Exhibit 10.1





Exhibit 10.1




Execution Version




CREDIT AGREEMENT




among




Global Cash Access Holdings, Inc.,




Global Cash Access, Inc.,




VARIOUS LENDERS,




and




Deutsche Bank Trust Company Americas,

as ADMINISTRATIVE AGENT




 






Dated as of March 1, 2011




 






Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC,

as JOINT LEAD ARRANGERS and BOOK RUNNERS




Wells Fargo Bank, N.A.,

as SYNDICATION AGENT




CIT Lending Services Corporation,

as DOCUMENTATION AGENT



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. Definitions and Accounting Terms
	 	 	1	 
	1.01. Defined Terms
	 	 	1	 
	1.02. Other Definitional Provisions
	 	 	28	 
	 
	 	 	 	 
	SECTION 2. Amount and Terms of Credit
	 	 	29	 
	2.01. The Commitments
	 	 	29	 
	2.02. Minimum Amount of Each Borrowing
	 	 	30	 
	2.03. Notice of Borrowing
	 	 	30	 
	2.04. Disbursement of Funds
	 	 	31	 
	2.05. Notes
	 	 	32	 
	2.06. Conversions
	 	 	33	 
	2.07. Pro Rata Borrowings
	 	 	33	 
	2.08. Interest
	 	 	33	 
	2.09. Interest Periods
	 	 	34	 
	2.10. Increased Costs, Illegality, etc.
	 	 	35	 
	2.11. Compensation
	 	 	37	 
	2.12. Change of Lending Office
	 	 	37	 
	2.13. Replacement of Lenders
	 	 	37	 
	2.14. Incremental Credit Extensions
	 	 	39	 
	 
	 	 	 	 
	SECTION 3. Letters of Credit
	 	 	40	 
	3.01. Letters of Credit
	 	 	40	 
	3.02. Maximum Letter of Credit Outstandings; Final Maturities
	 	 	41	 
	3.03. Letter of Credit Requests; Minimum Stated Amount
	 	 	41	 
	3.04. Letter of Credit Participations
	 	 	42	 
	3.05. Agreement to Repay Letter of Credit Drawings
	 	 	44	 
	3.06. Increased Costs
	 	 	44	 
	 
	 	 	 	 
	SECTION 4. Commitment Commission; Fees; Reductions of Commitment
	 	 	45	 
	4.01. Fees
	 	 	45	 
	4.02. Voluntary Termination of Unutilized Revolving Loan Commitments
	 	 	46	 
	4.03. Mandatory Reduction of Commitments
	 	 	46	 
	 
	 	 	 	 
	SECTION 5. Prepayments; Payments; Taxes
	 	 	47	 
	5.01. Voluntary Prepayments
	 	 	47	 
	5.02. Mandatory Repayments
	 	 	48	 
	5.03. Method and Place of Payment
	 	 	51	 
	5.04. Net Payments
	 	 	51	 
	 
	 	 	 	 
	SECTION 6. Conditions Precedent to Credit Events on the Initial Borrowing Date
	 	 	53	 
	6.01. Effective Date; Notes
	 	 	53	 
	6.02. Officer’s Certificate
	 	 	53	 
	6.03. Opinions of Counsel
	 	 	53	 
	6.04. Company Documents; Proceedings; etc.
	 	 	53	 





 


(i) 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.05. Existing Indebtedness Agreements
	 	 	54	 
	6.06. Consummation of the Refinancing
	 	 	54	 
	6.07. Adverse Change, Approvals
	 	 	55	 
	6.08. Litigation
	 	 	55	 
	6.09. Subsidiaries Guaranty
	 	 	55	 
	6.10. Pledge Agreement
	 	 	55	 
	6.11. Security Agreement
	 	 	56	 
	6.12. Financial Statements; Pro Forma Balance Sheet; Projections
	 	 	56	 
	6.13. Solvency Certificate; Insurance Certificates, etc.
	 	 	56	 
	6.14. Fees, etc.
	 	 	57	 
	 
	 	 	 	 
	SECTION 7. Conditions Precedent to All Credit Events
	 	 	57	 
	7.01. No Default; Representations and Warranties
	 	 	57	 
	7.02. Notice of Borrowing; Letter of Credit Request
	 	 	57	 
	 
	 	 	 	 
	SECTION 8. Representations, Warranties and Agreements
	 	 	58	 
	8.01. Company Status
	 	 	58	 
	8.02. Power and Authority
	 	 	58	 
	8.03. No Violation
	 	 	58	 
	8.04. Approvals
	 	 	59	 
	8.05. Financial Statements; Financial Condition; Undisclosed Liabilities; Projections
	 	 	59	 
	8.06. Litigation
	 	 	60	 
	8.07. True and Complete Disclosure
	 	 	60	 
	8.08. Use of Proceeds; Margin Regulations
	 	 	60	 
	8.09. Tax Returns and Payments
	 	 	61	 
	8.10. Compliance with ERISA
	 	 	61	 
	8.11. Security Documents
	 	 	62	 
	8.12. Properties
	 	 	63	 
	8.13. Reserved
	 	 	63	 
	8.14. Subsidiaries
	 	 	63	 
	8.15. Compliance with Statutes, etc.
	 	 	63	 
	8.16. Investment Company Act
	 	 	64	 
	8.17. Insurance
	 	 	64	 
	8.18. Environmental Matters
	 	 	64	 
	8.19. Employment and Labor Relations
	 	 	64	 
	8.20. Intellectual Property, etc.
	 	 	64	 
	8.21. Indebtedness
	 	 	65	 
	 
	 	 	 	 
	SECTION 9. Affirmative Covenants
	 	 	65	 
	9.01. Information Covenants
	 	 	65	 
	9.02. Books, Records and Inspections; Annual Meetings
	 	 	67	 
	9.03. Maintenance of Property; Insurance
	 	 	67	 
	9.04. Existence; Franchises
	 	 	68	 
	9.05. Compliance with Statutes, etc.
	 	 	68	 
	9.06. Compliance with Environmental Laws
	 	 	68	 
	9.07. ERISA
	 	 	69	 
	9.08. End of Fiscal Years; Fiscal Quarters
	 	 	70	 
	9.09. Performance of Obligations
	 	 	70	 
	9.10. Payment of Taxes
	 	 	70	 





 


(ii) 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	9.11. Use of Proceeds
	 	 	70	 
	9.12. Additional Security; Further Assurances; etc.
	 	 	70	 
	9.13. Contributions
	 	 	71	 
	9.14. Interest Rate Protection
	 	 	71	 
	9.15. Permitted Acquisitions
	 	 	72	 
	9.16. Ratings
	 	 	73	 
	 
	 	 	 	 
	SECTION 10. Negative Covenants
	 	 	74	 
	10.01. Liens
	 	 	74	 
	10.02. Consolidation, Merger, Purchase or Sale of Assets, etc.
	 	 	76	 
	10.03. Dividends
	 	 	78	 
	10.04. Indebtedness
	 	 	79	 
	10.05. Advances, Investments and Loans
	 	 	81	 
	10.06. Transactions with Affiliates
	 	 	83	 
	10.07. Capital Expenditures
	 	 	84	 
	10.08. Interest Expense Coverage Ratio
	 	 	85	 
	10.09. Total Leverage Ratio
	 	 	85	 
	10.10. Modifications of Acquisition Documents, Certificate of Incorporation,
By-Laws and Certain Other Agreements; Limitations on Voluntary Payments, etc.
	 	 	86	 
	10.11. Limitation on Certain Restrictions on Subsidiaries
	 	 	86	 
	10.12. Limitation on Issuance of Equity Interests
	 	 	86	 
	10.13. Business; etc.
	 	 	87	 
	10.14. Limitation on Creation of Subsidiaries
	 	 	87	 
	 
	 	 	 	 
	SECTION 11. Events of Default
	 	 	88	 
	11.01. Payments
	 	 	88	 
	11.02. Representations, etc.
	 	 	88	 
	11.03. Covenants
	 	 	88	 
	11.04. Default Under Other Agreements
	 	 	88	 
	11.05. Bankruptcy, etc.
	 	 	89	 
	11.06. ERISA.
	 	 	89	 
	11.07. Security Documents
	 	 	89	 
	11.08. Guaranties
	 	 	90	 
	11.09. Judgments
	 	 	90	 
	11.10. Change of Control
	 	 	90	 
	11.11. Vault Cash Agreement Cross-Default
	 	 	90	 
	 
	 	 	 	 
	SECTION 12. The Administrative Agent
	 	 	91	 
	12.01. Appointment
	 	 	91	 
	12.02. Nature of Duties
	 	 	91	 
	12.03. Lack of Reliance on the Administrative Agent
	 	 	91	 
	12.04. Certain Rights of the Administrative Agent
	 	 	92	 
	12.05. Reliance
	 	 	92	 
	12.06. Indemnification
	 	 	92	 
	12.07. The Administrative Agent in its Individual Capacity
	 	 	92	 
	12.08. Holders
	 	 	93	 
	12.09. Resignation by the Administrative Agent
	 	 	93	 
	12.10. Collateral Matters
	 	 	94	 
	12.11. Delivery of Information
	 	 	94	 





 


(iii) 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 13. Miscellaneous
	 	 	95	 
	13.01. Payment of Expenses, etc.
	 	 	95	 
	13.02. Right of Setoff
	 	 	96	 
	13.03. Notices
	 	 	96	 
	13.04. Benefit of Agreement; Assignments; Participations
	 	 	97	 
	13.05. No Waiver; Remedies Cumulative
	 	 	98	 
	13.06. Payments Pro Rata
	 	 	99	 
	13.07. Calculations; Computations
	 	 	99	 
	13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
	 	 	100	 
	13.09. Counterparts
	 	 	101	 
	13.10. Effectiveness
	 	 	101	 
	13.11. Headings Descriptive
	 	 	101	 
	13.12. Amendment or Waiver; etc.
	 	 	101	 
	13.13. Survival
	 	 	104	 
	13.14. Domicile of Loans
	 	 	104	 
	13.15. Register
	 	 	104	 
	13.16. Confidentiality; Etc
	 	 	105	 
	13.17. Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in the United States
	 	 	105	 
	13.18. Patriot Act
	 	 	106	 
	13.19. Interest Rate Limitation
	 	 	106	 
	13.20. Post-Closing Requirements
	 	 	106	 
	 
	 	 	 	 
	SECTION 14. Holdings Guaranty
	 	 	108	 
	14.01. Guaranty
	 	 	108	 
	14.02. Bankruptcy
	 	 	108	 
	14.03. Nature of Liability
	 	 	108	 
	14.04. Independent Obligation
	 	 	108	 
	14.05. Authorization
	 	 	109	 
	14.06. Reliance
	 	 	109	 
	14.07. Subordination
	 	 	110	 
	14.08. Waiver
	 	 	110	 
	14.09. Payments
	 	 	111	 
	14.10. Maximum Liability
	 	 	111	 





 


(iv) 









 





	 	 	 
	SCHEDULE 1.01(a)

	 	Commitments
	SCHEDULE 1.01(b)

	 	Lender Addresses
	SCHEDULE 8.12

	 	Real Property
	SCHEDULE 8.14

	 	Subsidiaries
	SCHEDULE 8.17

	 	Insurance
	SCHEDULE 8.21

	 	Existing Indebtedness
	SCHEDULE 10.01

	 	Existing Liens
	SCHEDULE 10.05

	 	Existing Investments
	SCHEDULE 13.20

	 	Foreign Subsidiaries
	 
	 	 
	EXHIBIT A-1

	 	Form of Notice of Borrowing
	EXHIBIT A-2

	 	Form of Notice of Conversion/Continuation
	EXHIBIT B-1

	 	Form of Term Note
	EXHIBIT B-2

	 	Form of Revolving Note
	EXHIBIT B-3

	 	Form of Swingline Note
	EXHIBIT C

	 	Form of Letter of Credit Request
	EXHIBIT D

	 	Form of Section 5.04(b)(ii) Certificate
	EXHIBIT E-1

	 	Form of Opinion of Morrison & Foerster LLP, counsel to the Credit Parties
	EXHIBIT E-2

	 	Form of Opinion of Brownstein Hyatt Farber Schreck, special Nevada counsel to Western Money Systems
	EXHIBIT F

	 	Form of Officers’ Certificate
	EXHIBIT G

	 	Form of Subsidiaries Guaranty
	EXHIBIT H

	 	Form of Pledge Agreement
	EXHIBIT I

	 	Form of Security Agreement
	EXHIBIT J

	 	Form of Solvency Certificate
	EXHIBIT K

	 	Form of Compliance Certificate
	EXHIBIT L

	 	Form of Assignment and Assumption Agreement
	EXHIBIT M

	 	Form of Intercompany Note







 


 











 





CREDIT AGREEMENT, dated as of March 1, 2011, among Global Cash Access Holdings, Inc., a
Delaware corporation (“Holdings”), Global Cash Access, Inc., a Delaware corporation (the
“Borrower”), the Lenders party hereto from time to time, and Deutsche Bank Trust Company
Americas, as Administrative Agent. All capitalized terms used herein and defined in Section 1 are
used herein as therein defined.



W I T N E S S E T H:




WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are
willing to make available to the Borrower the respective credit facilities provided for herein;



NOW, THEREFORE, IT IS AGREED:



SECTION 1. Definitions and Accounting Terms.



1.01. Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms defined):



“Acquired Entity or Business” shall mean either (x) the assets constituting a
business, division or product line of any Person not already a Subsidiary of the Borrower or (y)
100% of the Equity Interests of any such Person, which Person shall, as a result of the acquisition
of such Equity Interests, become a Wholly-Owned Domestic Subsidiary of the Borrower (or shall be
merged with and into the Borrower or another Wholly-Owned Domestic Subsidiary of the Borrower, that
is a Subsidiary Guarantor, with the Borrower or such Subsidiary Guarantor being the surviving or
continuing Person); provided that an Acquired Entity or Business may also consist of an acquisition
of assets or Equity Interests which would meet the foregoing requirements if (x) each reference to
“Wholly-Owned Domestic Subsidiary” were changed to “Wholly-Owned Foreign Subsidiary” and (y) the
phrase “that is a Subsidiary Guarantor” contained above were deleted, so long as all Permitted
Acquisitions of Wholly-Owned Foreign Subsidiaries or of any Acquired Entity or Business which
becomes a Wholly-Owned Foreign Subsidiary or is to be owned by any Wholly-Owned Foreign Subsidiary
is justified pursuant to (and is within the limits established by) clause (vii) of Section 9.15(a)
(and meets all other requirements of Section 9.15(a)).



“Acquired Revenue” shall mean, for any Acquired Entity or Business for any period, the
total consolidated revenue of such Acquired Entity or Business for such period as set forth in
historical financial statements for the latest 12 month period preceding the date of the respective
Permitted Acquisition which are available to the Borrower (so long as the respective 12 month
period ends not later then 120 days prior to the date of the respective Permitted Acquisition) and
which are furnished to the Administrative Agent pursuant to Section 9.15(a); provided that (x) if
the respective historical financial statements referenced above cover businesses or operations
which are broader then those acquired pursuant to the respective Permitted Acquisition, the
Borrower shall make appropriate downward adjustments to Acquired Revenue to reflect the Acquired
Entity or Business actually acquired and (y) if no such financial statements are available or
furnished to the Administrative Agent, the Acquired Revenue of the respective Acquired Entity or
Business shall be deemed to be $0.



“Additional Lender” shall have the meaning provided in Section 2.14(a).



“Additional Security Documents” shall have the meaning provided in Section 9.12.


 


 









 





“Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income
for such period plus the sum of the amount of all net non-cash charges (including, without
limitation, depreciation, amortization, deferred tax expense, non-cash interest expense and
non-cash stock compensation expense) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period, less the amount of all net non-cash gains and
non-cash credits which were included in arriving at Consolidated Net Income for such period.



“Administrative Agent” shall mean Deutsche Bank Trust Company Americas, in its
capacity as Administrative Agent for the Lenders hereunder and under the other Credit Documents,
and shall include any successor to the Administrative Agent appointed pursuant to Section 12.09.



“Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all directors and officers of such Person),
controlled by, or under direct or indirect common control with, such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of voting securities,
by contract or otherwise; provided, however, that none of the Administrative Agent,
any Lender or any of their respective Affiliates shall be considered an Affiliate of Holdings or
any Subsidiary thereof.



“Agents” shall mean and include the Administrative Agent and the Collateral Agent.



“Aggregate Consideration” shall mean, with respect to any Permitted Acquisition, the
sum (without duplication) of (i) the aggregate amount of all cash paid (or to be paid) by Holdings
or any of its Subsidiaries in connection with such Permitted Acquisition (including, without
limitation, payments of fees and costs and expenses in connection therewith) and all contingent
cash purchase price, earn-out, non-compete and other similar obligations of Holdings and its
Subsidiaries incurred and reasonably expected to be incurred in connection therewith (as determined
in good faith by Holdings), (ii) the aggregate principal amount of all Indebtedness assumed,
incurred, refinanced and/or issued in connection with such Permitted Acquisition to the extent
permitted by Section 10.04 and (iii) the Fair Market Value of all other consideration (other than
consideration in the form of Holdings Common Stock and Qualified Preferred Stock) payable in
connection with such Permitted Acquisition.



“Agreement” shall mean this Credit Agreement, as modified, supplemented, amended,
restated (including any amendment and restatement hereof), extended or renewed from time to time.



“Applicable Excess Cash Flow Percentage” shall mean, with respect to any Excess Cash
Payment Date, 50%; provided that so long as no Default or Event of Default is then in
existence, if on the last day of the relevant Excess Cash Payment Period, the Total Leverage Ratio
for the Test Period then most recently ended (as set forth in the officer’s certificate delivered
(or required to be delivered) with respect to such Test Period pursuant to Section 9.01(e)), (x) is
less than or equal to 2.50:1.00 but greater than or equal to 1.50:1.00, then the Applicable Excess
Cash Flow Percentage shall instead be 25% and (y) is less than 1.50:1.00, then the Applicable
Excess Cash Flow Percentage shall instead be 0%.



“Applicable Margin” shall mean a percentage per annum equal to (i) in the case of Term
Loans maintained as (A) Base Rate Loans, 4.50% and (B) LIBOR Loans, 5.50%; (ii) in the case of
Revolving Loans maintained as (A) Base Rate Loans, 4.50% and (B) LIBOR Loans, 5.50%; and (iii) in
the case of Swingline Loans, 4.50%.


 


-2-









 





“Asset Sale” shall mean any sale, transfer or other disposition by Holdings or any of
its Subsidiaries to any Person (including by way of redemption by such Person) other than to
Holdings or a Wholly-Owned Subsidiary of Holdings of any asset (including, without limitation, any
capital stock or other securities of, or Equity Interests in, another Person), but (x) excluding
sales of assets pursuant to Sections 10.02(ii), (vi), (vii) (viii), (ix), (x) and (xii) and (y) any
other sale, transfer or disposition (for such purpose, treating any series of related sales,
transfers or dispositions as a single such transaction) that generates Net Sale Proceeds of less
than $500,000.



“Assignment and Assumption Agreement” shall mean an Assignment and Assumption
Agreement substantially in the form of Exhibit L (appropriately completed).



“ATM” shall have the meaning set forth in the definition of “Consolidated
Indebtedness” as set forth in Section 1.01.



“Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion/Continuation and similar notices, any person or persons that has or have been
authorized by the board of directors of Holdings or the Borrower to deliver such notices pursuant
to this Agreement, (ii) delivering financial information and officer’s certificates pursuant to
this Agreement, the chief financial officer, the treasurer or the principal accounting officer of
Holdings or the Borrower, and (iii) any other matter in connection with this Agreement or any other
Credit Document, any officer (or a person or persons so designated by any two officers) of Holdings
or the Borrower.



“Back-Stop Arrangements” shall mean, collectively, Letter of Credit Back-Stop
Arrangements and Swingline Back-Stop Arrangements.



“Bankruptcy Code” shall have the meaning provided in Section 11.05.



“Base Rate” shall mean, at any time, the highest of (i) the Prime Lending Rate at such
time, (ii) 1/2 of 1% per annum in excess of the overnight Federal Funds Rate at such time, (iii)
the LIBO Rate for a LIBOR Loan denominated in dollars with a one-month interest period commencing
on such day plus 1.00% and (iv) 2.50% per annum. For purposes of this definition, the LIBO
Rate shall be determined using the LIBO Rate as otherwise determined by the Administrative Agent in
accordance with the definition of LIBO Rate, except that (x) if a given day is a Business Day, such
determination shall be made on such day (rather than two Business Days prior to the commencement of
an Interest Period) or (y) if a given day is not a Business Day, the LIBO Rate for such day shall
be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most
recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime
Lending Rate, the Federal Funds Rate or such LIBO Rate shall be effective as of the opening of
business on the day of such change in the Prime Lending Rate, the Federal Funds Rate or such LIBO
Rate, respectively.



“Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each other Loan
designated or deemed designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.



“Borrower” shall have the meaning provided in the first paragraph of this Agreement.



“Borrowing” shall mean the borrowing of one Type of Loan of a single Tranche from all
the Lenders having Commitments of the respective Tranche (or from the Swingline Lender in the case
of Swingline Loans) on a given date (or resulting from a conversion or conversions on such date)
having in the case of LIBOR Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of LIBOR
Loans.


 


-3-









 





“Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day except Saturday, Sunday and any day which shall be in New York, New York, a legal
holiday or a day on which banking institutions are authorized or required by law or other
government action to close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, LIBOR Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between banks in U.S.
dollar deposits in the London interbank market.



“Calculation Period” shall mean, with respect to any Permitted Acquisition, any
Significant Asset Sale or any other event expressly required to be calculated on a Pro
Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended
prior to the date of such Permitted Acquisition, Significant Asset Sale or other event for which
financial statements have been delivered to the Lenders pursuant to Section 9.01(a) or (b), as
applicable; provided that, with respect to any event required to be calculated on a
Pro Forma Basis that occurs prior to the date on which financial statements have
been (or are required to be) delivered pursuant to Section 9.01(a) for the Fiscal Quarter ending
nearest to March 31, 2011, the “Calculation Period” shall be the period of four consecutive Fiscal
Quarters of Holdings ended December 31, 2010 (taken as one accounting period).



“Capital Expenditures” shall mean, with respect to any Person, all expenditures by
such Person which should be capitalized in accordance with GAAP and, without duplication, the
amount of all Capitalized Lease Obligations incurred by such Person.



“Capitalized Lease Obligations” shall mean, with respect to any Person, all rental
obligations of such Person which, under GAAP as in effect on the Initial Borrowing Date, are or
will be required to be capitalized on the books of such Person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with such principles.



“Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and
fully guaranteed or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date of acquisition, (ii)
marketable direct obligations issued by any state of the United States or any political subdivision
of any such state or any public instrumentality thereof maturing within six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody’s, (iii) Dollar denominated time deposits, certificates of
deposit and bankers acceptances of any Lender or any commercial bank having, or which is the
principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of
at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s with
maturities of not more than six months from the date of acquisition by such Person, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the qualifications specified in
clause (iii) above, (v) commercial paper issued by any Person incorporated in the United States
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody’s and in each case maturing not more than six months after the date of acquisition by such
Person, (vi) investments in money market funds substantially all of whose assets are comprised of
securities of the types described in clauses (i) through (v) above, and (vii) in the case of any
Foreign Subsidiary only, direct obligations of the sovereign nation (or any agency thereof) in
which such Foreign Subsidiary is organized and is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency thereof).



“Change of Control” shall mean (i) Holdings shall at any time cease to own directly
100% of the Equity Interests of the Borrower, (ii) any “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) is or shall become the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or
more on a fully
diluted basis of the economic or voting interests in Holdings’ capital stock, (iii) the Board
of Directors of Holdings shall cease to consist of a majority of Continuing Directors or (iv) a
“change of control” or similar event shall occur as provided in any Qualified Preferred Stock (or
the documentation governing the same).


 


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“Claims” shall have the meaning provided in the definition of “Environmental Claims”.



“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references to the Code are to
the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.



“Collateral” shall mean all property (whether real or personal) with respect to which
any security interests have been granted (or purported to be granted) pursuant to any Security
Document, including, without limitation, all Pledge Agreement Collateral, all Security Agreement
Collateral, all Mortgaged Properties and all cash and Cash Equivalents delivered as collateral
pursuant to Section 5.02 or 11.



“Collateral Agent” shall mean the Administrative Agent acting as collateral agent for
the Secured Creditors pursuant to the Security Documents.



“Commitment” shall mean any of the commitments of any Lender, i.e., a Term
Loan Commitment or a Revolving Loan Commitment.



“Commitment Commission” shall have the meaning provided in Section 4.01(a).



“Company” shall mean any corporation, limited liability company, partnership or other
business entity (or the adjectival form thereof, where appropriate).



“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period (without giving effect to (x) any extraordinary gains and (y) any non-cash income, and
adjusted by (A) adding thereto (in each case to the extent deducted in determining Consolidated Net
Income for such period), without duplication, the amount of (i) total interest expense (inclusive
of amortization of deferred financing fees and other original issue discount and banking fees,
charges and commissions (e.g., letter of credit fees and commitment fees)) (exclusive of
any interest expense arising pursuant to the Vault Cash Agreement) of Holdings and its
Subsidiaries determined on a consolidated basis for such period, (ii) provision for taxes based on
income and foreign withholding taxes for Holdings and its Subsidiaries determined on a consolidated
basis for such period, (iii) all depreciation and amortization expense of Holdings and its
Subsidiaries determined on a consolidated basis for such period, (iv) in the case of any period
including the Fiscal Quarter of the Borrower ended March 31, 2011, the amount of all fees and
expenses incurred in connection with the Transaction during such Fiscal Quarter and (v) the amount
of all other non-cash charges (including without limitation non-cash stock compensation expense) of
the Borrower and its Subsidiaries determined on a consolidated basis for such period, and (B)
subtracting therefrom (to the extent not otherwise deducted in determining Consolidated Net Income
for such period) the amount of all cash payments or cash charges made (or incurred) by Holdings or
any of its Subsidiaries for such period on account of any non-cash charges added back to
Consolidated EBITDA pursuant to preceding sub-clause (A)(v) in a previous period. For the
avoidance of doubt, it is understood and agreed that, to the extent any amounts are excluded from
Consolidated Net Income by virtue of the proviso to the definition thereof contained herein, any
add backs to Consolidated Net Income in determining Consolidated EBITDA as provided above shall be
limited (or denied) in a fashion consistent with the proviso to the definition of Consolidated Net
Income contained herein.


 


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“Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication)
(i) all Indebtedness of Holdings and its Subsidiaries (on a consolidated basis) as would be
required to be reflected as debt or Capitalized Lease Obligations on the liability side of a
consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP, (ii) all
Indebtedness of Holdings and its Subsidiaries of the type described in clauses (ii), (vii) and
(viii) of the definition of Indebtedness and (iii) all Contingent Obligations of Holdings and its
Subsidiaries in respect of Indebtedness of any third Person of the type referred to in preceding
clauses (i) and (ii); provided that the amount of Indebtedness in respect of the Interest
Rate Protection Agreements and Other Hedging Agreements shall be at any time the unrealized net
loss position, if any, of Holdings and/or its Subsidiaries thereunder on a marked-to-market basis
determined no more than one month prior to such time. Notwithstanding anything to the contrary
contained above, Consolidated Indebtedness shall not include obligations arising solely out of the
conversion of “vault cash” supplied pursuant to the Vault Cash Agreement for normal operating
requirements of the automated teller machines or other similar devices capable of dispensing cash
of the Borrower covered by the Vault Cash Agreement (the “ATMs”) into obligations of the
Borrower by operation of the Vault Cash Agreement so long as the proceeds of such obligations are
used solely in the ATMs, as provided in the Vault Cash Agreement and for no other purpose.



“Consolidated Interest Expense” shall mean, for any period, (i) the total consolidated
interest expense of Holdings and its Subsidiaries (including, without limitation, all commissions,
discounts and other commitment and banking fees and charges (e.g., fees with respect to
letters of credit, Interest Rate Protection Agreements and Other Hedging Agreements) for such
period (calculated without regard to any limitations on payment thereof), adjusted to exclude (to
the extent same would otherwise be included in the calculation above in this clause (i)) the
amortization of any deferred financing costs for such period, plus (ii) without
duplication, (x) that portion of Capitalized Lease Obligations of Holdings and its Subsidiaries on
a consolidated basis representing the interest factor for such period and (y) the “deemed interest
expense” (i.e., the interest expense which would have been applicable if the respective
obligations were structured as on-balance sheet financing arrangements) with respect to all
Indebtedness of Holdings and its Subsidiaries of the type described in clause (viii) of the
definition of Indebtedness contained herein (to the extent same does not arise from a financing
arrangement constituting an operating lease) for such period, provided that, in no event shall
interest expense arising under the Vault Cash Agreement be included in the computation of
Consolidated Interest Expense.



“Consolidated Net Income” shall mean, for any period, the net income (or loss) of
Holdings and its Subsidiaries determined on a consolidated basis for such period (taken as a single
accounting period) in accordance with GAAP, provided that the following items shall be
excluded in computing Consolidated Net Income (without duplication): (i) the net income (or loss)
of any Person in which a Person or Persons other than Holdings and its Wholly-Owned Subsidiaries
has an Equity Interest or Equity Interests to the extent of such Equity Interests held by Persons
other than Holdings and its Wholly-Owned Subsidiaries in such Person, (ii) except for
determinations expressly required to be made on a Pro Forma Basis, the net income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary or all or substantially
all of the property or assets of such Person are acquired by a Subsidiary, (iii) the net income of
any Subsidiary to the extent that the declaration or payment of cash dividends or similar cash
distributions by such Subsidiary of such net income is not at the time permitted by the operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary and (iv) gains and losses from the sale of
assets other than inventory and equipment sold in the ordinary course of business.


 


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“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as
a result of such Person being a general partner of any other Person, unless the underlying
obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”)
of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Contingent Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined by such Person in
good faith.



“Continuing Directors” shall mean the directors of Holdings on the Effective Date and
each other director if such director’s nomination for election to the Board of Directors of
Holdings is recommended by a majority of the then Continuing Directors.



“Credit Documents” shall mean this Agreement, the Subsidiaries Guaranty, the Pledge
Agreement, the Security Agreement and, after the execution and delivery thereof pursuant to the
terms of this Agreement, each Note and each other Security Document.



“Credit Event” shall mean the making of any Loan or the issuance, amendment, extension
or renewal of any Letter of Credit (other than any amendment, extension or renewal that does not
increase the maximum Stated Amount of such Letter of Credit).



“Credit Party” shall mean Holdings, the Borrower and each Subsidiary Guarantor.



“Cumulative Retained Excess Cash Flow Amount” shall initially be $0, which amount
shall be (A) increased on each Excess Cash Payment Date by an amount equal to the Retained
Applicable Excess Cash Flow Percentage of Excess Cash Flow for the immediately preceding Excess
Cash Payment Period, and (B) reduced (x) on each Excess Cash Payment Date where Excess Cash
Flow for the immediately preceding Excess Cash Flow Period is a negative number, by such amount
(expressed as a positive), (y) by the aggregate amount of Dividends paid by Holdings pursuant to
Section 10.03(ix)(a), and (z) by the Aggregate Consideration paid or payable for all Permitted
Acquisitions made pursuant to Section 9.15(a) which was justified as a utilization of the
Cumulative Retained Excess Cash Flow Amount as permitted by clause (x) of the proviso to Section
9.15(a)(vi) (it being understood that the Aggregate Consideration paid or payable for one or more
Permitted Acquisitions effected at a time when the Total Leverage Ratio calculated on a Pro
Forma Basis as of the date of such Permitted Acquisition was less than or equal to 2.00 to
1.00 shall not reduce the Cumulative Retained Excess Cash Flow Amount).



“DBTCA” shall mean Deutsche Bank Trust Company Americas, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.



“Default” shall mean any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.



“Defaulting Lender” shall mean any Lender with respect to which a Lender Default has
occurred on or after the Effective Date.


 


-7-









 





“Designated Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is (x)
designated by the Borrower (upon prior written notice to the Administrative Agent) as a Designated
Foreign Subsidiary and (y) organized under the laws of a Qualified Foreign Jurisdiction. The
Borrower understands and agrees that it shall bear sole responsibility for determining the tax or
other effects of the designation of a Subsidiary as a Designated Foreign Subsidiary pursuant to
this Agreement.



“Dividend” shall mean, with respect to any Person, that such Person has declared or
paid a dividend, distribution or returned any equity capital to its stockholders, partners or
members or authorized or made any other distribution, payment or delivery of property (other than
common Equity Interests of such Person) or cash to its stockholders, partners or members in their
capacity as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly,
for a consideration any shares of any class of its capital stock or any other Equity Interests
outstanding on or after the Effective Date (or any options or warrants issued by such Person with
respect to its capital stock or other Equity Interests), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise
acquire for a consideration any shares of any class of the capital stock or any other Equity
Interests of such Person outstanding on or after the Effective Date (or any options or warrants
issued by such Person with respect to its capital stock or other Equity Interests). Without
limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made
or required to be made by such Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing
purposes.



“Documentation Agent” shall mean CIT Lending Services Corporation.



“Documents” shall mean, collectively, (i) the Credit Documents and (ii) the
Refinancing Documents.



“Dollars” and the sign “$” shall each mean freely transferable lawful money of
the United States.



“Domestic Subsidiary” of any Person shall mean (i) any Subsidiary of such Person
incorporated or organized in the United States or any State or territory thereof or the District of
Columbia and (ii) any Designated Foreign Subsidiary of such Person.



“Drawing” shall have the meaning provided in Section 3.05(b).



“Effective Date” shall have the meaning provided in Section 13.10.



“Eligible Transferee” shall mean and include a commercial bank, an insurance company,
a finance company, a financial institution, any fund that invests in loans or any other “accredited
investor” (as defined in Regulation D of the Securities Act), but in any event excluding Holdings,
the Borrower and their respective Subsidiaries and Affiliates.



“Environmental Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or
violation, investigations and/or proceedings relating in any way to any noncompliance with, or
liability arising under, Environmental Law or to any permit issued, or any approval given, under
any Environmental Law (hereafter, “Claims”), including, without limitation, (a) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any Environmental Law, and (b) any and all Claims
by any third party seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief arising out of or relating to an alleged
injury or threat of injury to human health, safety or the environment due to the presence of
Hazardous Materials.


 


-8-









 





“Environmental Law” shall mean any applicable Federal, state, local or foreign law
(including principles of common law), rule, regulation, ordinance, code, directive, judgment, order
or agreement, now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, relating to the protection of the environment, or of human
health (as it relates to the exposure to environmental hazards) or to the presence, Release or
threatened Release, or the manufacture, use, transportation, treatment, storage, disposal or
recycling of Hazardous Materials, or the arrangement for any such activities.



“Equity Interests” of any Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest in (however
designated) equity of such Person, including any common stock, preferred stock, any limited or
general partnership interest and any limited liability company membership interest.



“ERISA” shall mean the U.S. Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued thereunder.



“ERISA Affiliate” shall mean any person that for purposes of Title I or Title IV of
ERISA or Section 412 of the Code would be deemed at any relevant time to be a single employer or
otherwise aggregated with Holdings or any of its Subsidiaries under Section 414(b) or (c) of the
Code or Section 4001 of ERISA.



“ERISA Event” shall mean any one or more of the following:




(a) any Reportable Event;




(b) the filing of a notice of intent to terminate any Plan, if such termination would
require material additional contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of
a notice of intent to terminate any Plan or the termination of any Plan under Section
4041(c) of ERISA;




(c) the institution of proceedings, or the occurrence of an event or condition which
would reasonably be expected to constitute grounds for the institution of proceedings by the
PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan;




(d) the failure to make a required contribution to any Plan that would result in the
imposition of a lien or other encumbrance or the provision of security under Section 430 of
the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance;
there being or arising any “unpaid minimum required contribution” or “accumulated funding
deficiency” (as defined or otherwise set forth in Section 4971 of the Code or Part 3 of
Subtitle B of Title I of ERISA), whether or not waived; or the filing of any request for or
receipt of a minimum funding waiver under Section 412 of the Code with respect to any Plan,
or that such filing may be made;




(e) engaging in a non-exempt prohibited transaction within the meaning of Section 4975
of the Code or Section 406 of ERISA;




 


-9-









 





(f) the complete or partial withdrawal of Holdings or any of it Subsidiaries or any
ERISA Affiliate from a Multiemployer Plan, the reorganization or insolvency under Title IV
of ERISA of any Multiemployer Plan; or the receipt by Holdings or any of its Subsidiaries
or any ERISA Affiliate, of any notice, or the receipt by any Multiemployer Plan from any of
Holdings, any of its Subsidiaries or any ERISA Affiliate of any notice, that a Multiemployer
Plan is in endangered or critical status under Section 305 of ERISA; or



(g) Holdings, any of its Subsidiaries or an ERISA Affiliate incurring any liability under
Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under
Section 4007 of ERISA).



“Event of Default” shall have the meaning provided in Section 11.



“Excess Cash Flow” shall mean, for any period, the remainder of (a) Adjusted
Consolidated Net Income for such period, minus (b) the sum of, without duplication, (i) the
aggregate amount of all Capital Expenditures made by Holdings and its Subsidiaries during such
period (other than Capital Expenditures to the extent financed with equity proceeds, Equity
Interests, capital contributions, asset sale proceeds, insurance proceeds or Indebtedness (other
than Revolving Loans and Swingline Loans)), (ii) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of Holdings and its Subsidiaries and the permanent
repayment of the principal component of Capitalized Lease Obligations of Holdings and its
Subsidiaries during such period (other than (1) repayments made pursuant to the Refinancing, (2)
repayments made with the proceeds of asset sales, sales or issuances of Equity Interests, capital
contributions, insurance or Indebtedness and (3) payments of Loans and/or other Obligations,
provided that repayments of Loans shall be deducted in determining Excess Cash Flow to the
extent such repayments were required as a result of a Scheduled Repayment pursuant to Section
5.02(b)) and (iii) the aggregate amount of all cash payments made in respect of all Permitted
Acquisitions consummated by Holdings and its Subsidiaries during such period (other than any such
payments to the extent financed with equity proceeds, capital contributions, asset sale proceeds,
insurance proceeds, Cumulative Retained Excess Cash Flow or Indebtedness (other than Revolving
Loans and Swingline Loans)).



“Excess Cash Payment Date” shall mean the date occurring 90 days after the last day of
each Fiscal Year of Holdings (commencing with the Fiscal Year of Holdings ended 2011).



“Excess Cash Payment Period” shall mean (i) with respect to the repayment required on
the first Excess Cash Payment Date, the period from April 1, 2011 to the last day of Holdings’
Fiscal Quarter ending closest to December 31, 2011 (taken as one accounting period), and (ii) with
respect to the repayment required on each successive Excess Cash Payment Date, the immediately
preceding Fiscal Year of Holdings.



“Existing Credit Agreement” shall mean the Second Amended and Restated Credit
Agreement, dated as of November 1, 2006, among Holdings, Borrower and Bank of America, N.A., as
agent, and the other lenders party thereto (as amended through and including the Initial Borrowing
Date).



“Existing Indebtedness” shall have the meaning provided in Section 6.06(c).



“Existing Indebtedness Agreements” shall have the meaning provided in Section 6.05.



“Existing Senior Subordinated Note Indenture” shall mean the indenture, dated March
10, 2004, entered into by Holdings, the Borrower, certain of its Subsidiaries and The Bank of New
York, as trustee (the “Trustee”), in connection with the issuance of the Senior
Subordinated Notes, as amended, restated, supplemented and/or otherwise modified in accordance with
the terms thereof and hereof.


 


-10-









 





“Facing Fee” shall have the meaning provided in Section 4.01(c).



“Fair Market Value” shall mean, with respect to any asset (including any Equity
Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a
willing seller who does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or, pursuant to a
specific delegation of authority by such board of directors or governing body, a designated senior
executive officer, of Holdings, or the Subsidiary of Holdings selling such asset.



“FATCA” shall mean Sections 1471 through 1474 of the Code, as enacted on the Effective
Date, and the regulations promulgated thereunder or published administrative guidance implementing
such Sections.



“Federal Funds Rate” shall mean, for any period, a fluctuating interest rate equal for
each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.



“Fees” shall mean all amounts payable pursuant to or referred to in Section 4.01.



“Fiscal Quarter” shall mean, for any Fiscal Year, (i) the fiscal period commencing on
January 1 of such Fiscal Year and ending on March 31 of such Fiscal Year, (ii) the fiscal period
commencing on April 1 of such Fiscal Year and ending on June 30 of such Fiscal Year, (iii) the
fiscal period commencing on July 1 of such Fiscal Year and ending on September 30 of such Fiscal
Year and (iv) the fiscal period commencing on October 1 of such Fiscal Year and ending on December
31 of such Fiscal Year.



“Fiscal Year” shall mean the fiscal year of Holdings and its Subsidiaries ending on
December 31 of each calendar year.



“Foreign Lender” shall have the meaning provided in Section 5.04(b).



“Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
by Holdings or any one or more of its Subsidiaries primarily for the benefit of employees of
Holdings or such Subsidiaries residing outside the United States, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan is not subject to
ERISA or the Code.



“Foreign Subsidiary” of any Person shall mean any Subsidiary of such Person that is
not a Domestic Subsidiary, provided that Designated Foreign Subsidiaries shall not
constitute Foreign Subsidiaries for purposes of this Agreement.



“GAAP” shall mean generally accepted accounting principles in the United States as in
effect from time to time; provided that determinations in accordance with GAAP for purposes
of the Applicable Margins and Sections 2.14, 5.02, 9.15 and 10 including defined terms as used
therein, and for all purposes of determining the Total Leverage Ratio, are subject (to the extent
provided therein) to Section 13.07(a).


 


-11-









 





“Gaming Authority” means any agency, authority, board, bureau, commission, department,
office or instrumentality of any nature whatsoever of the United States federal government, any
foreign government, any state, province or city or other political subdivision or otherwise,
whether now or hereafter in existence, or any officer or official thereof, with authority to
regulate any gaming-related operations of Holdings or any of its Subsidiaries.



“Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state, provincial or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government, including without limitation any Gaming Authority.



“Guaranteed Creditors” shall mean and include each of the Administrative Agent, the
Collateral Agent, the Issuing Lenders, the Lenders, the Swingline Lender and each party (other than
any Credit Party) party to an Interest Rate Protection Agreement or Other Hedging Agreement to the
extent such party constitutes a Secured Creditor under the Security Documents.



“Guaranteed Obligations” shall mean (i) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of the principal and interest on each Note
issued by, and all Loans made to, the Borrower under this Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together with all the other
obligations (including obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), indebtedness and liabilities (including, without limitation,
indemnities, fees and interest (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided for herein, whether
or not such interest is an allowed claim in any such proceeding) thereon) of the Borrower to the
Lenders, the Issuing Lenders, the Administrative Agent and the Collateral Agent now existing or
hereafter incurred under, arising out of or in connection with this Agreement and each other Credit
Document to which the Borrower is a party and the due performance and compliance by the Borrower
with all the terms, conditions and agreements contained in the Credit Agreement and in each such
other Credit Document and (ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness (including any interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for herein, whether or not such interest is
an allowed claim in any such proceeding) of the Borrower and/or one or more other Guaranteed
Parties owing under any Interest Rate Protection Agreement or Other Hedging Agreement entered into
by the Borrower and/or one or more other Guaranteed Parties with any Lender or any affiliate
thereof (even if such Lender subsequently ceases to be a Lender under this Agreement for any
reason) so long as such Lender or affiliate participates in such Interest Rate Protection Agreement
or Other Hedging Agreement and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms, conditions and agreements
contained therein.



“Guaranteed Parties” shall mean the Borrower and each Subsidiary of the Borrower that
is a Credit Party.



“Guarantor” shall mean each of Holdings and each Subsidiary Guarantor.



“Guaranty” shall mean each of the Holdings Guaranty and the Subsidiaries Guaranty.


 


-12-









 





“Hazardous Materials” shall mean any chemicals, materials, wastes, pollutants,
contaminants or substances in any form that is prohibited, limited or regulated pursuant to any
Environmental Law by virtue of their toxic or otherwise deleterious characteristics, including
without limitation any petroleum or petroleum products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing
levels of polychlorinated biphenyls, and radon gas.



“Holdings” shall have the meaning provided in the first paragraph of this Agreement.



“Holdings Common Stock” shall have the meaning provided in Section 8.13.



“Holdings Guaranty” shall mean the guaranty of Holdings pursuant to Section 14.



“Inactive Subsidiary” shall mean, as of any date of determination, a Subsidiary which
does not engage in any trade or business and does not own Equity Interests in any Person; provided
that, in no event shall the consolidated total assets of all Inactive Subsidiaries, in the
aggregate, exceed $250,000.



“Incremental Amendment” shall have the meaning provided in Section 2.14(a).



“Incremental Facility Closing Date” shall have the meaning provided in Section
2.14(a).



“Incremental Term Loans” shall have the meaning provided in Section 2.14(a).



“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
of such Person for borrowed money or for the deferred purchase price of property or services, (ii)
the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances,
bank guaranties, surety and appeal bonds and similar obligations issued for the account of such
Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit,
bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (iii) all
indebtedness of the types described in clause (i), (ii), (iv), (v), (vi), (vii) or (viii) of this
definition secured by any Lien on any property owned by such Person, whether or not such
indebtedness has been assumed by such Person (provided that, if the Person has not assumed
or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be
in an amount equal to the Fair Market Value of the property to which such Lien relates), (iv) all
Capitalized Lease Obligations of such Person, (v) all obligations of such Person to pay a specified
purchase price for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person, (vii) all
obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any
similar type of agreement and (viii) all Off-Balance Sheet Liabilities of such Person. The
Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is directly liable
therefor as a result of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor. Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued
expenses and deferred tax and other credits incurred by any Person in accordance with customary
practices and in the ordinary course of business of such Person and shall not include obligations
arising solely out of the conversion of “vault cash” supplied pursuant to the Vault Cash Agreement
(as amended, modified, supplemented or replaced from time to time to the extent permitted
hereunder) for normal operating requirements of the ATMs into obligations of the Borrower by
operation of the Vault Cash Agreement so long as the proceeds of such obligations are used solely
in the ATMs, as provided in the Vault Cash Agreement and for no other purpose.



“Indemnified Person” shall have the meaning provided in Section 13.01(a).


 


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“Initial Borrowing Date” shall mean the date occurring on or after the Effective Date
on which the initial Borrowing of Loans occurs.



“Intercompany Loans” shall have the meaning provided in Section 10.05(vii).



“Intercompany Note” shall mean a promissory note evidencing Intercompany Loans, duly
executed and delivered substantially in the form of Exhibit M (or such other form as shall be
satisfactory to the Administrative Agent in its sole discretion), with blanks completed in
conformity herewith.



“Interest Determination Date” shall mean, with respect to any LIBOR Loan, the second
Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.



“Interest Expense Coverage Ratio” shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period;
provided that for purposes of any calculation of the Interest Expense Coverage Ratio
pursuant to Sections 9.15(a) only, (i) Consolidated EBITDA shall be determined on a Pro
Forma Basis in accordance with clause (iii) of the definition of “Pro Forma
Basis” contained herein and (ii) Consolidated Interest Expense shall be determined on a Pro
Forma Basis in accordance with the requirements of the definition of “Pro
Forma Basis” contained herein.



“Interest Period” shall have the meaning provided in Section 2.09.



“Interest Rate Protection Agreement” shall mean any interest rate swap agreement,
interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other
similar agreement or arrangement.



“Investments” shall have the meaning provided in Section 10.05.



“Issuing Lender” shall mean each of DBTCA (except as otherwise provided in Section
12.09) and any other Lender reasonably acceptable to the Administrative Agent which agrees to issue
Letters of Credit hereunder. Any Issuing Lender may, in its discretion, arrange for one or more
Letters of Credit to be issued by one or more Affiliates of such Issuing Lender (and such Affiliate
shall be deemed to be an “Issuing Lender” for all purposes of the Credit Documents).



“L/C Supportable Obligations” shall mean (i) obligations of the Borrower or any of its
Subsidiaries with respect to workers compensation, surety bonds and other similar statutory
obligations and (ii) such other obligations of the Borrower or any of its Subsidiaries as are
reasonably acceptable to the respective Issuing Lender and otherwise permitted to exist pursuant to
the terms of this Agreement (other than obligations in respect of any other Indebtedness or other
obligations that are subordinated in right of payment to the Obligations and (z) any Equity
Interests).



“Lead Arrangers” shall mean, collectively, Deutsche Bank Securities Inc. and Wells
Fargo Securities, LLC, in their capacities as joint Lead Arrangers and Book Runners, and any
successor thereto.



“Leaseholds” of any Person shall mean all the right, title and interest of such Person
as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.


 


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“Lender” shall mean each financial institution listed on Schedule 1.01(a), as well as
any Person that becomes a “Lender” hereunder pursuant to Section 2.13, 13.04(b) or an Incremental
Amendment.



“Lender Default” shall mean, as to any Lender, (i) the wrongful refusal (which has not
been retracted) of such Lender to make available its portion of any Borrowing (including any
Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of
Credit pursuant to Section 3.04(c) or 3.05 unless such Lender is disputing its funding obligation
in good faith, (ii) such Lender having been deemed insolvent or having become the subject of a
bankruptcy or insolvency proceeding or a takeover by a regulatory authority, or (iii) such Lender
having notified the Administrative Agent, the Swingline Lender, any Issuing Lender and/or any
Credit Party (x) that it does not intend to comply with its obligations under Sections 2.01(a),
(b), (c), or (d), Section 2.04 or Section 3, as the case may be, in circumstances where such
non-compliance would constitute a breach of such Lender’s obligations under the respective Section
or (y) of the events described in preceding clause (ii); provided that, for purposes of
(and only for purposes of) Section 2.01(c), Section 3.03(b), Section 5.02(k) and any documentation
entered into pursuant to the Back-Stop Arrangements (and the term “Defaulting Lender” as used
therein), the term “Lender Default” shall also include, as to any Lender, (i) any Affiliate of such
Lender that has “control” (within the meaning provided in the definition of “Affiliate”) of such
Lender having been deemed insolvent or having become the subject of a bankruptcy or insolvency
proceeding or a takeover by a regulatory authority, (ii) any previously cured “Lender Default” of
such RL Lender under this Agreement, unless such Lender Default has ceased to exist for a period of
at least 90 consecutive days, (iii) any default by such Lender with respect to its obligations
under any other credit facility to which it is a party and which the Swingline Lender, any Issuing
Lender or the Administrative Agent believes in good faith has occurred and is continuing, and (iv)
the failure of such Lender to make available its portion of any Borrowing (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of Credit
pursuant to Section 3.04(c) within one (1) Business Day of the date (x) the Administrative Agent
(in its capacity as a Lender) or (y) Lenders constituting the Majority Lenders with Revolving Loan
Commitments has or have, as applicable, funded its or their portion thereof unless such Lender is
disputing its funding obligation in good faith.



“Letter of Credit” shall have the meaning provided in Section 3.01(a).



“Letter of Credit Back-Stop Arrangements” shall have the meaning provided in Section
3.03(b).



“Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).



“Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the Stated
Amount of all outstanding Letters of Credit at such time and (ii) the aggregate amount of all
Unpaid Drawings in respect of all Letters of Credit at such time.



“Letter of Credit Request” shall have the meaning provided in Section 3.03(a).



“LIBO Rate” shall mean, with respect to any Borrowing of LIBOR Loans for any Interest
Period, the higher of (i) (a) the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is 2 Business Days prior to the
commencement of such Interest Period by reference to the Reuters Screen LIBOR01 for deposits in
Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace
such page for the purpose of displaying such rates) for a period equal to such Interest Period;
provided that to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum
determined by the Administrative Agent to be the


 


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average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is 2 Business Days prior to the beginning of such Interest Period, divided
by (b) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D) and (ii) 1.50%.



“LIBOR Loan” shall mean each Loan (other than a Swingline Loan) designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.



“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or
other title retention agreement, any financing or similar statement or notice filed under the UCC
or any other similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).



“Loan” shall mean each Term Loan, each Revolving Loan and each Swingline Loan.



“Majority Lenders” of any Tranche shall mean those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations of the other Tranche under this Agreement were repaid in full and all Commitments with
respect thereto were terminated.



“Mandatory Borrowing” shall have the meaning provided in Section 2.01(d).



“Margin Stock” shall have the meaning provided in Regulation U.



“Material Adverse Effect” shall mean (i) a material adverse effect on the business,
operations, property, assets, liabilities or condition (financial or otherwise) of the Borrower or
Holdings and its Subsidiaries taken as a whole or (ii) a material adverse effect (x) on the rights
or remedies of the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any
other Credit Document or (y) on the ability of any Credit Party to perform its obligations to the
Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other Credit
Document.



“Maturity Date” shall mean, with respect to the relevant Tranche of Loans, the Term
Loan Maturity Date, the Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may
be.



“Maximum Rate” shall have the meaning provided in Section 13.19.



“Maximum Swingline Amount” shall mean $5,000,000.



“Minimum Borrowing Amount” shall mean (i) for Term Loans, $5,000,000, (ii) for
Revolving Loans, $500,000, and (iii) for Swingline Loans, $100,000.



“Moody’s” shall mean Moody’s Investors Service, Inc.



“Mortgage” shall mean a mortgage, leasehold mortgage, deed of trust, leasehold deed of
trust, deed to secure debt, leasehold deed to secure debt, debenture or similar security
instrument.


 


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“Mortgage Policy” shall mean a Lender’s title insurance policy (Form 2006).



“Mortgaged Property” shall mean any Real Property owned or leased by Holdings or any
of its Subsidiaries which is encumbered (or required to be encumbered) by a Mortgage pursuant to
the terms hereof.



“Multiemployer Plan” shall mean any multiemployer plan as defined in Section
4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to
contribute of) Holdings or any of its Subsidiaries or with respect to which Holdings or any of its
Subsidiaries has any liability (including on account of an ERISA Affiliate).



“NAIC” shall mean the National Association of Insurance Commissioners.



“Net Cash Proceeds” shall mean for any event requiring a reduction of the Total
Revolving Loan Commitment and/or repayment of Term Loans pursuant to Section 5.02, as the case may
be, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received) received from such event,
net of reasonable transaction costs (including, as applicable, any underwriting, brokerage or other
customary commissions and reasonable legal, advisory and other fees and expenses associated
therewith) received from any such event.



“Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and
other fees and expenses (including title and recording expenses), associated therewith and sales,
VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the
assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale
or other disposition, (iii) the amount of such gross cash proceeds required to be used to
permanently repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement) which is secured by the respective assets which were sold or otherwise disposed of, and
(iv) the estimated net marginal increase in income taxes which will be payable by Holdings’
consolidated group or any Subsidiary of Holdings with respect to the fiscal year of Holdings in
which the sale or other disposition occurs as a result of such sale or other disposition;
provided, however, that such gross proceeds shall not include any portion of such
gross cash proceeds which Holdings determines in good faith should be reserved for post-closing
adjustments (to the extent Holdings delivers to the Lenders a certificate signed by an Authorized
Officer as to such determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six months following
the date of the respective asset sale), the amount (if any) by which the reserved amount in respect
of such sale or disposition exceeds the actual post-closing adjustments payable by Holdings or any
of its Subsidiaries shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such sale or other disposition.



“Non-Defaulting Lender” and “Non-Defaulting RL Lender” shall mean and include each
Lender or RL Lender, as the case may be, other than a Defaulting Lender.



“Non-Wholly Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such
Person which is not a Wholly-Owned Subsidiary of such Person.



“Note” shall mean Term Note, each Revolving Note and the Swingline Note.


 


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“Notice of Borrowing” shall have the meaning provided in Section 2.03(a).



“Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.



“Notice Office” shall mean the office of the Administrative Agent located at 6022 Gate
Parkway, Jacksonville, FL, Attention: Pam Wedenfeller, Telephone No.: (904) 527-6516, and
Telecopier No.: (732) 380-3355, or such other office or person as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.



“Obligations” shall mean all amounts owing to the Administrative Agent, the Collateral
Agent, any Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of this
Agreement or any other Credit Document (including all interest which accrues after the commencement
of any case or proceeding in bankruptcy after the insolvency of, or for the reorganization of
Holdings or any of its Subsidiaries, whether or not allowed in such case or proceeding).



“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any obligation under a Synthetic Lease or (iv)
any obligation arising with respect to any other transaction which is the functional equivalent of
or takes the place of borrowing but which does not constitute a liability on the balance sheet of
such Person.



“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap
agreements, commodity agreements or other similar arrangements, or arrangements designed to protect
against fluctuations in currency values or commodity prices.



“Participant” shall have the meaning provided in Section 3.04(a).



“Payment Office” shall mean the office of the Administrative Agent located at 60 Wall
Street, New York, NY 10005 or such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.



“PBGC” shall mean the U.S. Pension Benefit Guaranty Corporation.



“Permitted Acquired Debt” shall have the meaning provided in Section 10.04(vii).



“Permitted Acquisition” shall mean the acquisition by the Borrower, a Wholly-Owned
Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor and, solely if the respective
Permitted Acquisition is justified pursuant to (and within the limitations established by) clause
(vii) of Section 9.15(a), any Wholly-Owned Foreign Subsidiary of the Borrower, of an Acquired
Entity or Business (including by way of merger of such Acquired Entity or Business with and into
the Borrower (so long as the Borrower is the surviving corporation), a Wholly-Owned Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor (so long as the Subsidiary Guarantor is
the surviving corporation) or, solely if the respective Permitted Acquisition is justified pursuant
to (and within the limitations established by) clause (vii) of Section 9.15(a), a Wholly-Owned
Foreign Subsidiary of the Borrower (so long as a Wholly-Owned Foreign Subsidiary of the Borrower is
the surviving corporation)), provided that (in each case) (A) the consideration paid or to
be paid by the Borrower or such Wholly-Owned Subsidiary consists solely of cash (including proceeds
of Incremental Term Loans, Revolving Loans or Swingline Loans), Holdings Common Stock, Qualified
Preferred Stock, the issuance or incurrence of Indebtedness otherwise permitted by Section 10.04
and the assumption/acquisition of any Indebtedness (calculated at


 


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face value) which is permitted to
remain outstanding in accordance with the requirements of Section 10.04, (B) in the case of the acquisition of 100% of the Equity
Interests of any Acquired Entity or Business (including by way of merger), such Acquired Entity or
Business shall own no Equity Interests of any other Person unless either (x) such other Person is a
Wholly-Owned Domestic Subsidiary (or, in the case of a Permitted Acquisition being effected in
accordance with clause (vii) of Section 9.15(a), is a Wholly-Owned Subsidiary) of such Acquired
Entity or Business or (y) if such Acquired Entity or Business owns Equity Interests in any other
Person which is not a Wholly Owned Domestic Subsidiary (or Wholly-Owned Subsidiary, as applicable)
of such Acquired Entity or Business, (1) such other Person shall not have been created or
established in contemplation of, or for purposes of consummating, such Permitted Acquisition and
(2) such Acquired Entity or Business and/or its Wholly-Owned Domestic Subsidiaries (or, in the case
of Permitted Acquisition being effected in accordance with clause (vii) of Section 9.15(a), such
Acquired Entity or Business and/or its Wholly-Owned Subsidiaries) own at least 90% of the total
value of all the assets owned by such Acquired Entity or Business and its subsidiaries and joint
ventures (for purposes of such determination, excluding the value of the Equity Interests of
Persons that are not Wholly-Owned Domestic Subsidiaries (or Wholly-Owned Subsidiaries, as
applicable) and which are held by such Acquired Entity or Business and its Wholly-Owned Domestic
Subsidiaries (or Wholly-Owned Subsidiaries, as applicable)), (C) unless the respective Permitted
Acquisition is being effected pursuant to clause (vii) of Section 9.15(a), substantially all of the
business, division or product line acquired pursuant to the respective Permitted Acquisition, or
the business of the Person acquired pursuant to the respective Permitted Acquisition and its
Subsidiaries taken as a whole, is in the United States or, to the extent owned or conducted by one
or more Designated Foreign Subsidiaries, in one or more Qualified Foreign Jurisdictions, (D) the
Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is in a
business permitted by Section 10.13 and (E) all requirements of Sections 9.15, 10.02 and 10.14
applicable to Permitted Acquisitions are satisfied. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, an acquisition which does not otherwise meet the
requirements set forth above in the definition of “Permitted Acquisition” shall constitute a
Permitted Acquisition if, and to the extent, the Required Lenders agree in writing, prior to the
consummation thereof, that such acquisition shall constitute a Permitted Acquisition for purposes
of this Agreement.



“Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, such
exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.



“Permitted Liens” shall have the meaning provided in Section 10.01.



“Permitted Refinancing Indebtedness” shall mean any Indebtedness of Borrower or any of
its Subsidiaries issued or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace or refund any Existing Indebtedness listed on Schedule 8.21, Permitted
Acquired Debt, or any Indebtedness issued to so extend, refinance, renew, replace, substitute or
refund any such Indebtedness, so long as (a) such Indebtedness has a weighted average life to
maturity greater than or equal to the weighted average life to maturity of the Indebtedness being
extended, refinanced, renewed, replaced or refunded, (b) such extension, refinancing, renewal,
replacement or refunding does not (i) increase the amount of such Indebtedness outstanding
immediately prior to such extension, refinancing, renewal, replacement or refunding, unless (for
the avoidance of doubt) such increase is otherwise expressly permitted under a separate sub-clause
of Section 10.04 or (ii) add guarantors, obligors or security from that which applied to such
Indebtedness being extended, refinanced, renewed, replacement or refunding, and (c) such
Indebtedness has substantially the same (or, from the perspective of the Lenders, more favorable)
subordination provisions, if any, as applied to the Indebtedness being extended, renewed,
refinanced, replaced or refunded.


 


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“Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, limited liability company, trust or other enterprise or any Governmental Authority.



“Plan” shall mean an “employee benefit plan” as defined in Section 3 of ERISA (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA maintained or contributed to by Holdings or any of its Subsidiaries or
with respect to which Holdings or any of its Subsidiaries has any liability (including on account
of an ERISA affiliate).



“Pledge Agreement” shall have the meaning provided in Section 6.10.



“Pledge Agreement Collateral” shall mean all “Collateral” as defined in the Pledge
Agreement.



“Pledgee” shall have the meaning provided in the Pledge Agreement.



“Preferred Equity”, as applied to the Equity Interests of any Person, means Equity
Interests of such Person (other than common Equity Interests of such Person) of any class or
classes (however designed) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to shares of Equity Interests of any other class of such Person, and shall include any
Qualified Preferred Stock.



“Prime Lending Rate” shall mean the rate which the Administrative Agent announces from
time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime
lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer by the Administrative Agent,
which may make commercial loans or other loans at rates of interest at, above or below the Prime
Lending Rate.



“Private Lender Information” shall mean all information that does not constitute
Public Lender Information.



“Pro Forma Basis” shall mean, in connection with any calculation of compliance with
any financial covenant or financial term, the calculation thereof after giving effect on a
pro forma basis to (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or
to finance a Permitted Acquisition) after the first day of the relevant Calculation Period or Test
Period, as the case may be, as if such Indebtedness had been incurred (and the proceeds thereof
applied) on the first day of such Test Period or Calculation Period, as the case may be, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) after the first day of the relevant
Test Period or Calculation Period, as the case may be, as if such Indebtedness had been retired or
repaid on the first day of such Test Period or Calculation Period, as the case may be, and (z) any
Permitted Acquisition or any Significant Asset Sale then being consummated as well as any other
Permitted Acquisition or any other Significant Asset Sale if consummated after the first day of the
relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the
respective Permitted Acquisition or Significant Asset Sale, as the case may be, then being
effected, with the following rules to apply in connection therewith:




(i) all Indebtedness (x) (other than revolving Indebtedness, except to the extent same
is incurred to refinance other outstanding Indebtedness or to finance Permitted Acquisitions
or Dividends) incurred or issued after the first day of the relevant Test Period or
Calculation Period (whether incurred to finance a Permitted Acquisition or Dividends, to
refinance Indebtedness or
otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof
applied) on the first day of such Test Period or Calculation Period, as the case may be, and
remain outstanding through the date of determination (and thereafter, in the case of
projections pursuant to Section 9.15(a)) and (y) (other than revolving Indebtedness, except
to the extent accompanied by a corresponding permanent commitment reduction) permanently
retired or redeemed after the first day of the relevant Test Period or Calculation Period,
as the case may be, shall be deemed to have been retired or redeemed on the first day of
such Test Period or Calculation Period, as the case may be, and remain retired through the
date of determination (and thereafter, in the case of projections pursuant to Section
9.15(a));


 


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(ii) all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall
be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed
rate indebtedness, or (y) the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of floating rate
Indebtedness (although interest expense with respect to any Indebtedness for periods while
same was actually outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding); provided that
all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a
floating rate of interest shall be tested on the basis of the rates applicable at the time
the determination is made pursuant to said provisions;




(iii) in making any determination of Consolidated EBITDA on a Pro Forma
Basis, pro forma effect shall be given to any Permitted Acquisition or any
Significant Asset Sale if effected during the respective Calculation Period or Test Period
(or thereafter, for purposes of determinations pursuant to Sections 2.14 and 9.15(a) only)
as if same had occurred on the first day of the respective Calculation Period or Test
Period, as the case may be, taking into account, in the case of any Permitted Acquisition,
factually supportable and identifiable cost savings and expenses which would otherwise be
accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities
Act, as if such cost savings or expenses were realized on the first day of the respective
period; and




(iv) in the case of any Permitted Acquisition or Significant Asset Sale to be
consummated prior to the date on which financial statements have been (or are required to
be) delivered pursuant to Section 9.01(a) for the Fiscal Quarter ending nearest to March 31,
2011, any calculation of compliance with Section 10.08 or 10.09 required to be made on a
“Pro Forma Basis” shall use the covenant levels applicable to the Test Period ended nearest
to March 31, 2011 set forth in Section 10.08 or 10.09, as the case may be.



“Projections” shall mean the projections that are contained in the Confidential
Information Memorandum dated February 3, 2011 and that were prepared by or on behalf of the
Borrower in connection with the Transaction and delivered to the Administrative Agent and the
Lenders prior to the Initial Borrowing Date.



“Public Lender Information” shall mean information and documentation that is either
(x) publicly available or (y) not material with respect to Holdings, the Borrower or their
respective Subsidiaries.




“Qualified Credit Party” shall mean the Borrower and each Wholly-Owned Domestic
Subsidiary that is a Subsidiary Guarantor.



 


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“Qualified Foreign Jurisdictions” shall mean and include Canada and the United Kingdom
of Great Britain and Northern Ireland. Furthermore, from time to time after the Initial
Borrowing Date, the Borrower may request (by written notice to, and following consultation with,
the Administrative Agent) that one or more additional jurisdictions be added to the list of
Qualified Jurisdictions. In such event, such jurisdictions may be added to (and thereafter form
part of) the list of Qualified Jurisdictions so long as, in each case, the respective jurisdiction
to be added is a jurisdiction in which the Borrower and/or any of its Subsidiaries conducts
business, the jurisdiction to be added is satisfactory to the Administrative Agent (including with
respect to the amount and enforceability of guaranties that may be entered into by entities
organized in such jurisdiction, as well as the security interests (and enforceability thereof) that
may be granted with respect to collateral (or various classes of assets) located in such
jurisdiction as well as any political risk associated with such jurisdiction).



“Qualified Preferred Stock” shall mean any Preferred Equity of Holdings so long as the
terms of any such Preferred Equity (and the terms of any Equity Interests into which such Preferred
Equity is convertible or for which it is exchangeable, either mandatorily or at the option of the
holder thereof) (v) do not contain any mandatory put, redemption, repayment, sinking fund or other
similar provision prior to March 1, 2012, (w) do not require the cash payment of dividends or
distributions that would otherwise be prohibited by the terms of this Agreement or any other
agreement or contract of Holdings or any of its Subsidiaries, (x) do not contain any covenants
(other than periodic reporting requirements), (y) do not grant the holders thereof any voting
rights except for (I) voting rights required to be granted to such holders under applicable law and
(II) limited customary voting rights on fundamental matters such as mergers, consolidations, sales
of all or substantially all of the assets of Holdings, or liquidations involving Holdings, and (z)
are otherwise reasonably satisfactory to the Administrative Agent.



“Quarterly Payment Date” shall mean the last Business Day of each March, June,
September and December occurring after the Initial Borrowing Date.



“Real Property” of any Person shall mean all the right, title and interest of such
Person in and to land, improvements and fixtures, including Leaseholds.



“Recovery Event” shall mean any event that gives rise to the receipt by Holdings or
any of its Subsidiaries of any cash insurance proceeds or condemnation awards payable (i) by reason
of theft, loss, physical destruction, damage, taking or any other similar event with respect to any
property or assets of Holdings or any of its Subsidiaries and (ii) under any policy of insurance
required to be maintained under Section 9.03.



“Refinanced Term Loans” shall have the meaning provided in Section 13.12(d).



“Refinancing” shall mean the refinancing transactions described in Sections 6.06(a)
and (b).



“Refinancing Documents” shall mean all pay-off letters, guaranty releases, Lien
releases (including, without limitation, UCC termination statements) and other documents and
agreements entered into in connection with the Refinancing.



“Register” shall have the meaning provided in Section 13.15.



“Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.


 


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“Regulation T” shall mean Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.



“Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.



“Regulation X” shall mean Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.



“Release” shall mean disposing, discharging, injecting, spilling, pumping, leaking,
leaching, dumping, emitting, escaping, emptying, pouring, seeping, or migrating into, through or
upon any land or water or air, or otherwise entering into the environment.



“Replaced Lender” shall have the meaning provided in Section 2.13.



“Replacement Term Loans” shall have the meaning provided in Section 13.12(d).



“Replacement Lender” shall have the meaning provided in Section 2.13.



“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan that is subject to Title IV of ERISA other than those events as to which the
30-day notice period is waived under applicable regulations.



“Repricing Event” shall mean (a) the incurrence by the Borrower of any Indebtedness
(including, without limitation, any new or additional Term Loans under this Agreement, whether
incurred directly or by way of the conversion of the Term Loans into a new tranche of replacement
Term Loans under this Agreement) that is broadly marketed or syndicated to banks, funds and/or
other institutional investors in financings similar to the facilities provided for in this
Agreement (i) having an “effective” interest rate margin or weighted average yield that is less
than the applicable rate for or weighted average yield for the Term Loans of the respective Type
(with the comparative determinations to be made in the reasonable judgment of the Administrative
Agent consistent with generally accepted financial practices, after giving effect to, among other
factors, margin, upfront or similar fee or “original issue discount” shared with all lenders or
holders of such Indebtedness or Term Loans, as the case may be, but excluding the effect of any
arrangement, structuring, syndication or other fees payable in connection therewith that are not
shared with all lenders or holders of such Indebtedness or Term Loans, as the case may be, and
without taking into account any fluctuations in the LIBO Rate) but excluding Indebtedness incurred
in connection with a Change in Control, and (ii) the proceeds of which are used to prepay (or, in
the case of a conversion, deemed to prepay or replace), in whole or in part, the outstanding
principal of the Term Loans or (b) any effective reduction in the Applicable Margin or interest
rate floor for the Term Loans (e.g., by way of amendment, waiver or otherwise). Any such
determination by the Administrative Agent as contemplated by preceding clauses (a) and (b) shall be
conclusive and binding on all Lenders holding Term Loans. Neither the Administrative Agent nor the
Borrower shall have any liability to any Person with respect to such determination absent gross
negligence, bad faith or willful misconduct.



“Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose
outstanding Term Loans and Revolving Loan Commitments at such time (or, after the termination
thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such
time and (y) Letter of Credit Outstandings at such time) represents at least a majority of the sum
of (i) all outstanding Term Loans of Non-Defaulting Lenders and (ii) the Total Revolving Loan
Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting
Lenders at such time (or, after the termination thereof, the sum of then total outstanding
Revolving Loans of Non-Defaulting Lenders
and the aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).


 


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“Restricted” shall mean, when referring to cash or Cash Equivalents of Holdings or any
of its Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be required to
appear) as “restricted” on a consolidated balance sheet of Holdings or of any such Subsidiary
(unless such appearance is related to the Credit Documents or Liens created thereunder), (ii) are
subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the
Secured Creditors or (iii) are not otherwise generally available for use by Holdings or such
Subsidiary.



“Retained Applicable Excess Cash Flow Percentage” shall mean, with respect to any
Excess Cash Payment Date, a percentage equal to 100% less the Applicable Excess Cash Flow
Percentage for such Excess Cash Payment Date.



“Returns” shall have the meaning provided in Section 8.09.



“Revolving Loan” shall have the meaning provided in Section 2.01(b).



“Revolving Loan Commitment” shall mean, for each Lender, the amount set forth opposite
such Lender’s name in Schedule 1.01(a) directly below the column entitled “Revolving Loan
Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections 4.02,
4.03 and/or 11, as applicable, or (y) adjusted from time to time as a result of assignments to or
from such Lender pursuant to Section 2.13 or 13.04(b).



“Revolving Loan Maturity Date” shall mean March 1, 2016.



“Revolving Note” shall have the meaning provided in Section 2.05(a).



“RL Lender” shall mean each Lender with a Revolving Loan Commitment or with
outstanding Revolving Loans.



“RL Percentage” of any RL Lender at any time shall mean a fraction (expressed as a
percentage) the numerator of which is the Revolving Loan Commitment of such RL Lender at such time
and the denominator of which is the Total Revolving Loan Commitment at such time, provided
that if the RL Percentage of any RL Lender is to be determined after the Total Revolving Loan
Commitment has been terminated, then the RL Percentages of such RL Lender shall be determined
immediately prior (and without giving effect) to such termination.



“S&P” shall mean Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc.



“Scheduled Repayment” shall have the meaning provided in Section 5.02(b).



“Scheduled Repayment Date” shall have the meaning provided in Section 5.02(b).



“SEC” shall have the meaning provided in Section 9.01(g).



“Section 5.04(b)(ii) Certificate” shall have the meaning provided in Section
5.04(b)(ii).



“Secured Creditors” shall have the meaning assigned that term in the respective
Security Documents.


 


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“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



“Security Agreement” shall have the meaning provided in Section 6.11.



“Security Agreement Collateral” shall mean all “Collateral” as defined in the Security
Agreement.



“Security Document” shall mean and include each of the Security Agreement, the Pledge
Agreement, each Mortgage and, after the execution and delivery thereof, each Additional Security
Document and any other documents granting a Lien upon the assets or property of a Credit Party as
security for payment of the Obligations; provided, that any cash collateral or other
agreements entered into pursuant to the Back-Stop Arrangements shall constitute “Security
Documents” solely for purposes of (x) Sections 8.03 and 10.01(iv) and (y) the term “Credit
Documents” as used in Sections 10.04(i), 10.11 and 13.01.



“Senior Subordinated Notes” shall mean the 8.75% Senior Subordinated notes of the
Borrower due 2012.



“Significant Asset Sale” shall mean each Asset Sale which generates Net Sale Proceeds
of at least $2,000,000.



“Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount
available to be drawn thereunder, in each case determined (x) as if any future automatic increases
in the maximum amount available that are provided for in any such Letter of Credit had in fact
occurred at such time and (y) without regard to whether any conditions to drawing could then be met
but after giving effect to all previous drawings made thereunder.



“Subsidiaries Guaranty” shall have the meaning provided in Section 6.09.



“Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person
and (ii) any partnership, limited liability company, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time. Unless otherwise qualified, all references to a “Subsidiary” or to
“Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.



“Subsidiary Guarantor” shall mean each Domestic Subsidiary of Holdings (other than the
Borrower) that is party to the Subsidiaries Guaranty (or any local law equivalent with respect to
Designated Foreign Subsidiaries), unless and until such time as the respective Subsidiary is
released from all of its obligations under the Subsidiaries Guaranty (or such local law equivalent)
in accordance with the terms and provisions thereof.



“Swingline Back-Stop Arrangements” shall have the meaning provided in Section 2.01(c).



“Swingline Expiry Date” shall mean that date which is five Business Days prior to the
Revolving Loan Maturity Date.


 


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“Swingline Lender” shall mean the Administrative Agent, in its capacity as Swingline
Lender hereunder.



“Swingline Loan” shall have the meaning provided in Section 2.01(c).



“Swingline Note” shall have the meaning provided in Section 2.05(a).



“Syndication Agent” shall mean Wells Fargo Bank, N.A.



“Syndication Date” shall mean that date upon which the Administrative Agent determines
in its sole discretion (and notifies the Borrower) that the primary syndication (and resultant
addition of Persons as Lenders pursuant to Section 13.04(b)) has been completed.



“Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee and (ii) the lessee will be
entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees)
of like property.



“Taxes” shall have the meaning provided in Section 5.04(a).



“Term Loan” shall have the meaning provided in Section 2.01(b).



“Term Loan Commitment” shall mean, for each Lender, the amount set forth opposite such
Lender’s name in Schedule 1.01(a) directly below the column entitled “Term Loan Commitment,” as the
same may be terminated pursuant to Sections 4.03 and/or 11.



“Term Loan Maturity Date” shall mean March 1, 2016.



“Term Note” shall have the meaning provided in Section 2.05(a).



“Test Period” shall mean each period of four consecutive Fiscal Quarters of Holdings
then last ended, in each case taken as one accounting period.



“Total Commitment” shall mean, at any time, the sum of the Commitments of each of the
Lenders at such time.



“Total Leverage Ratio” shall mean, on any date of determination, the ratio of (x)
Consolidated Indebtedness on such date to (y) Consolidated EBITDA for the Test Period most recently
ended on or prior to such date; provided that (i) for purposes of any calculation of the
Total Leverage Ratio pursuant to Section 10.09 of this Agreement, Consolidated EBITDA shall be
determined on a Pro Forma Basis in accordance with clause (iii) of the definition
of “Pro Forma Basis” contained herein, taking into account only those Permitted
Acquisitions and Significant Asset Sales which were effected during the relevant Test Period, and
(ii) for purposes of any calculation of the Total Leverage Ratio pursuant to Sections 2.14 and
9.15(a) only, the Total Leverage Ratio (and Consolidated EBITDA and Consolidated Indebtedness as
used therein) shall be determined on a Pro Forma Basis in accordance with the
requirements of the definition of “Pro Forma Basis” contained herein, taking into
account all items as described therein from the beginning of the relevant Calculation Period
through and including the date upon which the relevant transaction is occurring which requires a
determination to be made on a Pro Forma Basis.



“Total Revolving Loan Commitment” shall mean, at any time, the sum of the Revolving
Loan Commitments of each of the Lenders at such time.


 


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“Total Term Loan Commitment” shall mean, at any time, the sum of the Term Loan
Commitments of each of the Lenders at such time.



“Total Unutilized Revolving Loan Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Revolving Loan Commitment in effect at such time less (y)
the sum of (i) the aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus (ii) the aggregate amount of all Letter of Credit
Outstandings at such time.



“Tranche” shall mean the respective facility and commitments utilized in making Loans
hereunder, with there being three separate Tranches, i.e., Term Loans, Revolving Loans and
Swingline Loans; provided that for purposes of Sections 2.13, 13.04(b), 13.12(a) and (b)
and the definition of “Majority Lenders”, Revolving Loans and Swingline Loans shall be deemed to
constitute part of a single “Tranche”.



“Transaction” shall mean, collectively, (i) the consummation of the Refinancing, (ii)
the execution, delivery and performance by each Credit Party of the Credit Documents to which it is
a party, the incurrence of Loans on the Initial Borrowing Date and the use of proceeds thereof and
(iii) the payment of all fees and expenses in connection with the foregoing.



“Type” shall mean the type of Loan determined with regard to the interest option
applicable thereto, i.e., whether a Base Rate Loan or a LIBOR Loan.



“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.



“Unfunded Pension Liability” of any Plan shall mean the amount, if any, by which the
value of the accumulated plan benefits under the Plan determined on a plan termination basis in
accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets (excluding any
accrued but unpaid contributions).



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



“Unpaid Drawing” shall have the meaning provided in Section 3.05(a).



“Unutilized Revolving Loan Commitment” shall mean, with respect to any Lender at any
time, such Lender’s Revolving Loan Commitment at such time less the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans made by such Lender at such time and
(ii) such Lender’s RL Percentage of the Letter of Credit Outstandings at such time.



“Vault Cash Agreement” shall mean the Contract Cash Solutions Agreement, dated as of
November 12, 2010, by and between the Borrower and Wells Fargo Bank, N.A., as such Vault Cash
Agreement has been, and may be, amended, modified or supplemented from time to time. The term
“Vault Cash Agreement” shall include any successor vault cash custody agreement reasonably
acceptable to the Administrative Agent with the same or another Vault Cash Provider.



“Vault Cash Provider” shall mean Wells Fargo Bank, N.A., any of its bank Affiliates
listed on Exhibit A of the Vault Cash Agreement or another banking institution reasonably
satisfactory to the Administrative Agent, as a provider of vault cash under the Vault Cash
Agreement or other person under a bailment arrangement reasonably satisfactory to the
Administrative Agent.


 


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“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness or
Preferred Equity, as the case may be, at any date, the quotient obtained by dividing (a) the sum of
the products of the number of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness or redemption or similar payment with respect to
such Preferred Equity multiplied by the amount of such payment; by (b) the sum of all such
payments.



“Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is a Domestic Subsidiary.



“Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is a Foreign Subsidiary.



“Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of
whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary as
Designated Foreign Subsidiary of the Borrower with respect to the preceding clauses (i) and (ii),
director’s qualifying shares and/or other nominal amount of shares required to be held by Persons
other than the Borrower and its Subsidiaries under applicable law).



“Yield Differential” shall have the meaning provided in Section 2.14(a).



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



(b) As used herein and in the other Credit Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms not defined in Section 1.01
shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word
“incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv)
unless the context otherwise requires, the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, Equity Interests, securities, revenues, accounts, leasehold interests
and contract rights, (v) the word “will” shall be construed to have the same meaning and effect as
the word “shall”, and (vi) unless the context otherwise requires, any reference herein (A) to any
Person shall be construed to include such Person’s successors and assigns and (B) to Holdings, the
Borrower or any other Credit Party shall be construed to include Holdings, the Borrower or such
Credit Party as debtor and debtor-in-possession and any receiver or trustee for Holdings, the
Borrower or any other Credit Party, as the case may be, in any insolvency or liquidation
proceeding.



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



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


 


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SECTION 2. Amount and Terms of Credit.



2.01. The Commitments. (a) Subject to and upon the terms and conditions set forth herein, each Lender with a Term Loan
Commitment severally agrees to make a term loan or term loans (each, a “Term Loan” and,
collectively, the “Term Loans”) to the Borrower, which Term Loans (i) shall be incurred
pursuant to a single drawing on the Initial Borrowing Date, (ii) shall be denominated in Dollars,
(iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, provided that except
as otherwise specifically provided in Section 2.10(b), all Term Loans comprising the same Borrowing
shall at all times be of the same Type and (iv) shall be made by each such Lender in that aggregate
principal amount which does not exceed the Term Loan Commitment of such Lender on the Initial
Borrowing Date. Once repaid, Term Loans incurred hereunder may not be reborrowed.



(b) Subject to and upon the terms and conditions set forth herein, each Lender with a
Revolving Loan Commitment severally agrees to make, at any time and from time to time on or after
the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a revolving loan or
revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”)
to the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or
LIBOR Loans, provided that except as otherwise specifically provided in Section 2.10(b),
all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may
be repaid and reborrowed in accordance with the provisions hereof, and (iv) shall not exceed for
any such Lender at any time outstanding that aggregate principal amount which, when added to the
product of (x) such Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of,
and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such
time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans
which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such
Lender at such time.



(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees
to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a “Swingline Loan” and,
collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be
incurred and maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be
repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the aggregate principal amount of all
Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at
such time, an amount equal to the Total Revolving Loan Commitment at such time, and (v) shall not
exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount.
Notwithstanding anything to the contrary contained in this Section 2.01(c), (i) the Swingline
Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists
with respect to an RL Lender unless the Swingline Lender has entered into arrangements satisfactory
to it and the Borrower to eliminate the Swingline Lender’s risk with respect to each Defaulting
Lender’s participation in such Swingline Loans (which arrangements are hereby consented to by the
Lenders), including by the Borrower cash collateralizing such Defaulting Lender’s RL Percentage of
the outstanding Swingline Loans (such
arrangements, the “Swingline Back-Stop Arrangements”), and (ii) the Swingline Lender
shall not make any Swingline Loan after it has received written notice from the Borrower, any other
Credit Party or the Required Lenders stating that a Default or an Event of Default exists and is
continuing until such time as the Swingline Lender shall have received written notice (A) of
rescission of all such notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the Required Lenders.


 


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(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the
RL Lenders that the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more
Borrowings of Revolving Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default under Section 11.05 or
upon the exercise of any of the remedies provided in the last paragraph of Section 11), in which
case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a
“Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each such RL Lender’s RL Percentage (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph
of Section 11) and the proceeds thereof shall be applied directly by the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably
agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the date specified in
writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) the date of such Mandatory Borrowing, and (v) the amount of the Total Revolving Loan
Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each RL
Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans
ratably based upon their respective RL Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11),
provided that (x) all interest payable on the Swingline Loans shall be for the account of
the Swingline Lender until the date as of which the respective participation is required to be
purchased and, to the extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing RL Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day from and including
the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the overnight Federal Funds Rate for the first three days and
at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans
hereunder for each day thereafter.



2.02. Minimum Amount of Each Borrowing. The aggregate principal amount of each Borrowing of Loans under a respective Tranche shall not
be less than the Minimum Borrowing Amount applicable to such Tranche. More than one Borrowing may
occur on the same date, but at no time shall there be outstanding more than 4 Borrowings of LIBOR
Loans in the aggregate for all Tranches of Loans.



2.03. Notice of Borrowing. (a) Whenever the Borrower desires to incur (x) LIBOR Loans hereunder, the Borrower shall give
the Administrative Agent at the Notice Office at least three Business Days’ prior notice of each
LIBOR Loan to be incurred hereunder and (y) Base Rate Loans hereunder (excluding Swingline Loans
and Revolving Loans made pursuant to a Mandatory Borrowing), the Borrower shall give the
Administrative Agent at the Notice Office at least one Business Day’s prior notice of each Base
Rate Loan to be incurred hereunder, provided that (in each case) any such notice shall be
deemed to have been given on a certain day only if given before 2:00 P.M. (New York City time) on
such day. Each such notice (each, a “Notice of Borrowing”), except as


 


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otherwise expressly
provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly
confirmed in writing, in the form of Exhibit A-1, appropriately completed to specify: (i) the
aggregate principal amount of the Loans to be incurred pursuant to such Borrowing, (ii) the date of
such Borrowing (which shall be a Business Day), (iii) whether the Loans being incurred pursuant to
such Borrowing shall constitute Term Loans or Revolving Loans, (iv) whether the Loans being
incurred pursuant to such Borrowing are to be initially maintained as Base Rate Loans or, to the
extent permitted hereunder, LIBOR Loans and, if LIBOR Loans, the initial Interest Period to be
applicable thereto, and (v) in the case of a Borrowing of Revolving Loans the proceeds of which are
to be utilized to finance, in whole or in part, a Permitted Acquisition (or to pay any fees and
expenses incurred in connection therewith), the amount of the Total Unutilized Revolving Loan
Commitment after giving effect to such Borrowing. The Administrative Agent shall promptly give
each Lender which is required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of
the other matters required by the immediately preceding sentence to be specified in the Notice of
Borrowing.



(b) (i) Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower shall
give the Swingline Lender no later than 2:30 P.M. (New York City time) on the date that a Swingline
Loan is to be incurred, written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day), (B) the aggregate principal amount
of the Swingline Loans to be incurred pursuant to such Borrowing, and (C) in the case of a
Borrowing of Swingline Loans the proceeds of which are to be utilized to finance, in whole or in
part, a Permitted Acquisition (or to pay any fees and expenses incurred in connection therewith),
the amount of the Total Unutilized Revolving Loan Commitment after giving effect to such Borrowing.



(ii) Mandatory Borrowings shall be made upon the notice specified in Section 2.01(d), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the
Mandatory Borrowings as set forth in Section 2.01(d).



(c) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent or the
Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice
of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from an Authorized Officer of the
Borrower, prior to receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent’s or the Swingline Lender’s record of the terms of
such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent
manifest error.



2.04. Disbursement of Funds. No later than 5:00 P.M. (New York City time) on the date specified in each Notice of Borrowing
(or (x) in the case of Swingline Loans, no later than 4:00 P.M. (New York City time) on the date
specified pursuant to Section 2.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than
5:00 P.M. (New York City time) on the date specified in Section 2.01(d)), each Lender with a
Commitment of the
respective Tranche will make available its pro rata portion (determined in
accordance with Section 2.07) of each such Borrowing requested to be made on such date (or in the
case of Swingline Loans, the Swingline Lender will make available the full amount thereof). All
such amounts will be made available in Dollars and in immediately available funds at the Payment
Office, and the Administrative Agent will, except in the case of Revolving Loans made pursuant to a
Mandatory Borrowing, make available to the Borrower at the Payment Office, or to such other account
as the Borrower may specify in writing prior to the Initial Borrowing Date, the aggregate of the
amounts so made available by the Lenders; provided that, if, on the date of a Borrowing of
Revolving Loans (other than a Mandatory Borrowing), there are Unpaid Drawings or Swingline Loans
then


 


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outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such Unpaid Drawings with respect to Letters of Credit, second, to
the payment in full of any such Swingline Loans, and third, to the Borrower as otherwise
provided above. Unless the Administrative Agent shall have been notified by any Lender prior to
the date of Borrowing that such Lender does not intend to make available to the Administrative
Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, the overnight Federal Funds Rate for the first three days and at the interest rate
otherwise applicable to such Loans for each day thereafter and (ii) if recovered from the Borrower,
the rate of interest applicable to the respective Borrowing, as determined pursuant to Section
2.08. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to
make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a
result of any failure by such Lender to make Loans hereunder.



2.05. Notes. (a) The Borrower’s obligation to pay the principal of, and interest on, the Loans made by each
Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to
Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in the case of Term
Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form
of Exhibit B-1, with blanks appropriately completed in conformity herewith (each, a “Term
Note” and, collectively, the “Term Notes”), (ii) in the case of Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit
B-2, with blanks appropriately completed in conformity herewith (each, a “Revolving Note”
and, collectively, the “Revolving Notes”), and (iii) in the case of Swingline Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit
B-3, with blanks appropriately completed in conformity herewith (the “Swingline Note”).



(b) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and prior to any transfer of any of its Notes will endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in such notation shall not affect the Borrower’s obligations in
respect of such Loans.



(c) Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere
in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request
the delivery of such Notes. No failure of any Lender to request or obtain a Note evidencing its
Loans to the Borrower shall affect or in any manner impair the obligations of the Borrower to pay
the Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit Documents. Any Lender
which does not have a Note evidencing its outstanding Loans shall in no event be required to make
the notations otherwise described in preceding clause (b). At any time when any Lender requests
the delivery of a Note to evidence any of its Loans, the Borrower shall promptly execute and
deliver to the respective Lender the requested Note in the appropriate amount or amounts to
evidence such Loans.


 


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2.06. Conversions. The Borrower shall have the option to convert, on any Business Day, all or a portion equal to at
least the Minimum Borrowing Amount of the outstanding principal amount of Loans (other than
Swingline Loans which may not be converted pursuant to this Section 2.06) made pursuant to one or
more Borrowings (so long as of the same Tranche) of one or more Types of Loans into a Borrowing (of
the same Tranche) of another Type of Loan, provided that, (i) except as otherwise provided
in Section 2.10(b), LIBOR Loans may be converted into Base Rate Loans only on the last day of an
Interest Period applicable to the Loans being converted and no such partial conversion of LIBOR
Loans shall reduce the outstanding principal amount of such LIBOR Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) unless the Required
Lenders otherwise agree, Base Rate Loans may only be converted into LIBOR Loans if no Default or
Event of Default is in existence on the date of the conversion, and (iii) no conversion pursuant to
this Section 2.06 shall result in a greater number of Borrowings of LIBOR Loans than is permitted
under Section 2.02. Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at the Notice Office prior to 2:00 P.M. (New York City time) at least (x) in
the case of conversions of Base Rate Loans into LIBOR Loans, three Business Days’ prior notice and
(y) in the case of conversions of LIBOR Loans into Base Rate Loans, one Business Day’s prior notice
(each, a “Notice of Conversion/Continuation”), in each case in the form of Exhibit A-2,
appropriately completed to specify the Loans to be so converted, the Borrowing or Borrowings
pursuant to which such Loans were incurred and, if to be converted into LIBOR Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Loans.



2.07. Pro Rata Borrowings. All Borrowings of Term Loans and Revolving Loans under this Agreement shall be incurred from the
Lenders pro rata on the basis of their Term Loan Commitments or Revolving Loan
Commitments, as the case may be, provided that all Mandatory Borrowings shall be incurred
from the RL Lenders pro rata on the basis of their RL Percentages. It is
understood that no Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other Lender to make its
Loans hereunder.



2.08. Interest. (a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base
Rate Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether
by acceleration or otherwise) and (ii) the conversion of such Base Rate Loan to a LIBOR Loan
pursuant to
Section 2.06 or 2.09, as applicable, at a rate per annum which shall be equal to the sum of the
relevant Applicable Margin plus the Base Rate, each as in effect from time to time.



(b) The Borrower agrees to pay interest in respect of the unpaid principal amount of each
LIBOR Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such LIBOR Loan to a Base Rate
Loan pursuant to Section 2.06, 2.09 or 2.10, as applicable, at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as
in effect from time to time during such Interest Period plus the LIBO Rate for such
Interest Period.



(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each
Loan shall, in each case, bear interest at a rate per annum equal to the greater of (x) the rate
which is 2% in excess of the rate then borne by such Loans and (y) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans of the respective Tranche from time to time,
and all other overdue amounts payable hereunder and under any other Credit Document shall bear
interest at a rate per annum equal to the rate which is 2% in excess of the rate applicable to
Revolving Loans that are maintained as Base Rate Loans from time to time. Interest that accrues
under this Section 2.08(c) shall be payable on demand.


 


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(d) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, (y) on the date of any
repayment or prepayment in full of all outstanding Base Rate Loans of any Tranche, and (z) at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand, and (ii) in
respect of each LIBOR Loan, (x) on the last day of each Interest Period applicable thereto and, in
the case of an Interest Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, and (y) on the date of any repayment or
prepayment (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.



(e) Upon each Interest Determination Date, the Administrative Agent shall determine the LIBO
Rate for each Interest Period applicable to the respective LIBOR Loans and shall promptly notify
the Borrower and the Lenders thereof. Each such determination shall, absent manifest error, be
final and conclusive and binding on all parties hereto.



2.09. Interest Periods. At the time the Borrower gives any Notice of Borrowing or Notice of Conversion/Continuation in
respect of the making of, or conversion into, any LIBOR Loan (in the case of the initial Interest
Period applicable thereto) or prior to 2:00 P.M. (New York City time) on the third Business Day
prior to the expiration of an Interest Period applicable to such LIBOR Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect the interest period (each,
an “Interest Period”) applicable to such LIBOR Loan, which Interest Period shall, at the
option of the Borrower, be (x) a one, two, three, six or, if approved by each Lender with Loans
and/or Commitments under the relevant Tranche, nine or twelve month period or (y) if agreed by the
Administrative Agent in its sole discretion, such other period not to exceed one-month,
provided that (in each case):




(i) all LIBOR Loans comprising a Borrowing shall at all times have the same Interest
Period;




(ii) the initial Interest Period for any LIBOR Loan shall commence on the date of
Borrowing of such LIBOR Loan (including the date of any conversion thereto from a Base Rate
Loan) and each Interest Period occurring thereafter in respect of such LIBOR Loan shall
commence on the day on which the next preceding Interest Period applicable thereto expires;




(iii) if any Interest Period for a LIBOR Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar month;




(iv) if any Interest Period for a LIBOR Loan would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding Business Day;
provided, however, that if any Interest Period for a LIBOR Loan would
otherwise expire on a day which is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;




(v) unless the Required Lenders otherwise agree, no Interest Period may be selected at
any time when a Default or an Event of Default is then in existence;


 


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(vi) no Interest Period in respect of any Borrowing of any Tranche of Loans shall be
selected which extends beyond the Maturity Date for such Tranche of Loans; and




(vii) no Interest Period in respect of any Borrowing of Term Loans shall be selected
which extends beyond any date upon which a mandatory repayment of such Term Loans, will be
required to be made under Section 5.02(b), if the aggregate principal amount of Term Loans,
which have Interest Periods which will expire after such date will be in excess of the
aggregate principal amount of such Term Loans, then outstanding less the aggregate
amount of such required repayment.



If by 2:00 P.M. (New York City time) on the third Business Day prior to the expiration of any
Interest Period applicable to a Borrowing of LIBOR Loans, the Borrower has failed to elect, or is
not permitted to elect, a new Interest Period to be applicable to such LIBOR Loans as provided
above, the Borrower shall be deemed to have elected to convert such LIBOR Loans into Base Rate
Loans effective as of the expiration date of such current Interest Period.



2.10. Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):




(i) on any Interest Determination Date that, by reason of any changes arising after the
date of this Agreement affecting the London interbank market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for in the
definition of LIBO Rate; or




(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any LIBOR Loan because of (x) any
change since the Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, but not limited to:
(A) a change in the basis of taxation of payment to any Lender of the principal of or
interest on the Loans or the Notes or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by
reference to, the net income or net profits of such Lender pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein) or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the LIBO Rate and/or (y) other circumstances arising
since the Effective Date affecting such Lender, the London interbank market or the position
of such Lender in such market (including that the LIBO Rate with respect to such LIBOR Loan
does not adequately and fairly reflect the cost to such Lender of funding such LIBOR Loan);
or




(iii) at any time, that the making or continuance of any LIBOR Loan has been made (x)
unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance
by any Lender in good faith with any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency occurring after the Effective Date or
since the date such person becomes a Lender, if later, which materially and adversely
affects the London interbank market;


 


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then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and,
except in the case of clause (i) above, to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter
(x) in the case of clause (i) above, LIBOR Loans shall no longer be available until such time as
the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice
of Conversion/Continuation given by the Borrower with respect to LIBOR Loans which have not yet
been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in
the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s
written request therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional amounts owed to
such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time
period required by law.



(b) At any time that any LIBOR Loan is affected by the circumstances described in Section
2.10(a)(ii), the Borrower may, and in the case of a LIBOR Loan affected by the circumstances
described in Section 2.10(a)(iii), the Borrower shall, either (x) if the affected LIBOR Loan is
then being made initially or pursuant to a conversion, cancel such Borrowing by giving the
Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower
was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or
(iii) or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business Days’
written notice to the Administrative Agent, require the affected Lender to convert such LIBOR Loan
into a Base Rate Loan, provided that, if more than one Lender is affected at any time, then
all affected Lenders must be treated the same pursuant to this Section 2.10(b).



(c) If any Lender determines that after the Effective Date the introduction of or any change
in any applicable law or governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or
comparable agency, will have the effect of increasing the amount of capital required or expected to
be maintained by such
Lender or any corporation controlling such Lender based on the existence of such Lender’s
Commitments hereunder or its obligations hereunder, then the Borrower agrees to pay to such Lender,
upon its written demand therefor, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as a result of such
increase of capital. In determining such additional amounts, each Lender will act reasonably and
in good faith and will use averaging and attribution methods which are reasonable, provided
that such Lender’s determination of compensation owing under this Section 2.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon
determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give
prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the
basis for calculation of such additional amounts.



(d) Notwithstanding anything in this Agreement to the contrary, the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder, issued in connection therewith or in implementation thereof, shall be deemed to be a
change after the Effective Date in a requirement of law or government rule, regulation or order,
regardless of the date enacted, adopted, issued or implemented (including for purposes of this
Section 2.10 and Section 3.06).


 


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2.11. Compensation. The Borrower agrees to compensate each Lender, upon its written request (which request shall set
forth in reasonable detail the basis for requesting such compensation), for all losses, expenses
and liabilities (including, without limitation, any loss, expense or liability incurred by reason
of the liquidation or reemployment of deposits or other funds required by such Lender to fund its
LIBOR Loans but excluding loss of anticipated profits) which such Lender may sustain: (i) if for
any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, LIBOR Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 2.10(a)); (ii) if any prepayment or repayment (including any
prepayment or repayment made pursuant to Section 5.01, Section 5.02 or as a result of an
acceleration of the Loans pursuant to Section 11) or conversion of any of its LIBOR Loans occurs on
a date which is not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its LIBOR Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower to repay
LIBOR Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any
election made pursuant to Section 2.10(b).



2.12. Change of Lending Office. Each Lender agrees that on the occurrence of any event giving rise to the operation of Section
2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans or Letters of
Credit affected by such event, provided that such designation is made on such terms that
such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of such Section.
Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Lender provided in Sections 2.10, 3.06 and 5.04.



2.13. Replacement of Lenders. (w) If any Lender becomes a Defaulting Lender, (x) upon the occurrence of any event giving rise
to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04
with respect to any Lender which results in such Lender charging to the Borrower increased costs in
excess of those being generally charged by the other Lenders (y) in the case of a refusal by a
Lender to consent to a proposed change, waiver, discharge or termination with respect to this
Agreement which has been approved by the Required Lenders as (and to the extent) provided in
Section 13.12(b) or (z) if the Borrower notifies a Lender (and the Administrative Agent) that such
Lender has been disqualified by a Gaming Authority or otherwise does not meet the suitability
standards of any Gaming Authority to remain a Lender hereunder, the Borrower shall have the right,
in accordance with Section 13.04(b), if no Default or Event of Default then exists or would exist
after giving effect to such replacement, to replace such Lender (the “Replaced Lender”)
with one or more other Eligible Transferees, none of whom shall constitute a Defaulting Lender at
the time of such replacement (collectively, the “Replacement Lender”) and each of which
shall be reasonably acceptable to the Administrative Agent or, in the case of a replacement as
provided in Section 13.12(b) where the consent of the respective Lender is required with respect to
less than all Tranches of its Loans or Commitments, to replace the Commitments and/or outstanding
Loans of such Lender in respect of each Tranche where the consent of such Lender would otherwise be
individually required, with identical Commitments and/or Loans of the respective Tranche provided
by the Replacement Lender; provided that:




(a) at the time of any replacement pursuant to this Section 2.13, the Replacement
Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section
13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the
Replacement Lender and/or the Replaced Lender (as may be agreed to at such time by and
among the Borrower, the Replacement Lender and the Replaced Lender)) pursuant to which the
Replacement Lender shall acquire all of the


 


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Commitments and outstanding Loans (or, in the
case of the replacement of only (a) the Revolving Loan Commitment, the Revolving Loan
Commitment and outstanding Revolving Loans and participations in Letter of Credit
Outstandings and/or (b) the outstanding Term Loans, the outstanding Term Loans with respect
to which such Lender is being replaced) of, and in each case (except for the replacement of
only the outstanding Term Loans of the respective Lender) all participations in Letters of
Credit by, the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans of the respective Replaced Lender
under each Tranche with respect to which such Replaced Lender is being replaced, (B) an
amount equal to all Unpaid Drawings (unless there are no Unpaid Drawings with respect to the
Tranche being replaced) that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such time and (C) an
amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but
only with respect to the relevant Tranche, in the case of the replacement of less than all
Tranches of Loans then held by the respective Replaced Lender) pursuant to Section 4.01, (y)
except in the case of the replacement of only the outstanding Term Loans of one or more
Tranches of a Replaced Lender, each Issuing Lender an amount equal to such Replaced Lender’s
RL Percentage of any Unpaid Drawing relating to Letters of Credit issued by such Issuing
Lender (which at such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender and (z) in the case of any replacement of
Revolving Loan Commitments, the Swingline Lender an amount equal to such Replaced Lender’s
RL Percentage of any Mandatory Borrowing to the extent such amount was not theretofore
funded by such Replaced Lender to the Swingline Lender; and




(b) all obligations of the Borrower then owing to the Replaced Lender (other than those
(a) specifically described in clause (a) above in respect of which the assignment purchase
price has been, or is concurrently being, paid, but including all amounts, if any, owing
under
Section 2.11 or (b) relating to any Tranche of Loans and/or Commitments of the
respective Replaced Lender which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Lender concurrently with such
replacement.



Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this
Section 2.13, the Administrative Agent shall be entitled (but not obligated) and is authorized
(which authorization is coupled with an interest) to execute an Assignment and Assumption Agreement
on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by
the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section
2.13 and Section 13.04. Upon the execution of the respective Assignment and Assumption Agreement,
the payment of amounts referred to in clauses (a) and (b) above, recordation of the assignment on
the Register by the Administrative Agent pursuant to Section 13.15 and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by
the Borrower, (x) the Replacement Lender shall become a Lender hereunder and, unless the respective
Replaced Lender continues to have outstanding Term Loans and/or a Revolving Loan Commitment
hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y)
except in the case of the replacement of only outstanding Term Loans pursuant to this Section 2.13,
the RL Percentages of the Lenders shall be automatically adjusted at such time to give effect to
such replacement.


 


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2.14. Incremental Credit Extensions. (a) The Borrower may at any time or from time to time after the Effective Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request one or more additional tranches of term loans (the “Incremental Term
Loans”); provided that (i) both at the time of any such request and upon the
effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall
have occurred and be continuing and at the time that any such Incremental Term Loan is made no
Default or Event of Default shall have occurred and be continuing or result therefrom, (ii) all
representations and warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such representations and warranties
had been made on the date such Incremental Term Loan is made (it being understood and agreed that
(x) any representation or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such specified date and (y) any
representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct in all respects on such date), (iii) the Borrower shall
have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the
respective Incremental Term Loans may be incurred without violating the terms of any other material
debt of Holdings and its Subsidiaries and (iv) (x) calculations are made by the Borrower with
respect to the Total Leverage Ratio, determined on a Pro Forma Basis as of the
last day of the Calculation Period most recently ended, and such calculations shall show a Total
Leverage Ratio that is, with respect to the incurrence of Incremental Term Loans prior to July 1,
2012, less than or equal to 0.50 less than the maximum Total Leverage Ratio set forth in Section
10.09 for the Fiscal Quarter then most recently ended and, with respect to the incurrence of
Incremental Terms Loans on or after July 1, 2012, less than or equal to 0.25 less than the maximum
Total Leverage Ratio set forth in Section 10.09 for the Fiscal Quarter then most recently ended and
(y) calculations are made by the Borrower with respect to the Interest Expense Coverage Ratio,
determined on a Pro Forma Basis as of the last day of the Calculation Period most
recently ended, and such calculations shall show an Interest Expense Coverage Ratio that is, with
respect to the incurrence of Incremental Term Loans prior to July 1, 2012, greater than or equal to
0.50 greater than the minimum Interest Expense Coverage Ratio set forth in Section 10.08 for the
Fiscal Quarter then most recently ended and, with respect to the incurrence of Incremental Term
Loans on or
after July 1, 2012, greater than or equal to 0.25 greater than the minimum Interest Expense
Coverage Ratio set forth in Section 10.08 for the Fiscal Quarter then most recently ended, (v) each
tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than
$5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all
remaining availability under the limit set forth in the next sentence) and (vi) the Borrower shall
have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized
Officer of the Borrower, (A) certifying to the best of such officer’s knowledge, compliance with
the requirements of preceding clauses (i) through (v), inclusive, and (B) containing the
calculations (in reasonable detail) required by the preceding clauses (iv) and (v).
Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans
shall not exceed $50,000,000. Each tranche of Incremental Term Loans shall rank pari
passu in right of payment and of security with the existing Loans and shall be treated
substantially the same as the existing Loans (in each case, including with respect to mandatory and
voluntary prepayments); provided, however, that (i) the interest rate applicable to
the Incremental Term Loans may differ from that applicable to the existing Loans, but if the
“effective yield” applicable to a given tranche of Incremental Term Loans (which, for such purposes
only, shall be deemed to take account of any interest rate benchmark floors, recurring fees and all
upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted
average life of such loans and (y) four years) payable to all Lenders providing such Incremental
Term Loans but exclusive of any arrangement, structuring or other fees payable in connection
therewith that are not shared with all Lenders providing such Incremental Term Loans) determined as
of the initial funding date for such Incremental Term Loans exceeds the “effective yield” then
applicable to any Loans or any other tranche of Incremental Term Loans (determined on the same
basis as provided in the preceding parenthetical, with the comparative determination to be made in
the reasonable judgment of the Administrative Agent consistent with generally accepted financial
practice) by more than 0.50% (the amount of such excess being the “Yield Differential”),
the Applicable Margin for such existing Loans (including, for the avoidance of doubt, Revolving
Loans) subject to a Yield Differential shall automatically be increased by the Yield Differential
effective upon the making of the applicable Incremental Term Loans, (ii) the final stated maturity
date for a given tranche of Incremental Term Loans may be later (but not sooner) than the latest
Maturity Date hereunder, (iii) the amortization requirements for a given tranche of Incremental
Term Loans may differ, so long as the average weighted life to maturity of such Incremental Term
Loans is no shorter than the average weighted life to maturity applicable to the then outstanding
Term Loans, and (iv) the other terms of a given tranche of Incremental Term Loans may differ if
reasonably satisfactory to the Administrative Agent.



 


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Each notice from the Borrower pursuant to this Section shall set forth the requested amount and
proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any
existing Lender or by any other bank or other financial institution (any such other bank or other
financial institution being called an “Additional Lender”), provided that the Administrative Agent
shall have consented to such Lender’s or Additional Lender’s making such Incremental Term Loans if
such consent would be required under Section 13.04(b) for an assignment of Loans to such Lender or
Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under
this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and,
as appropriate, the other Credit Documents, executed by Holdings, the Borrower, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of
this Section, provided, however, that no such amendment shall amend, modify or supplement any
matter described in the first or second proviso of Section 13.12(a) without the consent of the
requisite Lenders as provided in Section 13.12(a). The effectiveness of any Incremental Amendment
shall be subject to the satisfaction on the date thereof
(each, an “Incremental Facility Closing Date”) of each of the conditions set forth in
Section 7 (it being understood that all references to “the Borrowing Date” or similar language in
such Section 7 shall be deemed to refer to the effective date of such Incremental Amendment) and
such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of
the Incremental Term Loans only to finance a Permitted Acquisition or make Capital Expenditures and
to pay fees and expenses related to such uses and to the incurrence of the Incremental Loans. No
Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.



(b) This Section 2.14 shall supersede any provisions in Section 13.06 or 13.12 to the contrary.



SECTION 3. Letters of Credit.



3.01. Letters of Credit. (a) Subject to and upon the terms and conditions set forth herein, the Borrower may request
that an Issuing Lender issue, at any time and from time to time on and after the Initial Borrowing
Date and prior to the 60th day prior to the Revolving Loan Maturity Date, for the account of the
Borrower and for the benefit of (x) any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Obligations, an irrevocable standby letter
of credit, in a form customarily used by such Issuing Lender or in such other form as is reasonably
acceptable to such Issuing Lender, and (y) sellers of goods to the Borrower or any of its
Subsidiaries, an irrevocable trade letter of credit, in a form customarily used by such Issuing
Lender or in such other form as has been approved by such Issuing Lender (each such letter of
credit, a “Letter of Credit” and, collectively, the “Letters of Credit”). All
Letters of Credit shall be denominated in Dollars and shall be issued on a sight basis only.


 


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(b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Initial Borrowing Date and prior
to the 60th day prior to the Revolving Loan Maturity Date, following its receipt of the respective
Letter of Credit Request, issue for account of the Borrower, one or more Letters of Credit as are
permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default,
provided that no Issuing Lender shall be under any obligation to issue any Letter of Credit
of the types described above if at the time of such issuance:




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




(ii) such Issuing Lender shall have received from the Borrower, any other Credit Party
or the Required Lenders prior to the issuance of such Letter of Credit notice of the type
described in the second sentence of Section 3.03(b).



3.02. Maximum Letter of Credit Outstandings; Final Maturities. Notwithstanding anything to the contrary contained in this Agreement, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time would exceed either (x) $10,000,000 or (y) when added to
the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the
aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total
Revolving Loan Commitment at such time, and (ii) each Letter of Credit shall by its terms terminate
(x) in the case of standby Letters of Credit, on or before the earlier of (A) the date which occurs
12 months after the date of the issuance thereof (although any such standby Letter of Credit may be
extendible for successive periods of up to 12 months, but, in each case, not beyond the tenth
Business Day prior to the Revolving Loan Maturity Date, on terms acceptable to the Issuing Lender)
and (B) ten Business Days prior to the Revolving Loan Maturity Date, and (y) in the case of trade
Letters of Credit, on or before the earlier of (A) the date which occurs 180 days after the date of
issuance thereof and (B) 30 days prior to the Revolving Loan Maturity Date.



3.03. Letter of Credit Requests; Minimum Stated Amount. (a) Whenever the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender at least five
Business Days’ (or such shorter period as is acceptable to such Issuing Lender) written notice
thereof (including by way of facsimile). Each notice shall be in the form of Exhibit C,
appropriately completed (each, a “Letter of Credit Request”).



(b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 3.02. Unless the respective Issuing Lender
has received notice from the Borrower, any other Credit Party or the Required Lenders before it
issues a Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not
then satisfied, or that the issuance of such Letter of Credit would violate Section 3.02, then such
Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested
Letter of Credit for the account of the Borrower in accordance with such Issuing Lender’s usual and
customary practices.


 


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Upon the issuance of or modification or amendment to any standby Letter of
Credit, each Issuing Lender shall promptly notify the Borrower and the Administrative Agent, in
writing of such issuance, modification or amendment and such notice shall be accompanied by a copy
of such Letter of Credit or the respective modification or amendment thereto, as the case may be.
Promptly after receipt of such notice the Administrative Agent shall notify the Participants, in
writing, of such issuance, modification or amendment. On the first Business Day of each week, each
Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile)
report of the daily aggregate outstandings of trade Letters of Credit issued by such Issuing Lender
for the immediately preceding week. Notwithstanding anything to the contrary contained in this
Agreement, in the event that a Lender Default exists with respect to any RL Lender, no Issuing
Lender shall be required to issue, renew, extend or amend any Letter of Credit, unless such Issuing
Lender has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing
Lender’s risk with respect to each Defaulting Lender’s participation in Letters of Credit issued by
such Issuing Lender (which arrangements are hereby consented to by the Lenders), including by the
Borrower cash collateralizing each Defaulting Lender’s RL Percentage of the Letter of Credit
Outstandings with respect to such Letters of Credit (such arrangements, the “Letter of Credit
Back-Stop Arrangements”).


(c) The initial Stated Amount of each Letter of Credit shall not be less than $50,000 or such
lesser amount as is acceptable to the respective Issuing Lender.



3.04. Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing
Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in
its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such Participant’s RL
Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the
Lenders pursuant to Section 2.13 or 13.04(b), it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of
the assignor and assignee Lender, as the case may be.



(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any
obligation relative to the other Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit
issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any
other Credit Party, any Lender or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined
by a court of competent jurisdiction in a final and non-appealable decision).



(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by
it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant
to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall
promptly notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies,
prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a
payment under a Letter of Credit, such Participant shall make available to the respective Issuing
Lender


 


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in Dollars such Participant’s RL Percentage of the amount of such payment on such Business
Day in same day funds. If and to the extent such Participant shall not have so made its RL
Percentage of the amount of such payment available to respective Issuing Lender, such Participant
agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to such Issuing Lender at
the overnight Federal Funds Rate for the first three days and at the interest rate applicable to
Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any
Participant to make available to an Issuing Lender its RL Percentage of any payment under any
Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such Issuing Lender such
other Participant’s RL Percentage of any such payment.



(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it
has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender
shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate amount funded by all Participants) of
the principal amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.



(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant
copies of any standby Letter of Credit issued by it and such other documentation as may reasonably
be requested by such Participant.



(f) The obligations of the Participants to make payments to each Issuing Lender with respect
to Letters of Credit shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including, without limitation, any of the following circumstances:




(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;




(ii) the existence of any claim, setoff, defense or other right which Holdings or any
of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit,
any transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between Holdings or any
Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);




(iii) any draft, certificate or any other document presented under any 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;




(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or



(v) the occurrence of any Default or Event of Default.




 


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3.05. Agreement to Repay Letter of Credit Drawings. (a) The Borrower agrees to reimburse
each Issuing Lender, by making payment to the Administrative Agent in immediately available funds
at the Payment Office, for any payment or disbursement made by such Issuing Lender under any Letter
of Credit issued by it (each such amount, so paid until reimbursed by the Borrower, an “Unpaid
Drawing”), not later than one Business Day following receipt by the Borrower of notice of such
payment or disbursement (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 11.05 shall have occurred and be continuing, in which
case the Unpaid Drawing shall be due and payable immediately without presentment, demand, protest
or notice of any kind (all of which are hereby waived by the Borrower)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to 12:00
Noon (New York City time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Lender was reimbursed by the Borrower
therefor at a rate per annum equal to the Base Rate as in effect from time to time plus the
Applicable Margin as in effect from time to time for Revolving Loans that are maintained as Base
Rate Loans; provided, however, to the extent such amounts are not reimbursed prior
to 12:00 Noon (New York City time) on the third Business Day following the receipt by the Borrower
of notice of such payment or disbursement or following the occurrence of a Default or an Event of
Default under Section 11.05, interest shall thereafter accrue on the amounts so paid or disbursed
by such Issuing Lender (and until reimbursed by the Borrower) at a rate per annum equal to the Base
Rate as in effect from time to time plus the Applicable Margin for Revolving Loans that are
maintained as Base Rate Loans as in effect from time to time plus 2%, with such interest to
be payable on demand. Each Issuing Lender shall give the Borrower prompt written notice of each
Drawing under any Letter of Credit issued by it, provided that the failure to give any such
notice shall in no way affect, impair or diminish the Borrower’s obligations hereunder.



(b) The obligations of the Borrower under this Section 3.05 to reimburse each Issuing Lender
with respect to drafts, demands and other presentations for payment under Letters of Credit issued
by it (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which Holdings or any Subsidiary of Holdings may have or have had against any
Lender (including in its capacity as an Issuing Lender or as a Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform
to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse any Issuing Lender for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).



3.06. Increased Costs. If at any time after the Effective Date, the introduction of or any
change in any applicable law, rule, regulation, order, guideline or request or in the
interpretation or administration thereof by the NAIC or any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such Governmental Authority (whether or not
having the force of law), shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of credit issued by any Issuing Lender or
participated in by any Participant, or (ii) impose on any Issuing Lender or any Participant any
other conditions relating, directly or indirectly, to this Agreement or any Letter of Credit; and
the result of any of the foregoing is to increase the cost to any Issuing Lender or any Participant
of issuing, maintaining or participating in any Letter of Credit, or reduce the amount of any sum
received or receivable by any Issuing Lender or any Participant hereunder or reduce the rate of
return on its capital with respect to Letters of Credit (except for changes in the rate of tax on,
or determined by reference to, the net income or net profits of such Issuing


 


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Lender or such
Participant pursuant to the laws of the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any subdivision thereof or therein),
then, upon the delivery of the certificate referred to below to the Borrower by any Issuing Lender
or any Participant (a copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), the Borrower agrees to pay to such Issuing Lender or such
Participant such additional amount or amounts as will compensate such Issuing Lender or such
Participant for such increased cost or reduction in the amount receivable or reduction on the rate
of return on its capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable to it pursuant to this Section 3.06, will give prompt written
notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower
by such Issuing Lender or such Participant (a copy of which certificate shall be sent by such
Issuing Lender or such Participant to the Administrative Agent), setting forth in reasonable detail
the basis for the calculation of such additional amount or amounts necessary to compensate such
Issuing Lender or such Participant. The certificate required to be delivered pursuant to this
Section 3.06 shall, absent manifest error, be final and conclusive and binding on the Borrower.



SECTION 4. Commitment Commission; Fees; Reductions of Commitment.



4.01. Fees. (a) The Borrower agrees to pay to the Administrative Agent for distribution to each
Non-Defaulting RL Lender a commitment commission (the “Commitment Commission”) for the
period from and including the Effective Date to and including the Revolving Loan Maturity Date (or
such earlier date on which the Total Revolving Loan Commitment has been terminated) computed at a
rate per annum equal to 1/2 of 1% of the Unutilized Revolving Loan Commitment of such Non-Defaulting
RL Lender as in effect from time to time. Accrued Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total Revolving
Loan Commitment is terminated.



(b) The Borrower agrees to pay to the Administrative Agent for distribution to each RL Lender
(based on each such RL Lender’s respective RL Percentage) a fee in respect of each Letter of Credit
(the “Letter of Credit Fee”) for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Margin as in effect from time to time during
such period with respect to Revolving Loans that are maintained as LIBOR Loans on the daily Stated
Amount of each such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.



(c) The Borrower agrees to pay to each Issuing Lender, for its own account, a facing fee in
respect of each Letter of Credit issued by it (the “Facing Fee”) for the period from and
including the date of issuance of such Letter of Credit to and including the date of termination or
expiration of such Letter of Credit, computed at a rate per annum equal to 1/4 of 1% on the daily
Stated Amount of such Letter of Credit, provided that in any event the minimum amount of
Facing Fees payable in any twelve-month period for each Letter of Credit shall be not less than
$500, it being agreed that, on the day of issuance of any Letter of Credit and on each anniversary
thereof prior to the termination or expiration of such Letter of Credit, if $500 will exceed the
amount of Facing Fees that will accrue with respect to such Letter of Credit for the immediately
succeeding twelve-month period, the full $500 shall be payable on the date of issuance of such
Letter of Credit and on each such anniversary thereof. Except as otherwise provided in the proviso
to the immediately preceding sentence, accrued Facing Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day on or after the termination of the
Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.


 


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(d) The Borrower agrees to pay to each Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to, any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable expenses which such Issuing
Lender is generally imposing in connection with such occurrence with respect to letters of credit.



(e) The Borrower agrees to pay to the Administrative Agent such fees as may be agreed to in
writing from time to time by Holdings or any of its Subsidiaries and the Administrative Agent.



(f) At the time of the effectiveness of any Repricing Event that is consummated prior to the
first anniversary of the Effective Date, the Borrower agrees to pay to the Administrative Agent,
for the ratable account of each Lender with Term Loans that are either repaid, converted or
subjected to a pricing reduction in connection with such Repricing Event (including each Lender
that withholds its consent to such Repricing Event and is replaced as a Replaced Lender under
Section 2.13), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Event described
in clause (a) of the definition thereof, the aggregate principal amount of all Term Loans prepaid
(or converted) in connection with such Repricing Event and (y) in the case of a Repricing Event
described in clause (b) of the
definition thereof, the aggregate principal amount of all Term Loans outstanding on such date
that are subject to an effective pricing reduction pursuant to such Repricing Event. Such fees
shall be earned, due and payable upon the date of the effectiveness of such Repricing Event.



4.02. Voluntary Termination of Unutilized Revolving Loan Commitments. (a) Upon at least
three Business Days’ prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall
have the right, at any time or from time to time, without premium or penalty to terminate the Total
Unutilized Revolving Loan Commitment in whole, or reduce it in part, pursuant to this Section
4.02(a), in an integral multiple of $1,000,000 in the case of partial reductions to the Total
Unutilized Revolving Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each RL Lender.



(b) In the event of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, subject to obtaining the consents required by Section 13.12(b), upon five Business Days’
prior written notice to the Administrative Agent at the Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), to terminate the entire
Revolving Loan Commitment of such Lender, so long as all Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Lender (including all amounts, if any, owing
pursuant to Section 2.11 but excluding the payment of amounts owing in respect of Loans of any
Tranche maintained by such Lender, if such Loans are not being repaid pursuant to Section 13.12(b))
are repaid concurrently with the effectiveness of such termination (at which time Schedule 1.01(a)
shall be deemed modified to reflect such changed amounts) and such Lender’s RL Percentage of all
outstanding Letters of Credit is cash collateralized in a manner satisfactory to the Administrative
Agent and the respective Issuing Lenders, and at such time, unless the respective Lender continues
to have outstanding Term Loans hereunder, such Lender shall no longer constitute a “Lender” for
purposes of this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which
shall survive as to such repaid Lender.



4.03. Mandatory Reduction of Commitments. (a) The Total Commitment (and the Commitment of
each Lender) shall terminate in its entirety on March 1, 2011, unless the Initial Borrowing Date
has occurred on or prior to such date.


 


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(b) In addition to any other mandatory commitment reductions pursuant to this Section 4.03,
the Total Term Loan Commitment (and the Term Loan Commitment of each Lender) shall terminate in its
entirety on the Initial Borrowing Date (after giving effect to the incurrence of Term Loans on such
date).



(c) In addition to any other mandatory commitment reductions pursuant to this Section 4.03,
the Total Revolving Loan Commitment shall terminate in its entirety upon the earlier of (i) the
Revolving Loan Maturity Date and (ii) unless the Required Lenders otherwise agree in writing, the
date on which a Change of Control occurs.



(d) In addition to any other mandatory commitment reductions pursuant to this Section 4.03,
the Total Revolving Loan Commitment shall be permanently reduced from time to time to the extent
required by Section 5.02(h).



(e) Each reduction to, or termination of, the Total Revolving Loan Commitment pursuant to this
Section 4.03 shall be applied to proportionately reduce or terminate, as the case may be, the
Revolving Loan Commitment of each Lender with a Revolving Loan Commitment.




SECTION 5. Prepayments; Payments; Taxes.



5.01. Voluntary Prepayments. (a) The Borrower shall have the right to prepay the Loans,
without premium or penalty (except as set forth in clause (vi) of this Section 5.01(a)), in whole
or in part at any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York City time) at the Notice
Office (x) at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Base Rate Loans (or same day notice in the case of a
prepayment of Swingline Loans) and (y) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay LIBOR Loans, which notice
(in each case) shall specify whether Term Loans, Revolving Loans or Swingline Loans shall be
prepaid, the amount of such prepayment and the Types of Loans to be prepaid and, in the case of
LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made, and
which notice the Administrative Agent shall, except in the case of a prepayment of Swingline Loans,
promptly transmit to each of the Lenders; (ii) (x) each partial prepayment of Term Loans pursuant
to this Section 5.01(a) shall be in an aggregate principal amount of at least $1,000,000 (or such
lesser amount as is acceptable to the Administrative Agent in any given case), (y) each partial
prepayment of Revolving Loans pursuant to this Section 5.01(a) shall be in an aggregate principal
amount of at least $250,000 (or such lesser amount as is acceptable to the Administrative Agent)
and (z) each partial prepayment of Swingline Loans pursuant to this Section 5.01(a) shall be in an
aggregate principal amount of at least $100,000 (or such lesser amount as is acceptable to the
Administrative Agent in any given case), provided that if any partial prepayment of LIBOR
Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of LIBOR Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of LIBOR Loans (and same shall
automatically be converted into a Borrowing of Base Rate Loans) and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or effect; (iii) each
prepayment pursuant to this Section 5.01(a) in respect of any Loans made pursuant to a Borrowing
shall be applied pro rata among such Loans, provided that at the Borrower’s
election in connection with any prepayment of Revolving Loans pursuant to this Section 5.01(a),
such prepayment shall not, so long as no Default or Event of Default then exists, be applied to any
Revolving Loan of a Defaulting Lender; (iv) each voluntary prepayment of Term Loans pursuant to
this Section 5.01(a) shall be applied to the Term Loans on a pro rata basis; (v)
each prepayment of Term Loans pursuant to this Section 5.01(a) shall reduce the then remaining
Scheduled Repayments on a pro rata basis (based upon the then remaining principal
amount of each such Scheduled Repayment after giving effect to all prior reductions thereto); and
(vi) any prepayment of Term Loans made prior to the first anniversary date of the Effective Date in
connection with a Repricing Event shall be accompanied by the payment of the fee described in
Section 4.01(f).


 


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(b) In the event of (I) certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b) or (II) if a Lender has been
disqualified by a Gaming Authority or otherwise does not meet the suitability standards of any
Gaming Authority to remain a Lender hereunder, and in the case of this clause (II), so long as no
Default or Event of Default that exists or would exist after giving effect to the respective
repayment and the Borrower has determined in good faith that it is unable to replace the respective
lender with a Replacement Lender in accordance with Section 2.13 and the respective repayment is
required to be made by the respective Gaming Authority, the Borrower may, upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), repay all Loans of such Lender (including all amounts, if any,
owing pursuant to Section 2.11), together with accrued and unpaid interest, Fees and all other
amounts then owing to such Lender (or owing to such Lender with respect to each Tranche which gave
rise to the need to obtain such Lender’s individual consent) in accordance with, and subject to the
requirements of, said Section 13.12(b), so long as (A) in the case of the repayment of Revolving
Loans of any Lender pursuant to this clause (b), (x) the Revolving Loan Commitment of such Lender
is terminated concurrently with such repayment pursuant to Section 4.02(b) (at which time Schedule
1.01(a) shall be deemed modified to reflect the changed Revolving Loan Commitments) and (y) such
Lender’s RL Percentage of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective Issuing Lenders and (B) the consents,
if any, required by Section 13.12(b) in connection with the repayment pursuant to this clause (b)
shall have been obtained. Each prepayment of Term Loans pursuant to this Section 5.01(b) shall
reduce the then remaining Scheduled Repayments on a pro rata basis (based upon the
then remaining principal amount of each such Scheduled Repayment after giving effect to all prior
reductions thereto) in inverse order of maturity.



5.02. Mandatory Repayments. (a) On any day on which the sum of (I) the aggregate
outstanding principal amount of all Revolving Loans (after giving effect to all other repayments
thereof on such date), (II) the aggregate outstanding principal amount of all Swingline Loans
(after giving effect to all other repayments thereof on such date) and (III) the aggregate amount
of all Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the
Borrower shall prepay on such day the principal of Swingline Loans and, after all Swingline Loans
have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans in an amount
equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans
and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the
Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such
excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash
and/or Cash Equivalents to be held as security for all Obligations of the Borrower to the Issuing
Lenders and the Lenders hereunder in a cash collateral account to be established by the
Administrative Agent.



(b) In addition to any other mandatory repayments pursuant to this Section 5.02, (x) on each
Quarterly Payment Date, beginning with the Quarterly Payment Date occurring in June, 2011, the
Borrower shall be required to repay that principal amount of Term Loans, to the extent then
outstanding, as is equal to 1/4 of 1% of the aggregate initial principal amounts of all Term Loans
theretofore borrowed by the Borrower pursuant to Section 2.01 of this Agreement, and (y) on the
Term Loan Maturity Date (the Term Loan Maturity Date and each Quarterly Payment Date described in
preceding clause (x), each a “Scheduled Repayment Date”), the Borrower shall be required to
repay in full the entire principal amount of Term Loans then outstanding (with each such repayment
pursuant to this Section 5.02(b), as the same may be reduced as provided in Section 5.01(a) or
5.02(h), a “Scheduled Repayment”).


 


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(c) In addition to any other mandatory repayments or commitment reductions pursuant to this
Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any capital contribution or any sale or issuance of
its Equity Interests (other than (i) issuances of Equity Interests to Holdings or any Subsidiary of
Holdings by any Subsidiary of Holdings, (ii) any capital contributions to any Subsidiary of
Holdings made by Holdings or any Subsidiary of Holdings, (iii) cash proceeds intended to be used
within ninety days of the date of receipt of such cash proceeds to make payments owing in
connection with the consummation of one or more Permitted Acquisitions; provided that to the extent such proceeds are not actually
so used within 90 days after the date of such receipt, on such 90th day after the date of the
receipt thereof any cash proceeds not so applied shall be applied as required by this Section
5.02(c) (without regard to the exclusion contained in this clause (iii)), and (iv) sales or
issuances of Holdings Common Stock to employees, officers and/or directors of Holdings and its
Subsidiaries (including as a result of the exercise of any options with respect thereto) in an
aggregate amount not to exceed $2,000,000 in any Fiscal Year of Holdings), an amount equal to 100%
of the Net Cash Proceeds of such capital contribution or sale or issuance of Equity Interests shall
be applied on such date as a mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 5.02(h) and (i), provided that, any cash proceeds which would otherwise be
required to be applied pursuant to this Section 5.02(c) shall not be required to be so applied on
such date if, after giving effect to any use of such cash proceeds to make voluntary prepayments of
the Loans on such date pursuant to Section 5.01, the Total Leverage Ratio as calculated on such
date is less than or equal to 2.50:1:00.



(d) In addition to any other mandatory repayments or commitment reductions pursuant to this
Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any issuance or incurrence by Holdings or any of its
Subsidiaries of Indebtedness (other than Indebtedness for borrowed money permitted to be incurred
pursuant to Section 10.04), an amount equal to 100% of the Net Cash Proceeds of the respective
incurrence of Indebtedness shall be applied on such date as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 5.02(h) and (i).



(e) In addition to any other mandatory repayments or commitment reductions pursuant to this
Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any Asset Sale, an amount equal to 100% of the Net
Sale Proceeds therefrom shall be applied on such date as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 5.02(h) and (i); provided,
however, such Net Sale Proceeds shall not be required to be so applied on such date so long
as no Default or Event of Default then exists and such Net Sale Proceeds shall be used to purchase
assets (other than inventory and working capital) used or to be used in the businesses permitted
pursuant to Section 10.15 within 180 days following the date of such Asset Sale, and provided
further, that if all or any portion of such Net Sale Proceeds not required to be so applied as
provided above in this Section 5.02(e) are not so reinvested within such 180-day period (or such
earlier date, if any, as Holdings or the relevant Subsidiary determines not to reinvest the Net
Sale Proceeds from such Asset Sale as set forth above), such remaining portion shall be applied on
the last day of such period (or such earlier date, as the case may be) as provided above in this
Section 5.02(e) without regard to the preceding proviso.




 


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(f) In addition to any other mandatory repayments or commitment reductions pursuant to this
Section 5.02, on each Excess Cash Payment Date, an amount equal to the Applicable Excess Cash Flow
Percentage of the Excess Cash Flow for the related Excess Cash Payment Period shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the requirements
of Sections
5.02(h) and (i); provided that, repayments of principal of Loans made as a voluntary
prepayment pursuant to Section 5.01 with internally generated funds (but in the case of a voluntary
prepayment of Revolving Loans or Swingline Loans, only to the extent accompanied by a voluntary
reduction to the Total Revolving Loan Commitment in an amount equal to such prepayment) during the
applicable Excess Cash Flow Payment Period or, at the election of the Borrower, thereafter and on
or prior to the respective Excess Cash Payment Date (although any voluntary prepayment which is
used to reduce the amount of the required repayment pursuant to this Section 5.02(f) on a given
Excess Cash Payment Date shall not again be used to reduce the amount of any repayment or
commitment reduction pursuant to this Section 5.02(f) on a subsequent Excess Cash Payment Date)
shall reduce on a dollar-for-dollar basis the amount of such mandatory repayment and/or commitment reduction otherwise
required on the applicable Excess Cash Flow Payment Date pursuant to this Section 5.02(f).



(g) In addition to any other mandatory repayments or commitment reductions pursuant to this
Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any Recovery Event (other than Recovery Events where
the Net Cash Proceeds therefrom do not exceed $500,000), an amount equal to 100% of the Net Cash
Proceeds from such Recovery Event shall be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 5.02(h) and (i);
provided, however, such Net Cash Proceeds shall not be required to be so applied on
such date so long as no Default or Event of Default then exists and Holdings has delivered a
certificate to the Administrative Agent on such date stating that such Net Cash Proceeds shall be
used to replace or restore any properties or assets in respect of which such Net Cash Proceeds were
paid not more than 180 days following the date of the receipt of such Net Cash Proceeds (which
certificate shall set forth the estimates of the Net Cash Proceeds to be so expended), and
provided further, that if all or any portion of such Net Cash Proceeds not required to be
so applied pursuant to the preceding proviso are not so used by the 180th day after the date of the
receipt of such Net Cash Proceeds (or such earlier date, if any, as Holdings or the relevant
Subsidiary determines not to reinvest the Net Cash Proceeds relating to such Recovery Event as set
forth above), such remaining portion shall be applied on the last day of such period (or such
earlier date, as the case may be) as provided above in this Section 5.02(g) without regard to the
immediately preceding proviso.



(h) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e), (f) and (g) in
accordance with this Section 5.02(h) shall be applied to repay the outstanding principal amount of
Term Loans. The amount of each principal repayment of Term Loans made as required by Sections
5.02(c), (d), (e), (f) and (g) shall be applied to reduce the then remaining Scheduled Repayments
on a pro rata basis (based upon the then remaining principal amounts of such
Scheduled Repayments after giving effect to all prior reductions thereto).



(i) With respect to each repayment of Loans required by this Section 5.02, the Borrower may
designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of
LIBOR Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which such
LIBOR Loans were made, provided that: (i) repayments of LIBOR Loans pursuant to this
Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all
LIBOR Loans of the respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) if any
repayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding LIBOR
Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, such Borrowing shall be automatically converted into a Borrowing of Base Rate
Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied
pro rata among such Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.


 


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(j) In addition to any other mandatory repayments pursuant to this Section 5.02, (i) all then
outstanding Loans of a respective Tranche (other than Swingline Loans) shall be repaid in full on
the respective Maturity Date for such Tranche of Loans, (ii) outstanding Swingline Loans shall be
repaid in full on the earlier of (x) the tenth Business Day following the date of the incurrence of
such Swingline Loans and (y) the Swingline Expiry Date and (iii) unless the Required Lenders
otherwise agree in writing, all then outstanding Loans shall be repaid in full on the date on which
a Change of Control occurs.



(k) If any RL Lender becomes a Defaulting Lender at any time that any Letter of Credit issued
by any Issuing Lender is outstanding, the Borrower shall enter into the applicable Letter of Credit
Back-Stop Arrangements with such Issuing Lender no later than 10 Business Days after the date such
RL Lender becomes a Defaulting Lender.



5.03. Method and Place of Payment. Except as otherwise specifically provided herein, all
payments under this Agreement and under any Note shall be made to the Administrative Agent for the
account of the Lender or Lenders entitled thereto not later than 12:00 Noon (New York City time) on
the date when due and shall be made in Dollars in immediately available funds at the Payment
Office. Whenever any payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.



5.04. Net Payments. (a) All payments made by the Borrower hereunder and under any Note
will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b),
all such payments will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, (i) any tax imposed on or measured by the net income or net profits
of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction
in which the principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein and (ii) any United States federal withholding tax that would not
have been imposed but for a failure by such recipient (or any financial institution through which
any payment is made to such recipient) to comply with the applicable requirements of FATCA) and all
interest, penalties or similar liabilities with respect to such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as “Taxes”). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Lender,
upon the written request of such Lender, for taxes imposed on or measured by the net income or net
profits of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized
or in which the principal office or applicable lending office of such Lender is located or under
the laws of any political subdivision or taxing authority of any such jurisdiction in which such
Lender is organized or in which the principal office or applicable lending office of such Lender is
located and for any withholding of taxes as such Lender shall determine are payable by, or withheld
from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to
the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant
to this sentence. The Borrower will furnish to the Administrative Agent within 45 days after the
date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by such Borrower. The Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied
or imposed and paid by such Lender.


 


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(b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) (each, a “Foreign Lender”) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date
or, in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or
13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN
(with respect to a complete exemption under an income tax treaty) (or successor forms) certifying
to such Lender’s entitlement as of such date to a complete exemption from United States withholding
tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such certificate, a “Section
5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Foreign Lender shall, in the case of any payment made after December 31,
2012 in respect of any Loan, Letters of Credit, Note or Obligation that was not treated as
outstanding for purposes of FATCA on March 18, 2012, provide any forms, documentation, or other
information as shall be prescribed by the IRS to demonstrate that the relevant Lender has complied
with the applicable reporting requirements of FATCA (including, without limitation, those contained
in Sections 1471(b) or 1472(b) of the Code, as applicable), so that such payments made to such
Lender hereunder would not be subject to U.S. federal withholding taxes imposed by FACTA. In
addition, each Lender agrees that from time to time after the Effective Date, when a lapse in time
or change in circumstances renders the previous certification obsolete or inaccurate in any
material respect, such Lender will deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or such Lender shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate, in which case such
Lender shall not be required to deliver any such Form or Certificate pursuant to this Section
5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), but subject to
Section 13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by
the United States (or any political subdivision or taxing authority thereof or therein) from
interest, Fees or other amounts payable hereunder for the account of any Lender which is not a
United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Lender has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction or withholding and
(y) the Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made
to a Lender in respect of income or similar taxes imposed by the United States if (I) such Lender
has not provided to the Borrower the Internal Revenue Service Forms required to be provided to the
Borrower pursuant to this Section 5.04(b) or (II) in the case of a payment, other than interest, to
a Lender described in clause (ii) above, to the extent that such forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section
13.04(b), the Borrower agrees to pay any additional amounts and to indemnify each Lender in the
manner set forth in Section 5.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by it as described in
the immediately preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or
in the interpretation thereof, relating to the deducting or withholding of such Taxes.


 


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SECTION 6. Conditions Precedent to Credit Events on the Initial Borrowing Date. The
obligation of each Lender to make Loans, and the obligation of each Issuing Lender to issue Letters
of Credit, on the Initial Borrowing Date, is subject at the time of the making of such Loans or the
issuance of such Letters of Credit to the satisfaction of the following conditions:



6.01. Effective Date; Notes. On or prior to the Initial Borrowing Date, (i) the Effective
Date shall have occurred as provided in Section 13.10 and (ii) there shall have been delivered to
the Administrative Agent for the account of each of the Lenders that has requested same the
appropriate Term Note and/or Revolving Note executed by the Borrower and, if requested by the
Swingline Lender, the Swingline Note executed by the Borrower, in each case in the amount, maturity
and as otherwise provided herein.



6.02. Officer’s Certificate. On the Initial Borrowing Date, the Administrative Agent shall
have received a certificate, dated the Initial Borrowing Date and signed on behalf of the Borrower
by the Chairman of the Board, the Chief Executive Officer, the President or any Vice President of
the Borrower, certifying on behalf of the Borrower that all of the conditions in Sections 6.06
through 6.08, inclusive, and 7.01 have been satisfied on such date.



6.03. Opinions of Counsel. On the Initial Borrowing Date, the Administrative Agent shall
have received (i) from Morrison & Foerster LLP, special counsel to the Credit Parties, an opinion
addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the
Initial Borrowing Date covering the matters set forth in Exhibit E-1, and (ii) from Brownstein
Hyatt Farber Schreck, special Nevada counsel to Western Money Systems, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing
Date covering the matters set forth in Exhibit E-2.



6.04. Company Documents; Proceedings; etc. (a) On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate from each Credit Party, dated the Initial
Borrowing Date, signed by the Chairman of the Board, the Chief Executive Officer, the President or
any Vice President of such Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, in the form of Exhibit F with appropriate insertions, together with
copies of the certificate or articles of incorporation and by-laws (or other equivalent
organizational documents), as applicable, of such Credit Party and the resolutions of such Credit
Party referred to in such certificate, and each of the foregoing shall be in form and substance
reasonably acceptable to the Administrative Agent.



(b) On the Initial Borrowing Date, all Company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement and the other
Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received all information and copies of all documents and
papers, including records of Company proceedings, governmental approvals, good standing
certificates and bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and papers where appropriate
to be certified by proper Company or Governmental Authorities.


 


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6.05. Existing Indebtedness Agreements. On or prior to the Initial Borrowing Date, there
shall have been delivered to the Administrative Agent true and correct copies of all agreements
evidencing or relating to Indebtedness of Holdings or any of its Subsidiaries which is to remain
outstanding after giving effect to the Transaction (the “Existing Indebtedness Agreements”)
certified as such by an Authorized Officer of Holdings:



6.06. Consummation of the Refinancing. (a) On or prior to the Initial Borrowing Date and
concurrently with the incurrence of Loans, all Indebtedness of Holdings and its Subsidiaries under
the Existing Credit Agreement and the Senior Subordinated Notes shall have been repaid or defeased
in full, together with all fees and other amounts owing thereon, all commitments under the Existing
Credit Agreement shall have been terminated and all letters of credit issued pursuant to the
Existing Credit Agreement shall have been terminated, cash collateralized in accordance with the
payoff letter or a back-to-back Letter of Credit shall be issued with respect thereto pursuant to
this Agreement. If the Senior Subordinated Notes are defeased in full on the Initial Borrowing
Date, the Administrative Agent shall have received (x) satisfactory evidence that on the Initial
Borrowing Date, the Borrower shall concurrently with receipt by the Trustee of a portion of the
initial extension of credit occurring on the Initial Borrowing Date cause all of the outstanding
Senior Subordinated Notes to be called for redemption by delivering or causing to be delivered an
irrevocable “notice of redemption” (the “Notice of Redemption”) to the Trustee pursuant to,
and in accordance with the requirements of, the Existing Senior Subordinated Note Indenture, which
Notice of Redemption shall specify that the redemption date shall be no later than the 30th day
following the date of such Notice of Redemption and (y) satisfactory evidence that on the Initial
Borrowing Date (and concurrently with the initial extension of credit occurring on the Initial
Borrowing Date), the Borrower (A) shall have deposited, or cause to be deposited, with the Trustee
sufficient funds to satisfy in full such redemption obligation pursuant to, and in accordance with,
the Existing Senior Subordinated Indenture and (B) not in limitation but in furtherance of the
foregoing, shall have taken all such actions to deliver or cause to be delivered to the Trustee
such documents as shall be necessary for the satisfaction and discharge of the Senior Subordinated
Notes and the Existing Senior Subordinated Note Indenture pursuant to and in accordance with its
terms.



(b) On the Initial Borrowing Date and concurrently with the incurrence of Loans on such date,
all security interests in respect of, and Liens securing, the Indebtedness under the Existing
Credit Agreement created pursuant to the security documentation relating to the Existing Credit
Agreement shall have been terminated and released, and the payoff letter in connection with the
Existing Credit Agreement shall provide for delivery to the Administrative Agent of all such
releases as may have been requested by the Administrative Agent, which releases shall be in form
and substance satisfactory to the Administrative Agent. Without limiting the foregoing, the payoff
letter shall provide for delivery to the Administrative Agent (i) proper termination statements
(Form UCC-3 or the appropriate equivalent) for filing under the UCC or equivalent statute or
regulation of each jurisdiction where a financing statement or application for registration (Form
UCC-1 or the appropriate equivalent) was filed with respect to Holdings or any of its Subsidiaries
in connection with the security interests created with respect to the Existing Credit Agreement (or
the payoff letter shall authorize the Administrative Agent to prepare and file such termination
statements), and (ii) terminations or reassignments of any security interest in, or Lien on, any
patents, trademarks, copyrights, or similar interests of Holdings or any of its Subsidiaries on
which filings have been made, in each case, to secure the obligations under the Existing Credit
Agreement, all of which shall be in form and substance reasonably satisfactory to the
Administrative Agent.



(c) On the Initial Borrowing Date and after giving effect to the consummation of the
Transaction, Holdings and its Subsidiaries shall have no outstanding Preferred Equity or
Indebtedness, except for (i) Indebtedness pursuant to or in respect of the Credit Documents and
(ii) certain other indebtedness existing on the Effective Date as listed on Schedule 8.21 (with the
Indebtedness described in this sub-clause (ii) being herein called the “Existing
Indebtedness”). On and as of the Initial Borrowing Date, all of the Existing Indebtedness
shall remain outstanding after giving effect to the Transaction without any breach, required
repayment, required offer to purchase, default, event of default or termination rights existing
thereunder or arising as a result of the Transaction.


 


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(d) The Administrative Agent shall have received evidence in form, scope and substance
reasonably satisfactory to it that the matters set forth in this Section 6.06 have been satisfied
on the Initial Borrowing Date.



6.07. Adverse Change, Approvals. (a) Since December 31, 2009 (other than as previously
disclosed by Holdings in that certain form 8-K filed with the SEC on July 15, 2010 and that certain
form 8-K filed with the SEC on November 3, 2010), nothing shall have occurred (and neither the
Administrative Agent nor any Lender shall have become aware of any facts or conditions not
previously known) which the Administrative Agent or the Required Lenders shall determine has had,
or could reasonably be expected to have, (i) a Material Adverse Effect or (ii) a material adverse
effect on the Transaction.



(b) On or prior to the Initial Borrowing Date, all necessary governmental (domestic and
foreign) and material third party approvals and/or consents in connection with the Transaction, the
other transactions contemplated hereby and the granting of Liens under the Credit Documents shall
have been obtained and remain in effect, and all applicable waiting periods with respect thereto
shall have expired without any action being taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the consummation of the Transaction or the
other transactions contemplated by the Documents or otherwise referred to herein or therein. On
the Initial Borrowing Date, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the Transaction or the other
transactions contemplated by the Documents.



6.08. Litigation. On the Initial Borrowing Date, there shall be no actions, suits or
proceedings pending or threatened (i) with respect to the Transaction, this Agreement or any other
Document, or (ii) which the Administrative Agent or the Required Lenders shall determine has had,
or could reasonably be expected to have, a Material Adverse Effect.



6.09. Subsidiaries Guaranty. On the Initial Borrowing Date, each Domestic Subsidiary of
Holdings (other than the Borrower) shall have duly authorized, executed and delivered the
Subsidiaries Guaranty in the form of Exhibit G (as amended, modified and/or supplemented from time
to time, the “Subsidiaries Guaranty”), and the Subsidiaries Guaranty shall be in full force
and effect.



6.10. Pledge Agreement. On the Initial Borrowing Date, each Credit Party shall have duly
authorized, executed and delivered the Pledge Agreement in the form of Exhibit H (as amended,
modified, restated and/or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Collateral Agent, as
Pledgee thereunder, all of the Pledge Agreement Collateral, if any, referred to therein and then
owned by such Credit Party, (x) endorsed in blank in the case of promissory notes constituting
Pledge Agreement Collateral and (y) together with executed and undated endorsements for transfer in
the case of Equity Interests constituting certificated Pledge Agreement Collateral, along with
evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the Pledge Agreement have
been taken (other than actions necessary to perfect pledged equity interests issued by a Foreign
Subsidiary to a Credit Party under the law of a jurisdiction outside the United States), and the
Pledge Agreement shall be in full force and effect.


 


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6.11. Security Agreement. On the Initial Borrowing Date, each Credit Party shall have duly
authorized, executed and delivered the Security Agreement in the form of Exhibit I (as amended,
modified, restated and/or supplemented from time to time, the “Security Agreement”)
covering all of such Credit Party’s Security Agreement Collateral, together with:




(i) proper financing statements (Form UCC-1 or the equivalent) for filing under the UCC
or other appropriate filing offices of each jurisdiction as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the security interests
purported to be created by the Security Agreement;




(ii) certified copies of requests for information or copies (Form UCC-11), or
equivalent reports as of a recent date, listing all effective financing statements that name
Holdings or any of its Domestic Subsidiaries as debtor and that are filed in the
jurisdictions referred to in clause (i) above, together with copies of such other financing
statements that name Holdings or any of its Domestic Subsidiaries as debtor (none of which
shall cover any of the Collateral except (x) to the extent evidencing Permitted Liens or (y)
those in respect of which the Collateral Agent shall have received a payoff letter providing
for the termination thereof or termination statements (Form UCC-3) or such other termination
statements as shall be required by local law fully executed for filing);




(iii) evidence of the completion of all other recordings and filings of, or with
respect to, the Security Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable, to perfect the security interests intended to be created by the
Security Agreement; and




(iv) evidence that all other actions necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect and protect the security interests purported to be
created by the Security Agreement have been taken, or will be taken, on the Initial
Borrowing Date, and the Security Agreement shall be in full force and effect.



6.12. Financial Statements; Pro Forma Balance Sheet; Projections. On or prior to the
Initial Borrowing Date, the Administrative Agent shall have received true and correct copies of the
historical financial statements, the pro forma financial statements and the
Projections referred to in Sections 8.05(a) and (d), which historical financial statements,
pro forma financial statements and Projections shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Lenders.



6.13. Solvency Certificate; Insurance Certificates, etc. On the Initial Borrowing Date, the Administrative Agent shall have received:




(i) a solvency certificate from the chief financial officer of Holdings in the form of
Exhibit J hereto; and




(ii) certificates of insurance complying with the requirements of Section 9.03 for the
business and properties of Holdings and its Subsidiaries (other than local insurance
policies maintained by Foreign Subsidiaries of the Borrower that are not material), in form
and substance reasonably satisfactory to the Administrative Agent and naming the Collateral
Agent as an additional insured and/or as loss payee, and stating that such insurance shall
not be canceled or materially revised without at least 10 days’ prior written notice in the
case of nonpayment of premiums and in all other cases 30 days’ prior written notice by the
insurer to the Collateral Agent.


 


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6.14. Fees, etc. On the Initial Borrowing Date, the Borrower shall have paid to the
Administrative Agent (and its relevant affiliates) and each Lender all costs, fees and expenses
(including, without limitation, reasonable and documented legal fees and expenses) and other
compensation contemplated hereby payable to the Administrative Agent or such Lender to the extent
then due.



In determining the satisfaction of the conditions specified in this Section 6, (x) to the
extent any item is required to be satisfactory to any Lender, such item shall be deemed
satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the
occurrence of the Initial Borrowing Date that the respective item or matter does not meet its
satisfaction and (y) in determining whether any Lender is aware of any fact, condition or event
that has occurred and which would reasonably be expected to have a Material Adverse Effect or a
material adverse effect of the type described in Section 6.07, each Lender which has not notified
the Administrative Agent in writing prior to the occurrence of the Initial Borrowing Date of such
fact, condition or event shall be deemed not to be aware of any such fact, condition or event on
the Initial Borrowing Date. Upon the Administrative Agent’s good faith determination that the
conditions specified in this Section 6 have been met (after giving effect to the preceding
sentence), then the Initial Borrowing Date shall have been deemed to have occurred, regardless of
any subsequent determination that one or more of the conditions thereto had not been met (although
the occurrence of the Initial Borrowing Date shall not release Holdings or the Borrower from any
liability for failure to satisfy one or more of the applicable conditions contained in this Section
6).




SECTION 7. Conditions Precedent to All Credit Events.



The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing
Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of
Credit issued on the Initial Borrowing Date), is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following conditions:



7.01. No Default; Representations and Warranties. At the time of each such Credit Event
and also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii)
all representations and warranties contained herein and in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood and agreed that (x)
any representation or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such specified date and (y) any
representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct in all respects on such date).



7.02. Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each Loan
(other than a Swingline Loan or a Revolving Loan made pursuant to a Mandatory Borrowing), the
Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section
2.03(a). Prior to the making of each Swingline Loan, the Swingline Lender shall have received the
notice referred to in Section 2.03(b)(i).



(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the
respective Issuing Lender shall have received a Letter of Credit Request meeting the requirements
of Section 3.03(a).


 


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The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by Holdings and the Borrower to the Administrative Agent and each of the Lenders that all
the conditions specified in Section 6 (with respect to Credit Events on the Initial Borrowing Date)
and in this Section 7 (with respect to Credit Events on or after the Initial Borrowing Date) and
applicable to such Credit Event are satisfied as of that time. All of the Notes, certificates,
legal opinions and other documents and papers referred to in Section 6 and in this Section 7,
unless otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for
the account of each of the Lenders and, with respect to the Credit Agreement, in sufficient
counterparts for each of the Lenders and shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Required Lenders.




SECTION 8. Representations, Warranties and Agreements.



In order to induce the Lenders to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of Holdings and the Borrower
makes the following representations, warranties and agreements, in each case after giving effect to
the Transaction, all of which shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans and the issuance of the Letters of Credit, with the occurrence of
each Credit Event on or after the Initial Borrowing Date being deemed to constitute a
representation and warranty that the matters specified in this Section 8 are true and correct in
all material respects on and as of the Initial Borrowing Date and on the date of each such other
Credit Event (it being understood and agreed that any representation or warranty which by its terms
is made as of a specified date shall be required to be true and correct in all material respects
only as of such specified date).



8.01. Company Status. Each of Holdings and each of its Subsidiaries (i) is a duly
organized and validly existing Company in good standing under the laws of the jurisdiction of its
organization, (ii) has the Company power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business requires such
qualifications except for failures to be so qualified or authorized which, either individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect.



8.02. Power and Authority. Each Credit Party has the Company power and authority to execute, deliver and perform the terms
and provisions of each of the Documents to which it is party and has taken all necessary Company
action to authorize the execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which it is party, and each
of such Documents constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting
creditors’ rights and by equitable principles (regardless of whether enforcement is sought in
equity or at law).



8.03. No Violation. Neither the execution, delivery or performance by any Credit Party of
the Documents to which it is a party, nor compliance by it with the terms and provisions thereof,
(i) will contravene any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or Governmental Authority, (ii) will conflict with or result in
any breach of any of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the property or assets of any Credit Party
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or instrument, in each case
to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property
or assets is bound or to which it may be subject, or (iii) will violate any provision of the
certificate or articles of incorporation, certificate of formation, limited liability company
agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party
or any of its Subsidiaries.


 


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8.04. Approvals. No order, consent, approval, license, authorization or validation of, or
filing, recording or registration with (except for (x) those that have otherwise been obtained or
made on or prior to the Initial Borrowing Date and which remain in full force and effect on the
Initial Borrowing Date and (y) filings which are necessary to perfect the security interests
created under the Security Documents, which filings will be made within ten days following the
Initial Borrowing Date), or exemption by, any Governmental Authority is required to be obtained or
made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by,
or on behalf of, any Credit Party in connection with, (i) the execution, delivery and performance
of any Document or (ii) the legality, validity, binding effect or enforceability of any such
Document. Except as provided in Section 13.20(a)(ii), no approval of any Gaming Authority is
required in connection with the execution, delivery or performance of any Document, or to ensure
the legality, validity, binding effect or enforceability thereof.



8.05. Financial Statements; Financial Condition; Undisclosed Liabilities; Projections.
(a)(i) (I) The audited consolidated balance sheet of Holdings at December 31, 2009, December 31,
2008 and December 31, 2007 and the related consolidated statements of income and cash flows and
changes in shareholders’ equity of Holdings for the Fiscal Years of 2007, 2008 and 2009 ended on
such dates, in each case furnished to the Lenders prior to the Effective Date, present fairly in
all material respects the consolidated financial position of Holdings and its Subsidiaries at the
date of said financial statements and the results for the respective periods covered thereby and
(II) the unaudited consolidated balance sheet of Holdings at September 30, 2010 and the related
consolidated statements of income and cash flows and changes in shareholders’ equity of Holdings
for the nine-month period ended on such date, furnished to the Lenders prior to the Effective Date,
present fairly in all material respects the consolidated financial condition of Holdings and its
Subsidiaries at the date of said financial statements and the results
for the period covered thereby, subject to normal year-end adjustments. All such financial
statements have been prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements and subject, in the case of the unaudited
financial statements, to normal year-end audit adjustments (none of which, individually or in the
aggregate, would be material) and the absence of footnotes.



(ii) The pro forma consolidated financial statements of Holdings and its
Subsidiaries as of December 31, 2010 (after giving effect to the Transaction and the financing
therefor), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date,
present a good faith estimate of the pro forma consolidated financial position of
Holdings and its Subsidiaries as of such date.



(b) On and as of the Initial Borrowing Date, and after giving effect to the Transaction and to
all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit
Parties in connection therewith, (i) the sum of the fair value of the assets, at a fair valuation,
of each Credit Party (on a stand-alone basis) and of each Credit Party and its Subsidiaries (taken
as a whole) will exceed its or their respective debts, (ii) the sum of the present fair salable
value of the assets of each Credit Party (on a stand-alone basis) and of each Credit Party and its
Subsidiaries (taken as a whole) will exceed its or their respective debts, (iii) each Credit Party
(on a stand-alone basis) and each Credit Party and its Subsidiaries (taken as a whole) has or have
not incurred and does or do not intend to incur, and does or do not believe that it or they will
incur, debts beyond its or their respective ability to pay such debts as such debts mature, and
(iv) each Credit Party (on a stand-alone basis) and each Credit Party and its Subsidiaries (taken
as a whole) will have sufficient capital with which to conduct its or their respective businesses.
For purposes of this Section 8.05(b), “debt” means any liability on a claim, and
“claim” means (a) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured or (b) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.


 


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(c) Except as fully disclosed in the financial statements delivered pursuant to Section
8.05(a), and except for (x) the Indebtedness incurred under this Agreement and (y) Indebtedness
incurred in the ordinary course of business since the date of such financial statements so long as
with respect to this clause (y), such Indebtedness will be repaid on the Initial Borrowing Date or
is permitted under Section 10.04(ii), there were as of the Initial Borrowing Date no liabilities
or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether or not due) which, either
individually or in the aggregate, could reasonably be expected to be material to Holdings or any of
its Subsidiaries. As of the Initial Borrowing Date, neither Holdings nor the Borrower knows of any
basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any
nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to
Section 8.05(a) or referred to in the immediately preceding sentence which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



(d) The Projections delivered to the Administrative Agent and the Lenders prior to the Initial
Borrowing Date have been prepared in good faith and are based on assumptions that the Borrower
believes to be reasonable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results included in such
Projections. There are no statements or conclusions in the Projections which are based upon or
include information known to Holdings or the Borrower to be misleading in any material respect or which fail to take into
account material information known to Holdings or the Borrower regarding the matters reported
therein.



(e) After giving effect to the Transaction, since December 31, 2009 (other than as previously
disclosed by Holdings in that certain form 8-K filed with the SEC on July 15, 2010 and that certain
form 8-K filed with the SEC on November 3, 2010), nothing has occurred that has had, or could
reasonably be expected to have, a Material Adverse Effect.



8.06. Litigation. There are no actions, suits or proceedings pending or, to the knowledge
of Holdings and the Borrower, threatened (i) on the Initial Borrowing Date with respect to the
Transaction or any Document or (ii) that has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.



8.07. True and Complete Disclosure. All factual information (taken as a whole) furnished
by or on behalf of Holdings or the Borrower in writing to the Administrative Agent or any Lender
(including, without limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction contemplated herein
or therein is, true and accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any fact necessary to make such
information (taken as a whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided, it being understood and agreed that for
purposes of this Section 8.07, such factual information shall not include the Projections or any
pro forma financial information.



8.08. Use of Proceeds; Margin Regulations. (a) All proceeds of the Term Loans will be
used by the Borrower to finance the Refinancing and to pay fees and expenses incurred in connection
with the Transaction.


 


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(b) All proceeds of the Revolving Loans and the Swingline Loans will be used for the working
capital and general corporate purposes of the Borrower and its Subsidiaries; provided that
(x) not more than $5,000,000 of the proceeds from Revolving Loans and Swingline Loans may be used
for the purposes described in Section 8.08(a) other than to pay fees and expenses incurred in
connection with the Transaction and (y) the proceeds of Swingline Loans shall not be used to
refinance then outstanding Swingline Loans.



(c) No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other
Credit Event will violate or be inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.



8.09. Tax Returns and Payments. Each of Holdings and each of its Subsidiaries has timely
filed or caused to be timely filed with the appropriate taxing authority all returns, statements,
forms and reports for taxes (the “Returns”) required to be filed by, or with respect to the
income, properties or operations of, Holdings and/or any of its Subsidiaries, excluding Returns
which in the aggregate would not result in tax liability to Holding and its
Subsidiaries in excess of $250,000. The Returns accurately reflect in all material respects all
liability for taxes of Holdings and its Subsidiaries, as applicable, for the periods covered
thereby, except for any such liability resulting from errors in the preparation of such Returns
which do not in the aggregate represent tax liabilities of $250,000 of more. Each of Holdings and
each of its Subsidiaries has paid all taxes and assessments payable by it which have become due,
other than those that are being contested in good faith and adequately disclosed and fully provided
for on the financial statements of Holdings and its Subsidiaries in accordance with GAAP and
excluding taxes and assessments that in the aggregate total less than $250,000. There is no
material action, suit, proceeding, investigation, audit or claim now pending or, to the best
knowledge of Holdings or any of its Subsidiaries, threatened by any authority regarding taxes
relating to Holdings or any of its Subsidiaries. As of the Initial Borrowing Date, neither
Holdings nor any of its Subsidiaries has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating to the payment or
collection of taxes of Holdings or any of its Subsidiaries, or is aware of any circumstances that
would cause the taxable years or other taxable periods of Holdings or any of its Subsidiaries not
to be subject to the normally applicable statute of limitations.



8.10. Compliance with ERISA. (a) Each Plan is in compliance in form and operation with its
terms and with ERISA and the Code (including without limitation the Code provisions compliance with
which is necessary for any intended favorable tax treatment) and all other applicable laws and
regulations, except where any failure to comply could not reasonably be expected to have a Material
Adverse Effect. Each Plan (and each related trust, if any) which is intended to be qualified under
Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect
that it meets the requirements of Sections 401(a) of the Code, or an application for such a letter
is currently being process by the IRS with respect thereto, and to the knowledge of Holdings or any
of its Subsidiaries, nothing has occurred since the date of such determination that would
reasonably be expected to adversely affect such determination (or, in the case of a Plan with no
determination, to the knowledge of Holdings or any of its Subsidiaries, nothing has occurred that
would reasonably be expected to materially adversely affect the issuance of a favorable
determination letter or otherwise materially adversely affect such qualification). No ERISA Event
has occurred other than as would not, individually or in the aggregate, have a Material Adverse
Effect.



(b) There exists no Unfunded Pension Liability with respect to any Plan that would have a
Material Adverse Effect.


 


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(c) To the knowledge of Holdings or any of its Subsidiaries, no Multiemployer Plan is
insolvent or in reorganization. None of Holdings or any of its Subsidiaries or any ERISA Affiliate
has incurred a complete or partial withdrawal from any Multiemployer Plan, and, if each of
Holdings, any of its Subsidiaries and each ERISA Affiliate were to withdraw in a complete
withdrawal as of the date this assurance is given or deemed given, the aggregate withdrawal
liability that would be incurred would not reasonably be expected to result in a Material Adverse
Effect.



(d) There are no actions, suits or claims pending against or involving a Plan (other than
routine claims for benefits) or, to the knowledge of Holdings or any of its Subsidiaries, which
would reasonably be expected to be asserted successfully against any Plan and, if so asserted
successfully, would reasonably be expected either singly or in the aggregate to have a Material
Adverse Effect.



(e) Holdings, its Subsidiaries and any ERISA Affiliate have made all material contributions to
or under each Plan and Multiemployer Plan required by law within the applicable time limits
prescribed thereby, the terms of such Plan or Multiemployer Plan, respectively, or any contract or
agreement requiring contributions to a Plan or Multiemployer Plan save where any failure to
comply, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.



(f) Except as would not individually or in the aggregate, have a Material Adverse Effect, (x)
no Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or
received an extension of any amortization period, within the meaning of Section 412 of the Code or
Section 303 or 304 of ERISA, (y) Holdings, its Subsidiaries and any ERISA Affiliate have not ceased
operations at a facility so as to become subject to the provisions of Section 4068(a) of ERISA,
withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of
ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it
made contributions and no lien imposed under the Code or ERISA on the assets of Holdings, its
Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of any Plan and (z)
none of Holdings, its Subsidiaries or any ERISA Affiliate has any liability under Section 4069 or
4212(c) of ERISA.



(g) Except as would not individually or in the aggregate, have a Material Adverse Effect, (i)
each Foreign Pension Plan has been maintained in compliance with its terms and with the
requirements of any and all applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory authorities, all
contributions required to be made with respect to a Foreign Pension Plan have been timely made,
(iii) neither Holdings nor any of its Subsidiaries has incurred any obligation in connection with
the termination of, or withdrawal from, any Foreign Pension Plan and (iv) the present value of the
accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan, determined as
of the end of Holdings most recently ended fiscal year on the basis of actuarial assumptions, each
of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan
allocable to such benefit liabilities.



8.11. Security Documents. (a) The provisions of the Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and
enforceable security interest in all right, title and interest of the Credit Parties in the
Security Agreement Collateral described therein, and the Collateral Agent, for the benefit of the
Secured Creditors, has (or within 10 days following the Initial Borrowing Date will have) a fully
perfected security interest in all right, title and interest in all of the Security Agreement
Collateral described therein to the extent required to be perfected by the provisions of such
Security Agreement, subject to no other Liens other than Permitted Liens. The recordation of (x)
the Grant of Security Interest in U.S. Patents and (y) the Grant of Security Interest in U.S.
Trademarks in the respective form attached to the Security Agreement, in each case in the United
States Patent and Trademark Office, together with filings on Form UCC-1 made pursuant to the
Security Agreement, will create, as may be perfected by such filings and recordation, a perfected
security interest in the United States trademarks and patents covered by the Security Agreement,
and the recordation of the Grant of Security Interest in U.S. Copyrights in the form attached to
the Security Agreement with the United States Copyright Office, together with filings on Form UCC-1
made pursuant to the Security Agreement, will create, as may be perfected by such filings and
recordation, a perfected security interest in the United States copyrights covered by the Security
Agreement.


 


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(b) The security interests created under the Pledge Agreement in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, constitute perfected security
interests in the Pledge Agreement Collateral described in the Pledge Agreement, subject to no
security interests of any other Person. Notwithstanding anything to the contrary in this clause
(b), it is understood that no representation is made under this clause (b) as to the creation,
perfection or priority of any Lien to the extent that such creation, perfection or priority is
determined under the law of a jurisdiction outside the United States.



(c) If and to the extent any Mortgage is granted after the Initial Borrowing Date, each such
Mortgage creates, as security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and mortgage lien on the respective Mortgaged Property
in favor of the Collateral Agent (or such other trustee as may be required or desired under local
law) for the benefit of the Secured Creditors, superior and prior to the rights of all third
Persons (except that the security interest and mortgage lien created on such Mortgaged Property may
be subject to the Permitted Encumbrances related thereto) and subject to no other Liens (other than
Permitted Encumbrances related thereto).



8.12. Properties. As of the Initial Borrowing Date, none of Holdings or any of its
Subsidiaries owns any Real Property. All Real Property leased by Holdings or any of its
Subsidiaries as of the Initial Borrowing Date, is identified in Schedule 8.12. Each of Holdings
and each of its Subsidiaries has good and marketable title to all material properties owned by it,
including all material property reflected in the most recent historical balance sheets referred to
in Section 8.05(a) (except as sold or otherwise disposed of since the date of such balance sheet in
the ordinary course of business or as permitted by the terms of this Agreement), free and clear of
all Liens, other than Permitted Liens. Each of Holdings and each of its Subsidiaries has a valid
and leasehold interest in the material properties leased by it free and clear of all Liens other
than Permitted Liens.




8.13. Reserved.



8.14. Subsidiaries. On and as of the Initial Borrowing Date, Holdings has no Subsidiaries
other than those Subsidiaries listed on Schedule 8.14. Schedule 8.14 sets forth, as of the Initial
Borrowing Date, the percentage ownership (direct and indirect) of Holdings in each class of capital
stock or other Equity Interests of each of its Subsidiaries and also identifies the direct owner
thereof. All outstanding shares of Equity Interests of each Subsidiary of Holdings have been duly
and validly issued, are fully paid and non-assessable and have been issued free of preemptive
rights. No Subsidiary of Holdings has outstanding any securities convertible into or exchangeable
for its Equity Interests or outstanding any right to subscribe for or to purchase, or any options
or warrants for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of or any calls, commitments or claims of any character relating to, its Equity
Interests or any stock appreciation or similar rights.



8.15. Compliance with Statutes, etc. Each of Holdings and each of its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities in respect of the conduct of its business and the
ownership of its property, except such non-compliances as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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8.16. Investment Company Act. Neither Holdings nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of
the Investment Company Act of 1940, as amended.



8.17. Insurance. Schedule 8.17 sets forth a listing of all insurance maintained by Holdings and its Subsidiaries
as of the Initial Borrowing Date (other than local insurance policies maintained by Foreign
Subsidiaries of the Borrower that are not material), with the amounts insured (and any deductibles)
set forth therein.



8.18. Environmental Matters. Except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect: (a) each of Holdings and each of its
Subsidiaries is in compliance with all applicable Environmental Laws and has obtained and is in
compliance with the terms of any permits required under such Environmental Laws; (b) there are no
Environmental Claims pending or to the knowledge of Holdings or Borrower, threatened, against
Holdings or any of its Subsidiaries; (c) no Lien, other than a Permitted Lien, has been recorded or
to the knowledge of Holdings or the Borrower, threatened under any Environmental Law with respect
to any Real Property owned by Holdings or any Subsidiary; (d) neither Holdings nor any of its
Subsidiaries has agreed to assume or accept responsibility, for any liability of any other Person
under any Environmental Law; and (e) there are no facts, circumstances, conditions or occurrences
with respect to the past or present business, operations, properties or facilities of Holdings or
any of its Subsidiaries, or any of their respective predecessors, that could reasonably be expected
to give rise to any Environmental Claim or any liability under any Environmental Law.



8.19. Employment and Labor Relations. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected, either individually or in
the aggregate, to have a Material Adverse Effect. There is (i) no unfair labor practice complaint
pending against Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the
Borrower, threatened against any of them, before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under any collective bargaining agreement is
so pending against Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the
Borrower, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage
pending against Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the
Borrower, threatened against Holdings or any of its Subsidiaries, (iii) no union representation
question exists with respect to the employees of Holdings or any of its Subsidiaries, (iv) no equal
employment opportunity charges or other claims of employment discrimination are pending or, to
Holdings’ knowledge, threatened against Holdings or any of its Subsidiaries and (v) no wage and
hour department investigation has been made of Holdings or any of its Subsidiaries, except (with
respect to any matter specified in clauses (i) — (v) above, either individually or in the
aggregate) such as could not reasonably be expected to have a Material Adverse Effect.



8.20. Intellectual Property, etc. Except as could not reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect, each of Holdings and each of
its Subsidiaries (a) owns or has the right to use all the patents, trademarks, permits, domain
names, service marks, trade names, copyrights, licenses, franchises, inventions, trade secrets,
proprietary information and know-how of any type, whether or not written (including, but not
limited to, rights in computer programs and databases) and formulas, or rights with respect to the
foregoing, and (b) has obtained assignments of all leases, licenses and other rights of whatever
nature, necessary for the present conduct of its business, without any known conflict with the
rights of others.


 


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8.21. Indebtedness. Schedule 8.21 sets forth a list of all Indebtedness (including Contingent Obligations) of
Holdings and its Subsidiaries as of the Initial Borrowing Date and which is to remain outstanding
after giving effect to the Transaction (excluding the Loans and the Letters of Credit), in each
case showing the aggregate principal amount thereof and the name of the respective borrower and any
Credit Party or any of its Subsidiaries which directly or indirectly guarantees such debt.



SECTION 9. Affirmative Covenants Each of Holdings and the Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings (in each case together with
interest thereon), Fees and all other Obligations (other than indemnities described in Section
13.13 and reimbursement obligations under Section 13.01 which, in either case, are not then due and
payable) incurred hereunder and thereunder, are paid in full:



9.01. Information Covenants. Holdings will furnish to each Lender:




(a) Quarterly Financial Statements. Within 50 days after the close of each of
the first three quarterly accounting periods in each Fiscal Year of Holdings, (i) the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and retained earnings
and statement of cash flows for such quarterly accounting period and for the elapsed portion
of the Fiscal Year ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding quarterly accounting period in the
prior Fiscal Year, all of which shall be certified by the chief financial officer of
Holdings that they fairly present in all material respects in accordance with GAAP the
financial condition of Holdings and its Subsidiaries as of the dates indicated and the
results of their operations for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes, and (ii) management’s discussion and analysis of
the important operational and financial developments during such quarterly accounting
period.




(b) Annual Financial Statements. Within 100 days after the close of each
Fiscal Year of Holdings (commencing with Fiscal Year ending December 31, 2010), (i) the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income and retained earnings and statement
of cash flows for such Fiscal Year setting forth comparative figures for the preceding
Fiscal Year and certified by independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent, accompanied by an opinion of
such accounting firm (which opinion shall be without a “going concern” or like qualification
or exception and without any qualification or exception as to scope of audit), and (ii)
management’s discussion and analysis of the important operational and financial developments
during such Fiscal Year.




(c) Management Letters. Promptly after Holdings’ or any of its Subsidiaries’
receipt thereof, a copy of any “management letter” received from its certified public
accountants and management’s response thereto.




(d) Budgets. No later than 60 days following the first day of each Fiscal Year
of Holdings, a budget in form reasonably satisfactory to the Administrative Agent (including
budgeted statements of income, sources and uses of cash and balance sheets for Holdings
and its Subsidiaries on a consolidated basis) (i) for each Fiscal Quarter of such Fiscal
Year prepared in detail and (ii) for the three immediately succeeding Fiscal Years prepared
in summary form, in each case setting forth, with appropriate discussion, the principal
assumptions upon which such budget is based.


 


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(e) Officer’s Certificates. At the time of the delivery of the financial
statements provided for in Sections 9.01(a) and (b), a compliance certificate from the chief
financial officer of Holdings in the form of Exhibit K certifying on behalf of Holdings
that, to such officer’s knowledge after due inquiry, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate shall (i) set forth
in reasonable detail the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of Sections 10.07(a), 10.08 and 10.09,
and the amount of Cumulative Retained Excess Cash Flow at the end of such Fiscal Quarter or
Fiscal Year, as the case may be, (ii) if delivered with the financial statements required by
Section 9.01(b), set forth in reasonable detail the amount of (and the calculations required
to establish the amount of) Excess Cash Flow for the respective Excess Cash Payment Period,
and (iii) certify that there have been no changes to Annexes C through F, and Annexes I
through K, in each case of the Security Agreement and Annexes A through F of the Pledge
Agreement, in each case since the Initial Borrowing Date or, if later, since the date of the
most recent certificate delivered pursuant to this Section 9.01(e), or if there have been
any such changes, a list in reasonable detail of such changes (but, in each case with
respect to this clause (iii), only to the extent that such changes are required to be
reported to the Collateral Agent pursuant to the terms of such Security Documents) and
whether Holdings and the other Credit Parties have otherwise taken all actions required to
be taken by them pursuant to such Security Documents in connections with any such changes.




(f) Notice of Default, Litigation and Material Adverse Effect. Promptly, and
in any event within three Business Days after any Authorized Officer of Holdings or any of
its Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default, (ii) any litigation or governmental
investigation or proceeding pending against Holdings or any of its Subsidiaries (x) which,
either individually or in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect or (y) with respect to any Document, or (iii) any other event,
change or circumstance that has had, or could reasonably be expected to have, a Material
Adverse Effect.




(g) Other Reports and Filings. Promptly after the filing or delivery thereof,
copies of all financial information, proxy materials and reports, if any, which Holdings or
any of its Subsidiaries shall publicly file with the Securities and Exchange Commission or
any successor thereto (the “SEC”).




(h) Environmental Matters. Promptly after any Authorized Officer of Holdings
or any of its Subsidiaries obtains actual knowledge thereof, notice of the following
environmental matters to the extent that such environmental matters, either individually or
when aggregated with all other such environmental matters, could reasonably be expected to
have a Material Adverse Effect:




(i) any pending or threatened Environmental Claim against Holdings or any of
its Subsidiaries or any Real Property owned, leased or operated by Holdings or any
of its Subsidiaries;




(ii) any condition or occurrence on or arising from any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries that (a) results in
noncompliance by Holdings or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such Real
Property;


 


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(iii) any condition or occurrence on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any restrictions on the ownership, lease,
occupancy, use or transferability by Holdings or any of its Subsidiaries of such
Real Property under any Environmental Law; or




(iv) the taking of any removal or remedial action to the extent required by any
Environmental Law or any Governmental Authority in response to the Release or
threatened Release of any Hazardous Material on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries.




All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and Holdings’ or such Subsidiary’s
response thereto.




(i) Other Information. From time to time, such other information or documents
(financial or otherwise) with respect to Holdings or any of its Subsidiaries as the
Administrative Agent or any Lender (through the Administrative Agent) may reasonably
request.



9.02. Books, Records and Inspections; Annual Meetings. (a) Holdings will, and will cause
each of its Subsidiaries to, keep proper books of record and accounts in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. Holdings will, and will cause each of
its Subsidiaries to, permit officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, under guidance of officers of Holdings or such Subsidiary, any of
the properties of Holdings or such Subsidiary, and to examine the books of account of Holdings or
such Subsidiary and discuss the affairs, finances and accounts of Holdings or such Subsidiary with,
and be advised as to the same by, its and their officers and independent accountants, all upon
reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as
the Administrative Agent or any such Lender may reasonably request.



(b) If requested by the Administrative Agent or the Required Lenders, at a date to be mutually
agreed upon between the Administrative Agent and Holdings occurring on or prior to the 135th day
after the close of each Fiscal Year of Holdings, Holdings will, at the request of the
Administrative Agent, hold a meeting with all of the Lenders at which meeting will be reviewed the
financial results of Holdings and its Subsidiaries for the previous Fiscal Year and the budgets
presented for the current Fiscal Year of Holdings.



9.03. Maintenance of Property; Insurance. (a) Holdings will, and will cause each of its
Subsidiaries to, (i) keep all property necessary to the business of Holdings and its Subsidiaries
in good working order and condition, ordinary wear and tear excepted and subject to the occurrence
of casualty events, (ii) maintain with financially sound and reputable insurance companies
insurance on all such property and against all such risks as is consistent
and in accordance with industry practice for companies similarly situated owning similar properties
and engaged in similar businesses as Holdings and its Subsidiaries, and (iii) furnish to the
Administrative Agent, upon its request therefor, full information as to the insurance carried. In
addition to the requirements of the immediately preceding sentence, Holdings and the Borrower will
at all times cause insurance to be maintained of types and at levels which are consistent with
their practices immediately before the Initial Borrowing Date. Such insurance shall include
physical damage insurance on all real and personal property (whether now owned or hereafter
acquired) on an all risk basis and business interruption insurance. The provisions of this Section
9.03 shall be deemed supplemental to, but not duplicative of, the provisions of any Security
Documents that require the maintenance of insurance.


 


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(b) If at any time the improvements on a Mortgaged Property are located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or any successor thereto
or other applicable agency, Holdings will, and will cause each of its Subsidiaries to, at all times
keep and maintain flood insurance in an amount satisfactory to the Administrative Agent but in no
event less than the amount sufficient to comply with the rules and regulations promulgated under
the National Flood Insurance Act of 1968 and Flood Disaster Protection Act of 1973, each as amended
from time to time.



(c) Holdings will, and will cause each of its Subsidiaries to, at all times keep its property
insured in favor of the Collateral Agent, and all policies or certificates (or certified copies
thereof) with respect to such insurance (and any other insurance maintained by Holdings and/or such
Subsidiaries) (i) shall be endorsed to the Collateral Agent’s satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent as loss payee
and/or additional insured), (ii) shall state that such insurance policies shall not be canceled
without at least 30 days’ prior written notice thereof by the respective insurer to the Collateral
Agent, and (iii) shall provide that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the other Secured Creditors.



(d) If Holdings or any of its Subsidiaries shall fail to maintain insurance in accordance with
this Section 9.03, or if Holdings or any of its Subsidiaries shall fail to so endorse and deposit
all policies or certificates with respect thereto, the Administrative Agent shall have the right
(but shall be under no obligation) to procure such insurance and Holdings and the Borrower jointly
and severally agree to reimburse the Administrative Agent for all costs and expenses of procuring
such insurance.



9.04. Existence; Franchises. Holdings will, and will cause each of its Subsidiaries to, do
or cause to be done, all things necessary to preserve and keep in full force and effect its
existence; provided, however, that nothing in this Section 9.04 shall prevent sales
of assets and other transactions by Holdings or any of its Subsidiaries in accordance with Section
10.02. Holdings will, and will cause each of its Subsidiaries to, do or cause to be done, all
things necessary to preserve and keep in full force and effect its material rights, franchises,
licenses, permits, copyrights, trademarks and patents except as could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.



9.05. Compliance with Statutes, etc. Holdings will, and will cause each of its
Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such non-compliances as
could not, either individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



9.06. Compliance with Environmental Laws. (a) Holdings will comply, and will cause each
of its Subsidiaries to comply, with all Environmental Laws and permits applicable to or required in
respect of the conduct of its business or operations or by the ownership, lease or use of any Real
Property now or hereafter owned, leased or operated by Holdings or any of its Subsidiaries, except
for such noncompliance as could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental Laws. Except as could
not reasonably be expected to have a Material Adverse Effect, neither Holdings nor any of its
Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by Holdings or any of its Subsidiaries, or transport or permit
the transportation of Hazardous Materials to or from any such Real Property, and except for
Hazardous Materials generated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance in all material respects with all applicable Environmental Laws and as
required in connection with the normal operation, use and maintenance of the business or operations
of Holdings or any of its Subsidiaries.


 


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(b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type
described in Section 9.01(h), (ii) at any time that Holdings or any of its Subsidiaries is not in
compliance with Section 9.06(a) or (iii) in the event that the Administrative Agent or the Lenders
have exercised any of the remedies pursuant to the last paragraph of Section 11, Holdings and the
Borrower will (in each case) provide, at the sole expense of Holdings and the Borrower and at the
request of the Administrative Agent, an environmental site assessment report concerning any
relevant Real Property owned, leased or operated by Holdings or any of its Subsidiaries, prepared
by an environmental consulting firm reasonably approved by the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the potential cost of any removal or remedial action
in connection with such Hazardous Materials on such Real Property. If Holdings or the Borrower
fails to provide the same within 30 days after such request was made, the Administrative Agent may
order the same, the cost of which shall be borne by Holdings and the Borrower, and Holdings and the
Borrower shall and hereby do grant to the Administrative Agent and the Lenders and their respective
agents access to such Real Property, and specifically grant the Administrative Agent and the
Lenders an irrevocable non-exclusive license, subject to the rights of tenants, to undertake such
an assessment at any reasonable time upon reasonable notice to Holdings or the Borrower, all at the
sole expense of Holdings and the Borrower.



9.07. ERISA. Holdings shall supply to the Administrative Agent (in sufficient copies for
all Lenders, if the Administrative Agent so requests);



(a) promptly and in any event within 15 days after receiving a request from the Administrative
Agent a copy of IRS Form 5500 (including the Schedule B) with respect to a plan;



(b) promptly and in any event within 30 days after Holdings, any Subsidiary of Holdings or any
ERISA Affiliate knows or has reason to know that any ERISA Event has occurred that would reasonably
be expected to result in material liability to Holdings or any Subsidiaries of Holdings, a
certificate of the chief financial officer of the Borrower describing such ERISA Event and the
action, if any, proposed to be taken with respect to such ERISA Event and a copy of any notice
filed with the PBGC or the IRS pertaining to such ERISA Event and any notices received by Holdings,
any Subsidiary of Holdings or ERISA Affiliate from the PBGC or any other governmental agency with respect
thereto; provided that, in the case of ERISA Events under paragraph (d) of the definition thereof,
the 30-day period set forth above shall be a 10-day period, and, in the case of ERISA Events under
paragraph (b) of the definition thereof, in no event shall notice be given later than 10 days after
the occurrence of the ERISA Event; and



(c) promptly, and in any event within 30 days, after becoming aware that there has been (i) a
material increase in Unfunded Pension Liabilities (taking into account only Plans with positive
Unfunded Pension Liabilities) that are reasonably expected to result in material liability to
Holdings since the date the representations hereunder are given or deemed given, or from any prior
notice, as applicable, (ii) a material increase since the date the representations hereunder are
given or deemed given, or from any prior notice, as applicable, in potential withdrawal liability
under Section 4201 of ERISA, if Holdings, any Subsidiary of Holdings and the ERISA Affiliates were
to withdraw completely from any and all Multiemployer Plans that are reasonably expected to result
in a material liability to Holdings or any Subsidiary or (iii) the adoption of any amendment to a
Plan which results in a material increase in contribution obligations of Holdings or any
Subsidiary, a detailed written description thereof from the chief financial officer of the
Holdings; and


 


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9.08. End of Fiscal Years; Fiscal Quarters. Holdings will cause (i) its and each of its
Subsidiaries’ fiscal years to end on December 31 of each calendar year and (ii) its and each of its
Subsidiaries’ fiscal quarters to end on the last day of each period described in the definition of
“Fiscal Quarter”.



9.09. Performance of Obligations. Holdings will, and will cause each of its Subsidiaries
to, perform all of its obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other agreement, contract or instrument by which it is
bound, except such non-performances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



9.10. Payment of Taxes. Holdings will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a Lien
or charge upon any properties of Holdings or any of its Subsidiaries not otherwise permitted under
Section 10.01(i); provided that neither Holdings nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with respect thereto in
accordance with GAAP or which are in the aggregate amount of less than $250,000.



9.11. Use of Proceeds. The Borrower will use the proceeds of the Loans only as provided in
Section 8.08 and, in the case of Incremental Term Loans, Section 2.14.



9.12. Additional Security; Further Assurances; etc. (a) Holdings will, and will cause
each other Credit Party to, grant to the Collateral Agent (or such other trustee, sub-agent or
other third party as may be required or desired under local law) for the benefit of the
Secured Creditors security interests and Mortgages in such assets and owned Real Property of
Holdings and such other Credit Party as are not covered by the original Security Documents and as
may be reasonably requested from time to time by the Administrative Agent or the Required Lenders
(collectively, the “Additional Security Documents”). All such security interests and
Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance
to the Collateral Agent and shall constitute valid and enforceable perfected security interests (or
the equivalent under local law), hypothecations and Mortgages superior to and prior to the rights
of all third Persons and enforceable against third parties and subject to no other Liens except for
Permitted Liens or, in the case of owned Real Property, the Permitted Encumbrances related thereto.
The Additional Security Documents or instruments related thereto shall have been, at the expense
of Holdings and the Borrower, duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent (or such other trustee, sub-agent or other third party as may be required or desired under
local law) required to be granted pursuant to the Additional Security Documents and all taxes, fees
and other charges payable in connection therewith shall have been paid in full. Notwithstanding
the foregoing, this Section 9.12(a) shall not apply to (and Holdings and its Subsidiaries shall not
be required to grant a Mortgage in) any owned Real Property the Fair Market Value of which is less
than $1,000,000 or any Leasehold.


 


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(b) Holdings will, and will cause each of the other Credit Parties to, at the expense of
Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real property surveys,
reports, landlord waivers, bailee agreements, control agreements and other assurances or
instruments and take such further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will
cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral
Agent such opinions of counsel, title insurance and other related documents as may be reasonably
requested by the Administrative Agent to assure itself that this Section 9.12 has been complied
with.



(c) If the Administrative Agent or the Required Lenders reasonably determine that they are
required by law or regulation to have appraisals prepared in respect of any Real Property of
Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at
their own expense, provide to the Administrative Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform,
Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.



(d) If the Borrower designates any of its Foreign Subsidiaries that are organized under the
laws of a Qualified Foreign Jurisdiction as a Designated Foreign Subsidiary, Holdings will cause
each such Subsidiary to (i) execute the local law equivalent of the Subsidiaries Guaranty, the
Security Agreement and the Pledge Agreement, in each case, in form and substance satisfactory to
the Administrative Agent (ii), to the extent requested by the Administrative Agent or the Required
Lenders, takes all actions required pursuant to this Section 9.12 and (iii) execute and deliver, or
cause to be executed and delivered, all other relevant documentation (including opinions of
counsel) of the type described in Section 6 as it would have had to deliver if it was a Credit
Party on the Initial Borrowing Date.



(e) Holdings and the Borrower agree that each action required by clauses (a) through (d) of
this Section 9.12 shall be completed as soon as possible, but in no event later than 60 days after
such action is requested to be taken by the Administrative Agent (or such longer period of time as
may be agreed to by the Administrative Agent).



9.13. Contributions. (a) Holdings will, upon its receipt thereof, contribute as an equity
contribution to the capital of the Borrower, any cash proceeds received by Holdings from any asset
sale, any incurrence of Indebtedness, any Recovery Event, any sale or issuance of its equity, any
cash capital contributions or any tax refunds.



(b) The Borrower will use the proceeds of all equity contributions received by it from
Holdings as provided in the relevant clause of Section 5.02 to the extent required to be so
applied.



9.14. Interest Rate Protection. No later than January 5, 2012, the Borrower will enter
into (and thereafter maintain) Interest Rate Protection Agreements mutually acceptable to the
Borrower and the Administrative Agent, having a term of at least two years, establishing a fixed or
maximum interest rate for an aggregate notional principal amount equal to at least 50% of the
aggregate principal amount of all Term Loans outstanding when the respective Interest Rate
Protection Agreements are entered into.


 


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9.15. Permitted Acquisitions. (a) Subject to the provisions of this Section 9.15 and the
requirements contained in the definition of Permitted Acquisition, the Borrower, each Wholly-Owned
Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor and, solely if the respective
Permitted Acquisition is justified pursuant to (and within the limitations established by) clause
(vii) below, any Wholly-Owned Foreign Subsidiary of the Borrower, may from time to time effect
Permitted Acquisitions, so long as (in each case except to the extent the Required Lenders
otherwise specifically agree in writing in the case of a specific Permitted Acquisition): (i) no
Default or Event of Default shall have occurred and be continuing at the time of the consummation
of the proposed Permitted Acquisition or immediately after giving effect thereto; (ii) except as
provided in the immediately succeeding sentence, the Borrower shall have given to the
Administrative Agent and the Lenders at least 10 Business Days’ prior written notice of any
Permitted Acquisition (or such shorter period of time as may be reasonably acceptable to the
Administrative Agent), which notice shall describe in reasonable detail the principal terms and
conditions of such Permitted Acquisition; (iii) (x) calculations are made by the Borrower with
respect to the Total Leverage Ratio, for the respective Calculation Period on a Pro
Forma Basis as if the respective Permitted Acquisition (as well as all other Permitted
Acquisitions theretofore consummated after the first day of such Calculation Period) had occurred
on the first day of such Calculation Period, and such calculations shall show a Total Leverage
Ratio that is less than or equal to 0.25 less than the maximum Total Leverage Ratio set forth in
Section 10.09 for the Fiscal Quarter then most recently ended and (y) calculations are made by the
Borrower with respect to the Interest Expense Coverage Ratio for the respective Calculation Period
on a Pro Forma Basis as if the respective Permitted Acquisition (as well as all
other Permitted Acquisitions theretofore consummated after the first day of such Calculation
Period) had occurred on the first day of such Calculation Period, and such calculations shall show
an Interest Expense Coverage Ratio that is greater than or equal to 0.25 greater than the minimum
Interest Expense Coverage Ratio set forth in Section 10.08 for the Fiscal Quarter then most
recently ended; (iv) based on good faith projections prepared by the Borrower for the period from
the date of the consummation of the respective Permitted Acquisition to the date which is one year
thereafter, the level of financial performance measured by the financial covenants set forth in
Sections 10.08 and 10.09, inclusive, shall be better than or equal to such level as would be
required to provide that no Default or Event of Default would exist under the financial covenants
contained in such Sections 10.08 and 10.09, inclusive, as compliance with such financial covenants
would be required through the date which is one year from the date of the consummation of the
respective Permitted Acquisition; (v) all representations and warranties contained herein and in
the other Credit Documents shall be true and correct in all material respects with the same effect
as though such representations and warranties had been made on and as of the date of such Permitted Acquisition
(both before and after giving effect thereto), unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in all material
respects as of such earlier date; (vi) unless the Total Leverage Ratio, calculated for the
respective Calculation Period on a Pro Forma Basis as if the respective Permitted Acquisition (as
well as all other Permitted Acquisitions theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation Period, is less than or equal
to 2.0 to 1.0, the Aggregate Consideration payable for the proposed Permitted Acquisition, when
added to the Aggregate Consideration paid or payable for all other Permitted Acquisitions that were
made at any time when the Total Leverage Ratio was greater than or equal to 2.0 to 1.0, does not
exceed $30,000,000; provided that, for all purposes of this clause (vi) only, and at the
election of the Borrower (who shall, at the time of any utilization as described in the following
clauses (x) and/or (y) notify the Administrative Agents of the amounts so utilized), (x) the
Cumulative Retained Excess Cash Flow Amount as in effect immediately before the proposed Permitted
Acquisition may be used to pay purchase consideration in connection with the proposed Permitted
Acquisition and to the extent so used such amount shall not be included in determining the
Aggregate Consideration paid or payable for purposes of this clause (vi) only (with the effect
being that the Cumulative Retained Excess Cash Flow Amount shall be reduced, but not below $0, by
the amount so used pursuant to this clause (x)) and (y) net cash proceeds of Incremental Term Loans
and of any issuances of common stock or Qualified Preferred Stock by Holdings which are not
required to be used to make repayments pursuant to Section 5.02(c), may be used to pay purchase
consideration in connection with one or more Permitted Acquisitions and to the extent so used such
funds shall not be included in determining the Aggregate Consideration paid or payable for purposes
of this clause (vi) only; (vii) in the case of a Permitted Acquisition of a Wholly-Owned


 


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Foreign
Subsidiary or of an Acquired Entity or Business to be owned by a Wholly-Owned Foreign Subsidiary,
and in addition to the foregoing requirements, the portion of the Aggregate Consideration payable
for the proposed Permitted Acquisition attributable to the acquisition of a Wholly-Owned Foreign
Subsidiary or of an Acquired Entity or Business to be owned by a Wholly-Owned Foreign Subsidiary,
when added to the Aggregate Consideration paid or payable for all other Permitted Acquisitions of
Wholly-Owned Foreign Subsidiaries or of an Acquired Entity or Business to be owned by a
Wholly-Owned Foreign Subsidiary, shall not exceed $10,000,000; and (viii) except as provided in the
immediately succeeding sentence, the Borrower shall have delivered to the Administrative Agent and
each Lender a certificate executed by its chief financial officer, certifying to the best of such
officer’s knowledge, compliance with the requirements of preceding clauses (i) through (vii),
inclusive, and containing the calculations (in reasonable detail) (A) required by preceding clauses
(iii), (iv), (vi) and (vii). Notwithstanding anything to the contrary contained above, with
respect to one or more Permitted Acquisitions where the Aggregate Consideration (for this purpose
determined in accordance with clause (vi) of the immediately preceding sentence, but without regard
to the proviso thereto) does not exceed $5,000,000 (and does not constitute a utilization of any of
the Cumulative Retained Excess Cash Flow Amount and is not financed with net cash proceeds of
Incremental Term Loans), the Borrower shall not be required to comply with the requirements of
clauses (ii) or (viii) of the immediately preceding sentence, although all other requirements of
the immediately preceding sentence shall be applicable. With respect to any Permitted Acquisition
where the Borrower would like a subsequent increase to the Permitted Capital Expenditures in
accordance with clause (y) of Section 10.07(a), the Borrower shall provide the Administrative Agent
with a copy of the historical financial statements for the respective Acquired Entity or Business
referenced in the definition of Acquired Revenue and its calculations of the Acquired Revenue for
the respective Acquired Entity or Business.



(b) At the time of each Permitted Acquisition involving the creation or acquisition of a
Subsidiary, or the acquisition of capital stock or other Equity Interest of any Person, the capital
stock or other Equity Interests thereof created or acquired in connection with such Permitted
Acquisition shall be pledged for the benefit of the Secured Creditors pursuant to (and to the
extent required by) the Pledge Agreement.



(c) The Borrower will cause each Subsidiary which is formed to effect, or is acquired pursuant
to, a Permitted Acquisition to comply with, and to execute and deliver all of the documentation as
and to the extent required by, Sections 9.12 and 10.14, to the reasonable satisfaction of the
Administrative Agent.



(d) The consummation of each Permitted Acquisition shall be deemed to be a representation and
warranty by each of Holdings and the Borrower that the certifications pursuant to this Section 9.15
are true and correct and that all conditions thereto have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and warranty shall be deemed
to be a representation and warranty for all purposes hereunder, including, without limitation,
Sections 8 and 11.



9.16. Ratings. Holdings and the Borrower shall use commercially reasonable efforts to
obtain and maintain (i) a public corporate family rating of the Borrower and a rating of each
Tranche of the Loans, in each case from Moody’s, and (ii) a public corporate credit rating of the
Borrower and a rating of each Tranche of the Loans, in each case from S&P (it being understood and
agreed that “commercially reasonable efforts” shall in any event include the payment by the
Borrower of customary rating agency fees and cooperation with information and data requests by
Moody’s and S&P in connection with their ratings process).


 


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SECTION 10. Negative Covenants.



Each of Holdings and the Borrower hereby covenants and agrees that on and after the Effective
Date and until the Total Commitment and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings (in each case, together with interest thereon), Fees and all other Obligations
(other than any indemnities described in Section 13.13 and reimbursement obligations under Section
13.01 which, in either case, are not then due and payable) incurred hereunder and thereunder, are
paid in full:



10.01. Liens. Holdings will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or
personal, tangible or intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to Holdings or any of its Subsidiaries), or assign any right to receive
income or permit the filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided that the provisions of this
Section 10.01 shall not prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as “Permitted Liens”):




(i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
or Liens for taxes, assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have been established in
accordance with GAAP;




(ii) Liens in respect of property or assets of Holdings or any of its Subsidiaries
imposed by law, which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s and
mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of Holdings’ or such
Subsidiary’s property or assets or materially impair the use thereof in the operation of the
business of Holdings or such Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property or assets subject to any such Lien;




(iii) Liens in existence on the Initial Borrowing Date which are listed, and the
property subject thereto described, in Schedule 10.01, but only to the respective date, if
any, set forth in such Schedule 10.01 for the removal, replacement and termination of any
such Liens, plus renewals, replacements and extensions of such Liens to the extent set forth
on such Schedule 10.01, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that amount outstanding
at the time of any such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or properties of Holdings
or any of its Subsidiaries;




(iv) Liens created by or pursuant to this Agreement and the Security Documents;




(v) (x) licenses, sublicenses, leases or subleases granted by Holdings or any of its
Subsidiaries to other Persons not materially interfering with the conduct of the business of
Holdings or any of its Subsidiaries and (y) any interest or title of a lessor, sublessor or
licensor under any lease or license agreement permitted by this Agreement to which the
Borrower or any of its Subsidiaries is a party;


 


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(vi) Liens upon assets of the Borrower or any of its Subsidiaries subject to
Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted
by Section 10.04(iv), provided that (x) such Liens only serve to secure the payment
of Indebtedness arising under such Capitalized Lease Obligation and (y) the Lien encumbering
the asset giving rise to the Capitalized Lease Obligation does not encumber any asset of
Holdings or any other asset of the Borrower or any Subsidiary of the Borrower;




(vii) Liens placed upon equipment or machinery acquired after the Initial Borrowing
Date and used in the ordinary course of business of the Borrower or any of its Subsidiaries
and placed at the time of the acquisition thereof by the Borrower or such Subsidiary or
within 90 days thereafter to secure Indebtedness incurred to pay all or a portion of the
purchase price thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment or machinery or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount, provided that
(x) the Indebtedness secured by such Liens is permitted by Section 10.04(iv) and (y) in all
events, the Lien encumbering the equipment or machinery so acquired does not encumber any
asset of Holdings or any other asset of the Borrower or such Subsidiary;




(viii) easements, rights-of-way, restrictions, encroachments and other similar charges
or encumbrances, and minor title deficiencies, in each case not securing Indebtedness and
not materially interfering with the conduct of the business of Holdings or any of its
Subsidiaries;




(ix) Liens arising from precautionary UCC financing statement filings regarding
operating leases entered into in the ordinary course of business;




(x) non-consensual Liens arising out of the existence of judgments or awards which do
not otherwise result in an Event of Default under Section 11.09;




(xi) statutory and common law landlords’ liens under leases to which the Borrower or
any of its Subsidiaries is a party;




(xii) Liens (other than Liens imposed under ERISA) incurred in the ordinary course of
business in connection with workers compensation claims, unemployment insurance and social
security benefits and Liens securing the performance of bids, tenders, leases and contracts
in the ordinary course of business, statutory obligations, surety bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business and
consistent with past practices (exclusive of obligations in respect of the payment for
borrowed money), provided that the aggregate amount of all cash and the Fair Market
Value of all other property subject to all Liens permitted by this clause (xii) shall not at
any time exceed $5,000,000;




(xiii) Permitted Encumbrances;




(xiv) Liens on property or assets acquired pursuant to a Permitted Acquisition or other
permitted Investment, or on property or assets of a Subsidiary of the Borrower in existence
at the time such Subsidiary is acquired pursuant to a Permitted Acquisition or other
permitted Investment, provided that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 10.04(vii), and (y) such Liens are not incurred in
connection with, or in contemplation or anticipation of, such Permitted Acquisition and do
not attach to any asset of Holdings or any other asset of the Borrower or any of its
Subsidiaries;


 


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(xv) Liens arising out of any conditional sale, title retention, consignment or other
similar arrangements for the sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business to the extent such Liens do not attach to
any assets other than the goods subject to such arrangements;




(xvi) Liens (x) incurred in the ordinary course of business in connection with the
purchase or shipping of goods or assets (or the related assets and proceeds thereof), which
Liens are in favor of the seller or shipper of such goods or assets and only attach to such
goods or assets, and (y) in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;




(xvii) bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more accounts maintained by
Holdings or any Subsidiary, in each case granted in the ordinary course of business in favor
of the bank or banks with which such accounts are maintained, securing amounts owing to such
bank or banks with respect to cash management and operating account arrangements;




(xviii) Liens granted in the ordinary course of business on the unearned portion of
insurance premiums securing the financing of insurance premiums to the extent the financing
is permitted under Section 10.04;




(xix) Liens on earnest money deposits made in connection with any agreement in respect
of an anticipated Permitted Acquisition;




(xx) Liens not otherwise a Permitted Lien pursuant to clauses (i) through (xix) (and
which shall not apply to consensual Liens with respect to the Collateral or property which
would become Collateral if the approvals described in Section 13.20 were obtained) that
secure obligations not in excess of $250,000 in the aggregate; and




(xxi) until the 35th day after the Initial Borrowing Date, Liens on money deposited
with the Trustee under the Existing Senior Subordinated Note Indenture to defease the
obligations thereunder and Liens in favor of the Trustee pursuant to Article VII of the
Indenture.



In connection with the granting of Liens of the type described in clauses (iii), (vi), (vii), (ix)
and (xiv) of this Section 10.01 by the Borrower of any of its Subsidiaries, the Administrative
Agent and the Collateral Agent shall be authorized by each Lender to take any actions deemed
appropriate by it in connection therewith (including, without limitation, by executing appropriate
lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in
either case solely with respect to the item or items of equipment or other assets subject to such
Liens).



10.02. Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings will not, and will
not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any
partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of all or any part of its property or assets (other than sales of inventory in
the ordinary course of business), or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials, equipment, goods and services
in the ordinary course of business) of any Person (or agree to do any of the foregoing at any
future time), except that:




(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the
extent not in violation of Section 10.07;




(ii) the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete
or worn-out property in the ordinary course of business;


 


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(iii) Investments may be made to the extent permitted by Section 10.05;




(iv) the Borrower and its Subsidiaries may sell assets (other than the capital stock or
other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or
other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this
clause (iv)), so long as (v) no Default or Event of Default then exists or would result
therefrom, (w) each such sale is in an arm’s-length transaction and the Borrower or the
respective Subsidiary receives at least Fair Market Value, (x) the consideration received by
the Borrower or such Subsidiary in connection with any Asset Sale shall consist of at least
75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds
therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(e)
and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold
pursuant to this clause (iv) shall not exceed $3,000,000 in any Fiscal Year of Holdings (for
this purpose, using the Fair Market Value of property other than cash);




(v) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as
licensee) real or personal property (so long as any such lease or license does not create a
Capitalized Lease Obligation except to the extent permitted by Section 10.04(iv));




(vi) each of the Borrower and its Subsidiaries may sell or discount, in each case
without recourse and in the ordinary course of business, accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;




(vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases
or subleases to other Persons not materially interfering with the conduct of the business of
the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise
affects the Collateral Agent’s security interest in the asset or property subject thereto;




(viii) the Borrower or any Subsidiary of the Borrower may convey, sell or otherwise
transfer all or any part of its business, properties and assets to any Qualified Credit
Party, so long as any security interests granted to the Collateral Agent for the benefit of
the Secured Creditors pursuant to the Security Documents in the assets so transferred shall
remain in full force and effect and perfected (to at least the same extent as in effect
immediately prior to such transfer) and all actions required to maintain said perfected
status have been taken;




(ix) any Subsidiary of the Borrower may merge or consolidate with and into, or be
dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any
such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower
is the surviving or continuing entity of any such merger, consolidation, dissolution or
liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary of the Borrower
which is a Subsidiary Guarantor is the surviving or continuing corporation of any such
merger, consolidation, dissolution or liquidation, and (iii) any security interests granted
to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to such merger,
consolidation, dissolution or liquidation) and all actions required to maintain said
perfected status have been taken;


 


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(x) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated
with and into, or be dissolved or liquidated into, or transfer any of its assets to, any
Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) such Wholly-Owned Foreign
Subsidiary of the Borrower is the surviving or continuing entity of any such merger,
consolidation, amalgamation, dissolution or liquidation and (ii) any security interests
granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such
Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to
at least the same extent as in effect immediately prior to such merger, consolidation,
amalgamation, dissolution, liquidation or transfer) and all actions required to maintain
said perfected status have been taken;




(xi) Permitted Acquisitions may be consummated in accordance with the requirements of
Section 9.15; and




(xii) Holdings and its Subsidiaries may liquidate or otherwise dispose of Cash
Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;



To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the
sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than to
Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing.



10.03. Dividends. Holdings will not, and will not permit any of its Subsidiaries to,
authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except
that:




(i) any Subsidiary of the Borrower may pay cash Dividends to the Borrower or to any
Wholly-Owned Subsidiary of the Borrower;




(ii) any Non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its
shareholders, members or partners generally, so long as the Borrower or its respective
Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives
at least its proportionate share thereof (based upon its relative holding of the Equity
Interests in the Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of Equity Interests of such Subsidiary);




(iii) the Borrower may pay cash Dividends to Holdings, so long as the proceeds thereof
are promptly used by Holdings to pay operating expenses incurred in the ordinary course of
business (including, without limitation, outside directors and professional fees, expenses
and indemnities) and other similar corporate overhead costs and expenses;




(iv) the Borrower may pay cash Dividends to Holdings to make any payment arising from
indemnification obligations if such obligations were entered into in the ordinary course of
business and, when incurred, did not violate the applicable covenants contained herein;




(v) the Borrower may pay cash Dividends to Holdings at the times and in the amounts
necessary to enable Holdings to pay its tax obligations; provided that (x) the
amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay Federal
and state income taxes at any time shall not exceed the amount of such Federal and state
income taxes actually owing by Holdings at such time for the respective period and (y) any
refunds received by Holdings shall promptly be returned by Holdings to the Borrower up to
the amount of cash Dividends paid during the term of this Agreement pursuant to the
preceding clause (x);


 


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(vi) the Borrower may pay cash Dividends to Holdings in an aggregate amount for all
such Dividends not to exceed $5,000,000 (although no more than $2,000,000 of such Dividends
may be paid in any Fiscal Year of Holdings) for the purpose of enabling Holdings to redeem,
repurchase or otherwise acquire for value, and Holdings may redeem, repurchase or otherwise
acquire for value, outstanding shares of Holdings Common Stock (or options or warrants to
purchases Holdings Common Stock) following the death, disability or termination of
employment of officers, directors or employees of Holdings or any of its Subsidiaries,
provided that (x) the only consideration paid by Holdings in respect of such
redemptions or purchases shall be cash and (y) at the time of any cash Dividend, purchase or
payment permitted to be made pursuant to this Section 10.03(vi), no Default or Event of
Default shall then exist or result therefrom;




(vii) Holdings may pay regularly scheduled Dividends on its Qualified Preferred Stock
pursuant to the terms thereof solely through the issuance of additional shares of such
Qualified Preferred Stock (but not in cash), provided that in lieu of issuing
additional shares of such Qualified Preferred Stock as Dividends, Holdings may increase the
liquidation preference of the shares of Qualified Preferred Stock in respect of which such
Dividends have accrued;




(viii) so long as no Default or Event of Default then exists or would exist after
giving effect thereto, (a) Holdings may pay cash Dividends in an aggregate amount for all
Dividends paid by Holdings pursuant to this clause (viii) not to exceed $5,000,000 and (b)
substantially concurrently with the payment of any Dividends by Holdings pursuant to this
clause (viii), the Borrower may pay cash Dividends to Holdings in the amount to be so
Dividended by Holdings; and




(ix) so long as no Default or Event of Default then exists or would exist after giving
effect thereto, (a) Holdings may pay cash Dividends from time to time so long as the amount
so paid at any time does not exceed the Cumulative Retained Excess Cash Flow Amount as then
in effect (and so that, as a result thereof, the Cumulative Retained Excess Cash Flow Amount
will not be reduced below $0), provided that Dividends may be paid by Holdings
pursuant to this clause (ix) only if, after giving effect to the payment of the respective
Dividend and any incurrence of Indebtedness to pay same, the Total Leverage Ratio at such
time as determined on a Pro Forma Basis shall not exceed 1.50:1.00 and (b)
substantially concurrently with the payment by Holdings of any Dividends as permitted
pursuant to preceding clause (a), the Borrower may pay cash Dividends to Holdings in an
amount to be so Dividended by Holdings.



10.04. Indebtedness. Holdings will not, and will not permit any of its Subsidiaries to,
contract, create, incur, assume or suffer to exist any Indebtedness, except:




(i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;




(ii) Existing Indebtedness outstanding on the Initial Borrowing Date and listed on
Schedule 8.21 (as reduced by any repayments of principal thereof other than with the
proceeds of Permitted Refinancing Indebtedness), without giving effect to any subsequent
extension, renewal or refinancing thereof except through one or more issuances of Permitted
Refinancing Indebtedness in respect thereof;


 


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(iii) Indebtedness of the Borrower and its Subsidiaries under (x) Interest Rate
Protection Agreements entered into with respect to other Indebtedness permitted under this
Section 10.04 and (y) Other Hedging Agreements entered into in the ordinary course of
business and providing protection to the Borrower against fluctuations in currency values or
commodity prices in connection with the Borrower’s or any of its Subsidiaries’ operations,
in either case so long as the entering into of such Interest Rate Protection Agreements or
Other Hedging Agreements are bona fide hedging activities and are not for speculative
purposes;




(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by Capitalized Lease
Obligations (to the extent permitted pursuant to Section 10.07) and purchase money
Indebtedness described in Section 10.01(vii), provided that in no event shall the
sum of the aggregate principal amount of all Capitalized Lease Obligations and purchase
money Indebtedness permitted by this clause (iv) exceed $5,000,000 at any time outstanding;




(v) Indebtedness constituting Intercompany Loans to the extent permitted by Section
10.05(viii);




(vi) Indebtedness consisting of unsecured guaranties (x) by the Borrower and the
Wholly-Owned Domestic Subsidiaries of the Borrower that are Subsidiary Guarantors of each
other’s Indebtedness and lease and other contractual obligations permitted under this
Agreement and (y) by Wholly-Owned Foreign Subsidiaries of the Borrower of each other’s
Indebtedness and lease and other contractual obligations permitted under this Agreement;




(vii) Indebtedness of a Subsidiary of the Borrower acquired pursuant to a Permitted
Acquisition or other permitted Investment (or Indebtedness assumed at the time of a
Permitted Acquisition or other permitted Investment of an asset securing such Indebtedness)
(any such Indebtedness, “Permitted Acquired Debt”) and any Permitted Refinancing
Indebtedness in respect thereof, provided that (x) such Indebtedness was not
incurred in connection with, or in anticipation or contemplation of, such Permitted
Acquisition or other permitted Investment and (y) the aggregate principal amount of all
Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any one time
outstanding;




(viii) Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument drawn against insufficient funds in the ordinary
course of business, so long as such Indebtedness is extinguished within four Business Days
of its incurrence;




(ix) Indebtedness of the Borrower and its Subsidiaries with respect to performance
bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of the Borrower or any of
its Subsidiaries or in connection with judgments that do not result in a Default or an Event
of Default;




(x) Indebtedness owed to any Person providing property, casualty, liability, or other
insurance to the Borrower or any of its Subsidiaries, so long as the amount of such
Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred
only to defer the cost of, such insurance for the period in which such Indebtedness is
incurred and such Indebtedness is outstanding only for a period not exceeding twelve months;


 


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(xi) Indebtedness of the Borrower or any of its Subsidiaries which may be deemed to
exist in connection with agreements providing for indemnification, purchase price
adjustments and similar obligations in connection with the acquisition or disposition of
assets in accordance with the requirements of this Agreement, so long as any such
obligations are those of the Person making the respective acquisition or sale, and are not
guaranteed by any other Person except as permitted by Section 10.04(vi); and




(xii) indemnification obligations by any Credit Party of the obligations (which are
permitted under this Agreement) of any other Credit Party;




(xiii) indemnification obligations to gaming establishment customers in the ordinary
course of business relating to obligations arising from cash access transactions in the
ordinary course of business; and




(xiv) so long as no Default or Event of Default then exists or would result therefrom,
additional Indebtedness incurred by the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $12,500,000 at any one time outstanding, which Indebtedness
shall be unsecured unless otherwise permitted under Section 10.01(xx).



10.05. Advances, Investments and Loans. Holdings will not, and will not permit any of its
Subsidiaries to, directly or indirectly, lend money or credit or make advances to any Person, or
purchase or acquire any stock, obligations or securities of, or any other Equity Interest in, or
make any capital contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other commodities at a future date
in the nature of a futures contract, or hold any cash or Cash Equivalents (each of the foregoing an
“Investment” and, collectively, “Investments”), except that the following shall be
permitted:




(i) the Borrower and its Subsidiaries may acquire and hold accounts receivables owing
to any of them, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms of the Borrower or such Subsidiary;




(ii) Holdings and its Subsidiaries may acquire and hold cash and Cash Equivalents;




(iii) Holdings and its Subsidiaries may hold the Investments held by them on the
Initial Borrowing Date and described on Schedule 10.05, provided that any additional
Investments made with respect thereto shall be permitted only if permitted under the other
provisions of this Section 10.05;




(iv) the Borrower and its Subsidiaries may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;




(v) the Borrower and its Subsidiaries may make loans and advances to their officers,
directors and employees for moving, relocation and travel expenses and other similar
expenditures, in each case in the ordinary course of business in an aggregate amount not to
exceed $500,000 at any time (determined without regard to any write-downs or write-offs of
such loans and advances);




(vi) Holdings and its Subsidiaries may acquire and hold obligations of their officers,
and employees in connection with such officers’ and employees’ acquisition of shares of
Holdings Common Stock (so long as no cash is actually advanced by Holdings or any of its
Subsidiaries in connection with the acquisition of such obligations);


 


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(vii) the Borrower may enter into Interest Rate Protection Agreements and Other Hedging
Agreements to the extent permitted by Section 10.04(iii);




(viii) (I) any Qualified Credit Party may make intercompany loans and advances to any
other Qualified Credit Party, (II) any Subsidiary of the Borrower which is not a Qualified
Credit Party may make intercompany loans and advances to any Qualified Credit Party, (III)
any Subsidiary of the Borrower which is not a Qualified Credit Party may make intercompany
loans and advances to any other Subsidiary of the Borrower which is not a Qualified Credit
Party and (IV) any Qualified Credit Party may make intercompany loans and advances to any
Subsidiary of the Borrower which is not a Qualified Credit Party (such intercompany loans
and advances referred to in preceding clauses (I) through (IV), collectively, the
“Intercompany Loans”), provided, that (u) each Intercompany Loan shall be
evidenced by an Intercompany Note, (w) each such Intercompany Note owned or held by a Credit
Party shall be pledged to the Collateral Agent pursuant to the Pledge Agreement, (x) each
Intercompany Loan made to a Qualified Credit Party shall be subject to the subordination
provisions contained in the respective Intercompany Note, (y) at no time shall the aggregate
outstanding principal amount of all Intercompany Loans made pursuant to preceding sub-clause
(IV) of this clause (viii) when added to the amount of contributions and acquisitions of
Equity Interests theretofore made pursuant to subclause (ix)(III) of this Section
10.05(viii) (for this purpose taking the Fair Market Value of any property (other than cash)
so contributed at the time of such contributions) exceed $6,000,000 (determined without
regard to any write-downs or write-offs of such loans and advances and net of any returns on
such Investments) and (z) any Intercompany Loans made to any Qualified Credit Party pursuant
to this clause (viii) shall cease to be permitted by this clause (viii) if such Qualified
Credit Party ceases to constitute a Qualified Credit Party;




(ix) (I) Holdings may make capital contributions to, or acquire Equity Interests of,
the Borrower, (II) the Qualified Credit Parties may make capital contributions to, or
acquire Equity Interests of, any other Qualified Credit Party (other than the Borrower) and
(III) any Qualified Credit Party may make capital contributions to, or acquire Equity
Interests of, any Subsidiary of the Borrower which is not a Qualified Credit Party; provided
that (w) the aggregate amount of contributions and acquisitions of Equity Interests on and
after the Borrowing Date made pursuant to preceding subclause (III) (for this purpose,
taking the Fair Market Value of any property (other than cash) so contributed at the time of
such contribution), when added to the aggregate outstanding principal amount of Intercompany
Loans made to any Subsidiary of the Borrower which is not a Qualified Credit Party pursuant
to subclause (IV) of Section 10.05(viii) (determined without regard to any write-downs or
write-offs thereof), shall not exceed an amount equal to $1,000,000, (x) any security
interest granted to the Security Agent for the benefit of the Secured Creditors pursuant to
the Security Documents in any assets so contributed to a Qualified Credit Party shall remain
in full force and effect and perfected (to at least the same extent as in effect immediately
prior to such contribution) and all actions required to maintain said perfected status have
been taken and (y) any Investment made in or to any Qualified Credit Party pursuant to this
clause (i) shall cease to be permitted by this clause (ix) if such Qualified Credit Party
ceases to constitute a Qualified Credit Party;




(x) Holdings and its Subsidiaries may own the Equity Interests of their respective
Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as
all amounts invested in such Subsidiaries are independently justified under another
provision of this Section 10.05);




(xi) Contingent Obligations permitted by Section 10.04, to the extent constituting
Investments;


 


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(xii) Permitted Acquisitions shall be permitted in accordance with the requirements of
Section 9.15;




(xiii) the Borrower and its Subsidiaries may receive and hold promissory notes and
other non-cash consideration received in connection with any asset sale permitted by Section
10.02(iv);




(xiv) the Borrower and its Subsidiaries may make advances in the form of a prepayment
of expenses to vendors, suppliers and trade creditors consistent with their past practices,
so long as such expenses were incurred in the ordinary course of business of the Borrower or
such Subsidiary;




(xv) the Borrower and its Subsidiaries may make advances in connection with purchases
of inventory, machinery and equipment in the ordinary course of business;




(xvi) the Borrower and its Subsidiaries may make loans, extend credit or make advances
to customers and other Persons in the ordinary course of business in connection with the
sale of hardware to be used by such customer or other Person in connection with the Borrower
or such Subsidiary providing services to customer or other Person; and




(xvii) in addition to Investments permitted by clauses (i) through (xvi) of this
Section 10.05, the Borrower and its Subsidiaries may make additional loans, advances and
other Investments to or in a Person in an aggregate amount for all loans, advances and other
Investments made pursuant to this clause (xvii) (determined without regard to any
write-downs or write-offs thereof), net of cash repayments of principal in the case of loans, sale
proceeds in the case of Investments in the form of debt instruments and cash equity returns
(whether as a distribution, dividend, redemption or sale) in the case of equity investments,
not to exceed $5,000,000.



10.06. Transactions with Affiliates. Holdings will not, and will not permit any of its
Subsidiaries to, enter into any transaction or series of related transactions with any Affiliate of
Holdings or any of its Subsidiaries, other than in the ordinary course of business and on terms and
conditions substantially as favorable to Holdings or such Subsidiary as would reasonably be
obtained by Holdings or such Subsidiary at that time in a comparable arm’s-length transaction with
a Person other than an Affiliate, except that the following in any event shall be permitted:




(i) Dividends may be paid to the extent provided in Section 10.03;




(ii) loans may be made and other transactions may be entered into by Holdings and its
Subsidiaries to the extent permitted by Sections 10.02, 10.04 and 10.05;




(iii) customary fees, indemnities and reimbursements may be paid to non-officer
directors of Holdings and its Subsidiaries;




(iv) Holdings may issue Holdings Common Stock and Qualified Preferred Stock;


 


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(v) Holdings and its Subsidiaries may enter into, and may make payments under,
employment agreements, employee benefits plans, stock option plans, indemnification
provisions and other similar compensatory arrangements with officers, employees and
directors of Holdings and its Subsidiaries in the ordinary course of business;




(vi) Subsidiaries of the Borrower may pay management fees, licensing fees and similar
fees to any Qualified Credit Party;



Notwithstanding anything to the contrary contained above in this Section 10.06, in no event shall
Holdings or any of its Subsidiaries pay any management, consulting or similar fee to any of their
respective Affiliates except as specifically provided in clause (vi) of this Section 10.06.



10.07. Capital Expenditures. (a) Holdings will not, and will not permit any of its
Subsidiaries to make any Capital Expenditures, except that during any Fiscal Year of Holdings set
forth below (taken as one accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures so long as the aggregate amount of all such Capital Expenditures does not exceed in
any Fiscal Year of Holdings set forth below the sum of (x) the amount set forth opposite such
Fiscal Year below and (y) an amount equal to 2.0% of the Acquired Revenue of each Acquired Entity
or Business acquired after the Initial Borrowing Date pursuant to a Permitted Acquisition;
provided that, in the case of the respective Fiscal Year in which such Permitted
Acquisition of an Acquired Entity or Business is consummated (commencing with any such Permitted
Acquisition consummated in Fiscal Year 2011), such amount shall be prorated by multiplying the
amount specified for such Acquired Entity or Business in preceding clause (y) by a percentage, the
numerator of which is the number of days in such Fiscal Year after the date of the respective
Permitted Acquisition and the denominator of which is 365 or 366, as the case may be:



	 	 	 	 	 
	Fiscal Year Ending	 	Amount	 
	 
	 	 	 	 
	December 31, 2011
	 	$	10,000,000	 
	December 31, 2012
	 	$	10,000,000	 
	December 31, 2013
	 	$	10,000,000	 
	December 31, 2014
	 	$	10,000,000	 
	December 31, 2015
	 	$	10,000,000	 
	December 31, 2016
	 	$	10,000,000	 






(b) In addition to the foregoing, in the event that the amount of Capital Expenditures
permitted to be made by the Borrower and its Subsidiaries pursuant to clause (a) above in any
Fiscal Year of Holdings (before giving effect to any increase in such permitted Capital Expenditure
amount pursuant to this clause (b)) is greater than the amount of Capital Expenditures actually
made by the Borrower and its Subsidiaries during such Fiscal Year, the lesser of (x) such excess
and (y) 50% of the applicable permitted scheduled Capital Expenditure amount as set forth in such
clause (a) above may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding Fiscal Year, provided that (x) no amounts once carried forward
pursuant to this Section 10.07(b) may be carried forward to any Fiscal Year of Holdings thereafter
and (y) no amounts carried forward into a subsequent Fiscal Year may be used until all Capital
Expenditures permitted pursuant to clause (a) above for such subsequent Fiscal Year are first used
in full.



(c) In addition to the foregoing, the Borrower and its Subsidiaries may make additional
Capital Expenditures (which Capital Expenditures will not be included in any determination under
Section 10.07(a) or (b)) with the amount of Net Sale Proceeds received by the Borrower or any of
its Subsidiaries from any Asset Sale so long as such Net Sale Proceeds are reinvested within 180
days following the date of such Asset Sale, but only to the extent that such Net Sale Proceeds are
not otherwise required to be applied as a mandatory repayment and/or commitment reduction pursuant
to Section 5.02(e).


 


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(d) In addition to the foregoing, the Borrower and its Subsidiaries may make additional
Capital Expenditures (which Capital Expenditures will not be included in any determination under
Section 10.07(a) or (b)) with the amount of Net Cash Proceeds received by the Borrower or any of
its Subsidiaries from any Recovery Event so long as such Net Cash Proceeds are used to replace or
restore any properties or assets in respect of which such Net Cash Proceeds were paid within 180
days following the date of receipt of such Net Cash Proceeds from such Recovery Event, but only to
the extent that such Net Cash Proceeds are not otherwise required to be applied as a mandatory
repayment and/or commitment reduction pursuant to Section 5.02(g).



(e) In addition to the foregoing, the Borrower and its Subsidiaries may make additional
Capital Expenditures (which Capital Expenditures will not be included in any determination under
Section 10.07(a) or (b)) constituting Permitted Acquisitions effected in accordance with the
requirements of Section 9.15.



10.08. Interest Expense Coverage Ratio. Holdings will not permit the Interest Expense
Coverage Ratio for any Test Period ending on the last day of a Fiscal Quarter of Holdings set forth
below to be less than the ratio set forth opposite such Fiscal Quarter below:



	 	 	 	 	 
	Fiscal Quarter Ended Closest to	 	Ratio	 
	 
	 	 	 	 
	March 31, 2011
	 	 	2.50:1.00	 
	June 30, 2011
	 	 	2.50:1.00	 
	September 30, 2011
	 	 	2.75:1.00	 
	December 31, 2011
	 	 	2.75:1.00	 
	March 31, 2012
	 	 	3.00:1.00	 
	June 30, 2012
	 	 	3.00:1.00	 
	September 30, 2012
	 	 	3.00:1.00	 
	December 31, 2012
	 	 	3.00:1.00	 
	March 31, 2013
	 	 	3.25:1.00	 
	June 30, 2013
	 	 	3.25:1.00	 
	September 30, 2013
	 	 	3.25:1.00	 
	December 31, 2013
	 	 	3.25:1.00	 
	March 31, 2014
	 	 	3.50:1.00	 
	June 30, 2014
	 	 	3.50:1.00	 
	September 30, 2014
	 	 	3.50:1.00	 
	December 31, 2014
	 	 	3.50:1.00	 
	Thereafter
	 	 	3.75:1.00	 






10.09. Total Leverage Ratio. Holdings will not permit the Total Leverage Ratio at any time
during a period set forth below to be greater than the ratio set forth opposite such period below:



	 	 	 	 	 
	Period	 	Ratio	 
	 
	 	 	 	 
	From March 31, 2011 to and including December 30, 2011
	 	 	4.25:1.00	 
	From December 31, 2011 to and including March 30, 2012
	 	 	4.00:1.00	 
	March 31, 2012 to and including September 29, 2012
	 	 	3.75:1.00	 
	September 30, 2012 to and including March 30, 2015
	 	 	3.25:1.00	 
	Thereafter
	 	 	2.75:1.00	 





 


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10.10. Modifications of Acquisition Documents, Certificate of Incorporation, By-Laws and
Certain Other Agreements; Limitations on Voluntary Payments, etc.. Holdings will not, and will
not permit any of its Subsidiaries to, amend, modify or change its certificate or articles of
incorporation (including, without limitation, by the filing or modification of any certificate or
articles of designation), certificate of formation, limited liability company agreement or by-laws
(or the equivalent organizational documents), as applicable, or any agreement entered into by it
with respect to its capital stock or other Equity Interests (including any Qualified Preferred
Stock), or enter into any new agreement with respect to its capital stock or other Equity
Interests, unless such amendment, modification, change or other action contemplated by this Section
10.10 could not reasonably be expected to be adverse to the interests of the Lenders in any
material respect; provided, that, any change in the size of the board of directors or other
governing body of Holdings or any of its Subsidiaries shall not be limited or prohibited by this
Section 10.10.



10.11. Limitation on Certain Restrictions on Subsidiaries. Holdings will not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any such Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other Equity Interest or participation in its profits owned by Holdings or any
of its Subsidiaries, or pay any Indebtedness owed to Holdings or any of its Subsidiaries, (b) make
loans or advances to Holdings or any of its Subsidiaries or (c) transfer any of its properties or
assets to Holdings or any of its Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of any lease governing
any leasehold interest of Holdings or any of its Subsidiaries, (iv) customary provisions
restricting assignment of any licensing agreement (in which Holdings or any of its Subsidiaries is
the licensee) or other contract entered into by Holdings or any of its Subsidiaries in the ordinary
course of business, (v) restrictions on the transfer of any asset pending the close of the sale of
such asset, (vi) restrictions on the transfer of any asset subject to a Lien permitted by Section
10.01(iii), (vi), (vii), (xv) or (xvi)(x); (vii) any agreement or instrument governing Permitted
Acquired Debt, which encumbrance or restriction is not applicable to any Person or the properties
or assets of any Person, other than the Person or the properties or assets of the Person acquired
pursuant to the respective Permitted Acquisition or Investment and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in connection with or in
anticipation of the respective Permitted Acquisition or Investment; and (viii) restrictions
applicable to any joint venture that is a Subsidiary existing at the time of the acquisition
thereof as a result of an Investment pursuant to Section 10.05 or a Permitted Acquisition effected
in accordance with Section 9.15; provided that the restrictions applicable to such joint
venture are not made more burdensome, from the perspective of the Borrower and its Subsidiaries,
than those as in effect immediately before giving effect to the consummation of the respective
Investment or Permitted Acquisition. Notwithstanding anything to the contrary, the provisions of
this Section 10.11 will not be applicable to the Borrower and Western Money Systems until the
Mississippi Gaming Commission Approval has been obtained pursuant to Section 13.20.



10.12. Limitation on Issuance of Equity Interests. (a) Holdings will not, and will not
permit any of its Subsidiaries (other than Wholly-Owned Subsidiaries) to, issue (i) any Preferred
Equity (other than Qualified Preferred Stock issued pursuant to clause (c) below) or (ii) any
redeemable common stock or other redeemable common Equity Interests other than common stock or
other redeemable common Equity Interests that is or are redeemable at the sole option of Holdings
or such Subsidiary, as the case may be.


 


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(b) Holdings will not permit any of its Subsidiaries to issue any capital stock or other
Equity Interests (including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock or other Equity Interests, except (i) for
transfers and replacements of then outstanding shares of capital stock or other Equity Interests,
(ii) for stock splits, stock dividends and other issuances which do not decrease the percentage
ownership of Holdings or any of its Subsidiaries in any class of the capital stock or other Equity
Interests of such Subsidiary, (iii) in the case of Foreign Subsidiaries of Holdings, to qualify
directors to the extent required by applicable law and for other nominal share issuances to Persons
other than Holdings and its Subsidiaries to the extent required under applicable law, (iv) for
issuances by Subsidiaries of the Borrower which are newly created or acquired in accordance with
the terms of this Agreement and (v) Non-Wholly Owned Subsidiaries may issue Equity Interests,
subject to compliance with Section 5.02(c).



(c) Holdings may from time to time (i) issue Qualified Preferred Stock, so long as (x) no
Default or Event of Default shall exist at the time of any such issuance or immediately after
giving effect thereto, and (y) with respect to each issuance of Qualified Preferred Stock, the
gross cash proceeds therefrom (or in the case of Qualified Preferred Stock directly issued as
consideration for a Permitted Acquisition, the Fair Market Value of the assets received therefor) shall be at least equal to
100% of the liquidation preference thereof at the time of issuance and (ii) issue additional shares
of Qualified Preferred Stock to pay in kind regularly scheduled Dividends on Qualified Preferred
Stock theretofore issued in compliance with this Section 10.12(c).



10.13. Business; etc. (a) Holdings will not, and will not permit any of its Subsidiaries
to, engage directly or indirectly in any business other than the businesses engaged in by Holdings
and its Subsidiaries as of the Initial Borrowing Date and businesses ancillary or complimentary
thereto.



(b) Notwithstanding the foregoing or anything else in this Agreement to the contrary, Holdings
will not engage in any business or own any significant assets or have any material liabilities
other than (i) (x) its ownership of the capital stock of the Borrower and (y) holding cash and Cash
Equivalents at any time (together with any investment income thereon), so long as the same are
promptly paid, distributed, contributed and/or on-lent to other Persons in accordance with Sections
10.03, 10.05 or 10.06, as applicable, and (ii) those liabilities which it is responsible for under
this Agreement and the other Documents to which it is a party, provided that Holdings may
engage in those activities that are incidental to (x) the maintenance of its existence in
compliance with applicable law and (y) legal, tax and accounting matters in connection with any of
the foregoing activities.



10.14. Limitation on Creation of Subsidiaries. (a) Holdings will not, and will not permit
any of its Subsidiaries to, establish, create or acquire after the Initial Borrowing Date any
Subsidiary (other than Non-Wholly Owned Subsidiaries permitted to be established, created or
acquired in accordance with the requirements of Section 10.14(b)), provided that the
Borrower and its Wholly-Owned Subsidiaries shall be permitted to establish, create and, to the
extent permitted by this Agreement, acquire Wholly-Owned Subsidiaries, so long as, in each case,
(i) at least 5 days’ prior written notice thereof is given to the Administrative Agent (or such
shorter period of time as is acceptable to the Administrative Agent in any given case), (ii) the
capital stock or other Equity Interests of such new Subsidiary are promptly pledged pursuant to,
and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if
any, representing such stock or other Equity Interests, together with stock or other appropriate
powers duly executed in blank, are delivered to the Collateral Agent, (iii) each such new
Wholly-Owned Domestic Subsidiary (other than Designated Foreign Subsidiaries and Inactive
Subsidiaries) executes a counterpart of the Subsidiaries Guaranty, the Security Agreement and the
Pledge Agreement, (iv) each such new Designated Foreign Subsidiary that constitutes a Wholly-Owned
Domestic Subsidiary executes local law equivalents of the Security Agreement, the Pledge Agreement
and the Subsidiaries Guaranty, in each case, in form and substance satisfactory to the
Administrative Agent and (v) each such new Wholly-Owned Domestic Subsidiary (other than Inactive
Subsidiaries), to the extent requested by the Administrative Agent or the Required Lenders, takes
all actions required pursuant to Section 9.12. In addition, each new Wholly-Owned Subsidiary that
is required to execute any Credit Document shall execute and deliver, or cause to be executed and
delivered, all other relevant documentation (including opinions of counsel) of the type described
in Section 6 as such new Subsidiary would have had to deliver if such new Subsidiary were a Credit
Party on the Initial Borrowing Date. If one or more Wholly-Owned Domestic Subsidiaries which
constitute or constituted Inactive Subsidiaries at any time cease to qualify as same, then the
foregoing provisions shall apply with respect to such Wholly-Owned Domestic Subsidiaries at such
time as if they were newly-created at such time.


 


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(b) In addition to Subsidiaries of the Borrower created pursuant to preceding clause (a), the
Borrower and its Subsidiaries may establish, acquire or create, and make Investments in, Non-Wholly Owned Subsidiaries after the Effective Date as a result of Permitted Acquisitions
(subject to the limitations contained in the definition thereof) and Investments expressly
permitted to be made pursuant to Section 10.05, provided that all of the capital stock or
other Equity Interests of each such Non-Wholly Owned Subsidiary shall be pledged by any Credit
Party which owns same as, and to the extent, required by the Pledge Agreement.




SECTION 11. Events of Default.



Upon the occurrence of any of the following specified events (each, an “Event of
Default”):



11.01. Payments. The Borrower shall (i) default in the payment when due of any principal
of any Loan or any Note or (ii) default, and such default shall continue unremedied for three or
more Business Days, in the payment when due of any interest on any Loan or Note, any Unpaid Drawing
or any Fees or any other amounts owing hereunder or under any other Credit Document; or



11.02. Representations, etc. Any representation, warranty or statement made or deemed made
by any Credit Party herein or in any other Credit Document or in any certificate delivered to the
Administrative Agent or any Lender pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or



11.03. Covenants. Holdings or any of its Subsidiaries shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in Section 5.02(k),
9.01(f)(i), 9.08, 9.11, 9.13, 9.14, 9.15 or Section 10 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this Agreement (other than
those set forth in Sections 11.01 and 11.02) and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the date on which such default shall first become known
to any officer of the Borrower or any other Credit Party or (ii) the date on which written notice
thereof is given to the defaulting party by the Administrative Agent or the Required Lenders; or



11.04. Default Under Other Agreements. (i) Holdings or any of its Subsidiaries shall (x)
default in any payment of any Indebtedness (other than the Obligations) beyond the period of grace,
if any, provided in an instrument or agreement under which such Indebtedness was created or (y)
default in the observance or performance of any agreement or condition relating to any Indebtedness
(other than the Obligations) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause (determined without regard to
whether any notice is required), any such Indebtedness to become due prior to its stated maturity,
or (ii) any Indebtedness (other than the Obligations) of Holdings or any of its Subsidiaries shall
be declared to be (or shall become) due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 11.04 unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (i) and (ii) is at least
$5,000,000; or


 


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11.05. Bankruptcy, etc. Holdings or any of its Subsidiaries shall commence a voluntary
case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or
hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary
case is commenced against Holdings or any of its Subsidiaries, and the petition is not controverted
within 10 days, or is not dismissed within 60 days after the filing thereof, provided,
however, that during the pendency of such period, each Lender shall be relieved of its
obligation to extend credit hereunder; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of Holdings or any of
its Subsidiaries, to operate all or any substantial portion of the business of Holdings or any of
its Subsidiaries, or Holdings or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to
Holdings or any of its Subsidiaries, or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60 days after the filing
thereof, or Holdings or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is entered; or Holdings or any of
its Subsidiaries makes a general assignment for the benefit of creditors; or any Company action is
taken by Holdings or any of its Subsidiaries for the purpose of effecting any of the foregoing; or




11.06. ERISA.




(a) one or more ERISA Events shall have occurred, or



(b) there is or arises an Unfunded Pension Liability (taking into account only Plans with
positive Unfunded Pension Liability); or



(c) there is or arises any potential withdrawal liability under Section 4201 of ERISA, if
Holdings, any Subsidiary of Holdings or the ERISA Affiliates were to withdraw completely from any
and all Multiemployer Plans;



and the liability of any or all of Holdings, any Subsidiary of Holdings and the ERISA
Affiliates contemplated by the foregoing clauses (a), (b) and (c), either individually or in the
aggregate, has had or would be reasonably expected to have, a Material Adverse Effect; or



11.07. Security Documents. Any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors
the Liens, rights, powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the Collateral, in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons (except as permitted by
Section 10.01), and subject to no other Liens (except as permitted by Section 10.01), or any Credit
Party shall default in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document and such default shall
continue beyond the period of grace, if any, specifically applicable thereto pursuant to the terms
of such Security Document; provided that the failure to have a perfected and enforceable
Lien on Collateral in favor of the Collateral Agent shall not give rise to an Event of Default
under this Section 11.07, unless the aggregate fair market value of all Collateral over which the
Collateral Agent fails to have a perfected and enforceable Lien, except to the extent that any lack
of perfection or enforceability results from any act or omission of the Collateral Agent or the
Administrative Agent (so long as such act or omission does not result from the breach or
non-compliance by a Credit Party with the terms of any Credit Document), equals or exceeds
$1,000,000; or


 


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11.08. Guaranties. Any Guaranty or any provision thereof shall cease to be in full force
or effect as to any Guarantor (except as a result of a release of any Subsidiary Guarantor in
accordance with the terms thereof), or any Guarantor or any Person acting for or on behalf of such
Guarantor shall deny or disaffirm such Guarantor’s obligations under the Guaranty to which it is a
party or any Guarantor shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Guaranty to which it is a party;
or



11.09. Judgments. One or more judgments or decrees shall be entered against Holdings or
any Subsidiary of Holdings involving in the aggregate for Holdings and its Subsidiaries a liability
(not paid or to the extent not covered by a reputable and solvent insurance company) and such
judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged
or stayed or bonded pending appeal for any period of 30 consecutive days, and the aggregate amount
of all such judgments equals or exceeds $5,000,000; or



11.10. Change of Control. A Change of Control shall occur; or



11.11. Vault Cash Agreement Cross-Default. (A) a “Client Event of Default” (as defined in
the Vault Cash Agreement) or a similar event of default, as may be defined under any successor
Vault Cash Agreement (beyond any applicable grace period), shall occur and be continuing under the
Vault Cash Agreement or (B) Holdings or any of its Subsidiaries fails to perform or observe any
other condition or covenant, or any other event shall occur or condition shall exist, under the
Vault Cash Agreement, if the effect of such failure, event or condition is to cause, or to permit a
Vault Cash Provider or any of its agents, to terminate the Vault Cash Agreement or to retrieve from
the ATMs or (C) the Vault Cash Agreement shall be amended, modified, supplemented or replaced, or
shall fail to be replaced upon the termination thereof or shall be replaced on substantially
modified terms from the then existing Vault Cash Agreement, in each case pursuant to this clause
(C) only, if the effect thereof could be reasonably likely to cause a Material Adverse Effect;



then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by
written notice to the Borrower, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, any Lender or the holder of any Note to enforce its claims
against any Credit Party (provided that, if an Event of Default specified in Section 11.05
shall occur with respect to the Borrower, the result which would occur upon the giving of written
notice by the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately and any Commitment
Commission shall forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified in Section 11.05
with respect to the Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash or Cash Equivalents, to be held as security by the Collateral Agent, as is equal to
the aggregate Stated Amount of all Letters of Credit issued for the account of the Borrower and
then outstanding; (v) enforce, as Collateral Agent, all of the Liens and security interests created
pursuant to the Security Documents; (vi) enforce each Guaranty; and (vii) apply any cash collateral
held by the Administrative Agent pursuant to Section 5.02 to the repayment of the Obligations.


 


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SECTION 12. The Administrative Agent. 



12.01. Appointment. The Lenders hereby irrevocably designate and appoint DBTCA as
Administrative Agent (for purposes of this Section 12 and Section 13.01, the term “Administrative
Agent” also shall include DBTCA in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Credit Documents and any other instruments and agreements
referred to herein or therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto. The Administrative
Agent may perform any of its respective duties hereunder by or through its officers, directors,
agents, employees or affiliates.



12.02. Nature of Duties. (a) The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and in the other Credit
Documents. Neither the Administrative Agent nor any of its officers, directors, agents, employees
or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any
Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set forth herein or
therein.



(b) Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arrangers, the Syndication Agent and the Documentation Agent are named as such
for recognition purposes only, and in its capacity as such shall have no powers, duties,
responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the
transactions contemplated hereby and thereby; it being understood and agreed that the Lead
Arrangers, the Syndication Agent and the Documentation Agent shall be entitled to all
indemnification and reimbursement rights in favor of the Administrative Agent as, and to the
extent, provided for under Sections 12.06 and 13.01. Without limitation of the foregoing, the Lead
Arrangers, the Syndication Agent and the Documentation Agent shall not, solely by reason of this
Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender
or any other Person.



12.03. Lack of Reliance on the Administrative Agent. Independently and without reliance
upon the Administrative Agent, each Lender and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection
with the making and the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of Holdings and its
Subsidiaries and, except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis, to provide any
Lender or the holder of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or times thereafter. The
Administrative Agent shall not be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of Holdings or any of its
Subsidiaries or be required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of Holdings or any of its Subsidiaries or the existence or possible existence
of any Default or Event of Default.


 


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12.04. Certain Rights of the Administrative Agent. If the Administrative Agent requests
instructions from the Required Lenders with respect to any act or action (including failure to act)
in connection with this Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Lenders; and the Administrative Agent shall not
incur liability to any Lender by reason of so refraining. Without limiting the foregoing, neither
any Lender nor the holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions of the Required
Lenders.



12.05. Reliance. The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative
Agent.



12.06. Indemnification. To the extent the Administrative Agent (or any affiliate thereof)
is not reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify the
Administrative Agent (and any affiliate thereof) in proportion to their respective “percentage” as
used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for
and against any and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing
its duties hereunder or under any other Credit Document or in any way relating to or arising out of
this Agreement or any other Credit Document; provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or
such affiliate’s) gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).



12.07. The Administrative Agent in its Individual Capacity. With respect to its obligation
to make Loans, or issue or participate in Letters of Credit, under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a “Lender” and
may exercise the same rights and powers as though it were not performing the duties specified
herein; and the term “Lender,” “Majority Lenders”, “Required Lenders,” or
any similar terms shall, unless the context clearly indicates otherwise, include the Administrative
Agent in its respective individual capacities. The Administrative Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of banking, investment
banking, trust or other business with, or provide debt financing, equity capital or other services
(including financial advisory services) to any Credit Party or any Affiliate of any Credit Party
(or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if
they were not performing the duties specified herein, and may accept fees and other consideration
from any Credit Party or any Affiliate of any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.


 


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12.08. Holders. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer
or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.



12.09. Resignation by the Administrative Agent. (a) The Administrative Agent may resign
from the performance of all its respective functions and duties hereunder and/or under the other
Credit Documents at any time by giving 15 Business Days’ prior written notice to the Lenders and,
unless a Default or an Event of Default under Section 11.05 then exists, the Borrower. Any such
resignation by an Administrative Agent hereunder shall also constitute its resignation as an
Issuing Lender and the Swingline Lender, in which case the resigning Administrative Agent (x) shall
not be required to issue any further Letters of Credit or make any additional Swingline Loans
hereunder and (y) shall maintain all of its rights as Issuing Lender or Swingline Lender, as the
case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it,
prior to the date of such resignation. Such resignation shall take effect upon the appointment of
a successor Administrative Agent pursuant to clauses (b) and (c) below or as otherwise provided
below.



(b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrower’s approval shall not be
required if an Event of Default then exists).



(c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall not be
required if an Event of Default then exists), shall then appoint a successor Administrative Agent
who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.



(d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.



(e) Upon a resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this Agreement and the
other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the
other Credit Documents) shall continue in effect for the benefit of the Administrative Agent for
all of its actions and inactions while serving as the Administrative Agent.


 


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12.10. Collateral Matters. (a) Each Lender authorizes and directs the Collateral Agent to
enter into the Security Documents for the benefit of the Lenders and the other Secured Creditors.
Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to
agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in
accordance with the provisions of this Agreement or the Security Documents, and the exercise by the
Required Lenders of the powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The
Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any
notice to or further consent from any Lender, from time to time prior to an Event of Default, to
take any action with respect to any Collateral or Security Documents which may be necessary to
perfect and maintain perfected the security interest in and liens upon the Collateral granted
pursuant to the Security Documents.



(b) The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to
release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon
termination of the Commitments and payment and satisfaction of all of the Obligations (other than
inchoate indemnification obligations) at any time arising under or in respect of this Agreement or
the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property
being sold or otherwise disposed of (to Persons other than Holdings and its Subsidiaries) upon the
sale or other disposition thereof in compliance with Section 10.02, (iii) if approved, authorized
or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent
required by Section 13.12) or (iv) as otherwise may be expressly provided in the relevant Security
Documents or the last sentence of each of Sections 10.01 and 10.02. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release particular types or items of Collateral pursuant to this Section 12.10.



(c) The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other
Person to assure that the Collateral exists or is owned by any Credit Party or is cared for,
protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto
have been properly or sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 12.10 or in any of the Security
Documents, it being understood and agreed that in respect of the Collateral, or any act, omission
or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the
Lenders and that the Collateral Agent shall have no duty or liability whatsoever to
the Lenders, except for its gross negligence or willful misconduct (as determined by a court
of competent jurisdiction in a final and non-appealable decision).



12.11. Delivery of Information. The Administrative Agent shall not be required to deliver
to any Lender originals or copies of any documents, instruments, notices, communications or other
information received by the Administrative Agent from any Credit Party, any Subsidiary, the
Required Lenders, any Lender or any other Person under or in connection with this Agreement or any
other Credit Document except (i) as specifically provided in this Agreement or any other Credit
Document and (ii) as specifically requested from time to time in writing by any Lender with respect
to a specific document, instrument, notice or other written communication received by and in the
possession of the Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.


 


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SECTION 13. Miscellaneous.



13.01. Payment of Expenses, etc. (a) The Borrower hereby agrees to: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and the Administrative Agent’s other counsel and consultants) in
connection with the preparation, execution, delivery and administration of this Agreement and the
other Credit Documents and the documents and instruments referred to herein and therein and any
amendment, waiver or consent relating hereto or thereto, of the Administrative Agent and its
Affiliates in connection with its or their syndication efforts with respect to this Agreement and
of the Administrative Agent, of each Issuing Lender and the Swingline Lender in connection with the
Back-Stop Arrangements entered into by such Persons and, after the occurrence of an Event of
Default, each of the Issuing Lenders and Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments referred to herein and
therein or in connection with any refinancing or restructuring of the credit arrangements provided
under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy
proceedings (including, in each case without limitation, the reasonable fees and disbursements of
counsel and consultants for the Administrative Agent and, after the occurrence of an Event of
Default, counsel for each of the Issuing Lenders and Lenders); (ii) pay and hold the Administrative
Agent, each of the Issuing Lenders and each of the Lenders harmless from and against any and all
present and future stamp, excise and other similar documentary taxes with respect to the foregoing
matters and save the Administrative Agent, each of the Issuing Lenders and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to the Administrative Agent, such Issuing Lender or
such Lender) to pay such taxes; and (iii) indemnify the Administrative Agent, each Issuing Lender
and each Lender, and each of their respective officers, directors, employees, representatives,
agents, affiliates, trustees and investment advisors (each, an “Indemnified Person”) from
and hold each of them harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements)
incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in
any way related to, or by reason of, (a) any investigation, litigation, other proceeding or any
other circumstance (whether or not the Administrative Agent, any Issuing Lender or any Lender is a
party thereto and whether or not such investigation, litigation or other proceeding is brought by
or on behalf of any Credit Party) related to the entering into and/or performance of this Agreement
or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of the Transaction or any other transactions contemplated herein or
in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, (b)
the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or
on the surface or subsurface of any Real Property at any time owned, leased or operated by Holdings
or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials by Holdings or any of its Subsidiaries at any location, whether or not owned,
leased or operated by Holdings or any of its Subsidiaries, the non-compliance by Holdings or any of
its Subsidiaries with any Environmental Law (including applicable permits thereunder), or any
Environmental Claim asserted against Holdings, any of its Subsidiaries or any Real Property at any
time owned, leased or operated by Holdings or any of its Subsidiaries or (c) any action pursuant
to, or any failure to comply with, Section 13.21, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct
of the Indemnified Person to be indemnified (as determined by a court of competent jurisdiction in
a final and non-appealable decision)). To the extent that the undertaking to indemnify, pay or
hold harmless the Administrative Agent, any Issuing Lender or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.


 


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(b) To the full extent permitted by applicable law, each of Holdings and the Borrower shall
not assert, and hereby waives, any claim against any Indemnified Person, on any theory of
liability, for special, indirect, consequential or incidental damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or the use of the proceeds thereof. No Indemnified Person shall be liable for any damages
arising from the use by unintended recipients of any information or other materials distributed by
it through telecommunications, electronic or other information transmission systems in connection
with this Agreement or the other Credit Documents or the transactions contemplated hereby or
thereby, except to the extent the liability of such Indemnified Person results from such
Indemnified Person’s gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).



13.02. Right of Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuance of an Event of Default, the Administrative Agent, each Issuing Lender
and each Lender is hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by the Administrative
Agent, such Issuing Lender or such Lender (including, without limitation, by branches and agencies
of the Administrative Agent, such Issuing Lender or such Lender wherever located) to or for the
credit or the account of Holdings or any of its Subsidiaries against and on account of the
Obligations and liabilities of the Credit Parties to the Administrative Agent, such Issuing Lender
or such Lender under this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to Section 13.04(b), and
all other claims of any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not the Administrative Agent, such Issuing
Lender or such Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.



13.03. Notices. (a) Except as otherwise expressly provided herein, all notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopier or cable communication) and
mailed, telegraphed, telecopied, cabled or delivered: if to any Credit Party, at the address
specified opposite its signature below or in the other relevant Credit Documents; if to any Lender,
at its address specified on Schedule 1.01(b); and if to the Administrative Agent, at the Notice
Office; or, as to any Credit Party or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as to each Lender, at
such other address as shall be designated by such Lender in a written notice to the Borrower and
the Administrative Agent. All such notices and communications shall, when mailed, telegraphed,
telecopied, or cabled or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the case may be, or sent
by telecopier, except that notices and communications to the Administrative Agent and the Borrower
shall not be effective until received by the Administrative Agent or the Borrower, as the case may
be.



(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative
Agent, Holdings and the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or
communications.


 


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13.04. Benefit of Agreement; Assignments; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, neither Holdings nor the Borrower
may assign or transfer any of its rights, obligations or interest hereunder without the prior
written consent of the Lenders and, provided further, that, although any Lender may grant
participations to Eligible Transferees (but not to other Persons) in its rights hereunder, such
Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or
any portion of its Commitments hereunder except as provided in Sections 2.13 and 13.04(b)) and the
participant shall not constitute a “Lender” hereunder and, provided further, that no Lender
shall transfer or grant any participation under which the participant shall have rights to approve
any amendment to or waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of
Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof (it being understood that any
amendment or modification to the financial definitions in this Agreement or to Section 13.07(a)
shall not constitute a reduction in the rate of interest or Fees payable hereunder), or increase
the amount of the participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment or a mandatory prepayment of the Loans shall not constitute a change in the terms
of such participation, and that an increase in any Commitment (or the available portion thereof) or
Loan shall be permitted without the consent of any participant if the participant’s participation
is not increased as a result thereof), (ii) consent to the assignment or transfer by Holdings or
the Borrower of any of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans or Letters of Credit hereunder in which such
participant is participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the participant’s rights
against such Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation.



(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related outstanding Obligations
(or, if the Commitments with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to (i)(A) its parent company and/or any affiliate of such Lender which is at
least 50% owned by such Lender or its parent company or (B) to one or more other Lenders or any
affiliate of any such other Lender which is at least 50% owned by such other Lender or its parent
company (provided that any fund that invests in loans and is managed or advised by the same
investment advisor of another fund which is a Lender or an Affiliate of a Lender (or by an
Affiliate of such investment advisor) shall be treated as an affiliate of such other Lender for the
purposes of this sub-clause (x)(i)(B)), provided, that no such assignment may be made to any such
Person that is, or would at such time constitute, a Defaulting Lender or (ii) in the case of any
Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or
advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least $1,000,000 (or such lesser
amount as the Administrative Agent and, so long as no Event of Default then exists and is
continuing, the Borrower may otherwise agree) in the aggregate for the assigning Lender or
assigning Lenders, of such Commitments and related outstanding Obligations (or, if the Commitments
with respect to the relevant Tranche have terminated, outstanding Obligations) hereunder to one or
more Eligible Transferees (treating any fund that invests in loans and any other fund that invests
in loans and is managed or advised by the same investment advisor of such fund or by an Affiliate
of such investment advisor as a single assignor or Eligible Transferee (as applicable) (if any)),
each of which assignees shall become a party to this Agreement as a Lender by execution of an
Assignment and Assumption Agreement, provided that (i) at such time, Schedule 1.01(a) shall
be deemed modified to reflect the Commitments and/or outstanding Loans, as the case may be, of such
new Lender and of the existing Lenders, (ii) upon the surrender of the relevant Notes by the
assigning Lender (or, upon such assigning Lender’s indemnifying the Borrower for any lost Note
pursuant


 


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to a customary indemnification agreement) new Notes will be issued, at the Borrower’s
expense, to such new Lender and to the assigning Lender upon the request of such new Lender or
assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with
appropriate modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long
as no Default or Event of Default then exists, the Borrower, shall be required in connection with
any such assignment pursuant to clause (y) above (such consent, in any case, not to be unreasonably
withheld, delayed or conditioned), provided that the Borrower shall be deemed to have
consented to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within 5 Business Days after having received notice thereof, (iv) the consent
of each Issuing Lender shall be required in connection with any such assignment of Revolving Loan
Commitments (and related Obligations) pursuant to clause (y) above (such consent, in any case, not
to be unreasonably withheld, delayed or conditioned), (v) the Administrative Agent shall receive at
the time of each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 (provided that only one such fee shall be
payable in the case of one or more concurrent assignments by or to investment funds managed or
advised by the same investment advisor or an affiliated investment advisor) and (vi) no such
transfer or assignment will be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.15. To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Lender shall be relieved of its obligations hereunder with respect to its assigned
Commitments and outstanding Loans. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall, to the extent legally entitled to do so, provide to
the Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a Section
5.04(b)(ii) Certificate) described in Section 5.04(b). To the extent that an assignment of all or any portion of a
Lender’s Commitments and related outstanding Obligations pursuant to Section 2.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under Section 2.10, 3.06
or 5.04 from those being charged by the respective assigning Lender prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the Borrower, in
accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay
any other increased costs of the type described above resulting from changes after the date of the
respective assignment).



(c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, any Lender may pledge all or any portion of its Loans and Notes to its
trustee or to a collateral agent providing credit or credit support to such Lender in support of
its obligations to such trustee, such collateral agent or a holder of such obligations, as the case
may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its
obligations hereunder.



(d) Any Lender which assigns all of its Commitments and/or Loans hereunder in accordance with
Section 13.04(b) shall cease to constitute a “Lender” hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such assigning Lender.



13.05. No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower or any other Credit Party and the Administrative Agent, the Collateral Agent,
any Issuing Lender or any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or privilege hereunder
or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other
or further notice or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to any other or
further action in any circumstances without notice or demand.


 


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13.06. Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the
Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of
the Borrower in respect of any Obligations hereunder, the Administrative Agent shall distribute
such payment to the Lenders entitled thereto (other than any Lender that has consented in writing
to waive its pro rata share of any such payment) pro rata based
upon their respective shares, if any, of the Obligations with respect to which such payment was
received.



(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such Obligation then owed
and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall
result in a proportional participation by all the Lenders in such amount; provided that if
all or any portion of such excess amount is thereafter recovered from such Lenders, such purchase
shall be rescinded and the purchase price restored to the extent of such recovery, but without
interest.



(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.



13.07. Calculations; Computations. (a) The financial statements to be furnished to the
Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied
throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed
in writing by Holdings to the Lenders); provided that, (i) except as otherwise specifically
provided herein, all computations of Excess Cash Flow (including the Applicable Excess Cash Flow
Percentage) and the Applicable Margin, and all computations and all definitions (including
accounting terms) used in determining compliance with Sections 2.14, 9.15 and Section 10,
inclusive, shall utilize GAAP and policies in conformity with those used to prepare the audited
financial statements of Holdings referred to in Section 8.05(a) for the Fiscal Year ended 2009,
(ii) notwithstanding anything to the contrary contained herein, all such financial statements shall
be prepared, and all financial covenants contained herein or in any other Credit Document shall be
calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar
accounting principle) permitting a Person to value its financial liabilities at the fair value
thereof and (iii) to the extent expressly provided herein, certain calculations shall be made on a
Pro Forma Basis.



(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made
on the basis of a year of 360 days (except for interest calculated by reference to the Prime
Lending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual
number of days (including the first day but excluding the last day; except that in the case of
Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for
which such interest, Commitment Commission or Fees are payable.


 


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13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
OF HOLDINGS AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER HOLDINGS OR THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR THE BORROWER.
EACH OF HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO HOLDINGS OR THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS OR THE BORROWER IN ANY OTHER JURISDICTION.



(b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.



(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


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13.09. Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.



13.10. Effectiveness. This Agreement shall become effective on the date (the
“Effective Date”) on which Holdings, the Borrower, the Administrative Agent, the Lead
Arranger and each of the Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Administrative Agent at the Notice
Office or, in the case of the Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing), written or telex notice (actually received) at such office that the same
has been signed and mailed to it. The Administrative Agent will give Holdings, the Borrower and
each Lender prompt written notice of the occurrence of the Effective Date.



13.11. Headings Descriptive. The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.



13.12. Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit Document
nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the respective Credit Parties
party hereto or thereto and the Required Lenders (although additional parties may be added to (and
annexes may be modified to reflect such additions), and Subsidiaries of the Borrower may be
released from, the Subsidiaries Guaranty and the Security Documents in accordance with the
provisions hereof and thereof without the consent of the other Credit Parties party thereto or the
Required Lenders), provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than, except with respect to following clause (i), a
Defaulting Lender) (with Obligations being directly affected in the case of following clauses
(i)(y) and (vi) or whose Obligations are being extended in the case of following clause (i)(x)),
(i)(x) extend the final scheduled maturity of any Loan or Note or extend the stated expiration date
of any Letter of Credit beyond the Revolving Loan Maturity Date, (y) or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with the waiver of
applicability of any post-default increase in interest rates), or reduce (or forgive) the principal
amount thereof (it being understood that any amendment or modification to the financial definitions
in this Agreement or to Section 13.07(a) shall not constitute a reduction in the rate of interest
or Fees for the purposes of this clause (i)), (ii) release all or substantially all of the
Collateral (except as expressly provided in the Credit Documents) under all the Security Documents,
(iii) amend, modify or waive any provision of this Section 13.12(a) (except for technical
amendments with respect to additional extensions of credit pursuant to this Agreement which afford
the protections to such additional extensions of credit of the type provided to the Term Loans and
the Revolving Loan Commitments on the Effective Date), (iv) reduce the “majority” voting threshold
specified in the definition of Required Lenders (it being understood that, pursuant to Section 2.14
or with the consent of the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are included on the Effective
Date) or (v) consent to the assignment or transfer by Holdings or the Borrower of any of its rights
and obligations under this Agreement or (vi) amend, modify or waive any provision of Section 13.06,
except in connection with an amendment that provides for a prepayment of Loans by the Borrower
(offered ratably to all Lenders with Loans under the applicable Tranche, provided that no such
Lender shall be required to accept such offer) at a discount to par on terms and conditions
approved by the Administrative Agent and the Required Lenders; provided further, that no
such change, waiver, discharge or termination shall (1) increase the Commitments of any Lender over
the


 


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amount thereof then in effect without the consent of such Lender (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Total Commitment or a mandatory repayment of Loans shall not constitute
an increase of the Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase of the Commitment of such Lender), (2)
without the consent of each Issuing Lender, amend, modify or waive any provision of Section 3 or
alter its rights or obligations with respect to Letters of Credit, (3) without the consent of the
Swingline Lender, alter the Swingline Lender’s rights or obligations with respect to Swingline
Loans, (4) without the consent of the Administrative Agent, amend, modify or waive any provision of
Section 12 or any other provision as same relates to the rights or obligations of the
Administrative Agent, (5) without the consent of Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, (6) except in cases where
additional extensions of term loans and/or revolving loans are being afforded substantially the
same treatment afforded to the Term Loans and Revolving Loans
pursuant to this Agreement on the Effective Date, without the consent of the Majority Lenders of
each Tranche which is being allocated a lesser prepayment or repayment as a result of the actions
described below, alter the required application of any prepayments or repayments, as between the
various Tranches, pursuant to Section 5.02(h) (it being understood, however, that (x) the Required
Lenders may waive, in whole or in part, any such prepayment or repayment, so long as the
application, as amongst the various Tranches, of any such prepayment or repayment which is still
required to be made is not altered and (y) any conversion of any Tranche of Loans into another
Tranche of Loans hereunder in like principal amount shall not be considered a “prepayment” or
“repayment” for purposes of this clause (6)), (7) without the consent of the Majority Lenders of
the respective Tranche affected thereby, amend the definition of Majority Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions of credit pursuant
to this Agreement may be included in the determination of the Majority Lenders on substantially the
same basis as the extensions of Loans and Commitments are included on the Effective Date), (8)
without the written consent of the Majority Lenders with Revolving Loans and/or Revolving
Commitments, amend, modify or waive any condition precedent set forth in Section 7 with respect to
the making of Revolving Loans, Swingline Loans or the issuance of Letters of Credit, or (9) reduce
the amount of, or extend the date of, any Scheduled Repayment without the consent of the Majority
Lenders holding Term Loans.



(b) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the
first proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent
of one or more of such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual consent is required
are treated as described in either clause (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders (or, at the option of the Borrower, if the respective Lender’s
consent is required with respect to less than all Tranches of Loans (or related Commitments), to
replace only the Revolving Loan Commitments and/or Loans of the respective non-consenting Lender
which gave rise to the need to obtain such Lender’s individual consent) with one or more
Replacement Lenders pursuant to Section 2.13 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender’s Revolving Loan Commitment (if such Lender’s consent is
required as a result of its Revolving Loan Commitment) and/or repay each Tranche of outstanding
Loans of such Lender which gave rise to the need to obtain such Lender’s consent and/or cash
collateralize its applicable RL Percentage of the Letter of Credit of Outstandings, in accordance
with Sections 4.02(b) and/or 5.01(b), provided that, unless the Commitments which are
terminated and Loans which are repaid pursuant to preceding clause (B) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B), the Required Lenders (determined after
giving effect to the proposed action) shall specifically consent thereto, provided further,
that the Borrower shall not have the right to replace a Lender, terminate its Commitment or repay
its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to the second proviso to Section 13.12(a).


 


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(c) Notwithstanding the foregoing, (x) any provision of this Agreement may be amended by an
agreement in writing entered into by Holdings, the Borrower, the Required Lenders and the
Administrative Agent (and, if their rights or obligations are affected thereby, each Issuing Lender
and the Swingline Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto
receives payment (including pursuant to an assignment to a replacement Lender in accordance with
Section 13.04) in full of this principal of and interest accrued on each Loan made by it and all
other amounts owing to it or accrued for its account under this Agreement and (y) this Agreement may
be amended (or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding thereunder and the
accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the Revolving Credit Loans and the accrued
interest and fees in respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders.



(d) In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, Holdings, the Borrower and the Lenders providing the relevant
Replacement Term Loans to permit the refinancing of all outstanding Term Loans (the “Refinanced
Term Loans”) with a replacement term loan tranche denominated in Dollars (the “Replacement
Term Loans”) hereunder; provided that (a) the aggregate principal amount of such
Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term
Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such
Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such
Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization
for periods where amortization has been eliminated as a result of prepayment of the applicable Term
Loans), and (d) all other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those
applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants
and other terms applicable to any period after the latest final maturity of the Term Loans in
effect immediately prior to such refinancing and (e) no change shall be made pursuant to this
clause (d) to the terms of this Agreement or the other Credit Documents applicable to the remaining
Lenders without obtaining the consents required by Section 13.12(a).



(e) Notwithstanding anything to the contrary contained in this Section 13.12, (x) Security
Documents (including any Additional Security Documents) and related documents executed by
Subsidiaries in connection with this Agreement may be in a form reasonably determined by the
Administrative Agent and may be amended, supplemented and waived with the consent of the
Administrative Agent and the Borrower without the need to obtain the consent of any other Person if
such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice
of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such
Security Document or other document to be consistent with this Agreement and the other Credit
Documents and (y) if following the Effective Date, the Administrative Agent and any Credit Party
shall have jointly identified an ambiguity, inconsistency, obvious error or any error or omission
of a technical or immaterial nature, in each case, in any provision of the Credit Documents (other
than the Security Documents), then the Administrative Agent and the Credit Parties shall be
permitted to amend such provision and such amendment shall become effective without any further
action or consent of any other party to any Credit Documents if the same is not objected to in
writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.


 


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(f) Notwithstanding anything to the contrary contained in clauses (a) or (d) above of this
Section 13.12, the Borrower, the Administrative Agent and each Additional Lender may, in accordance
with the provisions of Section 2.14, enter into an Incremental Amendment, provided that after the
execution and delivery by the Borrower, the Administrative Agent and each such Additional Lender of
such Incremental Amendment, such Incremental Amendment may thereafter only be modified in
accordance with the requirements of clause (a) above of this Section 13.12.



13.13. Survival. All indemnities set forth herein including, without limitation, in
Sections 2.10, 2.11, 3.06, 5.04, 12.06 and 13.01 shall survive the execution, delivery and
termination of this Agreement and the Notes and the making and repayment of the Obligations.



13.14. Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14
would, at the time of such transfer, result in increased costs under Section 2.10, 2.11, 3.06 or
5.04 from those being charged by the respective Lender prior to such transfer, then the Borrower
shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay
any other increased costs of the type described above resulting from changes after the date of the
respective transfer).



13.15. Register. The Borrower hereby designates the Administrative Agent to serve as its
agent, solely for purposes of this Section 13.15, to maintain a register (the “Register”)
on which it will record the Commitments from time to time of each of the Lenders, the Loans made by
each of the Lenders and each repayment in respect of the principal amount of the Loans of each
Lender. Failure to make any such recordation, or any error in such recordation, shall not affect
the Borrower’s obligations in respect of such Loans. With respect to any Lender, the transfer of
the Commitments of such Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is recorded on the Register
maintained by the Administrative Agent with respect to ownership of such Commitments and Loans and
prior to such recordation all amounts owing to the transferor with respect to such Commitments and
Loans shall remain owing to the transferor. The registration of assignment or transfer of all or
part of any Commitments and Loans shall be recorded by the Administrative Agent on the Register
upon and only upon the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Upon such acceptance and
recordation, the assignee specified therein shall be treated as a Lender for all purposes of this
Agreement. Coincident with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer of all or part of a
Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the
Note (if any) evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the
request of any such Lender. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in performing its duties under
this Section 13.15.


 


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13.16. Confidentiality; Etc. (a) Subject to the provisions of clause (b) of this Section
13.16, each Lender agrees that it will use its reasonable efforts not to disclose without the prior
consent of Holdings (other than to its employees, auditors, advisors or counsel or to another
Lender if such Lender or such Lender’s holding or parent company in its sole discretion determines
that any such party should have access to such information, provided such Persons shall be subject
to the provisions of this Section 13.16 to the same extent as such Lender) any information with
respect to Holdings or any of its Subsidiaries which is now or in the future furnished pursuant to
this Agreement or any other Credit Document, provided that any Lender may disclose any such
information (i) as has become generally available to the public other than by virtue of a
breach of this Section 13.16(a) by the respective Lender, (ii) as may be required or appropriate in
any report, statement or testimony submitted to any municipal, state or Federal regulatory body
having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (iii) as may be required or appropriate in respect to any summons
or subpoena or in connection with any litigation, (iv) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the Collateral
Agent, (vi) 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 13.16 and (vii) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Notes or Commitments or any interest
therein by such Lender, provided that such prospective transferee agrees to be bound by the
confidentiality provisions contained in this Section 13.16.



(b) Each of Holdings and the Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such Lender, any information
related to Holdings or any of its Subsidiaries (including, without limitation, any non-public
customer information regarding the creditworthiness of Holdings and its Subsidiaries), provided
such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such
Lender.



(c) At the request of the Administrative Agent, each of Holdings and the Borrower hereby
agrees that each document to be disseminated by the Administrative Agent or by the Lead Arrangers
to any Lender in connection with this Agreement or any other Credit Document will be identified by
Holdings as either (i) containing Private Lender Information or (ii) containing solely Public
Lender Information, and that each of the Administrative Agent, the Lead Arrangers and each other
Lender shall be entitled to conclusively rely on such identifications.



13.17. Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes Owed
by, Persons Not Organized in the United States. The parties hereto acknowledge and agree that
the provisions of the various Security Documents executed and delivered by the Credit Parties
require that, among other things, all promissory notes executed by, and capital stock and other
Equity Interests in, various Persons owned by the respective Credit Party be pledged, and delivered
for pledge, pursuant to the Security Documents. The parties hereto further acknowledge and agree
that each Credit Party shall be required to take all actions under the laws of the jurisdiction in
which such Credit Party is organized to create and perfect all security interests granted pursuant
to the various Security Documents and to take all actions under the laws of the United States and
any State thereof to perfect the security interests in the capital stock and other Equity Interests
of, and promissory notes issued by, any Person organized under the laws of said jurisdictions (in
each case, to the extent said capital stock, other Equity Interests or promissory notes are owned
by any Credit Party). Except as provided in the immediately preceding sentence, to the extent any
Security Document requires or provides for the pledge of promissory notes issued by, or capital
stock or other Equity Interests in, any Person organized under the laws of a jurisdiction other
than those specified in the immediately preceding sentence, it is acknowledged that, as of the
Initial Borrowing Date, no actions have been required to be taken to perfect, under local law of
the jurisdiction of the Person who issued the respective promissory notes or whose capital stock or
other Equity Interests are pledged, under the Security Documents. The Borrower hereby agrees that,
following


 


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any request by the Administrative Agent or the Required Lenders to do so, the Borrower
will, and will cause its Subsidiaries to, take such actions under the local law of any jurisdiction
with respect to which such actions have not already been taken as are determined by the
Administrative Agent or the Required Lenders to be necessary or desirable in order to fully
perfect, preserve or protect the security interests granted pursuant to the various Security
Documents under the laws of such jurisdictions. If requested to do so pursuant to this Section 13.17, all
such actions shall be taken in accordance with the provisions of this Section 13.17 and Section
9.12 and within the time periods set forth therein. All conditions and representations contained
in this Agreement and the other Credit Documents shall be deemed modified to the extent necessary
to effect the foregoing and so that same are not violated by reason of the failure to take actions
under local law (but only with respect to capital stock of, other Equity Interests in, and
promissory notes issued by, Persons organized under laws of jurisdictions other than the United
States and any State thereof) not required to be taken in accordance with the provisions of this
Section 13.17, provided that to the extent any representation or warranty would not be true
because the foregoing actions were not taken, the respective representation of warranties shall be
required to be true and correct in all material respects at such time as the respective action is
required to be taken in accordance with the foregoing provisions of Section 9.12 and this Section
13.17.



13.18. Patriot Act. Each Lender subject to the USA PATRIOT Improvement and Reauthorization
Act, Pub. L. 109-177 (signed into law March 9, 2009) (as amended from time to time, the
“Act”) hereby notifies Holdings and the Borrower that pursuant to the requirements of the
Act, it is required to obtain, verify and record information that identifies Holdings, the Borrower
and the other Credit Parties and other information that will allow such Lender to identify
Holdings, the Borrower and the other Credit Parties in accordance with the Act.



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



13.20. Post-Closing Requirements. (a) Notwithstanding anything to the contrary contained
in this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that:




(i) Holdings and the Borrower shall be required as promptly as possible, but in any
event within 60 days after the Initial Borrowing Date (as such date may be extended by the
Administrative Agent in its sole discretion), to deliver, or shall cause to be delivered, to
the Administrative Agent originals of the stock certificates and related stock powers of the
Equity Interests of the Foreign Subsidiaries listed on Schedule 13.20, which constitute
Pledge Agreement Collateral;




(ii) Holdings and the Borrower shall (x) use commercially reasonable efforts to obtain
as promptly as possible the approval of Mississippi Gaming Commission (the “Mississippi
Gaming Commission Approval”) for the enforceability of Section 10.11 with respect to
each of the Borrower and Western Money Systems and to pledge, or cause to be pledged, the
Equity Interests of Western Money Systems pursuant to the Pledge Agreement and (y) upon
receipt of the Mississippi Gaming Commission Approval, be required as promptly as possible, but in any
event within 5 Business Days after such date of receipt (as such date may be extended by the
Administrative Agent in its sole discretion), to pledge, and cause to be pledged, the Equity
Interests of Western Money Systems in accordance with the terms of the Pledge Agreement; and


 


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(iii) Holdings and the Borrower shall be required as promptly as possible, but in any
event within 60 days after the Initial Borrowing Date (as such date may be extended by the
Administrative Agent in its sole discretion), to (x) release, or cause to be released, all
security interests against that certain Mark QUIK CASH (Reg. No. 1,578,102) granted by
Comdata Network, Inc. in favor of BT Commercial Corporation and (y) provide documentary
evidence of such release to the Administrative Agent.



(b) All conditions precedent and representations contained in this Agreement and the
other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing
(and to permit the taking of the actions described above within the time periods required above,
rather than as elsewhere provided in the Credit Documents), provided that (x) to the extent any
representation and warranty would not be true because the foregoing actions were not taken on the
Initial Borrowing Date, the respective representation and warranty shall be required to be true and
correct in all material respects at the time the respective action is taken (or was required to be
taken) in accordance with the foregoing provisions of this Section 13.20 and (y) all
representations and warranties relating to the Security Documents shall be required to be true
immediately after the actions required to be taken by Section 13.20 have been taken (or were
required to be taken). The acceptance of the benefits of each Credit Event shall constitute a
representation, warranty and covenant by the Borrower to each of the Lenders that the actions
required pursuant to this Section 13.20 will be, or have been, taken within the relevant time
periods referred to in this Section 13.20 and that, at such time, all representations and
warranties contained in this Agreement and the other Credit Documents shall then be true and
correct without any modification pursuant to this Section 13.20, and the parties hereto acknowledge
and agree that the failure to take any of the actions required above, within the relevant time
periods required above, shall give rise to an immediate Event of Default pursuant to this
Agreement.



13.21. Gaming Authority Cooperation. Each of the Lenders and the Administrative Agent
agrees to use its commercially reasonable efforts to, at the request of the Borrower or the
respective Gaming Authority, cooperate with the applicable Gaming Authorities in connection with
the administration of their regulatory jurisdiction over the Borrower and it Affiliates, including
to the extent not inconsistent with the internal policies of such Lender or Administrative Agent
and any applicable legal or regulatory restrictions, the provision of such documents or other
information as may be requested by any such Gaming Authorities relating to the Borrower, any of its
Affiliates or the Credit Documents. Notwithstanding any other provision of this Agreement, the
Borrower expressly authorizes, and will cause each other Credit Party to authorize, the
Administrative Agent and each Lender to cooperate with the applicable Gaming Authorities as
described above and releases the Administrative Agent and each Lender from any liability for any
such cooperation or related disclosure. Notwithstanding anything to the contrary, all actions taken
by each Lender and the Administrative Agent pursuant to this Section 13.21 shall be at sole
reasonable expense of the Borrower, who hereby agrees to reimburse all reasonable expenses incurred
by each Lender and the Administrative Agent in connection with such actions.


 


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SECTION 14. Holdings Guaranty.



14.01. Guaranty. In order to induce the Administrative Agent, the Collateral Agent, the Issuing Lenders and the
Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other
Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements
and in recognition of the direct benefits to be received by Holdings from the proceeds of the
Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection
Agreements and Other Hedging Agreements, Holdings hereby agrees with the Guaranteed Creditors as
follows: Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not
merely as surety the full and prompt payment when due, whether upon maturity, acceleration or
otherwise, of any and all of the Guaranteed Obligations of the Guaranteed Parties to the Guaranteed
Creditors. If any or all of the Guaranteed Obligations of the Guaranteed Parties to the Guaranteed
Creditors becomes due and payable hereunder, Holdings, unconditionally and irrevocably, promises to
pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order,
on demand, together with any and all expenses which may be incurred by the Administrative Agent and
the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If claim is ever
made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays
all or part of said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such claimant (including
the Guaranteed Parties), then and in such event Holdings agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon Holdings, notwithstanding any revocation of
this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and Holdings
shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any such payee.



14.02. Bankruptcy. Additionally, Holdings unconditionally and irrevocably guarantees the
payment of any and all of the Guaranteed Obligations to the Guaranteed Creditors whether or not due
or payable by any Guaranteed Party upon the occurrence of any of the events specified in Section
11.05, and irrevocably and unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, in lawful money of the United States.



14.03. Nature of Liability. The liability of Holdings hereunder is primary, absolute and
unconditional, exclusive and independent of any security for or other guaranty of the Guaranteed
Obligations, whether executed by any other guarantor or by any other party, and the liability of
Holdings hereunder shall not be affected or impaired by (a) any direction as to application of
payment by the any Guaranteed Party or by any other party, or (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by
any Guaranteed Party, or (e) any payment made to any Guaranteed Creditor on the Guaranteed
Obligations which any such Guaranteed Creditor repays to the any Guaranteed Party pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding,
and Holdings waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, or (f) any action or inaction by the Guaranteed Creditors as
contemplated in Section 14.05, or (g) any invalidity, irregularity or enforceability of all or any
part of the Guaranteed Obligations or of any security therefor.



14.04. Independent Obligation. The obligations of Holdings hereunder are independent of the obligations of any other guarantor,
any other party or any Guaranteed Party, and a separate action or actions may be brought and
prosecuted against Holdings whether or not action is brought against any other guarantor, any other
party or any Guaranteed Party and whether or not any other guarantor, any other party or any
Guaranteed Party be joined in any such action or actions. Holdings waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by any Guaranteed Party or other circumstance which operates
to toll any statute of limitations as to such Guaranteed Party shall operate to toll the statute of
limitations as to Holdings.


 


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14.05. Authorization. Holdings authorizes the Guaranteed Creditors without notice or
demand (except as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:




(a) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the principal amount thereof or the rate of interest
or fees thereon), any security therefor, or any liability incurred directly or indirectly in
respect thereof, and this Holdings Guaranty shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;




(b) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against;




(c) exercise or refrain from exercising any rights against any Guaranteed Party, any
other Credit Party or others or otherwise act or refrain from acting;




(d) release or substitute any one or more endorsers, guarantors, any Guaranteed Party,
other Credit Parties or other obligors;




(e) settle or compromise any of the Guaranteed Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of any Guaranteed Party to its creditors other than
the Guaranteed Creditors;




(f) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Guaranteed Party to the Guaranteed Creditors regardless of what liability
or liabilities of any Guaranteed Party remain unpaid;




(g) consent to or waive any breach of, or any act, omission or default under, this
Agreement, any other Credit Document, any Interest Rate Protection Agreement or any Other
Hedging Agreement or any of the instruments or agreements referred to herein or therein, or
otherwise amend, modify or supplement this Agreement, any other Credit Document, any
Interest Rate Protection Agreement or any Other Hedging Agreement or any of such other
instruments or agreements; and/or




(h) take any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of Holdings from its liabilities under this
Holdings Guaranty.



14.06. Reliance. It is not necessary for any Guaranteed Creditor to inquire into the
capacity or powers of Holdings or any of its Subsidiaries or the officers, directors, partners or
agents acting or purporting to act on their behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed hereunder.


 


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14.07. Subordination. Any indebtedness of any Guaranteed Party now or hereafter owing to
Holdings is hereby subordinated to the Guaranteed Obligations owing to the Guaranteed Creditors;
and if the Administrative Agent so requests at a time when an Event of Default exists, all such
indebtedness of any Guaranteed Party to Holdings shall be collected, enforced and received by
Holdings for the benefit of the Guaranteed Creditors and be paid over to the Administrative Agent
on behalf of the Guaranteed Creditors on account of the Guaranteed Obligations to the Guaranteed
Creditors, but without affecting or impairing in any manner the liability of Holdings under the
other provisions of this Holdings Guaranty. Prior to the transfer by Holdings of any note or
negotiable instrument evidencing any such indebtedness of any Guaranteed Party to Holdings,
Holdings shall mark such note or negotiable instrument with a legend that the same is subject to
this subordination. Without limiting the generality of the foregoing, Holdings hereby agrees with
the Guaranteed Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Holdings Guaranty (whether contractual, under Section 509
of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been irrevocably paid in
full in cash.



14.08. Waiver. (a) Holdings waives any right (except as shall be required by applicable
statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed against any
Guaranteed Party, any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Guaranteed Party, any other guarantor or any other party or (iii) pursue any
other remedy in any Guaranteed Creditor’s power whatsoever. Holdings waives any defense based on
or arising out of any defense of any Guaranteed Party, any other guarantor or any other party,
other than payment of the Guaranteed Obligations to the extent of such payment, based on or arising
out of the disability of any Guaranteed Party, Holdings, any other guarantor or any other party, or
the validity, legality or unenforceability of the Guaranteed Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of any Guaranteed Party other than
payment of the Guaranteed Obligations to the extent of such payment. The Guaranteed Creditors may,
at their election, foreclose on any security held by the Administrative Agent, the Collateral Agent
or any other Guaranteed Creditor by one or more judicial or nonjudicial 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 Guaranteed Creditors may have against
any Guaranteed Party or any other party, or any security, without affecting or impairing in any way
the liability of Holdings hereunder except to the extent the Guaranteed Obligations have been paid.
Holdings waives any defense arising out of any such election by the Guaranteed Creditors, even
though such election operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of Holdings against any Guaranteed Party or any other party or any security.



(b) Holdings waives all presentments, demands for performance, protests and notices, including
without limitation notices of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Holdings Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Holdings assumes all responsibility for being and keeping
itself informed of each Guaranteed Party’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks which Holdings assumes and incurs hereunder, and agrees that neither
the Administrative Agent nor any of the other Guaranteed Creditors shall have any duty to advise
Holdings of information known to them regarding such circumstances or risks.



(c) Until such time as the Guaranteed Obligations have been paid in full in cash, Holdings
hereby waives all rights of subrogation which it may at any time otherwise have as a result of this
Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise) to
the claims of the Guaranteed Creditors against any Guaranteed Party or any other guarantor of the
Guaranteed Obligations and all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Guaranteed Party or any other guarantor which it may at any time
otherwise have as a result of this Holdings Guaranty.


 


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14.09. Payments. All payments made by Holdings pursuant to this Section 14 shall be made
in Dollars and will be made without setoff, counterclaim or other defense, and shall be subject to
the provisions of Sections 5.03 and 5.04.



14.10. Maximum Liability. It is the desire and intent of Holdings and the Guaranteed
Creditors that this Holdings Guaranty shall be enforced against Holdings to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in which enforcement is
sought. If, however, and to the extent that, the obligations of Holdings under this Holdings
Guaranty shall be adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of Holdings’ obligations under this Holdings Guaranty shall be deemed
to be reduced and Holdings shall pay the maximum amount of the Guaranteed Obligations which would
be permissible under applicable law.



* * *



 


-111-









 




IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to
execute and deliver this Agreement as of the date first above written.



	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	3525 East Post Road	 	GLOBAL CASH ACCESS HOLDINGS, INC.	 	 
	Suite 120
	 	 	 	 	 	 
	
Las Vegas, NV 89120

Attention: General Counsel, Chief Financial Officer

Tel: (702) 855-3000

Fax: (702) 262-5039

	 	By:
	 	/s/ Scott H. Betts
 

Name: Scott H. Betts
Title:    President
	 	 
	 
	 	 	 	 	 	 
	3525 East Post Road
	 	GLOBAL CASH ACCESS, INC.	 	 
	Suite 120
	 	 	 	 	 	 
	
Las Vegas, NV 89120

Attention: General Counsel, Chief Financial Officer

Tel: (702) 855-3000

Fax: (702) 262-5039

	 	By:
	 	/s/ Scott H. Betts
 

Name: Scott H. Betts
Title:   President
	 	 








	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,	 	 
	 	 	Individually and as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mary Kay Coyle
 

Name: Mary Kay Coyle
	 	 
	 

	 	 	 	Title:    Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scottye Lindsey
 

Name: Scottye Lindsey
	 	 
	 

	 	 	 	Title:    Director	 	 








	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG GLOBAL CASH
ACCESS HOLDINGS, INC., GLOBAL CASH ACCESS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT
	 	 
	 
	 	 	 	 	 	 
	 	 	NAME OF INSTITUTION:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF THE WEST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles Jou
 

Name: Charles Jou
	 	 
	 

	 	 	 	Title:    Vice President	 	 








	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG GLOBAL CASH
ACCESS HOLDINGS, INC., GLOBAL CASH ACCESS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT
	 	 
	 
	 	 	 	 	 	 
	 	 	NAME OF INSTITUTION:	 	 
	 
	 	 	 	 	 	 
	 	 	Capital One, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kacy Kent
 

Name: Kacy Kent
	 	 
	 

	 	 	 	Title:    Vice President	 	 








	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG GLOBAL CASH
ACCESS HOLDINGS, INC., GLOBAL CASH ACCESS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT
	 	 
	 
	 	 	 	 	 	 
	 	 	NAME OF INSTITUTION:	 	 
	 
	 	 	 	 	 	 
	 	 	CIT Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel Burnett
 

Name: Daniel Burnett
	 	 
	 

	 	 	 	Title:    Authorized Signatory	 	 








	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG GLOBAL
CASH ACCESS HOLDINGS, INC., GLOBAL CASH ACCESS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT
	 	 
	 
	 	 	 	 	 	 
	 	 	NAME OF INSTITUTION:	 	 
	 
	 	 	 	 	 	 
	 	 	Comerica Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin T. Urban
 

Name: Kevin T. Urban
	 	 
	 

	 	 	 	Title:    Vice President	 	 








	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE,
AMONG GLOBAL CASH ACCESS HOLDINGS, INC., GLOBAL CASH ACCESS, INC., THE LENDERS PARTY
HERETO FROM TIME TO TIME AND DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE
AGENT
	 	 
	 
	 	 	 	 	 	 
	 	 	NAME OF INSTITUTION:	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Olga E. Wisnicky
 

Name: OLGA E. WISNICKY
	 	 
	 

	 	 	 	Title:    VICE PRESIDENT	 	 





Signature page to Credit Agreement



 


 









 





SCHEDULE 1.01 (a)




COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Revolving Loan	 
	Lender	 	Term Loan Commitment	 	 	Commitment	 
	 
	 	 	 	 	 	 	 	 
	Deutsche Bank Trust Company Americas
	 	$	210,000,000	 	 	$	10,000,000	 
	Wells Fargo Bank, N.A.
	 	 	 	 	 	$	10,000,000	 
	Capital One, N.A.
	 	 	 	 	 	$	9,000,000	 
	CIT Bank
	 	 	 	 	 	$	2,000,000	 
	Comerica Bank
	 	 	 	 	 	$	2,000,000	 
	Bank of the West
	 	 	 	 	 	$	2,000,000	 
	 
	TOTAL:
	 	$	210,000,000	 	 	$	35,000,000	 






 


 









 





SCHEDULE 1.01 (b)




LENDER ADDRESSES





	 	 	 
	Lender	 	Address
	Deutsche Bank Trust Company Americas

	 	60 Wall Street

New York, NY 10005

Attention: Mary Kay Coyle

Telephone: 212-250-6039

Telecopier: 212-797-5690
	 
	 	 
	Wells Fargo Bank, N.A.

	 	One Front Street, 18th Floor

MAC A0195-180

San Francisco, CA 94111

Attention: Benjamin Persin

Telephone: 415-222-3311

Telecopier: 415-646-9226
	 
	 	 
	Capital One, N.A.

	 	333 Travis Street, 3rd Floor

Shreveport, LA 71101

Attention: Chris Haskew

Telephone: 318-674-3796

Telecopier: 318-674-3758
	 
	 	 
	CIT Bank

	 	One CIT Drive

Livingston, NJ 07039

Attention: Mike DiScala

Telephone: 973-740-5690

Telecopier: 973-535-3760
	 
	 	 
	Comerica Bank

	 	999 18th Street, Suite 2001

Denver, CO 80202

Attention: Fatima Arshad

Telephone: 303-357-6112

Telecopier: 714-766-3236
	 
	 	 
	Bank of the West

	 	300 S. Grand Ave., 5th Floor

Mail Sort: SC-CAL-05-F

Los Angeles, CA 90071

Attention: Sidney Jordan

Telephone: 213-972-0625

Telecopier: 213-972-0618






 


 









 





SCHEDULE 8.12




REAL PROPERTY




3525 East Post Road, Las Vegas, Nevada 89120

3201 West County Road 42, Burnsville, Minnesota 55301

3153 Fire Road, Egg Harbor Township, New Jersey 08234

No. 411, Alameda Dr. Carlos D’Assumpcao, Edif. Dynasty Plaza, Unit H, 5th Floor, Macau

4120 W. Windmill Lane, Las Vegas, Nevada 89139

620 Kresge Lane, Sparks, Nevada 89431

6847 S. Eastern Avenue, Building 2, Units A&B, Las Vegas, Nevada 89119





 


 









 





SCHEDULE 8.14




SUBSIDIARIES




	 	 	 	 	 	 	 
	 	 	Jurisdiction of	 	 	 	 
	Name	 	Organization	 	Ownership Percentage	 	Direct Owner
	Global Cash Access,
Inc. (“GCA”)

	 	Delaware
	 	100% Direct
	 	Global Cash Access
Holdings, Inc.
(“Holdings”)
	 
	 	 	 	 	 	 
	Global Cash Access
(Canada) Inc.

	 	Canada
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Central Credit, LLC

	 	Delaware
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Game Financial
Caribbean N.V.
(“GFC”)

	 	Netherlands Antilles
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Global Cash Access
(Panama), Inc.

	 	Panama
	 	100% Indirect
	 	GFC
	 
	 	 	 	 	 	 
	Western Money Systems

	 	Nevada
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Cash Systems, Inc.

	 	Delaware
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Arriva Card, Inc.

	 	Delaware
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Global Cash Access
(UK) Ltd (“GCA UK”)

	 	United Kingdom
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Global Cash Access

(SA) (Proprietary), 

Ltd

	 	South Africa
	 	100% Indirect
	 	GCA UK
	 
	 	 	 	 	 	 
	Global Cash Access

(Belize) Ltd

	 	Belize
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	G.C.A. Incorporated

	 	Saint Christopher
(aka St. Kitts) and
Nevis
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Global Cash Access
(BVI), Inc. (“GCA
BVI”)

	 	British Virgin Islands
	 	100% Indirect
	 	GCA
	 
	 	 	 	 	 	 
	Global Cash Access 

Switzerland, AG

	 	Switzerland
	 	100% Indirect
	 	GCA BVI
	 
	 	 	 	 	 	 
	Global Cash Access
(HK) Ltd. (“GCA HK”)

	 	Hong Kong
	 	100% Indirect
	 	GCA BVI
	 
	 	 	 	 	 	 
	GCA (Macau), S.A.

	 	Macau
	 	100% Indirect
	 	1% GCA,

1% GCA BVI, 

98% GCA

HK
	 
	 	 	 	 	 	 
	Global Cash Access
(Belgium), S.A.

	 	Belgium
	 	100% Indirect
	 	1% GCA,

99% GCA HK





 


 








 





SCHEDULE 8.17




INSURANCE




See attached Certificates of Insurance.



 


 









 





SCHEDULE 8.21





EXISTING
INDEBTEDNESS

None


 


 









 





SCHEDULE 10.01




EXISTING LIENS



	 	 	 	 	 	 	 
	NAME	 	JURISDICTION	 	RESULTS	 	COLLATERAL/OTHER
	GLOBAL CASH ACCESS,
INC.

	 	DELAWARE
	 	1. UCC-1 # 2007 2772514

(filed on 07/24/2007)

Expires: 07/24/2011

Secured Party: US Bancorp
	 	1. Specific Equipment
	 
	 	 	 	 	 	 
	GLOBAL CASH ACCESS,
INC.

	 	DELAWARE
	 	2. UCC-1 # 2008 0798957

(filed on 03/05/2008)

Expires: 03/05/2013

Secured Party: US Bancorp
	 	2. Specific Equipment
	 
	 	 	 	 	 	 
	GLOBAL CASH ACCESS,
INC.

	 	DELAWARE
	 	3. UCC-1 # 2008 3793153

(filed on 11/12/2008)

Expires: 11/12/2013

Secured Party: US Bancorp
	 	3. Specific Equipment
	 
	 	 	 	 	 	 
	GLOBAL CASH ACCESS,
INC.

	 	DELAWARE
	 	4. UCC-1 # 2009 3509061

(filed on 11/02/2009)

Expires: 11/02/2014 

Secured Party:
GreatAmerica Leasing
Corporation
	 	4. Specific
Equipment (various
Toshiba copiers,
printers, fax
machines and all
products, proceeds
and attachments)
	 
	 	 	 	 	 	 
	GLOBAL CASH ACCESS,
INC.

	 	DELAWARE
	 	5. UCC-1 # 2011 0434806

(filed on 02/05/2011)

Expires: 02/05/2016

Secured Party: U.S.
Bancorp Business
Equipment Finance Group
	 	5. Specific Equipment






 


 









 





SCHEDULE 10.05



EXISTING INVESTMENTS




Intercompany Note, dated February 28, 2011, issued by Cash Systems, Inc. to Global Cash
Access, Inc.




Intercompany Note, dated February 28, 2011, issued by Western Money Systems to Global Cash Access,
Inc.




Intercompany Note, dated February 28, 2011, issued by Central Credit, LLC to Global Cash Access,
Inc.




Intercompany Note, dated February 28, 2011, issued by Arriva Card, Inc. to Global Cash Access, Inc.



 


 









 





SCHEDULE 13.20




FOREIGN SUBSIDIARIES




	 	 	 
	Name	 	Jurisdiction of Organization
	Global Cash Access (UK) Ltd

	 	United Kingdom
	 
	 	 
	Global Cash Access (SA) (Proprietary), Ltd

	 	South Africa
	 
	 	 
	Global Cash Access (Belize) Ltd

	 	Belize
	 
	 	 
	G.C.A. Incorporated

	 	Saint Christopher (aka St. Kitts) and Nevis
	 
	 	 
	Global Cash Access (BVI), Inc.

	 	British Virgin Islands
	 
	 	 
	Global Cash Access Switzerland, AG

	 	Switzerland
	 
	 	 
	Global Cash Access (HK) Ltd.

	 	Hong Kong
	 
	 	 
	GCA (Macau), S.A.

	 	Macau
	 
	 	 
	Global Cash Access (Belgium), S.A.

	 	Belgium