EXHIBIT 10.27


 


AMENDMENT AND RESTATEMENT AGREEMENT dated as of March 31, 2010
(this “Agreement”), among JACOBS ENTERTAINMENT, INC. (the “Borrower”),
the other Loan Parties listed on the signature pages hereof (each a “Subsidiary
Loan Party” and, together with the Borrower, the “Reaffirming Parties”),
the LENDERS party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as
Administrative Agent (the “Administrative Agent”), and WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Swingline Lender (the “Swingline Lender”), under the Credit
Agreement dated as of June 16, 2006 (as amended and in effect immediately
prior to the Restatement Effective Date (as defined herein), the “Existing
Credit Agreement”), among the Borrower, the lenders party thereto and the
Agents party thereto.


 


WHEREAS,
the Borrower has requested, and the Lenders party hereto have agreed, upon the
terms and subject to the conditions set forth herein, that the Existing Credit
Agreement be amended and restated as provided herein.


 


WHEREAS,
the Reaffirming Parties expect to realize, or have realized, substantial direct
and indirect benefits as a result of the Restated Credit Agreement referred to
below becoming effective and the consummation of the transactions contemplated
thereby.


 


NOW,
THEREFORE, in consideration of the promises and mutual agreements herein
contained, the Borrower, the Subsidiary Loan Parties, the Swingline Lender, the
other Lenders party hereto and the Administrative Agent hereby agree as follows:


 


SECTION 1.  Defined Terms.  Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Restated Credit
Agreement, except that the defined terms “Lender”, “Revolving
Commitment” and “Revolving Lender” have the meanings assigned to
them in the Existing Credit Agreement. 
As used in this Agreement, “Restatement Lenders” means, Lenders having
Tranche B Loans, Revolving Exposures and unused Revolving Commitments (in each
case, as defined in the Existing Credit Agreement) representing more than 50%
of the total Tranche B Loans, Revolving Exposures and unused Revolving
Commitments (in each case, as defined in the Existing Credit Agreement) as of
the Restatement Effective Date (determined immediately prior to the time that
the conditions to the occurrence of the Restatement Effective Date are satisfied).


 


SECTION 2.  Restatement
Effective Date.


 


(a)           The
amendment and restatement of the Existing Credit Agreement provided for in Section 3
hereof shall be consummated at a closing to be held on the Restatement Effective
Date at the offices of Cahill Gordon & Reindel LLP.


 


(b)           The
“Restatement Effective Date” shall be specified by the Borrower, and
shall be a date, not later than March 31, 2010, as of which all the
conditions set forth or referred to in Section 6 hereof shall have been
satisfied or waived.  The Borrower, by
giving not less than 


 

















 


one
Business Day’s prior written notice to the Administrative Agent, (i) shall
propose a date as the Restatement Effective Date and (ii) may change a
previously proposed date for the Restatement Effective Date.  The Administrative Agent shall notify the
Lenders of any such proposed date or change. 
This Agreement shall terminate at 5:00 p.m., New York City time, on
March 31, 2010, if the Restatement Effective Date shall not have occurred
at or prior to such time.


 


SECTION 3. 
Amendment and Restatement of the Existing Credit Agreement; Loans and
Letters of Credit; Reaffirmation.


 


(a)           Effective
on the Restatement Effective Date, the Existing Credit Agreement (excluding the
annexes, schedules and exhibits thereto that are not attached as part of Exhibit A
hereto, which shall remain unchanged) is hereby amended and restated to read in
its entirety as set forth in Exhibit A hereto (the “Restated Credit
Agreement”).  From and after the effectiveness
of such amendment and restatement, the terms “Agreement”, “this Agreement”, “herein”,
“hereinafter”, “hereto”, “hereof” and words of similar import, as used in the
Restated Credit Agreement, shall, unless the context otherwise requires, refer
to the Restated Credit Agreement, and the term “Credit Agreement”, as used in
the other Loan Documents, shall mean the Restated Credit Agreement.


 


(b)           Subject
to Section 4 below, all “Revolving Commitments” as defined in and in
effect under the Existing Credit Agreement on the Restatement Effective Date
shall continue in effect under the Restated Credit Agreement, and all “Loans”
and “Letters of Credit” as defined in, and outstanding under, the Existing
Credit Agreement on the Restatement Effective Date shall continue to be
outstanding under the Restated Credit Agreement, and on and after the
Restatement Effective Date, the terms of the Restated Credit Agreement will
govern the rights and obligations of the Borrower, the Lenders, the applicable
Issuing Bank and the Agents with respect thereto.


 


(c)           The
amendment and restatement of the Existing Credit Agreement as contemplated
hereby shall not be construed to discharge or release the Borrower from any
obligations owed to any Lenders under the Existing Credit Agreement, which
shall remain owing under the Restated Credit Agreement.


 


(d)           Each
of the Reaffirming Parties hereby consents to the Restated Credit Agreement and
the transactions contemplated thereby and hereby confirms its respective guarantees,
pledges, grants of security interests and other agreements, as applicable,
under each of the Loan Documents to which it is party (the “Reaffirmed Loan
Documents”) including but not limited to those Loan Documents set forth on
Schedule 1 attached hereto, and agrees that notwithstanding the effectiveness
of the Restated Credit Agreement and the consummation of the transactions
contemplated thereby, such guarantees, pledges, grants of security interests
and other agreements shall continue to be in full force and effect and shall
accrue to the benefit of the Lenders under the Restated Credit Agreement. Each
of the Reaffirming Parties further agrees to take any action that may be
required under any applicable law or that is reasonably requested by the
Administrative Agent to ensure compliance by the Borrower and each Guarantor
with Sections 5.11 and 5.12 of the Restated Credit Agreement and hereby
reaffirms its obligations under each similar provision of each Reaffirmed Loan
Document to which it is a party.


 


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(e)           Each
of the Reaffirming Parties party to each of the Reaffirmed Loan Documents
hereby confirms and agrees that the Revolving Loans and Term Loans (in each
case, for the avoidance of doubt, of any Class) have constituted and continue
to constitute Secured Obligations (or any word of like import) under such
documents.


 


SECTION 4.  Classification
of Revolving Commitments and Revolving Credit Exposure; Etc.


 


(a)           Effective
upon the Restatement Effective Date (i) each Revolving Lender that, on or
prior to 5:00 p.m. New York City time on March 12, 2010 (or such
later time or date as shall be specified by notice from the Administrative
Agent and the Borrower to the Revolving Lenders) (the “Delivery Deadline”), has
executed and delivered to the Administrative Agent (or its counsel) a
counterpart of this Agreement (or evidence thereof as contemplated by Section 6(a) below)
indicating an election to become a Class A Revolving Lender shall be a Class A
Revolving Lender under the Restated Credit Agreement, and its Revolving
Commitment and Revolving Loans (each as defined in the Existing Credit
Agreement) shall be a Class A Revolving Commitment and Class A
Revolving Loans thereunder, respectively, (ii) each other Revolving Lender
shall be a Class B Revolving Lender under the Restated Credit Agreement,
and its Revolving Commitment and Revolving Loans (each as defined in the
Existing Credit Agreement) shall be a Class B Revolving Commitment and Class B
Revolving Loans thereunder, respectively, (iii) each Class B
Revolving Lender shall be released from its participations or obligations to
acquire participations in all Letters of Credit and Swingline Loans and (iv) each
Class A Lender shall have a participation or obligations to acquire a
participation in each Letter of Credit or Swingline Loan equal to its
applicable Pro Rata Percentage, in accordance with the Restated Credit Agreement.


 


(b)           The
Administrative Agent is hereby authorized to prepare Schedule 1.01(d) to
the Restated Credit Agreement, reflecting the Class A Revolving
Commitments and Class B Revolving Commitments as of the Restatement
Effective Date after giving effect to the reclassification contemplated in
clause (a) above, and prepare a version of the Restated Credit Agreement
that gives effect to such reclassification. 
Promptly after the Restatement Effective Date, the Administrative Agent
shall make available to the Borrower and the Lenders copies of the version of
the Restated Credit Agreement and Schedule 1.01(d) thereto so prepared by
it, and the amounts reflected therein shall be conclusive absent demonstrable
error.


 


(c)           Promptly
upon the effectiveness of the amendment and restatement of the Existing Credit
Agreement as provided herein, the Borrower shall deliver Borrowing Requests
with respect to the continuing, outstanding Revolving Borrowings under the
Restated Credit Agreement, identifying each such Borrowing as a Class A
Revolving Borrowing or a Class B Revolving Borrowing, as the case may be,
and the amount thereof and, in the case of Eurocurrency Borrowings, the
remaining Interest Periods.  Such
Borrowing Requests shall not affect the interest rate or remaining Interest
Period of any Borrowing or change the Adjusted LIBO Rate of any Borrowing, but
shall be solely for the purpose of establishing the segregation of outstanding Class A
Revolving Borrowings and Class B Revolving Borrowings.


 


(d)           If,
after giving effect to the transactions contemplated hereby on the Restatement
Effective Date, the Class A Revolving Exposure exceeds the Class A
Revolving 


 


3

















 


Commitments,
then the Borrower shall prepay Class A Revolving Loans, on the Restatement
Effective Date, in such amount as shall be necessary to eliminate such excess.  The undersigned Lenders hereby waive any
requirement of prior notice of any such prepayment.  Section 2.13 of the Restated Credit
Agreement shall apply to any such prepayment.


 


SECTION 5.  Amendment
Fees and Upfront Fee.  The Borrower
agrees to pay to the Administrative Agent, (a) for the account of each
Tranche B Lender that delivers a counterpart to this Agreement at or prior to
the Delivery Deadline which evidences its consent to the amendments reflected
in the Restated Credit Agreement, without respect to the amendments that relate
to the extension of the maturity of the Revolving Commitments (as defined in
the Existing Credit Agreement), a fee equal to 0.50% of the aggregate amount of
such Tranche B Lender’s Tranche B Loans (the “Tranche B Amendment Fee”), (b) for
the account of each Revolving Lender that delivers a counterpart to this
Agreement at or prior to the Delivery Deadline which evidences its consent to
the amendments reflected in the Restated Credit Agreement, without respect to
the amendments that relate to the extension of the maturity of the Revolving
Commitments (as defined in the Existing Credit Agreement), a fee equal to 0.50%
of the aggregate amount of such Revolving Lender’s Revolving Commitment (the “Revolving
Amendment Fee” and, together with the Tranche B Amendment Fee, the “Amendment
Fee”) and (c) for the account of each Revolving Lender that delivers a
counterpart to this Agreement at or prior to the Delivery Deadline which
evidences its consent to the amendments reflected in the Restated Credit
Agreement that relate to the extension of the maturity of the Revolving
Commitments and evidences its agreement to extend the maturity of its Revolving
Commitments, a fee equal to 1.00% of the aggregate amount of such Revolving
Lender’s Revolving Commitment (the “Upfront Fee”).  The Amendment Fee and the Upfront Fee shall
be payable on the Restatement Effective Date. 
For the avoidance of doubt, no Revolving Lender may deliver a
counterpart to this Agreement which evidences its consent to the amendments
reflected in the Restated Credit Agreement that relate to the extension of the
maturity of its Revolving Commitments without such Revolving Lender also
evidencing its consent to the amendments that do not relate to the extension of
the maturity of its Revolving Commitments.


 


SECTION 6.  Conditions.  The consummation of the transactions set
forth in Sections 3 and 4 of this Agreement shall be subject to the
satisfaction of the following conditions precedent:


 


(a)           The
Administrative Agent (or its counsel) shall have received from each of the
Borrower, the Subsidiary Loan Parties and the Restatement Lenders either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Revolving Agent (which may include facsimile or
other electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement, in each
case evidencing the consent of the Restatement Lenders to the amendments
reflected in the Restated Credit Agreement (without respect to the amendments
reflected in the Restated Credit Agreement that relate to the extension of the
maturity of the Revolving Commitments).


 


(b)           The
Administrative Agent (or its counsel) shall have received from Revolving
Lenders having Revolving Exposures (as defined in the Existing Credit
Agreement) and unused Revolving Commitments (as defined in the Existing Credit
Agreement) representing, in the aggregate, not less than $20.0 million of the
total Revolving Exposures (as defined in the 


 


4

















 


Existing
Credit Agreement) and unused Revolving Commitments (as defined in the Existing
Credit Agreement) on the Restatement Effective Date, either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include facsimile
or other electronic transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement, in each case
evidencing the consent of such Revolving Lenders to the amendments reflected in
the Restated Credit Agreement that relate to the extension of the maturity of
the Revolving Commitments.


 


(c)           The
Administrative Agent (or its counsel) shall have received from the Swingline
Lender, either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include facsimile or other electronic transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement, in each case evidencing the consent of the Swingline Lender
to the amendments reflected in the Restated Credit Agreement that relate to the
extension of the maturity of the Swingline Loans.


 


(d)           The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Restatement Effective
Date) of each of (i) Baker & Hostetler LLP, special counsel for
the Borrower, in substantially the form set forth in Exhibit B hereto, and
(ii) Colorado, Louisiana, Nevada, Ohio and Virginia counsel, in each case
in form and substance reasonably satisfactory to the Administrative Agent and
its counsel and in each case covering such other matters relating to the Loan
Parties, the Loan Documents or the Restatement Transactions as the
Administrative Agent shall reasonably request. 
The Borrower hereby requests such counsel to deliver such opinions.


 


(e)           The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of the Restatement Transactions and any other customary legal matters relating
to the Loan Parties, the Loan Documents or the Restatement Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent and its
counsel.


 


(f)            Each
of the conditions set forth in clauses (a)-(d) of Section 4.02 of the
Restated Credit Agreement shall be satisfied as of the Restatement Effective
Date (as though (i) a Borrowing were being made on the Restatement
Effective Date, (ii) in Article III of the Restated Credit Agreement,
the term “Closing Date” refers to the “Restatement Effective Date” and (iii) in
Section 3.04 of the Restated Credit Agreement, “fiscal years ended December 31,
2005, 2004 and 2003” refers to “fiscal years ended December 31, 2009, 2008
and 2007”) and the Administrative Agent shall have received a certificate,
dated the Restatement Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming satisfaction of
the condition in this paragraph.


 


(g)           The
Administrative Agent shall have received (i) all fees and other amounts
due and payable in connection with this Agreement and the Existing Credit
Agreement on or prior to the Restatement Effective Date, including, to the extent
invoiced in writing at least one Business Day prior to the Restatement
Effective Date, reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel) required to be 


 


5

















 


reimbursed
or paid by any Loan Party hereunder or under any other Loan Document, (ii) all
accrued and unpaid interest under the Existing Credit Agreement in respect of
the Loans and all accrued and unpaid fees under paragraph (a) and clause (i) of
paragraph (c) of Section 2.15 of the Existing Credit Agreement and (iii) any
prepayment required by Section 4(e) hereof.  If any LC Disbursements are outstanding as of
the Restatement Effective Date, such LC Disbursements shall be repaid, together
with any interest accrued thereon.


 


(h)           After
giving effect to the Restatement Transactions, the Company and the Guarantors
shall be in compliance with the requirements of Sections 5.11, 5.12 and 5.13 of
the Restated Credit Agreement, and in connection therewith, the Administrative
Agent shall have received any related documentation that the Administrative
Agent or its counsel reasonably requests in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


The
Administrative Agent shall notify the Borrower and the Lenders of the Restatement
Effective Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the
consummation of the amendment and restatement of the Existing Credit Agreement
shall not become effective unless each of the foregoing conditions is satisfied
or waived at or prior to 5:00 p.m., New York City time, on March 31,
2010 (and, in the event such conditions are not so satisfied or waived, the
Existing Credit Agreement shall remain in effect without giving effect to any provisions
of this Agreement).


 


SECTION 7.  Effectiveness;
Counterparts; Amendments.  This
Agreement shall become effective when copies hereof which, when taken together,
bear the signatures of the Borrower, the Subsidiary Loan Parties, the
Administrative Agent, the Swingline Lender and the Restatement Lenders shall
have been received by the Administrative Agent. 
This Agreement may not be amended nor may any provision hereof be waived
except pursuant to a writing signed by the Borrower, the Subsidiary Loan
Parties, the Administrative Agent and the Restatement Lenders, with respect to
the amendments in the Restated Credit Agreement that relate to the extension of
the maturity of the Revolving Commitments, each Lender party hereto that will
become a Class A Revolving Lender upon satisfaction of the conditions set
forth in Section 6 hereof and, with respect to the amendments in the
Restated Credit Agreement that relate to the extension of the maturity of the
Swingline Commitment, the Swingline Lender. 
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute a single contract.  Delivery
of an executed counterpart of a signature page of this Agreement by
facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.


 


SECTION 8.  No Novation.  Neither this Agreement nor the execution,
delivery or effectiveness of the Restated Credit Agreement shall discharge or
release the Lien or priority of any Reaffirmed Loan Document or any other
security therefor.  This Agreement shall
not extinguish the Obligations outstanding under the Existing Credit
Agreement.  The provisions of Sections
2.12, 2.13, 2.15 and 10.03 of the Restated Credit Agreement will continue to be
effective as to all matters arising out of or in any way related to facts or
events existing or occurring prior to the Restatement Effective Date.  This Agreement shall be a Loan Document for
all purposes.  Each of the Reaffirmed
Loan Documents shall remain in full force and effect, until (as applicable) and
except to any extent modified hereby or in connection herewith.


 


6

















 


SECTION 9.  Notices.  All notices hereunder shall be given in
accordance with the provisions of Section 10.01 of the Restated Credit
Agreement.


 


SECTION 10.  Applicable
Law; Waiver of Jury Trial.


 


(A)          THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


(B)          EACH
PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 10.10 OF THE RESTATED
CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.


 


SECTION 11.  Headings.  The Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.


 




	
   

  	
  JACOBS ENTERTAINMENT,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Roark

  
	
   

  	
   

  	
  Stephen R. Roark

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BLACK HAWK
  GAMING & DEVELOPMENT COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Roark

  
	
   

  	
   

  	
  Stephen R. Roark

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BLACK HAWK/JACOBS
  ENTERTAINMENT, LLC

  
	
   

  	
  By: Black Hawk
  Gaming & Development Company, Inc., its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Stephen R. Roark

  
	
   

  	
   

  	
   

  	
  Stephen R. Roark

  
	
   

  	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GILPIN HOTEL VENTURE

  
	
   

  	
  By: Black Hawk
  Gaming & Development Company, Inc., its Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Stephen R. Roark

  
	
   

  	
   

  	
   

  	
  Stephen R. Roark

  
	
   

  	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: Gilpin
  Ventures, Inc., its Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Stan Politano

  
	
   

  	
   

  	
   

  	
  Stan Politano

  
	
   

  	
   

  	
   

  	
  Secretary and Treasurer

  
					






 

















 




	
   

  	
  GILPIN VENTURES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stan Politano

  
	
   

  	
   

  	
  Stan Politano

  
	
   

  	
   

  	
  Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  DIAMONDHEAD REAL ESTATE,
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lew Humphrey

  
	
   

  	
   

  	
  Lew Humphrey

  
	
   

  	
   

  	
  Sole Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  JACOBS NAUTICA
  DEVELOPMENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stan Politano

  
	
   

  	
   

  	
  Stan Politano

  
	
   

  	
   

  	
  Vice President,
  Treasurer and Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  JACOBS SUGAR WAREHOUSE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey P. Jacobs

  
	
   

  	
   

  	
  Jeffrey P. Jacobs

  
	
   

  	
   

  	
  President

  






 


2

















 




	
   

  	
  /s/ Stan W. Guidroz

  
	
   

  	
  Stan Guidroz, signing
  on behalf of the

  
	
   

  	
  entities listed below
  in the capacity

  
	
   

  	
  listed next to each
  respective entity:

  
	
   

  	
   

  
	
   

  	
  BAYOU VISTA TRUCK PLAZA
  AND CASINO, L.L.C., as its President

  
	
   

  	
  CASH MAGIC LAKE
  CHARLES, LLC, as its President

  
	
   

  	
  HOUMA TRUCK
  PLAZA & CASINO, L.L.C., as its President

  
	
   

  	
  JACE, LLC, as its
  President and Treasurer

  
	
   

  	
  JALOU BREAUX BRIDGE,
  LLC, as its President

  
	
   

  	
  JALOU DIAMOND, L.L.C.,
  as its President

  
	
   

  	
  JALOU EUNICE, LLC, as
  its President

  
	
   

  	
  JALOU FOX, LLC, as its
  President

  
	
   

  	
  CASH MAGIC VINTON, LLC,
  as its President

  
	
   

  	
  JALOU OF JEFFERSON,
  LLC, as its President

  
	
   

  	
  CASH MAGIC LAROSE, LLC,
  as its President

  
	
   

  	
  CASH MAGIC ST. HELENA,
  LLC, as its President

  
	
   

  	
  JALOU OF ST. MARTIN,
  L.L.C., as its President

  
	
   

  	
  CASH MAGIC TEXAS
  PELICAN, LLC, as its President

  
	
   

  	
  JALOU OF VINTON-BINGO,
  LLC, as its President

  
	
   

  	
  CASH MAGIC SHREVEPORT,
  LLC, as its President

  
	
   

  	
  JALOU — CASH’S L.L.C.,
  its President

  
	
   

  	
  JEI DISTRIBUTING LLC,
  its President, Executive Vice President, Secretary and Treasurer

  
	
   

  	
  JRJ PROPERTIES, LLC, as
  its President

  
	
   

  	
  LUCKY MAGNOLIA TRUCK
  STOP AND CASINO, L.L.C., as its President

  
	
   

  	
  RACELAND TRUCK PLAZA
  AND CASINO, L.L.C., as its President

  
	
   

  	
  CASH MAGIC WINNER’S
  CHOICE CASINO, LLC, as its President and Treasurer

  






 


3

















 




	
   

  	
  GOLD DUST WEST CASINO,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Roark

  
	
   

  	
   

  	
  Stephen R. Roark

  
	
   

  	
   

  	
  Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  JACOBS ELKO
  ENTERTAINMENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jeffrey P. Jacobs

  
	
   

  	
   

  	
  Jeffrey P. Jacobs

  
	
   

  	
   

  	
  CEO, President,
  Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  JACOBS PIÑON PLAZA
  ENTERTAINMENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey P. Jacobs

  
	
   

  	
   

  	
  Jeffrey P. Jacobs

  
	
   

  	
   

  	
  CEO, President,
  Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  COLONIAL DOWNS,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: Stansley Racing
  Corp., its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ian M. Stewart

  
	
   

  	
   

  	
   

  	
  Ian M. Stewart

  
	
   

  	
   

  	
   

  	
  President and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COLONIAL DOWNS, LLC

  
	
   

  	
  By: Colonial
  Holdings, Inc., its Sole Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ian M. Stewart

  
	
   

  	
   

  	
   

  	
  Ian M. Stewart

  
	
   

  	
   

  	
   

  	
  President and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Ian M. Stewart

  
	
   

  	
  Ian M. Stewart, signing
  on behalf of the

  
	
   

  	
  entities listed below
  in the capacity

  
	
   

  	
  listed next to each
  respective entity:

  
	
   

  	
   

  
	
   

  	
  COLONIAL HOLDINGS,
  INC., as its President and CFO

  
	
   

  	
  MARYLAND-VIRGINIA
  RACING CIRCUIT, INC., as its

  
	
   

  	
  President, Secretary
  and Treasurer

  
					






 


4

















 




	
   

  	
  STANSLEY RACING CORP.,
  as its President and CFO

  
	
   

  	
  VIRGINIA CONCESSIONS,
  L.L.C., as its Vice President

  






 


5

















 


	
   

  	
  CREDIT SUISSE AG,
  CAYMAN ISLANDS BRANCH, as Administrative Agent and Issuing Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Toronto

  
	
   

  	
   

  	
  Name: John Toronto

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vipul Dhadda

  
	
   

  	
   

  	
  Name: Vipul Dhadda

  
	
   

  	
   

  	
  Title: Associate

  



 


6
















 


The undersigned evidences its consent to the
amendments reflected in the Restated Credit Agreement, including the amendments
that relate to the extension of the maturity of the Swingline Commitment.


 


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Swingline Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Suzanne Fuller

  
	
   

  	
   

  	
  Name: Suzanne Fuller

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  



 


7

















 


SCHEDULE 1


 


Reaffirmed Loan
Documents


 


Guarantee Agreement,
dated June 16, 2006, among Jacobs Entertainment, Inc., the
subsidiaries party thereto and Credit Suisse AG, Cayman Islands Branch
(formerly Credit Suisse, Cayman Islands Branch), and each supplement, amendment
and joinder thereto


 


Security Agreement, dated
June 16, 2006, among Jacobs Entertainment, Inc., the subsidiaries
party thereto and Credit Suisse AG, Cayman Islands Branch (formerly Credit
Suisse, Cayman Islands Branch), and each supplement, amendment and joinder
thereto


 

















 


EXHIBIT A


 


$100,000,000


 


AMENDED AND
RESTATED CREDIT AGREEMENT


 


dated as of June 16,
2006,


 


As Amended and
Restated as of March 31, 2010,


 


among


 


Jacobs
Entertainment, Inc.,

as Borrower,


 


the Lenders party
hereto


 


and


 


Credit Suisse
Securities (USA) LLC

and

CIBC World Markets Corp.,

as Joint Lead Arrangers and Joint Bookrunners,


 


and


 


CIBC World Markets
Corp.,

as Syndication Agent,


 


and


 


Wells Fargo Bank,
National Association,

as Documentation Agent and Swingline Lender,


 


and


 


CIT Lending
Services Corporation,

as Documentation Agent,


 


and


 


Credit Suisse AG,
Cayman Islands Branch,

as Issuing Bank, Administrative Agent and Collateral Agent


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS

  
	
  SECTION 1.01

  	
   

  	
  Defined Terms

  	
   

  	
  2

  
	
  SECTION 1.02

  	
   

  	
  Classification of Loans
  and Borrowings

  	
   

  	
  52

  
	
  SECTION 1.03

  	
   

  	
  Terms Generally

  	
   

  	
  53

  
	
  SECTION 1.04

  	
   

  	
  Accounting Terms; GAAP

  	
   

  	
  53

  
	
  SECTION 1.05

  	
   

  	
  Resolution of Drafting
  Ambiguities

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  THE CREDITS

  
	
   

  
	
  SECTION 2.01

  	
   

  	
  Commitments

  	
   

  	
  54

  
	
  SECTION 2.02

  	
   

  	
  Loans

  	
   

  	
  55

  
	
  SECTION 2.03

  	
   

  	
  Borrowing Procedure

  	
   

  	
  56

  
	
  SECTION 2.04

  	
   

  	
  Evidence of Debt;
  Repayment of Loans

  	
   

  	
  57

  
	
  SECTION 2.05

  	
   

  	
  Fees

  	
   

  	
  58

  
	
  SECTION 2.06

  	
   

  	
  Interest on Loans

  	
   

  	
  59

  
	
  SECTION 2.07

  	
   

  	
  Termination and
  Reduction of Commitments

  	
   

  	
  60

  
	
  SECTION 2.08

  	
   

  	
  Interest Elections

  	
   

  	
  61

  
	
  SECTION 2.09

  	
   

  	
  Amortization of Term
  Borrowings

  	
   

  	
  62

  
	
  SECTION 2.10

  	
   

  	
  Optional and Mandatory
  Prepayments of Loans

  	
   

  	
  62

  
	
  SECTION 2.11

  	
   

  	
  Alternate Rate of
  Interest

  	
   

  	
  66

  
	
  SECTION 2.12

  	
   

  	
  Yield Protection

  	
   

  	
  67

  
	
  SECTION 2.13

  	
   

  	
  Breakage Payments

  	
   

  	
  68

  
	
  SECTION 2.14

  	
   

  	
  Payments Generally; Pro
  Rata Treatment; Sharing of Setoffs

  	
   

  	
  69

  
	
  SECTION 2.15

  	
   

  	
  Taxes

  	
   

  	
  71

  
	
  SECTION 2.16

  	
   

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
   

  	
  73

  
	
  SECTION 2.17

  	
   

  	
  Swingline Loans

  	
   

  	
  76

  
	
  SECTION 2.18

  	
   

  	
  Letters of Credit

  	
   

  	
  78

  
	
  SECTION 2.19

  	
   

  	
  Increase in Commitments

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  
	
  SECTION 3.01

  	
   

  	
  Organization; Powers

  	
   

  	
  87

  
	
  SECTION 3.02

  	
   

  	
  Authorization;
  Enforceability

  	
   

  	
  87

  
	
  SECTION 3.03

  	
   

  	
  No Conflicts

  	
   

  	
  88

  
	
  SECTION 3.04

  	
   

  	
  Financial Statements;
  Projections

  	
   

  	
  88

  



 


i

















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.05

  	
   

  	
  Properties

  	
   

  	
  89

  
	
  SECTION 3.06

  	
   

  	
  Intellectual Property

  	
   

  	
  90

  
	
  SECTION 3.07

  	
   

  	
  Equity Interests and
  Subsidiaries

  	
   

  	
  91

  
	
  SECTION 3.08

  	
   

  	
  Litigation; Compliance
  with Laws

  	
   

  	
  91

  
	
  SECTION 3.09

  	
   

  	
  Agreements

  	
   

  	
  91

  
	
  SECTION 3.10

  	
   

  	
  Federal Reserve
  Regulations

  	
   

  	
  92

  
	
  SECTION 3.11

  	
   

  	
  Investment Company Act

  	
   

  	
  92

  
	
  SECTION 3.12

  	
   

  	
  Use of Proceeds

  	
   

  	
  92

  
	
  SECTION 3.13

  	
   

  	
  Taxes

  	
   

  	
  92

  
	
  SECTION 3.14

  	
   

  	
  No Material
  Misstatements

  	
   

  	
  93

  
	
  SECTION 3.15

  	
   

  	
  Labor Matters

  	
   

  	
  93

  
	
  SECTION 3.16

  	
   

  	
  Solvency

  	
   

  	
  93

  
	
  SECTION 3.17

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  93

  
	
  SECTION 3.18

  	
   

  	
  Environmental Matters

  	
   

  	
  94

  
	
  SECTION 3.19

  	
   

  	
  Insurance

  	
   

  	
  95

  
	
  SECTION 3.20

  	
   

  	
  Security Documents

  	
   

  	
  96

  
	
  SECTION 3.21

  	
   

  	
  Acquisition Documents;
  Representations and Warranties in Acquisition Agreements

  	
   

  	
  97

  
	
  SECTION 3.22

  	
   

  	
  Anti-Terrorism Law

  	
   

  	
  97

  
	
  SECTION 3.23

  	
   

  	
  Licenses and Permits

  	
   

  	
  98

  
	
  SECTION 3.24

  	
   

  	
  Projects; Construction
  Contracts

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  CONDITIONS TO CREDIT EXTENSIONS

  
	
   

  
	
  SECTION 4.01

  	
   

  	
  Conditions to Initial
  Credit Extension

  	
   

  	
  99

  
	
  SECTION 4.02

  	
   

  	
  Conditions to All
  Credit Extensions

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  
	
  SECTION 5.01

  	
   

  	
  Financial Statements,
  Reports, etc.

  	
   

  	
  106

  
	
  SECTION 5.02

  	
   

  	
  Litigation and Other
  Notices

  	
   

  	
  110

  
	
  SECTION 5.03

  	
   

  	
  Existence; Businesses
  and Properties

  	
   

  	
  110

  
	
  SECTION 5.04

  	
   

  	
  Insurance

  	
   

  	
  111

  
	
  SECTION 5.05

  	
   

  	
  Obligations and Taxes

  	
   

  	
  112

  
	
  SECTION 5.06

  	
   

  	
  Employee Benefits

  	
   

  	
  113

  
	
  SECTION 5.07

  	
   

  	
  Maintaining Records;
  Access to Properties and Inspections; Annual Meetings

  	
   

  	
  113

  
	
  SECTION 5.08

  	
   

  	
  Use of Proceeds

  	
   

  	
  114

  
	
  SECTION 5.09

  	
   

  	
  Compliance with
  Environmental Laws; Environmental Reports

  	
   

  	
  114

  
	
  SECTION 5.10

  	
   

  	
  Post-Closing Matters

  	
   

  	
  115

  
	
  SECTION 5.11

  	
   

  	
  Additional Collateral;
  Additional Guarantors

  	
   

  	
  116

  
	
  SECTION 5.12

  	
   

  	
  Security Interests;
  Further Assurances

  	
   

  	
  118

  



 


ii

















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.13

  	
   

  	
  Information Regarding
  Collateral

  	
   

  	
  119

  
	
  SECTION 5.14

  	
   

  	
  [Reserved]

  	
   

  	
  119

  
	
  SECTION 5.15

  	
   

  	
  Affirmative Covenants
  with Respect to Leases

  	
   

  	
  119

  
	
  SECTION 5.16

  	
   

  	
  License Renewals

  	
   

  	
  119

  
	
  SECTION 5.17

  	
   

  	
  Licenses and Permits

  	
   

  	
  119

  
	
  SECTION 5.18

  	
   

  	
  Construction of Project

  	
   

  	
  120

  
	
  SECTION 5.19

  	
   

  	
  Flood Insurance

  	
   

  	
  121

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
   

  	
  Indebtedness

  	
   

  	
  121

  
	
  SECTION 6.02

  	
   

  	
  Liens

  	
   

  	
  123

  
	
  SECTION 6.03

  	
   

  	
  Sale and Leaseback
  Transactions

  	
   

  	
  126

  
	
  SECTION 6.04

  	
   

  	
  Investment, Loan and
  Advances

  	
   

  	
  126

  
	
  SECTION 6.05

  	
   

  	
  Mergers and
  Consolidations

  	
   

  	
  128

  
	
  SECTION 6.06

  	
   

  	
  Asset Sales

  	
   

  	
  128

  
	
  SECTION 6.07

  	
   

  	
  Acquisitions

  	
   

  	
  129

  
	
  SECTION 6.08

  	
   

  	
  Dividends

  	
   

  	
  130

  
	
  SECTION 6.09

  	
   

  	
  Transactions with
  Affiliates

  	
   

  	
  130

  
	
  SECTION 6.10

  	
   

  	
  Financial Covenants

  	
   

  	
  132

  
	
  SECTION 6.11

  	
   

  	
  Prepayments
  of Other Indebtedness; Modifications of Organizational Documents and Other
  Documents, etc.

  	
   

  	
  134

  
	
  SECTION 6.12

  	
   

  	
  Limitation on Certain
  Restrictions on Restricted Subsidiaries

  	
   

  	
  135

  
	
  SECTION 6.13

  	
   

  	
  Limitation on Issuance
  of Capital Stock

  	
   

  	
  136

  
	
  SECTION 6.14

  	
   

  	
  Limitation on Creation
  of Subsidiaries

  	
   

  	
  136

  
	
  SECTION 6.15

  	
   

  	
  Business

  	
   

  	
  136

  
	
  SECTION 6.16

  	
   

  	
  Limitation on
  Accounting Changes

  	
   

  	
  136

  
	
  SECTION 6.17

  	
   

  	
  Fiscal Year

  	
   

  	
  137

  
	
  SECTION 6.18

  	
   

  	
  Excluded Subsidiaries

  	
   

  	
  137

  
	
  SECTION 6.19

  	
   

  	
  No Further Negative
  Pledge

  	
   

  	
  137

  
	
  SECTION 6.20

  	
   

  	
  Anti-Terrorism Law;
  Anti-Money Laundering

  	
   

  	
  137

  
	
  SECTION 6.21

  	
   

  	
  Embargoed Person

  	
   

  	
  138

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  [RESERVED]

  
	
   

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  EVENTS OF DEFAULT

  
	
   

  
	
  SECTION 8.01

  	
   

  	
  Events of Default

  	
   

  	
  138

  
	
  SECTION 8.02

  	
   

  	
  Rescission

  	
   

  	
  141

  



 


iii

















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.03

  	
   

  	
  Application of Proceeds

  	
   

  	
  142

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  
	
  THE ADMINISTRATIVE AGENT AND THE
  COLLATERAL AGENT

  
	
   

  
	
  SECTION 9.01

  	
   

  	
  Appointment and
  Authority

  	
   

  	
  143

  
	
  SECTION 9.02

  	
   

  	
  Rights as a Lender

  	
   

  	
  143

  
	
  SECTION 9.03

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  143

  
	
  SECTION 9.04

  	
   

  	
  Reliance by Agent

  	
   

  	
  144

  
	
  SECTION 9.05

  	
   

  	
  Delegation of Duties

  	
   

  	
  144

  
	
  SECTION 9.06

  	
   

  	
  Resignation of Agent

  	
   

  	
  145

  
	
  SECTION 9.07

  	
   

  	
  Non-Reliance on Agent
  and Other Lenders

  	
   

  	
  145

  
	
  SECTION 9.08

  	
   

  	
  No Other Duties, etc.

  	
   

  	
  146

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
  SECTION 10.01

  	
   

  	
  Notices

  	
   

  	
  146

  
	
  SECTION 10.02

  	
   

  	
  Waivers; Amendment

  	
   

  	
  149

  
	
  SECTION 10.03

  	
   

  	
  Expenses; Indemnity;
  Damage Waiver

  	
   

  	
  152

  
	
  SECTION 10.04

  	
   

  	
  Successors and Assigns

  	
   

  	
  154

  
	
  SECTION 10.05

  	
   

  	
  Survival of Agreement

  	
   

  	
  158

  
	
  SECTION 10.06

  	
   

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  	
  159

  
	
  SECTION 10.07

  	
   

  	
  Severability

  	
   

  	
  159

  
	
  SECTION 10.08

  	
   

  	
  Right of Setoff

  	
   

  	
  159

  
	
  SECTION 10.09

  	
   

  	
  Governing Law;
  Jurisdiction; Consent to Service of Process

  	
   

  	
  160

  
	
  SECTION 10.10

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  160

  
	
  SECTION 10.11

  	
   

  	
  Headings

  	
   

  	
  161

  
	
  SECTION 10.12

  	
   

  	
  Treatment of Certain
  Information; Confidentiality

  	
   

  	
  161

  
	
  SECTION 10.13

  	
   

  	
  USA PATRIOT Act Notice

  	
   

  	
  161

  
	
  SECTION 10.14

  	
   

  	
  Interest Rate
  Limitation

  	
   

  	
  162

  
	
  SECTION 10.15

  	
   

  	
  Lender Addendum

  	
   

  	
  162

  
	
  SECTION 10.16

  	
   

  	
  Obligations Absolute

  	
   

  	
  162

  



 


iv

















 


	
  ANNEXES(1)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Annex I

  	
   

  	
  Amortization Table

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES(2)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.01(a)

  	
   

  	
  Refinancing
  Indebtedness to Be Repaid

  	
   

  	
   

  
	
  Schedule 1.01(b)

  	
   

  	
  Guarantors

  	
   

  	
   

  
	
  Schedule 1.01(c)

  	
   

  	
  Letters of Credit

  	
   

  	
   

  
	
  Schedule 1.01(d)

  	
   

  	
  Revolving Commitments

  	
   

  	
   

  
	
  Schedule 3.03

  	
   

  	
  Governmental Approvals;
  Compliance with Laws

  	
   

  	
   

  
	
  Schedule 3.07(b)

  	
   

  	
  Consents

  	
   

  	
   

  
	
  Schedule 3.09

  	
   

  	
  Material Agreements

  	
   

  	
   

  
	
  Schedule 3.19

  	
   

  	
  Insurance

  	
   

  	
   

  
	
  Schedule 3.23

  	
   

  	
  Licenses

  	
   

  	
   

  
	
  Schedule 3.24

  	
   

  	
  Construction Contracts

  	
   

  	
   

  
	
  Schedule 4.01(g)

  	
   

  	
  Local Counsel

  	
   

  	
   

  
	
  Schedule 4.01(n)(vi)

  	
   

  	
  Landlord Access
  Agreements

  	
   

  	
   

  
	
  Schedule
  4.01(o)(iii)(A)

  	
   

  	
  Title Insurance Amounts

  	
   

  	
   

  
	
  Schedule
  4.01(o)(iii)(B)

  	
   

  	
  PZR Reports

  	
   

  	
   

  
	
  Schedule 6.01(b)

  	
   

  	
  Existing Indebtedness

  	
   

  	
   

  
	
  Schedule 6.02(c)

  	
   

  	
  Existing Liens

  	
   

  	
   

  
	
  Schedule 6.04(b)

  	
   

  	
  Existing
  Investments

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS(3)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of
  Administrative Questionnaire

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of Assignment
  and Assumption

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Borrowing
  Request

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Compliance
  Certificate

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Form of Interest
  Election Request

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  [Reserved]

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  Form of Landlord
  Lien Waiver, Access Agreement and Consent

  	
   

  	
   

  
						



 






(1)                                  An Amended and Restated Annex I is
attached hereto.


 


(2)           No schedules to the Existing Credit
Agreement are being amended or restated. Schedules 1.01(c) and
(d) are added hereto.


 


(3)           No exhibits to the
Existing Credit Agreement are being amended or restated.


 


v

















 


	
  Exhibit H

  	
   

  	
  Form of LC Request

  	
   

  	
   

  
	
  Exhibit I

  	
   

  	
  Form of Lender
  Addendum

  	
   

  	
   

  
	
  Exhibit J

  	
   

  	
  Form of Mortgage

  	
   

  	
   

  
	
  Exhibit K-1

  	
   

  	
  Form of Tranche B
  Note

  	
   

  	
   

  
	
  Exhibit K-2

  	
   

  	
  Form of Revolving
  Note

  	
   

  	
   

  
	
  Exhibit K-3

  	
   

  	
  Form of Swingline
  Note

  	
   

  	
   

  
	
  Exhibit L-1

  	
   

  	
  Form of Perfection
  Certificate

  	
   

  	
   

  
	
  Exhibit L-2

  	
   

  	
  Form of Perfection
  Certificate Supplement

  	
   

  	
   

  
	
  Exhibit M

  	
   

  	
  Form of Security
  Agreement

  	
   

  	
   

  
	
  Exhibit N

  	
   

  	
  Form of Opinion of
  Borrower’s Counsel

  	
   

  	
   

  
	
  Exhibit O

  	
   

  	
  Form of Solvency
  Certificate

  	
   

  	
   

  
	
  Exhibit P

  	
   

  	
  Form of
  Intercompany Note

  	
   

  	
   

  
	
  Exhibit Q

  	
   

  	
  Form of
  Non-Bank Certificate

  	
   

  	
   

  
	
  Exhibit R

  	
   

  	
  Form of Guarantee
  Agreement

  	
   

  	
   

  



 


vi
















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (this “Agreement”)
dated as of June 16, 2006, as amended and restated as of March 31,
2010, among Jacobs Entertainment, Inc., a Delaware corporation (“Borrower”), the Lenders, CIBC World Markets Corp., as
syndication agent (in such capacity, “Syndication Agent”),
Wells Fargo Bank, National Association, as documentation agent (in such
capacity “Documentation Agent”) and as swingline
lender (in such capacity, “Swingline Lender”),
CIT Lending Services Corporation, as documentation agent (in such capacity “Documentation Agent”), and Credit Suisse AG, Cayman Islands
Branch (formerly known as Credit Suisse, Cayman Islands Branch), as issuing
bank (in such capacity, “Issuing Bank”),
as administrative agent (in such capacity, “Administrative
Agent”) for the Lenders and as collateral agent (in such capacity, “Collateral Agent”) for the Secured Parties and the Issuing
Bank.


 


WITNESSETH:


 


WHEREAS,
Borrower previously entered into (a) an agreement with Gameco Holdings, Inc.
(“Gameco”), dated as of May 26, 2006
(as amended, supplemented or otherwise modified from time to time in accordance
with the provisions thereof, the “TPSH Agreement”),
pursuant to which certain Restricted Subsidiaries of Borrower acquired (the “TPSH Acquisition”) two truck stop gaming plazas in Vinton
and Denham Springs, Louisiana from unrelated third parties, (b) an asset
purchase agreement dated November 2, 2005 (as amended, supplemented or
otherwise modified from time to time in accordance with the provisions hereof
and thereof, the “Pinon Agreement”)
with Capital City Entertainment, Inc. (the “Seller”)
pursuant to which a Restricted Subsidiary of Borrower acquired (the “Pinon Acquisition”) all of the assets of the Best Western Pinon
Plaza Resort, a division of the Seller (“Pinon
Plaza”), and (c) an asset purchase agreement with Gameco dated
as of May 16, 2006 (as amended, supplemented or otherwise modified from
time to time in accordance with the provisions thereof, the “Gameco Agreement”) pursuant to which Borrower acquired (the “Gameco Acquisition”) three truck stop gaming plazas and land
for a fourth truck stop gaming plaza, each in Louisiana;


 


WHEREAS,
on the Closing Date, Borrower refinanced the outstanding $148.0 million
aggregate principal amount of its 11.875% senior secured notes due 2009 (the “Existing Notes”) and other outstanding Indebtedness of
approximately $26.5 million and paid related premiums (approximately $9.4 million),
fees and expenses;


 


WHEREAS,
in connection with the Refinancing, Borrower offered to purchase the Existing
Notes pursuant to a tender offer (the “Tender Offer”)
and on the Closing Date (as defined herein) gave an irrevocable notice of
redemption with respect to Existing Notes not tendered in the early consent
portion of the Tender Offer (such notice and the delivery thereof, the “Existing Notes Redemption Notice” and all transactions
related to such redemption and the consummation thereof, the “Existing Notes Redemption”);


 


WHEREAS,
Borrower issued $210.0 million in aggregate principal amount of Senior Notes in
connection with the TPSH Acquisition, the Pinon Acquisition, the Gameco Acquisition,
the Refinancing and the Additional Transactions;


 

















 


WHEREAS,
except for the Pinon Acquisition which was consummated on June 25, 2006,
the TPSH Acquisition which was consummated on June 16, 2006 and the redemption
of Existing Notes not purchased in the Tender Offer, but that were irrevocably
called for redemption, the Refinancing, the Acquisitions, the Additional
Transactions and the issuance of the Senior Notes were consummated
simultaneously on the Closing Date;


 


WHEREAS,
Borrower previously requested the Lenders to extend credit in the form of (a) Tranche
B Loans on the Closing Date, in an aggregate principal amount not in excess of
$40,000,000, (b) Delayed Draw Tranche B Loans after the Closing Date, in
an aggregate principal amount not in excess of $20,000,000, and (c) Revolving
Loans at any time after the Closing Date and from time to time prior to the
Revolving Maturity Date (as defined in the Existing Credit Agreement), in an
aggregate principal amount at any time outstanding not in excess of
$40,000,000;


 


WHEREAS,
Borrower previously requested the Swingline Lender to make Swingline Loans, at
any time and from time to time prior to the Revolving Maturity Date (as defined
in the Existing Credit Agreement), in an aggregate principal amount at any time
outstanding not in excess of $5,000,000;


 


WHEREAS,
Borrower previously requested the Issuing Bank to issue letters of credit, in
an aggregate face amount at any time outstanding not in excess of $5,000,000,
to support payment obligations incurred in the ordinary course of business by
Borrower and its Restricted Subsidiaries; and


 


WHEREAS,
pursuant to the Amendment and Restatement Agreement, Borrower has requested,
and the parties thereto have agreed, upon the terms and subject to the
conditions set forth therein, that the Existing Credit Agreement be amended and
restated in its entirety as provided herein effective upon satisfaction of the
conditions set forth in the Amendment and Restatement Agreement.


 


NOW,
THEREFORE, the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


“ABR” when used in reference to any Loan or Borrowing, is
used when such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.


 


“ABR Borrowing” shall mean a Borrowing comprised of ABR
Loans.


 


“ABR Loan” shall mean any ABR Term Loan, ABR Revolving Loan
or Swingline Loan.


 


2

















 


“ABR Revolving Loan” shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.


 


“ABR Term Loan” shall mean any Tranche B Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.


 


“Accounting Change” shall have the meaning assigned to such
term in Section 1.04.


 


“Acquisition Agreements” means the TPSH Agreement, the Pinon
Agreement and the Gameco Agreement.


 


“Acquisition Consideration” shall mean the purchase
consideration for any Permitted Acquisition or Permitted Truck Plaza
Acquisition and all other payments by Borrower or any of its Restricted
Subsidiaries in exchange for, or as part of, or in connection with, any
Permitted Acquisition or Permitted Truck Plaza Acquisition, whether paid in cash
or by exchange of Equity Interests or of properties or otherwise and whether
payable at or prior to the consummation of such Permitted Acquisition or
Permitted Truck Plaza Acquisition or deferred for payment at any future time,
whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price
and any assumptions of Indebtedness, “earn-outs” and other agreements to make
any payment the amount of which is, or the terms of payment of which are, in
any respect subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of any person or business; provided
that any such future payment that is subject to a contingency shall be
considered Acquisition Consideration only to the extent of the reserve, if any,
required under GAAP at the time of such sale to be established in respect
thereof by Borrower or any of its Restricted Subsidiaries.


 


“Acquisition Documents” shall mean the Acquisition Agreements
and all other documents executed and delivered with respect to the Acquisition
Agreements.


 


“Acquisitions” shall mean the TPSH Acquisition, the Pinon
Acquisition and the Gameco Acquisition.


 


“Additional Transactions” shall mean (a) a
Dividend by Borrower in an amount not to exceed $10.0 million and (b) a
return of capital in an amount not to exceed $8.8 million to the holders of
Borrower’s Equity Interests in respect of the December 2005 capital
contribution made by such holders.


 


“Adjusted LIBOR Rate” shall mean, with respect to any LIBOR
Borrowing for any Interest Period, (a) an interest rate per annum
determined by the Administrative Agent to be equal to the LIBOR Rate for such
LIBOR Borrowing in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such LIBOR
Borrowing for such Interest Period.


 


“Administrative Agent” shall have the meaning assigned to
such term in the preamble hereto and includes each other person appointed as
the successor pursuant to Article X.


 


3

















 


“Administrative Agent Fees” shall have the meaning assigned
to such term in Section 2.05(b).


 


“Administrative Questionnaire” shall mean an Administrative
Questionnaire in substantially the form of Exhibit A.


 


“Affiliate” shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the person specified; provided, however, that, for purposes of Section 6.09,
the term “Affiliate” shall also include (i) any person that directly or
indirectly owns more than 10% of any class of Equity Interests of the person
specified or (ii) any person that is an executive officer or director of
the person specified.


 


“Agents” shall mean the Syndication Agent, each of the
Documentation Agents, the Administrative Agent and the Collateral Agent; and “Agent” shall mean any of them.


 


“Agreement” shall have the meaning assigned to such term in
the preamble hereto.


 


“Alternate Base Rate” shall mean, for any day, a rate per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
greatest of (a) the Base Rate in effect on such day, (b) the Federal
Funds Effective Rate in effect on such day plus 0.50% and (c) the
Adjusted LIBOR Rate for a one month Interest Period on such day (or if such day
is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the avoidance of doubt, the Adjusted
LIBOR Rate for any day shall be based on the rate determined on such day at
approximately 11 a.m. (London time) by reference to the British Bankers’
Association Interest Settlement Rates for deposits in dollars (as set forth by
any service selected by the Administrative Agent that has been nominated by the
British Bankers’ Association as an authorized vendor for the purpose of
displaying such rates). If the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms of the definition thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of
the preceding sentence until the circumstances giving rise to such inability no
longer exist.  Any change in the
Alternate Base Rate due to a change in the Base Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Base Rate or the Federal Funds Effective Rate, respectively.


 


“Amendment and Restatement Agreement” means the Amendment and
Restatement Agreement, dated as of March 31, 2010, among the Borrower, the
Administrative Agent, the Lenders party thereto and the Swingline Lender.


 


“Amendment No. 1” shall mean Amendment No. 1, dated
as of June 16, 2006, to the Agreement, among the Borrower, the
Administrative Agent and the Lenders party thereto.


 


4

















 


“Amendment No. 2” shall mean Amendment No. 2, dated
as of February 5, 2009, to the Agreement, among the Borrower, the
Administrative Agent and the Lenders party thereto.


 


“Anti-Terrorism Laws” shall have the meaning assigned to such
term in Section 3.22.


 


“Applicable Fee” shall mean, for any day, with respect to (i) any
Revolving Commitment, 0.75% per annum and (ii) any Delayed Draw Tranche B
Commitment, 1.00% per annum.


 


“Applicable Margin” shall mean, for any day, with respect to
any Tranche B Loan, 3.00% in the case of Eurodollar Loans and 2.00% in the case
of ABR Loans and, with respect to any Revolving Loan, the applicable percentage
set forth below under the appropriate caption based upon the Total Leverage
Ratio as of the most recent determination date:


 


	
  Total

  	
   

  	
  Class B Revolving Loans

  	
   

  	
  Class A Revolving Loans

  	
   

  
	
  Leverage
  Ratio

  	
   

  	
  LIBOR

  	
   

  	
  ABR

  	
   

  	
  LIBOR

  	
   

  	
  ABR

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level I  

  > 5.50x

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level II

  5.00x > but

  < 5.50x

  	
   

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level III

  4.50x > but

  < 5.00x

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level IV

  < 4.50x

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  



 


Each
change in the Applicable Margin resulting from a change in the Total Leverage
Ratio shall be effective with respect to all Revolving Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 5.01(a) or
(b) and Section 5.01(d), respectively, indicating such
change until the date immediately preceding the next date of delivery of such
financial statements and certificates indicating another such change.  Notwithstanding the foregoing, the Total
Leverage Ratio shall be deemed to be in Level III from the Closing Date to the
date of delivery to the Administrative Agent of the financial statements and
certificates required by Section 5.01(b) and Section 5.01(d) for
the fiscal period ended after the Closing Date and shall be deemed to be in
Level I (i) at any time during which Borrower has failed to deliver
the financial statements and certificates required by Section 5.01(a) or
(b) and Section 5.01(d), respectively, and (ii) at
any time during the existence of an Event of Default.


 


5

















 


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


 


“Arrangers” shall mean Credit Suisse Securities (USA) LLC and
CIBC World Markets Corp as Joint Lead Arranger and Joint Bookrunners.


 


“Asset Sale”
shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer
or other disposition (including by way of merger or consolidation and including
any Sale and Leaseback Transaction) of any property (including any Colonial
Downs Sale) excluding sales of inventory and dispositions of cash and Cash
Equivalents, in each case, in the ordinary course of business, by Borrower or
any of its Restricted Subsidiaries and (b) any issuance or sale of any
Equity Interests of any Subsidiary of Borrower, in each case, to any person
other than (i) Borrower, (ii) any Guarantor or (iii) other than
for purposes of Section 6.06, any other Subsidiary.


 


“Assignment and Assumption” shall mean an assignment and
assumption entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section 10.04(b)), and
accepted by the Administrative Agent, in substantially the form of Exhibit B,
or any other form approved by the Administrative Agent.


 


“Attributable Indebtedness” shall mean, when used with
respect to any Sale and Leaseback Transaction, as at the time of determination,
the present value (discounted at a rate equivalent to the rate of interest
implicit in such Sale and Leaseback Transaction, determined in accordance with
GAAP) of the total obligations of the lessee for net rental payments during the
remaining term of the lease included in any such Sale and Leaseback Transaction.


 


“Available Liquidity Condition” shall mean that, at April 30,
2011, the aggregate amount of (i) cash
and Cash Equivalents that appear on the consolidated balance sheet of Borrower
and its Restricted Subsidiaries in
excess of Casino Bankroll at March 31, 2011 plus (ii) the
available portion of Class A Revolving Commitments at March 31, 2011
plus (iii) the aggregate amount of cash investments in Borrower between March 31,
2011 and April 30, 2011 to the extent that (x) such investments are
in the form of common stock of Borrower and (y) a copy of an irrevocable
notice of intent to make such investment is delivered to the Administrative
Agent on or before April 4, 2011, together is not less than $10.0 million.


 


“Base Rate” shall mean the rate per annum as announced from
time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Base Rate shall be
effective from and including the date such change is effective.  The prime rate is not necessarily the lowest
rate charged by the Administrative Agent to its customers.


 


“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), such “person” shall be deemed to have beneficial ownership
of all securities that such “person” has the right to 


 


6

















 


acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. 
The terms “Beneficially Owns” and “Beneficially Owned” shall have a
corresponding meaning.


 


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


 


“Board of Directors” shall mean, with respect to any person, (i) in
the case of any corporation, the board of directors of such person, (ii) in
the case of any limited liability company, the board of managers of such
person, if applicable, (iii) in the case of any partnership, the Board of
Directors of the general partner of such person, if applicable, and (iv) in
any other case, the functional equivalent of the foregoing.


 


“Borrower” shall have the meaning assigned to such term in
the preamble hereto.


 


“Borrowing” shall mean (a) Loans of the same Class and
Type, made, converted or continued on the same date and, in the case of LIBOR
Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.


 


“Borrowing Request” shall mean a request by Borrower in
accordance with the terms of Section 2.03 and substantially in the
form of Exhibit C, or such other form as shall be approved by the
Administrative Agent.


 


“Business Day” shall mean any day other than a Saturday,
Sunday or other day on which banks in New York City are authorized or required
by law to close; provided, however,
that when used in connection with a LIBOR Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.


 


“Capital Assets” shall mean, with respect to any person, all equipment,
fixed assets and Real Property or improvements of such person, or replacements
or substitutions therefor or additions thereto, that, in accordance with GAAP,
have been or should be reflected as additions to property, plant or equipment
on the balance sheet of such person.


 


“Capital Expenditures” shall mean, for any period, without
duplication, all expenditures made directly or indirectly by Borrower and its
Restricted Subsidiaries during such period for Capital Assets (whether paid in
cash or other consideration, financed by the incurrence of Indebtedness or
accrued as a liability), but excluding (i) expenditures made in connection
with the replacement, substitution or restoration of property pursuant to Section 2.10(f) and
(ii) any portion of such expenditures attributable solely to acquisitions
of property, plant and equipment in Permitted Acquisitions.  For purposes of this definition, the purchase
price of equipment or other fixed assets that are purchased simultaneously with
the trade-in of existing assets or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount by which such
purchase price exceeds the credit granted by the seller of such assets for the
assets being traded in at such time or the amount of such insurance proceeds,
as the case may be.


 


7

















 


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


 


“Cash Equivalents” shall mean, as to any person, (a) securities
issued, or directly, unconditionally 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 one year from the date of
acquisition by such person; (b) time deposits, certificates of deposit and
Eurodollar time deposits of any Lender or any commercial bank having, or which
is the principal banking subsidiary of a bank holding company organized under
the laws of the United States, any state thereof or the District of Columbia
having, capital and surplus aggregating in excess of $500.0 million and a rating
of “A” (or such other similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act) with maturities of not more than one year from the
date of acquisition by such person; (c) repurchase obligations with a term
of not more than 30 days for underlying securities of the types described
in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, which repurchase obligations
are secured by a valid perfected security interest in the underlying
securities; (d) commercial paper issued by any person incorporated in the
United States rated at least A-1 or the equivalent thereof by Standard &
Poor’s Rating Service or at least P-1 or the equivalent thereof by Moody’s
Investors Service Inc., and in each case maturing not more than one year after
the date of acquisition by such person; (e) investments in money market
funds at least 95% of whose assets are comprised of securities of the types described
in clauses (a) through (d) above; and (f) demand deposit
accounts maintained in the ordinary course of business.


 


“Cash Interest Expense” shall mean, for any period,
Consolidated Interest Expense for such period, less
the sum of (a) interest on any debt paid by the increase in the principal
amount of such debt including by issuance of additional debt of such kind, (b) items
described in clause (c) of the definition of “Consolidated Interest
Expense” and (c) gross interest income of Borrower and its Restricted
Subsidiaries for such period.


 


“Casino Bankroll” shall mean only the amount
of cash or Cash Equivalents required by the provisions of applicable Gaming Law
(including Section 6.150 of the Regulations of the Nevada Gaming
Commission) to satisfy the casino minimum bankroll requirements, mandatory game
security reserves, allowances for redemption of casino chips and tokens, or
payment of winning wagers to gaming patrons.


 


“Casualty Event” shall mean any involuntary loss of title,
any involuntary loss of, damage to or any destruction of, or any condemnation
or other taking (including by any Governmental Authority) of, any property of
Borrower or any of its Restricted Subsidiaries. 
“Casualty Event” shall include but not be limited to any taking of all
or any part of any Real Property of any person or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any Requirement of
Law, or by reason of the temporary requisition of the use or 


 


8

















 


occupancy of all or any part of any Real Property of
any person or any part thereof by any Governmental Authority, civil or
military, or any settlement in lieu thereof.


 


“CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq., and all implementing regulations.


 


“Change in
Control” means the occurrence of any of the following:


 


(a)           the occurrence of a
change of control as defined under the documents governing or evidencing any
Material Indebtedness;


 


(b)           any person or group
of related persons for purposes of Section 13(d) of the Exchange Act
(a “Group”), other than the Permitted
Holders, becomes the Beneficial Owner of more than 33-1/3% of the total voting
power of Borrower’s Voting Stock, and the Permitted Holders Beneficially Own,
in the aggregate, a lesser percentage of the total voting power of the Voting
Stock of Borrower than such other person or Group and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Borrower;


 


(c)           there is consummated
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of Borrower to
any person or Group, together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of the Indenture), other than to
the Permitted Holders;


 


(d)           there is consummated
any consolidation or merger of Borrower in which Borrower is not the continuing
or surviving person or pursuant to which the common stock of Borrower would be
converted into cash, securities or other property, other than a merger or
consolidation of Borrower in which the holders of the capital stock of Borrower
outstanding immediately prior to the consolidation or merger hold, directly or
indirectly, at least a majority of the voting power of the surviving
corporation immediately after such consolidation or merger; or


 


(e)           the first day on
which a majority of the members of the Board of Directors of Borrower are not
Continuing Directors.


 


For purposes of this definition, a person
shall not be deemed to have beneficial ownership of Equity Interests subject to
a stock purchase agreement, merger agreement or similar agreement until the
consummation of the transactions contemplated by such agreement.


 


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


 


9

















 


“Charges” shall have the meaning assigned to such term in Section 10.14.


 


“Class,” when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are Class A
Revolving Loans, Class B Revolving Loans, Incremental Revolving Loans that
are not Class A Revolving Loans or Class B Revolving Loans,
Tranche B Loans, Incremental Tranche B Loans that are not Tranche B Loans
or Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Class A Revolving Commitment, Class B
Revolving Commitment, Tranche B Commitment or Swingline Commitment, in
each case, under this Agreement as in effect on the Restatement Effective Date
or pursuant to Section 2.19, and when used in reference to any Revolving
Lender, refers to whether such Revolving Lender is a Class A Revolving
Lender or a Class B Revolving Lender.


 


“Class A Revolving Availability Period” shall mean the
period from and including the Restatement Effective Date to but excluding the
earlier of (i) the Business Day preceding the Class A Revolving
Maturity Date and (ii) the date of termination of the Class A
Revolving Commitments.


 


“Class A Revolving Borrowing” shall mean a Borrowing
comprised of Class A Revolving Loans.


 


“Class A Revolving Commitment” shall mean, with respect
to each Lender, the commitment, if any, of such Lender to make Class A
Revolving Loans hereunder up to the amount set forth on Schedule I to the
Lender Addendum executed and delivered by such Lender or in the Assignment and
Assumption pursuant to which such Lender assumed its Class A Revolving
Commitment, as applicable, as the same may be (a) reduced from time to
time pursuant to Section 2.07, (b) increased pursuant to Section 2.19
and (c) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04.  The amount of each Class A Revolving
Lender’s Class A Revolving Commitment on the Restatement Effective Date is
as set forth on Schedule 1.01(d) hereto (determined as provided in
the Amendment and Restatement Agreement), or in the Assignment and Acceptance
pursuant to which such Class A Revolving Lender shall have assumed its Class A
Revolving Commitment, as applicable.


 


“Class A Revolving Exposure” shall mean, with respect to
any Lender at any time, the aggregate principal amount at such time of all
outstanding Class A Revolving Loans of such Lender, plus the aggregate
amount at such time of such Revolving Lender’s LC Exposure, plus the aggregate
amount at such time of such Revolving Lender’s Swingline Exposure.


 


“Class A Revolving Lender” shall mean a Lender with a Class A
Revolving Commitment.


 


“Class A Revolving Loan” shall mean (a) each
Revolving Loan outstanding under (and as defined in) the Existing Credit
Agreement as of the Restatement Effective Date as to which the Lender of such
Revolving Loan is a party to the Amendment and Restatement Agreement and (b) a
Loan made on or after the Restatement Effective Date pursuant to Section


 


10
















 


2.01(b).  Each Class A
Revolving Loan shall either be an ABR Revolving Loan or a LIBOR Revolving Loan.


 


“Class A Revolving Maturity Date” shall mean June 16,
2012, or if such day is not a Business Day, the first Business Day thereafter;
provided that the Class A Revolving Maturity Date shall be deemed to mean June 16,
2011, or if such day is not a Business Day, the first Business Day thereafter,
unless the Available Liquidity Condition has been satisfied or waived.


 


“Class B Revolving Availability Period” shall mean the
period from and including the Closing Date to but excluding the earlier of (i) the
Business Day preceding the Class B Revolving Maturity Date and (ii) the
date of termination of the Class B Revolving Commitments.


 


“Class B Revolving Borrowing” shall mean a Borrowing
comprised of Class B Revolving Loans.


 


“Class B Revolving Commitment” shall mean, with respect
to each Lender, the commitment, if any, of such Lender to make Class B
Revolving Loans hereunder up to the amount set forth on Schedule I to the
Lender Addendum executed and delivered by such Lender or in the Assignment and
Assumption pursuant to which such Lender assumed its Class B Revolving
Commitment, as applicable, as the same may be (a) reduced from time to
time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04.  The amount of each Class B Revolving
Lender’s Class B Revolving Commitment on the Restatement Effective Date is
as set forth on Schedule 1.01(d) hereto (determined as provided in
the Amendment and Restatement Agreement), or in the Assignment and Acceptance
pursuant to which such Class B Revolving Lender shall have assumed its Class B
Revolving Commitment, as applicable.


 


“Class B Revolving Exposure” shall mean, with respect to
any Lender at any time, the aggregate principal amount at such time of all
outstanding Class B Revolving Loans of such Lender.


 


“Class B Revolving Lender” shall mean a Lender with a Class B
Revolving Commitment.


 


“Class B Revolving Loan” shall mean (a) each
Revolving Loan outstanding under (and as defined in) the Existing Credit
Agreement as of the Restatement Effective Date as to which the Lender of such
Revolving Loan is not a party to the Amendment and Restatement Agreement and (b) a
Loan made on or after the Restatement Effective Date pursuant to Section 2.01(c).  Each Class B Revolving Loan shall either
be an ABR Revolving Loan or a LIBOR Revolving Loan.


 


“Class B Revolving Maturity Date” shall mean June 16,
2011, or if such day is not a Business Day, the first Business Day thereafter.


 


“Closing Date” shall mean June 16, 2006, the date of the
initial Credit Extension under the Existing Credit Agreement.


 


11

















 


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


 


“Collateral” shall mean, collectively, all of the Security
Agreement Collateral, the Mortgaged Property and all other property of whatever
kind and nature subject or purported to be subject from time to time to a Lien
under any Security Document.


 


“Collateral Agent” shall have the meaning assigned to such
term in the preamble hereto.


 


“Colonial Downs Business” shall mean the
business and assets owned by Borrower and its Restricted Subsidiaries on the
Closing Date at the Colonial Downs track facility in New Kent, Virginia and the
satellite wagering facilities in the State of Virginia and any business or
assets within the State of Virginia hereafter acquired prior to the first, if
any, asset sale pursuant to Section 6.06(g) which are
substantially related thereto or are reasonable extensions thereof (including
instant racing assets).


 


“Colonial Downs Sale” shall mean any
conveyance, sale, lease, sublease, assignment, transfer or other disposition
(including by way of merger or consolidation and including any Sale and
Leaseback Transaction) of all or part of the Colonial Downs Business after the
Closing Date.


 


“Commitment” shall mean, with respect to any Lender, such
Lender’s Class A Revolving Commitment, Class B Revolving Commitment,
Tranche B Commitment or Swingline Commitment and any Commitment to make
term loans of a new Class extended by such Lender as provided in Section 2.19.


 


“Commitment Fee” shall have the meaning assigned to such term
in Section 2.05(a).


 


“Companies” shall mean Borrower and its Restricted
Subsidiaries; and “Company” shall
mean any one of them.


 


“Completion Certificate” means a certificate
executed by Borrower, the applicable Loan Party, General Contractor and
Inspecting Engineer stating that the applicable Project is completed and the facility
affected by the work is completely operational subject to punch list and
similar post-completion items.


 


“Completion Date” means the earlier of the
date upon which the applicable Construction Contract contemplates completion of
the applicable Project, or the date a Completion Certificate is issued for the
applicable Project executed by Borrower, the applicable Loan Party, General
Contractor and Inspecting Engineer, whichever shall first occur.


 


“Compliance Certificate” shall mean a certificate of a
Financial Officer substantially in the form of Exhibit D.


 


“Confidential Information Memorandum” shall mean that certain
confidential information memorandum dated May 2006.


 


12

















 


“Consolidated Amortization Expense” shall mean, for any
period, the amortization expense of Borrower and the Guarantors for such
period, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Current Assets” shall mean, as at any date of
determination, the total assets of Borrower and the Guarantors which may
properly be classified as current assets on a consolidated balance sheet of
Borrower and the Guarantors in accordance with GAAP, excluding Casino Bankroll.


 


“Consolidated Current Liabilities” shall mean, as at any date
of determination, the total liabilities of Borrower and the Guarantors which
may properly be classified as current liabilities (other than the current
portion of any Loans) on a consolidated balance sheet of Borrower and the
Guarantors in accordance with GAAP.


 


“Consolidated Depreciation Expense” shall mean, for any
period, the depreciation expense of Borrower and the Guarantors for such
period, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated EBITDA” shall mean, for any period,
Consolidated Net Income for such period, adjusted by (x) adding thereto, in each case only to the extent (and in the
same proportion) deducted in determining such Consolidated Net Income and
without duplication (and with respect to the portion of Consolidated Net Income
attributable to any Guarantor only if a corresponding amount would be permitted
at the date of determination to be distributed to Borrower by such Guarantor
without prior approval (that has not been obtained), pursuant to the terms of
its Organizational Documents and all agreements, instruments and Requirements
of Law applicable to such Guarantor or its equityholders):


 


(a)           Consolidated
Interest Expense for such period;


 


(b)           Consolidated
Amortization Expense for such period;


 


(c)           Consolidated
Depreciation Expense for such period;


 


(d)           Consolidated Tax
Expense for such period;


 


(e)           costs and expenses
directly incurred in connection with the Transactions (not to exceed
$9,000,000);


 


(f)            Pre-Opening
Expenses;


 


(g)           costs and expenses
in an aggregate amount not to exceed $10,500,000 associated with Borrower’s
purchase (through a Guarantor) of all the outstanding Equity Interests of
Maryland-Virginia Racing Circuit, Inc. in August 2005;


 


(h)           the aggregate amount
of all other non-cash charges (including (x) goodwill impairment charges
in accordance with Statement of Financial Accounting Standards No. 142 and
(y) non-cash management compensation expense) reducing Consolidated Net 


 


13

















 


Income (excluding any non-cash charge that results in
an accrual of a reserve for cash charges in any future period) for such period;


 


(i)            transaction
expenses related to Permitted Acquisitions;


 


(j)            reasonable transaction
expenses or out-of-pocket fees incurred in connection with any other debt
financing, equity offering, acquisition or disposition allowed under this
Agreement;


 


(k)           Borrower’s costs and
expenses, in an aggregate amount not to exceed $1,450,000, directly related to
lobbying activity for and the promotion of passage of Amendment 50 to the
constitution of the State of Colorado;


 


(l)            fees, expenses and
charges paid or incurred in connection with the execution, effectiveness and
delivery of the Amendment and Restatement Agreement; and


 


(m)          any unusual or
non-recurring losses or expenses not to exceed $2,500,000 in any period of four
consecutive fiscal quarters; and


 


(y) subtracting therefrom the sum of (i) the
aggregate amount of all non-cash items increasing Consolidated Net Income
(other than the accrual of revenue or recording of receivables in the ordinary
course of business) and (ii) interest income, in each case for such
period.


 


Other
than for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall be
calculated on a Pro Forma Basis to give effect to the Acquisitions, the commencement
of operations of any Substantial Project, any Permitted Acquisition and Asset
Sales (other than any dispositions in the ordinary course of business)
consummated at any time on or after the first day of the Test Period thereof as
if the Acquisitions and each such Permitted Acquisition or commencement of operations
of any Substantial Project had been effected on the first day of such period
and as if each such Asset Sale had been consummated on the day prior to the
first day of such period.


 


“Consolidated Interest Coverage Ratio” shall mean, for any
Test Period, the ratio of (x) Consolidated EBITDA for such Test Period to (y) Cash
Interest Expense for such Test Period.


 


“Consolidated Interest Expense” shall mean, for any period,
the total consolidated interest expense of Borrower and the Guarantors for such
period determined on a consolidated basis in accordance with GAAP plus, without duplication:


 


(a)           imputed interest on
Capital Lease Obligations and Attributable Indebtedness of Borrower and the
Guarantors for such period;


 


(b)           commissions,
discounts and other fees and charges owed by Borrower or any of the Guarantors
with respect to letters of credit securing financial obligations, bankers’
acceptance financing and receivables financings for such period;


 


14

















 


(c)           amortization of debt
issuance costs, debt discount or premium and other financing fees and expenses
incurred by Borrower or any of the Guarantors for such period;


 


(d)           cash contributions
to any employee stock ownership plan or similar trust made by Borrower or any
of the Guarantors to the extent such contributions are used by such plan or
trust to pay interest or fees to any person (other than Borrower or a Wholly
Owned Restricted Subsidiary) in connection with Indebtedness incurred by such
plan or trust for such period;


 


(e)           all interest paid or
payable with respect to discontinued operations of Borrower or any of the
Guarantors for such period; and


 


(f)            the interest
portion of any deferred payment obligations of Borrower or any of the
Guarantors for such period;


 


provided that (a) to the extent directly related to the
Transactions, debt issuance costs, debt discount or premium and other financing
fees and expenses shall be excluded from the calculation of Consolidated
Interest Expense and (b) Consolidated Interest Expense shall be calculated
after giving effect to Hedging Agreements related to interest rates (including
associated costs), but excluding unrealized gains and losses with respect to
Hedging Agreements related to interest rates.


 


Consolidated
Interest Expense shall be calculated on a Pro Forma Basis to give effect to any
Indebtedness incurred, assumed or permanently repaid or extinguished during the
relevant Test Period in connection with the Acquisitions, any Permitted
Acquisitions, Substantial Projects and Asset Sales (other than any dispositions
in the ordinary course of business) as if such incurrence, assumption,
repayment or extinguishing had been effected on the first day of such
period.  Notwithstanding anything to the
contrary in this definition, Consolidated Interest Expense will not include any
interest expense incurred on the Existing Notes.


 


“Consolidated Net Income” shall mean, for any period, the
consolidated net income (or loss) of Borrower and the Guarantors determined on
a consolidated basis in accordance with GAAP; provided
that there shall be excluded from such net income (to the extent otherwise
included therein), without duplication:


 


(a)           the net income (or
loss) of any Unrestricted Subsidiary or any person (other than a Guarantor) in
which any person other than Borrower and the Guarantors has an ownership
interest, in each case except to the extent that cash in an amount equal to any
such income has actually been received by Borrower or (subject to clause (b) below)
any of the Guarantors during such period;


 


(b)           the net income of
any Guarantor during such period to the extent that the declaration or payment
of dividends or similar distributions by such Guarantor of that income is not
permitted by operation of the terms of its Organizational Documents or any
agreement, instrument or Requirement of Law applicable to that Guarantor during
such 


 


15

















 


period, except that Borrower’s equity in net loss of
any such Guarantor for such period shall be included in determining
Consolidated Net Income;


 


(c)           any gain (or loss),
together with any related provisions for taxes on any such gain (or the tax
effect of any such loss), realized during such period by Borrower or any of the
Guarantors upon any Asset Sale (other than any dispositions in the ordinary
course of business) by Borrower or any of the Guarantors;


 


(d)           gains and losses due
solely to fluctuations in currency values and the related tax effects
determined in accordance with GAAP for such period;


 


(e)           earnings resulting
from any reappraisal, revaluation or write-up of assets;


 


(f)            unrealized gains
and losses with respect to Hedging Obligations for such period;


 


(g)           any extraordinary
gain (or extraordinary loss), together with any related provision for taxes on
any such gain (or the tax effect of any such loss), recorded or recognized by
Borrower or any of the Guarantors during such period;


 


(h)           the cumulative
effect of any change in accounting principles; and


 


(i)            if Borrower is a
Flow Through Entity during such period, an amount equal to the maximum
Permitted Tax Distribution made or that could be made.


 


“Consolidated Net Total Debt” means, as of any date of determination, (x) the aggregate amount of
all Indebtedness of Borrower and its Restricted Subsidiaries on a consolidated
basis in accordance with GAAP plus
Contingent Obligations of the type described in clause (b)(i) of the
definition thereof minus (y) the
aggregate amount of cash and Cash Equivalents that would appear on the
consolidated balance sheet of Borrower and its Restricted Subsidiaries in excess of Casino Bankroll, in each case as
of such date of determination.


 


“Consolidated Tax Expense” shall mean, for any period, the
tax expense of Borrower and the Guarantors for such period, determined on a
consolidated basis in accordance with GAAP plus, without
duplication, any Permitted Tax Distribution solely to the extent deducted in
calculating Consolidated Net Income.


 


“Construction Completion Bond” means a bond,
in form and substance reasonably satisfactory to the Administrative Agent,
issued by a bonding company reasonably acceptable to the Administrative Agent,
in an amount and for a period of time necessary to complete the applicable
Project pursuant to the Plans and Specifications therefor, and including such
endorsements as Administrative Agent may reasonably require.


 


“Construction Contracts” means (i) those
certain contracts described in Schedule 3.24 and (ii) any and all
contracts, written or oral, between Borrower, any applicable Loan Party and any
Contractor and any subcontractor and between any of the foregoing and any other


 


16

















 


person relating in any way to the construction of any
Project, including the performing of labor or the furnishing of standard or specially
fabricated materials in connection therewith.


 


“Consulting Agreement” shall mean the Amended and Restated
Consulting Agreement dated January 1, 2006 between Borrower and Jacobs
Investments Management Co., Inc.


 


“Contested Collateral Lien Conditions” shall mean, with
respect to any Permitted Lien of the type described in clauses (a), (b), (e) and
(f) of Section 6.02, the following conditions:


 


(a)           Borrower shall cause
any proceeding instituted contesting such Lien to stay the sale or forfeiture
of any portion of the Collateral on account of such Lien;


 


(b)           at the option and at
the request of the Administrative Agent, to the extent such Lien is in an
amount in excess of $500,000 the appropriate Loan Party shall maintain cash
reserves in an amount sufficient to pay and discharge such Lien and the Administrative
Agent’s reasonable estimate of all interest and penalties related thereto; and


 


(c)           such Lien shall in
all respects be subject and subordinate in priority to the Lien and security
interest created and evidenced by the Security Documents, except if and to the
extent that the Requirement of Law creating, permitting or authorizing such
Lien provides that such Lien is or must be superior to the Lien and security
interest created and evidenced by the Security Documents.


 


“Contingent Obligation” shall mean, as to any person, any
obligation, agreement, understanding or arrangement 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 any obligation of such person,
whether or not contingent, (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor; (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor; (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation; (d) with respect to bankers’ acceptances, letters of credit
and similar credit arrangements, until a reimbursement obligation arises (which
reimbursement obligation shall constitute Indebtedness); or (e) 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 or any product warranties. 
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 less, the maximum amount of
such primary obligation for which such person may be liable, whether singly or
jointly, pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or 


 


17

















 


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” means, as of any date
of determination, any member of the Board of Directors of Borrower who:


 


(1)           was a member of such
Board of Directors on the Closing Date; or


 


(2)           was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.


 


“Contractor” means and includes any person
or entity, including any General Contractor, engaged to work on or furnish
materials or supplies for any Project.


 


“Control” shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
a person, whether through the ownership of voting securities, by agreement or
otherwise, and the terms “Controlling”
and “Controlled” shall have meanings correlative
thereto.


 


“Control Agreement” shall have the meaning assigned to such
term in the Security Agreement.


 


“Controlled Investment Affiliate” means, as to any person,
any other person which directly or indirectly is in Control of, is Controlled
by, or is under common Control with, such person and is organized by such
person (or any person Controlling such person) primarily for making equity or
debt investments in Borrower or other portfolio companies.


 


“Credit Extension” shall mean, as the context may require, (i) the
making of a Loan by a Lender or (ii) the issuance of any Letter of Credit,
or the amendment, extension or renewal of any existing Letter of Credit, by the
Issuing Bank.


 


“Dakota Development” shall mean the
acquisition from Dakota/Blackhawk, LLC of 2.2258 acres of undeveloped land in
Gilpin County, Colorado, 40,788 square feet of which are situated within the
Black Hawk Gaming District, and the development and construction of a parking
facility thereon.


 


“Debt Issuance” shall mean the incurrence by Borrower or any
of its Restricted Subsidiaries of any Indebtedness after the Closing Date
(other than as permitted by Section 6.01).


 


“Debt Service” shall mean, for any period, Cash Interest
Expense for such period plus scheduled principal amortization of all
Indebtedness for such period.


 


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


 


18

















 


“Default Rate” shall have the meaning assigned to such term
in Section 2.06(c).


 


“Defaulted Loan” shall have the meaning assigned to such term
in Section 2.16(c).


 


“Defaulting Lender” shall have the meaning assigned to such
term in Section 2.16(c).


 


“Default Period” shall have the meaning assigned to such term
in Section 2.16(c).


 


“Delayed Draw Tranche B Commitment” shall mean, with respect
to each Lender, the commitment, if any, of such Lender to make a Delayed Draw
Tranche B Loan hereunder after the Closing Date in the amount set forth on
Schedule I to the Lender Addendum executed and delivered by such Lender,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Delayed Draw Tranche B Commitment, as applicable, as the same may
be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender pursuant
to Section 10.04.  The
aggregate amount of the Lenders’ Delayed Draw Tranche B Commitments on the
Closing Date was $20,000,000.


 


“Delayed Draw Tranche B Lender” shall mean a Lender with a
Delayed Draw Tranche B Commitment or an outstanding Delayed Draw Tranche B
Loan.


 


“Delayed Draw Tranche B Loan” shall mean the term loans made
by the Lenders to Borrower pursuant to Section 2.01(a)(ii).  Each Delayed Draw Tranche B Loan shall be either
an ABR Term Loan or a LIBOR Term Loan.


 


“Disqualified Capital Stock” shall mean any Equity Interest
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of
the Final Maturity Date, (b) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) debt securities or (ii) any
Equity Interests referred to in (a) above, in each case at any time on or
prior to the first anniversary of the Final Maturity Date, or (c) contains
any repurchase obligation which may come into effect prior to payment in full
of all Obligations; provided, however, that any Equity Interests that would not
constitute Disqualified Capital Stock but for provisions thereof giving holders
thereof (or the holders of any security into or for which such Equity Interests
is convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Equity Interests upon the occurrence of a change in
control or an asset sale occurring prior to the first anniversary of the Final
Maturity Date shall not constitute Disqualified Capital Stock if such Equity Interests
provide that the issuer thereof will not redeem any such Equity Interests
pursuant to such provisions prior to the repayment in full of the Obligations.


 


19

















 


“Dividend” with respect to any person shall mean that such
person has declared or paid a dividend or returned any equity capital to the
holders of its Equity Interests or authorized or made any other distribution,
payment or delivery of property (other than Qualified Capital Stock of such
person) or cash to the holders of its Equity Interests as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for consideration any
of its Equity Interests outstanding (or any options or warrants issued by such
person with respect to its 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 consideration any of the Equity Interests of
such person outstanding (or any options or warrants issued by such person with
respect to its 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 have the meaning assigned to such
term in the preamble hereto.


 


“dollars” or “$” shall mean
lawful money of the United States.


 


“Domestic Subsidiary” shall mean any Subsidiary that is
organized or existing under the laws of the United States, any state thereof or
the District of Columbia.


 


“Eligible Assignee” shall mean a person that is (I) to
the extent required under applicable Gaming Laws, a Qualified Person, and (II) (a) if
the assignment does not include assignment of a Revolving Commitment, (i) any
Lender, (ii) an Affiliate of any Lender, (iii) an Approved Fund and (iv) any
other person approved by the Administrative Agent and Borrower (each such
approval not to be unreasonably withheld or delayed) and (b) if the assignment
includes assignment of a Revolving Commitment, (i) any Revolving Lender
approved by the Administrative Agent and the Issuing Bank and (ii) any
other person approved by the Administrative Agent, the Issuing Bank, the
Swingline Lender and Borrower (each such approval not to be unreasonably
withheld or delayed); provided that
in each clause (a) and (b), (x) no approval of Borrower shall be
required during the continuance of a Default or prior to the completion of the
primary syndication of the Commitments and Loans (as determined by the
Arrangers) and (y) “Eligible Assignee” shall not include Borrower or any
of its Affiliates or Subsidiaries or any natural person.


 


“Elko Development” shall mean the
development, renovation and upgrading of a leased 37,000 square foot building
located on six acres of land in Elko, Nevada for gaming and food and beverage operations.


 


“Embargoed Person” shall have the meaning assigned to such
term in Section 6.21.


 


“Employee Benefit Plan” shall mean an
employee benefit plan (as defined in Section 3(3) of ERISA) that is
maintained or contributed to by any Company (or with respect to


 


20
















 


an employee benefit plan subject to Title IV of ERISA,
any Company or its ERISA Affiliate) or with respect to which a Company could
incur liability.


 


“Engagement Letter” shall mean the letter agreement dated May 3,
2006 between the Borrower and the Arrangers.


 


“Environment” shall mean ambient air, indoor air, surface
water and groundwater (including potable water, navigable water and wetlands),
the land surface or subsurface strata, natural resources, the workplace or as
otherwise defined in any Environmental Law.


 


“Environmental Claim” shall mean any claim, notice, demand,
order, action, suit, proceeding or other communication alleging liability for
or obligation with respect to any investigation, remediation, removal, cleanup,
response, corrective action, damages to natural resources, personal injury,
property damage, fines, penalties or other costs resulting from, related to or
arising out of (i) the presence, Release or threatened Release in or into
the Environment of Hazardous Material at any location or (ii) any
violation or alleged violation of any Environmental Law, and shall include any
claim seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from, related to or arising out of
the presence, Release or threatened Release of Hazardous Material or alleged
injury or threat of injury to health, safety or the Environment.


 


“Environmental Law” shall mean any and all present and future
treaties, laws, statutes, ordinances, regulations, rules, decrees, orders,
judgments, consent orders, consent decrees, code or other binding requirements,
and the common law, relating to protection of public health or the Environment,
the Release or threatened Release of Hazardous Material, natural resources or
natural resource damages, or occupational safety or health, and any and all
Environmental Permits.


 


“Environmental Permit” shall mean any permit, license,
approval, registration, notification, exemption, consent or other authorization
required by or from a Governmental Authority under Environmental Law.


 


“Equipment” shall have the meaning assigned to such term in
the Security Agreement.


 


“Equity Interest” shall mean, with respect to any person, any
and all shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or nonvoting), of
equity of such person, including, if such person is a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a person the right to receive a share of the profits and losses
of, or distributions of property of, such partnership, whether outstanding on
the Closing Date or issued thereafter, but excluding debt securities
convertible or exchangeable into such equity.


 


“Equity Issuance” shall mean, without duplication, (i) any
issuance or sale by Borrower after the Closing Date of any Equity Interests in
Borrower (including any Equity Interests issued upon exercise of any warrant or
option) or any warrants or options to purchase Equity Interests or (ii) any
contribution to the capital of Borrower; provided, however, that an Equity 


 


21

















 


Issuance shall not include (x) any Preferred
Stock Issuance or Debt Issuance, (y) any such sale or issuance by Borrower
of not more than an aggregate amount of 3.0% of its Equity Interests (including
its Equity Interests issued upon exercise of any warrant or option or warrants
or options to purchase its Equity Interests but excluding Disqualified Capital
Stock), in each case, to directors, officers or employees of any Company and (z) any
Excluded Issuance.


 


“ERISA” shall mean the Employee Retirement Income Security
Act of 1974, as the same may be amended from time to time.


 


“ERISA Affiliate” shall mean, with respect to any person, any
trade or business (whether or not incorporated) that, together with such
person, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event” shall mean (a) any “reportable event,” as
defined in Section 4043 of ERISA or the regulations issued thereunder,
with respect to a Plan (other than an event for which the 30-day notice period
is waived by regulation); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the failure to make
by its due date a required installment under Section 412(m) of the
Code with respect to any Plan or the failure to make any required contribution
to a Multiemployer Plan; (d) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (e) the incurrence
by any Company or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (f) the receipt by
any Company or any of its ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan, or the occurrence of any
event or condition which could reasonably be expected to constitute grounds
under ERISA for the termination of, or the appointment of a trustee to administer,
any Plan; (g) the incurrence by any Company or any of its ERISA Affiliates
of any liability with respect to the withdrawal from any Plan or Multiemployer
Plan; (h) the receipt by any Company or its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (i) the “substantial cessation of
operations” within the meaning of Section 4062(e) of ERISA with
respect to a Plan; (j) the making of any amendment to any Plan which could
result in the imposition of a lien or the posting of a bond or other security;
and (k) the occurrence of a nonexempt prohibited transaction (within the
meaning of Section 4975 of the Code or Section 406 of ERISA) which
could reasonably be expected to result in liability to any Company.


 


“Event of Default” shall have the meaning assigned to such
term in Section 8.01.


 


“Excess Amount” shall have the meaning assigned to such term
in Section 2.10(h).


 


“Excess Cash Flow” shall mean, for any Excess Cash Flow
Period, Consolidated EBITDA for such Excess Cash Flow Period, minus, without duplication:


 


22

















 


(a)           Debt Service for
such Excess Cash Flow Period;


 


(b)           any voluntary
prepayments of Tranche B Loans and any permanent voluntary reductions to the
Revolving Commitments to the extent that an equal amount of the Revolving Loans
simultaneously is repaid, in each case so long as such amounts are not already
reflected in Debt Service, during such Excess Cash Flow Period;


 


(c)           Capital Expenditures
during such Excess Cash Flow Period that are paid in cash, net of all proceeds
received during such Excess Cash Flow Period of any Indebtedness to the extent
used to finance any Capital Expenditure (other than Indebtedness under this
Agreement to the extent there is no corresponding deduction to Excess Cash Flow
above in respect of the use of such borrowings);


 


(d)           Consolidated Tax
Expense to the extent actually paid;


 


(e)           the absolute value
of the difference, if negative, of the amount of Net Working Capital at the end
of the prior Excess Cash Flow Period over the amount of Net Working Capital at
the end of such Excess Cash Flow Period;


 


(f)            losses excluded
from the calculation of Consolidated Net Income by operation of clause (c) of
the definition thereof that are paid in cash during such Excess Cash Flow
Period; and


 


(g)           to the extent added
to determine Consolidated EBITDA, all items that did not result from a cash
payment to Borrower or any of its Restricted Subsidiaries on a consolidated
basis during such Excess Cash Flow Period;


 


provided that any amount deducted pursuant of any of the
foregoing clauses that will be paid after the close of such Excess Cash Flow
Period shall not be deducted again in a subsequent Excess Cash Flow Period; plus, without duplication:


 


(i)           the difference, if positive, of the amount of Net Working
Capital at the end of the prior Excess Cash Flow Period over the amount of Net
Working Capital at the end of such Excess Cash Flow Period;


 


(ii)            income or gain excluded from the calculation of
Consolidated Net Income by operation of clause (c) of the definition
thereof that is realized in cash during such Excess Cash Flow Period (except to
the extent such gain is subject to Section 2.10(c), (d) or
(f));


 


(iii)            if and to the extent deducted in the computation of
Consolidated EBITDA, interest income; and


 


(iv)           to the extent subtracted in determining Consolidated
EBITDA, all items that did not result from a cash payment by Borrower or any of
its Restricted Subsidiaries on a consolidated basis during such Excess Cash
Flow Period.


 


23

















 


“Excess Cash Flow Period” shall mean (i) the period
taken as one accounting period from January 1, 2007 and ending on December 31,
2007 and (ii) each fiscal year of Borrower thereafter.


 


“Exchange Act” shall mean the Securities Exchange Act of
1934, as amended.


 


“Excluded Issuance” shall mean an issuance and sale of
Qualified Capital Stock of Borrower (other than to a Subsidiary of Borrower) to
the extent such Qualified Capital Stock is used, or the Net Cash Proceeds
thereof shall be, within 45 days of the consummation of such issuance and sale,
used, without duplication, to prepay Tranche B Loans or Revolving Loans (with a
dollar-for-dollar reduction in Revolving Commitments pursuant to Section 2.10(a)),
or finance Expansion Capital Expenditures or one or more Investments permitted
pursuant to Sections 6.04  (e),  (i),  (k),
(l) or  (m); provided that such Net Cash Proceeds are
not used as the basis for incurring Indebtedness pursuant to Section 6.01
(f); provided, further, that the issuance and sale of Qualified Capital
Stock of Borrower for purposes of satisfying the Available Liquidity Condition
as contemplated by the proviso in the definition thereof shall not be deemed an
Excluded Issuance.


 


“Excluded Subsidiary” shall mean each
Subsidiary of Borrower designated as such by Borrower after the Closing Date by
providing written notice to the Administrative Agent of such designation; provided that any Subsidiary designated as
an Excluded Subsidiary which merges or consolidates with or into any other
Subsidiary of Borrower that is a Guarantor shall cease to be an “Excluded
Subsidiary” for purposes hereof.


 


“Excluded Taxes” shall mean, with respect to
the Administrative Agent, any Lender, the Issuing Bank or any other recipient
of any payment to be made by or on account of any obligation of Borrower
hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), franchise taxes imposed on it (in lieu of net income
taxes) and branch profits taxes imposed on it, by a jurisdiction (or any
political subdivision thereof) as a result of the recipient being organized or
having its principal office or, in the case of any Lender, its applicable
lending office in such jurisdiction and (b) in the case of a Foreign
Lender, any U.S. federal withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new lending office), except (x) to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from
Borrower with respect to such withholding tax pursuant to Section 2.15(a) or
(y) if such Foreign Lender is an assignee pursuant to a request by
Borrower under Section 2.16; provided
that this subclause (b)(i) shall not apply to any Tax imposed
on a Lender in connection with an interest or participation in any Loan or
other obligation that such Lender was required to acquire pursuant to Section 2.14(d),
or (ii) is attributable to such Foreign Lender’s failure to comply with Section 2.15(e).


 


“Executive Order” shall have the meaning assigned to such
term in Section 3.22.


 


“Existing Credit Agreement” means the Credit Agreement, dated
as of June 16, 2006, as amended by Amendment No. 1 and Amendment No. 2,
and in effect immediately prior to the Restatement Effective Date.


 


24

















 


“Existing Lien” shall have the meaning assigned to such term
in Section 6.02(c).


 


“Existing Notes” shall have the meaning assigned to such term
in the recitals hereto.


 


“Existing Notes Redemption” shall have the meaning assigned
to such term in the recitals hereto.


 


“Existing Notes Redemption Notice” shall have the meaning
assigned to such term in the recitals hereto.


 


“Expansion Capital Expenditures” shall mean
Capital Expenditures other than Maintenance Capital Expenditures and otherwise
attributable to increasing the size or capabilities of Gaming Facilities owned
by Borrower or its Restricted Subsidiaries.


 


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


 


“Fees” shall mean the Commitment Fees, the Administrative
Agent Fees, the LC Participation Fees and the Fronting Fees.


 


“Final Maturity Date” shall mean the later of the Class A
Revolving Maturity Date and the Tranche B Maturity Date.


 


“Financial Officer” of any person shall mean the chief
financial officer, principal accounting officer, treasurer or controller of
such person.


 


“FIRREA” shall mean the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended.


 


“Flood Insurance Laws” means, collectively, (A) the
National Flood Insurance Act of 1968 as now or hereafter in effect or any
successor statute thereto, (B) the Flood Disaster Protection Act of 1973
as now or hereafter in effect or any successor statue thereto, (C) the National
Flood Insurance Reform Act of 1994 as now or hereafter in effect or any
successor statute thereto and (D) the Flood Insurance Reform Act of 2004
as now or hereafter in effect or any successor statute thereto.


 


“Flow Through Entity”  shall mean an entity that:


 


(1)           for Federal income
tax purposes constitutes


 


(a)           an
“S corporation,” as defined in Section 1361(a) of the Code,


 


25

















 


(b)           a
“qualified subchapter S subsidiary,” as defined in Section 1361(b)(3)(B) of
the Code,


 


(c)           a
“partnership,” within the meaning of Section 7701(a)(2) of the Code,
other than a “publicly traded partnership,” as defined in Section 7704 of
the Code, or


 


(d)           an
entity that is disregarded as an entity separate from its owner under the Code,
the Treasury regulations or any published administrative guidance of the
Internal Revenue Service; and


 


(2)           for
state and local jurisdictions in respect of which Tax Distributions are being
made, is
subject to treatment on a basis under applicable state or local income tax law
substantially similar to a Federal Flow Through Entity.


 


“Foreign Lender” shall mean any Lender that is not, for
United States federal income tax purposes, (i) an individual who is a
citizen or resident of the United States, (ii) a corporation, partnership
or other entity treated as a corporation or partnership created or organized in
or under the laws of the United States, or any political subdivision thereof, (iii) an
estate whose income is subject to U.S. federal income taxation regardless of its
source or (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one or
more United States persons have the authority to control all substantial decisions
of such trust.


 


“Foreign Subsidiary” shall mean a Subsidiary that is organized
under the laws of a jurisdiction other than the United States or any state
thereof or the District of Columbia.


 


“Former Lender” shall have the meaning
assigned to such term in Section 10.04(h).


 


“Fronting Fee” shall have the meaning assigned to such term
in Section 2.05(c).


 


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


 


“GAAP” shall mean generally accepted accounting principles in
the United States applied on a consistent basis.


 


“Gameco” shall have the meaning assigned to such term in the
recitals hereto.


 


“Gameco Acquisition” shall have the meaning assigned to such
term in the recitals hereto.


 


“Gameco Agreement” shall have the meaning assigned to such
term in the recitals hereto.


 


26

















 


“Gaming
Authorities”  shall
mean any agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever of the United States or foreign
government, any state, province or city or other political subdivision, or any
officer or official thereof, including, without limitation, each gaming commission
and any other agency with authority to regulate any gaming operation or
proposed gaming operation owned, managed or operated by Borrower or any of its
Subsidiaries.


 


“Gaming Facility”
shall mean any gaming establishment and other property or assets directly
ancillary thereto or used in connection therewith, including any casinos,
hotels, resorts, race tracks, theaters, parking facilities, recreational
vehicle parks, timeshare operations, retail shops, restaurants, other
buildings, land, golf courses and other recreation and entertainment facilities,
marinas, vessels, barges, ships and related equipment.


 


“Gaming Law”  shall mean any gaming laws or regulations of any
jurisdictions to which Borrower or any of its Subsidiaries is or may at any
time after the Closing Date be subject.


 


“Gaming Licenses”  shall mean every material license, material franchise,
material registration, material qualification, findings of suitability or other
material approval or authorization required to own, lease, operate or otherwise
conduct or manage riverboat, dockside or land-based gaming activities in any
state or jurisdiction in which Borrower or any of its Subsidiaries conducts
business, and all applicable Liquor Licenses.


 


“General Contractor” means the person who
contracts for the construction of any entire Project, rather than for a portion
of the work relating thereto and otherwise has the obligation to retain and pay
subcontractors and coordinates the work to be performed.


 


“Governmental Authority” shall mean the government of the
United States or any other nation, or of 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 any supra-national bodies such as the
European Union or the European Central Bank).


 


“Governmental Real Property Disclosure Requirements” shall
mean any Requirement of Law of any Governmental Authority requiring
notification of the buyer, lessee, mortgagee, assignee or other transferee of
any Real Property, facility, establishment or business, or notification,
registration or filing to or with any Governmental Authority, in connection
with the sale, lease, mortgage, assignment or other transfer (including any
transfer of control) of any Real Property, facility, establishment or business,
of the actual or threatened presence or Release in or into the Environment, or
the use, disposal or handling of Hazardous Material on, at, under or near the
Real Property, facility, establishment or business to be sold, leased,
mortgaged, assigned or transferred.


 


“Guarantee Agreement” shall mean a Guarantee
Agreement substantially in the form of Exhibit R among the Loan
Parties and Collateral Agent.


 


27

















 


“Guaranteed Obligations” shall have the meaning assigned to
such term in the Guarantee Agreement.


 


“Guarantees” shall mean the guarantees issued pursuant to the
Guarantee Agreement by the Guarantors.


 


“Guarantors” shall mean each Restricted Subsidiary listed on Schedule 1.01(b),
and each other Restricted Subsidiary that is or becomes a party to the
Guarantee Agreement pursuant to Section 5.11, in each case other
than Excluded Subsidiaries.


 


“Hazardous Materials” shall mean the following:  hazardous substances; hazardous wastes;
polychlorinated biphenyls (“PCBs”) or any
substance or compound containing PCBs; asbestos or any asbestos-containing
materials in any form or condition; radon or any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude
oil or any fraction thereof; and any other pollutant or contaminant or
chemicals, wastes, materials, compounds, constituents or substances, subject to
regulation or which can give rise to liability under any Environmental Laws.


 


“Hedging Agreement” shall mean any swap, cap, collar, forward
purchase or similar agreements or arrangements dealing with interest rates,
currency exchange rates or commodity prices, either generally or under specific
contingencies.


 


“Hedging Obligations” shall mean obligations under or with
respect to Hedging Agreements.


 


“Increase Effective Date” shall have the meaning assigned to
such term in Section 2.19(a).


 


“Incremental Term Loan” shall have the meaning assigned to
such term in Section 2.19(a).


 


“Incremental Term Loan Commitment” shall have the meaning
assigned to such term in Section 2.19(a).


 


“Incremental Term Loan Maturity Date” shall have the meaning
assigned to such term in Section 2.19(a).


 


“Increase Joinder” shall have the meaning assigned to such
term in Section 2.19(c).


 


“Indebtedness” of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money or advances; (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments; (c) all obligations of such person upon which interest
charges are customarily paid or accrued; (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property purchased by such person; (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary 


 


28

















 


course of business on normal trade terms and not
overdue by more than 90 days); (f) all Indebtedness of others secured
by any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, but limited to the fair market
value of such property; (g) all Capital Lease Obligations, Purchase Money
Obligations and synthetic lease obligations of such person; (h) all
Hedging Obligations to the extent required to be reflected on a balance sheet
of such person; (i) all Attributable Indebtedness of such person; (j) all
obligations of such person for the reimbursement of any obligor in respect of
letters of credit, letters of guaranty, bankers’ acceptances and similar credit
transactions; and (k) all Contingent Obligations of such person in respect
of Indebtedness or obligations of others of the kinds referred to in clauses (a) through
(j) above.  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 liable therefor as a result of such person’s ownership interest in or
other relationship with such entity, except (other than in the case of general
partner liability) to the extent that terms of such Indebtedness expressly
provide that such person is not liable therefor.  With respect to the Companies, Indebtedness
shall not include the amount of any Existing Notes that have been validly
called for redemption pursuant to the Existing Notes Redemption Notice and for
which cash or Cash Equivalents have been deposited with the trustee under, and
pursuant to the terms of, the indenture governing the Existing Notes.


 


“Indemnified Taxes” shall mean all Taxes other than Excluded
Taxes.


 


“Indemnitee” shall have the meaning assigned to such term in Section 10.03(b).


 


“Information” shall have the meaning assigned to such term in
Section 10.12.


 


“Initial Pledge Agreement” shall have the
meaning assigned to such term in the Security Agreement.


 


“Initial Tranche B Commitment” shall mean, with respect to
each Lender, the commitment, if any, of such Lender to make a Tranche B Loan
hereunder on the Closing Date in the amount set forth on Schedule I to the
Lender Addendum executed and delivered by such Lender, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Initial Tranche
B Commitment, as applicable, as the same may be reduced from time to time
pursuant to Section 2.07. 
The initial aggregate amount of the Lenders’ Initial Tranche B
Commitments on the Closing Date was $40,000,000.


 


“Initial Tranche B Loans” shall mean Tranche B Loans made on
the Closing Date pursuant to Section 2.01(a)(i).


 


“Inspecting Engineer” means an engineer licensed to practice
in the state where the applicable Project is located, that is independent of
the Borrower and the other Loan Parties and is reasonably acceptable to the
Administrative Agent.


 


“Insurance Policies” shall mean the insurance policies and
coverages required to be maintained by each Loan Party which is an owner of
Mortgaged Property with respect to the applicable Mortgaged Property pursuant
to Section 5.04 and all renewals and extensions thereof.


 


29

















 


“Insurance Requirements” shall mean, collectively, all
provisions of the Insurance Policies, all requirements of the issuer of any of
the Insurance Policies and all orders, rules, regulations and any other requirements
of the National Board of Fire Underwriters (or any other body exercising
similar functions) binding upon each Loan Party which is an owner of Mortgaged
Property and applicable to the Mortgaged Property or any use or condition
thereof.


 


“Intellectual Property” shall have the meaning assigned to
such term in Section 3.06(a).


 


“Intercompany Note” shall mean a promissory note substantially
in the form of Exhibit P.


 


“Interest Election Request” shall mean a request by Borrower
to convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.08(b), substantially in the form of Exhibit E.


 


“Interest Payment Date” shall mean (a) with respect to
any ABR Loan (including Swingline Loans), the last Business Day of each March,
June, September and December to occur during any period in which such
Loan is outstanding, commencing with September 29, 2006, (b) with
respect to any LIBOR Loan, the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a LIBOR Loan
with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period, (c) with respect to
any Class B Revolving Loan, the Class B Revolving Maturity Date or
such earlier date on which the Class B Revolving Commitments are
terminated, (d) with respect to any Class A Revolving Loan or
Swingline Loan, the Class A Revolving Maturity Date or such earlier date
on which the Class A Revolving Commitments are terminated, (e) with
respect to a Tranche B Loan, the Tranche B Maturity Date, (f) with respect
to any Incremental Term Loan, the Incremental Term Loan Maturity Date and (g) with
respect to any Incremental Revolving Loan, the Incremental Revolving Loan
Maturity Date.


 


“Interest Period” shall mean, with respect to any LIBOR
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three
or six months thereafter, as Borrower may elect; provided
that (a) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, and (b) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.  The amendment to the
Existing Credit Agreement effected pursuant to this Agreement shall not affect
any Interest Period for any Loans outstanding on the Restatement Effective
Date.


 


30
















 


“Investments” shall have the meaning assigned to such term in
Section 6.04.


 


“Issuing Bank” shall mean, as the context may require, (a) Credit
Suisse AG, Cayman Islands Branch, in its capacity as issuer of Letters of
Credit issued by it; (b) any other Lender that may become an Issuing Bank
pursuant to Sections 2.18(j) and (k) in its
capacity as issuer of Letters of Credit issued by such Lender; or (c) collectively,
all of the foregoing.


 


“Joinder Agreement” shall mean a supplement to the Guarantee
Agreement substantially in the form of Annex I to the Guarantee
Agreement.


 


“Landlord Access Agreement” shall mean a Landlord Access
Agreement, substantially in the form of Exhibit G, or such other
form as may reasonably be acceptable to the Administrative Agent.


 


“LC Commitment” shall mean the commitment of the Issuing Bank
to issue Letters of Credit pursuant to Section 2.18.  The amount of the LC Commitment shall
initially be $5,000,000, but in no event exceed the Class A Revolving
Commitment.


 


“LC Disbursement” shall mean a payment or disbursement made
by the Issuing Bank pursuant to a drawing under a Letter of Credit.


 


“LC Exposure” shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all
Reimbursement Obligations outstanding at such time.  The LC Exposure of any Class A Revolving
Lender at any time shall mean its Pro Rata Percentage of the aggregate LC Exposure
at such time.


 


“LC Participation Fee” shall have the meaning assigned to
such term in Section 2.05(c).


 


“LC Request” shall mean a request by Borrower in accordance
with the terms of Section 2.18(b) and substantially in the
form of Exhibit H, or such other form as shall be approved by the
Administrative Agent.


 


“Leases” shall mean any and all leases, subleases, tenancies,
options, concession agreements, rental agreements, occupancy agreements,
franchise agreements, access agreements and any other agreements (including all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter
entered into, affecting the use or occupancy of all or any portion of any Real
Property.


 


“Lender Addendum” shall mean, with respect to any Lender on
the Closing Date, a lender addendum in the form of Exhibit I,
executed and delivered by such Lender on the Closing Date as provided in Section 10.15.


 


“Lenders” shall mean (a) the financial institutions
listed on Schedule 1.01(d) hereto, (b) the financial
institutions that have become a party hereto pursuant to a Lender Addendum and (c) any
financial institution that has become a party hereto pursuant to an Assignment 


 


31

















 


and Assumption, other than, in each case, any such
financial institution that has ceased to be a party hereto pursuant to an
Assignment and Assumption.  Unless the
context clearly indicates otherwise, the term “Lenders” shall include the
Swingline Lender.


 


“Letter of Credit” shall mean any Standby Letter of Credit
issued or to be issued by an Issuing Bank for the account of Borrower pursuant
to Section 2.18.  All
outstanding Letters of Credit as of the Restatement Effective Date are set
forth on Schedule 1.01(c) hereto.


 


“Letter of Credit Expiration Date” shall mean the date which
is fifteen days prior to the Class A Revolving Maturity Date.


 


“LIBOR Borrowing” shall mean a Borrowing comprised of LIBOR
Loans.


 


“LIBOR Loan” shall mean any LIBOR Revolving Loan or LIBOR Term
Loan.


 


“LIBOR Rate” shall mean, with respect to any LIBOR Borrowing
for any Interest Period, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m., London, England time, on the second
full Business Day preceding the first day of such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in
Dollars (as set forth by the Bloomberg Information Service or any successor
thereto or any other service selected by the Administrative Agent which has
been nominated by the British Bankers’ Association as an authorized information
vendor 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 “LIBOR Rate” shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in Dollars are offered for such relevant Interest
Period to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date
that is two Business Days prior to the beginning of such Interest Period.


 


“LIBOR Revolving Borrowing” shall mean a Borrowing comprised
of LIBOR Revolving Loans.


 


“LIBOR Revolving Loan” shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBOR Rate in accordance
with the provisions of Article II.


 


“LIBOR Term Borrowing” shall mean a Borrowing comprised of
LIBOR Term Loans.


 


“LIBOR Term Loan” shall mean any Tranche B Loan bearing
interest at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article II.


 


“License Revocation” shall mean the
revocation, suspension, expiration without any previous or concurrent renewal,
or loss of any Gaming License of any of the Companies for more than 60 days, in
each case other than any voluntary relinquishment of a Gaming License if 


 


32

















 


such relinquishment, in the reasonable good faith
judgment of the Board of Directors of Borrower, evidenced by a resolution of
such Board of Directors, is both desirable in the conduct of the business of
Borrower and its Restricted Subsidiaries, taken as a whole, and would not in
any material respect impair the Loan Parties’ ability to meet their obligations
hereunder, or the appointment of a receiver, supervisor or similar official
with respect to, any Gaming License or other casino, gambling or gaming license
issued by any Gaming Authority covering any Gaming Facility owned, leased,
operated or used by any of the Companies.


 


“Lien” shall mean, with respect to any property, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, claim, charge, assignment,
hypothecation, security interest or encumbrance of any kind or any arrangement
to provide priority or preference or any filing of any financing statement
under the UCC or any other similar notice of lien under any similar notice or
recording statute of any Governmental Authority, including any easement,
right-of-way or other encumbrance on title to Real Property, in each of the
foregoing cases whether voluntary or imposed by law, and any agreement to give
any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such property; and (c) in the case of securities,
any purchase option, call or similar right of a third party with respect to
such securities.


 


“Liquor Authorities” shall mean any agency,
authority, board, bureau, commission, department, office or instrumentality of
any nature whatsoever of the United States or foreign government, any state,
province or any city or other political subdivision, whether now or hereafter
existing, or any officer or official thereof, including, without limitation,
any other agency with authority to regulate the sale or distribution of
alcoholic beverages.


 


“Liquor Laws” shall mean the statutes
regarding the sale and distribution of alcoholic beverages enforced by the
Liquor Authorities and the rules and regulations of the Liquor
Authorities.


 


“Liquor License” shall mean any license,
permit, registration, qualification or other approval required to sell,
dispense or distribute alcoholic beverages under the Liquor Laws.


 


“Loan Documents” shall mean this Agreement, the Letters of
Credit, the Notes (if any), the Guarantee Agreement, the Security Documents and
the Amendment and Restatement Agreement.


 


“Loan Parties” shall mean Borrower and the Guarantors.


 


“Loans” shall mean, as the context may require, a Revolving
Loan, a Class A Revolving Loan, a Class B Revolving Loan, a Tranche B
Loan or a Swingline Loan (and shall include any Loans contemplated by Section 2.19).


 


“Maintenance Capital Expenditures” shall
mean expenditures made by Borrower or any of its Restricted Subsidiaries that
are made to maintain, restore or refurbish the condition or usefulness of
property of Borrower or any of its Restricted Subsidiaries, or otherwise to
support the continuation of such person’s day-to-day operations as then
conducted, but 


 


33

















 


that are not properly chargeable to repairs and
maintenance in accordance with GAAP, other than such expenditures made pursuant
to Section 2.10(f).


 


“Margin Stock” shall have the meaning assigned to such term
in Regulation U.


 


“Material Adverse Effect” shall mean (a) a material
adverse effect on the business, property, assets, nature of business,
operations or condition (financial or otherwise) or material agreements of
Borrower and its Restricted Subsidiaries, taken as a whole; (b) material impairment
of the ability of the Loan Parties, taken as a whole, to fully and timely
perform any of their obligations under any Loan Document; (c) material impairment
of the rights of or benefits or remedies available to the Lenders or the
Collateral Agent under any Loan Document; or (d) a material adverse effect
on the Collateral or the Liens in favor of the Collateral Agent (for its benefit
and for the benefit of the other Secured Parties) on the Collateral or the
priority of such Liens.


 


“Material Indebtedness” shall mean (a) the Senior Notes
and (b) any other Indebtedness (other than the Loans and Letters of
Credit) or Hedging Obligations of Borrower or any of its Restricted
Subsidiaries in an outstanding principal amount exceeding $3.0 million.  For purposes of determining Material
Indebtedness, the “principal amount” in respect of any Hedging Obligations of
any Loan Party at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that such Loan Party would be required to pay if the
related Hedging Agreement were terminated at such time.


 


“Material Real Property” shall mean any Real
Property or option to purchase Real Property reasonably determined by the Administrative
Agent to have a material value in excess of $500,000.


 


“Maximum Rate” shall have the meaning assigned to such term
in Section 10.14.


 


“Mortgage” shall mean an agreement, including, but not
limited to, a mortgage, deed of trust or any other document, creating and
evidencing a Lien on a Mortgaged Property, which shall be substantially in the
form of Exhibit J or other form reasonably satisfactory to the
Collateral Agent, in each case, with such schedules and including such
provisions as shall be necessary to conform such document to applicable local
or foreign law or as shall be customary under applicable local or foreign law.


 


“Mortgaged Property” shall mean (a) each Real Property
identified as a Mortgaged Property on Schedule 8(a) to the
Perfection Certificate dated the Closing Date and (b) each Real Property,
if any, which shall be subject to a Mortgage delivered after the Closing Date
pursuant to Section 5.11(c).


 


“Multiemployer Plan” shall mean a multiemployer plan within
the meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to
which any Company or any ERISA Affiliate is then making or accruing an
obligation to make contributions; (b) to which any Company or any ERISA
Affiliate has within the preceding five plan years made contributions; or (c) with
respect to which any Company could incur liability.


 


34

















 


“Nautica Options” shall mean the right of Borrower to
purchase and/or lease land and certain improvements on the west bank of the
Cuyahoga River in Cleveland, Ohio pursuant to several option agreements entered
into by Borrower as in effect on the Closing Date, as the exercise date thereof
may be extended from time to time.


 


“Net Cash Proceeds”
shall mean:


 


(a)           with respect to any
Asset Sale (other than any issuance or sale of Equity Interests), the cash
proceeds received by Borrower or any of its Restricted Subsidiaries (including
cash proceeds subsequently received (as and when received by Borrower or any of
its Restricted Subsidiaries) in respect of non-cash consideration initially received)
net of (i) selling expenses (including reasonable brokers’ fees or
commissions, legal, accounting, investment banking and other professional and
transactional fees, transfer and similar taxes and Borrower’s good faith
estimate of income taxes paid or payable in connection with such sale); (ii) amounts
provided as a reserve, in accordance with GAAP, against (x) any
liabilities under any indemnification obligations associated with such Asset
Sale or (y) any other liabilities retained by Borrower or any of its
Restricted Subsidiaries associated with the properties sold in such Asset Sale
(provided that, to the extent and at the
time any such amounts are released from such reserve, such amounts shall constitute
Net Cash Proceeds); (iii) Borrower’s good faith estimate of payments
required to be made with respect to unassumed liabilities relating to the
properties sold within 90 days of such Asset Sale (provided
that, to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 90 days of such Asset Sale, such cash
proceeds shall constitute Net Cash Proceeds); and (iv) the principal
amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by a Lien on the properties
sold in such Asset Sale (so long as such Lien was permitted to encumber such
properties under the Loan Documents at the time of such sale) and which is
repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such properties);


 


(b)           with respect to any
Debt Issuance, any Equity Issuance or any other issuance or sale of Equity
Interests by Borrower or any of its Restricted Subsidiaries, the cash proceeds
thereof, net of customary fees, commissions, costs and other expenses incurred
in connection therewith; and


 


(c)           with respect to any
Casualty Event, the cash insurance proceeds, condemnation awards and other
compensation received in respect thereof, net of all reasonable costs and
expenses incurred in connection with the collection of such proceeds, awards or
other compensation in respect of such Casualty Event.


 


“Net Working Capital” shall mean, at any time, Consolidated
Current Assets at such time minus Consolidated Current Liabilities at such
time.


 


“Non-Funding Default” shall mean, in respect of any Class A
Revolving Lender, such Class A Revolving Lender (i) has notified the
Administrative Agent, the Issuing Bank, the Swingline Lender, any Lender and/or
Borrower in writing that it does not intend to comply with 


 


35

















 


any of its funding obligations under this Agreement or
has made a public statement to the effect that it does not intend to comply
with its funding obligations under this Agreement or under other agreements in
which it commits to extend credit, (ii) has failed, within three Business
Days after request by the Administrative Agent, to confirm that it will comply
with the terms of this Agreement relating to its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit and
Swingline Loans, (iii) has otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within three Business Days of the date when due, unless the subject of a good
faith dispute, or (iv) in the case of a Class A Revolving Lender that
has a Commitment, LC Exposure or Swingline Exposure outstanding at such time, shall take, or
is the Subsidiary of any person that has taken, any action or be (or is) the
subject of any action or proceeding of a type described in Section 8.01(g) or
(h) (or any comparable proceeding initiated by a regulatory
authority having jurisdiction over such Class A Revolving Lender or such
person).


 


“Non-Guarantor Subsidiary” shall mean each Subsidiary that is
not a Guarantor.


 


“Notes” shall mean any notes evidencing the Tranche B Loans,
Revolving Loans or Swingline Loans issued pursuant to this Agreement, if any,
substantially in the form of Exhibit K-1, K-2 or K-3,
as the case may be.


 


“Obligations” shall mean (a) obligations of Borrower and
the other Loan Parties from time to time arising under or in respect of the due
and punctual payment of (i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed
or allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by Borrower under this
Agreement and Borrower and the other Loan Parties under the other Loan
Documents in respect of any Letter of Credit, when and as due, including
payments in respect of Reimbursement Obligations, interest thereon and
obligations to provide cash collateral and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of Borrower under this Agreement and Borrower
and the other Loan Parties under the other Loan Documents, and (b) the due
and punctual performance of all covenants, agreements, obligations and liabilities
of Borrower under or pursuant to this Agreement and Borrower and the other Loan
Parties under the other Loan Documents.


 


“OFAC” shall have the meaning assigned to such term in Section 3.22.


 


“Officers’ Certificate” shall mean a certificate executed by
the chairman of the Board of Directors (if an officer), the chief executive
officer or the president and one of the Financial Officers, each in his or her
official (and not individual) capacity.


 


36

















 


“Organizational Documents” shall mean, with respect to any
person, (i) in the case of any corporation, the certificate of incorporation
and by-laws (or similar documents) of such person, (ii) in the case of any
limited liability company, the certificate of formation and operating agreement
(or similar documents) of such person, (iii) in the case of any limited
partnership, the certificate of formation and limited partnership agreement (or
similar documents) of such person, (iv) in the case of any general
partnership, the partnership agreement (or similar document) of such person and
(v) in any other case, the functional equivalent of the foregoing.


 


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


 


“Participant” shall have the meaning assigned to such term in
Section 10.04(d).


 


“PBGC” shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.


 


“Perfection Certificate” shall mean a certificate in the form
of Exhibit L-1 or any other form approved by the Collateral Agent,
as the same shall be supplemented from time to time by a Perfection Certificate
Supplement or otherwise.


 


“Perfection Certificate Supplement” shall mean a certificate
supplement in the form of Exhibit L-2 or any other form approved by
the Collateral Agent.


 


“Permitted Acquisition” shall mean any transaction or series
of related transactions for the direct or indirect (a) acquisition of all
or substantially all of the property of any person, or of any business or
division of any person; (b) acquisition of 100% of the Equity Interests of
any person, and otherwise causing such person to become a Restricted Subsidiary
of such person; or (c) merger or consolidation or any other combination
with any person, if each of the following conditions is met:


 


(i)           no Default then exists or would result therefrom;


 


(ii)            after giving effect to such transaction on a Pro Forma
Basis, (A) Borrower shall be in compliance with the covenants set forth in
Sections 6.10(a), (b), (c) and (e) as
of the most recent Test Period (assuming, for purposes of Section 6.10,
that such transaction, and all other Permitted Acquisitions consummated since
the first day of the relevant Test Period for each of the financial covenants
set forth in Section 6.10 ending on or prior to the date of such
transaction, had occurred on the first day of such relevant Test Period), and (B) the
Total Unused Revolving Commitment shall be at least $10.0 million;


 


(iii)            no Company shall, in connection with any such
transaction, assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the related seller
or the business, person or properties acquired, except (A) to the extent
permitted under Section 6.01 and (B) obligations not
constituting Indebtedness incurred in the ordinary course of business and
necessary or desirable to the 


 


37

















 


continued operation of the
underlying properties, and any other such liabilities or obligations not
permitted to be assumed or otherwise supported by any Company hereunder shall
be paid in full or released as to the business, persons or properties being so
acquired on or before the consummation of such acquisition;


 


(iv)           the person or business to be acquired shall be, or shall
be engaged in, a business of the type that Borrower and the Restricted
Subsidiaries are permitted to be engaged in under Section 6.15 and
the property acquired in connection with any such transaction shall be made
subject to the Lien of the Security Documents and shall be free and clear of
any Liens, other than Permitted Liens;


 


(v)           the Board of Directors of the person to be acquired shall
not have indicated publicly its opposition to the consummation of such
acquisition (which opposition has not been publicly withdrawn);


 


(vi)           all transactions in connection therewith shall be
consummated in accordance with all applicable Requirements of Law;


 


(vii)            with respect to any transaction involving Acquisition
Consideration of more than $7.5 million, unless the Administrative Agent shall
otherwise agree, Borrower shall have provided the Administrative Agent and the
Lenders with (A) historical financial statements for the last three fiscal
years (or, if less, the number of years since formation) of the person or
business to be acquired (audited if available without undue cost or delay) and
unaudited financial statements thereof for the most recent interim period which
are available, (B) a reasonably detailed description of all material
information relating thereto and copies of all material documentation
pertaining to such transaction, and (C) all such other information and
data relating to such transaction or the person or business to be acquired as
may be reasonably requested by the Administrative Agent or the Required
Lenders;


 


(viii)            at least 5 Business Days prior to
the proposed date of consummation of the transaction, Borrower shall have
delivered to the Agents and the Lenders an Officers’ Certificate certifying
that (A) such transaction complies with this definition (which shall have
attached thereto reasonably detailed backup data and calculations showing such compliance),
and (B) such transaction could not reasonably be expected to result in a Material
Adverse Effect;


 


(ix)            the Acquisition Consideration for all Permitted
Acquisitions since the Closing Date shall not exceed $25.0 million, plus the amount of Net Cash Proceeds from Excluded Issuances
consummated after the Closing Date not used for Expansion Capital Expenditures
or to prepay Loans as described in the definition of “Excluded Issuances”; provided that such amount shall increase
on the Restatement Effective Date by $25.0 million less up to $10.0 million to
the extent used to make Expansion Capital Expenditures pursuant to the first
proviso of Section 6.10(e)(iii); provided
further that such aggregate amount shall increase on the first
anniversary of the Restatement Effective Date by an 


 


38

















 


additional $25.0 million
less up to $10.0 million to the extent used to make Expansion Capital
Expenditures pursuant to the second proviso of Section 6.10(e)(iii);
and


 


(x)            any Equity Interests constituting all or a portion of
such Acquisition Consideration shall be Qualified Capital Stock.


 


“Permitted Holders” shall mean (a) Jeffrey P. Jacobs and
his Controlled Investment Affiliates, (b) Jacobs Family Economic Trust dated
September 27, 2005, (c) Jacobs Family Control Trust dated September 27,
2005, (d) Richard E. Jacobs and his Controlled Investment Affiliates, (e) Richard
E. Jacobs Revocable Living Trust dated April 23, 1987, (f) Richard E.
Jacobs Irrevocable Trust dated September 27, 2005, (g) any parent,
spouse, sibling or lineal descendant of Jeffrey P. Jacobs or Richard E. Jacobs,
(h) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or persons beneficially holding an 80% or more
controlling interest of which consist of any one or more persons described in
(a)-(g), (i) any Controlled Investment Affiliates of a person described in
(a)-(g) and (j) Related Parties of the persons described in (a)-(g).


 


“Permitted Liens” shall have the meaning assigned to such
term in Section 6.02.


 


“Permitted Tax Distributions” shall mean, with respect to
each Tax Period that Borrower qualifies as a Flow Through Entity, the
distribution by Borrower to the holders of its Equity Interest of an amount, if
any, equal to the aggregate local, state and federal income tax liability such
holders would have incurred as a result of each holder’s ownership of its
Equity Interest in Borrower, calculated (1) using the Presumed Tax Rate, (2) as
if accruals and allocations from Borrower attributable to the Equity Interests
of the Borrower held by such holder were, for such quarter, the sole source of
income and loss for such holder; and (3) by taking into account the
carryover of items of loss, deduction and expense previously allocated by Borrower
to such holder.  The amount distributable
as a Permitted Tax Distribution shall be adjusted to take into account the
effect of alternative minimum tax, tax adjustments and any penalties and/or
interest charged by any taxing authority that is the result of an action or
omission of Borrower.  If at any  time the sum of the Permitted Tax
Distributions received by any holder of the Equity Interests of the Borrower
are greater than the actual taxes paid by such holder for the Tax Period, then
the excess amount, if any, shall be deducted from the Permitted Tax
Distributions starting in the next Tax Period until such excess amount  is recouped.


 


“Permitted Truck Plaza Acquisition” shall mean any
transaction or series of related transactions with Gameco for the direct or
indirect (a) acquisition of all or substantially all of the property of
any subsidiary of Gameco, or of any business or division of any subsidiary of
Gameco, in each case, constituting a video poker truck plaza; or (b) merger
or consolidation or any other combination with any person constituting a video
poker truck plaza, if each of the following conditions is met:


 


(i)           no Default then exists or would result therefrom;


 


(ii)            after giving effect to such transaction on a Pro Forma
Basis, (A) Borrower shall be in compliance with all covenants set forth in
Sections 6.10(a), (b), (c) and (e) as



 


39

















 


of the most recent Test
Period (assuming, for purposes of Section 6.10, that such transaction,
and all other Permitted Acquisitions consummated since the first day of the
relevant Test Period for each of the financial covenants set forth in Section 6.10
ending on or prior to the date of such transaction, had occurred on the first
day of such relevant Test Period) and (B) the Total Unused Revolving
Commitment shall be at least $10.0 million;


 


(iii)            no Loan Party shall, in connection with any such
transaction, assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the related seller
or the business, person or properties acquired, except (A) to the extent
permitted under Section 6.01 and (B) obligations not
constituting Indebtedness incurred in the ordinary course of business and
necessary or desirable to the continued operation of the underlying properties,
and any other such liabilities or obligations not permitted to be assumed or
otherwise supported by any Company hereunder shall be paid in full or released
as to the business, persons or properties being so acquired on or before the
consummation of such acquisition;


 


(iv)           property acquired in connection with any such transaction
shall be made subject to the Lien of the Security Documents and shall be free
and clear of any Liens, other than Permitted Liens;


 


(v)           all transactions in connection therewith shall be
consummated in accordance with all applicable Requirements of Law;


 


(vi)           Borrower shall have provided the Administrative Agent and
the Lenders with (A) historical financial statements for the last three
fiscal years (or, if less, the number of years since formation) of the person
or business to be acquired (audited if available without undue cost or delay)
and unaudited financial statements thereof for the most recent interim period
which are available, (B) a reasonably detailed description of all material
information relating thereto and copies of all material documentation
pertaining to such transaction and (C) all such other information and data
relating to such transaction or the person or business to be acquired as may be
reasonably requested by the Administrative Agent or the Required Lenders;


 


(vii)            at least 5 Business Days prior to the proposed date of
consummation of the transaction, Borrower shall have delivered to the Agents
and the Lenders an Officers’ Certificate certifying that (A) such
transaction complies with this definition (which shall have attached thereto
reasonably detailed backup data and calculations showing such compliance), and (B) such
transaction could not reasonably be expected to result in a Material Adverse
Effect; and


 


(viii)            the Acquisition Consideration for
such acquisition shall either (A) not exceed the lesser of (I) 7 multiplied by the Truck Plaza EBITDA of such truck stop
gaming plaza for the Test Period most recently then ended and (II) the
result of (x) the aggregate consideration paid by Gameco for such video
truck plaza plus (y) the Truck Plaza EBITDA of
such truck stop gaming plaza for the Test Period most recently then ended plus  or  minus, as the case may be, (z) an adjustment for
working capital as determined in


 


40
















 


good faith by Borrower (any such adjustment to be
reasonably supportable and quantifiable by the underlying accounting records of
such truck stop gaming plaza), or (B) be supported by an opinion as to the
fairness to the Lenders of such Permitted Truck Plaza Acquisition from a
financial point of view issued by an independent nationally recognized
accounting, appraisal or investment banking firm reasonably acceptable to the Administrative
Agent.


 


It is understood that a portion of the
Acquisition Consideration in connection with a Permitted Truck Plaza
Acquisition may be accounted for as a Dividend in accordance with GAAP so long
as Borrower and Gameco are under common control.


 


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


 


“Pinon Acquisition” shall have the meaning
assigned thereto in the recitals hereto.


 


“Pinon Plaza” shall have the meaning
assigned thereto in the recitals hereto.


 


“Plan” shall mean any employee pension benefit plan (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 which is maintained or contributed to
by any Company or its ERISA Affiliate or with respect to which any Company
could incur liability (including under Sections 4063 or 4069 of ERISA).


 


“Plans and Specifications” means the final
plans and specifications for the construction of any Project, to be prepared by
the General Contractor or such other person that is reasonably acceptable to
the Administrative Agent, and all amendments and modifications thereof.


 


“Platform” shall have the meaning assigned to such term in Section 10.01(d).


 


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


 


“Preferred Stock” shall mean, with respect to any person, any
and all preferred or preference Equity Interests (however designated) of such
person whether now outstanding or issued after the Closing Date.


 


“Preferred Stock Issuance” shall mean the issuance or sale by
Borrower or any of its Subsidiaries of any Preferred Stock after the Closing
Date (other than as permitted by Section 6.01).


 


“Premises” shall have the meaning assigned thereto in the
applicable Mortgage.


 


“Pre-Opening
Expenses” shall mean all costs of start-up activities related to a
Gaming Facility that are required to be expensed (and are not capitalized) in
accordance with SOP 98-5.


 


41

















 


“Presumed Tax Rate” means (i) with respect to the
excess, if any, of ordinary income over ordinary loss (as determined for U.S.
federal income tax purposes and, for this purpose, including items taxable at
the same rate as ordinary income, such as net short-term capital gain) for such
period, the sum of the maximum marginal individual U.S. federal, state and
local income tax rates applicable to such income taking into account the
deductibility of state and local income taxes for U.S. federal income tax
purposes, and (ii) with respect to the net capital gain (as determined for
U.S. federal income tax purposes) for such period, the sum of the maximum marginal
individual U.S. federal, state and local income tax rates applicable to such
income taking into account the deductibility of state and local income taxes
for U.S. federal income tax purposes. 
For purposes of this definition of “Presumed Tax Rate,” the maximum
marginal individual U.S. federal, state or local income tax rate for each
holder of Equity Interests shall be the highest such marginal individual U.S.
federal, state or local income tax rate applicable to any holder of Equity
Interests.


 


“Pro Forma Basis” shall mean on a basis in accordance with
GAAP and Regulation S-X and otherwise reasonably satisfactory to the Administrative
Agent.


 


“Pro Rata Percentage” of any Revolving Lender at any time
shall mean (x) with respect to Class A Revolving Lenders, the
percentage of the total Class A Revolving Commitments of all Class A
Revolving Lenders represented by such Lender’s Class A Revolving Commitment
and (y) with respect to Class B Revolving Lenders, the percentage of
the total Class B Revolving Commitments of all Class B Revolving
Lenders represented by such Lender’s Class B Revolving Commitment.


 


“Project” means (i) the Dakota
Development and the Elko Development and (ii) any and all other buildings,
structures, fixtures, and other improvements to be constructed or added to any
Real Property (exclusive of any personal property) with respect to which the
cost of such construction or additions is at least equal to $1,000,000.


 


“property” shall mean any right, title or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including Equity Interests or other
ownership interests of any person and whether now in existence or owned or
hereafter entered into or acquired, including all Real Property.


 


“Property Material Adverse Effect” shall have the meaning
assigned thereto in the Mortgage.


 


“Publicly Traded Securities” shall mean any securities (other
than securities issued by Borrower or any of its Affiliates) that are dealt in,
quoted or traded on securities exchanges or securities markets located in the
United States.


 


“Purchase Money Obligation” shall mean, for any person, the
obligations of such person in respect of Indebtedness (including Capital Lease
Obligations) incurred for the purpose of financing all or any part of the
purchase price of any property (including Equity Interests of any person) or
the cost of installation, construction or improvement of any property and any
refinancing thereof; provided, however, that (i) such Indebtedness is incurred within
one


 


42

















 


year after such acquisition, installation, construction
or improvement of such property by such person and (ii) the amount of such
Indebtedness does not exceed 100% of the cost of such acquisition,
installation, construction or improvement, as the case may be.


 


“PZR Report” shall mean a report issued by
The Planning and Zoning Resource Corporation.


 


“Qualified Capital Stock” of any person shall mean any Equity
Interests of such person that are not Disqualified Capital Stock.


 


“Qualified Person” shall mean, with respect
to any Lender party to the Existing Credit Agreement on the Closing Date or
that becomes a Lender pursuant to Sections 10.04(b) or (c),
any person which shall not have been found unsuitable under the Gaming
Regulations of any, and which meets the requirements, if any, of all,
jurisdictions regulating Borrower and its Subsidiaries to the extent that
Borrower has so notified the Lenders of such requirements of such jurisdictions
pursuant to Section 10.04(h).


 


“Real Property” shall mean, collectively, all right, title
and interest (including any leasehold, mineral or other estate) in and to any
and all parcels of or interests in real property owned, leased or operated by
any person, whether by lease, license or other means, together with, in each
case, all easements, hereditaments and appurtenances relating thereto, all
improvements and appurtenant fixtures and equipment, all general intangibles
and contract rights and other property and rights incidental to the ownership,
lease or operation thereof.


 


“Refinanced Term Loans” shall have the
meaning assigned to such term in Section 10.02(e).


 


“Refinancing” shall mean the repayment in full (including
accrued and unpaid interest but excluding contingent and indemnification
obligations) and the termination of any commitment to make extensions of credit
under all of the outstanding indebtedness listed on Schedule 1.01(a) of
Borrower or any of its Restricted Subsidiaries.


 


“Register” shall have the meaning assigned to such term in Section 10.04(c).


 


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


 


“Regulation S-X” shall mean Regulation S-X promulgated under
the Securities Act.


 


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


 


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


 


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


 


“Reimbursement Obligations” shall mean Borrower’s obligations
under Section 2.18(e) to reimburse LC Disbursements.


 


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


 


“Release” shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of any
Hazardous Material in, into, onto or through the Environment.


 


“Replacement Term Loans” shall have the
meaning assigned to such term in Section 10.02(e).


 


“Required Class Lenders” shall mean (i) with
respect to Tranche B Loans, Lenders having more than 50% of all Tranche B Loans
outstanding, (ii) with respect to Class B Revolving Loans, Required
Revolving Lenders in respect of Class B Revolving Commitments and (iii) with
respect to Class A Revolving Loans, Required Revolving Lenders in respect
of Class A Revolving Commitments.


 


“Required Delayed Draw Tranche B Lenders”
shall mean Lenders having more than 50% of the sum of all Delayed Draw Tranche
B Loans outstanding and unused Delayed Draw Tranche B Commitments.


 


“Required Lenders” shall mean Lenders having more than 50% of
the sum of all Loans outstanding, LC Exposure and unused Revolving Commitments,
Tranche B Commitments and other Term Loan Commitments that are not Tranche B
Commitments, if any.


 


“Required Revolving Lenders” shall mean Lenders having more
than 50% of all of the applicable Revolving Commitments or, after such
Revolving Commitments have terminated, more than 50% of all of the applicable
Revolving Exposure.


 


“Requirements of Law” shall mean, collectively, any and all
requirements of any Governmental Authority (including Gaming Authorities) including
any and all laws, judgments, orders, decrees, ordinances, rules, regulations,
statutes or case law.


 


“Response” shall mean (a) “response” as such term is
defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to (i) clean
up, remove, treat, abate or in any other way address any Hazardous Material in
the Environment; (ii) prevent the Release or threat of Release, or
minimize the further Release, of any Hazardous Material; or (iii) perform
studies and investigations in connection with, or as a precondition to, or to
determine the necessity of the activities described in, clause (i) or
(ii) above.


 


44

















 


“Responsible Officer” of any person shall mean any executive
officer or Financial Officer of such person and any other officer or similar
official thereof with responsibility for the administration of the obligations
of such person in respect of this Agreement.


 


“Restatement Effective Date” has the meaning assigned to such
term in the Amendment and Restatement Agreement.


 


“Restatement Transactions” means (a) the execution and
delivery by each Loan Party that is a party thereto of the Amendment and
Restatement Agreement and any amendments or modifications to the other Loan
Documents contemplated thereby, (b) the amendment and restatement of the
Existing Credit Agreement in the form of this Agreement and the consummation of
the other transactions and matters contemplated by the Amendment and
Restatement Agreement and (c) the payment of fees and expenses incurred in
connection with the foregoing.


 


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


 


“Revolving Borrowing” shall mean a Borrowing comprised of Class A
Revolving Loans or Class B Revolving Loans.


 


“Revolving Commitments” shall mean Class A Revolving
Commitments and Class B Revolving Commitments, as the same may be (a) reduced
from time to time pursuant to Section 2.07, (b) increased pursuant to
Section 2.19 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04.


 


“Revolving Exposure” shall mean, with respect to any Lender
at any time, the aggregate principal amount at such time of all outstanding Class A
Revolving Loans and Class B Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC
Exposure, if any, plus the aggregate amount at such
time of such Lender’s Swingline Exposure, if any.


 


“Revolving Lender” shall mean a Class A Revolving Lender
or a Class B Revolving Lender.


 


“Revolving Loan” shall mean a Class A Revolving Loan or
a Class B Revolving Loan.  Each
Revolving Loan shall either be an ABR Revolving Loan or a LIBOR Revolving Loan.


 


“Revolving Maturity Date” shall mean, as applicable, (i) with
respect to the Class A Revolving Loans, Swingline Loans and Letters of
Credit, the Class A Revolving Maturity Date and (ii) with respect to
the Class B Revolving Loans, the Class B Revolving Maturity Date.


 


“Sale and Leaseback Transaction” has the meaning assigned to
such term in Section 6.03.


 


45

















 


“Sarbanes-Oxley Act” shall mean the United States
Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations
promulgated thereunder.


 


“Secured Obligations” shall mean (a) the Obligations, (b) the
due and punctual payment and performance of all obligations of Borrower and the
other Loan Parties under each Hedging Agreement entered into with any counterparty
that is a Secured Party and (c) the due and punctual payment and
performance of all obligations of Borrower and the other Loan Parties
(including overdrafts and related liabilities) under each Treasury Services
Agreement entered into with any counterparty that is a Secured Party.


 


“Secured Parties” shall mean, collectively, the
Administrative Agent, the Collateral Agent, each other Agent, the Lenders and
each counterparty to a Hedging Agreement or Treasury Services Agreement if at
the date of entering into such Hedging Agreement or Treasury Services Agreement
such person was a Lender or an Affiliate of a Lender and such person executes
and delivers to the Administrative Agent a letter agreement in form and
substance acceptable to the Administrative Agent pursuant to which such person (i) appoints
the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees
to be bound by the provisions of Sections 10.03 and 10.09 as
if it were a Lender.


 


“Securities Act” shall mean the Securities Act of 1933.


 


“Securities Collateral” shall have the meaning assigned to
such term in the Security Agreement.


 


“Security Agreement” shall mean a Security Agreement
substantially in the form of Exhibit M among the Loan Parties and
Collateral Agent for the benefit of the Secured Parties.


 


“Security Agreement Collateral” shall mean all property
pledged or granted as collateral pursuant to the Security Agreement (a) on
the Closing Date or (b) thereafter pursuant to Section 5.11.


 


“Security Documents” shall mean the Security Agreement, each
Pledge Agreement, the Mortgages and each other security document or pledge
agreement delivered in accordance with applicable local or foreign law to grant
a valid, perfected security interest in any property as collateral for the
Secured Obligations, and all UCC or other financing statements or instruments
of perfection required by this Agreement, the Security Agreement, any Mortgage
or any other such security document or pledge agreement to be filed with
respect to the security interests in property and fixtures created pursuant to
the Security Agreement or any Mortgage and any other document or instrument
utilized to pledge or grant or purport to pledge or grant a security interest
or lien on any property as collateral for the Secured Obligations.


 


“Seller” shall have the meaning assigned to such term in the
first recital hereto.


 


“Senior Note Agreement” shall mean any indenture, note
purchase agreement or other agreement pursuant to which the Senior Notes are issued
as in effect on the Closing Date and thereafter amended from time to time
subject to the requirements of this Agreement.


 


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“Senior Note Documents” shall mean the Senior Notes, the
Senior Note Agreement, the Senior Note Guarantees and all other documents
executed and delivered with respect to the Senior Notes or the Senior Note
Agreement.


 


“Senior Note Guarantees” shall mean the guarantees of the
Guarantors pursuant to the Senior Note Agreement.


 


“Senior Notes” shall mean Borrower’s 9.75% Senior Notes due
2014 issued pursuant to the Senior Note Agreement and any registered notes issued
by Borrower in exchange for, and as contemplated by, such notes with
substantially identical terms as such notes.


 


“Senior Secured Leverage Ratio” shall mean, at any date of
determination, the ratio of (i) the aggregate amount of the Obligations of
Borrower and its Restricted Subsidiaries on a consolidated basis in accordance
with GAAP minus the aggregate amount of cash and
Cash Equivalents that would appear on the consolidated balance sheet of
Borrower and its Restricted Subsidiaries in excess of Casino Bankroll, in each
case as of such date of determination to (ii) Consolidated EBITDA for the
Test Period then most recently ended.


 


“Standby Letter of Credit” shall mean any standby letter of
credit or similar instrument issued for the purpose of supporting (a) workers’
compensation liabilities of Borrower or any of its Restricted Subsidiaries, (b) the
obligations of third-party insurers of Borrower or any of its Restricted
Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third-party insurers to obtain such letters of credit, (c) performance,
payment, deposit or surety obligations of Borrower or any of its Restricted
Subsidiaries if required by a Requirement of Law or in accordance with custom
and practice in the industry or (d) Indebtedness of Borrower or any of its
Restricted Subsidiaries permitted to be incurred under Section 6.01.


 


“Statutory Reserves” shall mean for any Interest Period for
any LIBOR Borrowing, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the United
States Federal Reserve System in New York City with deposits exceeding one
billion dollars against “Eurocurrency liabilities” (as such term is used in
Regulation D).  LIBOR Borrowings
shall be deemed to constitute Eurocurrency liabilities and to be subject to
such reserve requirements without benefit of or credit for proration,
exceptions or offsets which may be available from time to time to any Lender
under Regulation D.


 


“Subordinated Indebtedness” shall mean Indebtedness of
Borrower or any Guarantor that is by its terms (i.e.
contractually) subordinated in right of payment (on terms reasonably
satisfactory to the Administrative Agent) to the Obligations of Borrower and
such Guarantor, as applicable.


 


“Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any corporation, limited
liability company, association or other business entity of which securities or
other ownership interests representing more than 50% of the voting power of all
Equity Interests entitled (without regard to the occurrence of any contingency)
to vote in the election of the Board of Directors thereof are, as of such date,
owned, controlled or held by the parent and/or


 


47

















 


one or more subsidiaries of the parent, (ii) any
partnership (a) the sole general partner or the managing general partner
of which is the parent and/or one or more subsidiaries of the parent or (b) the
only general partners of which are the parent and/or one or more subsidiaries
of the parent or (iii) any other person that is otherwise Controlled by
the parent and/or one or more subsidiaries of the parent.  Unless the context requires otherwise, “Subsidiary”
refers to a Subsidiary of Borrower.


 


“Substantial Project” shall mean each
capital project for which the aggregate amount of Expansion Capital
Expenditures made after the Closing Date exceeds $5,000,000.


 


“Substitute Lender” shall have the meaning
assigned to such term in Section 10.04(h).


 


“Survey” shall mean a survey of any Mortgaged Property (and
all improvements thereon) which is (a) (i) prepared by a surveyor or
engineer licensed to perform surveys in the jurisdiction where such Mortgaged
Property is located, (ii) dated (or redated) not earlier than six months
prior to the date of delivery thereof unless there shall have occurred within
six months prior to such date of delivery any exterior construction on the site
of such Mortgaged Property or any easement, right of way or other interest in
the Mortgaged Property has been granted or become effective through operation
of law or otherwise with respect to such Mortgaged Property which, in either
case, can be depicted on a survey, in which events, as applicable, such survey
shall be dated (or redated) after the completion of such construction or if
such construction shall not have been completed as of such date of delivery,
not earlier than 20 days prior to such date of delivery, or after the
grant or effectiveness of any such easement, right of way or other interest in
the Mortgaged Property, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative Agent,
the Collateral Agent and the Title Company, (iv) complying in all respects
with the minimum detail requirements of the American Land Title Association as
such requirements are in effect on the date of preparation of such survey and (v) sufficient
for the Title Company to remove all standard survey exceptions from the title insurance
policy (or commitment) relating to such Mortgaged Property and issue the
endorsements of the type required by Section 4.01(o)(iii) or (b) otherwise
reasonably acceptable to the Collateral Agent.


 


“Swingline Commitment” shall mean the commitment of the
Swingline Lender to make loans pursuant to Section 2.17, as the
same may be reduced from time to time pursuant to Section 2.07 or Section 2.17.  The amount of the Swingline Commitment shall
initially be $5,000,000, but shall in no event exceed the Class A
Revolving Commitment.


 


“Swingline Exposure” shall mean at any time the aggregate
principal amount at such time of all outstanding Swingline Loans.  The Swingline Exposure of any Class A
Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate
Swingline Exposure at such time.


 


“Swingline Lender” shall have the meaning assigned to such
term in the preamble hereto.


 


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“Swingline Loan” shall mean any loan made by the Swingline
Lender pursuant to Section 2.17.


 


“Syndication Agent” shall have the meaning assigned to such
term in the preamble hereto.


 


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


 


“Tax Period” shall mean a period with respect to which a
holder of Equity Interest must pay U.S. federal income taxes (including
estimated taxes) whether quarterly, annually or otherwise.


 


“Tax Return” shall mean all returns, statements, filings,
attachments and other documents or certifications required to be filed in
respect of Taxes.


 


“Tender Offer” shall have the meaning assigned to such term
in the recitals hereto.


 


“Term Borrowing” shall mean a Borrowing comprised of Tranche
B Loans.


 


“Term Lender” shall mean a Tranche B Lender or a Lender with
a Term Loan Commitment pursuant to an Increase Joinder.


 


“Term Loan” shall mean a Tranche B Loan or a term loan
pursuant to an Increase Joinder.


 


“Term Loan Commitment” shall mean Tranche B Commitments and
the commitment, if any, of a Lender to make a term loan hereunder by an
Increase Joinder, as the same may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04.


 


“Test Period” shall mean, at any time, the four consecutive
fiscal quarters of Borrower then last ended (in each case taken as one
accounting period) for which financial statements have been or are required to
be delivered pursuant to Section 5.01(a) or (b).


 


“Title Company” shall mean any title insurance company as
shall be retained by Borrower and reasonably acceptable to the Administrative
Agent.


 


“Title Policy” shall have the meaning assigned to such term
in Section 4.01(o)(iii).


 


“Total Leverage Ratio” shall mean, at any date of
determination, the ratio of Consolidated Net Total Debt on such date to
Consolidated EBITDA for the Test Period then most recently ended.


 


49

















 


“Total Unused Revolving Commitment” shall
mean, at any time, an amount equal to (x) the aggregate amount of
outstanding Revolving Commitments less (y) the
sum of (i) the aggregate principal amount of Revolving Loans and Swingline
Loans then outstanding plus (ii) the aggregate LC Exposure at such time.


 


“TPSH Acquisition” shall have the meaning assigned to such
term in the recitals hereto.


 


“TPSH Agreement” shall have the meaning assigned to such term
in the recitals hereto.


 


“Tranche B Commitment” shall mean, at any
time, the outstanding Initial Tranche B Commitment and the outstanding Delayed
Draw Tranche B Commitment.


 


“Tranche B Lender” shall mean a Lender with a Tranche B
Commitment or an outstanding Tranche B Loan.


 


“Tranche B Loan” shall mean the term loans made by the
Lenders to Borrower pursuant to Section 2.01(a).  Each Tranche B Loan shall be either an ABR
Term Loan or a LIBOR Term Loan.


 


“Tranche B Maturity Date” shall mean the date which is six
years after the Closing Date or, if such date is not a Business Day, the first
Business Day thereafter.


 


“Tranche B Repayment Date” shall have the meaning assigned to
such term in Section 2.09.


 


“Transaction Documents” shall mean the Acquisition Documents,
the Existing Notes Redemption Notice and all other agreements furnished
pursuant to or in connection with the Refinancing, the Existing Notes
Redemption, the Tender Offer, the Senior Note Documents and the Loan Documents.


 


“Transactions” shall mean, collectively, the transactions
that occurred on or prior to the Closing Date pursuant to the Transaction
Documents, including (a) the consummation of the Acquisitions; (b) the
execution, delivery and performance of the Loan Documents and the initial
borrowings hereunder; (c) the Refinancing (including the consummation of
the Tender Offer and the Existing Notes Redemption); (d) the issuance of
the Senior Notes; and (e) the payment of all fees and expenses (including
prepayment or call premium) paid on or prior to the Closing Date and owing in
connection with the foregoing.


 


“Treasury Services Agreement” shall mean any agreement
relating to treasury, depositary and cash management services or automated clearinghouse
transfer of funds.


 


“Truck Plaza EBITDA” shall mean, for any period, net income
of a truck stop gaming plaza plus, in each
case to the extent deducted in calculating such net income and without duplication:


 


50
















 


(a)           any gain (or loss),
together with any related provisions for taxes on any such gain (or the tax
effect of any such loss), realized during such period by such truck stop gaming
plaza upon any non-ordinary course Asset Sale by such truck stop gaming plaza;


 


(b)           earnings resulting
from any reappraisal, revaluation or write-up of assets;


 


(c)           any extraordinary
gain (or extraordinary loss), together with any related provisions for taxes on
any such gain (or the tax effect of any such loss), recorded or recognized
during such period by such truck stop gaming plaza;


 


(d)           the cumulative
effect of any change in accounting principles;


 


(e)           interest expense;


 


(f)            depreciation and
amortization expense;


 


(g)           tax expense; and


 


(h)           the aggregate amount
of all other non-cash charges (including (x) goodwill impairment charges
under Statement of Financial Accounting Standards No. 142 and (y) non-cash
management compensation expense) (other than any non-cash charge that results
in an accrual of a reserve for cash charges in any future period) for such period;


 


minus (x) the aggregate amount of all non-cash items
increasing net income of such truck stop gaming plaza (other than the accrual
of revenue or recording of receivables in the ordinary course of business) and (y) interest
income, in each case for such period.


 


“Type,” when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBOR Rate or the
Alternate Base Rate.


 


“UCC” shall mean the Uniform Commercial Code as in effect
from time to time (except as otherwise specified) in any applicable state or
jurisdiction.


 


“United States” shall mean the United States of America.


 


“Unrestricted Subsidiary” shall mean any
Subsidiary of Borrower that, at or prior to the time of determination, shall
have been designated by Borrower’s Board of Directors as an Unrestricted
Subsidiary; provided that such
Subsidiary (w) does not hold any Indebtedness or Equity Interests of, or
any Lien on any asset of, Borrower or any Restricted Subsidiary, (x) is
not a party to any agreement, contract, arrangement or understanding with
Borrower or any Restricted Subsidiary unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to Borrower or
such Restricted Subsidiary than those that might be obtained at the time from
persons who are not Affiliates of Borrower, (y) is a person with respect
to which neither Borrower nor any of its Restricted Subsidiaries has any direct
or indirect obligation (i) to subscribe for additional Equity Interests or
(ii) to maintain or preserve such person’s


 


51

















 


financial condition or to cause such person to achieve
any specified levels of operating results and (z) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of Borrower or any of its Restricted Subsidiaries.  If, at any time, any Unrestricted Subsidiary of
Borrower would fail to meet the foregoing requirements as an Unrestricted Subsidiary,
it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Agreement and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary as of such date.  Borrower’s Board of Directors may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under Section 6.01
and Section 6.10 hereof calculated on a Pro Forma Basis as if such
designation had occurred at the beginning of the four-quarter reference period
and (ii) no Default or Event of Default would be in existence following
such designation.  Borrower shall be
deemed to make an Investment in each of its Subsidiaries designated as an
Unrestricted Subsidiary immediately following such designation in an amount
equal to the Investment in such Subsidiary and its Subsidiaries immediately
prior to such designation.  Any such
designation by Borrower’s Board of Directors shall be evidenced to the Administrative
Agent by filing with the Administrative Agent a certified copy of the
resolution of Borrower’s Board of Directors giving effect to such designation
and an Officers’ Certificate certifying that such designation complies with the
foregoing conditions and is permitted hereunder.


 


“Voting Stock” shall mean, with respect to any person, any
class or classes of Equity Interests pursuant to which the holders thereof
(together) have the general voting power under ordinary circumstances to elect
at least a majority of the Board of Directors of such person.


 


“Wholly Owned Restricted Subsidiary” shall mean, as to any
person, (a) any corporation 100% of whose capital stock (other than
directors’ qualifying shares) is at the time owned by such person and/or one or
more Wholly Owned Restricted Subsidiaries of such person and (b) any
partnership, association, joint venture, limited liability company or other
entity in which such person and/or one or more Wholly Owned Restricted
Subsidiaries of such person have a 100% equity interest at such time.


 


“Withdrawal Liability” shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.


 


“Withdrawal Period” shall have the meaning
assigned to such term in Section 10.04(i).


 


SECTION 1.02       Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Class A
Revolving Loan”) or by Type (e.g., a “LIBOR
Loan”) or by Class and Type (e.g., a “Class A
LIBOR Revolving Loan”).  Borrowings also
may be classified and referred to by Class (e.g., a
“Class A Revolving Borrowing,” “Borrowing of Tranche A Loans”) or by
Type (e.g., a “LIBOR Borrowing”) or by Class and
Type (e.g., a “Class A LIBOR
Revolving Borrowing”).


 


52

















 


SECTION 1.03       Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any
definition of or reference to any Loan Document, agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any person
shall be construed to include such person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) any reference to any
law or regulation herein shall refer to such law or regulation as amended,
modified or supplemented from time to time, (f) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights and (g) “on,” when used with respect to the
Mortgaged Property or any property adjacent to the Mortgaged Property, means “on,
in, under, above or about.”


 


SECTION 1.04       Accounting Terms; GAAP.  Except as otherwise expressly provided herein,
all financial statements to be delivered pursuant to this Agreement shall be
prepared in accordance with GAAP as in effect from time to time and all terms
of an accounting or financial nature shall be construed and interpreted in
accordance with GAAP as in effect on the Closing Date, unless otherwise agreed
to by Borrower and the Required Lenders. 
In the event that any “Accounting Change” (as defined below) shall occur
and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then Borrower and the
Administrative Agent agree to enter into negotiations in good faith in order to
amend such provisions of this Agreement so as to reflect equitably such
Accounting Change with the desired result that the criteria for evaluating
Borrower’s financial condition shall be the same after such Accounting Change
as if such Accounting Change had not occurred. 
Until such time as such amendment shall have been executed and delivered
by Borrower and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as if such
Accounting Change had not occurred.  “Accounting Change” refers to any change in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the Securities and
Exchange Commission (or successors thereto or agencies with similar
functions).  Notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used
herein shall be construed, and all computations of amounts and ratios referred
to herein shall be made, without giving effect to any election under Statement
of Financial Accounting Standards 159 (or any other Financial Accounting
Standard having a similar result or effect) to value any Indebtedness or other
liabilities of Borrower or any Restricted Subsidiary at “fair value”, as defined
therein.


 


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SECTION 1.05       Resolution of Drafting Ambiguities.  Borrower acknowledges and agrees that it and
each other Loan Party was represented by counsel in connection with the
execution and delivery of the Loan Documents to which it is a party, that it
and its counsel reviewed and participated in the preparation and negotiation
hereof and thereof and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation hereof or thereof.


 


ARTICLE II


 


THE CREDITS


 


SECTION 2.01       Commitments.


 


(a)           Subject
to the terms and conditions and relying upon the representations and warranties
set forth in the Existing Credit Agreement, each Lender agreed, severally and
not jointly (i) to make a Tranche B Loan to Borrower on the Closing
Date in the principal amount not to exceed its Initial Tranche B
Commitment and (ii) to make a Delayed Draw Tranche B Loan to Borrower
at any time or from time to time after the Closing Date and prior to December 31,
2006, in an amount equal to the portion of such Lender’s Delayed Draw Tranche B
Commitment as requested by Borrower to be made on such day (subject to a
maximum of two drawings total) in the aggregate principal amount not to exceed
such Lender’s Delayed Draw Tranche B Commitment at any time outstanding; and


 


(b)           Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Class A Revolving Lender agrees, severally and not
jointly, to make Class A Revolving Loans to Borrower, at any time and from
time to time on or after the Restatement Effective Date until the earlier of
the Class A Revolving Maturity Date and the termination of the Class A
Revolving Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in such
Lender’s Class A Revolving Exposure exceeding such Lender’s Class A
Revolving Commitment.


 


(c)           Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Class B Revolving Lender agrees, severally and not
jointly, to make Class B Revolving Loans to Borrower, at any time and from
time to time on or after the Restatement Effective Date until the earlier of
the Class B Revolving Maturity Date and the termination of the Class B
Revolving Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in such
Lender’s Class B Revolving Exposure exceeding such Lender’s Class B
Revolving Commitment.


 


Amounts
paid or prepaid in respect of Tranche B Loans may not be reborrowed.  Within the limits set forth in clause (b) above
and subject to the terms, conditions and limitations set forth herein, Borrower
may borrow, pay or prepay and reborrow Revolving Loans.


 


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SECTION 2.02       Loans.


 


(a)           Each
Loan (other than Swingline Loans) shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided that
the failure of any Lender to make its Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make
any Loan required to be made by such other Lender).  Except for Loans deemed made pursuant to Section 2.18(e)(ii),
(x) ABR Loans (other than Swingline Loans) comprising any Borrowing shall
be in an aggregate principal amount that is (i) an integral multiple of
$250,000 and not less than $500,000 or (ii) equal to the remaining
available balance of the applicable Commitments and (y) the LIBOR Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i) an
integral multiple of $250,000 and not less than $500,000 or (ii) equal to
the remaining available balance of the applicable Commitments; provided that any Delayed Draw Tranche B
Loan shall be in an aggregate principal amount that is not less than $5.0
million.


 


(b)           Subject
to Sections 2.11 and 2.12, each Borrowing shall be comprised
entirely of ABR Loans or LIBOR Loans as Borrower may request pursuant to Section 2.03.  Each Lender may at its option make any LIBOR
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of
such option shall not affect the obligation of Borrower to repay such Loan in
accordance with the terms of this Agreement. 
Borrowings of more than one Type may be outstanding at the same time; provided that Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than eight LIBOR Borrowings
outstanding hereunder at any one time. 
For purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.


 


(c)           Except
with respect to Loans deemed made pursuant to Section 2.18(e)(ii),
each Lender shall make each Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds to such account in
New York City as the Administrative Agent may designate not later than 1:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account as directed by Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders.


 


(d)           Unless
the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent
may, in reliance upon such assumption, make available to Borrower on such date
a corresponding amount.  If the Administrative
Agent shall have so made funds available, then, to the extent that such Lender
shall not have made such portion available to the Administrative Agent, each of
such Lender and Borrower severally agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to Borrower until the
date such amount is repaid to the Administrative Agent at (i) in the case
of Borrower, the interest rate applicable at the time to the Loans comprising
such


 


55

















 


Borrowing and (ii) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.  If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender’s Loan as part of such Borrowing for purposes of this Agreement,
and Borrower’s obligation to repay the Administrative Agent such corresponding
amount pursuant to this Section 2.02(d) shall cease.


 


(e)           Notwithstanding
any other provision of this Agreement, Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Class A Revolving Maturity
Date, Class B Revolving Maturity Date, Tranche B Maturity Date or
Incremental Tranche B Maturity Date, as applicable.


 


(f)            Any
“Revolving Loans” outstanding on the Restatement Effective Date shall be
continued as Revolving Loans hereunder; provided that after giving effect to
the Amendment and Restatement Agreement, (x) each Class B Revolving
Lender will be deemed to be holding such Loans as “Class B Revolving Loans”
and (y) each Class A Revolving Lender will be deemed to be holding
such Loans as “Class A Revolving Loans.”


 


(g)           Following
the Restatement Effective Date but on or prior to June 1, 2011, with the
consent of Borrower any Class B Revolving Lender may elect to have all
(but not less than all) its Class B Revolving Commitment deemed to be a Class A
Revolving Commitment on any date (each date, a “Designation Date”) prior to the
Class B Revolving Maturity Date; provided that such Revolving Lender shall
have provided written notice to Borrower and the Administrative Agent at least
five Business Days’ prior to such Designation Date (or such shorter period as
the Administrative Agent may agree in its discretion).  Following a Designation Date, any Revolving
Loans held by such Revolving Lender will be deemed to be “Class A
Revolving Loans.”


 


SECTION 2.03       Borrowing Procedure.  To request a Revolving Borrowing or Term Borrowing,
Borrower shall deliver, by hand delivery or telecopier (or telephonic notice
promptly confirmed in writing), an irrevocable duly completed and executed
Borrowing Request to the Administrative Agent (i) in the case of a LIBOR
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of the proposed Borrowing or (ii) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before the date of the proposed Borrowing. 
Each Borrowing Request shall be irrevocable and shall specify the
following information in compliance with Section 2.02:


 


(a)           whether
the requested Borrowing is to be a Borrowing of Revolving Loans or Tranche B
Loans (and if a Tranche B Loan, whether such Tranche B Loan constitutes a Delayed
Draw Tranche B Loan);


 


(b)           in
the case of a Revolving Borrowing, whether the requested Borrowing is a Class A
Revolving Borrowing or a Class B Revolving Borrowing;


 


(c)           the
aggregate amount of such Borrowing;


 


56

















 


(d)           the
date of such Borrowing, which shall be a Business Day;


 


(e)           whether
such Borrowing is to be an ABR Borrowing or a LIBOR Borrowing;


 


(f)            in
the case of a LIBOR Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest
Period”;


 


(g)           the
location and number of Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.02(c); and


 


(h)           that
the conditions set forth in Sections 4.02(b)-(d) have been
satisfied as of the date of the notice.


 


If no
election as to the Class of any Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be a Class A Revolving Borrowing. If
no election as to the Type of Borrowing is specified, then the requested Borrowing
shall be an ABR Borrowing.  If no
Interest Period is specified with respect to any requested LIBOR Borrowing,
then Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04       Evidence of Debt; Repayment of Loans.


 


(a)           Promise
to Repay.  Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each
Tranche B Lender, the principal amount of each Tranche B Loan of such Tranche B
Lender as provided in Section 2.09, (ii) to the Administrative
Agent for the account of each Class A Revolving Lender, the then unpaid
principal amount of each Class A Revolving Loan of such Class A
Revolving Lender on the Class A Revolving Maturity Date, (iii) to the
Administrative Agent for the account of each Class B Revolving Lender, the
then unpaid principal amount of each Class B Revolving Loan of such Class B
Revolving Lender on the Class B Revolving Maturity Date and (iv) to
the Swingline Lender, the then unpaid principal amount of each Swingline Loan
on the earlier of (x) the Class A Revolving Maturity Date and (y) the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Class A
Revolving Borrowing is made, Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.


 


(b)           Lender
and Administrative Agent Records. 
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.  The
Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Type and Class thereof and the
Interest Period applicable thereto; (ii) the amount of any principal or
interest due and payable or to become due


 


57

















 


and payable from Borrower to each Lender hereunder; and (iii) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.  The entries made in the accounts maintained
pursuant to this paragraph shall be prima facie evidence
of the existence and amounts of the obligations therein recorded; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not
in any manner affect the obligations of Borrower to repay the Loans in accordance
with their terms.


 


(c)           Promissory
Notes.  Any Lender by written notice
to Borrower may request that Loans of any Class made by it be evidenced by
a promissory note.  In such event,
Borrower shall prepare, execute and deliver to such Lender a promissory note payable
to the order of such Lender (or, if requested by such Lender, to such Lender
and its registered assigns) in the form of Exhibit K-1 or K-2,
as the case may be.  Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).


 


SECTION 2.05       Fees.


 


(a)           Commitment
Fee.  Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (a “Commitment Fee”) equal to the Applicable Fee per annum on
the average daily unused amount of each Revolving Commitment and Delayed Draw
Tranche B Commitment of such Lender during the period from and including the
Closing Date to but excluding the date on which such Commitment
terminates.  Accrued Commitment Fees
shall be payable in arrears (A) on the last Business Day of March, June, September and
December of each year, commencing on September 29, 2006, and (B) on
the date on which such Commitment terminates. 
Commitment Fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day); provided that the Defaulting Lenders
shall not be entitled to receive any Commitment Fee accrued during a Default
Period.  For purposes of computing
Commitment Fees with respect to Revolving Commitments of any Class, a Revolving
Commitment of such Class of a Lender shall be deemed to be used to the
extent of the outstanding Revolving Loans of such Class and, in the case
of Class A Revolving Commitments, LC Exposure of such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose).


 


(b)           Administrative
Agent Fees.  Borrower agrees to pay
to the Administrative Agent, for its own account, the administrative fees
payable in the amounts and at the times separately agreed upon between Borrower
and the Administrative Agent (the “Administrative Agent Fees”).


 


(c)           LC
and Fronting Fees.  Borrower agrees
to pay (i) to the Administrative Agent for the account of each Class A
Revolving Lender a participation fee (“LC Participation Fee”)
with respect to its participations in Letters of Credit, which shall accrue at
a rate equal to the Applicable Margin from time to time used to determine the
interest rate on Class A LIBOR Revolving Loans pursuant to Section 2.06
on the average daily amount of such Lender’s LC


 


58

















 


Exposure (excluding any portion thereof attributable to Reimbursement
Obligations) during the period from and including the Closing Date to but
excluding the later of the date on which such Lender’s Class A Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee (“Fronting Fee”), which shall accrue at the rate of 0.25% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to Reimbursement Obligations) during the period from and
including the Closing Date to but excluding the later of the date of termination
of the Class A Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank’s customary fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Accrued LC Participation Fees and Fronting Fees shall be payable in
arrears (i) on the last Business Day of March, June, September and December of
each year, commencing on September 29, 2006, and (ii) on the date on
which the Class A Revolving Commitments terminate.  Any such fees accruing after the date on
which the Class A Revolving Commitments terminate shall be payable on
demand.  Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand therefor.  All LC
Participation Fees and Fronting Fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).


 


(d)           All
Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders
(other than Defaulting Lenders during a Default Period with respect thereto),
except that Borrower shall pay the Fronting Fees directly to the Issuing
Bank.  Once paid, none of the Fees shall
be refundable under any circumstances.


 


SECTION 2.06       Interest on Loans.


 


(a)           ABR
Loans.  Subject to the provisions of Section 2.06(c),
the Loans comprising each ABR Borrowing, including each Swingline Loan, shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin in effect from time to time.


 


(b)           LIBOR
Loans.  Subject to the provisions of Section 2.06(c),
the Loans comprising each LIBOR Borrowing shall bear interest at a rate per
annum equal to the Adjusted LIBOR Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin in effect from time to time.


 


(c)           Default
Rate.  Notwithstanding the foregoing,
during the continuance of a payment Event of Default, the amount of overdue
principal or interest shall, to the extent permitted by applicable law, bear
interest, after as well as before judgment, at a per annum rate equal to 2% plus the rate otherwise applicable to such Loan as provided
in the preceding paragraphs of this Section 2.06 (the “Default Rate”).


 


(d)           Interest
Payment Dates.  Accrued interest on
each Loan shall be payable in arrears on each Interest Payment Date for such
Loan; provided that (i) interest accrued
pursuant to Section 2.06(c) shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan of any Class or a Swingline


 


59

















 


Loan without a permanent reduction in Revolving Commitments), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion
of any LIBOR Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such conversion.


 


(e)           Interest
Calculation.  All interest hereunder
shall be computed on the basis of a year of 360 days, and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).  The applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative
Agent in accordance with the provisions of this Agreement and such determination
shall be conclusive absent manifest error.


 


SECTION 2.07       Termination and Reduction of Commitments.


 


(a)           Termination
of Commitments.  The Initial Tranche
B Commitments automatically terminated at 5:00 p.m., New York City time,
on the Closing Date.  The Delayed Draw
Tranche B Commitments automatically terminated at 5:00 p.m., New York City
time, on December 31, 2006.  The Class A
Revolving Commitments, the Swingline Commitment and the LC Commitment shall
automatically terminate on the Class A Revolving Maturity Date.  The Class B Revolving Commitments shall
automatically terminate on the Class B Revolving Maturity Date.  The Class B Revolving Commitments shall
automatically terminate upon the Increase Effective Date with respect to an
Incremental Revolving Loan Commitment.


 


(b)           Optional
Terminations and Reductions.  At its
option, Borrower may, at any time after the Closing Date, terminate, or from
time to time permanently reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of
any Class shall be in an amount that is an integral multiple of $250,000
and not less than $500,000, (ii) the Class B Revolving Commitments
shall not be terminated or reduced if, after giving effect to any concurrent
prepayment of the Class B Revolving Loans in accordance with Section 2.10,
the aggregate amount of Class B Revolving Exposures would exceed the
aggregate amount of Class B Revolving Commitments and (iii) the Class A
Revolving Commitments shall not be terminated or reduced if, after giving
effect to any concurrent prepayment of the Class A Revolving Loans in
accordance with Section 2.10, the aggregate amount of Class A
Revolving Exposures would exceed the aggregate amount of Class A Revolving
Commitments.


 


(c)           Borrower
Notice.  Borrower shall notify the
Administrative Agent in writing of any election to terminate or reduce the
Commitments under Section 2.07(b) at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. 
Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. 
Each notice delivered by Borrower pursuant to this Section shall be
irrevocable; provided that a notice of
termination of the Commitments delivered by Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by Borrower (by written notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.  Any termination or reduction
of the Commitments of any Class shall be permanent.


 


60
















 


Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments of
such Class.


 


SECTION 2.08       Interest Elections.


 


(a)           Generally.  Each Revolving Borrowing and Term Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a LIBOR Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. 
Thereafter, Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a LIBOR Borrowing, may
elect Interest Periods therefor, all as provided in this Section.  Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. 
Notwithstanding anything to the contrary, Borrower shall not be entitled
to request any conversion or continuation that, if made, would result in more
than eight LIBOR Borrowings outstanding hereunder at any one time.  This Section shall not apply to
Swingline Loans, which may not be converted or continued.


 


(b)           Interest
Election Notice.  To make an election
pursuant to this Section, Borrower shall deliver, by hand delivery or
telecopier (or telephonic notice promptly confirmed in writing), a duly
completed and executed Interest Election Request to the Administrative Agent
not later than the time that a Borrowing Request would be required under Section 2.03
if Borrower were requesting a Revolving Borrowing or Term Borrowing of the Type
resulting from such election to be made on the effective date of such
election.  Each Interest Election Request
shall be irrevocable.  Each Interest
Election Request shall specify the following information in compliance with Section 2.02:


 


(i)           the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, or if outstanding
Borrowings are being combined, allocation to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);


 


(ii)          the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)         whether
the resulting Borrowing is to be an ABR Borrowing or a LIBOR Borrowing; and


 


(iv)         if
the resulting Borrowing is a LIBOR Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period.”


 


If any
such Interest Election Request requests a LIBOR Borrowing but does not specify
an Interest Period, then Borrower shall be deemed to have selected an Interest
Period of one month’s duration.


 


61

















 


Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.


 


(c)           Automatic
Conversion to ABR Borrowing.  If an
Interest Election Request with respect to a LIBOR Borrowing is not timely
delivered prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing, the Administrative
Agent or the Required Lenders may require, by notice to Borrower, that (i) no
outstanding Borrowing may be converted to or continued as a LIBOR Borrowing and
(ii) unless repaid, each LIBOR Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.


 


SECTION 2.09       Amortization of Term Borrowings.  Borrower shall pay to the Administrative
Agent, for the account of the Tranche B Lenders, (i) on September 29,
2006, $100,000, and (ii) on the dates set forth on Annex I, or
if any such date is not a Business Day, on the immediately preceding Business
Day (each such date, a “Tranche B Repayment Date”),
a principal amount of the Tranche B Loans (x) as is set forth on Annex
I opposite such date under the heading “Initial Tranche B Loan Amount” if
no Delayed Draw Tranche B Loans have been made on or before December 31,
2006 or (y) as set forth on Annex I under the heading “Total Amount”
if any Delayed Draw Tranche B Loans have been made as of such date (in the case
of clauses (x) and (y) as adjusted from time to time pursuant to Section 2.10(h) and
in the case of clause (y) as may be further adjusted as provided on Annex I),
together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment.  To the extent not previously paid, all
Tranche B Loans shall be due and payable on the Tranche B Maturity Date.


 


SECTION 2.10       Optional and Mandatory Prepayments of Loans.


 


(a)           Optional
Prepayments.  Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, subject to the requirements of this Section 2.10; provided that each partial prepayment shall be in an amount
that is an integral multiple of $250,000 and not less than $500,000 or, if less
or if not such a multiple, the outstanding principal amount of such Borrowing.


 


(b)           Revolving
Loan Prepayments.


 


(i)           In the event of the termination of
all the Class A Revolving Commitments, Borrower shall, on the date of such
termination, repay or prepay all its outstanding Class A Revolving Loans
and all outstanding Swingline Loans and replace all outstanding Letters of
Credit or cash collateralize all outstanding Letters of Credit in accordance
with the procedures set forth in Section 2.18(i).  In the event of the termination of all the Class B
Revolving Commitments, Borrower shall, on the date of such termination, repay
or prepay all its outstanding Class B Revolving Loans.


 


62

















 


(ii)          In the event of any partial reduction
of the Class A Revolving Commitments, then (x) at or prior to the
effective date of such reduction, the Administrative Agent shall notify
Borrower and the Class A Revolving Lenders of the sum of all Lenders’ Class A
Revolving Exposures after giving effect thereto and (y) if the sum of all
Lenders’ Class A Revolving Exposures would exceed the aggregate amount of Class A
Revolving Commitments after giving effect to such reduction, then Borrower
shall, on the date of such reduction, first, repay or
prepay Swingline Loans, second, repay
or prepay the outstanding Class A Revolving Loans and third,
replace outstanding Letters of Credit or cash collateralize outstanding Letters
of Credit in accordance with the procedures set forth in Section 2.18(i),
in an aggregate amount sufficient to eliminate such excess.


 


(iii)         In the event of any partial reduction
of the Class B Revolving Commitments, then (x) at or prior to the
effective date of such reduction, the Administrative Agent shall notify
Borrower and the Class B Revolving Lenders of the sum of all Lenders’ Class B
Revolving Exposures after giving effect thereto and (y) if the sum of all
Lenders’ Class B Revolving Exposures would exceed the aggregate amount of Class B
Revolving Commitments after giving effect to such reduction, then Borrower
shall, on the date of such reduction, repay or prepay the outstanding Class B
Revolving Loans in an aggregate amount sufficient to eliminate such excess.


 


(iv)         (x)  In the event that the sum of
all Class A Revolving Lenders’ Class A Revolving Exposures exceeds
the Class A Revolving Commitments then in effect, Borrower shall, without
notice or demand, immediately first, repay or
prepay Swingline Loans, second, repay
or prepay the outstanding Class A Revolving Loans and third,
replace outstanding Letters of Credit or cash collateralize outstanding Letters
of Credit in accordance with the procedures set forth in Section 2.18(i),
in an aggregate amount sufficient to eliminate such excess; and (y) in the
event that the sum of all Class B Revolving Lenders’ Class B
Revolving Exposures exceeds the total Class B Revolving Commitments, the
Borrower shall, without notice or demand, immediately repay or prepay Class B
Revolving Borrowings in an aggregate amount equal to such excess.


 


(v)          In the event that the aggregate LC
Exposure exceeds the LC Commitment then in effect, Borrower shall, without
notice or demand, immediately replace outstanding Letters of Credit or cash
collateralize outstanding Letters of Credit in accordance with the procedures
set forth in Section 2.18(i), in an aggregate amount sufficient to
eliminate such excess.


 


(c)           Asset
Sales.  Not later than one Business
Day following the receipt of any Net Cash Proceeds of any Asset Sale by
Borrower or any of its Restricted Subsidiaries on or after the Closing Date,
Borrower, shall make prepayments in accordance with Sections 2.10(h) and
(i) in an aggregate amount equal to 100% of such Net Cash Proceeds;
provided that:


 


(i)           no such prepayment shall be required under this Section 2.10(c)(i) with
respect to (A) any Asset Sale permitted by Section 6.06(a), (B) the
disposition of property which constitutes a Casualty Event, or (C) Asset
Sales for fair market value resulting in no more than $500,000 in Net Cash
Proceeds per Asset Sale (or series of related Asset


 


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Sales) and less than $3,000,000 in Net Cash
Proceeds in any fiscal year; provided that
clause (C) shall not apply in the case of any Asset Sale described in
clause (b) of the definition thereof; and


 


(ii)           so long as no Default shall then exist or would arise
therefrom and the aggregate of such Net Cash Proceeds of Asset Sales shall not
exceed $5,000,000 in any fiscal year of Borrower, such proceeds shall not be
required to be so applied on such date to the extent that Borrower shall have
delivered an Officers’ Certificate to the Administrative Agent on or prior to
such date stating that such Net Cash Proceeds are expected to be reinvested in
fixed or capital assets within 270 days following the date of such Asset
Sale (which Officers’ Certificate shall set forth the estimates of the proceeds
to be so expended); provided that
if all or any portion of such Net Cash Proceeds is not so reinvested within
such 270-day period, such unused portion shall be applied on the last day of
such period as a mandatory prepayment as provided in this Section 2.10(c);
provided, further,
that if the property subject to such Asset Sale constituted Collateral, then
all property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the benefit
of the other Secured Parties in accordance with Sections 5.11 and 5.12;


 


provided, further,
that clauses (c)(i) and (ii) shall not apply to any Net Cash Proceeds
from Asset Sales pursuant to Section 6.06(g).


 


(d)           Debt
Issuance.  Not later than one
Business Day following the receipt of any Net Cash Proceeds of any Debt
Issuance by Borrower or any of its Restricted Subsidiaries on or after the
Closing Date, Borrower shall make prepayments in accordance with Sections 2.10(h) and
(i) in an aggregate amount equal to 100% of such Net Cash Proceeds.


 


(e)           Special
Redemption.  If the Pinon Acquisition
has not been consummated on or prior to September 29, 2006, Borrower shall
make prepayments in accordance with Sections 2.10(h) and (i) in
an aggregate amount equal to $14.5 million. 
If the Texas Pelican portion of the TPSH Acquisition has not been
consummated on or prior to August 15, 2006, Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) in
an aggregate amount equal to $2.35 million. 
If the St. Helena portion of the TPSH Acquisition has not been
consummated on or prior to August 15, 2006, Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) in
an aggregate amount equal to $3.45 million.


 


(f)            Casualty
Events.  Not later than one Business
Day following the receipt of any Net Cash Proceeds from a Casualty Event by
Borrower or any of its Restricted Subsidiaries on or after the Closing Date,
Borrower shall make prepayments in accordance with Sections 2.10(h) and
(i) in an aggregate amount equal to 100% of such Net Cash Proceeds;
provided that:


 


(i)           so long as no Default shall then exist or arise therefrom,
such Net Cash Proceeds shall not be required to be so applied on such date to
the extent that (A) in the event such Net Cash Proceeds shall not exceed
$5.0 million, Borrower shall have


 


64

















 


delivered an Officers’ Certificate to the
Administrative Agent on or prior to such date stating that such Net Cash
Proceeds are expected to be used, or (B) in the event that such Net Cash
Proceeds exceed $5.0 million, the Administrative Agent has elected by notice to
Borrower on or prior to such date to require such Net Cash Proceeds to be used,
in each case, to repair, replace or restore any property in respect of which
such Net Cash Proceeds were paid or to reinvest in other fixed or capital
assets, no later than 270 days following the date of receipt of such Net Cash
Proceeds; provided that if the property subject to
such Casualty Event constituted Collateral under the Security Documents, then
all property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security Documents
in favor of the Collateral Agent, for its benefit and for the benefit of the
other Secured Parties in accordance with Sections 5.11 and 5.12;
and


 


(ii)          if any portion of such Net Cash Proceeds shall not be so
applied within such 270 day period, such unused portion shall be applied on the
last day of such period as a mandatory prepayment as provided in this Section 2.10(f).


 


(g)           Excess
Cash Flow.  No later than the earlier
of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the
date on which the financial statements with respect to the fiscal year in which
such Excess Cash Flow Period occurs are delivered pursuant to Section 5.01(a),
Borrower shall make prepayments in accordance with Sections 2.10(h) and
(i) in an aggregate amount equal to 50% of Excess Cash Flow for the
Excess Cash Flow Period then ended.


 


(h)           Application
of Prepayments.  Prior to any
optional or mandatory prepayment hereunder, Borrower shall select the Borrowing
or Borrowings to be prepaid and shall specify such selection in the notice of
such prepayment pursuant to Section 2.10(i), subject to the
provisions of this Section 2.10(h). 
Any prepayments of Tranche B Loans pursuant to Section 2.10(c),
(d), (f) or (g) shall be applied to reduce
scheduled repayments required under Section 2.09 in inverse order
of maturity.  Any prepayments of Tranche
B Loans pursuant to Section 2.10(a) shall be applied to reduce
scheduled repayments as Borrower shall direct. 
Any prepayments of Tranche B Loans pursuant to Section 2.10(e) shall
be applied to reduce scheduled repayments required under Section 2.09
on a pro rata basis.  Any prepayments
pursuant to Section 2.10(c), (d), (f) or (g) shall
be applied first to prepay Tranche B Loans. 
After application of mandatory prepayments of Tranche B Loans described
above in this Section 2.10(h) and to the extent there are
mandatory prepayment amounts remaining after such application, first, the Class B Revolving Commitments shall be
permanently reduced ratably among the Class B Revolving Lenders in
accordance with their applicable Class B Revolving Commitments in an
aggregate amount equal to such excess, and second, to the
extent there are mandatory prepayment amounts remaining after such application
in respect of Class B Revolving Commitments, the Class A Revolving
Commitments shall be permanently reduced ratably among the Class A
Revolving Lenders in accordance with their applicable Class A Revolving
Commitments in an aggregate amount equal to such excess, and in each case
Borrower shall comply with Section 2.10(b).


 


Amounts to be applied pursuant to this Section 2.10
to the prepayment of Tranche B Loans and Revolving Loans shall be applied, as
applicable, first to reduce outstanding ABR


 


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Term Loans and ABR Revolving
Loans, respectively.  Any amounts
remaining after each such application shall be applied to prepay LIBOR Term
Loans or LIBOR Revolving Loans, as applicable. 
Notwithstanding the foregoing, if the amount of any prepayment of Loans
required under this Section 2.10 shall be in excess of the amount
of the ABR Loans at the time outstanding (an “Excess
Amount”), only the portion of the amount of such prepayment as is
equal to the amount of such outstanding ABR Loans shall be immediately prepaid
and, at the election of Borrower, the Excess Amount shall be either (A) deposited
in an escrow account on terms satisfactory to the Collateral Agent and applied
to the prepayment of LIBOR Loans on the last day of the then next-expiring
Interest Period for LIBOR Loans; provided that (i) interest
in respect of such Excess Amount shall continue to accrue thereon at the rate
provided hereunder for the Loans which such Excess Amount is intended to repay
until such Excess Amount shall have been used in full to repay such Loans and (ii) at
any time while a Default has occurred and is continuing, the Administrative
Agent may, and upon written direction from the Required Lenders shall, apply
any or all proceeds then on deposit to the payment of such Loans in an amount
equal to such Excess Amount or (B) prepaid immediately, together with any
amounts owing to the Lenders under Section 2.13.


 


(i)            Notice
of Prepayment.  Borrower shall notify
the Administrative Agent (and, in the case of prepayment of a Swingline Loan,
the Swingline Lender) by written notice of any prepayment hereunder (i) in
the case of prepayment of a LIBOR Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment, (ii) in
the case of prepayment of an ABR Borrowing (other than as provided in clause
(iii)), not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment and (iii) in the case of prepayment of a
Swingline Loan, not later than 11:00 a.m., New York City time, on the date
of prepayment.  Each such notice shall be
irrevocable; provided that, (x) if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.07,
then such notice of prepayment may be revoked if such termination is revoked in
accordance with Section 2.07 and (y) if a notice of prepayment
is given in connection with a prepayment under Section 2.10 (e),
such notice may be revoked if the Pinon Acquisition is consummated on or prior
to September 29, 2006.  Each such
notice shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment,
a reasonably detailed calculation of the amount of such prepayment.  Promptly following receipt of any such notice
(other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of a Credit Extension
of the same Type as provided in Section 2.02, except as necessary
to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing and otherwise in
accordance with this Section 2.10. 
Prepayments shall be accompanied by accrued interest to the extent required
by Section 2.06.


 


SECTION 2.11       Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a LIBOR Borrowing:


 


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(a)           the
Administrative Agent determines (which determination shall be final and
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBOR Rate for such Interest Period; or


 


(b)           the
Administrative Agent is advised in writing by the Required Lenders that the
Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;


 


then the Administrative Agent shall give written
notice thereof to Borrower and the Lenders as promptly as practicable
thereafter and, until the Administrative Agent notifies Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and (ii) if
any Borrowing Request requests a LIBOR Borrowing, such Borrowing shall be made
as an ABR Borrowing.


 


SECTION 2.12       Yield Protection.


 


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


 


(i)           impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or credit extended or
participated in, by any Lender (except any reserve requirement reflected in the
Adjusted LIBOR Rate) or the Issuing Bank;


 


(ii)          subject any Lender or the Issuing Bank to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any LIBOR Loan made by it, or change the
basis of taxation of payments to such Lender or the Issuing Bank in respect
thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.15
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender or the Issuing Bank); or


 


(iii)         impose on any Lender or the Issuing Bank or the London
interbank market any other condition, cost or expense affecting this Agreement
or LIBOR Loans made by such Lender or any Letter of Credit or participation
therein;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any LIBOR Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender, the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company, if any, of
participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to
reduce the amount of any sum received or receivable by such Lender or the Issuing
Bank hereunder (whether of principal, interest or any other amount), then, upon
request of such Lender or the Issuing Bank, Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such additional
costs incurred or reduction suffered.


 


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(b)           Capital
Requirements.  If any Lender or the
Issuing Bank determines (in good faith, but in its sole absolute discretion)
that any Change in Law affecting such Lender or the Issuing Bank or any lending
office of such Lender or such Lender’s or the Issuing Bank’s holding company,
if any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital or on the
capital of such Lender’s or the Issuing Bank’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or
the Issuing Bank’s holding company with respect to capital adequacy), then from
time to time Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


(c)           Certificates
for Reimbursement.  A certificate of
a Lender or the Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or the Issuing Bank or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section 2.12
and delivered to Borrower shall be conclusive absent manifest error.  Borrower shall pay such Lender or the Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)           Delay
in Requests.  Failure or delay on the
part of any Lender or the Issuing Bank to demand compensation pursuant to this Section 2.12
shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to
demand such compensation; provided that
Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the
Issuing Bank, as the case may be, notifies Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or the Issuing
Bank’s intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof) .


 


SECTION 2.13       Breakage Payments.  In the event of (a) the payment or
prepayment, whether optional or mandatory, of any principal of any LIBOR Loan
earlier than the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any LIBOR Loan
earlier than the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan or Tranche B
Loan on the date specified in any notice delivered pursuant hereto or (d) the
assignment of any LIBOR Loan earlier than the last day of the Interest Period
applicable thereto as a result of a request by Borrower pursuant to Section 2.16(b),
then, in any such event, Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event. 
In the case of a LIBOR Loan, such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted


 


68

















 


LIBOR Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the LIBOR market.  A certificate of any Lender setting forth in
reasonable detail any amount or amounts that such Lender is entitled to receive
pursuant to this Section 2.13 shall be delivered to Borrower and
shall be conclusive and binding absent manifest error.  Borrower shall pay such Lender the amount
shown as due on any such certificate within 5 days after receipt thereof.


 


SECTION 2.14       Payments Generally; Pro Rata Treatment; Sharing of
Setoffs.


 


(a)           Payments
Generally.  Borrower shall make each
payment required to be made by it hereunder or under any other Loan Document
(whether of principal, interest, fees or Reimbursement Obligations, or of
amounts payable under Section 2.12, 2.13, 2.15 or 10.03,
or otherwise) on or before the time expressly required hereunder or under such
other Loan Document for such payment (or, if no such time is expressly
required, prior to 1:00 p.m., New York City time), on the date when due,
in immediately available funds, without setoff, deduction or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, New York 10010, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.12, 2.13, 2.15 and 10.03
shall be made directly to the persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the persons specified therein.  The Administrative Agent shall distribute any
such payments received by it for the account of any other person to the
appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall
be due on a day that is not a Business Day, unless specified otherwise, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension.  All
payments under each Loan Document shall be made in dollars, except as expressly
specified otherwise.


 


(b)           Pro
Rata Treatment.


 


(i)           Each payment by Borrower of interest
in respect of the Loans shall be applied to the amounts of such obligations
owing to the Lenders pro rata
according to the respective amounts then due and owing to the Lenders.


 


(ii)          Each payment on account of principal
of the Tranche B Loans shall be allocated among the Tranche B Lenders pro rata based on the principal amount of the Tranche B
Loans held by the Tranche B Lenders. 
Each payment by Borrower on account of principal of the Revolving
Borrowings of any Class shall be made pro rata
according


 


69

















 


to the respective outstanding
principal amounts of the Revolving Loans of such Class then held by the
Revolving Lenders of such Class.


 


(c)           Insufficient
Funds.  If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, Reimbursement Obligations, interest and fees then due
hereunder, such funds shall be applied (i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward
payment of principal and Reimbursement Obligations then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and Reimbursement Obligations then due to such parties.


 


(d)           Sharing
of Setoff.  If any Lender (and/or the
Issuing Bank, which shall be deemed a “Lender” for purposes of this Section 2.14(d))
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other
Obligations resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of its Loans and accrued interest thereon or other Obligations
greater than its pro  rata
share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Loans and such other obligations
of the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided
that:


 


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


 


(ii)          the provisions of this paragraph shall not be construed to
apply to (x) any payment made by Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to Borrower or any Restricted Subsidiary thereof (as to
which the provisions of this paragraph shall apply).


 


Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Requirements of Law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against any Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan
Party in the amount of such participation. 
If under applicable bankruptcy, insolvency or any similar law any
Secured Party receives a secured claim in lieu of a setoff or counterclaim to
which this Section 2.14(d) applies, such Secured Party shall
to the extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights to which a Lender is entitled under this
Section 2.14(d) to share in the benefits of the recovery of
setoff or counterclaim.


 


70
















 


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


 


(f)            Lender Default. 
If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.02(c), 2.14(e), 2.17(d), 2.18(d),
2.18(e) or 10.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


SECTION 2.15       Taxes.


 


(a)           Payments Free of Taxes. 
Any and all payments by or on account of any obligation of the Loan
Parties hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Indemnified Taxes or Other
Taxes; provided that if the Loan Parties shall
be required by applicable Requirements of Law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable Loan Party shall make such deductions and (iii) the
applicable Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable Requirements of Law.


 


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


 


(c)           Indemnification by Borrower. 
Borrower shall indemnify the Administrative Agent, each Lender and the
Issuing Bank, within 10 Business Days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as
to the amount of such payment or liability 


 


71

















 


delivered to
Borrower by a Lender or the Issuing Bank (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be final, conclusive and binding on all
parties absent manifest error.


 


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


 


(e)           Status of Lenders. 
Any Foreign Lender shall, to the extent it may lawfully do so,  deliver to Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


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


 


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


 


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


 


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


 


(f)            Treatment of Certain Refunds. 
If the Administrative Agent, a Lender or the Issuing Bank determines, in
its sole discretion, that it has received a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by Borrower or with respect to
which Borrower has paid additional amounts pursuant to this Section, it shall,
within 30 days from the date making such determination, pay to Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by Borrower under this Section with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing 


 


72

















 


Bank, as the case
may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that
Borrower, upon the request of the Administrative Agent, such Lender or the
Issuing Bank, agrees to repay the amount paid over to Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Bank in the
event the Administrative Agent, such Lender or the Issuing Bank is required to
repay such refund to such Governmental Authority.  This paragraph shall not be construed to
require the Administrative Agent, any Lender or the Issuing Bank to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to Borrower or any other person.  Notwithstanding anything to the contrary, in
no event will any Lender be required to pay any amount to Borrower the payment
of which would place such Lender in a less favorable net after-tax position
than such Lender would have been in if the additional amounts giving rise to
such refund of any Indemnified Taxes or Other Taxes had never been paid.


 


SECTION 2.16       Mitigation Obligations; Replacement of Lenders.


 


(a)           Designation of a Different Lending Office. 
If any Lender requests compensation under Section 2.12 or
requires Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15,
as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender.  Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment. 
A certificate setting forth such costs and expenses submitted by such
Lender to Borrower shall be conclusive absent manifest error.


 


(b)           Replacement of Lenders. 
If any Lender requests compensation under Section 2.12, or
is incurring or is reasonably expected to incur costs which are or would be material
in amount and are associated with a Gaming Authority’s investigation of whether
or not such Lender is a Qualified Person, or if Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.15, or if any Lender defaults
in its obligation to fund Loans hereunder, or if Borrower exercises its replacement
rights under Section 10.02(d), then Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section 10.04),
all of its interests, rights and obligations under this Agreement and the other
Loan Documents to an Eligible Assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that:


 


(i)           Borrower shall
have paid to the Administrative Agent the processing and recordation fee
specified in Section 10.04(b);


 


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(ii)          such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Loan Documents (including any amounts under Section 2.13),
assuming for this purpose (in the case of a Lender being replaced pursuant to Section 10.02(d))
that the Loans of such Lender were being prepaid from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or Borrower (in
the case of all other amounts);


 


(iii)         in the case of
any such assignment resulting from a claim for compensation under Section 2.12
or payments required to be made pursuant to Section 2.15, such assignment
will result in a reduction in such compensation or payments thereafter; and


 


(iv)         such assignment
does not conflict with applicable Requirements of Law.


 


A Lender shall not
be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
Borrower to require such assignment and delegation cease to apply.


 


(c)           Defaulting Lenders.  (i) Anything
contained herein to the contrary notwithstanding, in the event that any
Revolving Lender or Lender with a Delayed Draw Tranche B Commitment (“Defaulting Lender”) defaults (a “Funding
Default”) in its obligation to fund any Revolving Loan or Delayed
Draw Tranche B Loan, or, with respect only to a Class A Revolving Lender,
such Class A Revolving Lender commits a Non-Funding Default, as the case
may be (a “Defaulted Loan”), in accordance
with Section 2.02, then after the occurrence and during any Funding
Default or Non-Funding Default, as the case may be, (a “Default Period”) with respect to such
Defaulting Lender, (A) upon the Administrative Agent providing written
consent (not to be unreasonably withheld) (x) in the case of a Class A
Revolving Lender, such Defaulting Lender’s Class A Revolving Commitment
and outstanding Class A Revolving Loans and such Defaulting Lender’s pro
rata share of the LC Disbursements (y) in the case of a Class B
Revolving Lender, such Defaulting Lender’s Class B Revolving Commitment
and outstanding Class B Revolving Loans and (z) in the case of a
Lender with a Delayed Draw Tranche B Commitment, such Defaulting Lender’s
Delayed Draw Tranche B Commitment, in each case shall, subject to clause (iv) below,
be excluded for purposes of calculating the Commitment Fee in respect of any
day during any Default Period with respect to such Defaulting Lender, and upon
the Administrative Agent providing written consent (not to be unreasonably
withheld), such Defaulting Lender shall not be entitled to receive any
Commitment Fee with respect to such Defaulting Lender’s Revolving Commitment or
Delayed Draw Tranche B Commitment in respect of any Defaulted Loan with respect
to such Defaulting Lender and (B) subject to clause (iv) below,
any portion of the Commitment Fee allocated to the Defaulting Lender shall be
held by Administrative Agent for the benefit of the Defaulting Lender and as security
(along with earnings, if any) for its obligations owed under this Agreement to
the Agents and the Lenders and when all such obligations (contingent and
otherwise) have been satisfied, any remainder shall be paid to Borrower.


 


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(ii)            If any Swingline Exposure or LC Exposure exists at
the time a Class A Revolving Lender becomes a Defaulting Lender, then (A) all
or any part of such Swingline Exposure and LC Exposure shall be reallocated
among the Class A Revolving Lenders that are not Defaulting Lenders in
accordance with their respective Pro Rata Percentages (disregarding the Class A
Revolving Commitment of a Class A Revolving Lender that is a Defaulting
Lender to the extent its Swingline Exposure or LC Exposure is reallocated to
the Class A Revolving Lenders that are not Defaulting Lenders) but only to
the extent the sum of all Revolving Exposures of all Class A Revolving
Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Swingline
Exposure and LC Exposure does not exceed the total of all Revolving Commitments
of Class A Revolving Lenders that are not Defaulting Lenders; (B) if
the reallocation described in clause (A) above cannot, or can only
partially, be effected, Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Defaulting Lender’s
Swingline Exposure and (y) second, cash collateralize such Defaulting
Lender’s LC Exposure (in each case, after giving effect to any partial
reallocation pursuant to clause (A) above) in accordance with the procedures
set forth in Section 2.18(i) for so long as such LC Exposure
is outstanding; (C) if any portion of such Defaulting Lender’s LC Exposure
is cash collateralized pursuant to clause (B) above, Borrower shall
not be required to pay the LC Participation Fee with respect to such portion of
such Defaulting Lender’s LC Exposure so long as it is cash collateralized; (D) if
any portion of such Defaulting Lender’s LC Exposure is reallocated to the Class A
Revolving Lenders that are not Defaulting Lenders pursuant to clause (A) above,
then the LC Participation Fee with respect to such portion shall be allocated
among the Class A Revolving Lenders that are not Defaulting Lenders in
accordance with their Pro Rata Percentages (disregarding the Class A Revolving
Commitment of a Class A Revolving Lender that is a Defaulting Lender to
the extent its Swingline Exposure or LC Exposure is reallocated to the Class A
Revolving Lenders that are not Defaulting Lenders); or (E) if any portion
of such Defaulting Lender’s LC Exposure is neither cash collateralized nor
reallocated pursuant to this Section 2.16(c)(ii), then, without
prejudice to any rights or remedies of the Issuing Bank or any Lender
hereunder, the LC Participation Fee payable with respect to such Defaulting
Lender’s LC Exposure shall be payable to the Issuing Bank until such LC
Exposure is cash collateralized and/or reallocated.


 


(iii)           So long as any Class A Revolving Lender is a
Defaulting Lender, the Swingline Lender shall not be required to fund any
Swingline Loan and the Issuing Bank shall not be required to issue, amend or
increase any Letter of Credit, unless it is satisfied that the related exposure
will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders
and/or cash collateralized in accordance with Section 2.16(c)(ii),
and participations in any such newly issued or increased Letter of Credit or
newly made Swingline Loan shall be allocated among Class A Revolving
Lenders that are not Defaulting Lenders in accordance with their respective Pro
Rata Percentages (disregarding the Class A Revolving Commitment of the Class A
Revolving Lender that is a Defaulting Lender to the extent its Swingline
Exposure or LC Exposure is reallocated to the Class A Revolving Lenders
that are not Defaulting Lenders)  and
Defaulting Lenders shall not participate therein.


 


(iv)           Any amount payable to such Class A Revolving
Lender that is a Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be
payable to such Defaulting Lender pursuant to Section 2.14(d) but
excluding Section 2.16(b)) may, in lieu of being distributed to
such Defaulting Lender, be 


 


75

















 


retained by the Administrative Agent in a
segregated non-interest bearing account and, subject to any applicable
Requirements of Law, be applied at such time or times as may be determined by
the Administrative Agent (1) first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder, (2) second,
pro rata, to the payment of any amounts owing by such Defaulting Lender to the
Issuing Bank or Swingline Lender hereunder, (3) third, to the
funding of any Loan or the funding or cash collateralization of any
participation in any Swingline Loan or Letter of Credit in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by
this Agreement, as determined by the Administrative Agent, (4) fourth,
if so determined by the Administrative Agent and Borrower, held in such account
as cash collateral for future funding obligations of the Defaulting Lender
under this Agreement, (5) fifth, pro rata, to the payment of any
amounts owing to Borrower or the Lenders as a result of any judgment of a court
of competent jurisdiction obtained by Borrower or any Lender against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement and (6) sixth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided
that if such payment is (x) a prepayment of the principal amount of any
Loans or Reimbursement Obligations in respect of LC Disbursements which a
Defaulting Lender has funded its participation obligations and (y) made at
a time when the conditions set forth in Section 4.02 are satisfied,
such payment shall be applied solely to prepay the Loans of, and Reimbursement
Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied
to the prepayment of any Loans, or Reimbursement Obligations owed to, any
Defaulting Lender.


 


(v)            In the event that the Administrative Agent, Borrower,
the Issuing Bank or the Swingline Lender each agrees that a Class A
Revolving Lender that is a Defaulting Lender has adequately remedied all
matters that caused such Lender to be a Defaulting Lender, then the Swingline
Exposure and LC Exposure of the Class A Revolving Lenders shall be
readjusted to reflect the inclusion of such Lender’s Commitment and on such
date such Lender shall purchase at par such of the Loans of the other Lenders
as the Administrative Agent shall determine may be necessary in order for such
Lender to hold such Loans in accordance with its Pro Rata Percentage.  The rights and remedies against a Defaulting
Lender under this Section 2.16 are in addition to other rights and
remedies that Borrower, the Administrative Agent, the Issuing Bank, the
Swingline Lender and the non-Defaulting Lenders may have against such
Defaulting Lender.  The arrangements
permitted or required by this Section 2.16(c) shall be
permitted under this Agreement, notwithstanding any limitation on Liens or the
pro rata sharing provisions or otherwise.


 


SECTION 2.17       Swingline Loans.


 


(a)           Swingline Commitment. 
Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to Borrower from time to time during the Class A
Revolving Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $5,000,000 or (ii) the sum of the
total Class A Revolving Exposures exceeding the total Class A
Revolving Commitments; provided that
the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. 
Within the 


 


76

















 


foregoing limits and
subject to the terms and conditions set forth herein, Borrower may borrow, repay
and reborrow Swingline Loans.


 


(b)           Swingline Loans. 
To request a Swingline Loan, Borrower shall deliver, by hand delivery or
telecopier or facsimile, a duly completed and executed Borrowing Request to the
Administrative Agent and the Swingline Lender, not later than 2:00 p.m.,
New York City time, on the day of a proposed Swingline Loan.  Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and the amount
of the requested Swingline Loan.  Each
Swingline Loan shall be an ABR Loan.  The
Swingline Lender shall make each Swingline Loan available to Borrower to an
account as directed by Borrower in the applicable Borrowing Request (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.18(e), by remittance to the
Issuing Bank) by 4:00 p.m., New York City time, on the requested date of
such Swingline Loan.  Borrower shall not
request a Swingline Loan if at the time of or immediately after giving effect
to the Credit Extension contemplated by such request a Default has occurred and
is continuing or would result therefrom. 
Swingline Loans shall be made in minimum amounts of $100,000 and
integral multiples of $100,000 above such amount.


 


(c)           Prepayment.  Borrower
shall have the right at any time and from time to time to repay any Swingline
Loan, in whole or in part, upon giving written notice to the Swingline Lender
and the Administrative Agent before 12:00 (noon), New York City time, on the
proposed date of repayment.


 


(d)           Participations. 
The Swingline Lender may at any time in its discretion by written notice
given to the Administrative Agent (provided such
notice requirement shall not apply if the Swingline Lender and the
Administrative Agent are the same entity) not later than 11:00 a.m., New
York City time, on the next succeeding Business Day following such notice require
the Class A Revolving Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans then outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Class A Revolving Lenders will
participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Class A
Revolving Lender, specifying in such notice such Lender’s Pro Rata Percentage
of such Swingline Loan or Loans.  Each Class A
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender’s Pro Rata Percentage of such Swingline
Loan or Loans.  Each Class A
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Class A Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever (so long as such payment shall not cause such Class A Revolving
Lender’s Class A Revolving Exposure to exceed such Lender’s Class A
Revolving Commitment).  Each Class A
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with
respect to Loans made by such Lender (and Section 2.02 shall apply,
mutatis mutandis, to the payment
obligations of the Class A Revolving Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the


 


77

















 


amounts so received
by it from the Class A Revolving Lenders. 
The Administrative Agent shall notify Borrower of any participations in
any Swingline Loan acquired by the Class A Revolving Lenders pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall
be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from Borrower (or another party on behalf of Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent.  Any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Class A Revolving Lenders that shall have made their payments pursuant
to this paragraph, as their interests may appear.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve Borrower of any default in
the payment thereof.


 


SECTION 2.18       Letters of Credit.


 


(a)           General.  Subject to
the terms and conditions set forth herein, Borrower may request the Issuing
Bank, and the Issuing Bank agrees, to issue Letters of Credit for its own
account or the account of a Restricted Subsidiary in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time from the Closing Date until 30 days prior to the Class A
Revolving Maturity Date (provided that
Borrower shall be a co-applicant, and be jointly and severally liable, with
respect to each Letter of Credit issued for the account of a Restricted
Subsidiary).  The Issuing Bank shall have
no obligation to issue, and Borrower shall not request the issuance of, any
Letter of Credit at any time if after giving effect to such issuance, the LC
Exposure would exceed the LC Commitment or the total Class A Revolving
Exposure would exceed the total Class A Revolving Commitments.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by Borrower to, or
entered into by Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.


 


(b)           Request for Issuance, Amendment, Renewal,
Extension; Certain Conditions and Notices.  To request
the issuance of a Letter of Credit or the amendment, renewal or extension of an
outstanding Letter of Credit, Borrower shall deliver, by hand or telecopier (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank on a case-by-case basis), an LC Request to the Issuing
Bank and the Administrative Agent not later than 11:00 a.m. (New York City
time) on the third Business Day preceding the requested date of issuance,
amendment, renewal or extension (or such later date and time as is acceptable
to the Issuing Bank).


 


A request for an
initial issuance of a Letter of Credit shall specify in form and detail satisfactory
to the Issuing Bank:


 


(i)           the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day);


 


(ii)          the amount
thereof;


 


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(iii)         the expiry date
thereof (which shall not be later than the close of business on the Letter of
Credit Expiration Date);


 


(iv)         the name and
address of the beneficiary thereof;


 


(v)          whether the
Letter of Credit is to be issued for its own account or for the account of one
of its Restricted Subsidiaries (provided that
Borrower shall be a co-applicant, and therefore jointly and severally liable,
with respect to each Letter of Credit issued for the account of a Restricted
Subsidiary);


 


(vi)         the documents
to be presented by such beneficiary in connection with any drawing thereunder;


 


(vii)        the full text
of any certificate to be presented by such beneficiary in connection with any
drawing thereunder; and


 


(viii)       such other
matters as the Issuing Bank may require.


 


A request for an
amendment, renewal or extension of any outstanding Letter of Credit shall specify
in form and detail satisfactory to the Issuing Bank:


 


(i)                                     the Letter of Credit to be amended,
renewed or extended;


 


(ii)                                  the proposed date of amendment, renewal
or extension thereof (which shall be a Business Day);


 


(iii)                               the nature of the proposed amendment,
renewal or extension; and


 


(iv)                              such other matters as the Issuing Bank
may require.


 


If requested by
the Issuing Bank, Borrower also shall submit a letter of credit application on
the Issuing Bank’s standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be issued,
amended, renewed or extended only if (and, upon issuance, amendment, renewal or
extension of each Letter of Credit, Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure shall not exceed the LC Commitment, (ii) the
total Class A Revolving Exposures shall not exceed the total Class A
Revolving Commitments and (iii) the conditions set forth in Article IV
in respect of such issuance, amendment, renewal or extension shall have been
satisfied.  Unless the Issuing Bank shall
agree otherwise, no Letter of Credit shall be in an initial amount less than
$100,000.


 


Upon the issuance
of any Letter of Credit or amendment, renewal, extension or modification to a
Letter of Credit, the Issuing Bank shall promptly notify the Administrative
Agent, who shall promptly notify each Class A Revolving Lender, thereof,
and of the amount of such Lender’s respective participation in such Letter of
Credit pursuant to Section 2.18(d). 
On the first Business Day of each calendar month, the Issuing Bank shall
provide to the Administrative Agent a report listing all outstanding Letters of
Credit and the amounts and beneficiaries 


 


79

















 


thereof.  The Administrative Agent shall promptly
notify each Class A Revolving Lender on the last Business Day of each
quarter of the current quarter’s Letter of Credit amount.


 


(c)           Expiration Date. 
Each Letter of Credit shall expire at or prior to the close of business
on the earlier of (x) the date which is one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (y) the Letter of
Credit Expiration Date; provided that notwithstanding the foregoing, Letters of Credit
may expire later than the Letter of Credit Expiration Date (but no later than
the Class A Revolving Maturity Date) provided that Borrower has
collateralized such Letters of Credit in an amount equal to 102% of the
aggregate amount available to be drawn under such Letters of Credit by the date
that is sixteen (16) days prior to the Class A Revolving Maturity Date on
terms and conditions reasonably satisfactory to the Issuing Bank, it being understood
that no Lender shall be released from any of its obligations to purchase
participations or make Loans in respect of such Letters of Credit until such
Letters of Credit shall have expired or been terminated.


 


(d)           Participations. 
By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the
part of the Issuing Bank or the Class A Revolving Lenders, the Issuing
Bank hereby irrevocably grants to each Class A Revolving Lender, and each Class A
Revolving Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Class A Revolving Lender’s Pro Rata
Percentage of the aggregate amount available to be drawn under such Letter of
Credit.  In consideration and in
furtherance of the foregoing, each Class A Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Class A Revolving Lender’s Pro Rata Percentage
of each LC Disbursement made by the Issuing Bank and not reimbursed by Borrower
on the date due as provided in Section 2.18(e), or of any
reimbursement payment required to be refunded to Borrower for any reason.  Each Class A Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, or
expiration, termination or cash collateralization of any Letter of Credit and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.  For the
avoidance of doubt, upon the Restatement Effective Date, the aggregate amount
of participations in Letters of Credit held by Class B Revolving Lenders
shall be deemed to be reallocated to the Class A Revolving Lenders so that
participation of the Class A Revolving Lenders in outstanding Letters of
Credit shall be in proportion to their respective Class A Revolving Commitments.


 


(e)           Reimbursement.


 


(i)           If the Issuing
Bank shall make any LC Disbursement in respect of a Letter of Credit, Borrower
shall reimburse such LC Disbursement by paying to the Issuing Bank an amount
equal to such LC Disbursement not later
than 3:00 p.m., New York City time, on the date that such LC Disbursement
is made if Borrower shall have received notice of such LC Disbursement prior to
11:00 a.m., New York City time, on such date, or, if such


 


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notice has not been received by Borrower prior to such
time on such date, then not later than 3:00 p.m., New York City time, on
the Business Day immediately following the day that Borrower receives such
notice; provided that Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section 2.03
that such payment be financed with Class A ABR Revolving Loans or
Swingline Loans in an equivalent amount and, to the extent so financed,
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting Class A ABR Revolving Loans or Swingline Loans.


 


(ii)          If Borrower fails to make such payment when due, the
Issuing Bank shall notify the Administrative Agent and the Administrative Agent
shall notify each Class A Revolving Lender of the applicable LC
Disbursement, the payment then due from Borrower in respect thereof and such Class A
Revolving Lender’s Pro Rata Percentage thereof. 
Each Class A Revolving Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than 2:00 p.m.,
New York City time, on such date (or, if such Class A Revolving Lender
shall have received such notice later than 12:00 noon, New York City time, on
any day, not later than 11:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Class A Revolving Lender’s
Pro Rata Percentage of the unreimbursed LC Disbursement in the same manner as
provided in Section 2.02(c) with respect to Revolving Loans
made by such Class A Revolving Lender, and the Administrative Agent will
promptly pay to the Issuing Bank the amounts so received by it from the Class A
Revolving Lenders.  The Administrative
Agent will promptly pay to the Issuing Bank any amounts received by it from Borrower
pursuant to the above paragraph prior to the time that any Class A
Revolving Lender makes any payment pursuant to the preceding sentence and any
such amounts received by the Administrative Agent from Borrower thereafter will
be promptly remitted by the Administrative Agent to the Class A Revolving
Lenders that shall have made such payments and to the Issuing Bank, as appropriate.


 


(iii)         If any Class A Revolving Lender shall not have
made its Pro Rata Percentage of such LC Disbursement available to the
Administrative Agent as provided above, each of such Class A Revolving
Lender and Borrower severally agrees to pay interest on such amount, for each
day from and including the date such amount is required to be paid in
accordance with the foregoing to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the
case of Borrower, the rate per annum set forth in Section 2.18(h) and
(ii) in the case of such Class A Revolving Lender, at a rate
determined by the Administrative Agent in accordance with banking industry rules or
practices on interbank compensation.


 


(f)            Obligations Absolute. 
To the maximum extent permitted by applicable law, the Reimbursement
Obligation of Borrower as provided in Section 2.18(e) shall be
absolute, unconditional and irrevocable, and shall be paid and performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or provision
therein; (ii) any draft or other document presented under a Letter of
Credit being proved to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue 


 


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or inaccurate in
any respect; (iii) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that fails to comply with the
terms of such Letter of Credit; (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section 2.18, constitute a legal or
equitable discharge of, or provide a right of setoff against, the obligations
of Borrower hereunder; (v) the fact that a Default shall have occurred and
be continuing; or (vi) any material adverse change in the business,
property, results of operations, prospects or condition, financial or
otherwise, of Borrower and its Restricted Subsidiaries.  To the maximum extent permitted by applicable
law, none of the Agents, the Class A Revolving Lenders, the Issuing Bank
or any of their Affiliates shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that
the foregoing shall not be construed to excuse the Issuing Bank from liability
to Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by Borrower to the extent
permitted by applicable Requirements of Law) suffered by Borrower that are
caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in each such
determination.  In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of
Credit.


 


(g)           Disbursement Procedures. 
The Issuing Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment under a Letter of
Credit.  The Issuing Bank shall promptly
give written notice to the Administrative Agent and Borrower of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or
delay in giving such notice shall not relieve Borrower of its Reimbursement
Obligation to the Issuing Bank and the Class A Revolving Lenders with
respect to any such LC Disbursement (other than with respect to the timing of
such Reimbursement Obligation set forth in Section 2.18(e)).


 


(h)           Interim Interest. 
If the Issuing Bank shall make any LC Disbursement, then, unless
Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest payable on demand, for
each day from and including the date such LC Disbursement is made to but excluding
the date that Borrower reimburses such LC Disbursement, at the rate per annum
determined pursuant to Section 2.06(c).  Interest accrued pursuant to this paragraph
shall be for the account of the Issuing 


 


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Bank, except that
interest accrued on and after the date of payment by any Class A Revolving
Lender pursuant to Section 2.18(e) to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.


 


(i)            Cash Collateralization. 
If any Event of Default shall occur and be continuing, on the Business
Day that Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders
with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, Borrower
shall deposit on terms and in accounts satisfactory to the Collateral Agent, in
the name of the Collateral Agent and for the benefit of the Class A
Revolving Lenders, an amount in cash equal to the LC Exposure as of such date
plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to Borrower described in Section 8.01(g) or (h).  Funds so deposited shall be applied by the Collateral
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of outstanding Reimbursement Obligations or, if the maturity of
the Loans has been accelerated (but subject to the consent of Class A
Revolving Lenders with LC Exposure representing greater than 50% of the total
LC Exposure), be applied to satisfy other Obligations of Borrower under this
Agreement.  If Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount plus any
accrued interest or realized profits with respect to such amounts (to the
extent not applied as aforesaid) shall be returned to Borrower within three
Business Days after all Events of Default have been cured or waived.


 


(j)            Additional Issuing Banks. 
Borrower may, at any time and from time to time, designate one or more
additional Class A Revolving Lenders to act as an issuing bank under the
terms of this Agreement, with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld), the Issuing Bank and such Class A
Revolving Lender(s).  Any Lender
designated as an issuing bank pursuant to this paragraph (j) shall be
deemed (in addition to being a Class A Revolving Lender) to be the Issuing
Bank with respect to Letters of Credit issued or to be issued by such Class A
Revolving Lender, and all references herein and in the other Loan Documents to
the term “Issuing Bank” shall, with respect to such Letters of Credit, be
deemed to refer to such Revolving Lender in its capacity as Issuing Bank, as
the context shall require.  Any Revolving
Lender designated as an issuing bank pursuant to this paragraph (j) shall
have all the rights and obligations of the Issuing Bank under the Loan
Documents with respect to Letters of Credit issued or to be issued by it, and all
references in the Loan Documents to the term “Issuing Bank” shall, with respect
to such Letters of Credit, be deemed to refer to such Revolving Lender in its
capacity as the Issuing Bank, as the context shall require.  The Administrative Agent shall notify the
Lenders of any such additional Issuing Bank. 
If at any time there is more than one Issuing Bank hereunder, Borrower
may, in its discretion, select which Issuing Bank is to issue any particular
Letter of Credit.


 


(k)           Resignation or Removal of the Issuing
Bank.  The Issuing Bank may resign as Issuing Bank
hereunder at any time upon at least 30 days’ prior notice to the Lenders,
the Administrative Agent and Borrower. 
The Issuing Bank may be replaced at any time by written 


 


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agreement among Borrower,
each Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the
Lenders of any such replacement of the Issuing Bank or any such additional
Issuing Bank.  At the time any such
resignation or replacement shall become effective, Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(c).  From and after the effective date of any such
resignation or replacement or addition, as applicable, (i) the successor
or additional Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
by it thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or such addition or to any previous
Issuing Bank, or to such successor or such addition and all previous Issuing
Banks, as the context shall require. 
After the resignation or replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such resignation or replacement, but
shall not be required to issue additional Letters of Credit.  If at any time there is more than one Issuing
Bank hereunder, Borrower may, in its discretion, select which Issuing Bank is
to issue any particular Letter of Credit.


 


(l)            Other.  The Issuing
Bank shall be under no obligation to issue any Letter of Credit if


 


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


 


(ii)          the issuance of such Letter of Credit would violate
one or more policies of the Issuing Bank.


 


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


 


SECTION 2.19       Increase in Commitments.


 


(a)           Borrower Request. 
Borrower may by written notice to the Administrative Agent elect to
request (x) prior to the Class A Revolving Maturity Date, an increase
to the existing Class A Revolving Commitments (each, an “Incremental Revolving Loan Commitment”) and/or (y) the
establishment of one or more new Term Loan Commitments (each, an “Incremental 


 


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Term Loan
Commitment”) by
an amount equal to $3,000,000 in the aggregate; provided, that after giving
effect to such increase, the aggregate amount of all Revolving Loans, Swingline
Loans, Letters of Credit and Revolving Commitments (without duplication) shall
not exceed $40,000,000; provided, further, that after giving effect to such
increase, the aggregate amount of all Loans and Commitments (without duplication)
shall not exceeed $97,950,000.  Each such
notice shall specify (i) the date (each, an “Increase
Effective Date”) on which Borrower proposes that the increased or
new Commitments shall be effective, which shall be a date not less than 10
Business Days after the date on which such notice is delivered to the Administrative
Agent and (ii) the identity of each Eligible Assignee to whom Borrower
proposes any portion of such increased or new Commitments be allocated and the
amounts of such allocations; provided that
any existing Lender approached to provide all or a portion of the increased or
new Commitments may elect or decline, in its sole discretion, to provide such increased
or new Commitment.


 


(b)           Conditions.  The increased
or new Commitments shall become effective, as of such Increase Effective Date; provided that:


 


(i)           each of the conditions set forth in Section 4.02
shall be satisfied;


 


(ii)          no Default shall have occurred and be continuing or
would result from the borrowings to be made on the Increase Effective Date;


 


(iii)         after giving pro forma effect to the borrowings to be
made on the Increase Effective Date and to any change in Consolidated EBITDA
and any increase in Indebtedness resulting from the consummation of any
Permitted Acquisition concurrently with such borrowings as of the date of the
most recent financial statements delivered pursuant to Section 5.01(a) or
(b), Borrower shall be in compliance with each of the covenants set
forth in Section 6.10;


 


(iv)         Borrower shall make any payments required pursuant to Section 2.13
in connection with any adjustment of Revolving Loans pursuant to Section 2.19(d);
and


 


(v)          Borrower shall deliver or cause to be delivered any
legal opinions or other documents reasonably requested by the Administrative Agent
in connection with any such transaction.


 


(c)           Terms of New Loans and Commitments. 
The terms and provisions of Loans made pursuant to the new Commitments
shall be as follows:


 


(i)           terms and provisions of Loans made pursuant to
Incremental Term Loan Commitments (“Incremental Term Loans”)
shall be, except as otherwise set forth herein or in the Increase Joinder,
identical to the Tranche B Loans (it being understood that Incremental Term
Loans may be a part of the Tranche B Loans);


 


(ii)          the weighted average life to maturity of any
Incremental Term Loans shall be no shorter than the weighted average life to
maturity of the existing Tranche B Loans;


 


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(iii)         the maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity Date”) shall not be earlier
than the Final Maturity Date;


 


(iv)         the Applicable Margins for the Incremental Term Loans
shall be determined by Borrower and the Lenders of the Incremental Term Loans; provided that in the event that the Applicable Margins for
any Incremental Term Loans are greater than the Applicable Margins for the
Tranche B Loans by more than 25 basis points, then the Applicable Margins for
the Tranche B Loans shall be increased to the extent necessary so that the
Applicable Margins for the Incremental Term Loans are equal to the Applicable
Margins for the Tranche B Loans plus 25 basis points; provided,
further, that in determining the
Applicable Margins applicable to the Tranche B Loans and the Incremental Term Loans,
(x) original issue discount (“OID”) or
upfront fees (which shall be deemed to constitute like amounts of OID) payable
by Borrower to the Lenders of the Tranche B Loans or the Incremental Term Loans
in the primary syndication thereof shall be included (with OID being equated to
interest based on an assumed four-year life to maturity) and (y) customary
arrangement or commitment fees payable to the Arranger (or its affiliates) in
connection with the Tranche B Loans or to one or more arrangers (or their affiliates)
of the Incremental Term Loans shall be excluded;


 


(v)          to the extent that the terms and provisions of
Incremental Term Loans are not identical to the Tranche B Loans (except to the
extent permitted by clause (iii) or (iv) above) they shall be reasonably
satisfactory to the Administrative Agent;


 


(vi)         any Loans made pursuant to Incremental Revolving Loan
Commitments (“Incremental Revolving Loans”)
shall be Class A Revolving Loans.


 


The increased or
new Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by Borrower, the Administrative
Agent and each Lender making such increased or new Commitment, in form and
substance satisfactory to each of them. 
The Increase Joinder may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section 2.19.  In addition, unless otherwise specifically
provided herein, all references in Loan Documents to Class A Revolving
Loans or Tranche B Loans shall be deemed, unless the context otherwise
requires, to include references to Revolving Loans made pursuant to Incremental
Revolving Loan Commitments and Incremental Term Loans that are Tranche B Term
Loans, respectively, made pursuant to this Agreement.


 


(d)           Adjustment of Revolving Loans. 
To the extent the Commitments being increased on the relevant Increase
Effective Date are Revolving Commitments, then each Revolving Lender that is
acquiring a new or additional Revolving Commitment on the Increase Effective
Date shall make a Revolving Loan, the proceeds of which will be used to prepay
the Revolving Loans of the other Revolving Lenders immediately prior to such
Increase Effective Date, so that, after giving effect thereto, the Revolving
Loans outstanding are held by the Revolving Lenders pro rata based on their
Revolving Commitments after giving effect to such Increase Effective Date.  If there is a new borrowing of Revolving
Loans on such Increase Effective Date, 


 


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the Revolving
Lenders after giving effect to such Increase Effective Date shall make such Revolving
Loans in accordance with Section 2.01(b).


 


(e)           Making of New Term Loans. 
On any Increase Effective Date on which new Commitments for Term Loans
are effective, subject to the satisfaction of the foregoing terms and
conditions, each Lender of such new Commitment shall make a Term Loan to Borrower
in an amount equal to its new Commitment.


 


(f)            Equal and Ratable Benefit. 
The Loans and Commitments established pursuant to this paragraph shall
constitute Loans and Commitments under, and shall be entitled to all the
benefits afforded by, this Agreement and the other Loan Documents, and shall,
without limiting the foregoing, benefit equally and ratably from the Guarantees
and security interests created by the Security Documents.  The Loan Parties shall take any actions
reasonably required by the Administrative Agent to ensure and/or demonstrate
that the Lien and security interests granted by the Security Documents continue
to be perfected under the UCC or otherwise after giving effect to the
establishment of any such Class of Term Loans or any such new Commitments.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


Borrower
represents and warrants to the Administrative Agent, the Collateral Agent, the
Issuing Bank and each of the Lenders (with references to the Companies as of
the Closing Date being references thereto after giving effect to the Gameco
Acquisition unless otherwise expressly stated) on the Closing Date (it being
understood that the Transactions and the Additional Transactions shall not be
consummated until on or after the Closing Date) and, except as otherwise stated
to be as of a different date, as of the date of each Credit Extension
(including the Closing Date) that:


 


SECTION 3.01       Organization; Powers. 
Each of Borrower and the Restricted Subsidiaries (a) is duly
organized and validly existing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its
business as now conducted and to own and lease its property and (c) is
qualified and in good standing (to the extent such concept is applicable in the
applicable jurisdiction) to do business in every jurisdiction where such qualification
is required, except in such jurisdictions where the failure to so qualify or be
in good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  There is no existing default under any
Organizational Document of Borrower or any of its Restricted Subsidiaries or
any event which, with the giving of notice or passage of time or both, would
constitute a default by any party thereunder.


 


SECTION 3.02       Authorization; Enforceability. 
The Transactions, the Additional Transactions and the Restatement
Transactions to be entered into by each Loan Party are within such Loan Party’s
powers and have been duly authorized by all necessary action on the part of
such Loan Party.  Each Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable in accordance with its terms, subject to applicable 


 


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bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.


 


SECTION 3.03       No Conflicts.  Except as set
forth on Schedule 3.03, the Transactions, the Additional
Transactions and the Restatement Transactions (a) do not require any consent
or approval of, registration or filing with, or any other action by, any
Governmental Authority (including Gaming Authorities), except (i) such as
have been obtained or made and are in full force and effect, (ii) filings
necessary to perfect Liens created by the Loan Documents and (iii) consents,
approvals, registrations, filings, permits or actions the failure to obtain or
perform which could not reasonably be expected to result in a Material Adverse
Effect, (b) will not violate the Organizational Documents of Borrower or
any of its Restricted Subsidiaries, (c) will not violate any Requirement
of Law, (d) will not violate or result in a default or require any consent
or approval under any indenture, agreement or other instrument binding upon
Borrower or any of its Restricted Subsidiaries or its property, or give rise to
a right thereunder to require any payment to be made by Borrower or any of its
Restricted Subsidiaries, except for violations, defaults or the creation of
such rights that could not reasonably be expected to result in a Material Adverse
Effect, and (e) will not result in the creation or imposition of any Lien
on any property of any Loan Party, except Liens created by the Loan Documents
and Permitted Liens.


 


SECTION 3.04       Financial Statements; Projections.


 


(a)           Historical Financial Statements. 
Borrower has delivered to the Lenders the consolidated balance sheets
and related statements of operations, stockholders’ equity and cash flows of
Borrower (i) as of and for the fiscal years ended December 31, 2005,
2004 and 2003, audited by and accompanied by the unqualified opinion of
Deloitte & Touche LLP, independent registered public accountants, and (ii) as
of and for the three-month period ended March 31, 2006 and for the
comparable period of the preceding fiscal year, in each case, certified by the
chief financial officer of Borrower. 
Such financial statements and all financial statements delivered
pursuant to Sections 5.01(a), (b) and (c) have
been prepared in accordance with GAAP and present fairly and accurately in all
material respects the financial condition and results of operations and cash
flows of Borrower as of the dates and for the periods to which they relate.


 


(b)           No Liabilities. 
Except as set forth in the financial statements referred to in Section 3.04(a),
there are no liabilities of any Company of any kind, whether accrued, contingent,
absolute, determined, determinable or otherwise, which could reasonably be
expected to result in a Material Adverse Effect, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability, other than liabilities under the Loan Documents
and the Senior Note Documents.  Since December 31,
2005, there has been no event, change, circumstance or occurrence that, individually
or in the aggregate, has had or could reasonably be expected to result in a
Material Adverse Effect (other than any such event, change, circumstance or
occurrence that the Required Revolving Lenders or the Required Delayed Draw
Tranche B Lenders, as applicable have duly waived).


 


(c)           Pro Forma Financial Statements. 
Borrower has delivered to the Lenders Borrower’s unaudited pro forma consolidated balance sheet and statements of
operations and


 


88

















 


cash flows and pro forma EBITDA, for the fiscal year ended December 31,
2005, and as of and for the three-month period ended March 31, 2006, in
each case after giving effect to the Transactions and the Additional
Transactions as if they had occurred on such date in the case of the balance
sheet and as of the beginning of all periods presented in the case of the
statements of operations and cash flows. 
Such pro forma financial statements have been
prepared in good faith by the Loan Parties, based on the assumptions stated
therein (which assumptions are believed by the Loan Parties on the Closing Date
to be reasonable), are based on the best information available to the Loan
Parties as of the date of delivery thereof, accurately reflect all adjustments
required to be made to give effect to the Transactions and the Additional
Transactions, and in accordance with Regulation S-X, and present fairly in all
material respects the pro forma
consolidated financial position and results of operations of Borrower as of
such date and for such periods, assuming that the Transactions and the
Additional Transactions had occurred at such dates.


 


(d)           Forecasts.  The forecasts
of financial performance of Borrower and its subsidiaries furnished to the
Lenders have been prepared in good faith by Borrower and based on assumptions
believed by Borrower to be reasonable.


 


SECTION 3.05       Properties.


 


(a)           Generally.  Each Company
has good title to, or valid leasehold interests in, all its property material
to its business, free and clear of all Liens except for, in the case of Collateral,
Permitted Liens and, in the case of all other material property, Permitted
Liens and minor irregularities or deficiencies in title that, in the aggregate,
do not interfere with its ability to conduct its business as currently
conducted or to utilize such property for its intended purpose.  The property of the Companies, taken as a
whole, (i) is in good operating order, condition and repair (ordinary wear
and tear and casualty and condemnation excepted with respect to which the Administrative
Agent has been made aware) and (ii) constitutes all the property which is
required for the business and operations of the Companies as presently conducted.


 


(b)           Real Property.  Schedules
8(a) and 8(b) to the Perfection Certificate dated the
Closing Date contain a true and complete list of each interest in Real Property
(i) owned by any Company as of the Closing Date and describes the type of
interest therein held by such Company and whether such owned Real Property is
leased and if leased whether the underlying Lease contains any option to
purchase all or any portion of such Real Property or any interest therein or
contains any right of first refusal relating to any sale of such Real Property
or any portion thereof or interest therein and (ii) leased, subleased or
otherwise occupied or utilized by any Company, as lessee, sublessee, franchisee
or licensee, as of the Closing Date and describes the type of interest therein
held by such Company and, in each of the cases described in clauses (i) and
(ii) of this Section 3.05(b), whether any Lease requires the
consent of the landlord or tenant thereunder, or other party thereto, to the
Transactions.  Schedule 8(b) to
the Perfection Certificate also lists each unexercised option to purchase Real
Property which option is owned by any Company.


 


(c)           No Casualty Event. 
No Company has received any notice of, nor has any actual or
constructive knowledge of, the occurrence or pendency or contemplation of any
Casualty Event affecting all or any portion of its property.  No mortgage encumbers improved Real 


 


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Property that is
located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards within the meaning of
the National Flood Insurance Act of 1968 unless flood insurance available under
such Act has been obtained in accordance with Section 5.04.


 


(d)           Collateral.  Each Loan
Party owns or has rights to use all of the Collateral and all rights with
respect to any of the foregoing used in, necessary for or material to such Loan
Party’s business as currently conducted. 
The use by such Loan Party of such Collateral and all such rights with
respect to the foregoing do not infringe on the rights of any person other than
such infringement which could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.  To the actual or constructive knowledge of
the Loan Parties, no claim has been made and remains outstanding that any Loan
Parties’ use of any Collateral does or may violate the rights of any third
party that could, individually or in the aggregate with other such claims,
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 3.06       Intellectual Property.


 


(a)           Ownership/No Claims. 
Each Loan Party owns, or is licensed to use, all patents, patent
applications, trademarks, trade names, service marks, copyrights, technology,
trade secrets, proprietary information, domain names, know-how and processes
necessary for the conduct of its business as currently conducted (the “Intellectual Property”), except for those the failure to own
or license which, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. 
To the actual or constructive knowledge of the Loan Parties, no claim
has been asserted and is pending by any person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does Borrower know of any valid basis for any
such claim.  The use of such Intellectual
Property by each Loan Party does not infringe the rights of any person, except
for such claims and infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.


 


(b)           Registrations. 
Except pursuant to licenses and other user agreements entered into by
each Loan Party in the ordinary course of business that are listed in Schedule
12(a) or 12(b) to the Perfection Certificate, on and as of
the Closing Date (i) each Loan Party owns and possesses the right to use,
and has done nothing to authorize or enable any other person to use, any
copyright, patent or trademark (as such terms are defined in the Security
Agreement) listed in Schedule 12(a) or 12(b) to the
Perfection Certificate and (ii) all registrations listed in Schedule 12(a) or
12(b) to the Perfection Certificate are valid and in full force and
effect.


 


(c)           No Violations or Proceedings. 
To Borrower’s knowledge, on and as of the Closing Date, there is no
material violation by others of any right of any Loan Party with respect to any
copyright, patent or trademark listed in Schedule 12(a) or 12(b) to
the Perfection Certificate pledged by it under the name of any Loan Party.


 


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SECTION 3.07       Equity Interests and Subsidiaries.


 


(a)           Equity Interests.  Schedules
1(a) and 10(a) to the Perfection Certificate dated the
Closing Date set forth a list of (i) all the Subsidiaries of Borrower and
their jurisdictions of organization as of the Closing Date and (ii) the
number of each class of its Equity Interests authorized, and the number
outstanding, on the Closing Date and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the Closing Date.  All Equity
Interests of each Company are duly and validly issued and are fully paid and
non-assessable, and, other than the Equity Interests of Borrower, are owned by
Borrower, directly or indirectly through Wholly Owned Restricted Subsidiaries.  Each Loan Party is the record and beneficial
owner of, and has good and marketable title to, the Equity Interests pledged by
it under the Security Agreement, free of any and all Liens, rights or claims of
other persons, except the security interest created by the Security Agreement
and Permitted Liens, and there are no outstanding warrants, options or other
rights to purchase, or shareholder, voting trust or similar agreements
outstanding with respect to, or property that is convertible into, or that requires
the issuance or sale of, any such Equity Interests.


 


(b)           No Consent of Third Parties Required. 
Except as set forth on Schedule 3.07(b), no consent of any person
including any other general or limited partner, any other member of a limited liability
company, any other shareholder or any other trust beneficiary is necessary or
reasonably desirable (from the perspective of a secured party) in connection
with the creation, perfection or first priority status of the security interest
of the Collateral Agent in any Equity Interests pledged to the Collateral Agent
for the benefit of the Secured Parties under the Security Agreement or the
exercise by the Collateral Agent of the voting or other rights provided for in
the Security Agreement or the exercise of remedies in respect thereof.


 


(c)           Organizational Chart. 
An accurate organizational chart, showing the ownership structure of
Borrower and each Subsidiary on the Closing Date, and after giving effect to
the Transactions, is set forth on Schedule 10(a) to the Perfection
Certificate dated the Closing Date.


 


SECTION 3.08       Litigation; Compliance with Laws. 
There are no actions, suits or proceedings at law or in equity by or
before any Governmental Authority now pending or, to the knowledge of any Loan Party,
threatened against or affecting any Company or any business, property or rights
of any Company (i) that involve any Loan Document or any of the Transactions,
Additional Transactions or Restatement Transactions or (ii) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, in the aggregate, to result
in a Material Adverse Effect.  Except for
matters covered by Section 3.18, no Company or any of its property
is in violation of, nor will the continued operation of its property as
currently conducted violate, any Requirements of Law (including any zoning or
building ordinance, code or approval or any building permits) or any restrictions
of record or agreements affecting any Company’s Real Property or is in default
with respect to any Requirement of Law, where such violation or default,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.


 


SECTION 3.09       Agreements.  No Company is
in default in any manner under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other agreement or
instrument to which it is a party or by which it or any of its property is or
may be bound, where such default could reasonably be expected to result in a
Material 


 


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Adverse Effect, and no condition exists which, with
the giving of notice or the lapse of time or both, would constitute such a
default.  Schedule 3.09
accurately and completely lists all agreements that are material to Borrower
and its Subsidiaries taken as a whole (other than leases of Real Property set
forth on Schedule 8(a) or 8(b) to the Perfection
Certificate dated the Closing Date and documents related to the Existing Notes)
to which any Company is a party which are in effect on the Closing Date in connection
with the operation of the business conducted thereby and as of the Closing
Date, Borrower has delivered to the Administrative Agent complete and correct
copies of all such material agreements, including any amendments, supplements
or modifications with respect thereto, and all such agreements are in full
force and effect.


 


SECTION 3.10       Federal Reserve Regulations. 
No Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.  No part of the
proceeds of any Loan or any Letter of Credit will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the regulations of the Board, including Regulation T, U or
X.  The pledge of the Securities Collateral
pursuant to the Security Agreement does not violate such regulations.


 


SECTION 3.11       Investment Company Act. 
No Company is an “investment company” or a company “controlled” by an “investment
company,” as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended.


 


SECTION 3.12       Use of Proceeds.  Borrower will
use the proceeds of (a) the Initial Tranche B Loans and the net cash
proceeds from the Senior Notes to finance the Transactions and the Additional
Transactions and pay related premiums, fees and expenses, (b) the Revolving
Loans and Swingline Loans after the Closing Date for general corporate purposes
(including working capital, Capital Expenditures, Investments and to effect
Permitted Acquisitions) and (c) the Delayed Draw Tranche B Loans to make
Expansion Capital Expenditures.


 


SECTION 3.13       Taxes.  Each Company
has (a) timely filed or caused to be timely filed all federal Tax Returns
and all material state, local and foreign Tax Returns or materials required to
have been filed by it and all such Tax Returns are true and correct in all
material respects and (b) duly and timely paid, collected or remitted or
caused to be duly and timely paid, collected or remitted all Taxes (whether or
not shown on any Tax Return) due and payable, collectible or remittable by it
and all assessments received by it, except Taxes (i) that are being contested
in good faith by appropriate proceedings and for which such Company has set
aside on its books adequate reserves in accordance with GAAP and (ii) the
nonpayment of which could not, in the aggregate, have a Material Adverse
Effect.  Each Company has made adequate
provision in accordance with GAAP for all Taxes not yet due and payable.  Each Company is unaware of any proposed or
pending tax assessments, deficiencies or audits that could be reasonably expected
to, in the aggregate, result in a Material Adverse Effect.  No Loan Party has ever “participated” in an
undisclosed “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4,
except as could not be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Effect.


 


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SECTION 3.14       No Material Misstatements. 
No information, report, financial statement, certificate, Borrowing
Request, LC Request, exhibit or schedule furnished by any Company to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto, taken as a
whole, or the Confidential Information Memorandum contained or contains any
material misstatement of fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading as of the date such
information is dated or certified; provided that
to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, Borrower
represents only that it acted in good faith and utilized reasonable assumptions
it believed to be reasonable at the time of the preparation of such
information, report, financial statement, exhibit or schedule, and that the
actual results during the period or periods covered by such forecast or
projection may differ from the projected or forecasted results.


 


SECTION 3.15       Labor Matters.  As of the
Closing Date, there are no strikes, lockouts or slowdowns against any Company
pending or, to the knowledge of any Company, threatened.  The hours worked by and payments made to
employees of any Company have not been in violation of the Fair Labor Standards
Act of 1938, as amended, or any other applicable federal, state, local or
foreign law dealing with such matters in any manner which could reasonably be
expected to result in a Material Adverse Effect.  All payments due from any Company, or for
which any claim may be made against any Company, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of such Company except where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.  The consummation of the Transactions will not
give rise to any right of termination or right of renegotiation on the part of
any union under any collective bargaining agreement to which any Company is
bound.


 


SECTION 3.16       Solvency.  Immediately
after the consummation of the Transactions and the Additional Transactions to
occur on the Closing Date and immediately following the making of each Loan and
after giving effect to the application of the proceeds of each Loan, (a) the
fair value of the properties of each Loan Party (individually and on a
consolidated basis with its Subsidiaries after giving effect to all rights of
contribution) will exceed its debts and liabilities, subordinated, contingent
or otherwise; (b) the present fair saleable value of the property of each
Loan Party (individually and on a consolidated basis with its Subsidiaries after
giving effect to all rights of contribution) will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party (individually
and on a consolidated basis with its Subsidiaries after giving effect to all
rights of contribution) will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) each Loan Party (individually and on a
consolidated basis with its Subsidiaries after giving effect to all rights of
contribution) will not have unreasonably small capital with which to conduct
its business in which it is engaged as such business is conducted at such time
and is proposed to be conducted following such time.


 


SECTION 3.17       Employee Benefit Plans. 
Each Company and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and 


 


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the Code and the regulations and published
interpretations thereunder with respect to each Employee Benefit Plan.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of any Company or
any of its ERISA Affiliates or the imposition of a Lien on any of the property
of any Company.  The present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $1,000,000 the fair market value of the property
of all such underfunded Plans.  Using
actuarial assumptions and computation methods consistent with subpart I of
subtitle E of Title IV of ERISA, the aggregate liabilities of each Company or its
ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such
Multiemployer Plan, could not reasonably be expected to result in a Material Adverse
Effect.


 


SECTION 3.18       Environmental Matters.


 


(a)           Except as, individually or in the
aggregate, could not reasonably be expected to result in loss, liability or
expense to any Loan Party in excess of $5,000,000:


 


(i)           The Companies
and their businesses, operations and Real Property are in compliance with, and
the Companies have no liability under, any applicable Environmental Law; and
under the currently effective business plan of the Companies, no expenditures
(other than expenditures for ongoing registration, tank testing, waste water
permits and related testing, tank permits and environmental monitoring
associated with routine business operations at all Company locations) or
operational adjustments will be required in order to comply with applicable
Environmental Laws during the next five years;


 


(ii)          The Companies
have obtained all Environmental Permits required for the conduct of their
businesses and operations, and the ownership, operation and use of their
property, under Environmental Law, all such Environmental Permits are valid and
in good standing and, under the currently effective business plan of the
Companies, no expenditures (other than expenditures for ongoing registration,
tank testing, waste water permits and related testing, tank permits and
environmental monitoring associated with routine business operations at all Company
locations) or operational adjustments will be required in order to renew or
modify such Environmental Permits during the next five years;


 


(iii)         There has been
no Release or threatened Release of Hazardous Material on, at, under or from
any Real Property or facility presently or formerly owned, leased or operated
by the Companies or their predecessors in interest that is likely to result in
liability to the Companies under any applicable Environmental Law;


 


(iv)         There is no
Environmental Claim pending or, to the knowledge of the Companies, threatened
against the Companies, or relating to the Real Property currently or formerly
owned, leased or operated by the Companies or their predecessors in interest or
relating to the operations of the Companies, and to the knowledge of the Loan
Parties,


 


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there are no actions, activities, circumstances, conditions, events or
incidents that could form the basis of such an Environmental Claim; and


 


(v)          No person with
an indemnity or contribution obligation to the Companies relating to compliance
with or liability under Environmental Law is in default with respect to such
obligation.


 


(b)


 


(i)           No Company is
obligated to perform any action or otherwise incur any material expense under
Environmental Law pursuant to any order, decree, judgment or agreement by which
it is bound or which it has assumed by contract, agreement or operation of law,
and no Company is conducting or financing any material Response pursuant to any
Environmental Law with respect to any Real Property or any other location;


 


(ii)          No Real
Property or facility owned, operated or leased by the Companies and, to the
knowledge of the Companies, no Real Property or facility formerly owned, operated
or leased by the Companies or any of their predecessors in interest is (i) listed
or proposed for listing on the National Priorities List promulgated pursuant to
CERCLA or (ii) listed on the Comprehensive Environmental Response,
Compensation and Liability Information System promulgated pursuant to CERCLA or
(iii) to the knowledge of the Loan Parties, included on any similar list
maintained by any Governmental Authority including any such list relating to petroleum,
in each case which is likely to result in material liability to the Companies
under Environmental Law;


 


(iii)         No Lien has
been recorded or, to the knowledge of any Company, threatened under any
Environmental Law with respect to any Real Property or other assets of the Companies;


 


(iv)         The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not require any notification, registration,
filing, reporting, disclosure, investigation, remediation or cleanup pursuant
to any Governmental Real Property Disclosure Requirements or any other
applicable Environmental Law; and


 


(v)          The Companies
have made available to the Lenders all material records and files in the
possession, custody or control of, or otherwise reasonably available to, the
Companies concerning compliance with or liability under Environmental Law,
including those concerning the actual or suspected existence of Hazardous
Material at Real Property or facilities currently or formerly owned, operated,
leased or used by the Companies.


 


SECTION 3.19       Insurance.  Schedule 3.19
sets forth a true, complete and correct description of all insurance maintained
by each Company as of the Closing Date. 
All insurance maintained by the Companies is in full force and effect,
all premiums that are due and payable have been duly paid, no Company has
received notice of violation or cancellation thereof, the Premises, and the
use, occupancy and operation thereof, comply in all material respects with all
Insurance Requirements, and there exists no default under any Insurance Requirement.  


 


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Each Company has insurance in such amounts and
covering such risks and liabilities as are customary for companies of a similar
size engaged in similar businesses in similar locations.


 


SECTION 3.20       Security Documents.


 


(a)           Security Agreement. 
The Security Agreement, when executed and delivered by the parties
thereto on the Closing Date, will be effective to create in favor of the Collateral
Agent for the benefit of the Secured Parties, legal, valid and enforceable
Liens on, and security interests in, the Security Agreement Collateral and,
when (i) financing statements and other filings in appropriate form are
filed in the offices specified on Schedule 7 to the Perfection Certificate
and (ii) upon the taking of possession or control by the Collateral Agent
of the Security Agreement Collateral with respect to which a security interest
may be perfected only by possession or control (which possession or control
shall be given to the Collateral Agent to the extent possession or control by
the Collateral Agent is required by each Security Agreement), the Liens created
by the Security Agreement shall constitute fully perfected Liens on, and
security interests in, all right, title and interest of the grantors in the
Security Agreement Collateral (other than such Security Agreement Collateral in
which a security interest cannot be perfected under the UCC as in effect at the
relevant time in the relevant jurisdiction), in each case subject to no Liens
other than Permitted Liens.


 


(b)           Mortgages.  Each
Mortgage, upon execution and delivery by the parties thereto on the Closing
Date, will be effective to create, in favor of the Collateral Agent, for its
benefit and the benefit of the Secured Parties, legal, valid and enforceable
Liens on, and security interests in, all of the Loan Parties’ right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds
thereof, subject only to Permitted Liens or other Liens acceptable to the
Collateral Agent.  When the Mortgages are
filed in the offices specified on Schedule 8(a) to the
Perfection Certificate dated the Closing Date (or, in the case of any Mortgage
executed and delivered after the date thereof in accordance with the provisions
of Sections 5.11 and 5.12, when such Mortgage is filed in
the offices specified in the local counsel opinion delivered with respect
thereto in accordance with the provisions of Sections 5.11 and 5.12),
the Mortgages shall constitute fully perfected first priority Liens on, and
security interests in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, in each case prior and superior
in right to Liens of any other person, other than Liens permitted by such Mortgage.


 


(c)           Pledge Agreements. 
Each Pledge Agreement, when executed and delivered by the Loan Parties
party thereto, will be effective to create, in favor of the Collateral Agent
for the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and security interests in, all of the Equity Interests and other Collateral
pledged thereby and, when (i) financing statements and other filings in
appropriate form are filed in the offices specified on Schedule 7
to the Perfection Certificate and (ii) upon the taking of possession by
the Collateral Agent of the Equity Interests pledged thereby, the Liens created
by the Pledge Agreement shall constitute fully perfected Liens on, and security
interests in, all right, title and interest of the grantors in the applicable
Collateral (other than such Collateral in which a security interest cannot be
perfected under the UCC as in effect at the relevant time in the relevant jurisdiction),
in each case subject to no Liens other than Permitted Liens.


 


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(d)           Valid Liens. 
Each Security Document delivered pursuant to Sections 5.11
and 5.12 will, upon execution and delivery thereof, be effective to create
in favor of the Collateral Agent, for the benefit of the Secured Parties,
legal, valid and enforceable Liens on, and security interests in, all of the
Loan Parties’ right, title and interest in and to the Collateral thereunder,
and (i) when all appropriate filings or recordings are made in the
appropriate offices as may be required under applicable law and (ii) upon
the taking of possession or control by the Collateral Agent of such Collateral
with respect to which a security interest may be perfected only by possession
or control (which possession or control shall be given to the Collateral Agent
to the extent required by any Security Document), the Liens created by such
Security Document will constitute fully perfected Liens on, and security
interests in, all right, title and interest of the Loan Parties in such
Collateral, in each case subject to no Liens other than the applicable Permitted
Liens.


 


SECTION 3.21       Acquisition Documents; Representations and Warranties
in Acquisition Agreements.  The Lenders
have been furnished true and complete copies of each Acquisition Agreement to
the extent executed and delivered on or prior to the Closing Date.  All representations and warranties of each
Loan Party set forth in such Acquisition Agreements were true and correct in
all material respects as of the time such representations and warranties were
made and shall be true and correct in all material respects as of the Closing
Date as if such representations and warranties were made on and as of such
date, 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.


 


SECTION 3.22       Anti-Terrorism Law.


 


(a)           No Loan Party and, to the knowledge of
Borrower, none of their respective Affiliates is in violation of any
Requirement of Law relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Public Law 107-56.


 


(b)           No Loan Party and to the knowledge of
Borrower, no Affiliate or broker or other agent of any Loan Party acting or
benefiting in any capacity in connection with the Loans is any of the following:


 


(i)            a person that
is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order;


 


(ii)           a person owned
or controlled by, or acting for or on behalf of, any person that is listed in
the annex to, or is otherwise subject to the provisions of, the Executive
Order;


 


(iii)          a person with
which any Lender is prohibited from dealing or otherwise engaging in any transaction
by any Anti-Terrorism Law;


 


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(iv)          a person that
commits, threatens or conspires to commit or supports “terrorism” as defined in
the Executive Order; or


 


(v)           a person that
is named as a “specially designated national and blocked person” on the most
current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any
replacement website or other replacement official publication of such list.


 


(c)           No Loan Party and, to the knowledge of
Borrower, no broker or other agent of any Loan Party acting in any capacity in
connection with the Loans (i) conducts any business or engages in making
or receiving any contribution of funds, goods or services to or for the benefit
of any person described in paragraph (b) above, (ii) deals in,
or otherwise engages in any transaction relating to, any property or interests
in property blocked pursuant to the Executive Order, or (iii) engages in
or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.


 


SECTION 3.23       Licenses and Permits.


 


(a)           (i) All material licenses (including
all necessary Gaming Licenses), permits and consents and similar rights
required from any federal, state or local governmental body (including the
Gaming Authorities and Liquor Authorities) for the ownership, use or operation
of the businesses or properties now owned or operated by Borrower or any of its
Restricted Subsidiaries have been validly issued and are in full force and
effect; (ii) Borrower and each of its Restricted Subsidiaries is in
compliance, in all material respects, with all of the provisions thereof
applicable to it; and (iii) none of such licenses, permits or consents is
the subject of any pending or, to Borrower’s knowledge, threatened proceeding
for the revocation, cancellation, suspension or non-renewal thereof.  As of the Closing Date (and as of each
subsequent date on which Borrower delivers to the Administrative Agent an
updated schedule pursuant to Section 5.16), set forth on Schedule
3.23 is a complete and accurate list of all such material licenses, permits
and consents that are necessary and appropriate for the operation of Borrower’s
businesses and the businesses of its Restricted Subsidiaries, and such schedule
identifies the date by which an application for the renewal of such license,
permit or consent must be filed and describes the status of each such pending
application.


 


(b)           Borrower and its Restricted Subsidiaries
have obtained as of the Closing Date all required approvals from the
Gaming Authorities and Liquor Authorities of the transactions contemplated
hereby and by the other Loan Documents.


 


SECTION 3.24       Projects; Construction Contracts.  Schedule
3.24 is a true and complete description of each Project affecting any Real
Property owned, leased, subleased or otherwise occupied or utilized by any
Company as of the Closing Date.  Schedule
3.24 is a true and complete list of each Construction Contract as of the
Closing Date and, as of the Closing Date, Borrower has delivered to
Administrative Agent complete and correct copies of all such Construction
Contracts (together with all Plans and Specifications relating thereto),
including all 


 


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amendments, supplements or modifications with respect
thereto, and all such Construction Contracts are in full force and effect.


 


ARTICLE IV


 


CONDITIONS TO CREDIT EXTENSIONS


 


SECTION 4.01       Conditions to Initial Credit Extension. 
The obligation of each Lender and, if applicable, each Issuing Bank to
fund the initial Credit Extension requested to be made by it was subject to the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Section 4.01.


 


(a)           Loan Documents. 
All legal matters incident to this Agreement, the Credit Extensions
hereunder and the other Loan Documents shall be satisfactory to the Lenders, to
the Issuing Bank and to the Administrative Agent and there shall have been
delivered to the Administrative Agent an executed counterpart of each of the
Loan Documents and the Perfection Certificate.


 


(b)           Corporate Documents. 
The Administrative Agent shall have received:


 


(i)           a certificate
of the secretary or assistant secretary of each Loan Party dated the Closing
Date, certifying (A) that attached thereto is a true and complete copy of
each Organizational Document of such Loan Party certified (to the extent
applicable) as of a recent date by the Secretary of State of the state of its
organization, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Loan Party
authorizing the execution, delivery and performance of the Loan Documents to
which such person is a party and, in the case of Borrower, the borrowings hereunder,
and that such resolutions have not been modified, rescinded or amended and are
in full force and effect and (C) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party (together with a
certificate of another officer as to the incumbency and specimen signature of
the secretary or assistant secretary executing the certificate in this
clause (i));


 


(ii)          a certificate
as to the good standing of each Loan Party (in so-called “long-form” if
available) as of a recent date, from such Secretary of State (or other
applicable Governmental Authority); and


 


(iii)         such other
documents as the Lenders, the Issuing Bank or the Administrative Agent may
reasonably request.


 


(c)           Officers’ Certificate. 
The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief financial
officer of Borrower, confirming compliance with the conditions precedent set
forth in this Section 4.01 and Sections 4.02(b), (c) and
(d).


 


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(d)           Financings and Other Transactions, etc.


 


(i)           The Transactions shall have been consummated or shall
be consummated simultaneously on the Closing Date, in each case in all material
respects in accordance with the terms hereof and the terms of the Transaction
Documents, without the waiver or amendment of any such terms not approved by
the Administrative Agent and the Arrangers other than any waiver or amendment
thereof that is not materially adverse to the interests of the Lenders;
provided that (x) with respect to the Existing Notes Redemption, only the
delivery of the Existing Notes Redemption Notice and the deposit of funds with
the trustee under and pursuant to the terms of the indenture governing the
Existing Notes is required on the Closing Date and (y) the Pinon
Acquisition and the TPSH Acquisition may be consummated after the Closing Date.


 


(ii)          Borrower shall
have received not less than $210,000,000 in gross proceeds of the Senior Notes,
and the Senior Note Agreement shall be in form and substance reasonably satisfactory
to the Lenders.


 


(iii)         The Additional
Transactions shall have been consummated on the Closing Date.


 


(iv)         The Lenders
shall be satisfied with the management, the capitalization, the terms and
conditions of any equity arrangements and the corporate or other organizational
structure of the Companies (after giving effect to the Transactions and the
Additional Transactions) and any indemnities, employment and other arrangements
entered into in connection with the Transactions.


 


(v)          The Refinancing
shall have been consummated in full (other that with respect to Existing Notes
for which the Existing Notes Redemption Notice has been validly delivered and
for which funds have been deposited with the trustee under, and pursuant to the
terms of, the indenture governing the Existing Notes) to the satisfaction of
the Lenders with all liens in favor of the existing lenders being
unconditionally released; the Administrative Agent shall have received evidence
reasonably satisfactory to the Administrative Agent with respect to all debt
being refinanced in the Refinancing; and the Administrative Agent shall have
received from any person holding any Lien securing any such debt, such UCC
termination statements, mortgage releases, releases of assignments of leases
and rents, releases of security interests in Intellectual Property and other
instruments, in each case in proper form for recording, as the Administrative
Agent shall have reasonably requested to release and terminate of record the
Liens securing such debt.


 


(e)           Financial Statements; Pro Forma Balance
Sheet; Projections.  The Lenders shall have received and shall be
satisfied with the form and substance of the financial statements described in Section 3.04
and with the forecasts of the financial performance of Borrower and its Subsidiaries.


 


(f)            Indebtedness and Minority Interests. 
After giving effect to the Transactions and the other transactions
contemplated hereby, no Company shall have outstanding any Indebtedness or preferred
stock other than (i) the Loans and Credit Extensions hereunder, (ii) the


 


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Senior Notes, (iii) the Indebtedness listed on Schedule 6.01(b) and
(iv) Indebtedness owed to Borrower or any Guarantor.


 


(g)           Opinions of Counsel. 
On the Closing Date, the Administrative Agent shall have received (i) from
Baker & Hostetler LLP, special counsel to the Loan Parties, an
opinion addressed to the Administrative Agent, the Agents, the Issuing Bank and
each of the Lenders and dated the Closing Date covering the matters set forth
in Exhibit N, (ii) from local counsel listed on Schedule
4.01(g), opinions each of which shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders and shall cover the
perfection of the security interests granted pursuant to the Security Documents
and such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request, and (iii) from local gaming
counsel reasonably satisfactory to the Administrative Agent, opinions each of
which shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders and shall cover Colorado, Louisiana, Nevada and Virginia
Gaming Laws and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.


 


(h)           Solvency Certificate. 
The Administrative Agent shall have received a solvency certificate in
the form of Exhibit O, dated the Closing Date and signed by the
chief financial officer of Borrower.


 


(i)            Requirements of Law. 
The Lenders shall be satisfied that Borrower, its Subsidiaries, the
Transactions and the Additional Transactions shall be in full compliance with
all material Requirements of Law, including Regulations T, U and X of the
Board, and shall have received satisfactory evidence of such compliance
reasonably requested by them.


 


(j)            Consents.  The Lenders
shall be satisfied that all requisite Governmental Authorities (including
Gaming Authorities) and third parties shall have approved or consented to the
Transactions to be consummated on the Closing Date, and there shall be no
governmental or judicial action, actual or threatened, that has or would have,
singly or in the aggregate, a reasonable likelihood of restraining, preventing
or imposing burdensome conditions on the Transactions to be consummated on the
Closing Date or the other transactions contemplated hereby.


 


(k)           Litigation.  There shall
be no litigation, public or private, or administrative proceedings,
governmental investigation or other legal or regulatory developments, actual or
threatened, that, singly or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, or could materially and adversely affect
the ability of the Loan Parties to fully and timely perform their respective
obligations under the Transaction Documents, or the ability of the parties
hereto  to consummate the financings
contemplated hereby or the other Transactions or the Additional Transactions.


 


(l)            Sources and Uses. 
The sources and uses of the Loans shall be as set forth in Section 3.12.


 


(m)          Fees.  The Arrangers
and Administrative Agent shall have received all Fees and other amounts due and
payable on or prior to the Closing Date, including, to the extent


 


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invoiced, reimbursement or payment of all out-of-pocket expenses
(including half of the legal fees and expenses of Cahill Gordon &
Reindel LLP, special counsel to the Agents, and all of the fees and
expenses of any local counsel, foreign counsel, appraisers, consultants and
other advisors) required to be reimbursed or paid by Borrower hereunder or
under any other Loan Document (it being understood that only 50% of any legal
fees and expenses of Cahill Gordon & Reindel LLP that relate to both
the Existing Credit Agreement and the Senior Notes offering shall be due and
payable hereunder in accordance with this Clause (m)).


 


(n)           Personal Property Requirements. 
Except as required by Section 5.10 and solely with respect
to the items expressly referenced therein, the Collateral Agent shall have received:


 


(i)            all certificates, agreements or instruments
representing or evidencing the 
certificated Securities Collateral and the Equity Interests pledged
under any Security Agreement accompanied by instruments of transfer and stock
powers undated and endorsed in blank have been delivered to the Collateral
Agent;


 


(ii)          the Intercompany Note
executed by and among Borrower and each of its Restricted Subsidiaries,
accompanied by instruments of transfer undated and endorsed in blank have been
delivered to the Collateral Agent;


 


(iii)         all other certificates,
agreements, including Control Agreements, or instruments necessary to perfect
the Collateral Agent’s security interest in all Chattel Paper, all Instruments,
all Deposit Accounts and all Investment Property of each Loan Party (as each
such term is defined in the Security Agreement and to the extent required by
the Security Agreement) have been delivered to the Collateral Agent;


 


(iv)         UCC financing statements in
appropriate form for filing under the UCC, filings with the United States
Patent and Trademark Office and United States Copyright Office and such other
documents under applicable Requirements of Law in each jurisdiction as may be
necessary or appropriate or, in the opinion of the Collateral Agent, desirable
to perfect the Liens created, or purported to be created, by the Security
Documents and, with respect to all UCC financing statements required to be
filed pursuant to the Loan Documents, evidence satisfactory to the
Administrative Agent that Borrower has retained, at its sole cost and expense,
a service provider acceptable to the Administrative Agent for the tracking of
all such financing statements and notification to the Administrative Agent, of,
among other things, the upcoming lapse or expiration thereof;


 


(v)          certified copies of UCC,
United States Patent and Trademark Office and United States Copyright Office,
tax and judgment lien searches, bankruptcy and pending lawsuit searches or
equivalent reports or searches, each of a recent date listing all effective
financing statements, lien notices or comparable documents that name any Loan
Party as debtor and that are filed in those state and county jurisdictions in
which any property of any Loan Party is located and the state and county
jurisdictions in which any Loan Party is organized or maintains its principal
place of business and such other searches that the Collateral Agent deems
necessary or appropriate, none of which encumber the Collateral


 


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covered or intended to be covered by the
Security Documents (other than Permitted Liens or any other Liens acceptable to
the Collateral Agent);


 


(vi)         with respect to each
location set forth on Schedule 4.01(n)(vi), a Landlord Access
Agreement; provided that no such Landlord Access
Agreement shall be required with respect to any Real Property that could not be
obtained after the Loan Party that is the lessee of such Real Property or owner
of the inventory or other personal property Collateral stored with the bailee
thereof, as applicable, shall have used all commercially reasonable efforts to
do so; and


 


(vii)        evidence reasonably
acceptable to the Collateral Agent of payment or arrangements for payment by
the Loan Parties of all applicable recording taxes, fees, charges, costs and
expenses required for the recording of the Security Documents.


 


(o)           Real Property Requirements. 
Except as required by Section 5.10 and solely with respect
to the items for the properties expressly referenced therein, the Collateral
Agent shall have received:


 


(i)           a Mortgage encumbering each
Mortgaged Property in favor of the Collateral Agent, for the benefit of the
Secured Parties, duly executed and acknowledged by each Loan Party that is the
owner of or holder of any interest in such Mortgaged Property, and otherwise in
form for recording in the recording office of each applicable political
subdivision where each such Mortgaged Property is situated, together with such
certificates, affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof to create a lien under
applicable Requirements of Law, and such financing statements and any other
instruments necessary to grant a first priority mortgage lien under the laws of
any applicable jurisdiction, all of which shall be in form and substance
reasonably satisfactory to Collateral Agent;


 


(ii)          with respect to each
Mortgaged Property, such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as necessary to
consummate the Transactions or as shall reasonably be deemed necessary by the
Collateral Agent in order for the owner or holder of the fee or leasehold interest
constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage
with respect to such Mortgaged Property;


 


(iii)         with respect to each
Mortgage, a policy of title insurance (or marked up title insurance commitment
having the effect of a policy of title insurance) insuring the Lien of such
Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures
described therein in the amount equal to not less than 115% of the fair market
value of such Mortgaged Property and fixtures, which fair market value is set
forth on Schedule 4.01(o)(iii)(A), which policy (or such marked-up
commitment) (each, a “Title Policy”)
shall (A) be issued by the Title Company, (B) to the extent
necessary, include such reinsurance arrangements (with provisions for direct
access, if necessary) as shall be reasonably acceptable to the Collateral
Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under
applicable law (i.e., policies which insure
against losses regardless of 


 


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location or allocated value of the insured
property up to a stated maximum coverage amount), (D) have been
supplemented by such endorsements (or where such endorsements are not
available, opinions of special counsel, architects or other professionals reasonably
acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral
Agent (including endorsements on matters relating to usury, first loss, last
dollar, zoning (other than as provided in Schedule 4.01(o)(iii)(B) with
respect to which the Loan Parties shall have delivered a PZR Report in form and
substance reasonably acceptable to the Collateral Agent), contiguity, revolving
credit, doing business, non-imputation, public road access, survey, variable
rate, environmental lien, subdivision, mortgage recording tax, separate tax lot
and so-called comprehensive coverage over covenants and restrictions), and (E) contain
no exceptions to title other than exceptions reasonably acceptable to the Collateral
Agent;


 


(iv)         with respect to each
Mortgaged Property, such affidavits, certificates, information (including
financial data) and instruments of indemnification (including a so-called “gap”
indemnification) as shall be required to induce the Title Company to issue the
Title Policy/ies and endorsements contemplated above;


 


(v)          evidence reasonably
acceptable to the Collateral Agent of payment by Borrower of all Title Policy
premiums, search and examination charges, escrow charges and related charges,
mortgage recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies referred to
above;


 


(vi)         with respect to each Real
Property or Mortgaged Property, copies of all Leases in which Borrower or any
Restricted Subsidiary holds the lessor’s interest or other agreements relating
to possessory interests, if any.  To the
extent any of the foregoing affect any Mortgaged Property, such agreement shall
be subordinate to the Lien of the Mortgage to be recorded against such
Mortgaged Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement, and shall otherwise be
reasonably acceptable to the Collateral Agent;


 


(vii)        with respect to each
Mortgaged Property, each Loan Party shall have made all notifications,
registrations and filings, to the extent required by, and in accordance with,
all Governmental Real Property Disclosure Requirements applicable to such Mortgaged
Property;


 


(viii)       Surveys with respect to each
Mortgaged Property;


 


(ix)          a completed Federal
Emergency Management Agency Standard Flood Hazard Determination with respect to
each Mortgaged Property;


 


(x)           with respect to each Real
Property that has an existing Construction Contract, true and correct copies of
each Construction Contract and a complete set of the Plans and Specifications
relating thereto; together with copies of all permits and government approvals
relating to the construction and use of the Project;


 


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(xi)          assignment of contract for
each of the Construction Contracts and the Plans and Specifications, duly
executed by each Loan Party that is party thereto and pursuant to which each
such Loan Party shall have assigned to the Collateral Agent, for the benefit of
the Secured Parties, all of such Loan Party’s right, title and interest in and
to each such Construction Contract, and which assignment shall have been
consented to and certified in writing by the other party(ies) to each such
Construction Contract;


 


(xii)         lien waivers from each
contractor and subcontractor employed in connection with the construction of
each Project, in each case in form and substance reasonably acceptable to the
Collateral Agent;


 


(xiii)        with respect to each Real
Property that has an existing Construction Contract, an agreement with an Inspecting
Engineer of recognized standing and reasonably acceptable to the Collateral
Agent, by which agreement such Inspecting Engineer agrees to assist the
Collateral Agent in its inspection of any Project during construction and provide
such additional services as the Collateral Agent may reasonably require at sole
expense of Borrower; and


 


(xiv)       with respect to each Real
Property that has an existing Construction Contract, evidence that Borrower or
applicable Loan Parties have caused a bonding company to issue a Construction
Completion Bond.


 


(p)           Insurance.  The
Administrative Agent shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section 5.04 and
the applicable provisions of the Security Documents, each of which shall be
endorsed or otherwise amended to include a “standard” or “New York” lender’s
loss payable or mortgagee endorsement (as applicable) and shall name the
Collateral Agent, on behalf of the Secured Parties, as additional insured, in
form and substance reasonably satisfactory to the Administrative Agent.


 


(q)           USA PATRIOT Act. 
The Lenders shall have received, sufficiently in advance of the Closing
Date, all documentation and other information that may be required by the Lenders
in order to enable compliance with applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) including
the information described in Section 10.13.


 


SECTION 4.02       Conditions to All Credit Extensions.  The
obligation of each Lender and each Issuing Bank to make any Credit Extension
(including the initial Credit Extension) shall be subject to, and to the
satisfaction of, each of the conditions precedent set forth below.


 


(a)           Notice.  The
Administrative Agent shall have received a Borrowing Request as required by Section 2.03
(or such notice shall have been deemed given in accordance with Section 2.03)
if Loans are being requested or, in the case of the issuance, amendment, extension
or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent
shall have received an LC Request as required by Section 2.18(b) or,
in the case of the Borrowing of a


 


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Swingline Loan, the Swingline Lender and the Administrative Agent shall
have received a Borrowing Request as required by Section 2.17(b).


 


(b)           No Default.  Borrower and
each other Loan Party shall be in compliance in all material respects with all
the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and, at the time of and immediately after
giving effect to such Credit Extension and the application of the proceeds
thereof, no Default shall have occurred and be continuing on such date.


 


(c)           Representations and Warranties. 
Each of the representations and warranties made by Borrower set forth in
Article III hereof or by any Loan Party in any other Loan Document
shall be true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) on and as of the
date of such Credit Extension with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date.


 


(d)           No Legal Bar. 
No order, judgment or decree of any Governmental Authority shall purport
to restrain any Lender from making any Loans to be made by it.  No injunction or other restraining order
shall have been issued or shall be pending or noticed with respect to any
action, suit or proceeding seeking to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder.


 


Each of the delivery of a Borrowing Request or an LC
Request and the acceptance by Borrower of the proceeds of such Credit Extension
shall constitute a representation and warranty by Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the conditions
contained in Sections 4.02(b)-(d) have been satisfied.  Borrower shall provide such information
(including calculations in reasonable detail of the covenants in Section 6.10)
as the Administrative Agent may reasonably request to confirm that the
conditions in Sections 4.02(b)-(d) have been satisfied.


 


ARTICLE V


 


AFFIRMATIVE COVENANTS


 


Borrower
warrants, covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, Borrower will, and will cause each other Loan Party and
their respective Restricted Subsidiaries to:


 


SECTION 5.01       Financial Statements, Reports, etc.  Furnish to the
Administrative Agent for delivery to each Lender:


 


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(a)           Annual Reports. 
As soon as available and in any event within 90 days (or such
earlier date on which Borrower is required to file a Form 10-K under the Exchange
Act) after the end of each fiscal year, beginning with the fiscal year ending December 31,
2006, (i) the consolidated balance sheet of Borrower as of the end of such
fiscal year and related consolidated statements of income, cash flows and
stockholders’ equity for such fiscal year, in comparative form with such
financial statements as of the end of, and for, the preceding fiscal year, and
notes thereto (including a note with a consolidating balance sheet and
statements of income and cash flows separating out Borrower and the Guarantors
in the event that any Subsidiaries are not Loan Parties), all prepared in
accordance with Regulation S-X and accompanied by an opinion of Deloitte &
Touche LLP or other independent public accountants of recognized national
standing reasonably satisfactory to the Administrative Agent (which opinion
shall not be qualified as to scope or contain any going concern or other
qualification), stating that such financial statements fairly present, in all
material respects, the consolidated financial condition, results of operations
and cash flows of Borrower as of the dates and for the periods specified in
accordance with GAAP, (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth (A) statement of
income items and Consolidated EBITDA of Borrower for such fiscal year, showing
variance, by dollar amount and percentage, from amounts for the previous fiscal
year and budgeted amounts and (B) key operational information and
statistics for such fiscal year consistent with internal and industry-wide reporting
standards, and (iii) a narrative report and management’s discussion and
analysis, in a form reasonably satisfactory to the Administrative Agent, of the
financial condition and results of operations of Borrower for such fiscal year,
as compared to amounts for the previous fiscal year and budgeted amounts (it
being understood that the information required by clause (i) may be furnished
in the form of a Form 10-K);


 


(b)           Quarterly Reports. 
As soon as available and in any event within 45 days (or such
earlier date on which Borrower is required to file a Form 10-Q under the Exchange
Act) after the end of each of the first three fiscal quarters of each fiscal
year, beginning with the fiscal quarter ending June 30, 2006, (i) the
consolidated balance sheet of Borrower as of the end of such fiscal quarter and
related consolidated statements of income and cash flows for such fiscal
quarter and for the then elapsed portion of the fiscal year, in comparative
form with the consolidated statements of income and cash flows for the
comparable periods in the previous fiscal year, and notes thereto (including a
note with a consolidating balance sheet and statements of income and cash flows
separating out Borrower and the Guarantors in the event that any Subsidiaries
are not Loan Parties), all prepared in accordance with Regulation S-X under the
Securities Act and accompanied by a certificate of a Financial Officer stating
that such financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of
Borrower as of the date and for the periods specified in accordance with GAAP
consistently applied, and on a basis consistent with audited financial statements
referred to in clause (a) of this Section, subject to normal year-end
audit adjustments, (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth (A) statement of income
items and Consolidated EBITDA of Borrower for such fiscal quarter and for the
then elapsed portion of the fiscal year, showing variance, by dollar amount and
percentage, from amounts for the comparable periods in the previous fiscal year
and budgeted amounts and (B) key operational information and statistics
for such fiscal quarter and for the then elapsed portion of the fiscal year
consistent with internal and industry-wide reporting standards, and (iii) a
narrative report and management’s discussion and analysis, in a form reasonably
satisfactory to the


 


107

















 


Administrative Agent, of the financial condition and
results of operations for such fiscal quarter and the then elapsed portion of
the fiscal year, as compared to the comparable periods in the previous fiscal
year and budgeted amounts (it being understood that the information required by
clause (i) may be furnished in the form of a Form 10-Q);


 


(c)           Monthly Reports. 
Within 30 days after the end of each of the first two months of
each fiscal quarter, (i) the consolidated balance sheet of Borrower as of
the end of each such month and the related consolidated statements of income
and cash flows of Borrower for such month and for the then elapsed portion of
the fiscal year, in comparative form with the consolidated statements of income
and cash flows for the comparable periods in the previous fiscal year,
accompanied by a certificate of a Financial Officer stating that such financial
statements fairly present, in all material respects, the consolidated results
of operations and cash flows of Borrower as of the date and for the periods
specified in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments, (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth (A) statement of
income items and Consolidated EBITDA of Borrower for such month and for the
then elapsed portion of the fiscal year, showing variance, by dollar amount and
percentage, from amounts for the comparable periods in the previous fiscal year
and budgeted amounts and (B) key operational information and statistics
for such month and for the then elapsed portion of the fiscal year consistent
with internal and industry-wide reporting standards and (iii) a narrative
report and management’s discussion and analysis, in a form reasonably
satisfactory to the Administrative Agent, of the financial condition and
results of operations for such month and the then elapsed portion of the fiscal
year, as compared to the comparable periods in the previous fiscal year and
budgeted amounts;


 


(d)           Financial Officer’s Certificate.  (i) Concurrently
with any delivery of financial statements under Section 5.01(a) or
(b), a Compliance Certificate (A) certifying that no Default has
occurred or, if such a Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto, (B) beginning with the fiscal quarter ending June 30, 2006,
setting forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Sections 6.07(f) and
6.10 (including the aggregate amount of net cash proceeds from Excluded
Issuances for such period and the uses therefor) and, concurrently with any
delivery of financial statements under Section 5.01(a) above,
setting forth Borrower’s calculation of Excess Cash Flow and (C) showing a
reconciliation of Consolidated EBITDA to the net income set forth on the
statement of income; and (ii) concurrently with any delivery of financial
statements under Section 5.01(a) above, beginning with the
fiscal year ending December 31, 2006, a report of the accounting firm
opining on or certifying such financial statements stating that in the course
of its regular audit of the financial statements of Borrower and its
Subsidiaries, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm obtained no knowledge that any Default
insofar as it relates to financial or accounting matters has occurred or, if in
the opinion of such accounting firm such a Default has occurred, specifying the
nature and extent thereof;


 


(e)           Financial Officer’s Certificate Regarding
Collateral.  Concurrently with any delivery of financial
statements under Section 5.01(a), a certificate of a Financial
Officer setting forth the information required pursuant to the Perfection
Certificate Supplement or confirming 


 


108

















 


that there has been no change in such information
since the date of the Perfection Certificate or latest Perfection Certificate
Supplement;


 


(f)            Public Reports. 
Promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any
Loan Party with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed to holders of its Indebtedness
pursuant to the terms of the documentation governing such Indebtedness (or any
trustee, agent or other representative therefor), as the case may be;


 


(g)           Management Letters. 
Promptly after the receipt thereof by any Loan Party, a copy of any “management
letter” received by any such person from its certified public accountants and
within 30 days after the receipt of such management letter, a copy of the management’s
responses thereto;


 


(h)           Budgets.  Within
90 days after the beginning of each fiscal year, a budget for Borrower in
form reasonably satisfactory to the Administrative Agent, but to include
balance sheets, statements of income and sources and uses of cash, for (i) each
month of such fiscal year prepared in detail and (ii) each fiscal year
thereafter, through and including the fiscal year in which the Final Maturity
Date occurs, prepared in summary form, in each case, with appropriate
presentation and discussion of the principal assumptions upon which such
budgets are based, accompanied by the statement of a Financial Officer of Borrower
to the effect that the budget of Borrower is a reasonable estimate for the periods
covered thereby and, promptly when available, any significant revisions of such
budget;


 


(i)            Organization. 
Concurrently with any delivery of financial statements under Section 5.01(a),
an accurate organizational chart as required by Section 3.07(c), or
confirmation that there are no changes to Schedule 10(a) to
the Perfection Certificate;


 


(j)            Organizational Documents. 
Promptly provide copies of any Organizational Documents that have been
amended or modified in accordance with the terms hereof and deliver a copy of
any notice of default given or received by any Company under any Organizational
Document within 15 days after such Company gives or receives such notice;


 


(k)           Governmental Authorization. 
Borrower shall deliver, and shall cause its Restricted Subsidiaries to
deliver, to the Administrative Agent, as soon as practicable, and in any event
within 5 days after the receipt thereof by Borrower or its Restricted Subsidiaries
from any Gaming Authority or other Governmental Authority having jurisdiction
over the operations of Borrower or its Restricted Subsidiaries, or filing or
receipt thereof by Borrower or its Restricted Subsidiaries, (i) copies of
any order or notice of such Gaming Authority or such other Governmental
Authority or court of competent jurisdiction which designates any Gaming
License or other material franchise, permit or other governmental operating
authorization of Borrower or its Restricted Subsidiaries, or any application
therefor, for a hearing or which refuses renewal or extension of, or revokes or
suspends the authority of, Borrower or its Restricted Subsidiaries to
construct, own, manage or operate its businesses (or any portion thereof), and (ii) a
copy of any competing application filed with respect to any such Gaming License
or other authorization, or


 


109

















 


application therefor, of Borrower or any of its
Restricted Subsidiaries, or any citation, notice of violation or order to show
cause issued by any Gaming Authority, any Liquor Authority or other
Governmental Authority or any complaint filed by any Gaming Authority or other
Governmental Authority which is applicable to Borrower or to its Restricted
Subsidiaries;


 


(l)            Completion Date. 
Promptly following each Completion Date, Borrower shall or shall cause
the applicable Loan Party to deliver notice to Collateral Agent of the occurrence
of such Completion Date, together with a copy of a Completion Certificate, if
any, relating thereto; and


 


(m)          Other Information. 
Promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of any Company, or
compliance with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request.


 


SECTION 5.02       Litigation and Other Notices.  Furnish to
the Administrative Agent and each Lender written notice of the following
promptly (and, in any event, within three Business Days of Borrower obtaining
actual or constructive knowledge of the occurrence thereof):


 


(a)           any Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;


 


(b)           the filing or commencement of, or any
threat or notice of intention of any person to file or commence, any action,
suit, litigation or proceeding, whether at law or in equity by or before any
Governmental Authority, (i) against any Company or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse Effect or (ii) with
respect to any Loan Document;


 


(c)           any development that has resulted in, or
could reasonably be expected to result in a Material Adverse Effect;


 


(d)           the occurrence of a material Casualty Event;
and


 


(e)           (i) the incurrence of any material
Lien (other than Permitted Liens) on, or material claim asserted against, any
of the Collateral or (ii) the occurrence of any other event which could
materially adversely affect the value of the Collateral.


 


SECTION 5.03       Existence; Businesses and Properties.


 


(a)           Do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05
or Section 6.06 or, in the case of any Subsidiary, where the
failure to perform such obligations, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.


 


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(b)           Do or cause to be done all things
necessary to obtain, preserve, renew, extend and keep in full force and effect
the rights, licenses, permits, privileges, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of its business;
maintain and operate such business in substantially the manner in which it is
presently conducted and operated; comply with all applicable Requirements of
Law (including any zoning, building and Environmental Law, ordinance, code or approval
or any building permits or any restrictions of record or agreements affecting
Real Property) and decrees and orders of any Governmental Authority, whether
now in effect or hereafter enacted, except where the failure to comply, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect; pay and perform its obligations under all Leases and
Transaction Documents; and at all times maintain, preserve and protect all
property material to the conduct of such business and keep such property in
good repair, working order and condition (other than wear and tear occurring in
the ordinary course of business) and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times; provided that nothing in this Section 5.03(b) shall
prevent (i) sales of property, consolidations or mergers by or involving
any Company in accordance with Section 6.05 or Section 6.06;
(ii) the withdrawal by any Company of its qualification as a foreign
corporation in any jurisdiction where such withdrawal, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; or (iii) the abandonment by any Company of any rights, franchises,
licenses, trademarks, trade names, copyrights or patents that such person reasonably
determines are not useful to its business or no longer commercially desirable.


 


SECTION 5.04       Insurance.


 


(a)           Generally.  Keep its
insurable property adequately insured at all times by financially sound and
reputable insurers; maintain such other insurance, to such extent and against
such risks as is customary with companies in the same or similar businesses
operating in the same or similar locations, including insurance with respect to
Mortgaged Properties and other properties material to the business of the
Companies against such casualties and contingencies and of such types and in
such amounts with such deductibles as is customary in the case of similar
businesses operating in the same or similar locations, including (i) physical
hazard insurance on an “all risk” basis, (ii) commercial general liability
insurance against claims for bodily injury, death or property damage covering
any and all insurable claims, (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral, (iv) business
interruption insurance, (v) worker’s compensation insurance and such other
insurance as may be required by any Requirement of Law and (vi) such other
insurance against risks as the Administrative Agent may from time to time
reasonably require (such policies to be in such form and amounts and having
such coverage as may be reasonably satisfactory to the Administrative Agent and
the Collateral Agent); provided that
with respect to physical hazard insurance, neither the Collateral Agent nor the
applicable Company shall agree to the adjustment of any claim thereunder
without the consent of the other (such consent not to be unreasonably withheld
or delayed); provided, further,
that no consent of any Company shall be required during an Event of Default.


 


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(b)           Requirements of Insurance. 
All such insurance shall (i) provide that no cancellation, material
reduction in amount or material change in coverage thereof shall be effective
until at least 30 days after receipt by the Collateral Agent of written
notice thereof, (ii) name the Collateral Agent as mortgagee (in the case
of property insurance) or additional insured on behalf of the Secured Parties
(in the case of liability insurance) or loss payee (in the case of property
insurance), as applicable, (iii) if reasonably requested by the Collateral
Agent, include a breach of warranty clause and (iv) be reasonably
satisfactory in all other respects to the Collateral Agent.


 


(c)           Notice to Agents. 
Notify the Administrative Agent and the Collateral Agent immediately
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.04
is taken out by any Company; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.


 


(d)           Flood Insurance. 
With respect to each Mortgaged Property, obtain flood insurance in such
total amount as the Administrative Agent or the Required Lenders may from time
to time reasonably require, if at any time the area in which any improvements
are located on any Mortgaged Property is designated a “flood hazard area” in
any Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time.


 


(e)           Broker’s Report. 
Deliver to the Administrative Agent and the Collateral Agent and the
Lenders a report of a reputable insurance broker with respect to such insurance
and such supplemental reports with respect thereto as the Administrative Agent
or the Collateral Agent may from time to time reasonably request.


 


(f)            Mortgaged Properties. 
No Loan Party that is an owner of Mortgaged Property shall take any
action that is reasonably likely to be the basis for termination, revocation or
denial of any insurance coverage required to be maintained under such Loan
Party’s respective Mortgage or that could be the basis for a defense to any
claim under any Insurance Policy maintained in respect of the Premises, and
each Loan Party shall otherwise comply in all material respects with all
Insurance Requirements in respect of the Premises; provided, however, that each Loan Party may, at its own expense and
after written notice to the Administrative Agent, (i) contest the
applicability or enforceability of any such Insurance Requirements by
appropriate legal proceedings, the prosecution of which does not constitute a
basis for cancellation or revocation of any insurance coverage required under
this Section 5.04 or (ii) cause the Insurance Policy
containing any such Insurance Requirement to be replaced by a new policy
complying with the provisions of this Section 5.04.


 


SECTION 5.05       Obligations and Taxes.


 


(a)           Payment of Obligations. 
Pay its Indebtedness and other obligations promptly and in accordance
with their terms and pay and discharge promptly when due all Taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits


 


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or in respect of its property, before the same shall become delinquent
or in default, as well as all lawful claims for labor, services, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien other than a
Permitted Lien upon such properties or any part thereof; provided
that such payment and discharge shall not be required with respect to any such
Tax, assessment, charge, levy or claim so long as (x)(i) the validity or
amount thereof shall be contested in good faith by appropriate proceedings
timely instituted and diligently conducted and the applicable Company shall
have set aside on its books adequate reserves or other appropriate provisions
with respect thereto in accordance with GAAP, (ii) such contest operates
to suspend collection of the contested obligation, Tax, assessment or charge
and enforcement of a Lien other than a Permitted Lien and (iii) in the
case of Collateral, the applicable Company shall have otherwise complied with
the Contested Collateral Lien Conditions and (y) the failure to pay could
not reasonably be expected to result in a Material Adverse Effect.


 


(b)           Filing of Returns. 
Timely (subject to any extensions granted by the applicable Governmental
Authority) and correctly file all material Tax Returns required to be filed by
it.  Withhold, collect and remit all
Taxes that it is required to collect, withhold or remit.


 


(c)           Tax Shelter Reporting. 
Borrower does not intend to treat the Loans as being a “reportable
transaction” within the meaning of Treasury Regulation Section 1.6011-4.  In the event Borrower determines to take any
action inconsistent with such intention, it will promptly notify the Administrative
Agent thereof.


 


SECTION 5.06       Employee Benefits.  (a) Comply
in all material respects with the applicable provisions of ERISA and the Code
with respect to any Employee Benefit Plan and (b) furnish to the Administrative
Agent (x) as soon as possible after, and in any event within 5 days
after any Responsible Officer of any Company or any ERISA Affiliates of any
Company knows or has reason to know that, any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Companies or any of their ERISA Affiliates in an
aggregate amount exceeding $500,000 or the imposition of a Lien, a statement of
a Financial Officer of Borrower setting forth details as to such ERISA Event
and the action, if any, that the Companies propose to take with respect thereto,
and (y) upon request by the Administrative Agent, copies of (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by any Company or any ERISA Affiliate with the Internal Revenue
Service with respect to each Plan; (ii) the most recent actuarial
valuation report for each Plan; (iii) all notices received by any Company
or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental
agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan (or employee benefit plan
sponsored or contributed to by any Company) as the Administrative Agent shall
reasonably request.


 


SECTION 5.07       Maintaining Records; Access to Properties and Inspections; Annual
Meetings.


 


(a)           Keep proper books of record and account
in which full, true and correct entries in conformity with GAAP and all
Requirements of Law are made of all dealings and transactions in relation to
its business and activities.  Each of
Borrower and its Restricted 


 


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Subsidiaries will permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records
and the property of Borrower or such Restricted Subsidiary at reasonable times
upon reasonable advance notice and to make extracts from and copies of such
financial records; provided that,
so long as no Event of Default then exists, such inspection or visit shall be
limited to one (1) per fiscal year of Borrower, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances, accounts and condition of Borrower or any Restricted
Subsidiary with its officers and, in the presence of such officers, other
employees thereof and advisors therefor (including independent accountants).


 


(b)           Within 150 days after the end of
each fiscal year of the Companies, at the request of the Administrative Agent
or Required Lenders, hold a meeting (at a mutually agreeable location, venue
and time or, at the option of the Administrative Agent, by conference call, the
costs of such venue or call to be paid by Borrower) with all Lenders who choose
to attend such meeting, at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of the
Companies and the budgets presented for the current fiscal year of the Companies.


 


SECTION 5.08       Use of Proceeds.  Use the
proceeds of the Loans only for the purposes set forth in Section 3.12
and request the issuance of Letters of Credit only for the purposes set forth
in the definition of Standby Letter of Credit.


 


SECTION 5.09       Compliance with Environmental Laws; Environmental Reports.


 


(a)           Comply, and use commercially reasonable
efforts to cause all lessees and other persons occupying Real Property owned,
operated or leased by any Company to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to the operations of the
applicable Loan Party, Restricted Subsidiary, lessees or other persons, as the
case may be, and Real Property; obtain and renew all material Environmental
Permits applicable to its operations and Real Property; and conduct all
Responses required by, and in accordance with, Environmental Laws; provided that no Company shall be required to undertake any
Response to the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being maintained with
respect to such circumstances in accordance with GAAP.


 


(b)           If a Default caused by reason of a breach
of Section 3.18 or Section 5.09(a) shall have
occurred and be continuing for more than 30 days after Borrower obtains
actual or constructive knowledge of the Default, without the Companies
commencing activities reasonably likely to cure such Default in accordance with
Environmental Laws, at the written request of the Administrative Agent or the
Required Lenders through the Administrative Agent, provide to the Lenders
within 30 days after such request, at the expense of Borrower, an environmental
assessment report regarding the matters which are the subject of such Default,
including, where appropriate, soil and/or groundwater sampling, prepared by an
environmental consulting firm and, in form and substance, reasonably acceptable
to the Administrative Agent and 


 


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indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Response to address them.


 


SECTION 5.10       Post-Closing Matters.  Pursuant to
the Existing Credit Agreement, Borrower delivered or caused to be delivered and
completed the tasks described in this Section 5.10:


 


(a)           endorsements to Borrower’s and the Loan
Parties’ flood insurance policies, which endorsements (i) shall be
reasonably satisfactory to the Collateral Agent, (ii) shall be delivered
within 45 days of the Closing Date to the Collateral Agent, (iii) shall
state that they are naming Credit Suisse AG, Cayman Islands Branch, as
Collateral Agent and Administrative Agent, as an additional insured, loss payee
and mortgagee to such flood insurance policies and (iv) shall provide
evidence that Wells Fargo Bank Minnesota, National Association, as trustee (to
the extent so named), has been removed as an additional insured, loss payee and
mortgagee from such flood insurance policies; such endorsements shall cover the
properties located at:  (A) (i) 108
N. Highway 397, Lake Charles, Louisiana, (ii) 1829 Highway 90 West, Morgan
City, Louisiana and (iii) 11825 Highway 308, LaRose, Louisiana, in each
case, evidenced by the insurance certificates dated June 9, 2006 and the
Flood Insurance General Charge Endorsements that were issued on June 9,
2006 by ICT Insurance Agency, Inc., and (B) (i) 1869 Mills
Highway, Breaux Bridge, Louisiana and (ii) 52396 LA Highway 16, Denham
Springs, Louisiana, in each case, evidenced by the insurance certificates dated
June 2, 2006 and the Flood Insurance General Charge Endorsements that were
issued on June 16, 2006 by ICT Insurance Agency, Inc., all of which
certificates and Commercial Policy Change Requests were delivered to the
Collateral Agent pursuant to Section 4.01(p) hereof;


 


(b)           endorsements to the Borrower’s and the
Loan Parties’ flood insurance policies evidenced by the insurance certificate
dated June 13, 2006 and the Flood Insurance General Charge Endorsements
that were issued on June 12, 2006 by Flood & Peterson Insurance, Inc.
and delivered to the Collateral Agent pursuant to Section 4.01(p) hereof 
relating to those properties located at 111 - 121 Main Street, Black Hawk,
Colorado and 240 Main Street, Black Hawk, Colorado (covering both the
lodge and parking garage), which such endorsements (i) shall be in
form and substance satisfactory to the Collateral Agent, (ii) shall be
delivered within 45 Business Days of the Closing Date to the Collateral Agent, (iii) shall
state that they are naming Credit Suisse AG, Cayman Islands Branch, as
Collateral Agent and Administrative Agent, as an additional insured, loss payee
and mortgagee to such flood insurance policies and (iv) shall provide
evidence that Wells Fargo Bank Minnesota, National Association, as trustee (to
the extent so named), has been removed as an additional insured, loss payee and
mortgagee from such flood insurance policies;


 


(c)           Borrower shall deliver or cause to be
delivered to the Collateral Agent within ten (10) days after the Closing
Date (which time period may be extended at the sole discretion of the Collateral
Agent) all certificates representing or evidencing the outstanding Equity
Interests of Colonial Holdings, Inc., a Virginia corporation, and
Maryland-Virginia Racing Circuit, Inc., a Virginia corporation, each
accompanied by a stock power with respect thereto, undated and endorsed in
blank; and


 


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(d)           within thirty (30) days after the Closing
Date, unless waived or extended by the Collateral Agent in its sole discretion,
the applicable Loan Parties shall deliver to the Collateral Agent, Surveys with
respect to the following Mortgaged Properties:


 


	
   

  	
  (i)

  	
   

  	
  3747 Highway 90,
  Eunice, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
   

  	
  1869 Mills Highway,
  Breaux Bridge, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
   

  	
  1050A Baker Hughes
  Drive, Broussard, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
   

  	
  1829 Highway 90 West,
  Bayou Vista, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (v)

  	
   

  	
  1541 Grand Caillou
  Road, Houma, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (vi)

  	
   

  	
  213 and 233 West Park
  Avenue, Thibodaux, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (vii)

  	
   

  	
  108 N. Highway 397,
  Lake Charles, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (viii)

  	
   

  	
  2267 Old Highway 90,
  Vinton, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ix)

  	
   

  	
  2334 Highway 109 South,
  Vinton, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (x)

  	
   

  	
  2654 Highway 108,
  Sulphur, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (xi)

  	
   

  	
  7340 Westbank
  Expressway, Suite 200, Marrero, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (xii)

  	
   

  	
  11825 Highway 308,
  Lockport, Louisiana;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (xiii)

  	
   

  	
  109 S. Service Road and
  105 St. Peter Road, Raceland, Louisiana; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (xiv)

  	
   

  	
  52396 Highway
  16, Denham Springs, Louisiana.

  



 


 


SECTION 5.11       Additional Collateral; Additional Guarantors.


 


(a)           Subject to this Section 5.11,
with respect to any property acquired after the Closing Date by any Loan Party
that is intended to be subject to the Lien created by any of the Security Documents
but is not so subject, promptly (and in any event within 30 days (45 days
in the case of property acquired in connection with the acquisition of a truck
stop video gaming facility) after the acquisition thereof) (i) execute and
deliver to the Administrative Agent and the Collateral Agent such amendments or
supplements to the relevant Security Documents or such other documents as the
Administrative Agent or the Collateral Agent shall reasonably deem necessary or
advisable to grant to the Collateral Agent, for its benefit and for the benefit
of the other Secured Parties, a Lien on such property subject to no Liens other
than Permitted Liens, and (ii) take all actions reasonably necessary to
cause such Lien to be duly perfected to the extent required by such Security
Document in accordance with all applicable Requirements of Law, including the
filing of financing statements in such jurisdictions as may be reasonably
requested by the Administrative Agent. 
Borrower shall otherwise take such actions and execute and/or deliver to
the Collateral Agent such documents as the Administrative Agent or the Collateral
Agent shall


 


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reasonably require to confirm the validity, perfection and priority of
the Lien of the Security Documents on such after-acquired properties.


 


(b)           With respect to any person that is or becomes
a Subsidiary of Borrower or one of its Restricted Subsidiaries after the
Closing Date and subject to any applicable Gaming Laws, promptly (and in any
event within 30 days (45 days in the case of a Subsidiary that owns or
operates a truck stop video gaming facility) after such person becomes a
Subsidiary) (i) deliver to the Collateral Agent the certificates, if any,
representing all of the Equity Interests of such Subsidiary, together with
undated stock powers or other appropriate instruments of transfer executed and
delivered in blank by a duly authorized officer of the holder(s) of such
Equity Interests, and all intercompany notes owing from such Subsidiary to any
Loan Party together with instruments of transfer executed and delivered in
blank by a duly authorized officer of such Loan Party and (ii) cause such
new Subsidiary (unless it shall be designated an Unrestricted Subsidiary
pursuant to this Agreement) (A) to execute a Joinder Agreement or such
comparable documentation to become a Guarantor and a joinder agreement to the
applicable Security Document (including, in the case of any Restricted
Subsidiary subject to regulation under the Gaming Laws of Nevada, a Pledge
Agreement), substantially in the form annexed thereto or, in the case of a
Foreign Subsidiary, execute a security agreement compatible with the laws of
such Foreign Subsidiary’s jurisdiction in form and substance reasonably
satisfactory to the Administrative Agent, and (B) to take all actions
reasonably necessary or advisable in the opinion of the Administrative Agent or
the Collateral Agent to cause the Lien created by the applicable Security
Agreement to be duly perfected to the extent required by such agreement in
accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by
the Administrative Agent or the Collateral Agent.  Notwithstanding the foregoing, (1) the
Equity Interests required to be delivered to the Collateral Agent pursuant to
clause (i) of this Section 5.11(b) shall not include
any Equity Interests of a Foreign Subsidiary created or acquired after the
Closing Date and (2) no Foreign Subsidiary shall be required to take the
actions specified in clause (ii) of this Section 5.11(b),
if, in the case of either clause (1) or (2), doing so would
constitute an investment of earnings in United States property under Section 956
(or a successor provision) of the Code, which investment would or could
reasonably be expected to trigger a material increase in the net income of a
United States shareholder of such Subsidiary pursuant to Section 951 (or a
successor provision) of the Code, as reasonably determined by the
Administrative Agent; provided that
this exception shall not apply to (A) Voting Stock of any Subsidiary which
is a first-tier controlled foreign corporation (as defined in Section 957(a) of
the Code) representing 66% of the total voting power of all outstanding Voting
Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting
Voting Stock of any such Subsidiary, except that any such Equity Interests
constituting “stock entitled to vote” within the meaning of Treasury Regulation
Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes
of this Section 5.11(b).


 


(c)           Promptly grant to the Collateral Agent,
within 30 days (45 days in the case of Material Real Property acquired in
connection with the acquisition of a truck stop video gaming facility) of the
acquisition thereof (or if not a Material Real Property at the time of acquisition,
within 30 days of becoming a Material Real Property), a security interest in
and Mortgage on (i) each Material Real Property owned in fee by such Loan
Party as is acquired by such Loan Party after the Closing Date and (ii) unless
the Collateral Agent otherwise consents, each leased


 


117

















 


Material Real Property of such Loan Party, in each case, as additional
security for the Secured Obligations (unless the subject property is already
mortgaged to a third party to the extent permitted by Section 6.02).  Such Mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
Administrative Agent and the Collateral Agent and shall constitute valid and enforceable
perfected Liens subject only to Permitted Liens or other Liens acceptable to
the Collateral Agent.  The Mortgages or instruments
related thereto shall be 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 required to be granted pursuant to the
Mortgages and all taxes, fees and other charges payable in connection therewith
shall be paid in full.  Borrower shall or
shall cause the applicable Loan Party to otherwise take such actions and
execute and/or deliver to the Collateral Agent such documents as the
Administrative Agent or the Collateral Agent shall reasonably require to
confirm the validity, perfection and priority of the Lien of any existing
Mortgage or new Mortgage against such after-acquired Real Property (including a
Title Policy, a Survey and local counsel opinion (in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent)
in respect of such Mortgage).


 


(d)           Notwithstanding anything to the contrary
in clauses (a) and (b) of this Section 5.11, if the
pledge of Equity Interests of any Subsidiary acquired or created after the
Closing Date requires approval under the applicable Gaming Laws, Borrower shall
be required to pledge such stock only if the requisite approvals are obtained
after the exercise of its commercially reasonable efforts to obtain such
approvals (and Borrower agrees to use its commercially reasonable efforts to
obtain such approvals).


 


SECTION 5.12       Security Interests; Further Assurances. 
Promptly, upon the reasonable request of the Administrative Agent or the
Collateral Agent, at Borrower’s expense, execute, acknowledge and deliver, or
cause the execution, acknowledgment and delivery of, and thereafter register,
file or record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or confirmatory
of the Guarantee Agreement or Security Documents or otherwise deemed by the
Administrative Agent or the Collateral Agent reasonably necessary or desirable
for the continued validity, perfection and priority of the Liens on the
Collateral covered thereby subject to no other Liens except as permitted by the
applicable Security Document, or obtain any consents or waivers as may be necessary
or appropriate in connection therewith. 
Deliver or cause to be delivered to the Administrative Agent and the
Collateral Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent as the
Administrative Agent and the Collateral Agent shall reasonably deem necessary
to perfect or maintain the Liens on the Collateral pursuant to the Security
Documents.  Upon the exercise by the
Administrative Agent, the Collateral Agent or any Lender of any power, right,
privilege or remedy pursuant to any Loan Document which requires any consent,
approval, registration, qualification or authorization of any Governmental
Authority execute and deliver all applications, certifications, instruments and
other documents and papers that the Administrative Agent, the Collateral Agent
or such Lender may require.  If the Administrative
Agent, the Collateral Agent or the Required Lenders determine that they are
required by a Requirement of Law to have appraisals prepared in respect of the
Real Property of any Loan Party constituting Collateral, Borrower shall provide
to the Administrative Agent appraisals that satisfy the applicable requirements
of the Real Estate Appraisal Reform Amendments


 


118

















 


of FIRREA and are otherwise in form and substance
satisfactory to the Administrative Agent and the Collateral Agent.


 


SECTION 5.13       Information Regarding Collateral.  Not effect
any change (i) in any Loan Party’s legal name, (ii) in the location
of any Loan Party’s chief executive office, (iii) in any Loan Party’s
identity or organizational structure, (iv) in any Loan Party’s Federal
Taxpayer Identification Number or organizational identification number, if any,
or (v) in any Loan Party’s jurisdiction of organization (in each case,
including by merging with or into any other entity, reorganizing, dissolving,
liquidating, reorganizing or organizing in any other jurisdiction), until (A) it
shall have given the Collateral Agent and the Administrative Agent not less
than 30 days’ prior written notice (in the form of an Officers’ Certificate),
or such lesser notice period agreed to by the Collateral Agent, of its
intention so to do, clearly describing such change and providing such other
information in connection therewith as the Collateral Agent or the Administrative
Agent may reasonably request and (B) it shall have taken all action
reasonably satisfactory to the Collateral Agent to maintain the perfection and
priority of the security interest of the Collateral Agent for the benefit of
the Secured Parties in the Collateral, if applicable.  Borrower agrees to promptly provide the
Collateral Agent with certified Organizational Documents reflecting any of the
changes described in the preceding sentence. 
Borrower also agrees to promptly notify the Collateral Agent of any
change in the location of any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
is located (including the establishment of any such new office or facility),
other than changes in location to a Mortgaged Property or a leased property
subject to a Landlord Access Agreement.


 


SECTION 5.14       [Reserved].


 


SECTION 5.15       Affirmative Covenants with Respect to Leases. 
With respect to each Lease, Borrower shall or shall cause the applicable
Loan Party to perform all the obligations imposed upon the landlord under such
Lease and enforce all of the tenant’s obligations thereunder, except where the
failure to so perform or enforce could not reasonably be expected to result in
a Property Material Adverse Effect.


 


SECTION 5.16       License Renewals. 
Commencing on the date twelve months following the Closing Date and
continuing every twelve months thereafter, Borrower shall deliver, and shall
cause its Restricted Subsidiaries to deliver, to the Administrative Agent an
updated Schedule 3.23 reflecting thereon, as of the date of such
delivery, the information described in Section 3.23.


 


SECTION 5.17       Licenses and Permits.  (a) Ensure
that all material licenses (including all necessary Gaming Licenses), permits
and consents and similar rights required from any federal, state or local
governmental body (including the Gaming Authorities and Liquor Authorities) for
the ownership, use or operation of the businesses or properties now owned or
operated by Borrower have been validly issued and are in full force and effect,
and (b) comply, in all material respects, with all of the provisions
thereof applicable to it.


 


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SECTION 5.18       Construction of Project.  In connection
with the construction of each Substantial Project, Borrower shall or shall
cause the applicable Loan Party to:


 


(i)           diligently proceed with
construction of such Project in accordance with the Plans and Specifications
relating thereto and in accordance with all applicable laws and ordinances and
will complete such Project on or before the Completion Date thereof;


 


(ii)          use its commercially
reasonable efforts to require the Contractor(s) to comply with all rules,
regulations, ordinances and laws relating to work on such Project;


 


(iii)         comply in all material
respects with and keep in effect all necessary permits and approvals obtained
from any Governmental Authority relating to the lawful construction of such
Project.  Borrower will and shall cause
each applicable Loan Party to comply in all material respects with all
applicable existing and future laws, regulations, order, and requirements of
any Governmental Authority having jurisdiction over the Real Property or
Project, and with all recorded restrictions affecting the applicable Real Property;


 


(iv)         upon completion of the
building foundation of such Project, deliver to the Collateral Agent (A) an
“as-built” survey of the applicable Real Property which: (a) sets forth
the location and exterior lines and egress and other improvements completed on
such Real Property and demonstrates compliance with all applicable setback
requirements; (b) demonstrates that such Project is entirely within the
exterior boundaries of such Real Property and any building restriction lines
and does not encroach upon any easements or rights-of-way; and (c) contains
such other information as the Collateral Agent may reasonably request;


 


(v)          within 60 days after
Completion Date relating to such Project, Borrower shall or shall cause the
applicable Loan Party to deliver to the Collateral Agent a title insurance
bring down and endorsements to the title insurance policy insuring the Mortgaged
Property upon which such Project was constructed (1) increasing the policy
amount to an amount not less than 115% of the fair market value of such
Mortgaged Property and fixtures thereon taking into consideration the
improvements constructed thereon in connection with such Project and (2) otherwise
amending such title insurance policy so that the requirements of Section 4.01(o)(iii) are
met; it being understood that (A) such policy shall be free and clear of
all mechanics, materialmen or other similar liens and (B) subject to (vi) below,
Borrower shall or shall cause the applicable Loan Party to deliver all lien
waivers from the contractors and subcontractors relating to such Project as
shall be reasonably requested by the Collateral Agent or the title insurance
company to release any such liens;


 


(vi)         pay and discharge all claims
and liens for labor done and materials and services furnished in connection
with the construction of such Project. 
Borrower or the applicable Loan Party will have the right to contest in
good faith any claim or lien, provided that it does so diligently and without
prejudice to the Collateral Agent or the ability to obtain title insurance in
the manner required by this Agreement. 
Upon the Collateral


 


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Agent’s reasonable request, Borrower will
promptly provide a bond, cash deposit, or other security reasonably
satisfactory to the Collateral Agent to protect the Collateral Agent’s interest
and security should the contest be unsuccessful;


 


(vii)        not purchase any materials,
equipment, fixtures, or articles of personal property placed in such Project
prior to the Completion Date under any security agreement or other agreement
where the seller reserves or purports to reserve title or the right of removal
or repossession, or the right to consider them personal property after their incorporation
in the work of construction, unless authorized by the Administrative Agent in
writing;


 


(viii)       within 30 days after the
Completion Date, obtain and deliver to the Administrative Agent copies of all
necessary occupancy certificates relating to such Project; and


 


(ix)          cause a bonding company to
issue a Construction Completion Bond.


 


SECTION 5.19       Flood Insurance.  (a) Maintain,
or cause to be maintained, with a financially sound and reputable insurer,
flood insurance in an amount and otherwise sufficient to comply with all
applicable rules and regulations promulgated pursuant to the Flood Insurance
Laws and (b) deliver to the Administrative Agent evidence of such
compliance in form and substance reasonably acceptable to the Administrative
Agent.


 


ARTICLE VI


 


NEGATIVE COVENANTS


 


Borrower
warrants, covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document have been paid in full and all Letters
of Credit have been canceled or have expired and all amounts drawn thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, no Loan Party will, nor will they cause or permit any Restricted
Subsidiaries to:


 


SECTION 6.01       Indebtedness.  Incur, create, assume or
permit to exist, directly or indirectly, any Indebtedness, except


 


(a)           Indebtedness incurred under this
Agreement and the other Loan Documents;


 


(b)           (i) Indebtedness outstanding on the
Closing Date and listed on Schedule 6.01(b), (ii) refinancings
or renewals thereof; provided that (A) any
such refinancing Indebtedness is in an aggregate principal amount not greater
than the aggregate principal amount of the Indebtedness being renewed or
refinanced, plus the amount of any premiums required
to be paid thereon and reasonable fees and expenses associated therewith and (B) such
refinancing Indebtedness has a later or equal final maturity and longer or
equal weighted average life than the Indebtedness being renewed or refinanced
and (C) the covenants, events of default, subordination


 


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and other provisions thereof (including any guarantees
thereof) shall be, in the aggregate, no less favorable to the Lenders than
those contained in the Indebtedness being renewed or refinanced and (iii) the
Senior Notes and Senior Note Guarantees (including any notes and guarantees
issued in exchange therefor in accordance with the registration rights document
entered into in connection with the issuance of the Senior Notes and Senior
Note Guarantees);


 


(c)           Indebtedness under Hedging Obligations
with respect to interest rates, foreign currency exchange rates or commodity
prices, in each case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest
rates, (i) such Hedging Obligations relate to payment obligations on
Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the
notional principal amount of such Hedging Obligations at the time incurred does
not exceed the principal amount of the Indebtedness to which such Hedging Obligations
relate;


 


(d)           Indebtedness permitted by Section 6.04(f);


 


(e)           Indebtedness in respect of Purchase Money
Obligations and Capital Lease Obligations, and refinancings or renewals
thereof, in an aggregate amount not to exceed $9.0 million at any one time
outstanding;


 


(f)            Indebtedness incurred by any Loan Party
in an aggregate principal amount not to exceed 200% of the aggregate Net Cash
Proceeds received by Borrower from any issuance of Borrower’s Qualified Capital
Stock (other than issuances to a Subsidiary of Borrower) or capital
contribution to Borrower after the Closing Date to the extent such Net Cash
Proceeds have not been applied to make Expansion Capital Expenditures or
Investments permitted by Section 6.04  (e), (i), (k),
(l) or  (m) or to pay Dividends pursuant to Section 6.08(b);


 


(g)           Indebtedness in respect of bid,
performance or surety bonds, workers’ compensation claims, self-insurance
obligations and bankers acceptances issued for the account of any Company in
the ordinary course of business, including guarantees or obligations of any
Company with respect to letters of credit supporting such bid, performance or
surety bonds, workers’ compensation claims, self-insurance obligations and
bankers acceptances (in each case other than for an obligation for money
borrowed), in an aggregate amount not to exceed $1,500,000 at any time outstanding;


 


(h)           Contingent Obligations of any Loan Party
in respect of Indebtedness otherwise permitted under this Section 6.01;


 


(i)            Indebtedness arising from the honoring by
a bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five
Business Days of incurrence;


 


(j)            Indebtedness arising in connection with
endorsement of instruments for deposit in the ordinary course of business;


 


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(k)           other Subordinated Indebtedness of any
Loan Party in an aggregate amount not to exceed $25,000,000 at any time
outstanding;


 


(l)            other Indebtedness of any Loan Party in
an aggregate amount not to exceed $5,000,000 at any time outstanding;


 


(m)          Indebtedness of subsidiaries of Gameco
that are acquired by a Loan Party or merged into a Loan Party in connection
with the Permitted Truck Plaza Acquisitions in an aggregate principal amount
not to exceed $7.5 million at any time outstanding; provided
that such Indebtedness (x) is not secured by a Lien and (y) does not
require any payment of principal prior to the Final Maturity Date;


 


(n)           Indebtedness in favor of a Loan Party
permitted by Section 6.04; and


 


(o)           Existing Notes not tendered pursuant to
the Tender Offer that have been irrevocably called pursuant to the Existing
Notes Redemption.


 


SECTION 6.02       Liens.  Create, incur, assume or permit to exist,
directly or indirectly, any Lien on any property now owned or hereafter
acquired by it or on any income or revenues or rights in respect of any
thereof, except the following (collectively, the “Permitted
Liens”):


 


(a)           inchoate Liens for taxes, assessments or
governmental or quasi-governmental charges or levies not yet due and payable or
delinquent (including inchoate Liens in connection with the bond obligations
described on Schedule 6.01(b)) and Liens for taxes, assessments or governmental
charges or levies, which (i) are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with GAAP, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the
property subject to any such Lien, and (ii) in the case of any such charge
or levy which has or may become a Lien against any of the Collateral, such Lien
and the contest thereof shall satisfy the Contested Collateral Lien Conditions;


 


(b)           Liens in respect of property of Borrower
or any Restricted Subsidiary imposed by Requirements of 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, landlords’,
workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens
arising in the ordinary course of business, and (i) which do not in the
aggregate materially detract from the value of the property of Borrower or any
Restricted Subsidiary, taken as a whole, and do not materially impair the use
thereof in the operation of the business of Borrower and its Restricted
Subsidiaries, taken as a whole, (ii) which, if they secure obligations
that are then due and unpaid, are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with GAAP, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the
property subject to any such Lien, and (iii) in the case of any such Lien
which has or may become a Lien against any of the Collateral, such Lien and the
contest thereof shall satisfy the Contested Collateral Lien Conditions;


 


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(c)           any Lien in existence on the Closing Date
and set forth on Schedule 6.02(c) and any Lien granted as a
replacement or substitute therefor (other than Liens where Schedule 6.02(c) indicates
that release and termination are being sought); provided
that any such replacement or substitute Lien (i) except as permitted by Section 6.01(b)(ii)(A),
does not secure an aggregate amount of Indebtedness, if any, greater than that
secured on the Closing Date and (ii) does not encumber any property other
than the property subject thereto on the Closing Date (any such Lien, an “Existing Lien”);


 


(d)           easements, rights-of-way, restrictions
(including zoning restrictions), covenants, licenses, encroachments,
protrusions and other similar charges or encumbrances, and minor title
deficiencies on or with respect to any Real Property, in each case whether now
or hereafter in existence, not (i) securing Indebtedness, (ii) individually
or in the aggregate materially impairing the value or marketability of such
Real Property or (iii) individually or in the aggregate materially
interfering with the ordinary conduct of the business of Borrower and its Restricted
Subsidiaries at such Real Property;


 


(e)           Liens arising out of judgments,
attachments or awards not resulting in a Default and in respect of which such
Company shall in good faith be prosecuting an appeal or proceedings for review
in respect of which there shall be secured a subsisting stay of execution
pending such appeal or proceedings and, in the case of any such Lien which has
or may become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;


 


(f)            Liens (other than any Lien imposed by
ERISA) (x) imposed by Requirements of Law or arising by virtue of deposits
made in connection therewith in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social
security legislation, (y) incurred in the ordinary course of business to secure
the performance of tenders, statutory obligations (other than excise taxes),
surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money) or (z) arising by virtue of deposits made in the ordinary
course of business to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and
(z) of this paragraph (f), such Liens are for amounts not yet due and
payable or delinquent or, to the extent such amounts are so due and payable,
such amounts are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP, which
proceedings for orders entered in connection with such proceedings have the
effect of preventing the forfeiture or sale of the property subject to any such
Lien, (ii) to the extent such Liens are not imposed by Requirements of
Law, such Liens shall in no event encumber any property other than cash and
Cash Equivalents, (iii) in the case of any such Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested
Collateral Lien Conditions and (iv) the aggregate amount of deposits at
any time pursuant to clause (x) and clause (z) of this
paragraph (f) shall not exceed $500,000 in the aggregate;


 


(g)           Leases of the properties of any Company,
in each case entered into in the ordinary course of such Company’s business so
long as such Leases are subordinate in all respects to the Liens granted and
evidenced by the Security Documents and do not, individually or


 


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in the aggregate, (i) interfere in any material
respect with the ordinary conduct of the business of any Company or (ii) materially
impair the use (for its intended purposes) or materially affect the value of
the property subject thereto; provided,
however, in the case of Mortgaged
Property, each Lease shall comply with provisions of the Mortgage affecting
such Mortgaged Property;


 


(h)           Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale of goods
entered into by any Company in the ordinary course of business in accordance
with the past practices of such Company;


 


(i)            Liens securing Indebtedness incurred
pursuant to Section 6.01(e); provided that
any such Liens attach only to the property being financed pursuant to such
Indebtedness and do not encumber any other property of any Company;


 


(j)            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 any Company, 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 with
respect to cash management and operating account arrangements, including those
involving pooled accounts and netting arrangements; provided
that, unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness;


 


(k)           Liens on property of a person existing at
the time such person is acquired or merged with or into or consolidated with
any Company to the extent permitted hereunder (and not created in anticipation
or contemplation thereof); provided that
such Liens do not extend to property not subject to such Liens at the time of
acquisition (other than improvements thereon) and are no more favorable to the
lienholders than such existing Lien;


 


(l)            Liens granted pursuant to the Security
Documents to secure the Secured Obligations;


 


(m)          licenses of Intellectual Property granted
by any Company in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of business of the Companies;


 


(n)           the filing of UCC financing statements
solely as a precautionary measure in connection with operating leases or
consignment of goods;


 


(o)           Liens securing Indebtedness incurred
pursuant to Section 6.01(l);


 


(p)           the existence of the “equal and ratable”
clause in the Senior Note Documents (but not any security interests granted
pursuant thereto);


 


(q)           Liens incurred in the ordinary course of
business of any Company with respect to obligations that do not in the
aggregate exceed $3,000,000 at any time outstanding, so long as such Liens, to
the extent covering any Collateral, are junior to the Liens granted pursuant to
the Security Documents;


 


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(r)            Liens arising under applicable Gaming
Laws; provided that no such Lien
constitutes a Lien securing repayment of Indebtedness; and


 


(s)           Liens created solely by the deposit of,
and solely on, cash and Permitted Investments deposited to consummate the
Existing Notes Redemption or the Tender Offer in favor of the trustee under the
Existing Notes Indenture or the holders of the Existing Notes;


 


provided, however, (i) that
no consensual Liens shall be permitted to exist, directly or indirectly, on any
Securities Collateral, other than Liens granted pursuant to the Security
Documents, or on any options to purchase Real Property listed on Schedule 8(b) to
the Perfection Certificate and (ii) in the case of any Real Property,
Permitted Liens shall mean those Liens set forth in clauses (a), (b), (d), (e),
(g), (i) and (l) and those liens, encumbrances and other matters
affecting title to any Real Property listed in the title insurance policies
delivered to the Collateral Agent in accordance with the terms hereof,
reasonably acceptable to the Administrative Agent.


 


SECTION 6.03       Sale and Leaseback Transactions.  Enter into
any arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a “Sale and Leaseback Transaction”) unless (i) the sale of
such property is permitted by Section 6.06 and (ii) any Liens
arising in connection with its use of such property are permitted by Section 6.02.


 


SECTION 6.04       Investment, Loan and Advances.  Directly or
indirectly, lend money or credit (by way of guarantee or otherwise) or make
advances to any person, or purchase or acquire any stock, bonds, notes,
debentures or other obligations or securities of, or any other 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 (all of
the foregoing, collectively, “Investments”),
except that the following shall be permitted:


 


(a)           Borrower and its Restricted Subsidiaries
may consummate the Transactions in accordance with the provisions of the
Transaction Documents;


 


(b)           Investments outstanding on the Closing
Date and identified on Schedule 6.04(b);


 


(c)           Borrower and its Restricted Subsidiaries
may (i) 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 terms, (ii) invest in, acquire
and hold cash and Cash Equivalents, (iii) endorse negotiable instruments
held for collection in the ordinary course of business or (iv) make lease,
utility and other similar deposits in the ordinary course of business;


 


(d)           Hedging Obligations incurred pursuant to Section 6.01(c);


 


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(e)           loans and advances to directors,
employees and officers of Borrower and the Restricted Subsidiaries for bona fide business purposes and to purchase Equity Interests
of Borrower, in aggregate amount not to exceed $2.0 million at any time outstanding;
provided that no loans in violation of Section 402
of the Sarbanes-Oxley Act shall be permitted hereunder;


 


(f)            Investments (i) by any Company in
Borrower or any Guarantor and (ii) by a Restricted Subsidiary that is not
a Guarantor in any other Restricted Subsidiary that is not a Guarantor; provided that any Investment in the form of a loan or
advance shall be evidenced by the Intercompany Note and, in the case of a loan or
advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to
the Security Documents;


 


(g)           Investments in securities of trade
creditors or customers in the ordinary course of business received upon
foreclosure or pursuant to any plan of reorganization or liquidation or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or customers;


 


(h)           Investments made by Borrower or any
Restricted Subsidiary as a result of consideration received in connection with
an Asset Sale made in compliance with Section 6.06;


 


(i)            Investments made by Borrower or any
Guarantor in Publicly Traded Securities in an aggregate amount not to exceed
$3.0 million in any fiscal year; provided
that on a Pro Forma Basis for the applicable Investment, the Total Leverage
Ratio would be less than or equal to 5.00:1.00; provided, further, that (x) if the aggregate
amount of Investments made in any fiscal year shall be less than the maximum
amount of Investments permitted under this Section 6.04(i) for
such fiscal year (before giving effect to any carryover), then an amount of
such shortfall may be added to the amount of Investments permitted under this Section 6.04(i) for
the immediately succeeding (but not any other) fiscal year and (y) in
determining whether any amount is available for carryover, the amount expended
in any fiscal year shall first be deemed to be from the amount allocated to
such fiscal year (before giving effect to any carryover);


 


(j)            credit extensions or other advances to
gaming customers in the ordinary course of business and consistent with industry
practice;


 


(k)           other Investments in an aggregate amount
not to exceed $7,000,000 at any time outstanding;


 


(l)            Investments consisting of redemptions or
repurchases of Equity Interests or Indebtedness of Borrower or any of its
Subsidiaries to the extent required by any Gaming Authority or, if determined
in the good faith judgment of the Board of Directors of Borrower, to prevent
the loss, or to secure the grant or establishment, of any Gaming License or
other right to conduct lawful gaming operations; and


 


(m)          Permitted Acquisitions pursuant to Section 6.07.


 


An Investment shall be deemed to be outstanding to the extent not returned
in the same form as the original Investment to Borrower or any Guarantor.


 


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SECTION 6.05       Mergers and Consolidations.  Wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation (or agree to do any of the foregoing at any future time unless
any such agreement is expressly conditioned on the repayment in full of all
obligations and the termination of all Commitments hereunder), except that the
following shall be permitted:


 


(a)           the Transactions as contemplated by the
Transaction Documents;


 


(b)           Asset Sales in compliance with Section 6.06;


 


(c)           acquisitions in compliance with Section 6.07;


 


(d)           any Company may merge or consolidate with
or into Borrower or any Guarantor (as long as Borrower is the surviving person
in the case of any merger or consolidation involving Borrower and a Guarantor
is the surviving person and remains a Wholly Owned Restricted Subsidiary of
Borrower in any other case); provided that
the Lien on and security interest in such property granted or to be granted in
favor of the Collateral Agent under the Security Documents shall be maintained
or created in accordance with the provisions of Section 5.11 or Section 5.12,
as applicable; provided, further, that the transaction would not
result in the loss, suspension or material impairment of any Gaming License
unless a comparable replacement Gaming License is effective prior to or
simultaneously with the loss, suspension or material impairment or require any
Lender to obtain a Gaming License or be qualified or found suitable under the
law of any applicable gaming jurisdiction; provided that
such Lender would not have been required to obtain a Gaming License or be
qualified or found suitable under the laws of any applicable gaming jurisdiction
in the absence of such transaction; and


 


(e)           any Subsidiary may dissolve, liquidate or
wind up its affairs at any time; provided that
such dissolution, liquidation or winding up, as applicable, could not reasonably
be expected to have a Material Adverse Effect.


 


To the
extent the Required Lenders or all the Lenders, as applicable, waive the provisions
of this Section 6.05 with respect to the sale of any Collateral, or
any Collateral is sold as permitted by this Section 6.05, such
Collateral (unless sold to a Loan Party) shall be sold free and clear of the
Liens created by the Security Documents, and, so long as Borrower shall have provided
the Agents such certifications or documents as any Agent shall reasonably
request in order to demonstrate compliance with this Section 6.05,
the Agents shall take all actions they deem appropriate or reasonably requested
by Borrower in order to effect the foregoing.


 


SECTION 6.06       Asset Sales.  Effect any Asset Sale, or
agree to effect any Asset Sale, except that the following shall be permitted:


 


(a)           disposition of used, worn out, obsolete
or surplus property by Borrower or any Restricted Subsidiary in the ordinary
course of business and the abandonment or other disposition of Intellectual
Property that is, in the reasonable judgment of Borrower, no longer economically
practicable to maintain or useful in the conduct of the business of Borrower
and its Restricted Subsidiaries taken as a whole;


 


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(b)           Asset Sales; provided
that the aggregate consideration received in respect of all Asset Sales
pursuant to this clause (b) shall not exceed $3,000,000 in any fiscal
year of Borrower, but, in any event, shall not exceed $500,000 with respect to
any single Asset Sale;


 


(c)           leases of real or personal property in
the ordinary course of business and in accordance with Section 6.02(g) and
the applicable Security Documents;


 


(d)           the Transactions as contemplated by the
Transaction Documents;


 


(e)           mergers and consolidations in compliance
with Section 6.05;


 


(f)            Investments in compliance with Section 6.04;
and


 


(g)           any Colonial Downs Sale; provided that the Net Cash Proceeds with respect
to any first such sale (or series of contemporaneous sales) shall not be less
than the sum of (x) $20,000,000 plus (y) the
aggregate amount of Expansion Capital Expenditures made by the Loan Parties
with respect to the Colonial Downs Business on or after the Closing Date.


 


To the
extent the Required Lenders or all the Lenders, as applicable, waive the
provisions of this Section 6.06 with respect to the sale of any
Collateral, or any Collateral is sold as permitted by this Section 6.06,
such Collateral (unless sold to a Loan Party) shall be sold free and clear of
the Liens created by the Security Documents, and, so long as Borrower shall
have provided the Agents such certifications or documents as any Agent shall
reasonably request in order to demonstrate compliance with this Section 6.06,
the Agents shall take all actions they deem appropriate or reasonably requested
by Borrower in order to effect the foregoing.


 


SECTION 6.07       Acquisitions.  Purchase or otherwise acquire
(in one or a series of related transactions) any part of the property (whether
tangible or intangible) of any person (or agree to do any of the foregoing at
any future time), except that the following shall be permitted:


 


(a)           Capital Expenditures by Borrower and the
Restricted Subsidiaries shall be permitted to the extent permitted by Sections 6.10(d) and
(e);


 


(b)           purchases and other acquisitions of
inventory, materials, equipment and intangible property in the ordinary course
of business;


 


(c)           Investments in compliance with Section 6.04;


 


(d)           leases of real or personal property in
the ordinary course of business and in accordance with Section 6.02(g) and
the applicable Security Documents;


 


(e)           the Transactions as contemplated by the
Transaction Documents;


 


(f)            Permitted Acquisitions and Permitted
Truck Plaza Acquisitions; and


 


(g)           mergers and consolidations in compliance
with Section 6.05;


 


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provided that the Lien on and security interest in such
property granted or to be granted in favor of the Collateral Agent under the
Security Documents shall be maintained or created in accordance with the provisions
of Section 5.11 or Section 5.12, as applicable.


 


SECTION 6.08       Dividends.  Authorize, declare or pay,
directly or indirectly, any Dividends with respect to Borrower or any
Restricted Subsidiary, except that the following shall be permitted:


 


(a)           Dividends by any Company to Borrower or
any Guarantor that is a Wholly Owned Restricted Subsidiary of Borrower;


 


(b)           if no Default or Event of Default then
exists, payments to Borrower to permit Borrower, and the subsequent use of such
payments by Borrower, to repurchase or redeem Qualified Capital Stock of
Borrower held by officers, directors or employees or former officers, directors
or employees (or their transferees, estates or beneficiaries under their
estates) of any Company, upon their death, disability, retirement, severance or
termination of employment or service in each case pursuant to a plan previously
approved by Borrower’s Board of Directors; provided that
the aggregate cash consideration paid for all such redemptions and payments
shall not exceed, in any fiscal year, the sum of (x) $3,000,000, plus (y) the amount of any Net Cash Proceeds received
by or contributed to Borrower from the issuance and sale since the issue date
of Qualified Capital Stock of Borrower to officers, directors or employees of
any Company that have not been used to make any repurchases, redemptions or
payments under this clause (b);


 


(c)           Permitted Tax Distributions by Borrower;


 


(d)           the Additional Transactions and Dividends
deemed to have been paid solely for accounting purposes as part of the consideration
in the Gameco Acquisition, any Permitted Truck Plaza Acquisition or the
exercise of the Nautica Options;


 


(e)           Dividends (solely in the form of
Qualified Capital Stock) in connection with the conversion of shares pursuant
to the Organizational Documents;


 


(f)            Dividends (solely in the form of
Qualified Capital Stock) in connection with the exercise of warrants and stock
options held by employees or directors of the Loan Parties; and


 


(g)           if no Default or Event of Default then
exists, Dividends other than any Dividends permitted by clauses (a)-(f) of
this Section 6.8, in an aggregate amount not to exceed in any fiscal year
the greater of (x) $1,000,000 and (y) 50% of Consolidated Net Income
for the immediately prior fiscal year.


 


SECTION 6.09       Transactions with Affiliates.  Enter into,
directly or indirectly, any transaction or series of related transactions,
whether or not in the ordinary course of business, with any Affiliate of any
Company (other than between or among Borrower and one or more Guarantors),
other than on terms and conditions at least as favorable to such Company as
would reasonably be obtained by such Company at that time in a comparable arm’s-length
transaction with a person other than an Affiliate, except that the following
shall be permitted:


 


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(a)                                  Dividends permitted by Section 6.08;


 


(b)                                 Investments permitted by Sections 6.04(e) and
(f);


 


(c)                                  reasonable and customary director,
officer and employee compensation (including bonuses) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved by the Board of Directors
of Borrower;


 


(d)                                 transactions with customers, clients,
suppliers, joint venture partners or purchasers or sellers of goods and
services, in each case in the ordinary course of business and otherwise not prohibited
by the Loan Documents;


 


(e)                                  so long as (i) no Default exists and
(ii) after giving effect to such transaction on a Pro Forma Basis,
Borrower shall be in compliance with the covenant set forth in Section 6.10(c) as
of the most recent Test Period, the payment of fees to Jacobs Investments Management
Company for the provision of Gaming Facility development advisory services
rendered to Borrower and its Restricted Subsidiaries in the amounts and at the
times specified in the Consulting Agreement, as in effect on the Closing Date
or as thereafter amended or replaced in any manner, that, taken as a whole, is
not more adverse to the interests of the Lenders in any material respect than
such agreement as it was in effect on the Closing Date; provided that payments under this clause (e) shall
in any event not exceed (i) $1,250,000 in any 12-month period plus (ii) an
amount equal to the documented out-of-pocket expenses of Jacobs Investments
Management Company incurred in connection with rendering such services plus (iii) a development fee not to
exceed 2.5% of the aggregate cost of any Gaming Facility development for which
Jacobs Investments Management Company provides advisory services;


 


(f)                                    the existence of, and the performance by
any Loan Party of its obligations under the terms of, any limited liability
company, limited partnership or other Organizational Document or
securityholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party on the Closing Date
and which is described in the Confidential Information Memorandum, as in effect
on the Closing Date, and similar agreements that it may enter into thereafter; provided, however, that
the existence of, or the performance by any Loan Party of obligations under,
any amendment to any such existing agreement or any such similar agreement
entered into after the Closing Date shall only be permitted by this Section 6.09(f) to
the extent not more adverse to the interest of the Lenders in any material respect,
when taken as a whole, than any of such documents and agreements as in effect
on the Closing Date;


 


(g)                                 sales or other issuances of Qualified
Capital Stock of Borrower to Affiliates of Borrower not otherwise prohibited by
the Loan Documents and the granting of registration and other customary rights
in connection therewith;


 


(h)                                 any transaction with an Affiliate where
the only consideration paid by any Loan Party is Qualified Capital Stock of
Borrower;


 


(i)                                     the Transactions as contemplated by the
Transaction Documents;


 


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(j)                                     the payment of truck stop gaming plaza
management fees to Borrower or a Guarantor by any of their respective Affiliates;


 


(k)                                  acquisitions to the extent otherwise
permitted by Section 6.07; and


 


(l)                                     in connection with the acquisition of
personal property (but not the associated real property) of a Gaming Facility
by a Loan Party, the lease by such Loan Party from a non-Loan Party Affiliate
in respect of the real property associated with such Gaming Facility,
including, without limitation, all rental payments and other payments
thereunder; provided, that the terms of such lease,
taken together with the purchase price originally paid by such Loan Party to acquire
such personal property, are fair to Borrower and such Loan Party (if not
Borrower) from a financial point of view as evidenced by an opinion as to
fairness issued by an independent nationally recognized accounting, appraisal
or investment banking firm, as compared with the Loan Party having purchased
such personal property and the associated real property directly.


 


SECTION 6.10                                            Financial Covenants.


 


(a)                                  Maximum Total Leverage Ratio. 
Permit the Total Leverage Ratio, at the last day of any Test Period
during any period set forth in the table below, to exceed the ratio set forth
opposite such period in the table below:


 


	
  Test
  Period

  	
   

  	
  Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  July 1, 2006 - December 31, 2006

  	
   

  	
  6.50 to 1.0

  
	
  January 1, 2007 - June 30, 2007

  	
   

  	
  6.75 to 1.0

  
	
  July 1, 2007 - December 31, 2007

  	
   

  	
  6.50 to 1.0

  
	
  January 1, 2008 - December 31, 2008

  	
   

  	
  6.25 to 1.0

  
	
  January 1, 2009 - December 31, 2009

  	
   

  	
  6.00 to 1.0

  
	
  January 1, 2010 - June 30, 2011

  	
   

  	
  6.00 to 1.0

  
	
  July 1, 2011 - December 31, 2011

  	
   

  	
  5.75 to 1.0

  
	
  January 1, 2012 and thereafter

  	
   

  	
  5.50 to 1.0

  



 


(b)                                 Maximum Senior Secured Leverage Ratio. 
Permit the Senior Secured Leverage Ratio, at the last day of any Test
Period during any period set forth in the table below, to exceed the ratio set
forth opposite such period in the table below:


 


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  Test Period

  	
   

  	
  Senior

  Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  July 1, 2006 -
  December 31, 2006

  	
   

  	
  1.50 to 1.0

  
	
  January 1, 2007 - June 30, 2007

  	
   

  	
  1.75 to 1.0

  
	
  July 1, 2007 - December 31, 2007

  	
   

  	
  1.50 to 1.0

  
	
  January 1, 2008 - December 31, 2008

  	
   

  	
  1.25 to 1.0

  
	
  January 1, 2009 - December 31, 2009

  	
   

  	
  1.40 to 1.0

  
	
  January 1, 2010 - June 30, 2010

  	
   

  	
  1.50 to 1.0

  
	
  July 1, 2010 - December 31, 2010

  	
   

  	
  1.40 to 1.0

  
	
  January 1, 2011 - June 30, 2011

  	
   

  	
  1.30 to 1.0

  
	
  July 1, 2011 and thereafter

  	
   

  	
  1.25 to 1.0

  



 


(c)                                  Minimum Interest Coverage Ratio. 
Permit the Consolidated Interest Coverage Ratio, for any Test Period
ending during any period set forth in the table below, to be less than the
ratio set forth opposite such period in the table below:


 


	
  Test
  Period

  	
   

  	
  Interest

  Coverage Ratio

  
	
   

  	
   

  	
   

  
	
  July 1, 2006 -
  December 31, 2006

  	
   

  	
  1.75 to 1.0

  
	
  January 1, 2007 - September 30, 2007

  	
   

  	
  1.50 to 1.0

  
	
  October 1, 2007 - December 31, 2008

  	
   

  	
  1.75 to 1.0

  
	
  January 1, 2009 - December 31, 2009

  	
   

  	
  1.80 to 1.0

  
	
  January 1, 2010 and thereafter

  	
   

  	
  1.85 to 1.0

  



 


(d)                                 Limitation on Maintenance Capital
Expenditures.  Permit the aggregate amount of Maintenance
Capital Expenditures made in any fiscal year to exceed the sum of (i) $15,000,000
plus (ii) 4.0% of gross revenues from the prior fiscal year attributable
to Permitted Acquisitions or the commencement of operations of any Substantial
Project (other than the Elko Development and the Dakota Development and the
truck stop gaming plazas purchased as part of the Gameco Acquisition or the
TPSH Acquisition after the Closing Date); provided, however,
that (x) if the aggregate amount of Maintenance Capital Expenditures made
in any fiscal year shall be less than the maximum amount of Maintenance Capital
Expenditures permitted under this Section 6.10(d) for such
fiscal year (before giving effect to any carryover), then an amount of such
shortfall not exceeding $2,500,000 may be added to the amount of Maintenance
Capital Expenditures permitted under this Section 6.10(d) for
the immediately succeeding (but not any other) fiscal year and (y) in determining
whether any amount is available for carryover, 


 


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the amount expended in any fiscal year shall first be deemed to be from
the amount allocated to such fiscal year (before giving effect to any carryover).


 


(e)                                  Limitation on Expansion Capital
Expenditures.  Permit Expansion Capital Expenditures to be
made except:


 


(i)                                     Expansion Capital Expenditures in an
aggregate amount not to exceed $46,500,000 in respect of the Dakota
Development, the Elko Development and the development and improvement of Pinon
Plaza; provided that the
aggregate amount of such Expansion Capital Expenditures made pursuant to this
clause (i) in respect of the Dakota Development, the Elko Development and
Pinon Plaza shall not exceed $22,000,000, $24,000,000 and $7,500,000,
respectively; provided, further, that no Expansion Capital
Expenditures shall be permitted under this clause (i) in respect of the
Dakota Development or the Elko Development after the Restatement Effective
Date;


 


(ii)                                  Expansion Capital Expenditures to acquire
and install new tote devices at the Colonial Downs track facility in New Kent,
Virginia and the Loan Parties’ satellite wagering facilities within the
Commonwealth of Virginia to facilitate wagering on new pari-mutuel pools,
solely to the extent wagering on such new pari-mutuel pools is authorized in
Virginia, in an aggregate amount not to exceed $10,000,000;


 


(iii)                               Expansion Capital Expenditures not
otherwise permitted hereunder in an aggregate amount not to exceed $15,000,000;
plus the amount of Net Cash Proceeds from Excluded Issuances consummated
after the Closing Date not used for Permitted Acquisitions or to prepay Loans
as described in the definition of “Excluded Issuances”; provided
that after the Restatement Effective Date, such amount may be increased by up
to $10,000,000 to the extent not applied to make Permitted Acquisitions; provided, further, that after the first
anniversary of the Restatement Effective Date, such amount may be increased by
up to an additional $10,000,000 to the extent not applied to make Permitted
Acquisitions; and


 


(iv)                              the purchase of the assets subject to the
Nautica Options.


 


SECTION 6.11                                            Prepayments of Other
Indebtedness; Modifications of Organizational Documents and Other Documents,
etc. 
Directly or indirectly:


 


(a)                                  make (or give any notice in respect
thereof) any voluntary or optional payment or prepayment on or redemption or
acquisition for value of, or any prepayment or redemption as a result of any
asset sale, change of control or similar event of, any Indebtedness outstanding
under the Senior Notes or any other Subordinated Indebtedness, except as
otherwise permitted by this Agreement;


 


(b)                                 amend or modify, or permit the amendment
or modification of, any provision of any Transaction Document or any document
governing any Material Indebtedness in any manner that is adverse in any
material respect to the interests of the Lenders;


 


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(c)                                  terminate, amend or modify any of its
Organizational Documents (including (x) by the filing or modification of
any certificate of designation and (y) any election to treat any Pledged
Securities (as defined in the Security Agreement) as a “security” under Section 8-103
of the UCC other than concurrently with the delivery of certificates
representing such Pledged Securities to the Collateral Agent) or any agreement
to which it is a party with respect to its Equity Interests (including any
stockholders’ agreement), or enter into any new agreement with respect to its
Equity Interests, other than any such amendments or modifications or such new
agreements which are not adverse in any material respect to the interests of
the Lenders; provided that Borrower may issue
such Equity Interests, so long as such issuance is not prohibited by Section 6.13
or any other provision of this Agreement, and may amend or modify its Organizational
Documents to authorize any such Equity Interests; or


 


(d)                                 cause or permit any other obligation
(other than the Secured Obligations and the Guaranteed Obligations) to
constitute Designated Senior Debt (as defined in the Senior Note Documents).


 


SECTION 6.12                                            Limitation on Certain
Restrictions on Restricted Subsidiaries.  Directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Borrower or any Restricted
Subsidiary, or pay any Indebtedness owed to Borrower or a Restricted Subsidiary,
(b) make loans or advances to Borrower or any Restricted Subsidiary or (c) transfer
any of its properties to Borrower or any Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) applicable
Requirements of Law; (ii) this Agreement and the other Loan Documents; (iii) the
Senior Note Documents; (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of a Restricted
Subsidiary; (v) customary provisions restricting assignment of any
agreement entered into by a Restricted Subsidiary in the ordinary course of
business; (vi) any holder of a Lien permitted by Section 6.02
restricting the transfer of the property subject thereto; (vii) customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 6.06 pending the consummation
of such sale; (viii) any agreement in effect at the time such Restricted
Subsidiary becomes a Restricted Subsidiary of Borrower, so long as such
agreement was not entered into in connection with or in contemplation of such
person becoming a Restricted Subsidiary of Borrower; (ix) without
affecting Borrower’s obligations under Section 5.11, customary provisions
in partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other similar agreements
entered into in the ordinary course of business that restrict the transfer of
ownership interests in such partnership, limited liability company or similar
person; (x) restrictions on cash or other deposits or net worth imposed by
suppliers or landlords under contracts entered into in the ordinary course of
business; (xi) any instrument governing Indebtedness assumed in connection with
any Permitted Acquisition, 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 so acquired; (xii) in the case of
any joint venture which is not a Loan Party in respect of any matters referred
to in clauses (b) and (c) above, restrictions in such person’s
Organizational Documents or pursuant to any joint venture agreement or
stockholders agreements solely to the extent of the Equity Interests of or
property held in the subject joint venture or other entity; or (xiii) any 


 


135

















 


encumbrances or restrictions imposed by any amendments
or refinancings that are otherwise permitted by the Loan Documents of the
contracts, instruments or obligations referred to in clauses (iii), (viii) or
(xi) above; provided that such amendments or refinancings
are no more materially restrictive with respect to such encumbrances and
restrictions than those prior to such amendment or refinancing.


 


SECTION 6.13                                            Limitation on Issuance of
Capital Stock.


 


(a)                                  With respect to Borrower, issue any
Equity Interest that is not Qualified Capital Stock.


 


(b)                                 With respect to Borrower or any
Restricted Subsidiary, issue any Equity Interest (including by way of sales of
treasury stock) or any options or warrants to purchase, or securities
convertible into, any Equity Interest, except (i) for stock splits, stock
dividends and additional issuances of Equity Interests in a Restricted
Subsidiary which do not decrease the percentage ownership of Borrower or any
Restricted Subsidiaries in any class of the Equity Interest of such Restricted
Subsidiary; (ii) Restricted Subsidiaries of Borrower formed after the
Closing Date in accordance with Section 6.14 may issue Equity
Interests to Borrower or the Restricted Subsidiary of Borrower which is to own
such Equity Interests and (iii) Borrower may issue common stock that is
Qualified Capital Stock.  All Equity
Interests issued in accordance with this Section 6.13(b) shall,
to the extent required by Sections 5.11 and 5.12 or any
Security Agreement, be delivered to the Collateral Agent for pledge pursuant to
the applicable Security Agreement.


 


SECTION 6.14                                            Limitation on Creation of
Subsidiaries.  Establish, create or acquire any additional
Subsidiaries without the prior written consent of the Required Lenders; provided that, without such consent, Borrower may (i) establish
or create one or more Wholly Owned Restricted Subsidiaries of Borrower, (ii) establish,
create or acquire one or more Restricted Subsidiaries in connection with an
Investment made pursuant to Section 6.04(f) or (iii) acquire
one or more Restricted Subsidiaries in connection with a Permitted Acquisition,
so long as, in each case, Section 5.11(b) shall be complied
with.


 


SECTION 6.15                                            Business. 
With respect to Borrower and the Restricted Subsidiaries, engage
(directly or indirectly) in any type of business other than (i) those
types of businesses in which Borrower and its Restricted Subsidiaries are
engaged on the Closing Date as described in the Confidential Information
Memorandum (or, in the good faith judgment of the Board of Directors, which are
substantially related thereto or are reasonable extensions thereof), (ii) those
types of businesses as otherwise contemplated in the Confidential Information
Memorandum or (iii) other gaming business and the properties or assets
ancillary thereto or used in connection therewith, including, without
limitation, casinos, hotels, resorts, race tracks, theaters, parking facilities,
recreational vehicle parks, timeshare operations, condominiums, retail shops,
restaurants, other buildings, land, golf courses and other recreation and
entertainment facilities, marinas, vessels, barges, ships and related
equipment.


 


SECTION 6.16                                            Limitation on Accounting
Changes.  Make or permit any change in accounting
policies or reporting practices, without the consent of the Required 


 


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Lenders, which consent shall not be unreasonably
withheld, except changes that are required by GAAP.


 


SECTION 6.17                                            Fiscal Year. 
Change its fiscal year-end to a date other than December 31.


 


SECTION 6.18                                            Excluded Subsidiaries. 
Borrower will not permit any Excluded Subsidiary to (x) engage in
any business, (y) own any (i) Gaming Licenses or (ii) assets
(including, without limitation, cash and Cash Equivalents) other than assets
with a book value not exceeding (I) $1,000,000 or (II) when combined
with the aggregate book value of all assets owned by each other Excluded
Subsidiary, 5% of the aggregate book value of all assets owned by Borrower and
its Subsidiaries on a consolidated basis at any time, or (z) have any
liabilities; provided that any
Excluded Subsidiary may engage in those activities that are incidental to (x) the
maintenance or termination of its corporate existence in compliance with
applicable law and (y) legal, tax and accounting matters in connection
with any of the foregoing activities.


 


SECTION 6.19                                            No Further Negative Pledge. 
Enter into any agreement, instrument, deed or lease which prohibits or
limits the ability of any Loan Party to create, incur, assume or suffer to
exist any Lien upon any of their respective properties or revenues, whether now
owned or hereafter acquired, or which requires the grant of any security for an
obligation if security is granted for another obligation, except the
following:  (1) this Agreement and
the other Loan Documents; (2) covenants in documents creating Liens
permitted by Section 6.02 prohibiting further Liens on the
properties encumbered thereby; (3) the Senior Note Documents as in effect
on the Closing Date; (4) any other agreement that does not restrict in any
manner (directly or indirectly) Liens created pursuant to the Loan Documents on
any Collateral securing the Secured Obligations and does not require the direct
or indirect granting of any Lien securing any Indebtedness or other obligation
by virtue of the granting of Liens on or pledge of property of any Loan Party
to secure the Secured Obligations; and (5) any prohibition or limitation
that (a) exists pursuant to applicable Requirements of Law, (b) consists
of customary restrictions and conditions contained in any agreement relating to
the sale of any property permitted under Section 6.06 pending the
consummation of such sale, (c) restricts subletting or assignment of any
lease governing a leasehold interest of Borrower or a Restricted Subsidiary, (d) exists
in any agreement in effect at the time such Restricted Subsidiary becomes a Restricted
Subsidiary of Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Restricted Subsidiary or (e) is
imposed by any amendments or refinancings that are otherwise permitted by the
Loan Documents of the contracts, instruments or obligations referred to in
clause (3) or (5)(d); provided that
such amendments and refinancings are no more materially restrictive with
respect to such prohibitions and limitations than those prior to such amendment
or refinancing.


 


SECTION 6.20                                            Anti-Terrorism Law;
Anti-Money Laundering.


 


(a)                                  Directly or indirectly, (i) knowingly
conduct any business or engage in making or receiving any contribution of
funds, goods or services to or for the benefit of any person described in Section 3.22,
(ii) knowingly deal in, or otherwise engage in any transaction relating
to, any property or interests in property blocked pursuant to the Executive
Order or any 


 


137





















 


other Anti-Terrorism Law, or (iii) knowingly engage in or conspire
to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth
in any Anti-Terrorism Law (and Borrower shall deliver to the Lenders any
certification or other evidence requested from time to time by any Lender in
its reasonable discretion, confirming the Loan Parties’ compliance with this Section 6.20).


 


(b)                                 Cause or permit any of the funds of such
Loan Party that are used to repay the Loans to be derived from any unlawful
activity with the result that the making of the Loans would be in violation of
any Requirement of Law.


 


SECTION 6.21                                            Embargoed Person. 
Cause or permit (a) any of the funds or properties of the Loan
Parties that are used to repay the Loans to constitute property of, or be
beneficially owned directly or indirectly by, any person subject to sanctions
or trade restrictions under United States law (“Embargoed
Person” or “Embargoed Persons”)
that is identified on (1) the “List of Specially Designated Nationals and
Blocked Persons” maintained by OFAC and/or on any other similar list maintained
by OFAC pursuant to any authorizing statute including, but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order or Requirement of Law
promulgated thereunder, with the result that the investment in the Loan Parties
(whether directly or indirectly) is prohibited by a Requirement of Law, or the
Loans made by the Lenders would be in violation of a Requirement of Law, or (2) the
Executive Order, any related enabling legislation or any other similar
Executive Orders or (b) any Embargoed Person to have any direct or
indirect interest, of any nature whatsoever in the Loan Parties, with the
result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by a Requirement of Law or the Loans are in violation of a Requirement
of Law.


 


ARTICLE VII


 


[RESERVED]


 


ARTICLE VIII


 


EVENTS OF DEFAULT


 


SECTION 8.01                                            Events of Default. 
Upon the occurrence and during the continuance of the following events (“Events of Default”):


 


(a)                                  default shall be made in the payment of
any principal of any Loan or any Reimbursement Obligation when and as the same
shall become due and payable, whether at the due date thereof (including a
Tranche B Repayment Date) or at a date fixed for prepayment (whether voluntary
or mandatory) thereof or by acceleration thereof or otherwise;


 


(b)                                 default shall be made in the payment of
any interest on any Loan or any Fee or any other amount (other than an amount
referred to in paragraph (a) above) due under any 


 


138

















 


Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of three
Business Days;


 


(c)                                  any representation or warranty made or
deemed made in or in connection with any Loan Document or the borrowings or
issuances of Letters of Credit hereunder, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to any
Loan Document, shall prove to have been false or misleading in any material respect
when so made, deemed made or furnished;


 


(d)                                 default shall be made in the due
observance or performance by any Company of any covenant, condition or
agreement contained in Section 5.02, 5.03(a) or 5.08
or in Article VI;


 


(e)                                  default shall be made in the due
observance or performance by any Company of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
paragraphs (a), (b) or (d) immediately above) and such default
shall continue unremedied or shall not be waived for a period of 30 days
after written notice thereof from the Administrative Agent or any Lender to
Borrower;


 


(f)                                    Borrower or any Restricted Subsidiary
shall (i) fail to pay any principal or interest, regardless of amount, due
in respect of any Indebtedness (other than the Obligations), when and as the
same shall become due and payable beyond any applicable grace period, or (ii) fail
to observe or perform any other term, covenant, condition or agreement
contained in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause (ii) is
to cause, or to permit the holder or holders of such Indebtedness or a trustee
or other representative on its or their behalf (with or without the giving of notice,
the lapse of time or both) to cause, such Indebtedness to become due prior to
its stated maturity or become subject to a mandatory offer purchase by the
obligor; provided that it shall not constitute an
Event of Default pursuant to this paragraph (f) unless the aggregate
amount of all such Indebtedness referred to in clauses (i) and (ii) exceeds
$5,000,000 at any one time (provided that,
in the case of Hedging Obligations, the amount counted for this purpose shall
be the amount payable by Borrower and its Restricted Subsidiaries together if
such Hedging Obligations were terminated at such time);


 


(g)                                 an involuntary proceeding shall be
commenced or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of any Company, or of a
substantial part of the property of any Company, under Title 11 of the U.S.
Code, as now constituted or hereafter amended, or any other federal, state or
foreign bankruptcy, insolvency, receivership or similar law; (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Company or for a substantial part of the property of
any Company; or (iii) the winding-up or liquidation of any Company; and
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;


 


139

















 


(h)                                 any Company shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other federal, state or foreign bankruptcy, insolvency, receivership or similar
law; (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition described
in clause (g) above; (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Company or for a substantial part of the property of
any Company; (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding; (v) make a general
assignment for the benefit of creditors; (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due; (vii) take
any action for the purpose of effecting any of the foregoing; or (viii) wind
up or liquidate;


 


(i)                                     one or more judgments, orders or decrees
for the payment of money in an aggregate amount in excess of $5,000,000 shall
be rendered against one or more Companies and the same shall remain
undischarged, unvacated or unbonded for a period of 60 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon properties of any Company to enforce
any such judgment;


 


(j)                                     one or more ERISA Events shall have
occurred that, in the opinion of the Required Lenders, when taken together with
all other such ERISA Events, could reasonably be expected to result in liability
of any Company and its ERISA Affiliates in an aggregate amount exceeding
$1,000,000 or in the imposition of a Lien on any properties of a Company;


 


(k)                                  any security interest and Lien purported
to be created by any Security Document shall cease to be in full force and
effect, or shall cease to give the Collateral Agent, for the benefit of the
Secured Parties, the Liens, rights, powers and privileges purported to be
created and granted under such Security Document (including a perfected first
priority security interest in and Lien on all of the Collateral thereunder (except
as otherwise expressly provided in this Agreement or such Security Document))
in favor of the Collateral Agent, or shall be asserted by Borrower or any other
Loan Party not to be a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in or Lien on the Collateral covered thereby;


 


(l)                                     any Loan Document or any material
provisions thereof shall at any time and for any reason be declared by a court
of competent jurisdiction to be null and void, or a proceeding shall be
commenced by any Loan Party or any other person, or by any Governmental
Authority, seeking to establish the invalidity or unenforceability thereof (exclusive
of questions of interpretation of any provision thereof), or any Loan Party
shall repudiate or deny any portion of its liability or obligation for the
Obligations;


 


(m)                               there shall have occurred a Change in
Control;


 


(n)                                 the Guarantee Agreement shall cease to
be, or shall have been asserted not to be, in full force and effect;


 


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(o)                                 any Company shall be prohibited or
otherwise restrained from conducting the business theretofore conducted by it
in any manner that has or could reasonably be expected to result in a Material
Adverse Effect by virtue of any determination, ruling, decision, decree or
order of any court or Governmental Authority of competent jurisdiction; or


 


(p)                                 there shall have occurred any License
Revocation; provided that to the extent such License
Revocation relates to a truck stop video gaming facility or pari-mutuel wagering
facility, such License Revocation shall not constitute an Event of Default
unless individually or in the aggregate, it represents in excess of 5% of
Borrower’s consolidated net revenues for the most recently completed Test
Period for which internal financial statements are then available.


 


then, and in every such event (other than an event with respect to
Borrower described in paragraph (g) or (h) above), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to Borrower,
take either or both of the following actions, at the same or different
times:  (i) terminate forthwith the
Commitments and (ii) declare the Loans and Reimbursement Obligations then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans and Reimbursement Obligations so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other Obligations of Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by Borrower, anything contained herein or in any other Loan Document to
the contrary notwithstanding; and in any event with respect to Borrower
described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans and Reimbursement
Obligations then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other Obligations of Borrower accrued hereunder and
under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by Borrower, anything contained herein or in
any other Loan Document to the contrary notwithstanding.


 


SECTION 8.02                                            Rescission. 
If at any time after termination of the Commitments or acceleration of
the maturity of the Loans, Borrower shall pay all arrears of interest and all
payments on account of principal of the Loans and Reimbursement Obligations
owing by it that shall have become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by law, on overdue interest,
at the rates specified herein) and all Defaults (other than non-payment of
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 10.02,
then upon the written consent of the Required Lenders and written notice to
Borrower, the termination of the Commitments or the acceleration and its
consequences may be rescinded and annulled; but such action shall not affect
any subsequent Default or impair any right or remedy consequent thereon.  The provisions of the preceding sentence are
intended merely to bind the Lenders and the Issuing Bank to a decision that may
be made at the election of the Required Lenders, and such provisions are not
intended to benefit Borrower and do not give Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.


 


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SECTION 8.03                                            Application of Proceeds. 
The proceeds received by the Collateral Agent in respect of any sale of,
collection from or other realization upon all or any part of the Collateral
pursuant to the exercise by the Collateral Agent of its remedies shall be
applied, in full or in part, together with any other sums then held by the
Collateral Agent pursuant to this Agreement, promptly by the Collateral Agent
as follows:


 


(a)                                  First, to the payment of all reasonable costs
and expenses, fees, commissions and taxes of such sale, collection or other
realization including compensation to the Collateral Agent and its agents and
counsel, and all expenses, liabilities and advances made or incurred by the
Collateral Agent in connection therewith and all amounts for which the
Collateral Agent is entitled to indemnification pursuant to the provisions of
any Loan Document, together with interest on each such amount at the highest
rate then in effect under this Agreement from and after the date such amount is
due, owing or unpaid until paid in full;


 


(b)                                 Second, to the payment of all other reasonable
costs and expenses of such sale, collection or other realization including
compensation to the other Secured Parties and their agents and counsel and all
costs, liabilities and advances made or incurred by the other Secured Parties
in connection therewith, together with interest on each such amount at the
highest rate then in effect under this Agreement from and after the date such
amount is due, owing or unpaid until paid in full;


 


(c)                                  Third, without duplication of amounts applied
pursuant to clauses (a) and (b) above, to the indefeasible
payment in full in cash, pro rata, of
interest and other amounts constituting Obligations (including Reimbursement Obligations)
(other than principal and obligations to cash collateralize Letters of Credit)
and any fees, premiums and scheduled periodic payments due under Hedging
Agreements or Treasury Services Agreements constituting Secured Obligations and
any interest accrued thereon, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing;


 


(d)                                 Fourth, to the indefeasible payment in full in
cash, pro rata, of principal amount of the
Obligations and any premium thereon (including obligations to cash collateralize
Letters of Credit) and any breakage, termination or other payments under
Hedging Agreements and Treasury Services Agreements constituting Secured
Obligations and any interest accrued thereon; and


 


(e)                                  Fifth, the balance, if any, to the person
lawfully entitled thereto (including the applicable Loan Party or its
successors or assigns) or as a court of competent jurisdiction may direct.


 


In the
event that any such proceeds are insufficient to pay in full the items described
in clauses (a) through (e) of this Section 8.03, the
Loan Parties shall remain liable, in accordance with the terms of the Loan
Documents, for any deficiency.


 


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ARTICLE IX


 


THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT


 


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


 


SECTION 9.02                                            Rights as a Lender. 
Each person serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include each person serving as an Agent hereunder in its individual
capacity.  Such person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
Borrower or any Subsidiary or other Affiliate thereof as if such person were
not an Agent hereunder and without any duty to account therefor to the Lenders.


 


SECTION 9.03                                            Exculpatory Provisions. 
No Agent shall have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. 
Without limiting the generality of the foregoing, no Agent:


 


(i)                                  shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing;


 


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


 


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


 


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No Agent shall be liable for any action taken or not taken by it (x) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as such Agent shall believe
in good faith shall be necessary, under the circumstances as provided in Section 10.02)
or (y) in the absence of its own gross negligence or willful misconduct.  No Agent shall be deemed to have knowledge of
any Default unless and until written notice describing such Default is given to
such Agent by Borrower, a Lender or the Issuing Bank.


 


No
Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to such Agent.  Without
limiting the generality of the foregoing, the use of the term “agent” in this
Agreement with reference to the Administrative Agent or the Collateral Agent is
not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter
of market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


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


 


SECTION 9.05                                            Delegation of Duties. 
Each Agent may perform any and all of its duties and exercise its rights
and powers hereunder or under any other Loan Document by or through, or
delegate any and all such rights and powers to, any one or more sub-agents appointed
by such Agent.  Each Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of 


 


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each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.


 


SECTION 9.06                                            Resignation of Agent. 
Each Agent may at any time give notice of its resignation to the
Lenders, the Issuing Bank and Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States, and shall be a Qualified
Person.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders and the Issuing Bank,
appoint a successor Agent meeting the qualifications set forth above provided
that if the Agent shall notify Borrower and the Lenders that no qualifying
person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held
by the Collateral Agent on behalf of the Lenders or the Issuing Bank under any
of the Loan Documents, the retiring Collateral Agent shall continue to hold
such collateral security as nominee until such time as a successor Collateral
Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through an Agent shall instead be
made by or to each Lender and the Issuing Bank directly, until such time as the
Required Lenders appoint a successor Agent as provided for above in this paragraph.  Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this paragraph).  The fees payable by Borrower to a successor
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between Borrower and such successor. 
After the retiring Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article IX and Section 10.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Agent was acting as Agent.


 


SECTION 9.07                                            Non-Reliance on Agent and
Other Lenders.  Each Lender and the Issuing Bank acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.  Each Lender further represents and warrants
that it has reviewed the Confidential Information Memorandum and each other
document made available to it on the Platform in connection with this Agreement
and has acknowledged and accepted the terms and conditions applicable to the
recipients thereof.  Each Lender and the
Issuing Bank also acknowledges that it will, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.


 


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SECTION 9.08                                            No Other Duties, etc. 
Anything herein to the contrary notwithstanding, none of Arrangers or
Agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, the Collateral
Agent, a Lender or the Issuing Bank hereunder.


 


ARTICLE X


 


MISCELLANEOUS


 


SECTION 10.01                                      Notices.


 


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


 


(i)                                     if to any Loan
Party, to Borrower at:


 


Jacobs Entertainment, Inc.

17301 W. Colfax Avenue Suite 250

Golden, CO  80401

Attention:  Stephen R. Roark

Telephone No:  303-215-5201

Telecopier No.:  303-215-5219

Email:  sroark@bhwk.com


 


with a copy to:


 


Baker & Hostetler
LLP

3200 National City Center

1900 East Ninth Street

Cleveland, OH  44114

Attention:  Phillip M. Callesen

Telephone No.:  216-861-7884

Telecopier No.:  216-696-0740

Email:  pcallesen@bakerlaw.com


 


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(ii)                                  if to the
Administrative Agent, the Collateral Agent or Issuing Bank, to it at:


 


Credit Suisse AG, Cayman
Islands Branch

11 Madison Avenue, OMA2

New York, NY  10010

Attention:  Agency Group Manager

Telecopier No.:  (212) 322-2291

Email : 
agency.loanops@credit-suisse.com


 


(iii)                               if to the
Swingline Lender, to it at:


 


Wells Fargo Bank, National
Association

Debby Moore

201 3rd Street 8th Floor

San Francisco, CA  94103

Telephone No.:  (415) 479-5379

Telecopier No.:  (415) 546-6353

Email :  mooredj@wellsfargo.com


 


(iv)                              if to a Lender,
to it at its address (or telecopier number) set forth in its Administrative
Questionnaire.


 


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


 


(b)                                 Electronic Communications. 
Notices and other communications to the Lenders and the Issuing Bank
hereunder may (subject to Section 10.01(d)) be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to
any Lender or the Issuing Bank pursuant to Article II if such
Lender or the Issuing Bank, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication.  The
Administrative Agent, the Collateral Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it (including as set forth in
Section 10.01(d)); provided that
approval of such procedures may be limited to particular notices or
communications.


 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement);
provided that if such notice 


 


147

















 


or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is
available and identifying the website address therefor.


 


(c)                                  Change of Address, etc. 
Any party hereto may change its address or telecopier number for notices
and other communications hereunder by notice to the other parties hereto.


 


(d)                                 Posting.  Borrower
hereby agrees that it will provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to this Agreement and any other Loan Document, including all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion of
an existing, Borrowing or other extension of credit (including any election of
an interest rate or interest period relating thereto), (ii) relates to the
payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (iii) provides notice of any Default under this
Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications,
collectively, the “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent at such e-mail address(es)
provided to Borrower from time to time or in such other form, including hard
copy delivery thereof, as the Administrative Agent shall require.  In addition, Borrower agrees to continue to
provide the Communications to the Administrative Agent in the manner specified
in this Agreement or any other Loan Document or in such other form, including
hard copy delivery thereof, as the Administrative Agent shall require.  Nothing in this Section 10.01
shall prejudice the right of the Agents, any Lender or any Loan Party to give
any notice or other communication pursuant to this Agreement or any other Loan
Document in any other manner specified in this Agreement or any other Loan
Document or as any such Agent shall require.


 


To the
extent consented to by the Administrative Agent in writing from time to time, Administrative
Agent agrees that receipt of the Communications by the Administrative Agent at
its e-mail address(es) set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan
Documents; provided that Borrower shall also
deliver to the Administrative Agent an executed original of each Compliance
Certificate required to be delivered hereunder.


 


Borrower
further agrees that Administrative Agent may make the Communications available
to the Lenders by posting the Communications on Intralinks or a substantially
similar electronic transmission system (the “Platform”).  The Platform is provided “as is” and “as
available.”  The Agents do not warrant
the accuracy or completeness of the Communications, or the adequacy of the
Platform and expressly disclaim liability for errors or omissions in the
communications.  No warranty of any kind,
express, implied or statutory, including, without 


 


148

















 


limitation, any warranty of merchantability, fitness
for a particular purpose, non-infringement of third party rights or freedom
from viruses or other code defects, is made by any Agent in connection with the
Communications or the Platform.  In no
event shall the Administrative Agent or any of its Related Parties have any
liability to the Loan Parties, any Lender or any other person for damages of
any kind, including direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of any
Loan Party’s or the Administrative Agent’s transmission of communications
through the Internet, except to the extent the liability of such person is
found in a final non-appealable judgment by a court of competent jurisdiction
to have resulted from such person’s gross negligence or willful misconduct.


 


SECTION 10.02                                      Waivers; Amendment.


 


(a)                                  Generally.  No failure or
delay by any Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of each Agent, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have.  No
waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by this Section 10.02, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.  Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether any Agent,
any Lender or the Issuing Bank may have had notice or knowledge of such Default
at the time.  No notice or demand on
Borrower in any case shall entitle Borrower to any other or further notice or
demand in similar or other circumstances.


 


(b)                                 Required Consents.  Subject to Section 10.02(c), (d) and
(e), neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended, supplemented or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Borrower and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent, the Collateral Agent (in the case of any Security
Document) and the Loan Party or Loan Parties that are party thereto, in each
case with the written consent of the Required Lenders; provided
that, prior to the Closing Date, no waiver, amendment, supplement or
modification of this Agreement shall be permitted without the prior written
consent of the Arrangers; provided,
further, that no such agreement
shall be effective if the effect thereof would:


 


(i)                                     increase the Commitment of
any Lender without the written consent of such Lender (it being understood that
no amendment, modification, termination, waiver or consent with respect to any
condition precedent, covenant or Default shall constitute an increase in the
Commitment of any Lender);


 


149

















 


(ii)                               reduce the principal amount
of any Loan or LC Disbursement or reduce the rate of interest thereon (other
than interest pursuant to Section 2.06(c)), or reduce any Fees
payable hereunder, or change the form or currency of payment of any Obligation,
without the written consent of each Lender directly affected thereby (it being
understood that any amendment or modification to the financial definitions in
this Agreement shall not constitute a reduction in the rate of interest for
purposes of this clause (ii));


 


(iii)                            (A) change the
scheduled final maturity of any Loan, or any scheduled date of payment of or
the installment otherwise due on the principal amount of any Tranche B Loan
under Section 2.09, (B) postpone the date for payment of any
Reimbursement Obligation or any interest or fees payable hereunder, (C) change
the amount of, waive or excuse any such payment (other than waiver of any
increase in the interest rate pursuant to Section 2.06(c)), or (D) postpone
the scheduled date of expiration of any Commitment or any Letter of Credit
beyond the Revolving Maturity Date, in any case, without the written consent of
each Lender directly affected thereby;


 


(iv)                              increase the maximum
duration of Interest Periods hereunder, without the written consent of each
Lender directly affected thereby;


 


(v)                                 permit the assignment or
delegation by Borrower of any of its rights or obligations under any Loan
Document, without the written consent of each Lender;


 


(vi)                              release all or substantially
all of the Guarantors from their Guarantee under the Guarantee Agreement
(except as expressly provided in the Guarantee Agreement), or limit their
liability in respect of such Guarantee, without the written consent of each
Lender;


 


(vii)                           release all or a substantial
portion of the Collateral from the Liens of the Security Documents or alter the
relative priorities of the Secured Obligations entitled to the Liens of the
Security Documents, in each case without the written consent of each Lender;


 


(viii)                        change Section 2.14(b),
(c) or (d) in a manner that would alter the pro rata sharing of payments or setoffs required thereby or
any other provision in a manner that would alter the pro rata
allocation among the Lenders of Loan disbursements, including the requirements
of Sections 2.02(a), 2.17(d) and 2.18(d), without the
written consent of each Lender directly affected thereby;


 


(ix)                                change any provision of this
Section 10.02(b) or Section 10.02(c) or (d),
without the written consent of each Lender directly affected thereby;


 


(x)                                   change the percentage set
forth in the definition of “Required Lenders,” “Required Class Lenders,” “Required
Revolving Lenders” or any other provision of any Loan Document (including this
Section) specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), other than to
increase


 


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such percentage or number or to give any
additional Lender or group of Lenders such right to waive, amend or modify or
make any such determination or grant any such consent;


 


(xi)                                change the application of
prepayments as among or between Classes under Section 2.10(h),
without the written consent of the Required Class Lenders of each Class that
is being allocated a lesser prepayment as a result thereof (it being understood
that the Required Lenders may waive, in whole or in part, any mandatory
prepayment so long as the application, as between Classes, of any portion of
such prepayment that is still required to be made is not changed);


 


(xii)                             change or waive the
application of prepayments of Tranche B Loans set forth in Section 2.10(h) to
the remaining scheduled amortization payments to be made thereon under Section 2.09,
without the written consent of the Required Class Lenders of such Class;


 


(xiii)                          change or waive any
provision of Article X as the same applies to any Agent, or any
other provision hereof as the same applies to the rights or obligations of any
Agent, in each case without the written consent of such Agent;


 


(xiv)                         change or waive any
obligation of the Lenders relating to the issuance of or purchase of
participations in Letters of Credit, without the written consent of the Administrative
Agent and the Issuing Bank;


 


(xv)                            change or waive any
provision hereof relating to Swingline Loans (including the definition of “Swingline
Commitment”), without the written consent of the Swingline Lender;


 


(xvi)                         expressly change or waive
any condition precedent in Section 4.02 to any Revolving Borrowing
without the written consent of the Required Revolving Lenders; or


 


(xvii)                      expressly change or waive
any condition precedent in Section 4.02 to any Delayed Draw Tranche
B Loan without the written consent of the Required Delayed Draw Tranche B
Lenders.


 


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


 


(d)                                 Dissenting Lenders. 
If, in connection with any proposed change, waiver, discharge or
termination of the provisions of this Agreement as contemplated by 


 


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Section 10.02(b), 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 Borrower shall have the right to replace all, but not less
than all, of such non-consenting Lender or Lenders (so long as all
non-consenting Lenders are so replaced) with one or more persons pursuant to Section 2.16
so long as at the time of such replacement each such new Lender consents to the
proposed change, waiver, discharge or termination.  Each Lender agrees that, if Borrower elects
to replace such Lender in accordance with this Section, it shall promptly
execute and deliver to the Administrative Agent an Assignment and Assumption to
evidence such sale and purchase and shall deliver to the Administrative Agent
any Note (if Notes have been issued in respect of such Lender’s Loans) subject
to such Assignment and Assumption; provided
that the failure of any such non-consenting Lender to execute an Assignment and
Assumption shall not render such sale and purchase (and the corresponding
assignment) invalid and such assignment shall be recorded in the Register.


 


(e)                                  Refinanced Tranche B Loans. 
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, Borrower and the
Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing of all outstanding Tranche B Loans (“Refinanced Term Loans”) with a replacement “B” term loan
tranche hereunder which shall constitute Tranche B Loans hereunder (“Replacement Term Loans”); provided
that (a) the aggregate principal amount of Replacement Term Loans shall
not exceed the aggregate principal amount of Refinanced Term Loans, (b) the
Applicable Margin for Replacement Term Loans shall not be higher than the
Applicable Margin for Refinanced Term Loans, (c) the weighted average life
to maturity of Replacement Term Loans shall not be shorter than the weighted
average life to maturity of Refinanced Term Loans at the time of such
refinancing and (d) all other terms applicable to Replacement Term Loans
shall be substantially identical to, or less favorable to the Lenders providing
Replacement Term Loans than, those applicable to Refinanced Term Loans
immediately prior to such refinancing, except to the extent necessary to
provide for covenants and other terms applicable to any period after the Final
Maturity Date.


 


SECTION 10.03                                      Expenses; Indemnity;
Damage Waiver.


 


(a)                                  Costs and Expenses. 
Borrower shall pay (i) all amounts required to be paid in the
Engagement Letter and (ii) reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent and their respective Affiliates
(including half of the reasonable fees, charges and disbursements of counsel
for the Administrative Agent and/or the Collateral Agent) in connection with
the syndication of the credit facilities provided for herein (including the
obtaining and maintaining of CUSIP numbers for the Loans) and the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents.  Borrower shall pay
(i) reasonable out-of-pocket expenses incurred by the Administrative
Agent, the Collateral Agent and their respective Affiliates (including all of
the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and/or Collateral Agent) in connection with any amendment,
amendment and restatement, modification or waiver of the provisions hereof or
of the other Loan Documents (whether or not the transactions contemplated
hereby or thereby shall be consummated), including in connection with
post-closing searches to confirm that security filings and recordations have
been properly made, (ii) all reasonable 


 


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out-of-pocket expenses incurred by the Issuing Bank in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder, (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank (including all of the fees, charges and disbursements of any counsel for
the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank)
in connection with the enforcement or protection of its rights and remedies (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section 10.03, or (B) in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit, and (iv) all
documentary and similar taxes and charges in respect of the Loan Documents.


 


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


 


(c)                                  Reimbursement by Lenders. 
To the extent that Borrower for any reason fails to indefeasibly pay any
amount required under paragraph (a) or (b) of this Section 10.03
to be paid by it to the Administrative Agent (or any sub-agent thereof), the
Collateral Agent, the Issuing Bank, the Swingline Lender or any Related Party
of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the Collateral Agent 


 


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(or any sub-agent thereof), the Issuing Bank, the Swingline Lender or
such Related Party, as the case may be, such Lender’s pro
rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative
Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof),
the Swingline Lender or the Issuing Bank in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent
(or any such sub-agent), the Collateral Agent (or any sub-agent thereof), the
Swingline Lender or Issuing Bank in connection with such capacity.  The obligations of the Lenders under this
paragraph (c) are subject to the provisions of Section 2.14.  For purposes hereof, a Lender’s “pro  rata share”
shall be determined based upon its share of the sum of the total Revolving
Exposure, outstanding Tranche B Loans and unused Commitments at the time.


 


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


 


(e)                                  Payments.  All amounts
due under this Section shall be payable not later than 3 Business Days
after demand therefor.


 


SECTION 10.04                                      Successors and Assigns.


 


(a)                                  Successors and Assigns Generally. 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Lender, the Swingline
Lender and each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of paragraph (b) of this Section 10.04,
(ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section 10.04 or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted
assignment or transfer by Borrower or any Lender shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in paragraph (d) of this Section and, to
the extent expressly contemplated hereby, the other Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b)                                 Assignments by Lenders. 
Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it); provided that


 


(i)                                     except in the case of (x) any
assignment made in connection with the primary syndication of the Commitment
and Loans by the Arrangers, (y) an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing to
it or (z) in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date)
shall not be less than $2.5 million, in the case of any assignment in respect
of Revolving Loans and/or Revolving Commitments of either Class, or $1.0 million,
in the case of any assignment in respect of Tranche B Loans and/or Tranche B
Loan Commitments, unless each of the Administrative Agent and, so long as no
Default has occurred and is continuing, Borrower otherwise consent (each such
consent not to be unreasonably withheld or delayed);


 


(ii)                               each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loan
or the Commitment assigned, except that this clause (ii) shall not
prohibit any Lender from assigning all or a portion of its rights and
obligations among separate tranches on a non-pro rata
basis; and


 


(iii)                            the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent, manually),
shall pay to the Administrative Agent a processing and recordation fee of
$3,500 (which fee may be waived or reduced in the sole discretion of the
Administrative Agent) and deliver appropriate tax forms.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this Section 10.04, from and
after the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections 2.12,
2.13, 2.15 and 10.03 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale 


 


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by such Lender of a participation in such rights and obligations in
accordance with paragraph (d) of this Section 10.04.


 


(c)                                  Register.  The
Administrative Agent, acting solely for this purpose as an agent of Borrower,
shall maintain at its office in New York, New York a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of
the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and Borrower, the Administrative Agent, the Issuing Bank and the
Lenders shall treat each person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by Borrower, the Issuing
Bank, the Collateral Agent, the Swingline Lender and any Lender (with respect
to its own interest only), at any reasonable time and from time to time upon
reasonable prior notice.


 


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


 


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any  provision of the Loan Documents; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in clause (i), (ii) or (iii) of the
first proviso to Section 10.02(b) that affects such
Participant.  Subject to paragraph (e) of
this Section, Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 2.15 (subject to the
requirements of those Sections) to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.14
as though it were a Lender.


 


(e)                                  Limitations on Participant Rights. 
A Participant shall not be entitled to receive any greater payment under
Sections 2.12, 2.13 and 2.15 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with Borrower’s prior written consent.


 


(f)                                    Certain Pledges. 
Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such



 


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Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.  In the case of any Lender that
is a fund that invests in bank loans, such Lender may, without the consent of
Borrower or the Administrative Agent, collaterally assign or pledge all or any
portion of its rights under this Agreement, including the Loans and Notes or
any other instrument evidencing its rights as a Lender under this Agreement, to
any holder of, trustee for, or any other representative of holders of,
obligations owed or securities issued, by such fund, as security for such
obligations or securities.


 


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


 


(h)                                 If any Gaming Authority shall determine
that any Lender is not a Qualified Person (in any such case, a “Former Lender”), the Administrative Agent
and each Issuing Lender or Borrower shall have the right (but not the duty) to
designate a lender or lenders (in each case, a “Substitute Lender,” which may be any Lender or Lenders that
agree to become a Substitute Lender and, if not an existing Lender, with the
consent of the Administrative Agent and Borrower to the extent provided in Section 10.04(b))
that have agreed to assume the rights and obligations of the Former Lender,
subject to receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent that such Substitute Lender is a Qualified Person, or has
a reasonable basis for a belief that the Substitute Lender is eligible to be a
Qualified Person, and compliance with Gaming Laws.  The Substitute Lender shall assume the rights
and obligations of the Former Lender under this Agreement pursuant to an
Assignment and Assumption, which assumption shall be required to comply with,
and shall become effective in accordance with, the provisions of Section 10.04(b);
provided that the purchase price
to be paid by the Substitute Lender to the Administrative Agent for the account
of the Former Lender for such assumption shall equal the sum of (i) the
unpaid principal amount of any Notes held or Loans made by the Former Lender
plus accrued interest thereon, plus (ii) the Former Lender’s pro rata share of the aggregate amount of
Reimbursement Obligations that have not been reimbursed by Borrower, plus accrued
interest thereon, plus (iii) such Former Lender’s pro rata share of accrued Fees to the date
of the assumption; and provided, further, Borrower shall pay all
obligations owing to the Former Lender under the Loan Documents.  Each Lender agrees that if it becomes a
Former Lender, upon payment to it by Borrower of all such amounts, if any,
owing to it under the Loan Documents, it will execute and deliver an Assignment
and Assumption upon payment of such purchase price.


 


(i)                                     Notwithstanding the provisions of
subsection (h) of this Section 10.04, but subject to
applicable Gaming Laws, if any Lender becomes a Former Lender, and if the Administrative
Agent or Borrower fails to find a Substitute Lender pursuant to subsection (h) of
this 


 


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Section within any time period specified by the appropriate Gaming
Authority for the withdrawal of a Former Lender (the “Withdrawal Period”), Borrower shall
immediately (i) prepay in full the outstanding principal amount of each
Note held or Loan made by such Former Lender, together with accrued interest
thereon to the later of (x) the date of payment or (y) the last day
of any Withdrawal Period, and (ii) at the option of Borrower either (A) place
an amount equal to such Former Lender’s LC Exposure, if any, in a separate cash
collateral account with the Administrative Agent for each outstanding Letter of
Credit, which amount will be applied by the Administrative Agent to satisfy
Borrower’s Reimbursement Obligations to the respective Issuing Lender under the
applicable Letter of Credit, (B) if no Default or Event of Default then
exists, terminate the Class A Revolving Commitment of such Former Lender,
at which time the other Class A Lenders’ Class A Revolving Loan
percentages will be automatically adjusted as a result thereof; provided that the option specified in this
clause (B) may only be exercised if, immediately after giving effect
thereto, no Lender’s outstanding Class A Revolving Loans, when added to
the product of (a) such Lender’s Revolving Loan Percentage and (b) the
sum of (I) the aggregate amount of all Letter of Credit Outstandings at
such time and (II) the aggregate amount of all Swingline Loans then
outstanding, would exceed such Lender’s Revolving Loan Commitment at such time
and (C) if no Default or Event of Default then exists, terminate the Class B
Revolving Commitment of such Former Lender, at which time the other Class B
Lenders’ Class B Revolving Loan percentages will be automatically adjusted
as a result thereof.


 


(j)                                     Subject to the last sentence of this Section 10.04(j),
each Lender agrees that all participations and assignments made hereunder shall
be subject to, and made in compliance with, all Gaming Laws applicable to
lenders.  Each Lender agrees further that
it will not grant participations or assignments (other than to funds that
invest in bank loans and are managed by the same investment advisor of such assigning
Lender) prior to receiving notice from the Administrative Agent that it has
completed the primary syndication of this facility.  The Administrative Agent shall provide such
notice to the Lenders and Borrower promptly after completing such primary
syndication.  Borrower hereby
acknowledges that unless Borrower has provided the Lenders with a written
opinion of counsel as to the suitability standards applicable to lenders of any
relevant Gaming Authority, no Lender shall have the responsibility of
determining whether or not a potential assignee of such Lender would be a
Qualified Person under the Gaming Laws of any such jurisdiction (provided that any relevant Gaming
Authority may nonetheless determine such assignee not to be a Qualified Person).


 


SECTION 10.05                                      Survival of Agreement. 
All covenants, agreements, representations and warranties made by the
Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and notwithstanding
that the Agents, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of Sections 2.12,
2.14, 2.15 and Article X (other than Section 10.12)
shall survive and remain in full force and effect 


 


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regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the payment of the Reimbursement
Obligations, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.


 


SECTION 10.06                                      Counterparts; Integration;
Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents, and any separate letter agreements with
respect to fees payable to the Administrative Agent, constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


SECTION 10.07                                      Severability. 
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.


 


SECTION 10.08                                      Right of Setoff. 
If an Event of Default shall have occurred and be continuing, each
Lender, the Issuing Bank, and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by applicable Requirements of Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Bank or any such Affiliate to or for the
credit or the account of Borrower against any and all of the obligations of
Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the Issuing Bank, irrespective of whether or not
such Lender or the Issuing Bank shall have made any demand under this Agreement
or any other Loan Document and although such obligations of Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender or the
Issuing Bank different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender, the Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the Issuing Bank or their respective
Affiliates may have.  Each Lender and the
Issuing Bank agrees to notify Borrower and the Administrative Agent promptly
after any such setoff and application; provided that
the failure to give such notice shall not affect the validity of such setoff
and application.


 


159

















 


SECTION 10.09                                      Governing Law;
Jurisdiction; Consent to Service of Process.


 


(a)                                  Governing Law. 
This Agreement shall be construed in accordance with and governed by the
law of the State of New York, without regard to conflicts of law principles
that would require the application of the laws of another jurisdiction.


 


(b)                                 Submission to Jurisdiction. 
Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State court or, to the fullest extent permitted by applicable law, in
such Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Loan Party or its properties in the courts of any
jurisdiction.


 


(c)                                  Waiver of Venue. 
Borrower hereby irrevocably and unconditionally waives, to the fullest
extent permitted by applicable Requirements of Law, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in Section 10.09(b).  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable Requirements of Law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(d)                                 Service of Process. 
Each party hereto irrevocably consents to service of process in any
action or proceeding arising out of or relating to any Loan Document, in the manner
provided for notices (other than telecopier or electronic communications) in Section 10.01.  Nothing in this Agreement or any other Loan
Document will affect the right of any party hereto to serve process in any
other manner permitted by applicable Requirements of Law.


 


SECTION 10.10                                      Waiver of Jury Trial. 
Borrower hereby waives, to the fullest extent permitted by applicable
Requirements of Law, any right it may have to a trial by jury in any legal
proceeding directly or indirectly arising out of or relating to this Agreement,
any other Loan Document or the transactions contemplated hereby (whether based
on contract, tort or any other theory). 
Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it and the other parties hereto
have been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this Section.


 


160
















 


SECTION 10.11                                      Headings.  Article and
Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.


 


SECTION 10.12                                      Treatment of Certain
Information; Confidentiality.  Each of the
Administrative Agent, the Lenders and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and other
representatives (it being understood that the persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any Governmental Authority or regulatory authority (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Requirements of
Law or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies hereunder or
under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section 10.12, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to Borrower and its obligations or (iii) any rating
agency for the purpose of obtaining a credit rating applicable to any Lender, (g) with
the consent of Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the Issuing Bank or any of
their respective Affiliates on a nonconfidential basis from a source other than
Borrower.  For purposes of this Section, “Information” means all information received from Borrower or
any of its Subsidiaries relating to Borrower or any of its Subsidiaries or any
of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential
basis prior to disclosure by Borrower or any of its Subsidiaries; provided that, in the case of information received from
Borrower or any of its Subsidiaries after the Closing Date, such information is
clearly identified at the time of delivery as confidential.  Any person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such person has
exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord to its own confidential information.


 


SECTION 10.13                                      USA PATRIOT Act Notice. 
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it is required to obtain, verify
and record information that identifies Borrower, which information includes the
name, address and tax identification number of Borrower and other information
regarding Borrower that will allow such Lender or the Administrative Agent, as
applicable, to identify Borrower in accordance with the Act.  This notice is given in accordance with the
requirements of the Act and is effective as to the Lenders and the Administrative
Agent.


 


161

















 


SECTION 10.14                                      Interest Rate Limitation. 
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable Requirements
of Law (collectively, the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”)
which may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable Requirements of Law, the rate
of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and,
to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.


 


SECTION 10.15                                      Lender Addendum. 
Each Lender that became a party to this Agreement on the Closing Date
did so by delivering to the Administrative Agent a Lender Addendum duly
executed by such Lender, Borrower and the Administrative Agent.


 


SECTION 10.16                                      Obligations Absolute. 
To the fullest extent permitted by applicable Requirements of Law, all
obligations of Borrower hereunder shall be absolute and unconditional irrespective
of:


 


(a)                                  any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or the like
of any Loan Party;


 


(b)                                 any lack of validity or enforceability of
any Loan Document or any other agreement or instrument relating thereto against
any Loan Party;


 


(c)                                  any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from any Loan
Document or any other agreement or instrument relating thereto;


 


(d)                                 any exchange, release or non-perfection
of any Collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Obligations;


 


(e)                                  any exercise or non-exercise, or any
waiver of any right, remedy, power or privilege under or in respect hereof or
any Loan Document; or


 


(f)                                    any other circumstances which might
otherwise constitute a defense available to, or a discharge of, the Loan Parties.


 


162

















 


Annex I


 


Amortization Table


 


	
  Date

  	
   

  	
  Initial
  Tranche B Loan

  Amount

  	
   

  	
  Total
  Amount**

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2006

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2007

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  June 30,
  2007

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  September 30,
  2007

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  December 31,
  2007

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2008

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  June 30,
  2008

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  September 30,
  2008

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  December 31,
  2008

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2009

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  June 30,
  2009

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  September 30,
  2009

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  December 31,
  2009

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2010

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  June 30,
  2010

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  September 30,
  2010

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  December 31,
  2010

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2011

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  June 30,
  2011

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  September 30,
  2011

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  December 31,
  2011

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  March 31,
  2012

  	
   

  	
  $

  	
  100,000

  	
   

  	
  $

  	
  150,000

  	
   

  
	
  Tranche
  B Maturity Date

  	
   

  	
  $

  	
  37,700,000

  	
   

  	
  $

  	
  56,600,000

  	
   

  



 






**          In the event that Delayed
Draw Tranche B Loans have been made on or before December 31, 2006 but the
aggregate principal amount of such Delayed Draw Tranche B Loans that were made
are less than the aggregate Delayed Draw Tranche B Commitments in effect on the
Closing Date, then the amount in the “Total Amount” column for each applicable
Tranche B Repayment Date shall be reduced on a pro rata basis to give effect to
the lower Delayed Draw Tranche B Loans actually made.  For example, if on or before December 31,
2006 only $10,000,000 in aggregate principal amount of Delayed Draw Tranche B
Loans have actually been made, then the amount in the “Total Amount” column for
each date, other than the Tranche B Maturity Date, shall be $125,000, and the
amount in such column for the Tranche B Maturity Date would be $47,150,000.


 

















 


EXHIBIT B


 


Form of
Opinion


 


(a)                                  Borrower and each Covered Guarantor is
validly existing and in good standing under the laws of Delaware and has the
organizational power and authority to enter into, execute, deliver and perform
each New Transaction Document.


 


(b)                                 The execution, delivery and performance
by Borrower and each Covered Guarantor of each New Transaction Document does
not require any action by or in respect of, or filing with, any official body
that operates under the Applicable Laws or official thereof, except such as
have been obtained or made and are in full force and effect.


 


(c)                                  The execution, delivery and performance
by Borrower and each Covered Guarantor of each New Transaction Document has
been duly authorized by all necessary organizational action and will not
contravene the organizational and/or operating documents of the Borrower or any
Covered Guarantor.  The execution,
delivery and performance by Borrower and each Covered Guarantor of each New
Transaction Document will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the Existing Credit
Agreement, the Amendment and Restatement Agreement, the Restated Credit
Agreement or any material written contract or agreement filed as an exhibit to
the Company’s Annual Report on Form 10-K for the year ended December 31,
2009 or to any of the Company’s Quarterly Reports on Form 10-Q or Current
Reports on Form 8-K since the date of such Annual Report, except to the
extent that any such breach, violation or default could not reasonably be
expected to have a material adverse effect. 
The execution, delivery and performance by Borrower and each Covered
Guarantor of each New Transaction Document will not violate any Applicable Laws
except to the extent that any such violation could not reasonably be expected
to have a material adverse effect. 
Assuming that the Loan Parties will comply with the provisions of the
Restated Credit Agreement relating to the use of proceeds, the making of the
loans under the Restated Credit Agreement will not violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.


 


(d)                                 Each of the New Transaction Documents has
been duly executed and delivered by Borrower and each Covered Guarantor.  Each of the New Transaction Documents
constitutes the legal, valid and binding obligation of each of the Loan Parties
party thereto, enforceable against it in accordance with its terms.


 


(e)                                  Subject to the assumptions and
qualifications set forth in this opinion, the security interest created under
each Security Document will, upon execution and delivery of the Amendment and
Restatement Agreement by Borrower and each Covered Guarantor, continue as a
valid security interest in favor of the Collateral Agent for the benefit of the
Lenders in the respective Collateral referred to therein to the same extent as
prior to the effectiveness of the Restated Credit Agreement (as to which
matters, as of the Closing Date, we refer you to our opinion dated June 16,
2006 (subject to the assumptions, qualifications, exclusions and limitations
stated therein)).


 





















 


Definitions


 


“Amendment and
Restatement Agreement” means the Amendment and Restatement Agreement, dated as
of March 31, 2010, among the Jacobs Entertainment, Inc., Credit
Suisse AG, Cayman Islands Branch, as Administrative Agent, the Lenders party
thereto and Wells Fargo Bank, National Association, as Swingline Lender.


 


“Applicable Laws” means
the laws of the State of New York, the Delaware General Corporation Law, the
Delaware Limited Liability Company Law and the laws of the United States of America
typically applicable to transactions of the type contemplated by the Amendment.


 


“Closing Date” has the
meaning set forth in the Restated Credit Agreement.


 


“Existing Credit
Agreement” has the meaning set forth in the Amendment and Restatement
Agreement.


 


“Loan Parties” has the
meaning set forth in the Restated Credit Agreement.


 


“New Transaction
Documents” means the Amendment and Restatement Agreement and the Restated
Credit Agreement (as defined in the Amendment and Restatement Agreement).