
Requirements.  If, after the date of
this Agreement, any Lender determines that (i) any Change of Law affects the
amount of capital required or expected to be maintained by such Lender or any
Person controlling such Lender (a “Capital Adequacy Requirement”) and
(ii) the amount of capital maintained by such Lender or such Person which is
attributable to or based upon the Loans, the Commitments or this Agreement must
be increased as a result of such Capital Adequacy Requirement (taking into
account such Lender’s or such Person’s policies with respect to capital
adequacy), the Borrowers shall pay to such Lender or such Person, within ten
(10) Business Days after demand of such Lender, such amounts as such Lender or
such Person shall determine are necessary to compensate such Lender or such
Person for the increased costs to such Lender or such Person of such increased
capital; provided, however, that the Borrowers shall have no
obligation to make any payment to any demanding party under this Section
2.12(d) on account of any such increased costs unless the Borrowers receive
notice of such increased costs from the demanding party within six (6) months
after they are incurred or realized.  A
certificate setting forth in reasonable detail the amount of such increased
costs, submitted by any Lender to the Borrowers shall be conclusive absent
manifest error.  The obligations of the
Borrowers under this Section 2.12(d) shall survive the payment and
performance of the Obligations and the termination of this Agreement.


 


55





















 


(e)                                Mitigation.  Any Lender which becomes aware of (i) any
Change of Law which will make it unlawful or impossible for such Lender to make
or maintain any LIBOR Loan or LIBOR Portion or (ii) any Change of Law or other
event or condition which will obligate the Borrowers to pay any amount pursuant
to Section 2.12(c) or Section 2.12(d) shall notify the Borrowers
and the Administrative Agent thereof as promptly as practical.  If any Lender has given notice of any such
Change of Law or other event or condition and thereafter becomes aware that
such Change of Law or other event or condition has ceased to exist, such Lender
shall notify the Borrowers and the Administrative Agent thereof as promptly as
practical.  Each Lender affected by any
Change of Law which makes it unlawful or impossible for such Lender to make or
maintain any LIBOR Loan or LIBOR Portion or to which the Borrowers are
obligated to pay any amount pursuant to Section 2.12(c) or Section
2.12(d) shall use reasonable commercial efforts (including changing the
jurisdiction of its Applicable Lending Office) to avoid the effect of such
Change of Law or to avoid or materially reduce any amounts which the Borrowers
are obligated to pay pursuant to Section 2.12(c) or Section 2.12(d)
if, in the reasonable opinion of such Lender, such efforts would not be
disadvantageous to such Lender.


 


2.13.                      Taxes on Payments.


 


(a)                                Except
as otherwise expressly provided in this Section 2.13, any and all
payments by the Borrowers in respect of principal or interest on any Loan, fee,
or other Obligation or other amount due to any Lender under this Agreement or
any other Credit Document shall be made free and clear of, and without
deduction for, any and all present or future United States federal, state or
local and foreign taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, including withholding taxes imposed
by the United States, any jurisdiction under the laws of which any Borrower is
organized, and other jurisdiction or any political subdivision thereof, but
excluding net income taxes and franchise taxes in lieu of net income taxes
imposed on the Administrative Agent or any Lender (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
referred to herein as “Taxes”). 
If the Borrowers shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender, then (i) subject to the
last sentence of Section 2.13(f), the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.13)
such Lender shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrowers shall make all required
deductions and (iii) the Borrowers shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in accordance with
applicable law.


 


(b)                               In
addition, the Borrowers agree to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Credit Document (hereinafter referred to as “Other Taxes”).


 


(c)                                Subject
to the last sentence of Section 2.13(f), the Borrowers will indemnify
the Administrative Agent and each Lender for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender, and any
liability (including penalties, interest and


 


56





















 


expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted.  Such
indemnification shall be made within 30 days following the date such Lender
makes written demand therefor accompanied by documentation evidencing payment
of such Taxes or Other Taxes.


 


(d)                               Within
30 days after the date of any payment of Taxes or Other Taxes withheld
hereunder (and, with respect to any Taxes or Other Taxes not so withheld, to
the extent available), the Borrowers will furnish to the Administrative Agent,
at its address set forth in Section 8.01, the original or a certified
copy of a receipt evidencing payment thereof.


 


(e)                                Without
prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.13 shall survive
the payment in full of all principal, interest and other Obligations hereunder
and the termination of all Commitments hereunder; provided, that the Borrowers
shall have no obligation to make any payment under Section 2.13(a), (b) or (c)
on account of any Taxes unless the Borrowers receive notice of such Tax within six
months after the date that the applicable Lender became aware of such Tax.


 


(f)                                  Each
Lender that is organized under the laws of a jurisdiction outside the United
States of America agrees that if and to the extent it is legally able to do so,
it shall deliver to the Borrowers and the Administrative Agent, on or before
the first date of any payment by the Borrowers hereunder, such certificates,
documents or other evidence, as required by the Internal Revenue Code or
Treasury Regulations issued pursuant thereto, including Internal Revenue
Service Form W-8BEN or W-8ECI (as applicable to it) and any other certificate
or statement or exemption required by Treasury Regulation section 1.1441-1(a)
or section 1.1441-6(c) or any subsequent version thereof, properly completed
and duly executed by such Lender establishing that such payment is (i) not
subject to withholding under the Internal Revenue Code because such payment is
effectively connected with the conduct by such Lender of a trade or business in
the United States of America or (ii) totally exempt from United States
withholding tax under a provision of an applicable tax treaty.  Each Lender that has delivered such
certificate or form shall, upon such certificate or form’s obsolescence,
expiration or invalidity or upon the Borrowers’ reasonable request, replace or
update such certificate or form as necessary. 
Within 30 days after the reasonable request of the Borrowers or the
Administrative Agent, each Lender that is not a foreign Lender shall deliver to
the Borrowers and the Administrative Agent one or more Internal Revenue Service
Form W-9.  Each Lender shall promptly
notify the Borrowers and the Administrative Agent upon the obsolescence,
expiration or invalidity of any form previously delivered by such Lender
pursuant to this paragraph.  A Lender
shall not be entitled to any additional amounts under Section 2.13(a) or
to any indemnification under Section 2.13(c) with respect to any Tax (y)
that is in effect and would apply to amounts payable (i) to an initial Lender
as of the Restatement Effective Date, (ii) to a Lender at the time such Lender
becomes a party to this Agreement by assignment or (iii) to a Lender that
designates a new Applicable Lending Office at any time after the Restatement
Effective Date, except to the extent that (I) in the case of a Lender who
becomes a Lender by assignment (regardless of whether such assignment is from a
Lender under clause (i) or (ii) above), the assignor of such Lender at the time
of assignment, or (II) in the case of a designation of a new Applicable Lending
Office, such Lender immediately prior to such designation, would have been
entitled to receive additional amounts or indemnity from the Borrowers with
respect to any Tax pursuant to Section 2.13(a) or


 


57





















 


Section
2.13(c), or (z) that is attributable
to such Lender’s failure to comply with this Section 2.13(f) or Section
2.13(g).


 


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


 


(h)                               If
a Borrower pays an amount under this Section 2.13, and the
Administrative Agent or applicable Lender determines in its sole discretion
that it has received a refund of such Tax or a credit against Taxes otherwise
payable, the Administrative Agent or applicable Lender shall pay to the
applicable Borrower the amount of such refund or credit (but only to the extent
of indemnity payments made, or additional amounts paid, by a Borrower under
this Section 2.13 giving rise to such refund or credit), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than interest received from the relevant Governmental Authority
with respect to such refund or credit, net of taxes).  If the Administrative Agent or the applicable
Lender is later required to repay (or otherwise loses the benefit of) the
refund or credit to the applicable taxing authority, such repayment shall be
treated as a Tax subject to indemnification under Section 2.13(c).  This paragraph shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


2.14.                      Funding Loss Indemnification.  If the Borrowers shall (a) repay, prepay or
convert any LIBOR Loan or LIBOR Portion on any day other than the last day of
an Interest Period therefor (whether a scheduled payment, an optional
prepayment or conversion, a mandatory prepayment or conversion, a payment upon
acceleration or otherwise), (b) fail to borrow any LIBOR Loan or LIBOR Portion
for which a Notice of Borrowing has been delivered to the Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or
otherwise) or (c) fail to convert any Revolving Loans into LIBOR Loans or any
Portion of the Term Loan Borrowing into a LIBOR Portion in accordance with a
Notice of Conversion delivered to the Administrative Agent (whether as a result
of the failure to satisfy any applicable conditions or otherwise), the
Borrowers shall, within five (5) Business Days after demand by any Lender,
reimburse such Lender for and hold such Lender harmless from all costs and
losses incurred by such Lender as a result of such repayment, prepayment,
conversion or failure.  Each Borrower
understands that such costs and losses may include, without limitation, losses
incurred by a Lender as a result of funding and other contracts entered into by
such Lender to fund a LIBOR Loan or LIBOR Portion.  Each Lender demanding payment under this Section
2.14 shall deliver to the Borrowers, with a copy to the Administrative
Agent, a certificate setting forth the amount of costs and losses for which
demand is made, which certificate shall set forth in reasonable detail the
calculation of the amount demanded.  Such
a certificate so delivered to the


 


58





















 


Borrowers
shall be conclusive absent manifest error. 
The obligations of the Borrowers under this Section 2.14 shall
survive the payment and performance of the Obligations and the termination of
this Agreement.


 


2.15.                      Security.


 


(a)                                Security
Documents.  The Obligations shall be
secured by the Security Documents.  So
long as the terms thereof are in compliance with this Agreement, each Lender
Rate Protection Agreement shall be secured by the Lien of the Security
Documents (a) on a pari passu
basis with the Obligations owing to the Lenders to the extent of the associated
Termination Value, and (b) to the extent of any excess, on a basis which
is in all respects subordinated to all other Obligations.


 


(b)                               Further
Assurances.  Each Borrower shall
deliver, and shall cause each Guarantor to deliver, to the Administrative Agent
such additional mortgages, deeds of trust, security agreements, pledge
agreements, lessor consents and estoppels (containing appropriate mortgagee and
the Lender protection language) and other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial Code
financing statements and fixture filings, landlord waivers and after the
occurrence and during the continuance of an Event of Default, control
agreements) as the Administrative Agent may reasonably request to:


 


(i)                                   Grant,
perfect, maintain, protect and evidence security interests in favor of the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, in any or all present and future real and personal property of the
Borrowers and the Guarantors prior to the Liens or other interests of any
Person, except for Permitted Liens; and


 


(ii)                                Otherwise
establish, maintain, protect and evidence the rights provided to the
Administrative Agent, for the benefit of the Administrative Agents and the
Lenders, pursuant to the Security Documents.


 


Each
Borrower shall fully cooperate with the Administrative Agent and the Lenders
and perform all additional acts reasonably requested by the Administrative
Agent or any Lender to effect the purposes of this Section
2.15.


 


2.16.                      Replacement of the Lenders.  If (a) any Lender shall become a Defaulting
Lender more than one (1) time in a period of twelve (12) consecutive months,
(b) any Lender shall continue as a Defaulting Lender for more than five (5)
Business Days at any time, (c) any Lender shall suspend its obligation to make
or maintain LIBOR Loans or LIBOR Portions pursuant to Section 2.12(b)
for a reason which is not applicable to any other Lender, (d) any Lender shall
demand any payment under Section 2.12(c), 2.12(d) or 2.13(a)
for a reason which is not applicable to any other Lender (unless all Lenders to
which such reason is applicable are so replaced) or (e) any Borrower shall
receive a notice from any applicable Governmental Authority that a Lender is no
longer qualified or suitable to make Loans to such Borrower under the
applicable Gaming Laws (and such Lender is notified by such Borrower and the
Administrative Agent in writing of such disqualification), including because
such Lender has been denied a license, qualification or finding of suitability
or has failed to deliver information required under the applicable Gaming Laws,
then the Administrative Agent may (or upon the written request of 


 


59





















 


the
Borrowers, shall) replace such Lender (the “affected Lender”), or cause
such affected Lender to be replaced, with another lender (the “replacement
Lender”) satisfying the requirements of an Assignee Lender under Section
8.05(c), by having the affected Lender sell and assign all of its rights
and obligations under this Agreement and the other Credit Documents (including
for purposes of this Section 2.16, participations in L/C Obligations and
in Swing Line Loans) to the replacement Lender pursuant to Section 8.05(c);
provided, however, that neither the Administrative Agent nor any
Lender shall have any obligation to identify or locate a replacement Lender for
the Borrowers.  Upon receipt by any
affected Lender of a written notice from the Administrative Agent stating that
the Administrative Agent is exercising the replacement right set forth in this Section
2.16, such affected Lender shall sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents (including for
purposes of this Section 2.16, participations in L/C Obligations and in
Swing Line Loans) to the replacement Lender pursuant to an Assignment Agreement
and Section 8.05(c) for a purchase price equal to the sum of the
principal amount of the affected Lender’s Loans so sold and assigned, all accrued
and unpaid interest thereon and its ratable share of all fees to which it is
entitled.


 


2.17.                      Increases of the Total Revolving
Loan Commitment.


 


(a)        The
Borrowers may at any time increase the then effective amount of the Total
Revolving Loan Commitment; provided that (i) prior to the date of the
proposed increase, the Borrowers shall not have voluntarily decreased the Total
Revolving Loan Commitment, (ii) the Total Revolving Loan Commitment can only be
increased one time pursuant to this Section 2.17, and such increase
shall not exceed $200,000,000, (iii) no Default or Event of Default shall
have occurred and be continuing or shall occur as a result of the increase in
the Total Revolving Loan Commitment, (iv) all approvals or exemptions required
under any applicable Gaming Laws shall have been obtained if any such approvals
or exemptions are necessary prior to the effectiveness of the increase in the
Total Revolving Loan Commitment, (v) on the Increase Effective Date (as defined
below), the Loan Parties shall indicate to the Administrative Agent whether the
borrowing of a Revolving Loan which, when combined with the Revolving Loans,
Swing Line Loans and L/C Obligations outstanding on such date exceeds
$500,000,000, would constitute “Senior Indebtedness” and “Designated Senior
Indebtedness” under, and as defined in, each of the 2001 Senior Subordinated
Indenture and the 2004 Senior Subordinated Indenture and comparable treatment
under all other documents, instruments and agreements evidencing other Subordinated
Indebtedness (to the extent applicable) as well as provide information in
support thereof and (vi) the Loan Parties shall have executed and delivered
such documents and instruments (including documents relating to any real
property collateral and ship/vessel collateral and title insurance
endorsements) and taken such other actions as may be reasonably requested by
the Administrative Agent in connection with the increase in the Total Revolving
Loan Commitment.  Any request under this Section 2.17
shall be submitted by the Borrowers to the Administrative Agent (which shall
promptly forward copies to each of the Lenders), specify the proposed effective
date and amount of such increase and be accompanied by a certificate of an
authorized officer stating that no Default or Event of Default exists or will
occur as a result of such increase.  The
Administrative Agent (after consulting with the Borrowers) may also specify any
fees offered to those Lenders (the “Increasing Lenders”) which agree to
increase the amount of their Revolving Loan Commitments, which fees may be
variable based upon the amount by which any such Lender is willing to increase
the amount of


 


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its
Revolving Loan Commitment; no Lender which is not an Increasing Lender shall be
entitled to receive any such fees.  No
Lender shall have any obligation, express or implied, to offer to increase the
amount of its Revolving Loan Commitment. 
Only the consent of each Increasing Lender shall be required for an
increase in the amount of the Revolving Loan Commitments pursuant to this Section 2.17(a).  No Lender which elects not to increase the
amount of its Revolving Loan Commitment may be replaced in respect of its
existing Term Loans or Revolving Loan Commitment as a result thereof without
such Lender’s consent.


 


(b)                               Each
Increasing Lender shall, as soon as practicable after the Borrowers have
submitted their request under Section 2.17(a), specify the amount of the
proposed increase in its Revolving Loan Commitment which they are willing to
offer.  The Borrowers may accept some or
all of the offered amounts (provided that the Borrowers must accept not less
than each such Increasing Lender’s pro rata share of the total increase in the
Revolving Loan Commitment, if offered by such Increasing Lender) or designate
new lenders who qualify as Eligible Assignees and which are reasonably
acceptable to the Administrative Agent as additional Lenders hereunder in
accordance with this Section 2.17(b) (each such new lender being a “New
Lender”), which New Lender may assume all or a portion of the increase in
the amount of the Total Revolving Loan Commitment.  The Administrative Agent may agree to assist
the Borrowers in identifying new lenders who qualify as Eligible Assignees.  The Borrowers may pay a fee to the
Administrative Agent solely for the account of the Administrative Agent in
connection with services provided in connection with any increase provided in
this Section 2.17.  Subject to the
limitations set forth above, the Borrowers and the Administrative Agent shall
have discretion jointly to adjust the allocation of the increased aggregate
principal amount of the Revolving Loan Commitments among Increasing Lenders and
New Lenders.


 


(c)                                Each
New Lender designated by the Borrowers and reasonably acceptable to the
Administrative Agent shall become an additional party hereto as a New Lender
concurrently with the effectiveness of the proposed increase in the amount of
the Revolving Loan Commitments upon its execution of an instrument of joinder
(which may contain such modifications to this Agreement and terms and
conditions relating thereto as may be necessary to ensure that such Revolving
Loan Commitments are treated as Revolving Loan Commitments for all purposes under
the Loan Documents), in each case in form and substance reasonably satisfactory
to the Administrative Agent.  Each New
Lender which is not incorporated under the laws of the United States of America
or a state thereof shall, within three (3) Business Days of becoming a Lender
under this Agreement, deliver to the Borrowers and the Administrative Agent two
duly completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI (or successor applicable form), as the case may be.


 


(d)                               Subject
to the foregoing, any increase in the Total Revolving Loan Commitment requested
by the Borrowers shall be effective as of the date agreed to by the Borrowers
and the Administrative Agent (the “Increase Effective Date”) and shall
be in the principal amount equal to (i) the amount which the Increasing Lenders
are willing to assume as increases to the amount of their Revolving Loan
Commitments, plus (ii) the amount offered by the New Lenders with respect to
the Revolving Loan Commitments, in either case, as adjusted by the Borrowers
and the Administrative Agent pursuant to this Section 2.17 and
subject to the limitations contained in this Section 2.17.


 


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(e)                                On
or prior to the Increase Effective Date, the Administrative Agent shall notify
each Lender of the amount required to be paid by or to such Lender so that the
Revolving Loans held by the Lenders on the Increase Effective Date (after
giving effect to any new Revolving Loans made on such date) shall be held by
each Lender pro rata in accordance with the Revolving Loan Commitments of the
Lenders as of the Increase Effective Date. 
Each Lender which is required to reduce the amount of Revolving Loans
held by it (each such Lender, a “Decreasing Lender”) shall irrevocably
assign, without recourse or warranty of any kind whatsoever (except that each
Decreasing Lender warrants that it is the legal and beneficial owner of the
Revolving Loans assigned by it under this Section 2.17(e) and that
such Revolving Loans are held by such Decreasing Lender free and clear of
adverse claims), to each Increasing Lender and New Lender, and each Increasing
Lender and New Lender shall irrevocably acquire from the Decreasing Lenders, a
portion of the principal amount of the Revolving Loans of each Decreasing
Lender (collectively, the “Acquired Portion”) outstanding on the
Increase Effective Date (before giving effect to any new Revolving Loans made
on such date) in an amount such that the principal amount of the Revolving
Loans held by each Increasing Lender, New Lender and Decreasing Lender as of
the Increase Effective Date shall be held in accordance with each such Lender’s
Revolving Proportionate Share (if any) as of such date.  Such assignment and acquisition shall be
effective on the Increase Effective Date automatically and without any action
required on the part of any party other than the payment by the Increasing
Lenders and New Lenders to the Administrative Agent for the account of the
Decreasing Lenders of an aggregate amount equal to the Acquired Portion, which
amount shall be allocated and paid by the Administrative Agent at or before
12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the
principal amount of the Revolving Loans held by such Lenders on the Increase
Effective Date (before giving effect to any new Revolving Loans made on such
date).  Each of the Administrative Agent
and each Lender shall adjust its records accordingly to reflect the payment of
the Acquired Portion.  The payment to be
made in respect of the Acquired Portion shall be made by the Increasing Lenders
and New Lenders to the Administrative Agent in Dollars in immediately available
funds at or before 11:00 a.m. on the Increase Effective Date, such payment
to be made by the Increasing Lenders and New Lenders pro rata
based upon the respective increases in the amount of the Revolving Loan
Commitments held by such Lenders on the Increase Effective Date.


 


(f)                                  To
the extent any of the Revolving Loans acquired by the Increasing Lenders and
New Lenders from the Decreasing Lenders pursuant to Section 2.17(e)
above are LIBOR Loans and the Increase Effective Date is not the last day of an
Interest Period for such Loans, the Decreasing Lenders shall be entitled to
compensation from the Borrowers as provided in Section 2.14 (as if
the Borrowers had prepaid such Loans in an amount equal to the Acquired Portion
on the Increase Effective Date).


 


ARTICLE
III.  CONDITIONS PRECEDENT.


 


3.01.                      Initial Conditions Precedent.  The effectiveness of the amendment and
restatement of the Existing Credit Agreement and the obligations of the Lenders
to make the Loans comprising the initial Borrowing are subject to receipt by
the Administrative Agent, on or prior to the Restatement Effective Date, of
each item listed below, each in form and substance satisfactory to the
Administrative Agent, and with sufficient copies for the Administrative Agent
and each Lender:


 


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(a)                                Principal
Credit Documents.


 


(i)                                   This
Agreement, duly executed by each Borrower, each Lender and the Administrative
Agent;


 


(ii)                                A
Revolving Loan Note payable to each Lender requesting such a note, each duly
executed by the Borrowers;


 


(iii)                             A
Term Loan Note payable to each Lender requesting such a note, each duly
executed by the Borrowers;


 


(iv)                            A
Swing Line Note payable to the Swing Line Lender in the principal amount of the
Swing Line Sublimit, duly executed by the Borrowers;


 


(v)                               Amendments to each of the Existing
Assignments in form and substance satisfactory to the Administrative
Agent, duly executed by each Loan Party which is a party to the Existing
Assignments, as well as any additional assignment agreements required by the
Administrative Agent, each duly executed by the Loan Parties party thereto and
in form and substance satisfactory to the Administrative Agent;


 


(vi)                            Amendments to each of the Existing Mortgages
in form and substance satisfactory to the Administrative Agent, duly executed
by each Loan Party which is a party to the Existing Mortgages, as well as any
additional mortgages required by the Administrative Agent, each duly executed
by the Loan Parties party thereto and in form and substance satisfactory to the
Administrative Agent;


 


(vii)                         Amendments
to each of the Existing Security Agreements in form and substance satisfactory
to the Administrative Agent, duly executed by each Loan Party which is a party
to the Existing Security Agreements, as well as any additional security
agreements required by the Administrative Agent, each duly executed by the Loan
Parties party thereto and in form and substance satisfactory to the
Administrative Agent;


 


(viii)                      Amendments to the each of the Existing Ship
Mortgages in form and substance satisfactory to the Administrative
Agent, duly executed by each Loan Party which is a party to the Existing Ship
Mortgages, as well as any additional ship mortgages required by the
Administrative Agent, each duly executed by the Loan Parties party thereto and
in form and substance satisfactory to the Administrative Agent
;


 


(ix)                              Each
of the Cash Collateral Pledge Agreement and the Trademark Security Agreement in
form and substance satisfactory to the Administrative Agent, duly executed by
each Loan Party which is a party thereto; and


 


(x)                                 The
Environmental Indemnity, duly executed by each Loan Party.


 


(b)                               Organizational
Documents.


 


(i)                                   The
certificate of incorporation, articles of incorporation, certificate of limited
partnership, articles of organization or comparable document of each 


 


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Borrower,
certified as of a recent date prior to the Restatement Effective Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation or formation;


 


(ii)                                A
certificate of good standing (or comparable certificate) for each Borrower,
certified as of a recent date prior to the Restatement Effective Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation or formation;


 


(iii)                             A
certificate of the Secretary or an Assistant Secretary of each Borrower, dated
the Restatement Effective Date, certifying (a) that attached thereto is a true
and correct copy of the bylaws, partnership agreement or limited liability
company agreement of such Borrower as in effect on the Restatement Effective
Date; (b) that attached thereto are true and correct copies of resolutions duly
adopted by the board of directors or other governing body of such Borrower and
continuing in effect, which authorize the execution, delivery and performance
by such Borrower of this Agreement and the other Credit Documents executed or
to be executed by such Borrower and the consummation of the transactions
contemplated hereby and thereby; and (c) that there are no proceedings for the
dissolution or liquidation of such Borrower;


 


(iv)                            A
certificate of the Secretary or an Assistant Secretary of each Borrower, dated
the Restatement Effective Date, certifying the incumbency, signatures and
authority of the officers of such Borrower authorized to execute, deliver and
perform this Agreement, the other Credit Documents and all other documents,
instruments or agreements related thereto executed or to be executed by such
Borrower; and


 


(v)                               Certificates
of good standing (or comparable certificates) for each Borrower, certified as
of a recent date prior to the Restatement Effective Date by the Secretary of
State (or comparable official) of each state in which such Borrower is
qualified to do business.


 


(c)                                Collateral
Documents.


 


(i)                                   Such
Uniform Commercial Code financing statements and fixture filings (appropriately
completed and executed) for filing in such jurisdictions as the Administrative
Agent may request to perfect the Liens granted to the Administrative Agent in
this Agreement, the Security Documents and the other Credit Documents;


 


(ii)                                Such
Uniform Commercial Code termination statements (appropriately completed and
executed) for filing in such jurisdictions as the Administrative Agent may
request to terminate any financing statement evidencing Liens of other Persons
in the Collateral which are prior to the Liens granted to the Administrative
Agent in this Agreement, the Security Documents and the other Credit Documents,
except for any such prior Liens which are expressly permitted by this Agreement
to be prior;


 


(iii)                             Uniform
Commercial Code search certificates from the jurisdictions in which Uniform
Commercial Code financing statements are to be filed pursuant to subsection
(d)(i) above reflecting no other financing statements or filings which
evidence Liens of other Persons in the Collateral which are prior to the Liens
granted to the Administrative Agent in this Agreement, the Security Documents
and the other Credit Documents, except for any such prior Liens (a) which are
expressly permitted by this Agreement to be prior or (b) for 


 


64





















 


which the Administrative Agent
has received a termination statement pursuant to subsection (d)(ii)
above;


 


(iv)                            The
stock certificates representing all of the outstanding capital stock of each
Loan Party pledged to the Administrative Agent pursuant to the Security
Documents and existing on the Restatement Effective Date, together with undated
stock powers duly executed by the appropriate Loan Party in blank and attached
thereto;


 


(v)                               Appropriate
documents for filing with the United States Patent and Trademark Office and all
other filings necessary to perfect the security interests granted to the
Administrative Agent by the Security Documents, all appropriately completed and
duly executed by each Loan Party and, where appropriate, notarized;


 


(vi)                            An
ALTA standard coverage Lender’s policy of title insurance (or a commitment
therefor) insuring the validity and priority of the Existing Mortgages (subject
only to such exceptions as the Administrative Agent may approve), in such
amounts and with such endorsements as the Administrative Agent may require,
issued by a title insurer acceptable to the Administrative Agent, together with
such policies of co-insurance or re-insurance (or commitments therefor) as the
Administrative Agent may require;


 


(vii)                         Each
title policy insuring the Administrative Agent’s Lien on the real property
subject to the Existing Mortgages shall be endorsed with CLTA Form 110.5
or other appropriate endorsements including, without limitation, revised tie-in
endorsements, for the purpose of assuring continuing coverage of the Credit
Documents insured thereunder, together with such policies of co-insurance or
re-insurance (or commitments therefor) as the Administrative Agent may require;


 


(viii)                      Preliminary
title reports or lot book guarantees issued by a title insurer acceptable to
the Administrative Agent with respect to all real property owned by the
Borrowers;


 


(ix)                              An
officer’s certificate of the Borrowers certifying that each Loan Party
possesses all material environmental permits necessary for the conduct of its
business, together with copies of all such permits;


 


(x)                                 An
abstract of title for each United States Coast Guard registered Vessel;


 


(xi)                              Such
other documents, instruments and agreements as the Administrative Agent may
reasonably request to establish and perfect the Liens granted in this
Agreement, the Security Documents and the other Credit Documents; and


 


(xii)                           Such
other evidence as the Administrative Agent may request to establish that the
Liens granted in this Agreement, the Security Documents and the other Credit
Documents are perfected and prior to the Liens of other Persons in the
Collateral, except for any Permitted Liens.


 


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(d)                               Opinions.  Favorable written opinions from each of the
following counsel for the Loan Parties, each dated the Restatement Effective
Date, addressed to the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, covering such legal matters as the
Administrative Agent may reasonably request and otherwise in form and substance
satisfactory to the Administrative Agent:


 


(i)                                   Winston
& Strawn, special counsel for the Loan Parties;


 


(ii)                                Barnes
and Thornburg, Indiana counsel for the Loan Parties;


 


(iii)                             Nyemaster,
Goode, Voigts, West, Hansell & O’Brien, Iowa counsel for the Loan Parties;


 


(iv)                            Taylor,
Porter, Brooks & Phillips, LLP, Louisiana counsel for the Loan Parties;


 


(v)
                              Brantley
& Associates, Louisiana regulatory counsel for the Loan Parties;


 


(vi)                            Shook,
Hardy & Bacon, LLP, Missouri counsel for the Loan Parties; and


 


(vii)                         Orrick
Herrington & Sutcliffe, LLP, maritime counsel for the Loan Parties.


 


(e)                                Other
Items.


 


(i)                                   A
duly completed and timely delivered Notice of Revolving Loan Borrowing;


 


(ii)                                Original
certificates of insurance, loss payable and mortgagee endorsements naming the
Administrative Agent as mortgagee, loss payee and additional insured, as
required by Section 5.01(d) of this Agreement;


 


(iii)                             Evidence
that  there shall not have occurred since
December 31, 2003 any event or circumstance that has resulted or could
reasonably be expected to result in a material adverse effect on the condition
(financial or otherwise), business, operations, assets or properties of Argosy
and its Subsidiaries (taken as a whole);


 


(iv)                            Evidence
that (x) the Indebtedness outstanding hereunder on the Restatement
Effective Date (after giving effect to all Loans to be incurred on such date)
shall be permitted under all documents, instruments and agreements evidencing
Subordinated Indebtedness, and the Borrowers shall have delivered to the
Administrative Agent an officer’s certificate demonstrating compliance with
such sections and (y) all actions necessary for the Loans hereunder to
constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under,
and as defined in, the 2001 Senior Subordinated Indenture and the 2004 Senior
Subordinated Indenture and comparable treatment under all other documents,
instruments and


 


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agreements evidencing other
Subordinated Indebtedness (to the extent applicable) shall have been taken;


 


(v)                               Evidence
that no material disruption of or a material adverse change in conditions in
the financial, banking or capital markets shall have occurred which Wells
Fargo, in its sole discretion, deems material in connection with its ability to
syndicate the Commitments and the Loans;


 


(vi)                            Evidence
that there shall not exist any pending or threatened action, suit,
investigation or proceeding, which, if adversely determined, could materially
and adversely affect the Loan Parties, any transaction contemplated hereby or
the ability of any Loan Party to perform its obligations under the Credit
Documents or the ability of the Lenders to exercise their rights thereunder;


 


(vii)                         A
certificate of the president or chief financial officer of the Borrowers, addressed to the Administrative Agent and dated
the Restatement Effective Date, certifying that:


 


(A)                            The
representations and warranties set forth in Article IV and in the other
Credit Documents are true and correct in all material respects as of such date
(except for such representations and warranties made as of a specified date,
which shall be true as of such date); and


 


(B)                              No
Default has occurred and is continuing as of such date.


 


(viii)                      The
Borrowers shall have paid all interest, fees and expenses payable to the
Administrative Agent and the Lenders on or prior to the Restatement Effective
Date (including (A) all interest, fees and expenses accrued under the
Existing Credit Agreement through the Restatement Effective Date and
(B) all fees payable to the Administrative Agent pursuant to the
Administrative Agent’s Fee Letter);


 


(ix)                              The
Borrowers shall have paid all fees and expenses of counsel to the
Administrative Agent and any title company(ies)
through the Restatement Effective Date;


 


(x)
                                Copies
of the Transfer Agreement and any amendments thereto and each document and
instrument delivered in connection therewith, in each case duly executed by
each party thereto;


 


(xi)                              The
Borrowers shall have delivered a true and correct copy of: (i) each of the
Development Agreements and all amendments and modifications thereto, and (ii)
all leases of any portion of the real property occupied or operated by the
Borrowers in Baton Rouge, Louisiana, and all amendments and modifications
thereto (collectively, the “Baton Rouge Leases”), and


 


(xii)                           Such
other evidence as the Administrative Agent or any Lender may reasonably request
to establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained in this
Agreement and the other Credit Documents.


 


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3.02.                      Conditions Precedent to each Credit
Event.  The occurrence of each
Credit Event (including the initial  Borrowing) is
subject to the further conditions that:


 


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


 


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


 


(i)                                   The
representations and warranties of the Loan Parties set forth in Article IV
and in the other Credit Documents are true and correct in all material respects
as if made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);


 


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


 


(iii)                             All
of the Credit Documents are in full force and effect.


 


(c)                                The
Indebtedness outstanding hereunder on the date of such Credit Event (after
giving effect to the incurrence and funding of the Indebtedness in respect of
such Credit Event) shall (A) be permitted (whether pursuant to an incurrence
test or otherwise) under all documents, instruments and agreements evidencing
Subordinated Indebtedness and (B) constitute “Senior indebtedness” and “Designated
Senior Indebtedness” under, and as defined in, the 2001 Senior Subordinated
Indenture and the 2004 Senior Subordinated Indenture and comparable treatment
under all other documents, instruments or agreements evidencing Subordinated
Indebtedness (to the extent applicable). 
From and after the occurrence of any increase in the Total Revolving
Loan Commitment pursuant to Section 2.17 hereof, with respect to each
Credit Event in which, after giving effect thereto, the aggregate amount of
Revolving Loans, L/C Obligations and Swing Line Loans then outstanding exceeds
$500,000,000, at the Administrative Agent’s request, the Borrowers shall have
delivered to the Administrative Agent an officer’s certificate demonstrating
compliance with such sections.


 


The
submission by each Borrower to the Administrative Agent of each Notice of
Borrowing, each Letter of Credit Application, each Notice of Conversion (other
than a notice for a conversion to a Base Rate Loan or a Base Rate Portion) and
each Notice of Interest Period Selection shall be deemed to be a representation
and warranty by such Borrower that each of the statements set forth above in
this Section 3.02(c) is true and correct as of the date of such notice.


 


3.03.                      Covenant to Deliver.  Each Borrower agrees (not as a condition but
as a covenant) to deliver to the Administrative Agent each item required to be
delivered to the Administrative Agent as a condition to the occurrence of any
Credit Event if such Credit Event occurs. 
Each Borrower expressly agrees that the occurrence of any such Credit
Event prior to the receipt by the Administrative Agent of any such item shall
not constitute a waiver by the Administrative Agent or any Lender of such
Borrowers’ obligation to deliver such item.


 


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ARTICLE
IV.  REPRESENTATIONS AND WARRANTIES.


 


4.01.                      Borrowers’ Representations and
Warranties.  In order to induce
the Administrative Agent and the Lenders to enter into this Agreement, each
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders as follows:


 


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


 


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


 


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


 


(d)                               Non-Contravention.  The execution and delivery by each Loan Party
of the Credit Documents executed by such Loan Party and the performance and
consummation of the transactions contemplated thereby do not (i) violate any
provision of, or result in the breach or the acceleration of, or entitle any
other Person to accelerate (whether after the giving of notice or lapse of time
or both), any Contractual Obligation of such Loan Party, where such breach or
violation could reasonably be expected to result in a Material Adverse Effect;
(ii) result in the creation or imposition of any Lien (or the obligation to
create or impose any Lien) upon any property, asset or revenue of such Loan
Party (except such Liens as may be created in favor of the Administrative Agent
for the benefit of itself and the Lenders pursuant to this Agreement or the
other Credit Documents) or (iii) violate any provision of any existing law,
rule, regulation, order, writ, injunction or decree of any court or
Governmental Authority to which it is subject, where such breach could
reasonably be expected to result in a Material Adverse Effect.


 


(e)                                Approvals.


 


(i)                                   No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Authority or other Person (including the
shareholders of any Person) is required in connection with the execution and
delivery of the Credit Documents executed by any Loan Party or the performance
or consummation of the 


 


69





















 


transactions contemplated
thereby, except for those which have been made or obtained and are in full
force and effect.


 


(ii)                                The
execution, delivery and performance by the Loan Parties of the Credit Documents
to which they are parties and the consummation of the transactions contemplated
by the Credit Documents do not and will not result in any License Revocation.


 


(iii)                             All
Gaming Licenses and other Governmental Authorizations have been duly obtained
and are in full force and effect without any known conflict with the rights of
others and, other than the terms of the Transfer Agreement, free from any
unduly burdensome restrictions, except where any such failure to obtain such
Gaming Licenses or Governmental Authorizations or any such conflict or
restriction could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect. 
None of the Loan Parties has received any written notice or other
written communications from any Gaming Authority or other Governmental
Authority regarding (A) any revocation, withdrawal, suspension, termination or
modification of, or the imposition of any material conditions with respect to,
any Gaming License, or (B) any other limitations on the conduct of business by
any Loan Party, except where any such revocation, withdrawal, suspension,
termination, modification, imposition or limitation could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.


 


(iv)                            No
Governmental Authorization is required for either (x) the pledge or grant by
any Loan Party of the Liens purported to be created in favor of the
Administrative Agent in connection herewith or any other Credit Document or (y)
the exercise by Administrative Agent of any rights or remedies in respect of
any Collateral (whether specifically granted or created pursuant to any of the
Security Documents or created or provided for by any Governmental Rule), except
for (1) such Governmental Authorizations that have been obtained and are in
full force and effect and fully disclosed to Administrative Agent in writing,
(2) filings or recordings contemplated in connection with this Agreement or any
Security Document and (3) those which may be required by Gaming Laws in
connection with the foreclosure and disposition of any Equity Securities
pledged under the Security Documents.


 


(f)                                  No
Violation or Default.  No Loan Party
is in violation of or in default with respect to (i) any Requirement of Law
applicable to such Person or (ii) any Contractual Obligation of such Person
(nor is there any waiver in effect which, if not in effect, would result in
such a violation or default), where, in each case, such violation or default is
reasonably likely to have a Material Adverse Effect.  Without limiting the generality of the
foregoing, no Loan Party (A) has violated any Environmental Laws, (B) has any
liability under any Environmental Laws or (C) has received notice or other
communication of an investigation or is under investigation by any Governmental
Authority having authority to enforce Environmental Laws, where such violation,
liability or investigation is reasonably likely to have a Material Adverse
Effect.  No Default has occurred and is
continuing.


 


(g)                               Litigation.  Except as set forth in Schedule 4.01(g),
to the actual knowledge of the Borrowers, no actions (including derivative
actions), suits, proceedings or investigations are pending or threatened
against any Loan Party at law or in equity in any court or before any other
Governmental Authority which (i) could reasonably be expected to have a


 


70





















 


Material
Adverse Effect or (ii) seek to enjoin, either directly or indirectly, the
execution, delivery or performance by any Loan Party of the Credit Documents or
the transactions contemplated thereby.


 


(h)                               Title;
Possession Under Leases; Intercompany Notes.  The Loan Parties own and have good and
marketable title, or a valid leasehold interest in, all their respective
properties and assets as reflected in the most recent Financial Statements
delivered to the Administrative Agent (except those assets and properties
disposed of in the ordinary course of business or otherwise in compliance with
this Agreement since the date of such Financial Statements) and all respective
assets and properties acquired by the Loan Parties since such date (except
those disposed of in the ordinary course of business or otherwise in compliance
with this Agreement).  Such assets and
properties are subject to no Lien, except for Permitted Liens.  Each of the Loan Parties has complied with
all material obligations under all material leases to which it is a party and
enjoys peaceful and undisturbed possession under such leases.  Schedule 4.01(h) sets forth the
names of the payor, payee, face amount and unpaid principal balance (as of the
Restatement Effective Date) of each of the Intercompany Notes.


 


(i)                                   Financial
Statements.  The Financial Statements
of the Loan Parties which have been delivered to the Administrative Agent, (i)
are in accordance with the books and records of the Loan Parties, which have
been maintained in accordance with good business practice; (ii) have been
prepared in conformity with GAAP subject, in the case of any unaudited
Financial Statements, to normal year-end audit adjustments and the absence of
footnotes thereto; and (iii) fairly present in all material respects the
financial conditions and results of operations of the Loan Parties as of the
date thereof and for the period covered thereby.  No Loan Party has any Contingent Obligations,
liability for taxes or other outstanding obligations which, in any such case,
are material in the aggregate, except as disclosed in the audited Financial
Statements dated December 31, 2003, furnished by Argosy to the Administrative
Agent prior to the date hereof, or in the Financial Statements delivered to the
Administrative Agent pursuant to clause (i) or (ii) of Section 5.01(a).


 


(j)                                   Creation,
Perfection and Priority of Liens.  As
of the Restatement Effective Date, (i) the execution and delivery of the
Security Documents by the Loan Parties, together with (A) the filing of any
Uniform Commercial Code financing statements and the recording of the U.S.
Patent and Trademark Office filings delivered to the Administrative Agent for
filing and recording, respectively (but not yet filed or recorded), and the
recording of any mortgages or ship mortgages and amendments to existing
mortgages and ship mortgages delivered to the Administrative Agent for
recording (but not yet recorded), (B) the delivery to the Administrative Agent
of any Equity Securities not delivered to the Administrative Agent at the time
of execution and delivery of the applicable Security Document (all of which
Equity Securities have been so delivered) and (C) the registration of
unregistered copyrights in the U.S. Copyright Office and the recording of
evidence of the security interest against such registrations herein, are
effective to create in favor of the Administrative Agent for the benefit of
itself and the Lenders, as security for the Obligations, a valid and perfected
first priority Lien on all of the Collateral as of the Restatement Effective
Date (subject only to Permitted Liens), and (ii) all filings and other actions
necessary or desirable to perfect and maintain the perfection and first
priority status of such Liens have been duly made or taken and remain in full
force and effect, other than (A) the filing of any Uniform Commercial Code
financing statements and U.S. Patent 


 


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and
Trademark Office filings delivered to the Administrative Agent for filing (but
not yet filed), (B) the recording of any mortgages and ship mortgages and
amendments to existing mortgages and ship mortgages delivered to the
Administrative Agent for recording (but not yet recorded) and (C) the
registration of unregistered copyrights in the U.S. Copyright Office and the
recording of evidence of the security interest against such registrations
created by the Security Documents.


 


(k)                                No
Agreements to Sell Assets; Etc.  No
Loan Party has any legal obligation, absolute or contingent, to any Person to
sell the assets of any Loan Party (except as permitted by Section 5.02(c)),
or to effect any merger, consolidation or other reorganization of any Loan
Party (except as permitted by Section 5.02(d)) or to enter into any
agreement with respect thereto except the Transfer Agreement and the documents
and instruments delivered in connection therewith.


 


(l)                                   Employee
Benefit Plans.


 


(i)                                   Based
upon the latest valuation of each Employee Benefit Plan (x) that is subject to
Title IV of ERISA and (y) that any Borrower or any ERISA Affiliate maintains or
contributes to, or has any obligation under (which occurred within twelve
months of the date of this representation), the aggregate benefit liabilities
of all such Plans within the meaning of Section 4001 of ERISA did not
exceed the aggregate value of the assets of all such Plans by more than
$10,000,000.  Neither any Borrower nor any
ERISA Affiliate has any liability with respect to any post-retirement benefit
under any Employee Benefit Plan which is a welfare plan (as defined in Section
3(1) of ERISA), other than liability for health plan continuation coverage
described in Section 4980B of the IRC or Part 6 of Title I(B) of ERISA, which
liability for health plan contribution coverage is not reasonably likely to
have a Material Adverse Effect.


 


(ii)                                Each
Employee Benefit Plan complies, in both form and operation, in all material
respects, with its terms, ERISA and the IRC, and no condition exists or event
has occurred with respect to any such Plan which could reasonably be expected
to result in the incurrence by any Borrower or ERISA Affiliate of any material
liability, fine or penalty.  Each
Employee Benefit Plan, related trust agreement, arrangement and commitment of
any Borrower or any ERISA Affiliate is legally valid and binding and in full
force and effect.  No Employee Benefit
Plan is being audited or investigated by any government agency or is subject to
any pending or, to any Borrower’s knowledge, threatened claim or suit.  None of the Borrowers and the ERISA
Affiliates nor any fiduciary of any Employee Benefit Plan has engaged in a
non-exempt prohibited transaction under section 406 of ERISA or section 4975 of
the IRC.


 


(iii)                             Except
as set forth on Schedule 4.01(l), none of the Borrowers and the
ERISA Affiliates contributes to or has any material contingent obligations to
any Multiemployer Plan.  None of the
Borrowers and the ERISA Affiliates has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under Section 4201
of ERISA or as a result of a sale of assets described in Section 4204 of ERISA.  None of the Borrowers and the ERISA
Affiliates has been notified that any Multiemployer Plan is in reorganization
or insolvent under and within the meaning of Section 4241 or Section 4245 of
ERISA or that any Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.


 


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(m)                             Other
Regulations.  No Loan Party is
subject to regulation under the Investment Company Act of 1940, the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code or to any other Governmental Rule
limiting its ability to incur indebtedness, other than applicable provisions of
Gaming Laws.


 


(n)                               Patent
and Other Rights.  The Loan Parties
own, license or otherwise have the full right to use, under validly existing
agreements, all material patents, licenses, trademarks, trade names, trade
secrets, service marks, copyrights and all rights with respect thereto, which
are required to conduct their businesses as now conducted, except where the
failure to own, license or otherwise have the full right to use could not
reasonably be expected to result in a Material Adverse Effect.  Each of the patents, trademarks, trade names,
service marks and copyrights owned by any Loan Party as of the Restatement
Effective Date which is registered with any Governmental Authority is set forth
on Schedule 4.01(n).


 


(o)                               Governmental
Charges.  The Loan Parties have filed
or caused to be filed all federal and other material tax returns which are
required to be filed by them.  The Loan
Parties have paid, or made provision for the payment of, all material taxes and
other material Governmental Charges which have or may have become due pursuant
to said returns or otherwise, except such Governmental Charges, if any, which
are being contested in good faith and as to which adequate reserves (determined
in accordance with GAAP) have been provided.


 


(p)                               Margin
Stock.  No Borrower owns any Margin
Stock which, in the aggregate, would constitute a substantial part of the
assets of such Borrower, and no proceeds of any Loan will be used to purchase
or carry, directly or indirectly, any Margin Stock or to extend credit,
directly or indirectly, to any Person for the purpose of purchasing or carrying
any Margin Stock.


 


(q)                               Subsidiaries,
Etc.  Schedule 4.01(q) (as
supplemented by the Borrowers quarterly in a written notice to the
Administrative Agent) sets forth as of the Restatement Effective Date each of
the Subsidiaries of Argosy, whether such Subsidiary is a Restricted Subsidiary
or an Unrestricted Subsidiaries, its jurisdiction of organization, the classes
of its Equity Securities, the number of shares of each such class issued and
outstanding, the percentages of shares of each such class owned by each holder
thereof and a description of each New Venture owned in whole or part by each
such Subsidiary.


 


(r)                                  Labor
Matters.  Except as set forth in Schedule
4.01(r), (i) there are no disputes presently subject to grievance
procedure, arbitration or litigation under any of the collective bargaining
agreements, employment contracts or employee welfare or incentive plans to
which any Loan Party is a party which alone or in the aggregate could
reasonably be expected to have a Material Adverse Effect and (ii) there are no
strikes, lockouts, work stoppages or slowdowns, or, to the knowledge of the
Borrowers, jurisdictional disputes or organizing activities occurring or
threatened which, alone or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


(s)                                No
Material Adverse Effect.  Since
December 31, 2003, no event has occurred and no condition exists which is
reasonably likely to have a Material Adverse Effect.


 


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(t)                                  Accuracy
of Information Furnished.  The Credit
Documents and the other certificates, statements and information (excluding
projections) furnished by the Loan Parties to the Administrative Agent and the
Lenders in connection with the Credit Documents and the transactions
contemplated thereby, taken as a whole, do not contain any untrue statement of
a material fact and do not omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.  All projections
furnished by the Loan Parties to the Administrative Agent and the Lenders in
connection with the Credit Documents and the transactions contemplated thereby
have been based upon reasonable assumptions and represent, as of their respective
dates of presentations, the Loan Parties’ best estimates of the future
performance of the Loan Parties.


 


(u)                               Subordinated
Indentures.


 


(i)                                   The
Borrowers are permitted under all documents, instruments and agreements
evidencing Subordinated Indebtedness to incur and permit to remain outstanding
the Term Loans.  The Borrowers are
permitted under all documents, instruments and agreements evidencing
Subordinated Indebtedness to borrow and re-borrow Revolving Loans.


 


(ii)                                All
Loans and L/C Obligations outstanding hereunder constitute “Senior Indebtedness”
and “Designated Senior Indebtedness” under (and as defined in) the 2001 Senior
Subordinated Indenture and the 2004 Senior Subordinated Indenture and
comparable treatment under all other documents, instruments and agreements
evidencing any other Subordinated Indebtedness outstanding (to the extent
applicable).


 


(iii)                             All
of the Term Loans (A) have been incurred under (I) either
Section 4.07(a)(i) of the 2001 Senior Subordinated Indenture or the
interest coverage ratio test set forth in first paragraph of
Section 4.07(a) of the 2001 Senior Subordinated Indenture and
(II) Section 4.07(a)(i) of the 2004 Senior Subordinated Indenture or
the interest coverage ratio test set forth in first paragraph of Section 4.07(a)
of the 2004 Senior Subordinated Indenture and (B) are permitted to remain
outstanding under the applicable provisions of all documents, instruments or
agreements evidencing other Subordinated Indebtedness outstanding.


 


(iv)                            Development
Agreements.  The Borrowers have
delivered true, correct and complete copies of the Development Agreements and
all modifications and amendments thereto (if any) to the Administrative Agent,
as in effect on the Restatement Effective Date. 
As of the Restatement Effective Date (A) none of the Development
Agreements have been terminated and they are all in full force and effect, (B)
no Borrower is in default in the observance or performance of any of its
respective material obligations under the Development Agreements and (C) each
Borrower has done all things required to be done to keep unimpaired its
respective rights thereunder.


 


(v) Baton Rouge Leases.  The Borrowers have delivered true, correct
and complete copies of the Baton Rouge Leases and all modifications and amendments
thereto (if any) to the Administrative Agent, as in effect on the Restatement
Effective Date.  As of the Restatement
Effective Date, the Baton Rouge Leases: (i) have not been terminated and
are all in full force and effect; (ii) are not subject to any default in the
observance or performance of any material obligation of any lessor or lessee
thereunder; and (iii) the applicable Borrower party


 


74





















 


thereto
has done all things required to be done to keep unimpaired its respective
rights thereunder.


 


ARTICLE V. COVENANTS.


 


5.01.                      Affirmative Covenants.  Until the termination of this Agreement and
the satisfaction in full by the Borrowers of all Obligations, each Borrower
will comply, and will cause compliance, with the following affirmative
covenants, unless the Required Lenders shall otherwise consent in writing:


 


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


 


(i)                                   As
soon as available and in no event later than forty-five (45) days after the
last day of each of the first three fiscal quarters of each fiscal year of
Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries
prepared on a consolidated basis for such quarter and for the fiscal year to
date, certified by the president or chief financial officer of Argosy to present
fairly in all material respects the financial condition, results of operations
and other information reflected therein and to have been prepared in accordance
with GAAP (subject to normal year-end audit adjustments);


 


(ii)                                As
soon as available and in no event later than one hundred twenty (120) days
after the close of each fiscal year of Argosy, (A) copies of the audited
Financial Statements of Argosy and its Subsidiaries prepared on a consolidated
basis for such year, audited by independent certified public accountants of
recognized national standing acceptable to the Administrative Agent, (B) copies
of the unqualified opinions (or qualified opinions reasonably acceptable to the
Administrative Agent and the Required Lenders) and, to the extent delivered, management
letters delivered by such accountants in connection with all such Financial
Statements and (C) certificates of such accountants to the Administrative Agent
stating that in making the examination necessary for their opinion they have
reviewed this Agreement and have obtained no knowledge of any Default which has
occurred and is continuing, or if, in the opinion of such accountants, a
Default has occurred and is continuing, a statement as to the nature thereof;


 


(iii)                             Contemporaneously
with the quarterly and year-end Financial Statements required by the foregoing
clauses (i) and (ii), a compliance certificate of the president or chief
financial officer or treasurer of Argosy (a “Compliance Certificate”)
which (A) states that no Default has occurred and is continuing, or, if any
such Default has occurred and is continuing, a statement as to the nature
thereof and what action the Borrowers propose to take with respect thereto; (B)
sets forth, for the quarter or year covered by such Financial Statements or as
of the last day of such quarter or year (as the case may be), the calculation
of the financial ratios and tests provided in Section 5.03;


 


(iv)                            As
soon as available and in no event later than forty-five (45) days after the
last day of each fiscal quarter of Argosy, a certificate of the chief financial
officer or


 


75





















 


treasurer
of Argosy (a “Pricing Certificate”) which sets forth the calculation of
the Total Funded Debt to EBITDA Ratio as of such date;


 


(v)                               As
soon as possible and in no event later than five (5) Business Days after any
officer of any Loan Party knows of the occurrence or existence of (A) any
Reportable Event under any Employee Benefit Plan or Multiemployer Plan which
could result in a Material Adverse Effect, (B) any actual or threatened
litigation, suits, claims or disputes against any Loan Party involving
potential monetary damages payable by any Loan Party of $10,000,000 or more
(alone or in the aggregate), (C) any other event or condition which is
reasonably likely to have a Material Adverse Effect, or (D) any Default, the
statement of the president or chief financial officer or treasurer of Argosy
setting forth details of such event, condition or Default and the action which
Argosy proposes to take with respect thereto;


 


(vi)                            If
requested by the Administrative Agent or any Lender, as soon as available and
in no event later than five (5) Business Days after they are sent, made
available or filed, copies of (A) all registration statements and reports filed
by Argosy or any of its Subsidiaries with any securities exchange or the United
States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q
reports), (B) all reports, proxy statements and financial statements sent or made
available by Argosy or any of its Subsidiaries to its security holders, and (C)
all press releases and other similar public announcements concerning any
material developments in the business of Argosy or any of its Subsidiaries made
available by Argosy or any of its Subsidiaries to the public generally;


 


(vii)                         As
soon as available, and in any event not later than forty-five (45) days after
the commencement of each fiscal year of Argosy, the budget and projected
financial statements of the Loan Parties for such fiscal year, including, in
each case, projected balance sheets, statements of income and retained earnings
and statements of cash flow of the Loan Parties, all in reasonable detail and
in any event to include projected Capital Expenditures and quarterly
projections of the Borrowers’ compliance with each of the covenants set forth
in Section 5.03 of this Agreement;


 


(viii)                      As
soon as possible and in no event later than ten (10) days prior to the
acquisition by any Loan Party of any leasehold or ownership interest in real
property with a fair market value of $10,000,000 or more, a written supplement
to Schedule 4.01(h);


 


(ix)                              As
soon as possible and in no event later than five (5) Business Days after the
receipt thereof by Argosy or any of its Subsidiaries, copies of any and all
material notices and other material adverse communications from any
Governmental Authority with respect to any Loan Party or any Gaming Facility
and promptly upon the request of the Administrative Agent or any Lender, copies
of any and all periodic or special reports filed by any Loan Party with any
Gaming Authority or other Governmental Authority with respect to any Gaming
Facility;


 


(x)                                 As
soon as possible and in no event later than five (5) Business Days after the
receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice,
summons, citations or other written communications concerning any actual,
alleged, suspected or


 


76





















 


threatened
material violation of any Environmental Law, or any material liability of
Argosy or any of its Subsidiaries for Environmental Damages; and


 


(xi)                              Such
other instruments, agreements, certificates, opinions, statements, documents
and information relating to the operations or condition (financial or
otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with
the terms of this Agreement and the other Credit Documents as the
Administrative Agent or any Lender may from time to time reasonably request.


 


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


 


(c)                                Inspections.  The Loan Parties shall permit the
Administrative Agent and each Lender, or any agent or representative thereof,
upon reasonable notice and during normal business hours, to visit and inspect
any of the properties and offices of the Loan Parties, to conduct audits of any
or all of the Collateral at Argosy’s expense, to examine the books and records
of the Loan Parties and make copies thereof, and to discuss the affairs,
finances and business of the Loan Parties with, and to be advised as to the
same by, their officers, auditors and accountants, all at such times and
intervals as the Administrative Agent or any Lender may reasonably
request.  If no Event of Default has
occurred and is continuing, the first such inspection, audit and examination by
the Administrative Agent during any fiscal year shall be at the Borrowers’
expense and all other inspections, audits and examinations conducted by the
Administrative Agent and the Lenders during such time shall be at the expense
of the Person conducting such inspection, audit or examination.  If an Event of Default has occurred and is
continuing, any such inspection, audit and examination shall be at the
Borrowers’ expense.


 


(d)                               Insurance.  The Loan Parties shall:


 


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


 


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


 


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


 


(iv)                            Obtain
and maintain endorsements reasonably acceptable to the Administrative Agent for
such insurance naming the Administrative Agent as an additional insured and as
lender’s loss payee;


 


77





















 


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


 


(e)                                Governmental
Charges and Other Indebtedness.  Each
Loan Party shall promptly pay and discharge when due (i) all material taxes and
other material Governmental Charges prior to the date upon which penalties
accrue thereon, (ii) all Indebtedness which, if unpaid, could become a Lien
upon the property of such Loan Party which is not a Permitted Lien and (iii)
subject to any subordination provisions applicable thereto, all other
Indebtedness which in each case, if unpaid when due, is reasonably likely to
have a Material Adverse Effect, except such Indebtedness as may in good faith
be contested or disputed, or for which arrangements for deferred payment have
been made, provided that in each such case appropriate reserves are maintained
in accordance with GAAP.


 


(f)                                  Use
of Proceeds.  The Borrowers shall use
the proceeds of the Loans only for the respective purposes set forth in Section
2.01(g) and Section 2.02(g). 
No Borrower shall use any part of the proceeds of any Loan, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock or for
the purpose of purchasing or carrying or trading in any securities under such
circumstances as to involve such Borrower, any Lender or the Administrative
Agent in a violation of Regulations T, U or X issued by the Federal Reserve
Board.


 


(g)                               General
Business Operations.  Each of the
Loan Parties shall (i) preserve and maintain its corporate, partnership or
limited liability company existence, as the case may be, and all of the rights,
privileges and franchises reasonably necessary to the conduct of its business,
(ii) conduct its business activities in compliance with all Requirements of Law
and Contractual Obligations applicable to such Person and (iii) keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, except, in each case, where any
failure is not reasonably likely to have a Material Adverse Effect.


 


(h)                               Compliance
with Laws; Maintenance of Gaming and Liquor Licenses.


 


(i)                                 Compliance
with Laws.  Each Loan Party shall
comply with the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority (including all Environmental Laws, Gaming
Laws, the Americans with Disabilities Act of 1990 and the Fair Housing
Amendments Act of 1988), noncompliance with which could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.


 


(ii)                                Maintenance
of Licenses.  Each Loan Party shall
maintain (i) such valid Gaming Licenses in all jurisdictions as may be
necessary to operate each of its Gaming Facilities, the absence of which could
reasonably be expected to result in a Material Adverse Effect, and (ii) all
liquor licenses and registrations as may be necessary to sell alcoholic
beverages from and in its Gaming Facilities. 
Each Loan Party shall notify the Administrative


 


78





















 


Agent
promptly upon the revocation or non-renewal of any such Gaming License, liquor
license or registration.


 


(i)                                   Additional
Collateral.


 


(i)                                   If
at any time from and after the Restatement Effective Date any Loan Party
acquires any fee interest in real property or any leasehold interest in real
property which, in either case, has a fair market value in excess of
$10,000,000, such Loan Party shall deliver to the Administrative Agent, at its
own expense, as soon as possible all documentation and information in form and
substance reasonably satisfactory to the Administrative Agent (including any
environmental reports) to assist the Administrative Agent in obtaining deeds of
trust or mortgages on such additional real property and ALTA policies of title
insurance, with such endorsements as the Administrative Agent may reasonably
require, issued by a company and in form and substance satisfactory to the
Administrative Agent, in an amount equal to the principal amount of the sum of
the Total Revolving Loan Commitment and the Total Term Loan Commitment (as of
the Restatement Effective Date), insuring the Administrative Agent’s Lien on
such additional real property Collateral to be of first priority, subject only
to such exceptions as the Administrative Agent shall approve in its discretion,
with all costs thereof to be paid by such Loan Party.


 


(ii)                                If
at any time from and after the Restatement Effective Date any Loan Party
acquires any vessel, such Loan Party shall deliver to the Administrative Agent,
at its own expense, as soon as possible, but in any event not later than thirty
(30) days after such acquisition, all documentation and information in form and
substance reasonably satisfactory to the Administrative Agent to assist the
Administrative Agent in obtaining a mortgage on such additional vessel, subject
only to such exceptions as the Administrative Agent shall approve in its
discretion, with all costs thereof to be paid by such Loan Party.


 


(j)                                   New
Subsidiaries.  Each Borrower shall,
at its own expense prior to the acquisition or formation of any direct or indirect
Subsidiary of such Borrower after the date hereof:


 


(i)                                   Notify
the Administrative Agent of such event;


 


(ii)                                If
such Subsidiary is required by the provisions of this Agreement to be
designated as a Restricted Subsidiary (or if the Borrowers choose to designate
such Subsidiary as a Restricted Subsidiary), cause such Restricted Subsidiary
to execute and deliver to the Administrative Agent one or more joinder
agreements and such other documents as the Administrative Agent deems necessary
to include such Subsidiary as a Borrower (or Guarantor, as applicable);


 


(iii)                             If
such Subsidiary is required by the provisions of this Agreement to be
designated as a Restricted Subsidiary (or if the Borrowers choose to designate
such Subsidiary as a Restricted Subsidiary), amend the Security Documents as
appropriate in light of such event to pledge the Equity Securities of such
Person to the Administrative Agent for the benefit of itself and the Lenders
and execute and deliver all documents or instruments required thereunder or
appropriate to perfect the security interest created thereby;


 


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(iv)                            If
such Subsidiary is required by the provisions of this Agreement to be
designated as a Restricted Subsidiary (or if the Borrowers choose to designate
such Subsidiary as a Restricted Subsidiary), promptly upon obtaining the
approval of any necessary Governmental Authority, deliver to the Administrative
Agent all stock certificates and other instruments added to the Collateral
thereby free and clear of all Liens, accompanied by undated stock powers or
other instruments of transfer executed in blank;


 


(v)                               If
such Subsidiary is required by the provisions of this Agreement to be
designated as a Restricted Subsidiary (or if the Borrowers choose to designate
such Subsidiary as a Restricted Subsidiary), cause such Subsidiary to execute a
pledge and security agreement, mortgage and/or ship mortgage or other security
agreement in form and substance satisfactory to the Administrative Agent; and


 


(vi) If such Subsidiary
is required by the provisions of this Agreement to be designated as a
Restricted Subsidiary (or if the Borrowers choose to designate such Subsidiary
as a Restricted Subsidiary), cause each document (including each Uniform
Commercial Code financing statement and each filing with respect to
intellectual property owned by each Person that becomes a direct or indirect
Restricted Subsidiary of any Borrower after the date hereof) required by law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent for the
benefit of itself and the Lenders a valid, legal and perfected first-priority
security interest in and lien on the Collateral subject to the Security
Documents to be so filed, registered or recorded and evidence thereof delivered
to the Administrative Agent;


 


provided, however, that in
the case of any Subsidiary which is the owner of a Casino or the holder of a
Gaming License, Argosy shall use its best efforts to cause all necessary
Governmental Authorities to consent to the pledge of the Equity Securities of
such Subsidiary to the Administrative Agent for the benefit of itself and the
Lenders as soon as reasonably practicable.


 


(k)                                Appraisals.  During the existence of an Event of Default
or upon the written request of any Lender acting pursuant to any Requirement of
Law, each Borrower agrees that the Administrative Agent may, at the expense of
such Borrower, commission an appraisal of any property (i) to which any Loan
Party holds legal title and (ii) which is encumbered by any mortgage or deed of
trust in favor of the Administrative Agent.


 


(l)                                   Designation
of Senior Debt.  The Borrowers shall
cause all Loans and L/C Obligations outstanding hereunder from time to time to
(I) constitute “Designated Senior Indebtedness” under (and as defined in) the
2001 Senior Subordinated Indenture and the 2004 Senior Subordinated Indenture
or (II) be treated similarly under any other documents, instruments or
agreements evidencing other Subordinated Indebtedness (to the extent
applicable).


 


(m)                             Manager.  If a Trigger Event occurs, Argosy shall cause
the Manager (as defined in the Transfer Agreement) to immediately become a
Restricted Subsidiary and meet the requirements set forth in Section 5.01(j).


 


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5.02.                      Negative Covenants.  Until the termination of this Agreement and
the satisfaction in full by the Borrowers of all Obligations, each Borrower
will comply, and will cause compliance, with the following negative covenants,
unless the Required Lenders shall otherwise consent in writing:


 


(a)                                Indebtedness.  None of the Loan Parties shall create, incur,
assume or permit to exist any Indebtedness except for the following (“Permitted
Indebtedness”):


 


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


 


(ii)                                Indebtedness
of the Loan Parties listed in Schedule 5.02(a) and existing on the
date of this Agreement;


 


(iii)                             Indebtedness
evidenced by the 2001 Senior Subordinated Notes and the 2004 Senior
Subordinated Notes;


 


(iv)                            Indebtedness
consisting of senior unsecured notes, the proceeds of which are used solely to
refinance Subordinated Indebtedness existing on the Restatement Effective Date,
so long as (A) no Default or Event of Default exists before and after giving
effect to the incurrence of such Indebtedness and (B) the Borrowers are in pro
forma compliance with each of the covenants set forth in Section 5.03
after giving effect to the incurrence of such Indebtedness;


 


(v)                               Indebtedness
of the Loan Parties arising from the endorsement of instruments for collection
in the ordinary course of their businesses;


 


(vi)                            Indebtedness
of the Loan Parties under Rate Protection Agreements, provided that all such
Rate Protection Agreements are entered into in connection with bona fide
hedging operations and not for speculation;


 


(vii)                         Indebtedness
of the Loan Parties under purchase money loans and Capital Leases incurred by
them to finance their acquisition of real property, fixtures or equipment
provided that the aggregate amount of such Indebtedness outstanding at any time
does not exceed $25,000,000;


 


(viii)                      Indebtedness
of the Loan Parties that is subordinated to the Obligations, provided that (A)
the covenants and events of default contained in the indenture, note purchase
agreement or other document relating to such Indebtedness are no more
restrictive in any material respect on any Loan Party than the comparable
provisions of the 2001 Senior Subordinated Indenture, (B) the subordination
provisions contained in the indenture, note purchase agreement or other
document relating to such Indebtedness are comparable in all material respects
to those contained in the 2001 Senior Subordinated Indenture and (C) no
principal payment in respect of such Indebtedness is scheduled to be paid prior
to 366 days after the Term Loan Maturity Date (as of the date of incurrence);


 


(ix)                              Indebtedness
of the Loan Parties with respect to surety, appeal, indemnity, performance or
other similar bonds in the ordinary course of business (including


 


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surety
or similar bonds issued in connection with the stay of a proceeding of the type
described in Section 6.01(h));


 


(x)                                 Indebtedness
of any Loan Party owing to any other Loan Party;


 


(xi)                              Indebtedness
consisting of Contingent Obligations (including Guaranty Obligations);


 


(xii)                           Indebtedness
of the Borrowers under initial or successive refinancings of any Indebtedness
permitted by clause (ii), (iii), (iv), (viii) or (ix) above, provided that (A)
the principal amount of any such refinancing does not exceed the principal
amount of the Indebtedness being refinanced, (B) the material terms and
provisions of any such refinancing (including redemption, prepayment, default
and subordination provisions but excluding interest rate, fees and other
pricing provisions) are no less favorable to the applicable Borrowers (or to
the Lenders in the case of the subordination provisions) than those of the
Indebtedness being refinanced and (C) no portion of the principal amount of
such Indebtedness is required to be repaid on a date prior to the date which is
six months after the Term Loan Maturity Date; and


 


(xiii)                        Other
Indebtedness of the Loan Parties in an aggregate principal amount not exceeding
$25,000,000 at any time outstanding.


 


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


 


(i)                                   Liens
in favor of the Administrative Agent on behalf of the Lenders securing the
Obligations;


 


(ii)                                Liens
listed in Schedule 5.02(b) and existing on the date of this Agreement;


 


(iii)                             Liens
for taxes or other Governmental Charges not at the time delinquent or
thereafter payable without penalty or being contested in good faith, provided
that adequate reserves for the payment thereof have been established in
accordance with GAAP;


 


(iv)                            Liens
of carriers, warehousemen, mechanics, materialmen, vendors, and landlords and
other similar Liens imposed by law incurred in the ordinary course of business,
provided that adequate reserves for the payment thereof have been established
in accordance with GAAP;


 


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


 


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(vi)                            Zoning
restrictions, easements, rights-of-way, title irregularities and other similar
encumbrances, which do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of any
Loan Party;


 


(vii)                         Liens
on any property or assets acquired, or on the property or assets of any Persons
acquired, by any Loan Party after the date of this Agreement pursuant to Section
5.02(d), provided that (A) such Liens exist at the time such property or
assets or such Persons are so acquired and (B) such Liens were not created in
contemplation of such acquisitions;


 


(viii)                      Judgment
Liens, provided that such Liens do not constitute an Event of Default under Section
6.01(h);


 


(ix)                              Liens
securing Indebtedness which constitutes Permitted Indebtedness under clause
(vii) of Section 5.02(a), provided that, in each case, such Lien (A)
covers only those assets financed by such Permitted Indebtedness, and (B)
secures only such Permitted Indebtedness;


 


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


 


(xi)                              A
reciprocal servitude (easement), operating and management agreement referred to
as the Common Areas Agreement in the Baton Rouge Hotel Management Agreement between
Centroplex and Sheraton Operating Corporation;


 


(xii)                           Liens
created by the Transfer Agreement and the documents and instruments delivered
in connection therewith; and


 


(xiii)                        Other
Liens, provided that the aggregate amount of Indebtedness or other obligations
secured by such other Liens does not exceed $10,000,000 at any time;


 


provided, however, that the
foregoing exceptions shall not permit any Lien in any Equity Securities issued
by any Loan Party and owned by any Loan Party, except for Liens in favor of the
Administrative Agent securing the Obligations.


 


(c)                                Asset
Dispositions.  No Loan Party shall
sell, lease, transfer or otherwise dispose of any of its assets or property,
whether now owned or hereafter acquired, except for the following:


 


(i)                                   Sales
by the Loan Parties of inventory in the ordinary course of their businesses;


 


(ii)                                Sales
by the Loan Parties of surplus, damaged, worn or obsolete equipment in the
ordinary course of their businesses;


 


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(iii)                             Sales
or other dispositions by any Loan Party of Investments permitted by clause
(iii) of Section 5.02(e); provided that no Default shall have occurred
and be continuing;


 


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


 


(v)                               Sales
or other dispositions of assets and property by any Borrower to any Restricted
Subsidiary;


 


(vi)                            Sales
or other dispositions of assets and property by any Loan Party to any
Unrestricted Subsidiary, provided that the terms of any such sales or other
dispositions by such Loan Party are no less favorable to such Loan Party than
would prevail in the market for similar transactions between unaffiliated
parties dealing at arm’s length;


 


(vii)                         Transfer
of the capital stock of Empress Casino Joliet to the Trustee (as defined in the
Transfer Agreement) pursuant to the terms of the Transfer Agreement and any
sale or other disposition of any Subsidiary which has the effect of a causing a
Reverse Trigger Event; and


 


(viii)                      Other
sales, leases, transfers and disposals of assets and property, provided that
the aggregate fair market value of all such assets and property so sold,
leased, transferred or disposed of during the term of this Agreement does not
exceed 15% of Net Worth, determined at the time of each such sale, lease,
transfer or other disposition.


 


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


 


(i)                                   Argosy
and the other Loan Parties  may merge with
each other, provided that (A) no Event of Default exists prior to, or would
result after giving effect to, any such merger and (B) in any such merger
involving Argosy, Argosy is the surviving Person;


 


(ii)                                Any
Unrestricted Subsidiary may merge with and into any Loan Party, provided that
(A) no Event of Default exists prior to, or would result after giving effect
to, any such merger, and (B) a Loan Party is the surviving Person; and


 


(iii)                             Acquisitions
by any Loan Party of any Person as a new Subsidiary or of all or substantially
all of the assets of any other Person, provided that no Event of Default exists
prior to, or would result after giving effect to, any such acquisition.


 


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


 


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


 


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(ii)                                Investments
by the Loan Parties in other Loan Parties and in Persons which become Loan
Parties on or substantially contemporaneously with the date of such Investment;


 


(iii)                             Investments
by the Loan Parties in Non-Gaming Subsidiaries which are not Restricted
Subsidiaries and Non-Gaming New Ventures in an amount which, when added to all
other Investments in such Non-Gaming Subsidiaries and Non-Gaming New Ventures
made during the term of this Agreement, does not exceed $25,000,000 in the
aggregate;


 


(iv)                            Investments
by the Loan Parties in Gaming Subsidiaries which are not Restricted
Subsidiaries and Gaming New Ventures in an amount which, when added to all
other Investments in such Gaming Subsidiaries and Gaming New Ventures during
the term of this Agreement, does not exceed $200,000,000 in the aggregate; provided,
however; that (A) to the extent that any such Gaming Subsidiary or
Gaming New Venture which has received an Investment pursuant to this clause
(iv) when it was not a Restricted Subsidiary thereafter becomes a Restricted
Subsidiary, the amount of any Investment made during the term of this Agreement
in such Gaming Subsidiary or Gaming New Venture shall be added back to the
basket in this clause (iv) when such Person becomes a Restricted Subsidiary and
(B) to the extent that any Loan Party receives any amount, on account of a sale
of some or all of the Equity Securities of a Gaming Subsidiary that is not a
Restricted Subsidiary or Gaming New Venture, 
the net proceeds received therefrom attributable to an Investment made
pursuant to this clause (iv) during the term of this Agreement shall be added
back to the basket in this clause (iv).


 


(v)                               Investments
consisting of loans to employees, officers and directors in the ordinary course
of business in an aggregate amount not exceeding $500,000 at any one time
outstanding;


 


provided, that, notwithstanding the
foregoing, in no event shall the Loan Parties make any Investment in Empress
Casino Joliet after the occurrence of a Trigger Event and prior to the
occurrence of a Reverse Trigger Event.


 


(f)                                  Change
in Business.  No Loan Party shall
engage, either directly or indirectly through Affiliates, in any business
substantially different from the business in which the Loan Parties are engaged
on the Restatement Effective Date and businesses reasonably related
thereto.  The parties hereto agree that
for purposes of this Section 5.02(f), the ownership and operation of
racetracks and the conduct of pari-mutuel wagering and gaming activities at
such racetracks shall be deemed businesses which are not substantially
different from the businesses in which the Loan Parties are engaged on the
Restatement Effective Date.


 


(g)                               Payments
of Indebtedness, Etc.  No Loan Party
shall (i) except as otherwise provided herein, prepay, redeem, purchase,
defease or otherwise satisfy in any manner prior to the scheduled payment
thereof any Subordinated Indebtedness; (ii) amend, modify or otherwise change
the terms of any document, instrument or agreement evidencing Subordinated
Indebtedness in a manner which materially and adversely affects the Borrowers;
or (iii) amend, modify or otherwise change any of the subordination or other
provisions of any document, instrument or agreement evidencing Subordinated
Indebtedness in a manner which adversely affects the material rights of the
Administrative Agent and the Lenders.


 


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(h)                               ERISA.  No Loan Party shall (A) adopt or institute any
Employee Benefit Plan that is subject to Title IV of ERISA, (B) take any action
which will result in the partial or complete withdrawal, within the meanings of
Sections 4203 and 4205 of ERISA, from a Multiemployer Plan, (C) engage or
permit any Person to engage in any non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the IRC involving any Employee Benefit
Plan or Multiemployer Plan which could reasonably be expected to subject any
Loan Party or any ERISA Affiliate to any tax, penalty or other liability
including a liability to indemnify, (D) incur or allow to exist any accumulated
funding deficiency (within the meaning of Section 412 of the IRC or Section 302
of ERISA), (E) fail to make full payment when due of all amounts due as
contributions to any Employee Benefit Plan or Multiemployer Plan, (F) fail to
comply with the requirements of Section 4980B of the IRC or Part 6 of Title
I(B) of ERISA, or (G) adopt any amendment to any Employee Benefit Plan which
could reasonably be expected to require the posting of security pursuant to
Section 401(a)(29) of the IRC, where singly or cumulatively, the above would be
reasonably likely to have a Material Adverse Effect.


 


(i)                                   Transactions
With Affiliates.  No Loan Party shall
enter into any Contractual Obligation with any Affiliate (other than any other
Loan Party) or engage in any other transaction with any Affiliate (other than
any other Loan Party) except (i) upon terms at least as favorable to such
Loan Party as an arms-length transaction with unaffiliated Persons,
(ii) Contractual Obligations and transactions in each case otherwise
permitted hereunder and (iii) the transactions contemplated by the
Transfer Agreement.


 


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


 


(k)                                Amendments
of Material Agreements.  No Loan
Party shall agree to amend, modify, supplement or replace any Material
Agreement or any document executed and delivered in connection therewith, in
any respect that would materially and adversely affect any right or interest of
the Administrative Agent and the Lenders or any Borrower’s ability to pay and
perform the Obligations.


 


(l)                                   Manager.  Argosy shall not permit the Manager (as
defined in the Transfer Agreement) to create, incur, assume or permit to exist
any Indebtedness or create, incur, assume or permit to exist any Lien on or
with respect to any of its assets or property of any character, whether now
owned or hereafter acquired, other than Liens in favor of the Administrative
Agent to secure the Obligations.


 


(m)                             Amendment
of Transfer Agreement.  Argosy shall
not amend, modify, or waive any term or provision of the Transfer Agreement or
any document or instrument delivered in connection therewith in any respect or
consent to any release of a party therefrom, or agree to amend, modify, or
waive any term or provision of the Transfer Agreement or any document or
instrument delivered in connection therewith or waive any rights thereunder in
any respect or agree to consent to any release of a party therefrom; except in
each case for amendments or modifications made solely to correct ministerial
errors.


 


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(n)                               Registration
of Vessels.  No Borrower shall be
permitted to register a Vessel with the United States Coast Guard without
providing prior written notice to the Administrative Agent thereof.


 


5.03.                      Financial Covenants.  Until the termination of this Agreement and
the satisfaction in full by the Borrowers of all Obligations, each Borrower
will comply, and will cause compliance, with the following financial covenants,
unless Required Lenders shall otherwise consent in writing:


 


(a)                                Total
Funded Debt to EBITDA Ratio.  The
Borrowers shall not permit the Total Funded Debt to EBITDA Ratio at any time to
be greater than the following amounts for the respective periods set forth
below:


 


	
  Period

  	
   

  	
  Total Funded Debt to

  EBITDA Ratio

  
	
   

  	
   

  	
   

  
	
  Restatement
  Effective Date to and including June 30, 2007

  	
   

  	
  4.75:1.00

  
	
   

  	
   

  	
   

  
	
  July 1, 2007 and
  thereafter

  	
   

  	
  4.50:1.00

  



 


(b)                               Senior
Funded Debt to EBITDA Ratio.  The
Borrowers shall not permit the Senior Funded Debt to EBITDA Ratio at any time
to be greater than 3.50:1:00.


 


(c)                                Fixed
Charge Coverage Ratio.  The Borrowers
shall not permit the Fixed Charge Coverage Ratio as at the end of any fiscal
quarter to be less than 1.50:1.00.


 


(d)                               Minimum
Net Worth.  The Borrowers shall not
permit their Net Worth on any date of determination (such date to be referred
to herein as a “Determination Date”) which occurs after June 30, 2004  (such date to be referred to herein as the “Base Date”)
to be less than the sum on such Determination Date of the following:


 


(i)                                   $290,000,000;
plus


 


(ii)                                Seventy-five
percent (75%) of the sum of Argosy’s consolidated quarterly net income
(ignoring any quarterly losses) after taxes for each fiscal quarter of Argosy
ending after the Base Date through and including the fiscal quarter ending on
(if the Determination Date is the last day of a fiscal quarter) or immediately
prior to (if the Determination Date is not the last day of a fiscal quarter)
the Determination Date; plus


 


(iii)                             Fifty
percent (50%) of the Net Proceeds of all Equity Securities issued by the Loan
Parties during the period commencing on the Base Date and ending on the
Determination Date; minus


 


(iv)                            Non-recurring
fees incurred in connection with the negotiation, execution and delivery of
this Agreement and the other Credit Documents and other Permitted Indebtedness.


 


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(e)                                Minimum
Maintenance Capital Expenditures. 
The Borrowers shall make Maintenance Capital Expenditures in an
aggregate amount of not less than $25,000,000 in each fiscal year of Argosy.


 


(f)                                  Minimum
Subordinated Debt.  The Borrowers
shall maintain at all times Subordinated Indebtedness in an aggregate principal
amount of not less than $350,000,000.


 


ARTICLE VI. DEFAULT.


 


6.01.                      Events of Default.  The occurrence or existence of any one or
more of the following shall constitute an “Event of Default” hereunder:


 


(a)                                Non-Payment.  Any Borrower shall (i) fail to pay when due
any principal of any Loan or any L/C Obligation, (ii) fail to pay within five
(5) days after the same becomes due, any interest required under the terms of
this Agreement or any of the other Credit Documents, or (iii) fail to pay after
the same becomes due any fees or other amounts required under the terms of this
Agreement or any of the other Credit Documents and such failure shall continue
for five (5) Business Days after the earlier of (A) any Borrower’s written
acknowledgement of such failure and (B) the Administrative Agent’s written
notice to the Borrowers of such failure; or


 


(b)                               Specific
Defaults.  Any Borrower shall fail to
observe or perform any covenant, obligation, condition or agreement set forth
in Section 5.01(a)(v)(D), Section 5.02 or Section 5.03;
or


 


(c)                                Other
Defaults.  Any default shall occur
under any Security Document and such default shall continue beyond any period
of grace provided with respect thereto; or any Loan Party shall fail to observe
or perform any other covenant, obligation, condition or agreement contained in
this Agreement or any other Credit Document and such failure shall continue for
thirty (30) days after the Administrative Agent’s written notice to the
Borrowers of such failure; or


 


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


 


(e)                                Cross-Default.  (i) Any Loan Party shall fail to make any
payment on account of any Indebtedness of such Person (other than the Obligations)
when due (whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise) and such failure shall continue beyond any period of
grace provided with respect thereto, if the amount of such Indebtedness,
together with the amount of all other Indebtedness for which a Loan Party has
failed make such a payment, exceeds $15,000,000 or if the effect of such
failure is to cause, or permit the holder or holders thereof to cause,
Indebtedness of the Loan Parties (other than the Obligations) in an aggregate
amount exceeding $15,000,000 to become redeemable, due or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or


 


88





















 


otherwise)
and/or to be secured by cash collateral, (ii) any Loan Party shall otherwise
fail to observe or perform any agreement, term or condition contained in any
agreement or instrument relating to any Subordinated Indebtedness of such
Person, or any other event shall occur or condition shall exist, if the effect
of such failure, event or condition is to cause, or permit the holder or
holders thereof to cause, such Subordinated Indebtedness to become redeemable,
due or otherwise payable (whether at scheduled maturity, by required prepayment,
upon acceleration or otherwise) and/or to be secured by cash collateral, (iii)
any Loan Party shall otherwise fail to observe or perform any agreement, term
or condition contained in any agreement or instrument relating to any
Indebtedness of such Person (other than the Obligations), or any other event
shall occur or condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to cause,
Indebtedness of the Loan Parties (other than the Obligations) in an aggregate
amount exceeding $15,000,000 to become redeemable, due or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or
otherwise) and/or to be secured by cash collateral or (iv) the holder of any
Lien in any amount, shall commence foreclosure of such Lien upon property of
any Loan Party having a value in excess of $15,000,000 and such foreclosure
shall continue against such property to a date less than thirty (30) days prior
to the date of the proposed foreclosure sale; or


 


(f)                                  Insolvency;
Voluntary Proceedings.  Any Loan
Party shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of
its or any of its creditors, (iv) be dissolved or liquidated in full or in
part, (v) become insolvent (as such term may be defined or interpreted under
any applicable statute), or (vi) commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or other
proceeding commenced against it; or


 


(g)                               Involuntary
Proceedings.  Proceedings for the
appointment of a receiver, trustee, liquidator or custodian of any Loan Party
or of all or a substantial part of the property thereof, or an involuntary case
or other proceedings seeking liquidation, reorganization or other relief with
respect to any Loan Party or the debts thereof under any bankruptcy, insolvency
or other similar law now or hereafter in effect shall be commenced and an order
for relief entered or such proceeding shall not be dismissed or discharged
within ninety (90) days of commencement; or


 


(h)                               Judgments.  (i) One or more judgments, orders, decrees or
arbitration awards requiring any Loan Party to pay (A) $5,000,000 or more in
any single case or (B) an aggregate amount of $15,000,000 or more (in each case
exclusive of amounts covered by insurance issued by a solvent insurer which is
not an Affiliate of any Loan Party) shall be rendered against any Loan Party in
connection with any single or related series of transactions, incidents or
circumstances and the same shall not be satisfied, vacated or stayed for a
period of sixty (60) consecutive days; (ii) any judgment, writ, assessment,
warrant of attachment, tax lien or execution or similar process shall be issued
or levied against a substantial part of the property of any Loan Party and the
same shall not be released, stayed, vacated or otherwise dismissed within ten
(10) days after issue or levy; or (iii) any other judgments, orders, decrees,
arbitration


 


89





















 


awards,
writs, assessments, warrants of attachment, tax liens or executions or similar
processes which, alone or in the aggregate, are reasonably likely to have a
Material Adverse Effect are rendered, issued or levied; or


 


(i)                                   Credit
Documents.  Any Credit Document or
any material term thereof shall cease to be, or be asserted by any Loan Party
not to be, a legal, valid and binding obligation of such Loan Party enforceable
in accordance with its terms; or


 


(j)                                   Security
Documents.  Any Lien relating to a
material part of the Collateral intended to be created by any Security Document
shall at any time be invalidated, subordinated or otherwise cease to be in full
force and effect, for whatever reason, or any security interest purported to be
created by any Security Document shall cease to be, or shall be asserted by any
Loan Party not to be, a valid, first priority (except as expressly otherwise
provided in this Agreement or such Security Document) perfected Lien in the
Collateral covered thereby, or any Loan Party (other than Argosy) shall issue,
create or permit to be outstanding any Equity Securities which shall not be
subject to a first priority perfected Lien under the Security Documents; or


 


(k)                                Employee
Benefit Plans.  Any Reportable Event
which the Administrative Agent reasonably believes in good faith constitutes
grounds for the termination of any Employee Benefit Plan subject to Title IV of
ERISA by the PBGC or for the appointment of a trustee by the PBGC to administer
any such Employee Benefit Plan shall occur and be continuing for a period of thirty
(30) days or more after notice thereof is provided to the Borrowers by the
Administrative Agent, or any Employee Benefit Plan shall be terminated within
the meaning of Title IV of ERISA or a trustee shall be appointed by the PBGC to
administer any Employee Benefit Plan and, in any such case, such termination or
appointment is reasonably likely to result in liability to any Borrower in
excess of $10,000,000 or which is reasonably likely to have a Material Adverse
Effect; or


 


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


 


(m)                             Loss
of Gaming Licenses/Failure to Maintain Gaming Activities.  The occurrence of a License Revocation in any
jurisdiction in which any Loan Party owns or operates a Gaming Facility,
provided that such License Revocation continues for at least ten (10)
consecutive days; or


 


(n)                               Involuntary
Dissolution or Split Up.  Any order,
judgment or decree shall be entered against any Borrower decreeing its
involuntary dissolution or split up and such order shall remain undischarged
and unstayed for a period in excess of sixty (60) days; or


 


(o)                               Trigger
Event.  A Trigger Event shall occur.


 


6.02.                      Remedies.  At
any time after the occurrence and during the continuance of any Event of
Default (other than an Event of Default referred to in Section 6.01(f)
(other than Section 6.01(f)(v))or 6.01(g)), the Administrative
Agent may or shall, upon instructions from the Required Lenders, by written
notice to the Borrowers, (a) terminate the Commitments, any obligation of the
L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to
make Loans, (b) require that the Borrowers Cash Collateralize the Obligations
in an amount


 


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equal
to the then Effective Amount of the L/C Obligations; and/or (c) declare all
outstanding Obligations payable by the Borrowers to be immediately due and
payable without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived, anything contained herein or in the
Notes to the contrary notwithstanding. 
Upon the occurrence or existence of any Event of Default described in Section
6.01(f) (other than Section 6.01(f)(v)) or 6.01(g),
immediately and without notice, (1) the Commitments, any obligation of the L/C
Issuer to make L/C Credit Extensions and the obligations of the Lenders to make
Loans shall automatically terminate, (2) the obligation of the Borrowers to
Cash Collateralize the Obligations in an amount equal to the then Effective
Amount of the L/C Obligations shall automatically become effective and (3) all
outstanding Obligations payable by the Borrowers hereunder shall automatically
become immediately due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in the Notes to the contrary notwithstanding.  In addition to the foregoing remedies, upon
the occurrence or existence of any Event of Default, the Administrative Agent
may exercise any other right, power or remedy available to it under any of the
Credit Documents or otherwise by law, either by suit in equity or by action at
law, or both.


 


6.03.                      Effect of Reverse Trigger Event.  An Event of Default arising under Section 6.01(p)
shall be deemed to no longer be continuing upon the occurrence of a Reverse
Trigger Event.


 


ARTICLE VII.                                         THE ADMINISTRATIVE AGENT AND RELATIONS AMONG THE
LENDERS.


 


7.01.                      Appointment,
Powers and Immunities.


 


(a)                                Each
Lender hereby appoints and authorizes the Administrative Agent to act as its
agent hereunder and under the other Credit Documents with such powers as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Credit Documents, together with such other powers as are reasonably
incidental thereto.  Each Lender hereby
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise
such powers as are set forth herein or therein, together with such other powers
as are reasonably incidental thereto, including execution and filing of a
Corporate Securities and Finance Compliance Affidavit with the Missouri Gaming
Commission pursuant to 11 CSR 45-10.040 and other regulatory requirements
of any Gaming Authority consistent with the intents and purposes of this
Agreement.  Neither the Documentation
Agent nor the Syndication Agent shall have any duties or responsibilities or
any liabilities under this Agreement or any other Credit Document.  The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
or in any other Credit Document, be a trustee for any Lender or have any
fiduciary duty to any Lender. 
Notwithstanding anything to the contrary contained herein the
Administrative Agent shall not be required to take any action which is contrary
to this Agreement or any other Credit Document or any applicable Governmental
Rule.  Neither the Administrative Agent
nor any Lender shall be responsible to any other Lender for any recitals,
statements, representations or warranties made by any Loan Party contained in
this Agreement or in any other Credit Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure by any Loan


 


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Party
to perform its obligations hereunder or thereunder.  The Administrative Agent may employ agents
and attorneys-in-fact and shall not be responsible to any Lender for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.  Neither the
Administrative Agent nor any of its directors, officers, employees, agents or
advisors shall be responsible to any Lender for any action taken or omitted to
be taken by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct.  Except as otherwise
provided under this Agreement, the Administrative Agent shall take such action
with respect to the Credit Documents as shall be directed by the Required
Lenders.


 


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


 


7.02.                      Reliance by the Administrative Agent.  The Administrative Agent shall be entitled to
rely upon any certificate, notice or other document (including any cable,
telegram, facsimile or telex) believed by it in good faith to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent with
reasonable care.  As to any other matters
not expressly provided for by this Agreement, the Administrative Agent shall
not be required to take any action or exercise any discretion, but shall be
required to act or to refrain from acting upon instructions of the Required
Lenders and shall in all cases be fully protected by the Lenders in acting, or
in refraining from acting, hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders, and such instructions
of the Required Lenders and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders.


 


7.03.                      Defaults.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default unless the Administrative Agent has received a
written notice from a Lender or a Borrower, referring to this Agreement,
describing such Default and stating that such notice is a “Notice of Default”.  If the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders. 
The Administrative Agent shall take such action with respect to such
Default as shall be reasonably directed by the Required Lenders; provided,
however, that until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable in the best interest of the Lenders.  Notwithstanding anything in the contrary
contained herein, the order and manner in which the Lenders’ rights and
remedies are to be exercised (including, without limitation, the enforcement by
any Lender of its Note) shall be determined by the Requisite Lenders in their
sole discretion.


 


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


 


7.05.                      Non-Reliance. 
Each Lender represents that it has, independently and without reliance
on the Administrative Agent, or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of the Loan
Parties and its own decision to enter into this Agreement and agrees that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own appraisals and decisions in
taking or not taking action under this Agreement.  Neither the Administrative Agent nor any of
its affiliates nor any of their respective directors, officers, employees,
agents or advisors shall (a) be required to keep any Lender informed as to the
performance or observance by any Loan Party of the obligations under this
Agreement or any other document referred to or provided for herein or to make
inquiry of, or to inspect the properties or books of any Loan Party; (b) have
any duty or responsibility to provide any Lender with any credit or other
information concerning any Loan Party which may come into the possession of the
Administrative Agent, except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder; or (c) be responsible to any Lender for (i) any
recital, statement, representation or warranty made by any Loan Party or any
officer, employee or agent of any Loan Party in this Agreement or in any of the
other Credit Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, (iii)
the value or sufficiency of the Collateral or the validity or perfection of any
of the liens or security interests intended to be created by the Credit
Documents, or (iv) any failure by any Loan Party to perform its obligations
under this Agreement or any other Credit Document.


 


7.06.                      Resignation or Removal of the
Administrative Agent.  The
Administrative Agent may resign at any time by giving thirty (30) days prior
written notice thereof to the Borrowers and the Lenders, and the Administrative
Agent may be removed at any time with or without cause by the Required
Lenders.  Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor
Administrative Agent, which successor Administrative Agent shall be reasonably
acceptable to the Borrowers; provided, however, that the
Borrowers


 


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shall
have no right to approve a successor Administrative Agent if an Event of Default
has occurred and is continuing.  Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from the duties and obligations
thereafter arising hereunder.  After any
retiring Administrative Agent’s resignation or removal hereunder as the
Administrative Agent, the provisions of this Article VII shall continue
in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Administrative Agent.  Notwithstanding the foregoing, however, Wells
Fargo may not be removed as Administrative Agent at the request of the Required
Lenders unless Wells Fargo shall also simultaneously be replaced and fully
released as “L/C Issuer” and “Swing Line Lender” hereunder pursuant to
documentation in form and substance reasonably satisfactory to Wells Fargo.


 


7.07.                      Authorization. 
The Lenders hereby irrevocably authorize the Administrative Agent, at
its option and in its discretion, to (a) execute and deliver such
documents, instruments and agreements as the Administrative Agent may deem
necessary to release any Collateral which the Borrowers are permitted to sell,
lease or otherwise transfer pursuant to the terms of the Credit Documents
(excluding releases in connection with any disposition referred to in clause
(iv) or (v) of Section 5.02(c) unless, upon giving effect to such
disposition, the assets or property that are the subject of such disposition
shall continue to be Collateral), (b) to
subordinate a Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 5.02(b)(vii), (ix) or (x), (c) to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder and (d) take such actions as the
Administrative Agent deems necessary to enable Argosy and its Subsidiaries to
comply with the terms of the Transfer Agreement including (i) the delivery,
after the occurrence of a Trigger Event, of the stock certificates issued by
Empress Casino Joliet for reissuance in the name of the Trustee (as defined in
the Transfer Agreement) and (ii) after the occurrence of a Trigger Event, the
release of a Subsidiary of Argosy as a co-borrower hereunder upon the sale or
other disposition of the capital stock or assets of such Subsidiary if the
effect of such sale or other disposition is to cause a Reverse Trigger Event; provided,
that Argosy shall deliver a certificate stating that the purchase of such
capital stock or assets was conditioned upon the release of such Borrower’s
obligations under the Credit Documents and provided, further,
that in no event shall any such release be effective until the Administrative
Agent has received all of the Net Proceeds of such sale or other disposition
for application in accordance with Section 2.07(c)(iii).


 


Without
the consent of any Lender, the Loan Parties and the Administrative Agent may
(in their respective sole discretion, or shall, to the extent required by any
Loan Document) enter into any amendment, modification or waiver of any Loan
Document, or enter into any new agreement or instrument, to effect the
granting, perfection, protection, expansion or enhancement of any security
interest in any Collateral or additional property to become Collateral for the
benefit of the Administrative Agent and the Lenders, or as required by local
law to give effect to, or protect any security interest for the benefit of the
Administrative Agent and the Lenders, in any property or so that the security
interests therein comply with applicable law.


 


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7.08.                      The Administrative Agent in its
Individual Capacity.  The
Administrative Agent and its affiliates may make loans to, issue letters of
credit for the account of, accept deposits from and generally engage in any
kind of banking or other business with Argosy and its Subsidiaries and
affiliates as though the Administrative Agent were not the Administrative
Agent, L/C Issuer or Swing Line Lender hereunder.  With respect to Loans, if any, made by the
Administrative Agent in its capacity as a Lender, the Administrative Agent in
its capacity as a Lender shall have the same rights and powers under this
Agreement and the other Credit Documents as any other Lender and may exercise
the same as though it were not the Administrative Agent, L/C Issuer or Swing
Line Lender, and the terms “Lender” or “Lenders” shall include the
Administrative Agent in its capacity as a Lender.


 


ARTICLE VIII.             MISCELLANEOUS.


 


8.01.                      Notices.


 


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


 


	
  The Administrative Agent,

  the L/C Issuer and the

  Swing Line Lender:

  	
  Wells Fargo Bank, National Association

  
	
   

  	
  5340 Kietzke, Suite 201

  Reno, Nevada 89511

  
	
   

  	
  Tel. No: (775) 689-6008

  
	
   

  	
  Fax No. (775) 689-6029

  
	
   

  	
  Attention: Casey Potter

  
	
   

  	
   

  
	
  The
  Borrowers:

  	
  c/o
  Argosy Gaming Company

  
	
   

  	
  219 Piasa Street

  Alton, Illinois 62002

  
	
   

  	
  Attention: Dale Black

  
	
   

  	
  Tel. No. (618) 474-7500

  
	
   

  	
  Fax No. (618) 474-7636

  



 


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


 


(b)                               The
Borrowers agree that the Administrative Agent may make any material delivered
by the Borrowers to the Administrative Agent, as well as any amendments,
waivers, consents, and other written information, documents, instruments and
other materials relating to the Borrowers, any of their respective
Subsidiaries, or any other materials or matters relating to this Agreement, the
Notes or any of the transactions contemplated hereby (collectively, the “Communications”)
available to the Lenders by posting such notices on an electronic delivery
system (which may be provided by the Administrative Agent, an Affiliate of the
Administrative Agent, or any Person that is not an Affiliate of the
Administrative Agent), such as IntraLinks, or a substantially similar
electronic system (the “Platform”). 
Each Borrower acknowledges that (i) the distribution of material through
an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided “as is” and “as available” and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy,
completeness, timeliness, sufficiency, or sequencing of the Communications
posted on the Platform.  The
Administrative Agent and its Affiliates expressly disclaim with respect to the
Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the
Communications posted on the Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with the
Platform.  No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Administrative Agent or any of its Affiliates in connection with the Platform.


 


(c)                                Each Lender agrees that notice to it (as provided
in the next sentence) (a “Notice”) specifying that any Communication has
been posted to the Platform shall for purposes of this Agreement constitute
effective delivery to such Lender of such information, documents or other
materials comprising such Communication. 
Each Lender agrees (i) to notify, on or before the date such Lender becomes
a party to this Agreement, the Administrative Agent in writing of such Lender’s
e-mail address to which a Notice may be sent (and from time to time thereafter
to ensure that the Administrative Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such e-mail
address.


 


8.02.                      Expenses.  The
Borrowers shall pay on demand, whether or not any Loan is made hereunder, (a)
all reasonable fees and expenses, including reasonable attorneys’ fees and
expenses, incurred by the Administrative Agent in connection with the
syndication of the facilities provided hereunder, the preparation, negotiation,
execution and delivery of, and the


 


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exercise of its duties under, this Agreement and the
other Credit Documents, and the preparation, negotiation, execution and
delivery of amendments and waivers hereunder and thereunder and (b) all
reasonable fees and expenses, including reasonable attorneys’ fees and
expenses, incurred by counsel to the Administrative Agent and the Lenders
(subject to the limitation of one additional law firm representing the Lenders
collectively) in the enforcement or attempted enforcement of any of the
Obligations or in preserving any of the Administrative Agent’s, the Syndication
Agent’s, the Documentation Agent’ or the Lenders’ rights and remedies
(including all such fees and expenses incurred in connection with any “workout”
or restructuring affecting the Credit Documents or the Obligations or any
bankruptcy or similar proceeding involving any Loan Party).  As used herein, the term “reasonable
attorneys’ fees and expenses” shall include, without limitation, allocable
costs and expenses of the Administrative Agent’s in-house legal counsel and
staff.  The obligations of the Borrowers
under this Section 8.02 shall survive the payment and performance
of the Obligations and the termination of this Agreement.


 


8.03.                      Indemnification.  To the fullest extent permitted by law, each
Borrower agrees to protect, indemnify, defend and hold harmless the
Administrative Agent, the Syndication Agent, the Documentation Agent, the L/C
Issuer, the Swing Line Lender, the Lenders and their Affiliates and their
respective directors, officers, employees, agents, trustees and advisors
(collectively, “Indemnitees”) from and against any and all liabilities,
losses, damages or expenses of any kind or nature and from any suits, claims or
demands (including in respect of or for reasonable attorney’s fees and other
expenses) arising on account of or in connection with any matter or thing or
action or failure to act by Indemnitees, or any of them, arising out of or
relating to (a) the Credit Documents or any transaction contemplated thereby,
including any use by any Borrower of any proceeds of the Loans, (b) any
Environmental Damages and (c) any claims for brokerage fees or commissions in
connection with the Credit Documents or any transaction contemplated thereby,
except to the extent such liability arises from the willful misconduct or gross
negligence of such Indemnitee.  Upon
receiving knowledge of any suit, claim or demand asserted by a third party that
the Administrative Agent or any Lender believes is covered by this indemnity,
the Administrative Agent or such Lender shall give the Borrowers notice of the
matter and an opportunity to defend it, at the Borrowers’ sole cost and
expense, with legal counsel satisfactory to the Administrative Agent or such
Lender, as the case may be.  Any failure
or delay of the Administrative Agent or any Lender to notify the Borrowers of
any such suit, claim or demand shall not relieve any Borrower of its
obligations under this Section 8.03 but shall reduce such
obligations to the extent of any increase in those obligations caused solely by
any such failure or delay which is unreasonable.  The obligations of the Borrowers under this Section 8.03
shall survive the payment and performance of the Obligations and the
termination of this Agreement.


 


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


 


(a)                                Any
amendment, waiver or consent which would (i) amend this Section 8.04
or Section 2.11, (ii) amend the definition of “Required Class Lenders”,
“Required


 


97





















 


Lenders”,
“Required Revolving Lenders” or “Required Term Lenders”, or modify in any other
manner the number or percentage of the Lenders required to make any
determinations or to waive any rights under, or to modify any provision of,
this Agreement or (iii) except for any release of Collateral in connection with
a disposition authorized by Section 5.02(c) (other than any disposition
referred to in clause (iv) or (v) thereof unless, upon giving effect to such
disposition, the assets or property that are the subject of such disposition
shall continue to be Collateral) or other release of Collateral expressly authorized
by Section 7.07, release any substantial part of the Collateral, release
any Borrower from the Credit Agreement or release any Guarantor from the
Guaranty, must be in writing and signed or approved in writing by all Lenders;


 


(b)                               Any
amendment, waiver or consent which would (i) increase the Total Revolving Loan
Commitment, (ii) extend the Revolving Loan Maturity Date, (iii) reduce the
principal of or interest on any Revolving Loan or L/C Borrowing or any fees or
other amounts payable for the account of the Revolving Lenders hereunder or
(iv) extend any date fixed for any payment of the principal of or interest on
any Revolving Loans or any fees or other amounts payable for the account of the
Revolving Lenders, must be in writing and signed or approved in writing by all
Revolving Lenders;


 


(c)                                Any
amendment, waiver or consent which would (i) increase the Total Term Loan
Commitment, (ii) extend the Term Loan Maturity Date, (iii) reduce the principal
of or interest on any Term Loan or any fees or other amounts payable for the
account of the Term Lenders hereunder or (iv) extend any date fixed for any
payment of the principal of or interest on any Term Loans or any fees or other
amounts payable for the account of the Term Lenders, must be in writing and signed
or approved in writing by all Term Lenders;


 


(d)                               Any
amendment, waiver or consent which would increase the interest on any Revolving
Loan or L/C Obligation or any fees or other amounts payable for the account of
the Revolving Lenders hereunder, must be in writing and signed or approved in
writing by the Required Class Lenders;


 


(e)                                Any
amendment, waiver or consent which would (i) accelerate the Term Loan Maturity
Date, (ii) increase the interest on any Term Loan or any fees or other amounts
payable for the account of the Term Lenders hereunder or (iii) accelerate any
date fixed for any payment of the principal of or interest on any Term Loans or
any fees or other amounts payable for the account of the Term Lenders, must be
in writing and signed or approved in writing by the Required Class Lenders;


 


(f)                                  Any
amendment, modification, termination or waiver of any provision of Section
2.05 or 2.07 must be in writing and signed by the Required Class
Lenders;


 


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


 


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


 


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


 


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


 


No failure or delay by the Administrative Agent or any
Lender in exercising any right under this Agreement or any other Credit
Document shall operate as a waiver thereof or of any other right hereunder or
thereunder nor shall any single or partial exercise of any such right preclude
any other further exercise thereof or of any other right hereunder or
thereunder.  Unless otherwise specified
in such waiver or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific purpose for which
given.


 


In the event that (i) a Lender shall not enter into or
shall not consent to any proposed amendment, waiver or other modification of
any provision of this Agreement or any other Loan Document governed by Section
8.04(a), (b) or (c), (ii) such Lender’s consent is necessary
for such amendment, waiver or modification to become effective, and (iii) at
least 50% of the Lenders whose consent is required to effectuate such
amendment, waiver or modification have in fact consented thereto, then,
provided that no Event of Default then exists, notwithstanding the provisions
of Section 2.11 to the contrary, the Borrowers may (A) prepay all
Obligations (including, with respect to a Letter of Credit, cash
collateralization of an interest therein) outstanding to any such nonconsenting
Lender and eliminate any such Lender’s Commitment and (B) concurrently with
such prepayment or within ten Business Days thereafter, obtain new Term Loans
or new Revolving Loan Commitments, as applicable, either from then-current
Lenders and/or new Lenders, in an amount which, when added to the aggregate
amount of Term Loans or Revolving Loan Commitments, as applicable, provided by
the remainder of the existing Lenders at such time, is equal to the aggregate
amount of Term Loans and/or the Total Revolving Loan Commitment, as applicable,
that was outstanding at the time of the prepayment provided for in clause (A)
above (after giving effect to any repayments, prepayments or commitment
reductions since the prepayment provided for in clause (A) above).  In connection therewith, the Administrative
Agent is authorized to adjust the Proportionate Share of each Lender as
necessary to reflect the prepayment and, if applicable, additional Term Loans
or Revolving Loan Commitments.  Any
Lender providing additional Term Loans or an additional Revolving Loan
Commitment shall be a “Lender” for all purposes hereunder and such Term Loans
or Revolving Loan Commitments, as applicable, shall be Term Loans or Revolving
Loan Commitments for all purposes hereunder.


 


8.05.                      Successors and Assigns.


 


(a)                                Binding
Effect.  This Agreement and the other
Credit Documents shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agent, all future holders of the
Notes and their respective successors and permitted assigns, except that no
Borrower may assign or transfer any of its rights or obligations under any
Credit Document without the prior written consent of the Administrative Agent
and each Lender.


 


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(b)                               Participations.  Any Lender may, without notice to or consent
of the Administrative Agent or the Borrower, at any time sell to one or more
banks or other financial institutions (“Participants”) participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under this
Agreement and the other Credit Documents (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line
Loans).  In the event of any such sale by
a Lender of participating interests, such Lender’s obligations under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of its Notes
for all purposes under this Agreement and the Borrowers and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.  Any agreement pursuant to which any such sale
is effected may require the selling Lender to obtain the consent of the
Participant in order for such Lender to agree in writing to any amendment,
waiver or consent of a type specified in Section 8.04(a), (b), (c),
(d), (e), (f) or (g) but may not otherwise require
the selling Lender to obtain the consent of such Participant to any other
amendment, waiver or consent hereunder. 
Each  Borrower agrees that if amounts
outstanding under this Agreement and the other Credit Documents are not paid
when due (whether upon acceleration or otherwise), each Participant shall, to
the fullest extent permitted by law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement and
any other Credit Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any other Credit Documents; provided, however, that
(i) no Participant shall exercise any rights under this sentence without the
consent of the Administrative Agent, (ii) no Participant shall have any rights
under this sentence which are greater than those of the selling Lender and
(iii) such rights of setoff shall be subject to the obligation of such
Participant to share the payment so obtained with all of the Lenders as
provided in Section 2.11(b).  Each
Borrower also agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14  to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (c) of this Section on the date of the
participation; provided, that a Participant shall not be entitled to
receive any greater payment under Section 2.12 or 2.13  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant and the
Participant shall not be entitled to the benefits of Section 2.13 unless
it complies with the provisions of Section 2.13(f) and (g) as if
it were a Lender by assignment.


 


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


 


(i)                                   Each
Assignee Lender taking an assignment from a Revolving Lender shall provide
appropriate assurances and indemnities (which may include letters of


 


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credit)
to the L/C Issuer and the Swing Line Lender as each may reasonably require with
respect to any continuing obligation to purchase participation interests in any
L/C Obligations or any Swing Line Loans then outstanding;


 


(ii)                                Without
the written consent of the Administrative Agent and, if no Event of Default has
occurred and is continuing, the Borrowers (which consent of the Administrative
Agent and the Borrowers shall not be unreasonably withheld or delayed), no
Revolving Lender may make any Assignment to any Assignee Lender which is not,
immediately prior to such Assignment, a Lender hereunder or an Affiliate
thereof;


 


(iii)                             Without
the written consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), no Term Lender may make any Assignment to
any Assignee Lender which is not, immediately prior to such Assignment, a
Lender hereunder, an Affiliate thereof or an Approved Fund; and


 


(iv)                            Without
the written consent of the Administrative Agent and, if no Default has occurred
and is continuing, the Borrowers (which consent of the Administrative Agent and
the Borrowers shall not be unreasonably withheld or delayed), each Assignment
shall be in an aggregate amount of not less than (A) in the case of an
Assignment of any Revolving Loan or Revolving Loan Commitment, $5,000,000 (or
such lesser amount as shall constitute the aggregate amount of the Revolving
Loan Commitment, Revolving Loans, Swing Line Loans an participations therein,
Letters of Credit and participations therein and other Obligations of the
Assignor Lender) and (B) in the case of an Assignment of any Term Loan,
$1,000,000 (or (x) such lesser amount as shall constitute the aggregate
amount of the Term Loan and other Obligations of the Assignor Lender or
(y) such lesser amount as otherwise shall have been agreed upon by the
Administrative Agent).


 


The
Administrative Agent shall be under no obligation to determine whether a Person
which represents that it is an Eligible Assignee is in fact an Eligible
Assignee.


 


Upon such execution, delivery, acceptance and
recording of each Assignment Agreement, from and after the Assignment Effective
Date determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with Commitments and Loans as set
forth on Attachment 1 to such Assignment Agreement and shall have the rights,
duties and obligations of such a Lender under this Agreement and the other
Credit Documents, and (B) the Assignor Lender thereunder shall be a Lender
with Commitments and Loans as set forth on Attachment 1 to such Assignment
Agreement, or, if the Commitments and Loans of the Assignor Lender has been
reduced to $0, the Assignor Lender shall cease to be a Lender and to have any
obligation to make any Loan; provided, however, that any such Assignor Lender
which ceases to be a Lender shall continue to be entitled to the benefits of
any provision of this Agreement which by its terms survives the termination of
this Agreement.  Each Assignment
Agreement shall be deemed to adjust the then-current Revolving Loan Commitment
or outstanding Revolving Loans or Term Loans, as applicable, to the extent, and
only to the extent, necessary to reflect the addition of each Assignee Lender,
the deletion of each Assignor Lender which reduces its Commitments and Loans to
$0 and the resulting adjustment of Commitments and Loans arising from the
purchase by each Assignee Lender of all or a portion of the rights and obligations
of an Assignor Lender under this Agreement and the other Credit Documents.  On or prior to the


 


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Assignment Effective Date determined pursuant to each
Assignment Agreement, each Borrower, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Revolving
Loan Note or Term Loan Note, if any, of the Assignor Lender thereunder, a new
Revolving Loan Note or Term Loan Note to the order of each Assignee Lender
thereunder that requests such a note (with each new Revolving Loan Note to be
in an amount equal to the Revolving Loan Commitment assumed by such Assignee
Lender and each new Term Loan Note to be in the original principal amount of
the Term Loan then held by such Assignee Lender) and, if the Assignor Lender is
continuing as a Lender hereunder, a new Revolving Loan Note or Term Loan Note
to the order of the Assignor Lender if so requested by such Assignor Lender
(with the new Revolving Loan Note to be in an amount equal to the Revolving
Loan Commitment retained by it and the new Term Loan Note to be in the original
principal amount of the Term Loan retained by it).  Each such new Revolving Loan Note and Term
Loan Note shall be dated the Restatement Effective Date, and each such new Note
shall otherwise be in the form of the Note replaced thereby.  The Notes surrendered by the Assignor Lender
shall be returned by the Administrative Agent to the Borrowers marked “replaced”.  Each Assignee Lender which was not previously
a Lender hereunder and which is not incorporated under the laws of the United
States of America or a state thereof shall, within three (3) Business Days of
becoming a Lender, deliver to the Borrowers and the Administrative Agent two
duly completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI (or successor applicable form), as the case may be, certifying in each
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes.  Each Assignee Lender that is not
a foreign Lender shall deliver, if reasonably requested by the Administrative
Agent or a Borrower, two duly completed copies of United States Internal
Revenue Service Form W-9.


 


Notwithstanding anything to the contrary contained
herein, if at any time Wells Fargo assigns all of its Commitments and Loans
pursuant to subsection (c) above, Wells Fargo shall, upon 30 days’ notice to
the Borrowers and the Lenders, resign as L/C Issuer and Swing Line Lender.  In the event of any such resignation as L/C
Issuer and Swing Line Lender, the Borrowers shall be entitled to appoint from
among the Lenders a successor L/C Issuer and Swing Line Lender hereunder
(subject to the consent of such appointed Lender); provided, however,
that no failure by the Borrowers to appoint any such successor shall affect the
resignation of Wells Fargo as L/C Issuer and Swing Line Lender, as the case may
be.  Wells Fargo shall retain all the
rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
(which Letters of Credit have not been replaced by Letters of Credit issued by
the successor L/C Issuer) and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans
or fund participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  Wells Fargo shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such termination (which
Swing Line Loans have not been assigned to the successor Swing Line Lender),
including the right to require the Lenders to make Base Rate Revolving Loans or
fund participations in outstanding Swing Line Loans pursuant to Section
2.04(c).


 


(d)                               Register.  The Administrative Agent shall maintain at
its address referred to in Section 8.01 a copy of each Assignment
Agreement delivered to it and a register (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitments


 


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or
Loans of each Lender from time to time. 
The entries in the Register shall be conclusive in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loans recorded therein for all purposes of this Agreement.  The Register shall be available for
inspection by any Borrower and the L/C Issuer at any reasonable time and from
time to time upon reasonable prior notice. 
In addition, at any time that a request for a consent for a material or
substantive change to the Credit Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.  No Assignment shall be effective unless recorded
in the Register.


 


(e)                                Registration.  Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the extent
required by Section 8.05(c), by the Borrowers and the
Administrative Agent) together with payment to the Administrative Agent by
Assignor Lender of a registration and processing fee of $3,500 (except that no
such fee shall be payable in the case of an assignee which is a Lender, an
Affiliate thereof or an Approved Fund and, in the case of assignments on the
same day by a Lender to more than one Fund managed or advised by the same
investment advisor and which are not then Lenders, only a single $3,500 fee
shall be payable for all such assignments by such Lender to such Funds), the
Administrative Agent shall (i) promptly accept such Assignment Agreement and
(ii) on the Assignment Effective Date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrowers.  The Administrative Agent shall, upon request
of the Borrowers, prepare and deliver to the Borrowers a copy of the Register
containing the names, addresses and respective Commitments or Loans of all
Lenders then parties hereto.


 


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


 


(g)                               Pledges
to Federal Reserve Banks, Etc..  Notwithstanding any other provision of this
Agreement, any Lender may, without the consent of the Borrowers or the
Administrative Agent, at any time pledge or assign all or a portion of its
rights under this Agreement and the other Credit Documents to a Federal Reserve
Bank.  In addition, in the case of any
Lender that is a Fund, such Lender may, without the consent of the Borrowers or
the Administrative Agent, pledge or assign all or a portion of its rights under
this Agreement and the other Credit Documents to any trustee for, or any other
representative of, holders of obligations owed or securities issued by such
Lender as security for such obligations or securities; provided that any
foreclosure or similar action by such trustee or representative shall be
subject to the provisions of this Section 8.05 concerning
assignments.  No such pledge or
assignment referred to in this clause (g) shall relieve the pledging or
assigning Lender from its obligations under this Agreement and the other Credit
Documents.


 


(h)                               Assignments
by Wells Fargo.  Notwithstanding any
provision in this Section 8.05 to the contrary, no Assignment of Term
Loans by Wells Fargo shall be subject to the requirements set forth in clause
(iii) of the proviso to Section 8.05(c), and no registration or
processing fee shall be payable in connection with any such Assignment by Wells
Fargo.


 


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8.06.                      Setoff; Security Interest.


 


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


 


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


 


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


 


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


 


8.09.                      Jury Trial. 
EACH OF THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.


 


8.10.                      Confidentiality.  Neither any Lender nor the Administrative
Agent shall disclose to any Person any information with respect to any Loan
Party which is furnished pursuant to this Agreement or under the other Credit
Documents, except that any Lender or the Administrative Agent may disclose any
such information (a) to its own directors, officers, employees, auditors,
counsel and other advisors and to its Affiliates; (b) to any other Lender or
the Administrative Agent; (c) which is otherwise available to the public; (d)
if required or appropriate in any report,


 


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statement
or testimony submitted to any Governmental Authority (which, for purposes of
this Section 8.10, shall include the National Association of
Insurance Commissioners) having or claiming to have jurisdiction over such
Lender or the Administrative Agent; (e) if required in response to any summons
or subpoena; (f) in connection with any enforcement by the Lenders and the
Administrative Agent of their rights under this Agreement or the other Credit
Documents or any litigation among the parties relating to the Credit Documents
or the transactions contemplated thereby; (g) to comply with any Requirement of
Law applicable to such Lender or the Administrative Agent; (h) to any Assignee
Lender or Participant or any prospective Assignee Lender or Participant,
provided that such Assignee Lender or Participant or prospective Assignee
Lender or Participant agrees to be bound by this Section 8.10;
(i) to any direct or indirect contractual counterparty in any swap, hedge
or similar agreement (or to any such contractual counterparty’s professional
advisor), so long as such contractual counterparty (or such professional
advisor) agrees to be bound by the provisions of this Section 8.10;
(j) to any nationally recognized rating agency that requires access to
information about a Lender’s investment portfolio in connection with ratings
issued with respect to such Lender; or (k) otherwise with the prior
consent of such Loan Party; provided, however, that any
disclosure made in violation of this Agreement shall not affect the obligations
of the Loan Parties under this Agreement and the other Credit Documents.


 


8.11.                      Counterparts. 
This Agreement may be executed in any number of identical counterparts,
any set of which signed by all the parties hereto shall be deemed to constitute
a complete, executed original for all purposes.


 


8.12.                      Consent to Jurisdiction.  Each Borrower irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New York and the
courts of the United States of America located in the Southern District of New
York and agrees that any legal action, suit or proceeding arising out of or
relating to this Agreement or any of the other Credit Documents may be brought
against such party in any such courts. 
Final judgment against any Borrower in any such action, suit or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the judgment, or in any other manner provided by
law.  Nothing in this Section 8.12
shall affect the right of the Administrative Agent or any Lender to commence
legal proceedings or otherwise sue any Borrower in any other appropriate
jurisdiction, or concurrently in more than one jurisdiction, or to serve
process, pleadings and other papers upon any Borrower in any manner authorized
by the laws of any such jurisdiction. 
Each Borrower agrees that process served either personally or by
registered mail shall, to the extent permitted by law, constitutes adequate
service of process in any such suit. 
Each Borrower irrevocably waives to the fullest extent permitted by
applicable law (a) any objection which it may have now or in the future to the
laying of the venue of any such action, suit or proceeding in any court
referred to in the first sentence above; (b) any claim that any such action,
suit or proceeding has been brought in an inconvenient forum; (c) its right of
removal of any matter commenced by any other party in the courts of the State
of New York to any court of the United States of America; (d) any immunity
which it or its assets may have in respect of its obligations under this
Agreement or any other Credit Document from any suit, execution, attachment
(whether provisional or final, in aid of execution, before judgment or
otherwise) or other legal process; and (e) any right it may have to require the
moving party in any suit, action or proceeding brought in any of the courts
referred to above arising out of or in


 


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connection
with this Agreement or any other Credit Document to post security for the costs
of such Borrower or to post a bond or to take similar action.


 


8.13.                      Joint and Several Obligations.


 


(a)                                All
of the obligations of the Borrowers under this Agreement and the other Credit
Documents shall be joint and several.


 


(b)                               Each
Borrower agrees that neither the Administrative Agent nor any Lender shall have
any responsibility to inquire into the apportionment, allocation or disposition
of any Borrowings or Letters of Credit as among the Borrowers.


 


(c)                                For
the purpose of implementing the joint borrower provisions of this Agreement and
each of the Credit Documents, each Borrower hereby irrevocably appoints Argosy
as its agent and attorney-in-fact for all purposes of this Agreement and each
of the Credit Documents, including the giving and receiving of notices and
other communications, the making of requests for, or conversions or
continuations of, Borrowings and/or Letters of Credit, the execution and
delivery of certificates and the receipt and allocation of disbursements from
the Lenders.  Argosy hereby accepts such
appointment.  The Administrative Agent
and each Lender may regard any notice or other communication pursuant to any
Credit Document from Argosy as a notice or communication from all Borrowers and
may give any notice or communication required or permitted to be given to any
Borrower or Borrowers hereunder to Argosy on behalf of such Borrower or
Borrowers.  Each Borrower agrees that
each notice, election, representation and warranty, covenant, agreement and
undertaking made on its behalf by Argosy shall be deemed for all purposes to
have been made by such Borrower and shall be binding upon and enforceable
against such Borrower to the same extent as if the same had been made directly
by such Borrower.


 


(d)                               Each
Borrower hereby waives, with respect to itself and its obligations hereunder,
any right (except as shall be required by applicable statute and cannot be
waived) to require the Administrative Agent or any Lender to (i) proceed
against any other Borrower, any guarantor or any other Person, (ii) proceed
against or exhaust any security held from any other Borrower, any guarantor or
any other Person or (iii) pursue any other remedy in the Administrative Agent
or any Lender’s power whatsoever.  Each
Borrower hereby waives any defense based on or arising out of any defense of
any other Borrower, any guarantor or any other Person other than payment in
full of the Obligations, including any defense based on or arising out of the
disability of any other Borrower, any guarantor or any other Person, or the
enforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Borrower other than payment in
full of the Obligations.  Subject to the
terms of this Agreement, the Administrative Agent or any Lender may, at its election,
foreclose on any security held by the Administrative Agent or any Lender by one
or more judicial or non-judicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Administrative Agent
or any Lender may have against any other Borrower, any guarantor or any other
Person, or any security, without affecting or impairing in any way the
liability of any Borrower hereunder except to the extent the Obligations have
been paid in full.  Each Borrower waives
all rights and defenses arising out of any such election of remedies by the


 


106





















 


Administrative
Agent or any Lender, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed
any of such Borrower’s, any other Borrower’s or any guarantor’s rights of
subrogation and reimbursement against any other Borrower or any guarantor.


 


(e)                                Each
Borrower waives any defense, right of set-off, claim or counterclaim whatsoever
and any and all other rights, benefits, protections and other defenses
available to it now or at any time hereafter.


 


(f)                                  Each
Borrower waives all rights and defenses that such Borrower may have because the
Obligations are secured by real property. 
This means, among other things:


 


(i)                                   The
Administrative Agent or any Lender may collect from such Borrower without first
foreclosing on any real or personal property collateral pledged by such
Borrower, any other Borrower or any guarantor.


 


(ii)                                If
the Administrative Agent or any Lender forecloses on any real property
collateral pledged by such Borrower or any other Borrower:


 


(A)                            The
amount of the debt may be reduced only by the price for which that collateral
is sold at the foreclosure sale, even if the collateral is worth more than the
sale price.


 


(B)                              The
Administrative Agent or any Lender may collect from each Borrower even if the
Administrative Agent or any Lender, by foreclosing on the real property
collateral, has destroyed any right such Borrower may have to collect from any
other Borrower or any guarantor.


 


This is an unconditional and irrevocable waiver of any rights and
defenses each Borrower may have because such Borrower’s debt is secured by real
property.


 


(iii)                             Each
Borrower waives all rights and defenses arising out of an election of remedies
by the Administrative Agent or any Lender, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed such Borrower’s rights of subrogation and
reimbursement against the principal.


 


(g)                               Each
Borrower assumes all responsibility for being and keeping itself informed of
each other Borrower’s and any guarantor’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks which such Borrower
or any guarantor assumes and incurs under any Credit Document, and agrees that
neither the Administrative Agent nor any Lender shall have no duty to advise
such Borrower, any other Borrower or any guarantor of information known to the
Administrative Agent or any Lender regarding such circumstances or risks.


 


8.14.                      Assignment of Revolving Loans.  (a) On or prior to the Restatement
Effective Date, the Administrative Agent shall notify each Revolving Lender of
the amount required to be paid by or to such Revolving Lender so that the
Revolving Loans held by the Revolving Lenders on the Restatement Effective Date
(before giving effect to any new Revolving Loans made on


 


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such
date) shall be held by each Revolving Lender pro rata in accordance with the
Revolving Loan Commitments of the Lenders set forth in the Register maintained
by the Administrative Agent.  Each
Revolving Lender which is required to reduce the amount of Revolving Loans held
by it (each such Lender, a “Decreasing Revolving Lender”) shall
irrevocably assign, without recourse or warranty of any kind whatsoever (except
that each Decreasing Revolving Lender warrants that it is the legal and
beneficial owner of the Loans assigned by it under this Section 8.14
and that such Loans are held by such Decreasing Revolving Lender free and clear
of adverse claims), to each Revolving Lender which is required to increase the
amount of Revolving Loans held by it (each such Lender, an “Increasing
Revolving Lender”), and each Increasing Revolving Lender shall irrevocably
acquire from the Decreasing Revolving Lenders, a portion of the principal
amount of the Revolving Loans of each Decreasing Revolving Lender
(collectively, the “Acquired Revolver Portion”) outstanding on the
Restatement Effective Date (before giving effect to any new Revolving Loans
made on such date) in an amount such that the principal amount of the Revolving
Loans held by each Increasing Revolving Lender and each Decreasing Revolving
Lender as of the Restatement Effective Date shall be held in accordance with each
such Lender’s Proportionate Share (if any) as of such date.  Such assignment and acquisition shall be
effective on the Restatement Effective Date automatically and without any
action required on the part of any party other than the payment by the Increasing
Revolving Lenders to the Administrative Agent for the account of the Decreasing
Revolving Lenders of an aggregate amount equal to the Acquired Revolver
Portion, which amount shall be allocated and paid by the Administrative Agent
at or before 12:00 p.m. on the Restatement Effective Date to the Decreasing
Revolving Lenders pro rata based upon the respective reductions in the
principal amount of the Revolving Loans held by such Revolving Lenders on the
Restatement Effective Date (before giving effect to any new Revolving Loans
made on such date).  Each of the
Administrative Agent and the Lenders shall adjust its records accordingly to
reflect the payment of the Acquired Revolver Portion.  The payment to be made in respect of the
Acquired Revolver Portion shall be made by the Increasing Revolving Lenders to
the Administrative Agent in Dollars in immediately available funds at or before
11:00 a.m. on the Restatement Effective Date, such payment to be made by the
Increasing Revolving Lenders pro rata based upon the respective increases in
the principal amount of the Revolving Loans held by such Revolving Lenders on
the Restatement Effective Date (before giving effect to any new Revolving Loans
made on such date).


 


(b)                               To
the extent any of the Revolving Loans acquired by the Increasing Revolving
Lenders from the Decreasing Revolving Lenders pursuant to Section 8.14(a)
above are LIBOR Loans and the Restatement Effective Date is not the last day of
an Interest Period for such LIBOR Loans, the Decreasing Revolving Lenders shall
be entitled to compensation from the Borrowers as provided in
Section 2.07(c) of the Existing Credit Agreement (as if the Borrowers had
prepaid such LIBOR Loans in an amount equal to the Acquired Revolver Portion on
the Restatement Effective Date).  The
payment made by the Increasing Revolving Lenders in respect of the Acquired
Revolver Portion shall constitute a Loan made by the Increasing Revolving
Lenders on the Restatement Effective Date, and to the extent any Loan acquired
by the Increasing Revolving Lenders on the Restatement Effective Date is a
LIBOR Loan and such date is not the last day of an Interest Period for such
LIBOR Loan, such LIBOR Loan shall accrue interest at the rate then applicable
to such Loan until such last day; provided, however, that the
Borrowers shall compensate the Increasing Revolving Lenders for an amount equal
to the amount, if any, by which the cost to the Increasing Revolving Lenders of
funding the amount


 


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of
each such Loan in the respective market for the period from such date to the
last day of the then Interest Period for such Loan exceeds such applicable
rate.


 


8.15.                      Application of Gaming Laws.


 


(a)                                This
Agreement and the other Credit Documents are subject to Gaming Laws and laws
involving the sale or distribution of liquor (the “Liquor Laws”).  Without limiting the foregoing, each of the
Administrative Agent and the Lenders acknowledges that (i) it is subject to
being called forward by the Gaming Authorities or the Governmental Authorities
enforcing the Liquor Laws, in their discretion, for licensing or a finding of
suitability or to file or provide other information, and (ii) all rights,
remedies and powers in or under this Agreement and the other Credit Documents,
including with respect to the Collateral (including Equity Securities) and the
ownership and operation of Gaming Facilities, may be exercised only to the
extent that the exercise thereof does not violate any applicable provisions of
the Gaming Laws and Liquor Laws and only to the extent that required approvals
(including prior approvals) are obtained from the requisite Governmental
Authorities.


 


(b)                               Each
of the Administrative Agent and the Lenders agrees to cooperate with all Gaming
Authorities (or be subject to the provisions of Section 2.16) in
connection with the provision of such documents or other information as may be
requested by such Gaming Authorities relating to the Loan Parties or to the
Credit Documents.


 


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


 


8.16.                      Damages; Insurance and Condemnation
Proceeds.


 


(a) (i) All awards
of damages and all other compensation payable directly or indirectly by reason
of a condemnation or proposed condemnation (or transfer in lieu thereof) for
public or private use affecting the Collateral; (ii) all other claims and
awards for damages to or decrease in value of the Collateral; (iii) all
proceeds of any insurance policies payable by reason of loss sustained to the
Collateral or due to a business interruption; and (iv) all interest which
may accrue on any of the foregoing, are all absolutely and irrevocably assigned
to and shall be paid to the Administrative Agent for the benefit of itself and
the Lenders.  At any time that an Event
of Default shall have occurred and be continuing, (x) upon prior notice to the
Borrowers, the Administrative Agent may commence, appear in, defend or
prosecute any assigned claim or action, and may adjust, compromise, settle and
collect all claims and awards assigned to the Administrative Agent, provided,
however, that in no event shall the Administrative Agent be responsible
for any failure to collect any claim or award, regardless of the cause of the
failure and (y) the Administrative Agent may apply all or any insurance or
condemnation proceeds it


 


109





















 


receives
to its expenses in settling, prosecuting or defending any such claim and apply
the balance to the Obligations in accordance with Section 2.08(c).


 


(b)                               If
no Event of Default has occurred and is continuing, (i) the Administrative
Agent shall release to the Borrowers any insurance or condemnation proceeds not
exceeding $25,000,000 to be applied by the Borrowers to the restoration of the
insured damage or replacement of the condemned property and (ii) the
Administrative Agent, upon the Borrowers’ request, shall release to the
Borrowers any insurance or condemnation proceeds exceeding $25,000,000, such
insurance or condemnation proceeds to be held by the Administrative Agent to be
used for repair or restoration subject to reasonable conditions on such use including,
without limitation:  (i) the deposit
with the Administrative Agent of such additional funds which the Administrative
Agent determines are needed to pay all costs of the repair or restoration
(including, without limitation, taxes, financing charges, insurance and rent
during the repair period); (ii) the establishment of an arrangement for
lien releases and disbursement of funds acceptable to the Administrative Agent;
and (iii) the delivery to the Administrative Agent of evidence reasonably
acceptable to the Administrative Agent (A) that after completion of the
work the income from the applicable facility will be sufficient to pay all
expenses of such facility and (B) of the satisfaction of any additional
conditions that the Administrative Agent and the Required Lenders may
reasonably establish to protect their Lien. 
Each Borrower hereby acknowledges that the conditions described above
are reasonable.  If such conditions, together
with any other reasonable conditions imposed by the Administrative Agent and
the Required Lenders, have not been satisfied within one hundred eighty (180)
days of receipt by the Administrative Agent of such insurance or condemnation
proceeds or if an Event of Default occurs and is continuing, then, at the
direction of the Required Lenders, the Administrative Agent shall apply such
insurance or condemnation proceeds to pay the Obligations in accordance with Section 2.08(c).


 


8.17.                      Effectiveness of Restatement.  The Borrowers, the Lenders and the
Administrative Agent agree that upon the satisfaction of the conditions set
forth in Section 3.01, the following transactions shall be deemed
to occur automatically, without further action by any party hereto (except as
set forth below):


 


(a)                                The
Existing Credit Agreement shall be deemed to be amended and restated in its
entirety in the form of this Agreement; provided, that the Lenders that
are also party to the Existing Credit Agreement shall remain entitled to
indemnities under the Existing Credit Agreement which by their terms survive
the termination of the Existing Credit Agreement.


 


(b)                               The
Administrative Agent shall, promptly after receipt of the Notes reflecting the
amendments to the Existing Credit Agreement effected hereunder, cancel and
return to the Borrowers (upon receipt from the Lenders) the promissory notes
being replaced by such Notes.


 


Each
Borrower, each Lender and the Administrative Agent agree that (i) the
restatement transactions provided in the foregoing sentence shall not be
effective until the execution of this Agreement by all of the parties hereto
and the satisfaction of the conditions precedent set forth in Section 3.01
hereof; (ii) all terms and conditions of the Existing Credit Agreement
which are


 


110





















 


amended
and restated by this Agreement shall remain effective until such amendment and
restatement becomes effective hereunder and thereafter shall continue to be
effective only as amended and restated by this Agreement and (iii) the
representations, warranties and covenants set forth herein shall become
effective on the date on which such conditions are satisfied.


 


8.18.                      Departing Lenders.  Upon the effectiveness of this Agreement and
the payment to the Departing Lenders of the Obligations due it, (a) the
Departing Lenders shall have no further Commitment hereunder and (b) the
Departing Lenders shall cease to have any rights or duties as Lenders
hereunder; provided, that the Departing Lenders shall remain entitled to
indemnities under the Existing Credit Agreement which by their terms survive
the termination of the Existing Credit Agreement.


 


8.19.                      Patriot Act Notification.  The following notification is provided to the
Borrowers pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:


 


IMPORTANT INFORMATION ABOUT
PROCEDURES FOR OPENING A NEW ACCOUNT.  To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all Lenders to obtain, verify and record
information that identifies each person that opens an account, including any
deposit account, treasury management account, loan, other extension of credit
or other financial services product. 
What this means for the Borrowers: When a Borrower opens an account, the
Lenders will ask for, and such Borrower shall provide to such Lenders, such
Borrower’s name, business address, taxpayer identification number and other
information that will allow the Lenders to identify such Borrower.  The Lenders may also ask to see such Borrower’s
legal organizational documents or other identifying documents.


 


111





















 


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


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARGOSY GAMING COMPANY,

  
	
   

  	
  CENTROPLEX
  CENTRE CONVENTION

  HOTEL, L.L.C.,

  
	
   

  	
  ALTON
  GAMING COMPANY,

  
	
   

  	
  ARGOSY
  OF IOWA, INC.,

  
	
   

  	
  ARGOSY
  OF LOUISIANA, INC.,

  
	
   

  	
  ARGOSY
  OF LOUISIANA, INC., as the

  general partner of CATFISH QUEEN

  PARTNERSHIP IN COMMENDAM,

  
	
   

  	
  JAZZ
  ENTERPRISES, INC., as the partner in

  commendam of CATFISH QUEEN

  PARTNERSHIP IN COMMENDAM,

  
	
   

  	
  EMPRESS
  CASINO JOLIET

  CORPORATION,

  
	
   

  	
  THE
  INDIANA GAMING COMPANY,

  
	
   

  	
  THE
  INDIANA GAMING COMPANY, as the

  general partner of INDIANA GAMING

  COMPANY, L.P.,

  
	
   

  	
  INDIANA
  GAMING HOLDING COMPANY,

  
	
   

  	
  INDIANA
  GAMING HOLDING COMPANY, as the

  general partner of INDIANA

  GAMING II, L.P.,

  
	
   

  	
  IOWA
  GAMING COMPANY,

  
	
   

  	
  IOWA
  GAMING COMPANY, as the general

  partner of BELLE OF SIOUX CITY,

  L.P.,

  
	
   

  	
  JAZZ
  ENTERPRISES, INC. AND

  
	
   

  	
  THE
  MISSOURI GAMING COMPANY

  



 


112





















 


	
   

  	
  BY:

  	
  /s/ Dale R.
  Black

  
	
   

  	
  Dale R. Black

  
	
   

  	
  Senior Vice
  President and Chief Financial Officer

  of Argosy Gaming Company

  
	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  
	
   

  	
  Treasurer of

  
	
   

  	
   

  
	
   

  	
  Alton Gaming
  Company,

  
	
   

  	
  Argosy of Iowa,
  Inc.,

  
	
   

  	
  Argosy of
  Louisiana, Inc.,

  
	
   

  	
  Empress Casino
  Joliet Corporation,

  
	
   

  	
  The Indiana
  Gaming Company,

  
	
   

  	
  Indiana Gaming
  Holding Company,

  
	
   

  	
  Iowa Gaming
  Company,

  
	
   

  	
  Jazz
  Enterprises, Inc.,

  
	
   

  	
  Centroplex
  Centre Convention Hotel, L.L.C.

  and

  
	
   

  	
  The Missouri
  Gaming Company

  



 


113





















 


	
   

  	
  THE
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, as Administrative Agent,

  L/C Issuer, Swing Line Lender and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Casey Potter

  
	
   

  	
  Name:

  	
  Casey Potter

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL

  ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  Swanson

  
	
   

  	
  Name:

  	
  Robert Swanson

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  HIBERNIA
  NATIONAL BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ross S.
  Wales

  
	
   

  	
  Name:

  	
  Ross s. Wales

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY

  AMERICAS, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven P.
  Lapham

  
	
   

  	
  Name:

  	
  Steven P. Lapham

  
	
   

  	
  Title:

  	
  Managing
  Director

  
							



 


114





















 


	
   

  	
  COMMERZBANK
  AG — New York and

  Grand Cayman Branches, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Werner
  Schmidbauer

  
	
   

  	
  Name:

  	
  Werner
  Schmidbauer

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karla Wirth

  
	
   

  	
  Name:

  	
  Werner
  Schmidbauer

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERICA
  BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eoin P.
  Collins

  
	
   

  	
  Name:

  	
  Eoin P. Collins

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE CIT
  GROUP/EQUIPMENT

  FINANCING, INC., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Saylor

  
	
   

  	
  Name:

  	
  Mark Saylor

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF
  SCOTLAND, as a Lender

  and as a Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Amena Nabi

  
	
   

  	
  Name:

  	
  Amena Nabi

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  
							



 


115





















 


	
   

  	
  CALYON
  NEW YORK BRANCH, as a

  Lender and as a Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ F. Frank
  Herrera

  
	
   

  	
  Name:

  	
  F. Frank Herrera

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ron Moore

  
	
   

  	
  Name:

  	
  Ron Moore

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as

  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian H.
  Gallagher

  
	
   

  	
  Name:

  	
  Brian H. Gallagher

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL
  CITY BANK OF INDIANA, as

  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark A.
  Minnick

  
	
   

  	
  Name:

  	
  Mark A. Minnick

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY BANK, as a Lender

  and as a Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  Twenge

  
	
   

  	
  Name:

  	
  Daniel Twenge

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


116