Exhibit 10.1


 




 





 


Published
CUSIP Number:                    


 


SECOND AMENDED AND RESTATED

CREDIT AGREEMENT


 


Dated
as of June 8, 2009


 


among


 


INTERNATIONAL
GAME TECHNOLOGY,

as the Borrower,


 


WELLS FARGO BANK, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,


 


BANK OF
AMERICA, N.A.,

as Syndication
Agent,


 


THE ROYAL BANK OF SCOTLAND PLC,


 


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD./

UNION BANK OF CALIFORNIA, N.A.


 


and


 


MIZUHO CORPORATE BANK, LTD.,

as
Co-Documentation Agents,


 


and


 


The
Other Lenders Party Hereto


 


BANC OF
AMERICA SECURITIES LLC,


 


WELLS
FARGO BANK, N.A.,

and

RBS
SECURITIES, INC.,

as

Joint Lead Arrangers and Joint Book Managers


 




 





 

















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
  1.01

  	
  Defined
  Terms

  	
   

  	
  1

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
   

  	
  28

  
	
  1.03

  	
  Accounting
  Terms

  	
   

  	
  28

  
	
  1.04

  	
  Rounding

  	
   

  	
  29

  
	
  1.05

  	
  Times
  of Day

  	
   

  	
  29

  
	
  1.06

  	
  Letter
  of Credit Amounts

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
  29

  
	
  2.01

  	
  Committed
  Loans

  	
   

  	
  29

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Committed Loans

  	
   

  	
  30

  
	
  2.03

  	
  Letters
  of Credit

  	
   

  	
  32

  
	
  2.04

  	
  Swing
  Line Loans

  	
   

  	
  41

  
	
  2.05

  	
  Prepayments

  	
   

  	
  44

  
	
  2.06

  	
  Termination
  or Reduction of Commitments

  	
   

  	
  45

  
	
  2.07

  	
  Repayment
  of Loans

  	
   

  	
  46

  
	
  2.08

  	
  Interest

  	
   

  	
  46

  
	
  2.09

  	
  Fees

  	
   

  	
  47

  
	
  2.10

  	
  Computation
  of Interest and Fees

  	
   

  	
  48

  
	
  2.11

  	
  Evidence
  of Debt

  	
   

  	
  48

  
	
  2.12

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
   

  	
  48

  
	
  2.13

  	
  Sharing
  of Payments by Lenders

  	
   

  	
  50

  
	
  2.14

  	
  Cash
  Collateral for L/C Issuer or Swing Line Lender

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  51

  
	
  3.01

  	
  Taxes

  	
   

  	
  51

  
	
  3.02

  	
  Illegality

  	
   

  	
  54

  
	
  3.03

  	
  Inability
  to Determine Rates

  	
   

  	
  55

  
	
  3.04

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
   

  	
  55

  
	
  3.05

  	
  Compensation
  for Losses

  	
   

  	
  57

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
   

  	
  57

  
	
  3.07

  	
  Survival

  	
   

  	
  58

  



 


i

















 


	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT
  EXTENSIONS

  	
   

  	
  58

  
	
  4.01

  	
  Conditions
  of Effectiveness

  	
   

  	
  58

  
	
  4.02

  	
  Conditions
  to all Credit Extensions

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  60

  
	
  5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
   

  	
  60

  
	
  5.02

  	
  Authorization;
  No Contravention

  	
   

  	
  60

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
   

  	
  60

  
	
  5.04

  	
  Binding
  Effect

  	
   

  	
  61

  
	
  5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
   

  	
  61

  
	
  5.06

  	
  Litigation

  	
   

  	
  61

  
	
  5.07

  	
  No
  Default

  	
   

  	
  61

  
	
  5.08

  	
  Ownership
  of Property; Liens

  	
   

  	
  62

  
	
  5.09

  	
  Environmental
  Compliance

  	
   

  	
  62

  
	
  5.10

  	
  Insurance

  	
   

  	
  62

  
	
  5.11

  	
  Taxes

  	
   

  	
  62

  
	
  5.12

  	
  ERISA
  Compliance

  	
   

  	
  62

  
	
  5.13

  	
  Significant
  Subsidiaries; Equity Interests

  	
   

  	
  63

  
	
  5.14

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

  	
   

  	
  63

  
	
  5.15

  	
  Disclosure

  	
   

  	
  63

  
	
  5.16

  	
  Compliance
  with Laws

  	
   

  	
  64

  
	
  5.17

  	
  Intellectual
  Property; Licenses, Etc.

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  64

  
	
  6.01

  	
  Financial
  Statements

  	
   

  	
  64

  
	
  6.02

  	
  Certificates;
  Other Information

  	
   

  	
  65

  
	
  6.03

  	
  Notices

  	
   

  	
  66

  
	
  6.04

  	
  Payment
  of Obligations

  	
   

  	
  67

  
	
  6.05

  	
  Preservation
  of Existence, Etc.

  	
   

  	
  67

  
	
  6.06

  	
  Maintenance
  of Properties

  	
   

  	
  67

  
	
  6.07

  	
  Maintenance
  of Insurance

  	
   

  	
  67

  
	
  6.08

  	
  Compliance
  with Laws

  	
   

  	
  67

  
	
  6.09

  	
  Books
  and Records

  	
   

  	
  68

  



 


ii

















 


	
  6.10

  	
  Inspection
  Rights

  	
   

  	
  68

  
	
  6.11

  	
  Use
  of Proceeds

  	
   

  	
  68

  
	
  6.12

  	
  Springing
  Lien Approval

  	
   

  	
  68

  
	
  6.13

  	
  Springing
  Lien

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
   

  	
  69

  
	
  7.01

  	
  Liens

  	
   

  	
  69

  
	
  7.02

  	
  Indebtedness

  	
   

  	
  70

  
	
  7.03

  	
  Fundamental
  Changes

  	
   

  	
  70

  
	
  7.04

  	
  Hostile
  Tender Offers

  	
   

  	
  71

  
	
  7.05

  	
  Change
  in Nature of Business

  	
   

  	
  71

  
	
  7.06

  	
  Use
  of Proceeds

  	
   

  	
  71

  
	
  7.07

  	
  Financial
  Covenants

  	
   

  	
  71

  
	
  7.08

  	
  Restricted
  Payments

  	
   

  	
  72

  
	
  7.09

  	
  Capital
  Markets Indebtedness

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  73

  
	
  8.01

  	
  Events
  of Default

  	
   

  	
  73

  
	
  8.02

  	
  Remedies
  Upon Event of Default

  	
   

  	
  75

  
	
  8.03

  	
  Application
  of Funds

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
   

  	
  77

  
	
  9.01

  	
  Appointment
  and Authority

  	
   

  	
  77

  
	
  9.02

  	
  Rights
  as a Lender

  	
   

  	
  77

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
   

  	
  77

  
	
  9.04

  	
  Reliance
  by Administrative Agent

  	
   

  	
  78

  
	
  9.05

  	
  Delegation
  of Duties

  	
   

  	
  79

  
	
  9.06

  	
  Resignation
  of Administrative Agent

  	
   

  	
  79

  
	
  9.07

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
   

  	
  79

  
	
  9.08

  	
  No
  Other Duties, Etc.

  	
   

  	
  80

  
	
  9.09

  	
  Administrative
  Agent May File Proofs of Claim

  	
   

  	
  80

  
	
  9.10

  	
  Collateral
  Matters

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
   

  	
  81

  
	
  10.01

  	
  Amendments,
  Etc.

  	
   

  	
  81

  
	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  	
  82

  
	
  10.03

  	
  No
  Waiver; Cumulative Remedies

  	
   

  	
  84

  



 


iii

















 


	
  10.04

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  	
  84

  
	
  10.05

  	
  Payments
  Set Aside

  	
   

  	
  86

  
	
  10.06

  	
  Successors
  and Assigns

  	
   

  	
  87

  
	
  10.07

  	
  Treatment
  of Certain Information; Confidentiality

  	
   

  	
  90

  
	
  10.08

  	
  Right
  of Setoff

  	
   

  	
  91

  
	
  10.09

  	
  Interest
  Rate Limitation

  	
   

  	
  91

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  	
  92

  
	
  10.11

  	
  Survival
  of Representations and Warranties

  	
   

  	
  92

  
	
  10.12

  	
  Severability

  	
   

  	
  92

  
	
  10.13

  	
  Replacement
  of Lenders

  	
   

  	
  92

  
	
  10.14

  	
  Governing
  Law; Jurisdiction; Etc.

  	
   

  	
  93

  
	
  10.15

  	
  Waiver
  of Jury Trial

  	
   

  	
  94

  
	
  10.16

  	
  USA
  PATRIOT Act Notice

  	
   

  	
  94

  
	
  10.17

  	
  Cooperation
  with Gaming Boards

  	
   

  	
  94

  



 


iv
















 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”)
is entered into as of June 8,
2009, among INTERNATIONAL GAME TECHNOLOGY, a Nevada corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), WELLS FARGO BANK, N.A. (“Wells Fargo”), as Administrative Agent, Swing Line
Lender and L/C Issuer, BANK OF AMERICA, N.A., as Syndication Agent, and THE
ROYAL BANK OF SCOTLAND PLC, THE BANK OF TOYKO-MITSUBISHI UFJ, LTD./UNION BANK
OF CALIFORNIA, N.A. and MIZUHO CORPORATE BANK, LTD., as Co-Documentation
Agents.  Banc of America Securities LLC,
Wells Fargo Bank, N.A. and RBS Securities, Inc. are the Joint Lead
Arrangers and Joint Book Managers for this Agreement.


 


The Borrower, various lenders and Wells Fargo, as
Administrative Agent for such Lenders, are parties to that certain First
Amended and Restated Credit Agreement dated as of December 20, 2005 (the “Existing
Credit Agreement”).  The Borrower,
the Required Lenders and the Administrative Agent have agreed that the Existing
Credit Agreement shall be amended and restated in its entirety.


 


In consideration of the mutual covenants and
agreements herein contained, the parties hereto agree that the Existing Credit
Agreement shall be amended and restated in its entirety as follows:


 


ARTICLE
I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“Adjusted Consolidated EBITDA” means, for any
period, Consolidated EBITDA for such period adjusted, on a consistent basis and
in a manner reasonably satisfactory to the Administrative Agent, to reflect
purchases, acquisitions, sales, transfers and other dispositions, made by the
Borrower and its Subsidiaries during such period as if they occurred at the
beginning of such period.


 


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


 


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


 


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


 


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


 


1

















 


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


 


“Aggregate Revolving Commitments” means the
Revolving Commitments of all Revolving Lenders. 
As of the Restatement Effective Date, the Aggregate Revolving
Commitments are $2,075,000,000, $1,666,500,000 of which are Class A
Commitments and $408,500,000 of which are Class B Commitments.


 


“Agreement” means this Second Amended and
Restated Credit Agreement.


 


“Amendment and Restatement Agreement” means the
Amendment and Restatement Agreement dated as of June 8, 2009 among
the Borrower, the Lenders party thereto and the Administrative Agent.


 


“Applicable Rate” means


 


(a)           with
respect to any Class A Loan, Class A Commitment or Class A
Letter of Credit Participation, from time to time, the following percentages
per annum, based upon the Debt Rating only, as set forth below:


 


	
  Level

  	
   

  	
  Debt Rating

  Sr. Unsecured

  	
   

  	
  Facility Fee

  	
   

  	
  Applicable

  Eurodollar

  Rate

  	
   

  	
  All-In Drawn

  
	
  I

  	
   

  	
  A3/A- or higher

  	
   

  	
  45 bps

  	
   

  	
  180 bps

  	
   

  	
  225 bps

  
	
  II

  	
   

  	
  Baa1/BBB+

  	
   

  	
  55 bps

  	
   

  	
  220 bps

  	
   

  	
  275 bps

  
	
  III

  	
   

  	
  Baa2/BBB

  	
   

  	
  65 bps

  	
   

  	
  260 bps

  	
   

  	
  325 bps

  
	
  IV

  	
   

  	
  Baa3/BBB-

  	
   

  	
  75 bps

  	
   

  	
  300 bps

  	
   

  	
  375 bps

  
	
  V

  	
   

  	
  Non Investment Grade

  	
   

  	
  85 bps

  	
   

  	
  340 bps

  	
   

  	
  425 bps

  



 


If a Debt Rating is issued by each of S&P and
Moody’s, then the lower of such Debt Ratings shall apply (with the Debt Rating
for Pricing Level I being the highest and the Debt Rating for Pricing Level V
being the lowest), unless there is a split in Debt Ratings of more than one
level, in which case the Pricing Level that is one level higher than the
Pricing Level of the lower Debt Rating shall apply.


 


The Applicable Rate for Base Rate Loans shall be equal
to the appropriate Eurodollar Rate less 100 bps;


 


2

















 


(b)           With respect to any Class B
Loan, Class B Commitment or Class B Letter of Credit Participation,
from time to time, the following percentages per annum, based upon the 


 


Debt Rating or Debt
to Total Capitalization Ratio, whichever results in more favorable pricing to
the Borrower, as set forth below:


 


	
  Level

  	
   

  	
  Debt
  Rating

  Sr. Unsecured

  	
   

  	
  Debt to
  Total

  Capitalization

  Ratio

  	
   

  	
  Facility
  Fee

  	
   

  	
  Applicable

  Eurodollar

  Rate

  	
   

  	
  All-In

  Drawn

  
	
  I

  	
   

  	
  A3/A- or higher

  	
   

  	
  < 17.5%

  	
   

  	
  7.5 bps

  	
   

  	
  17.5 bps

  	
   

  	
  25.0 bps

  
	
  II

  	
   

  	
  Baa1/BBB+

  	
   

  	
  > 17.5% <
  27.5%

  	
   

  	
  10.0 bps

  	
   

  	
  27.5 bps

  	
   

  	
  37.5 bps

  
	
  III

  	
   

  	
  Baa2/BBB

  	
   

  	
  > 27.5% <
  37.5%

  	
   

  	
  12.5 bps

  	
   

  	
  37.5 bps

  	
   

  	
  50.0 bps

  
	
  IV

  	
   

  	
  Baa3/BBB-

  	
   

  	
  > 37.5% <
  50.0%

  	
   

  	
  17.5 bps

  	
   

  	
  57.5 bps

  	
   

  	
  75.0 bps

  
	
  V

  	
   

  	
  Ba1/BB+ or lower

  	
   

  	
  > 50.0%

  	
   

  	
  22.5 bps

  	
   

  	
  77.5 bps

  	
   

  	
  100.0 bps

  



 


If a Debt Rating is issued by each of S&P and
Moody’s, then the higher of such Debt Ratings shall apply (with the Debt Rating
for Pricing Level I being the highest and the Debt Rating for Pricing Level V
being the lowest), unless there is a split in Debt Ratings of more than one
level, in which case the Pricing Level that is one level lower than the Pricing
Level of the higher Debt Rating shall apply.


 


The Applicable Rate for Base Rate Loans shall be 0 bps
at all times.


 


Any increase or decrease in the Applicable Rate
resulting from a change in the Debt to Total Capitalization Ratio shall become
effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b) in
the case of the first three fiscal quarters of any fiscal year, immediately
following the date a certification of the Debt to Total Capitalization Ratio is
delivered pursuant to Section 6.02(c) in the case of the final
quarter of any fiscal year or, in the event Borrower elects to provide a
certification of the Debt to Total Capitalization Ratio pursuant to Section 6.02(c) in
the case of any of the first three fiscal quarters of any fiscal year,
immediately following the date of such certificate; provided, however,
that if a Compliance Certificate is not delivered when due in accordance with Section 6.02(b) or
a certification of Debt to Total Capitalization Ratio is not delivered when due
in accordance with Section 6.02(c), with respect to any fiscal
period ending on or about September 30, then the Debt to Total
Capitalization Ratio shall be deemed to be that provided under Pricing Level V
as of the first Business Day after the date on which such Compliance
Certificate or certification of Debt to Total Capitalization Ratio was required
to have been delivered and shall continue to apply until the first Business Day
after the date such certificate is delivered. 
Notwithstanding the foregoing, if the Borrower shall elect to provide a
certification of the Debt to Total Capitalization Ratio pursuant to Section 6.02(c) for
any of the first three fiscal quarters of any fiscal year and the certification
of the Debt to Total Capitalization Ratio set forth in the Compliance
Certificate subsequently delivered pursuant to Section 6.02(b) for
such fiscal quarter shall result in a Pricing Level that is lower than that
reflected on the earlier certification, then the Borrower shall pay to the
Administrative Agent for the account of the Lenders such additional amounts as
will compensate the Lenders for the interest and fees that were underpaid
during the period between such certifications; and


 


3

















 


(c)           It
is agreed that Level III shall be in effect on the Restatement
Effective Date.  Thereafter, each change
in the Applicable Rate resulting from a publicly announced change in the Debt
Rating shall be effective, in the case of an upgrade, during the period
commencing on the date of delivery by the Borrower to the Administrative Agent
of notice thereof pursuant to Section 6.03(e) and ending on
the date immediately preceding the effective date of the next such change and,
in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
effective date of the next such change.


 


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


 


“Arrangers” means Banc of America  Securities LLC, Wells Fargo Bank, N.A. and The Royal Bank
of Scotland PLC, in their capacities as joint lead arrangers and joint book
managers.


 


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


 


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


 


“Audited Financial Statements” means the
audited consolidated balance sheet of the Borrower and its Subsidiaries for the
fiscal year ended on or about September 30, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Borrower and its Subsidiaries, including the
notes thereto.


 


“Availability Period” means in the case of the Class A
Loans, the Class A Availability Period and, in the case of the Class B
Loans, the Class B Availability Period.


 


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


 


“Base Rate” means for any day a fluctuating
rate per annum equal to the highest of (a) the Federal Funds Rate plus 1⁄2
of 1% in the case of Class B Loans and 1.25% in the case of Class A
Loans, (b) the rate of interest in effect for such day as publicly
announced from time to time by Wells Fargo as its “prime rate” and (c) solely
in the case of Class A Loans, the Eurodollar Rate as displayed at 11:00 a.m.
(London time) on such day (or if such day is not a Business Day, on the
preceding Business Day) for a one month Interest Period plus 1.25%.  The “prime rate” is a rate set by Wells Fargo
based upon various factors including Wells Fargo’s 


 


4

















 


costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.  Any change in such rate announced
by Wells Fargo shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Change of
Control” means the occurrence of a Rating Decline in connection with any of
the following events or series of events:


 


(a)           any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such
person or group has the right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of a
majority of the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the Borrower
on a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);


 


(b)           during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or 


 


5

















 


equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors);
or


 


(c)           any Person or two or more Persons acting in concert shall
have acquired, by contract or otherwise, the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower, or control over the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities
that such Person or group has the right to acquire pursuant to any option
right) representing a majority of the combined voting power of such securities.


 


“Class”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are Class A Loans or Class B Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Class A Commitment or Class B
Commitment, and, when used in reference to any Lender, refers to whether such
Lender is a Class A Lender or a Class B Lender.


 


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


 


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


 


“Class A Lender” means each Lender that
holds a Class A Commitment.


 


“Class A Loan” means each Loan outstanding
hereunder as to which the Lender is a Class A Lender.


 


“Class A Maturity Date” means the third
anniversary of the Restatement Effective Date.


 


“Class A Revolving Loan” means each
Revolving Loan made by a Class A Lender.


 


6

















 


“Class A Term Loan” has the meaning
specified in Section 2.01(b)(iv).


 


“Class A Term Loan Commitment” means, as
to each Class A Term Loan Lender, the commitment of that Lender to make
its Class A Term Loan.


 


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


 


“Class A Term Note” means the promissory
note made by the Borrower to a Class A Term Loan Lender evidencing that Class A
Lender’s Pro Rata Share of the Class A Term Loan Commitment, substantially
in the form of Exhibit C-3, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted.


 


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


 


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


 


“Class B Lender” means each Lender that
holds a Class B Commitment.


 


“Class B Loan” means each Revolving Loan
outstanding hereunder as to which the Lender is a Class B Lender.


 


“Class B Maturity Date” means December 19,
2010.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Collateral” means all of the “Collateral”
referred to in the Pledge Agreement.


 


“Commitment” means for each Lender, such Lender’s
Revolving Commitment and, in the case of each Class A Lender, its Class A
Term Loan Commitment.


 


“Commitments” means the Revolving Commitments
and the Class A Term Loan Commitment.


 


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


 


7

















 


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


 


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


 


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


 


“Consolidated EBITDA” means, for any period,
net income of the Borrower and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP plus the sum of, without
duplication, (i) Consolidated Interest Expense, (ii) provision for
income taxes of the Borrower and its Subsidiaries, (iii) depreciation and
amortization of the Borrower and its Subsidiaries, (iv) non-cash
stock-based compensation expense, (v) non-cash extraordinary losses, (vi) non-cash
non-recurring items and (vii) any losses arising in connection with the
early retirement of Indebtedness minus (x) extraordinary gains (or plus
extraordinary losses) from sales, exchanges and other dispositions not in the
ordinary course of business and other non-recurring items and (y) interest
income, each to the extent included in determining net income for such period.


 


“Consolidated Interest Expense” means, for any
period, the sum of, without duplication, all interest (adjusted to give effect
to all interest rate swap, cap or other interest rate hedging arrangements and
fees and expenses paid in connection therewith) paid or accrued in respect of
Consolidated Total Debt and paid or accrued in respect of Jackpot Liabilities
during such period, all as determined on a Consolidated basis in accordance
with GAAP.


 


“Consolidated Total Debt” means at a particular
time, without duplication, all of the following of the Borrower and its
Subsidiaries, whether or not included as indebtedness or liabilities in
accordance with GAAP (exclusive of Jackpot Liabilities to the extent that the
Borrower or any of its Subsidiaries has segregated funds for the payment
thereof):


 


(a)           all obligations of
the Borrower and its Subsidiaries for borrowed money and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, excluding, in the case of any convertible notes or other
convertible securities, obligations relating to the Equity Interests evidenced
thereby;


 


(b)           subject to the
following paragraph, all direct or contingent obligations of the Borrower and
its Subsidiaries arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;


 


(c)           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by the Borrower or its Subsidiaries (including indebtedness
arising under conditional sales or other title retention agreements), whether
or not such indebtedness shall have been assumed by such person or is limited
in recourse, excluding, in the case of any convertible notes or other
convertible securities, obligations relating to the Equity Interests evidenced
thereby;


 


8

















 


(d)           capital leases; and


 


(e)           subject to the
following paragraph, all Guarantees of the Borrower or its Subsidiaries in
respect of any of the foregoing.


 


Contingent obligations described in clause (b) and
Guarantees of Indebtedness described in clause (e), up to an aggregate amount
of $400,000,000, made by the Borrower or any of its Subsidiaries shall be
excluded from the calculation of Consolidated Total Debt, except for any such
contingent obligations or Guarantees of Indebtedness that the Borrower or such
Subsidiary is required to reflect as a liability on the its financial
statements at the end of each quarter pursuant to GAAP because they are due and
payable or an event of default under such Indebtedness has occurred and is
continuing.  Should any amount of any
such contingent obligations or any Guarantee of Indebtedness become due and
payable, such amount shall be included in Consolidated Total Debt (without
duplication of any amount otherwise included in Consolidated Total Debt).  Contingent obligations described in clause (b) and
Guarantees of Indebtedness in excess of the aggregate $400,000,000 limit shall
be included dollar-for-dollar in the Consolidated Total Debt definition.


 


“Contractual Obligation” means, as to any
Person, any provision of any security issued by such Person or of any material
agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


 


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


 


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


 


“Debt to Total Capitalization Ratio” means, as
of the last day of any fiscal quarter, the ratio of (i) Consolidated Total
Debt to (ii) Total Capitalization.


 


“Debt Rating” means, as of any date of
determination, the rating as determined by either S&P or Moody’s
(collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt (unless the Loans shall
have rating(s) assigned to them, in which case such rating(s) shall
be used).


 


“Debtor Relief Laws” means the Bankruptcy Code
of the United States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.


 


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


 


9
















 


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


 


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


 


“Designated Extending Lender” means each Class A
Lender that consented to the Amendment and Restatement Agreement and that
converted at least 50% of its commitments under the Existing Credit
Agreement into Class A Commitments.


 


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


 


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


 


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


 


“Eligible Assignee” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent and
in the case of any assignment of a Revolving Commitment, the L/C Issuer and the
Swing Line Lender, and (ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, (A) “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries and (B) to the extent required under applicable Gaming Laws,
each Eligible Assignee must be registered with, approved by, or not disapproved
by (whichever may be required under applicable Gaming Laws), all applicable
Gaming Boards and may not be the subject of a Lender Disqualification.


 


“Environmental Laws” means any and all Federal,
state, local, and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.


 


10

















 


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


 


“Equity Interests” means, with respect to any
Person, all of the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options
for the purchase or acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.


 


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


 


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


 


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


 


“Eurodollar
Rate” means for any Interest Period with respect to a Eurodollar Rate Loan:


 


11

















 


(a)           the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Thomson-Reuters screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or


 


(b)           if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall not
be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or


 


(c)           if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or converted by Wells Fargo
and with a term equivalent to such Interest Period would be offered by Wells
Fargo to major banks in the London interbank eurodollar market at their request
at approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.


 


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


 


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


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of the Borrower
hereunder, and in each case including any interest, additions to Tax or
penalties applicable thereto, (a) Taxes imposed on or measured by its
overall net income (however denominated), and franchise Taxes imposed on it (in
lieu of net income Taxes), by any jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located, in which the applicable Lending Office of such recipient
is located or with which such recipient has any present or former connection
(other than solely by virtue of being a Lender under this Agreement), (b) any
branch profits Taxes imposed by the United States or any similar Tax imposed by
any other jurisdiction in which the Borrower is located, any jurisdiction (or
any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located, in which the applicable
Lending Office of such recipient is located or with which such recipient has
any present or former connection (other than solely by virtue of being a Lender
under this Agreement), and (c) in the case of any Lender (other than an
assignee pursuant to a request by the Borrower under Section 10.13),
any withholding, backup withholding or other Tax that (i) is imposed on
amounts payable to such Lender at the time such Lender becomes a party hereto
(or designates a new Lending Office), (ii) is attributable to such Lender’s
failure or inability (other than as a result of a Change in Law occurring or
taking effect on or after such Lender becomes a 


 


12

















 


party hereto) to comply
with Section 3.01(e), except to the extent that such 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 the Borrower with
respect to such withholding Tax pursuant to Section 3.01(a), or (iii) is
imposed under applicable law on the basis of the information provided by such
Foreign Lender under Section 3.01(e)(iii).


 


“Existing Credit Agreement” has the meaning
specified in the second introductory paragraph hereto.


 


“Existing Letters of Credit” means letters of
credit issued and outstanding under the Existing Credit Agreement as set forth
in Schedule 2.03, which shall be deemed outstanding as Letters of
Credit hereunder as of the Restatement Effective Date pursuant to Section 2.03(a).


 


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


 


“Fee Letters” means those letter agreements,
dated March 12, 2009 in the case of the Borrower, Wells Fargo, Bank of
America and Banc of America Securities LLC and March 12, 2009  in the case of
the Borrower and the Administrative Agent.


 


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


 


“Foreign Subsidiary” means any Subsidiary of
the Borrower that is not a Domestic Subsidiary.


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


“Gross Bond Proceeds” means with respect to the
incurrence or issuance of any Indebtedness consisting of bonds or similar
securities by the Borrower (excluding any Indebtedness under this Agreement or
any similar loan facility), the face amount of such bonds or securities
received in connection with such transaction.


 


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


 


14

















 


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


 


“Hedge Bank” means any Person that, at the time
it enters into an interest rate Swap Contract permitted under Article VI
or VII, is a Lender or an Affiliate of a Lender, in its capacity as a
party to such Swap Contract.


 


“Impacted Lender” means (a) a Defaulting
Lender or (b) a Lender as to which (i) the L/C Issuer or the Swing
Line Lender has a good faith belief that such Lender has defaulted in
fulfilling its monetary obligations generally under other syndicated credit
facilities and such defaults are continuing or (ii) an entity that
controls such Lender has been deemed insolvent (by a Governmental Authority) or
become the subject to a bankruptcy or other similar proceeding.


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)            capital leases and Synthetic Lease Obligations; and


 


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


 


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


 


15

















 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


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


 


“Interest Coverage Ratio” means, as of the last
day of any fiscal quarter, the ratio of (i) Adjusted Consolidated EBITDA
to (ii) Consolidated Interest Expense minus all interest paid or accrued
during such period in respect of Jackpot Liabilities for the four fiscal
quarter period ending on such day minus, without duplication, all non-cash
interest expense, including the amortization of debt issuance costs and closing
fees, and, in addition, all interest expense that is not actually paid in cash
in respect of the 2006 Convertible Notes, the 2009 Convertible Notes or any
other outstanding convertible notes or convertible securities, including any
non-cash interest expense arising under APB 14-1 in respect of any such
convertible notes or convertible securities, in each case for the four fiscal
quarter period ending on such day.


 


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


 


“Interest Period” means, as to each Eurodollar
Rate Loan, the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate Loan and ending on
the date one week (through July 10, 2009) or one, two, three or six months
thereafter, as selected by the Borrower in its Committed Loan Notice or such
other period that is twelve months or less requested by the Borrower and
consented to by all the Lenders; provided that:


 


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


 


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


 


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


 


“Internet Gambling Business” means the business
of placing, receiving or otherwise knowingly transmitting a bet or wager, as
that term is defined by the UIGEA, by any means which involves the use, at
least in part, of the Internet.


 


16

















 


“Investment Grade” means (i) with respect
to S&P, a rating of BBB- or higher, and (ii) with respect to Moody’s,
a rating of Baa3 or higher


 


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


 


“IRS” means the United States Internal Revenue
Service.


 


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


 


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


 


“Jackpot Liabilities” means, at any date of
determination, the aggregate of all current and long term liabilities of the
Borrower and its Subsidiaries (determined on a Consolidated basis in accordance
with GAAP) in respect of interlinked progressive systems jackpots.


 


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


 


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


 


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


 


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


 


“L/C Issuer” means Wells Fargo in its capacity
as issuer of Letters of Credit and some of the Existing Letters of Credit
hereunder and The Bank of New York in its capacity as issuer of some of the
Existing Letters of Credit, any other consenting Lender approved by the
Borrower and the Administrative Agent as issuer of Letters of Credit hereunder
or any successor of any of the foregoing.


 


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


 


17

















 


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


 


“Lender
Disqualification” means, with respect to any Lender:


 


(a)           the failure of that
Lender timely to file pursuant to applicable Gaming Laws (i) any
application requested of the Lender by any Gaming Board in connection with
licensing required of that Lender as a lender to Borrower or (ii) any
required application or other papers in connection with determination of the
suitability of the Lender as a lender to Borrower;


 


(b)           the withdrawal by
that Lender (except where requested or permitted, without prejudice, by the
applicable Gaming Board) of any such application or other required papers; or


 


(c)           any final
determination by a Gaming Board pursuant to applicable Gaming Laws (i) that
the Lender is “unsuitable” as a lender to Borrower, (ii) that the Lender
shall be “disqualified” as a lender to Borrower or (iii) denying a finding
of suitability as a lender to Borrower or denying the issuance to the Lender of
any license required under applicable Gaming Laws to be held by all lenders to
Borrower.


 


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


 


“Letter of Credit” means any standby letter of credit issued
hereunder and shall include the Existing Letters of Credit.


 


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


 


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


 


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


 


“Letter of Credit Sublimit” means an amount
equal to $100,000,000.  The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.


 


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


 


18

















 


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


 


“Loan Documents” means this Agreement, each
Note, each Issuer Document, the Fee Letters and, upon the execution and
delivery thereof, the Pledge Agreement.


 


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


 


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


 


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


 


“Net Bond Proceeds” means with respect to the
incurrence or issuance of any Indebtedness consisting of bonds or similar
securities by the Borrower (excluding any Indebtedness under this Agreement or
any similar loan facility), the excess of (i) the cash received in
connection with such transaction over (ii) the cost of any call spread or
similar derivative instrument entered into concurrently therewith, the
underwriting discounts and commissions, the call spread premium and other
reasonable and customary out-of-pocket expenses, incurred by the Borrower in
connection therewith.


 


“Net Tangible Assets” means the total amount of
assets of the Borrower and its Subsidiaries, after deducting therefrom (a) all
current liabilities of the Borrower and its Subsidiaries (excluding (i) the
current portion of long term indebtedness, (ii) inter-company liabilities,
and (iii) any liabilities which are by their terms renewable or extendable
at the option of the obligor thereon to a time more than twelve months from the
time as of which the amount thereof is being computed), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt issue costs and
expense and other like intangibles, all as set forth on the latest consolidated
balance sheet of the Borrower prepared in accordance with generally accepted
accounting principles.


 


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


 


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


 


19

















 


“Online Communications” means communications
facilitated directly or indirectly via the Internet, World Wide Web, intranets,
extranets or other public or private communications network now available or
made available subsequent to the date hereof, through the use of access devices
(whether the access device requires the download of a client application or
otherwise, or a real-time connection, subsequent synchronization, or other
reconciliation or delayed connection process) connected via physical
connections, wirelessly or otherwise, including but not limited to: personal
computers, personal digital assistants (also known as PDAs), televisions
(including interactive television), mobile or cellular telephones, and similar
devices.


 


“Online Gaming” means any and all forms of
wagering not performed solely within the physical boundaries of land-based
casinos, sportsbooks or other facilities licensed for gaming, including without
limitation, via Online Communications.


 


“Organization Documents” means, (a) with
respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to
any non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust
or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any certificate
or articles of formation or organization of such entity.


 


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


 


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


 


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


 


“PBGC” means the Pension Benefit Guaranty
Corporation.


 


“Pension Plan” means any “employee pension
benefit plan” (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or to which the 


 


20

















 


Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


 


“Permitted
Encumbrances” means:


 


(a)           Liens for Taxes not
yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;


 


(b)           carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;


 


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


 


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


 


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


 


(f)            Liens securing
judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or
securing appeal or other surety bonds related to such judgments;


 


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


 


(h)           statutory Liens,
other than those described in clauses (a), (b) or (g) above, arising in
the ordinary course of business with respect to obligations which are not
delinquent or are being contested in good faith, provided that, if delinquent,
adequate reserves have been set aside with respect thereto;


 


21






 












 


(i)            licenses (with
respect to intellectual property and other property), leases or subleases
granted to third parties and not interfering in any material respect with the
ordinary conduct of the business of Borrower and its Subsidiaries;


 


(j)            Liens consisting of
any right of offset, or statutory bankers’ lien, on bank deposit account
maintained in the ordinary course of business so long as such bank deposit
accounts are not established or maintained for the purposes of providing such
right of offset or bankers’ lien;


 


(k)           Liens consisting of
deposits of property to secure (or in lieu of) surety, appeal or customs bonds
in proceedings to which any of its Subsidiaries is a party in the ordinary
course of business;


 


(l)            Liens created by or
resulting from any litigation or legal proceeding involving Borrower or any of
its Subsidiaries in the ordinary course of its business which is currently
being contested in good faith by appropriate proceedings, provided that
adequate reserves have been set aside and no material property is subject to a
material risk of loss or forfeiture;


 


(m)          precautionary UCC
financing statement filings made in connection with operating leases and not
constituting Liens; and


 


(n)           other non-consensual
Liens incurred in the ordinary course of business but not in connection with an
extension of credit, which do not in the aggregate, when taken together with
all other Liens, materially impair the value or use of the property of Borrower
and its Subsidiaries, taken as a whole.


 


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


 


“Permitted Note Issue” means the 2009
Convertible Notes and any Indebtedness of the Borrower consisting of bonds or
similar securities issued after the Restatement Effective Date (a) that is
unsecured, except to the extent that such Indebtedness is entitled to a pari
passu lien on the Collateral as contemplated hereby, and (b) that does not
require any scheduled principal amortization prior to December 1, 2012.


 


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


 


“Platform” means Intralinks or another similar
electronic system.


 


“Pledge Agreement” means a pledge and security
agreement, in substantially the form of Exhibit G, duly executed by
the Borrower and covering 100% of the Equity Interests of its directly and
wholly-owned Domestic Subsidiaries and 66% of the Equity Interests of its
directly and wholly-owned Foreign Subsidiaries.


 


22

















 


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


 


“Rating Decline” means (i) the occurrence
of a decrease in the Debt Rating by either Moody’s or S&P to below
Investment Grade or (ii) the absence of a Debt Rating by both of Moody’s
and S&P, in either case on any date on or within 90 days after the date of
the first public notice of (a) the occurrence of an event described in
clauses (a)-(c) of the definition of “Change in Control” or (b) the
intention by Borrower to effect such an event (which 90-day period shall be
extended so long as the Debt Rating is under publicly announced consideration
for possible downgrade by Moody’s or S&P).


 


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


 


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


 


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


 


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


 


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


 


23

















 


“Responsible Officer” means the chief executive
officer, president, chief financial officer, treasurer, director or vice
president of treasury or corporate finance or manager of treasury operations of
the Borrower or any other officer of the Borrower that has been designated in
writing by the chief executive officer as a Responsible Officer.  Any document delivered hereunder that is
signed by a Responsible Officer of the Borrower shall be conclusively presumed
to have been authorized by all necessary corporate action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of the Borrower.


 


“Restatement Effective Date” has the meaning
set forth in the Amendment and Restatement Agreement.


 


“Restricted Payment” means any dividend or
other distribution in cash with respect to any capital stock or other Equity
Interest of the Borrower, or any payment in cash, including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock
or other Equity Interest, or on account of any return of capital to the
Borrower’s stockholders; provided that in no event shall Restricted
Payment include any payment made in respect of any convertible notes or other
convertible securities prior to or contemporaneously with the conversion
thereof into capital stock including, without limitation, in connection with
the purchase, redemption, retirement, defeasance, acquisition, cancellation,
termination, exchange or conversion of any such securities.


 


“Retirement Date” means the first date on which
none of the Borrower’s 2006 Convertible Notes remain outstanding.


 


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


 


“Revolving Lender” means each Lender that holds
a Revolving Commitment.  On the
Restatement Effective Date, each Revolving Lender shall be designated as a Class A
Lender, Class B Lender or as both a Class A Lender and a Class B
Lender.


 


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


 


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


 


24

















 


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


 


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


 


“Secured Hedge Agreement” means any interest
rate Swap Contract permitted under Article VI or VII that is
entered into by and between the Borrower and any Hedge Bank that is required to
be secured as contemplated by the Pledge Agreement.


 


“Significant Subsidiary” means, any Subsidiary
of the Borrower which, as of the last day of the most recently completed fiscal
quarter, satisfies either of the following tests:


 


(a)           such Subsidiary’s
assets exceed 5% of the consolidated total assets of the Borrower and its
Subsidiaries (after intercompany eliminations), or


 


(b)           such Subsidiary’s
earnings before interest, taxes, depreciation and amortization (calculated in a
manner comparable to the calculation of Consolidated EBITDA) exceeds 5% of
Consolidated EBITDA.


 


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


 


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


 


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


 


25

















 


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


 


“Sweep Account Agreement” has the meaning
specified in Section 2.04(b).


 


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


 


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


 


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


 


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


 


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


 


“Swing Line Note” means the promissory note
made by the Borrower to the Swing Line Lender, substantially in the form of Exhibit C-2,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplemented.


 


“Swing Line Sublimit” means an amount equal to
the lesser of (a) $50,000,000 and (b) the Aggregate Revolving
Commitments.  The Swing Line Sublimit is
part of, and not in addition to, the Aggregate Revolving Commitments.


 


“Syndication Agent” means Bank of America in
its capacity as syndication agent hereunder.


 


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


 


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


 


26

















 


“Total Capitalization” means, as of the last
day of any fiscal quarter, the sum of (i) Consolidated Total Debt and (ii) the
Borrower’s shareholders’ equity, determined in accordance with GAAP.


 


“Total Leverage Ratio” means, at any date of
determination, the ratio of (i) Consolidated Total Debt to (ii) Adjusted
Consolidated EBITDA for the four fiscal quarter period ending on such date or,
if such date is not the last day of a fiscal quarter, for the immediately
preceding four fiscal quarter period.


 


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


 


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


 


“2006 Convertible Notes” means the Borrower’s
2.6% convertible debentures due 2036 issued pursuant to an indenture dated as
of December 20, 2006 (which have an accreted value as of March 31,
2009 of approximately $707,000,000).


 


“2009 Convertible Notes” means the Borrower’s
3.25% convertible notes due 2014 issued pursuant to an indenture dated May 11,
2009 and in the original aggregate principal amount of $850,000,000.


 


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


 


“UCC” means the Uniform Commercial Code as in
effect in the State of New York; provided that, if perfection or
the effect of perfection or non-perfection or the priority of any security
interest in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, “UCC”
means the Uniform Commercial Code as in effect form time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.


 


“UIGEA” means the Unlawful Internet Gambling
Enforcement Act, codified at 31 U.S.C. §§ 5361, et seq.


 


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


 


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


 


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


 


“Wells Fargo” has the meaning specified in the
introductory paragraph hereto.


 


27

















 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


 


(c)           FIN 46.  Notwithstanding the foregoing, no entity that
is consolidated with the Borrower solely as a result of the application of the
Financial Accounting Standard Board’s Interpretation 46 (Consolidation of
Variable Interest Entities), as amended or revised from time to time (“FIN 46”)
and that does not otherwise satisfy the criteria of the definition of the term “Subsidiary”
shall be deemed to be a Subsidiary of the Borrower for any purpose of this
Agreement.  Accordingly, neither the earnings
nor the Debt of any such entity shall be included in the calculation of the
financial covenants hereunder nor shall any such entity be subject to any other
provisions of this Agreement solely as a result of FIN 46.  If, however, the Debt of any such entity is
recourse to the Borrower or any Subsidiary of the Borrower, such Debt shall be
included in the calculation of the financial covenants hereunder to the extent
required herein.  For the avoidance of
doubt, any entity that satisfies the criteria of the definition of the term “Subsidiary”
shall be treated as such for all purposes of this Agreement.


 


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


 


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


 


1.06        Letter
of Credit Amounts.  Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Issuer Documents related thereto, whether or not such maximum face amount is in
effect at such time.


 


ARTICLE
II.


THE
COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Committed Loans.


 


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


 


29

















 


of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment.  Within the limits of each Revolving
Lender’s Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


 


(b)           On the Class B Maturity Date :


 


(i)            the Commitments of all Class B
Lenders shall terminate and the Commitments of all Class A Lenders shall
continue on the terms herein set forth;


 


(ii)           the Borrower shall prepay the
outstanding Revolving Loans in an amount sufficient to reduce the outstanding
principal amount thereof to an amount not in excess of the aggregate amount of
all Class A Commitments;


 


(iii)          the Pro Rata Share of each Class A
Lender shall be adjusted to reflect the termination of the Commitments of the Class B
Lenders;


 


(iv)          50% of all outstanding Loans shall be
converted to funded term loans (the “Class A Term Loans”) that
shall be held by all Class A Lenders ratably in accordance with their
respective Pro Rata Shares;


 


(v)           50% of all outstanding Loans shall be
continued as Revolving Loans held by all Class A Lenders ratably in
accordance with their respective Pro Rata Shares; and


 


(vi)          after giving effect to the foregoing,
any unused Commitments shall continue as Class A Commitments of the Class A
Lenders.


 


(c)           Subject to the terms and conditions
set forth herein, each Class A Lender severally agrees to make Revolving
Loans to the Borrower from time to time, on any Business Day from the Class B
Maturity Date through the Class A Maturity Date, in an aggregate amount
not to exceed at any time outstanding the amount of such Class A Lender’s
Revolving Commitment; provided, however, that after giving effect
to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Class A Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment.  Within the limits of each Class A
Lender’s Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01(c), prepay
under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


 


2.02        Borrowings, Conversions and
Continuations of Committed Loans.


 


(a)           Each Committed Borrowing, each
conversion of Committed Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice
to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three 


 


30

















 


Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Committed Loans, and (ii) one Business Day prior to the requested
date of any Borrowing of Base Rate Committed Loans; provided, however, that if the Borrower wishes to request
Eurodollar Rate Loans having an Interest Period other than one, two, three or
six months in duration as provided in the definition of “Interest Period”, the
applicable notice must be received by the Administrative Agent not later than
11:00 a.m. four Business Days prior to the requested date of such
Borrowing, conversion or continuation, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the
requested Interest Period is acceptable to all of them.  Not later than 11:00 a.m., three
Business Days before the requested date of such Borrowing, conversion or
continuation, the Administrative Agent shall notify the Borrower (which notice
may be by telephone) whether or not the Interest Period requested pursuant to
the preceding sentence has been consented to by all the Lenders.  Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Committed Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof.  Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Committed Borrowing, a conversion of Committed Loans
from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Committed
Loans to be borrowed, converted or continued, (iv) the Type of Committed
Loans to be borrowed or to which existing Committed Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect
thereto.  If the Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate
Loans.  Any such automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


 


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender that holds a
Commitment for the type of Loan requested of the amount of its Pro Rata Share
of the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each applicable Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. 
In the case of a Committed Borrowing, each Lender that holds a
Commitment for the type of Loan requested shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the 


 


31

















 


Administrative Agent
either by (i) crediting the account of the Borrower on the books of Wells
Fargo with the amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided, however,
that if, on the date the Committed Loan Notice with respect to such Borrowing
is given by the Borrower, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to
the Borrower as provided above.


 


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


 


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


 


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


 


2.03        Letters of Credit.


 


(a)           The Letter of
Credit Commitment.


 


(i)            Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements
of the Lenders set forth in this Section 2.03, (1) from time
to time on any Business Day during the period from the Restatement Effective
Date until the Letter of Credit Expiration Date, to issue Letters of Credit for
the account of the Borrower or its
Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries
and any drawings thereunder; provided that after giving effect to any
L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus
such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Revolving Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving
Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. 
Each request by the Borrower for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. 
Within the foregoing 


 


32

















 


limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Restatement
Effective Date shall be subject to and governed by the terms and conditions
hereof.  On the Class B
Maturity Date, all Letters of Credit then outstanding shall be deemed to have
been issued pursuant to the Revolving Commitments under the Class A
Commitments and shall be subject to and governed by the terms and conditions
hereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


(C)           except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial
face amount less than $100,000;


 


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


 


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


 


33
















 


(F)           a default of any Revolving Lender’s
obligations to fund under Section 2.03(c) exists or any
Revolving Lender is at such time an Impacted Lender hereunder, unless the L/C
Issuer has been provided cash collateral as contemplated by Section 2.14
or has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.


 


(iv)          The L/C Issuer shall not amend any
Letter of Credit if the L/C Issuer would not be permitted at such time to issue
such Letter of Credit in its amended form under the terms hereof.


 


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


 


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


 


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


 


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


 


34

















 


the L/C Issuer may require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. 
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.


 


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


 


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


 


35

















 


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


 


(c)           Drawings and
Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the beneficiary of
any Letter of Credit of any notice of a drawing under such Letter of Credit,
the L/C Issuer shall notify the Borrower and the Administrative Agent
thereof.  Not later than 12:00 noon on
the date of any payment by the L/C Issuer under a Letter of Credit (each such
date, an “Honor Date”), the Borrower may reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing.  If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Revolving
Lender’s Pro Rata Share thereof.  In such
event, the Borrower shall be deemed to have requested a Committed Borrowing of
Base Rate Loans under the Revolving Commitment to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


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


 


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


 


36

















 


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


 


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


 


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


 


(d)           Repayment of
Participations.


 


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


 


37

















 


(ii)           If any payment received by the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Revolving Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)           Obligations Absolute.  The obligation of
the Borrower to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


39

















 


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


 


(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its Pro Rata
Share a Letter of Credit fee (the “Letter of Credit Fee”)  for
each Letter of Credit equal to the Applicable Rate for Eurodollar Rate Loans times
the daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit).  Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March,
June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. 
If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. 
Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter
of Credit Fees shall accrue at the Default Rate.


 


(j)            Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to
the L/C Issuer for its own account a fronting fee with respect to each Letter
of Credit, at a rate of 0.125% per annum, computed on the actual daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit) and on a
quarterly basis in arrears, and due and payable on the first Business Day after
the end of each March, June, September and
December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand.  In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect.  Such customary fees
and standard costs and charges are due and payable on demand and are
nonrefundable.


 


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


 


(l)            Letters of Credit Issued for
Subsidiaries.  Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations
of, or is for the account of, a Subsidiary, the Borrower shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter
of Credit.  The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.


 


40

















 


2.04        Swing Line Loans.


 


(a)           The Swing Line.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans (each
such loan, a “Swing Line Loan”) to the Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations
of the Revolving Lender acting as Swing Line Lender, may exceed the amount of
such Lender’s Revolving Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus
such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and provided,
further, that the Borrower shall not use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to
the other terms and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender
a risk participation in such Swing Line Loan in an amount equal to the product
of such Revolving Lender’s Pro Rata Share times the amount of such Swing
Line Loan.  The Swing Line Lender shall
not be under any obligation to make any Swing Line Loan if any Revolving Lender
is at such time an Impacted Lender hereunder, unless the Swing Line Lender has
been provided cash collateral as contemplated by Section 2.14 or
has entered into satisfactory arrangements with the Borrower or such Lender to
eliminate the Swing Line Lender’s risk with respect to such Lender.


 


(b)           Borrowing
Procedures.


 


(i)            Each Swing Line Borrowing shall be
made upon the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Except as otherwise provided in the following
paragraph, each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing
date, and shall specify (i) the amount to be borrowed, which shall be a
minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day.  Except as otherwise provided in the following
paragraph, each such telephonic notice must be confirmed promptly by delivery
to the Swing Line Lender and the Administrative Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior 


 


41

















 


to 2:00 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Article IV is not then
satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.


 


(ii)           Notwithstanding anything in the
preceding paragraph to the contrary, the Borrower and the Swing Line Lender
agree that Swing Line Borrowings and repayments of Swing Line Loans may be
managed pursuant to a sweep account arrangement on terms mutually satisfactory
to the Borrower and the Swing Line Lender (a “Sweep Account Agreement”).  In such case, the terms of such Sweep Account
Agreement (including, without limitation, the terms in respect of notice,
timing and minimum borrowing amounts) shall control the borrowing procedure for
Swing Line Loans.


 


(c)           Refinancing of
Swing Line Loans.


 


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


 


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


 


42

















 


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


 


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


 


(d)           Repayment of
Participations.


 


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


 


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


 


43
















 


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


 


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


 


2.05        Prepayments.


 


(a)           The Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Committed Loans in
whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment, and the Type(s) of Committed Loans to be
prepaid.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Revolving Lenders, in accordance with their respective
Pro Rata Shares.


 


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


 


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


 


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2.06        Termination or Reduction of
Commitments.


 


(a)           The Borrower may, upon notice to the Administrative
Agent, terminate the Aggregate Revolving Commitments, or from time to time
permanently reduce the Aggregate Revolving Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction (except in the
case of any reductions to be made in June of 2009), (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Revolving Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, and (iv) if,
after giving effect to any reduction of the Aggregate Revolving Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. 
The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments.  Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Revolving
Lender according to its Pro Rata Share. 
All fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.


 


(b)           Following the occurrence of a Change of Control, the
Required Lenders may in their sole and absolute discretion elect, during the
sixty day period immediately subsequent to the later of (a) such
occurrence and (b) the earlier of (i) receipt of the Borrower’s
written notice to the Administrative Agent of such occurrence and (ii) if
no such notice has been received by the Administrative Agent, the date upon
which the Administrative Agent and the Lenders have actual knowledge thereof,
to terminate all of the Commitments.  In
any such case the Commitments shall be terminated effective on the date which
is sixty days subsequent to the date of written notice from the Administrative Agent
to the Borrower thereof, and (i) to the extent that any Loans are then
outstanding, the same shall be immediately due and payable, and (ii) to
the extent that any Letters of Credit are then outstanding, Borrower shall
provide cash collateral for the same.


 


(c)           The Class B Commitments of the Designated
Extending Lenders shall be permanently reduced by an amount equal to 50% of the
amount of all Gross Bond Proceeds as herein set forth.  The reductions to the Class B
Commitments of the Designated Extended Lenders shall be made ratably, based upon
such Lenders’ total Class A Commitments as of the date of such
reduction.  If the Class B
Commitments of any Designated Extending Lender shall be reduced to zero, any
Commitment reduction to which it would otherwise be entitled shall be shared
ratably among the other Designated Extending Lenders; provided that
after all Class B Commitments of the Designated Extending Lenders have
been permanently retired, the Class A Commitments of the Designated
Extending Lenders shall thereupon be ratably reduced until the aggregate amount
thereof shall have been reduced to $1.5 billion, and once the aggregate Class A
Commitments have been reduced to $1.5 billion, no further reductions to the
Commitments will be necessary.


 


45

















 


2.07        Repayment of Loans.


 


(a)           The Borrower shall repay in full to each Class B
Lender on the Class B Maturity Date the aggregate principal amount of
Revolving Loans outstanding on such date and then owing to such Class B
Lender.


 


(b)           The Borrower shall repay each Swing Line Loan (i) to
not more than $2,000,000 on the fifteenth day after the date such Loan is made
and (ii) in full on the Class A Maturity Date.


 


(c)           The Borrower shall repay in full to each Class A
Lender on the Class A Maturity Date the aggregate principal amount of
Revolving Loans outstanding on such date.


 


(d)           The Borrower shall repay to the Class A Term Loan
Lenders the aggregate principal amount of all Class A Term Loans
outstanding on the Class B Maturity Date in six installments, the first
five of which shall be equal to 1.25% of the original principal amount of such Class A
Term Loans and shall commence on March 31, 2011 and continue on the last
business day of each June, September, December and March thereafter
through and including March 31, 2012 and the final principal repayment
installment of which shall be made on the Class A Maturity Date and shall
be in an amount equal to the aggregate principal amount of all Class A
Term Loans outstanding on such date.


 


(e)           The Borrower shall utilize 100% of the Net Bond
Proceeds (inclusive of the proceeds from the 2009 Convertible Notes) from a
Permitted Note Issue up to $1,000,000,000 to (a) prepay Revolving Loans or
(b) redeem, repurchase or retire the 2006 Convertible Notes.  Any Net Bond Proceeds received prior to the
Restatement Effective Date shall be applied to the prepayment of Revolving
Loans on or before June 30, 2009, and any Net Bond Proceeds received after
the Restatement Effective Date shall be applied by the Borrower within ninety (90)
days of receipt thereof.


 


2.08        Interest.


 


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


 


(b)           (i)  If any amount of principal of any Loan is
not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.


 


46

















 


(ii)           If any amount (other than principal of any Loan)
payable by the Borrower under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required Lenders, such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


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


 


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


 


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


 


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


 


(a)           Facility Fee.  The Borrower
shall pay to the Administrative Agent for the account of each Lender in
accordance with its Pro Rata Share, a facility fee equal to the applicable
facility fee set forth in the definition of Applicable Rate times the
actual daily amount of  the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage.  For
the avoidance of doubt, it is agreed that the facility fee shall be payable on
any outstanding Class A Term Loans. 
The facility fee shall accrue at all times during the Availability
Period (and thereafter so long as any Committed Loans, Swing Line Loans or L/C
Obligations remain outstanding), including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Restatement
Effective Date, and on the Maturity Date (and, if applicable, thereafter on
demand).  The facility fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the applicable facility fee set forth in the definition of the
Applicable Rate separately for each period during such quarter that such
facility fee was in effect.


 


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


 


47

















 


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


 


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


 


2.11        Evidence of Debt.


 


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


 


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


 


2.12        Payments Generally; Administrative
Agent’s Clawback.


 


(a)           General.  All payments
to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the


 


48

















 


Administrative Agent, for
the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not
later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office.  All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.  If any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


50

















 


(ii)           the provisions of this Section shall not be
construed to apply to (x) any payment made by the 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 Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).


 


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


 


2.14        Cash Collateral for L/C Issuer or
Swing Line Lender.  At any time that any Lender is an Impacted
Lender, upon the request of the L/C Issuer or the Swing Line Lender to the
Administrative Agent and the Borrower, the Borrower shall immediately pledge
and deposit with or deliver to the Administrative Agent as collateral, for the
benefit of the L/C Issuer or the Swing Line Lender, as applicable, cash or
deposit account balances, in an aggregate amount not less than such Impacted
Lender’s applicable Pro Rata Share of the then Outstanding Amount of all L/C
Obligations or Swing Line Loans, as applicable, pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent and the
L/C Issuer or the Swing Line Lender, as applicable, which arrangements and
documents are hereby consented to by the Lenders.  The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Swing Line
Lender, as applicable, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing.  Such collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Wells Fargo.  This Section and any agreements or other
documents delivered in connection with this Section shall not be
prohibited by, or otherwise conflict with, any contrary provision herein,
including Sections 2.12, 2.13 and 7.01.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


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


 


51

















 


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


 


(c)           Indemnification by the Borrower. 
The Borrower shall indemnify the Administrative Agent, each Lender and
the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate
specifying in reasonable detail the nature and amount of such payment or
liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.


 


(d)           Evidence of Payments.  As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the 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.


 


(i)            Any Foreign Lender that is entitled to an exemption
from or reduction of withholding Tax under the law of the jurisdiction in which
the Borrower is resident for Tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


(ii)           Without limiting the generality of the foregoing, in
the event that the Borrower is resident for Tax purposes in the United States,
any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior
to the Restatement Effective Date (in the case of each Foreign Lender listed on
the signature pages hereof), on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement and from time to time thereafter
as prescribed by applicable law or upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so, whichever of the following is applicable:


 


52
















 


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


 


(B)           duly executed and properly completed copies of
Internal Revenue Service Form W-8ECI,


 


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


 


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


 


(iii)          Without limiting the generality of the foregoing, in
the event that the Borrower is resident for Tax purposes in the United States,
any Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient), on or prior to the Restatement Effective Date (in the case of each
Foreign Lender listed on the signature pages hereof), on or prior to the
date of the Assignment and Assumption pursuant to which it becomes a Lender (in
the case of each other Foreign Lender), or on such later date when such Foreign
Lender ceases to act for its own account with respect to any portion of any
such sums paid or payable, and at such other times as may be necessary in the
determination of the Borrower or the Administrative Agent (each in the
reasonable exercise of its discretion):


 


(A)          duly executed and properly completed copies of the
forms and statements required to be provided by such Foreign Lender under Section 3.01(e)(ii),
to establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to United States
withholding Tax or subject to a reduced rate of withholding Tax, and


 


(B)           duly executed and properly completed copies of
Internal Revenue Service Form W-8IMY (or any successor forms) properly
completed and duly executed by such Lender, together with any information, if
any, such Foreign Lender chooses to transmit with such form, and any other
certificate or statement of exemption required under the Code or the
regulations thereunder, to establish that such Foreign Lender is not acting for
its own account with respect to a portion of any such sums payable to such
Foreign Lender.


 


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(iv)          Without limiting the generality of the foregoing, in
the event that the Borrower is resident for Tax purposes in the United States,
any Lender that is not a Foreign Lender and has not otherwise established to
the reasonable satisfaction of Borrower and Administrative Agent that it is an
exempt recipient (as defined in section 6049(b)(4) of the Code and the regulations
thereunder) shall deliver to the 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 Lender becomes a Lender under this Agreement (and from time
to time thereafter as prescribed by applicable law or upon the request of the
Borrower or the Administrative Agent, but only if such Lender is legally
entitled to do so), duly executed and properly completed copies of Internal
Revenue Service Form W-9.


 


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


 


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


 


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


 


3.04        Increased Costs; Reserves on
Eurodollar Rate Loans.


 


(a)           Increased Costs Generally. 
Subject to the provisions of Section 3.01 (which shall be
controlling with respect to the matters covered thereby), if any Change in Law
shall:


 


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


 


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


 


(iii)          impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this Agreement
or Eurodollar 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 Eurodollar Loan
(or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or the L/C Issuer hereunder in
respect of any Eurodollar Loan or Letter of Credit (whether of principal, interest
or any other amount) then, upon request of such Lender or the L/C Issuer, the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.


 


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


 


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


 


(d)           Delay in Requests.  Failure or
delay on the part of any Lender or the L/C Issuer to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute
a waiver of such Lender’s or the L/C Issuer’s right to demand such
compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than 90 days prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 90
day period referred to above shall be extended to include the period of
retroactive effect thereof).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.06        Mitigation Obligations;
Replacement of Lenders.


 


(a)           Designation of a Different
Lending Office.  If any Lender requests compensation under
Section 3.04, or the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.


 


(b)           Replacement of Lenders.  If any Lender
requests compensation under Section 3.04, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 10.13.


 


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


 


ARTICLE IV.

CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS


 


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


 


(a)           The Administrative Agent’s receipt of the following,
each of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of
the Borrower, each dated the Restatement Effective Date (or, in the case of
certificates of governmental officials, a recent date before the Restatement
Effective Date) and each in form and substance satisfactory to the
Administrative Agent, the Syndication Agent and each of the Lenders:


 


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


 


(ii)           a Note executed by the Borrower in favor of each
Lender requesting a Note;


 


(iii)          such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of
the Borrower as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Agreement and the other Loan
Documents;


 


(iv)          such documents and certifications as the
Administrative Agent may reasonably require to evidence that the Borrower is
duly organized or formed, and that the Borrower is validly existing, in good
standing and qualified to engage in business in the state of Nevada.


 


(v)           favorable opinions of the General Counsel of the
Borrower and of O’Melveny & Myers LLP, counsel to the Borrower,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit F and such other matters concerning the Borrower
and the Loan Documents as the Required Lenders may reasonably request;


 


(vi)          a certificate of a Responsible Officer of the Borrower
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by the
Borrower and the validity against the Borrower of the Loan Documents to which
it is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals
are so required, other than, in the case of either clause (A) or (B), any
such consents, licenses or approvals under applicable Gaming Laws which are not
required to be obtained on or prior to the Restatement Effective Date, which
consents, licenses or approvals the Borrower will seek in due course after the
Restatement Effective Date;


 


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(vii)         a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections 4.02(a) and
(b) have been satisfied; (B) that there has been no event or
circumstance since the date of the Audited Financial Statements that has had or
would be reasonably expected to have, either individually or in the aggregate,
a Material Adverse Effect; and (C) the current Debt Ratings and a
calculation of the Debt to Capitalization Ratio as of the last day of the
fiscal quarter of the Borrower most recently ended prior to the Restatement
Effective Date; and


 


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


 


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


 


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


 


(d)           The Restatement Effective Date shall have occurred on
or before June 30, 2009.


 


Without limiting the generality of the provisions of Section 9.04,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Restatement Effective Date
specifying its objection thereto.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the
Administrative Agent and the Lenders that:


 


5.01        Existence, Qualification and
Power; Compliance with Laws.  The Borrower
and each Significant Subsidiary thereof (a) is duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite corporate power and
authority and all requisite governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clauses (b) or (c) to the extent that failure to
do so would not reasonably be expected to have a Material Adverse Effect.


 


5.02        Authorization; No Contravention. 
The execution, delivery and performance by the Borrower of each Loan
Document to which it is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene
the terms of any of the Borrower’s Organization Documents; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, or require any payment to be made under (i) any Contractual
Obligation to which the Borrower is a party or affecting the Borrower or the
properties of the Borrower or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Borrower or its property is subject; or (c) violate any Law.


 


5.03        Governmental Authorization; Other
Consents.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (other than any such actions, notices or filings under
the applicable Gaming Laws which are not required to be taken prior to the
Restatement Effective Date, which actions, notices or filings the Borrower will
seek in due course after the Restatement Effective Date) or any other Person is
necessary or required in connection with (a) the execution, delivery or
performance by the Borrower of this Agreement or any other Loan Document, or (b) the
grant by any Loan Party of the Liens created pursuant to the Pledge Agreement.


 


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5.04        Binding Effect. 
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by the Borrower.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, except as enforcement may be limited by Debtor Relief Laws or
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.


 


5.05        Financial Statements; No Material
Adverse Effect.


 


(a)           The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)           The unaudited consolidated balance sheet of the
Borrower and its Subsidiaries dated March 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year end audit adjustments.


 


(c)           Since the date of the Audited Financial Statements,
there has been no event or circumstance, either individually or in the
aggregate, that has had or would reasonably be expected to have a Material
Adverse Effect; provided that if the Borrower shall establish a
commercial paper program that is supported by Committed Loans, then so long as
such program is in effect, this representation shall not be operative.


 


5.06        Litigation.  There are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower
after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the Borrower
or any of its Subsidiaries or against any of their properties or revenues that (a) call
into question the validity or enforceability of, or otherwise seek to
invalidate this Agreement or any other Loan Document, or (b) either
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect.


 


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


 


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5.08        Ownership of Property; Liens. 
Each of the Borrower and each Subsidiary has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in such title or interests as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.


 


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


 


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


 


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


 


5.12        ERISA Compliance.


 


(a)           Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other Federal or state
Laws to the extent that non-compliance would reasonably be expected to have a
Material Adverse Effect.  Each Plan that
is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect thereto and, to the
best knowledge of the Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification, except to the extent as would not
reasonably be expected to result in a Material Adverse Effect.  The Borrower and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan, except to the extent as would not reasonably be expected
to result in a Material Adverse Effect.


 


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


 


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


 


5.13        Significant
Subsidiaries; Equity Interests.  As of the
Restatement Effective Date, the Borrower has no Significant Subsidiaries other
than those specifically disclosed in Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Borrower in the amounts
specified on Schedule 5.13 free and clear of all Liens.


 


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


 


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


 


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


 


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


 


63

















 


time, it being
recognized by the Administrative Agent, the Issuing Bank and the Lenders that
such projections as to future events are not to be viewed as facts, and that
actual results during the period or periods covered thereby may differ from the
projected results.


 


5.16        Compliance
with Laws.  Each of the Borrower and each Subsidiary is
in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. 
Neither the Borrower nor any of its Subsidiaries engages in the business
of unlawful internet gambling by placing, receiving, or otherwise knowingly
transmitting a bet or wager by any means which involves the use, at least in
part, of the Internet where such bet or wager is unlawful under Federal law and
any applicable State law in the State or Tribal lands in which the bet or wager
is initiated, received, or otherwise made.


 


5.17        Intellectual Property;
Licenses, Etc.  The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except to the extent that would not
reasonably be expected to have a Material Adverse Effect.  To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by the
Borrower or any Subsidiary infringes upon any rights held by any other Person,
except to the extent that would not reasonably be expected to have a Material
Adverse Effect.  No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of the
Borrower, threatened, which, either individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.


 


ARTICLE
VI.

AFFIRMATIVE COVENANTS


 


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


 


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


 


(a)           as soon as available, but in any
event within 90 days after the end of each fiscal year of the Borrower
(commencing with the fiscal year ended on or about September 30, 2009), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of Deloitte & Touche LLP or
another independent certified 


 


64

















 


public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the
scope of such audit; and


 


(b)           as soon as available, but in any
event within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower (commencing with the fiscal quarter ended
on or about June 30, 2009), a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the Borrower’s fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, certified by a
Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.


 


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


 


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


 


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate
of its independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default under the financial covenants set forth
herein or, if any such Default shall exist, stating the nature and status of such
event;


 


(b)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b) (commencing
with the delivery of the financial statements for the fiscal quarter ended on
or about June 30, 2009), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower;


 


(c)           (i) as soon as possible and in
any event within 45 days after the end of each fiscal quarter ending on or
about September 30, a certification from a Responsible Officer as to of
the Debt to Capitalization Ratio as of the end of such fiscal quarter; and (ii) at
Borrower’s election following the end of a fiscal quarter other than the fiscal
quarter ending as of September 30, a certification from a Responsible
Officer as to the Debt to Capitalization Ratio as of the end of such fiscal
quarter;


 


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


 


65

















 


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


 


Documents required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(d) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any
Lender that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) the Borrower shall notify the Administrative Agent
(by telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents and the Administrative Agent shall thereafter
notify the Lenders.  Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(b) to
the Administrative Agent.  Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of
such documents.


 


6.03        Notices.  Promptly
notify the Administrative Agent:


 


(a)           of the occurrence of any Default;


 


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


 


(c)           of the occurrence of any ERISA Event;


 


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


 


66

















 


(e)           of any announcement by Moody’s or
S&P of any change or possible change in a Debt Rating.


 


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


 


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


 


6.05        Preservation
of Existence, Etc.  (a) Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 7.04
or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a
Material Adverse Effect.


 


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


 


6.07        Maintenance
of Insurance.  Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to
its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar
circumstances by such other Persons.


 


6.08        Compliance
with Laws.  Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property (including, without limitation,
the UIGEA), except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted; or (b) the failure to comply therewith
would not reasonably be expected to have a Material Adverse Effect.


 


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


 


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


 


6.11        Use
of Proceeds.  Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document, including acquisitions and stock repurchases and the repurchase or
redemption of the 2006 Convertible Notes, 2009 Convertible Notes and any other
Indebtedness.


 


6.12        Springing Lien Approval. 
On or before December 31, 2009 (or such later date as may be
acceptable to the Administrative Agent), obtain the approvals necessary under
applicable Gaming Law to permit the grant of Liens contemplated under Section 6.13.


 


6.13        Springing
Lien.  If at any time (a) the Debt Rating by
Moody’s shall be reduced below Investment Grade or the Borrower shall cease to
have a Debt Rating by Moody’s and (b) the Debt Rating by S&P
shall be reduced below Investment Grade or the Borrower shall cease to have a
Debt Rating by S&P, then, as soon as reasonably practicable thereafter, the
Borrower shall grant the Administrative Agent, on behalf of all Lenders, a Lien
on 100% of the Equity Interests of its directly and wholly-owned Domestic
Subsidiaries and 66% of the Equity Interests of its directly and wholly-owned
Foreign Subsidiaries pursuant to the terms of the Pledge Agreement, together
with (A) certificates representing the Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and (B) proper
financing statements in form for filing under the Uniform Commercial Code of
the jurisdiction where the Borrower is “located” under the UCC covering the
Collateral described in the Pledge Agreement. 
If, thereafter, the Debt Rating by both Moody’s and S&P shall be
Investment Grade for a period of not less than three consecutive calendar
months, then the Lien on such Equity Interests shall be released by the
Administrative Agent.  The 2009 Convertible
Notes and any bonds or similar securities hereafter issued by the Borrower may
share in any collateral granted to the Lenders under the Pledge Agreement; provided,
that any Lien shared by such Persons shall be automatically released upon the
release of the Lenders’ Lien.  For the
avoidance of doubt, if any


 


68

















 


Lien granted
pursuant to the terms hereof shall be released, and the Borrower’s Debt Ratings
shall thereafter trigger the requirements of this Section, the Borrower shall
once again complete the Collateral grant required hereby.


 


ARTICLE
VII.

NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:


 


7.01        Liens.  The Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:


 


(a)           Liens pursuant to any Loan Document,
including, without limitation, any Liens granted pursuant to the terms of the
Pledge Agreement on the terms set forth therein; provided, that if any
Indebtedness issued under a Permitted Note Issue shall be secured thereby, any
Lien securing such Indebtedness shall be automatically released upon the
release of the Administrative Agent and Lenders’ Liens as provided in Section 6.13
and the Pledge Agreement;


 


(b)           Liens existing on the date hereof and
listed on Schedule 7.01 and any renewals or extensions thereof, provided
that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased, (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) any
renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.02(a);


 


(c)           Permitted Encumbrances;


 


(d)           any Lien on shares of any equity
security or any warrant or option to purchase an equity security or any
security which is convertible into an equity security issued by any Subsidiary
of the Borrower that holds, directly or indirectly through a holding company or
otherwise, a license to conduct gaming under any Gaming Law, and in the
proceeds thereof; provided that this clause shall apply only so long as
the Gaming Laws of the relevant jurisdiction provide that the creation of any
Lien or other restriction on the disposition of any of such securities shall
not be effective and, if such Gaming Laws at any time cease to so provide, then
this clause shall be of no further effect; and provided  further
that if at any time the Borrower or any of its Subsidiaries creates or suffers
to exist a Lien covering such securities in favor of the holder of any other
Indebtedness, it will (subject to any approval required under such Gaming Laws)
concurrently grant a pari-passu Lien likewise covering such securities in favor
of the Administrative Agent for the benefit of the Lenders;


 


(e)           Liens on property acquired or
constructed by Borrower or any of its Subsidiaries, and in the proceeds
thereof, that (i) were in existence at the time of the acquisition or
construction of such property or were created or assumed at or within 90 days
after such acquisition or construction, and (ii) secure (in the case of
Liens not in existence at the time of acquisition of the Property) only the
unpaid portion of the acquisition or construction price for such property, or
monies borrowed that were used to pay such acquisition or construction price;


 


69

















 


(f)            Liens not otherwise permitted by the
foregoing clauses of this Section 7.01 securing Indebtedness in an
aggregate principal amount not to exceed $50,000,000; provided, that no
such Lien shall extend to or cover any Collateral; and


 


(g)           Liens not otherwise permitted by the
foregoing clauses of this Section encumbering assets of the Borrower and
its Subsidiaries having an aggregate fair market value which is not in excess
of 5% of Net Tangible Assets (determined, in each case, by reference to the
most recent date for which the Borrower has delivered its financial statements
under Section 6.01(a) or (b)); provided, that no
such Lien shall extend to or cover any Collateral.


 


7.02        Indebtedness. 
The Borrower shall not permit any Subsidiaries to, directly or
indirectly create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness outstanding on the date
hereof and listed on Schedule 7.02 and any refinancings, refundings,
renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder;


 


(b)           Indebtedness of any Subsidiary owing
to the Borrower or any other Subsidiary;


 


(c)           Guarantees of any Subsidiary in
respect of Indebtedness otherwise permitted hereunder of any wholly-owned
Subsidiary;


 


(d)           secured Indebtedness permitted by Sections 7.01(e),
7.01(f) or 7.01(g).


 


(e)           unsecured Indebtedness which was
created, assumed or incurred by such Subsidiary prior to its acquisition by
Borrower and its Subsidiaries (and not in anticipation of such acquisition);


 


(f)            letters of credit, surety bonds and
other similar forms of credit enhancement for such Subsidiaries incurred in the
ordinary course of their business; and


 


(g)           other Indebtedness at any time
outstanding (inclusive of any Indebtedness of any Subsidiaries under Section 7.09)
in an aggregate principal amount not to exceed $350,000,000 minus the
amount of Indebtedness then outstanding secured by Liens permitted pursuant to Section 7.01(f) and
(g).


 


7.03        Fundamental
Changes.  The Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
to the extent that, after giving effect to such transaction, a Default exists
or would result therefrom or, after giving pro forma effect to such
transaction, the Borrower shall not be in compliance with the covenants in Section 7.07;
and provided that the Borrower shall be the survivor of any merger
involving the Borrower; and provided further that


 


70

















 


(a)           any Subsidiary may merge with (i) the
Borrower, provided that the Borrower shall be the continuing or surviving
Person, or (ii) any one or more other Subsidiaries, provided that when any
wholly-owned Subsidiary is merging with another Subsidiary, a wholly-owned
Subsidiary shall be the continuing or surviving Person; and


 


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


 


7.04        Hostile Tender Offers. 
The Borrower shall not, nor shall it permit any Subsidiary to, directly
or indirectly make any offer to purchase or acquire, or consummate a purchase
or acquisition of, 5% or more of the capital stock of any corporation or other
equity securities of any business entity if the equity securities of such
business entity are publicly traded, the board of directors or management of
such corporation or business entity has notified the Borrower or any of its
Subsidiaries in writing that it opposes such offer or purchase and such notice
has not been withdrawn or superseded.


 


7.05        Change
in Nature of Business.  The Borrower shall not, nor
shall it permit any Significant Subsidiary to, engage in any material line of
business substantially different from (i) those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof or (ii) any
business reasonably related or incidental thereto including, without
limitation, (A) the operation of gaming facilities, (B) the provision
of gaming-related hardware, software or services to customers, (C) the
provision of hardware, software or services to customers in the video game
industry or the on-line lottery industry, and/or (D) the facilitation,
operation or ownership of Online Gaming activities or businesses.


 


7.06        Use
of Proceeds.  The Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly use the proceeds of any Credit
Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose, in any case in violation of Regulation U.


 


7.07        Financial Covenants.


 


(a)           Interest Coverage Ratio.  The Borrower shall not permit the Interest
Coverage Ratio as of the last day of any fiscal quarter of the Borrower to be
less than 3.00 to 1.00.


 


(b)           Total Leverage Ratio.  The Borrower shall not permit the Total
Leverage Ratio as of the last day of any fiscal quarter of the Borrower to be
greater than the ratio set forth below opposite such date:


 


71

















 




	
  Fiscal
  Quarter Ending

  	
   

  	
  Maximum Total Leverage Ratio

  
	
  March 31, 2009 through March 31, 2010

  	
   

  	
  3.75 to 1.00

  
	
  June 30, 2010 through March 31, 2011

  	
   

  	
  3.50 to 1.00

  
	
  June 30, 2011 and thereafter

  	
   

  	
  3.25 to 1.00

  






 


7.08        Restricted Payments. 
The Borrower shall not declare or make, directly or indirectly, any
Restricted Payment, except that, so long as no Default shall have occurred and
be continuing at the time of any action described below or would result
therefrom:


 


(a)           the Borrower may declare and pay cash
dividends to its stockholders in an amount not to exceed the lesser of (i) 6¢
per common share per fiscal quarter and (ii) $25,000,000 in any fiscal
quarter;


 


(b)           the Borrower may make Restricted
Payments based upon its then-current Debt Rating and its pro  forma
Total Leverage Ratio, as follows:


 


(i)            So long as the pro  forma
Total Leverage Ratio (after giving effect to the proposed Restricted Payment)
is less than or equal to 2.0 to 1.0 (whether or not the Borrower has an
Investment Grade Debt Rating), Restricted Payments shall be limited to 100% of
the Borrower’s net income for the trailing four quarter period for which a
Compliance Certificate has been delivered pursuant to Section 6.02(b);


 


(ii)           If the pro  forma Total
Leverage Ratio (after giving effect to the proposed Restricted Payment) is
greater than 2.0 to 1.0 but less than or equal to 2.5 to 1.0 and the Borrower
has an Investment Grade Debt Rating by at least one rating agency, Restricted
Payments shall be limited to the lesser of (a) $250 million or (b) 85%
of the Borrower’s net income for the trailing four quarter period for which a
Compliance Certificate has been delivered pursuant to Section 6.02(b);


 


(iii)          If the pro  forma Total
Leverage Ratio (after giving effect to the proposed Restricted Payment) is
greater than 2.5 to 1.0 and the Borrower has an Investment Grade Debt Rating by
at least one rating agency, Restricted Payments shall be limited to least of (a) $175
million, (b) 75% of the Borrower’s net income for the trailing four
quarter period or (c) the sum of (i) the quarterly dividend of
6¢/common share described in Section 7.08(a) above plus (ii) 
the growth in the basic share count related to the exercise of equity awards
and the vesting of restricted shares plus (iii) the growth in the dilutive
effect of equity awards and restricted shares on the diluted eps denominator times
the average stock price for such four quarter period for which a Compliance
Certificate has been delivered pursuant to Section 6.02(b); and


 


(iv)          If the pro  forma Total
Leverage Ratio (after giving effect to the proposed Restricted Payment) is
greater than 2.0 to 1.0 and the Borrower does not have an Investment Grade Debt
Rating by at least one rating agency, Restricted Payments shall be limited to
the quarterly dividend of 6¢/common share described in Section 7.08(a) above;


 


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provided, that (A) all
Restricted Payments permitted pursuant to Section 7.08(a) above
shall be included in the calculation of the amounts otherwise available under
this Section; (B) Restricted Payments shall be calculated on the basis of
a trailing four quarter period (excluding all stock repurchases completed in the
2008 calendar year); and (C) the pro  forma calculations
shall be made and provided to Administrative Agent at each time a Restricted
Payment is to be made and such calculation shall be made after giving effect to
the proposed Restricted Payment; and provided, further that
notwithstanding the foregoing, the Borrower may pay dividends otherwise
permitted under this Section 7.08, if at the time of declaration
thereof, no Default shall have occurred and then be continuing.


 


7.09        Capital
Markets Indebtedness.  The Borrower shall not, nor shall it permit
any Subsidiaries to, incur Indebtedness consisting of bonds or similar
securities in an aggregate principal amount of $150,000,000 or more in a single
transaction, or in a series of related transactions, except Indebtedness
incurred pursuant to a Permitted Note Issue.


 


ARTICLE
VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


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


 


(b)           Specific Covenants.  The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 6.03, 6.05,
6.11 or 6.12 or Article VII; or


 


(c)           Other Defaults.  The Borrower fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after written notice thereof from the
Administrative Agent on behalf of any Lender; or


 


(d)           Representations and Warranties.  Any representation or warranty made by
Borrower herein, in any other Loan Document, or in any certificate or other
writing delivered by Borrower pursuant to any Loan Document shall be incorrect
in any material respect when made or deemed made; or


 


(e)           Cross-Default.  (i) The Borrower or any Significant
Subsidiary (A) fails to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than $100,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary 


 


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or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to
its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which the
Borrower or any Significant Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) under
such Swap Contract as to which the Borrower or any Significant Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than
$100,000,000; or


 


(f)            Insolvency Proceedings, Etc.  The Borrower or any of its Significant
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)           Inability to Pay Debts; Attachment.  (i) The Borrower or any Significant
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process for the payment of money in an
aggregate amount in excess of $75,000,000 is issued or levied against all or
any of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or


 


(h)           Judgments.  There is entered against the Borrower or any
Significant Subsidiary a final judgment or order for the payment of money in an
aggregate amount in excess of $75,000,000 (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage in a material respect), such judgment remains unsatisfied and there is
a period of 30 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $100,000,000, or (ii) the Borrower or any ERISA Affiliate fails
to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$100,000,000; or


 


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


 


(k)                                  Pledge Agreement. 
The Pledge Agreement, after delivery thereof pursuant to Section 6.13
and so long as the Pledge Agreement is in effect, shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected first
priority Lien (subject to Liens expressly permitted by Section 7.01)
on the Collateral consisting of the equity of Domestic Subsidiaries purported
to be covered thereby or a valid Lien in all material respects (subject to
Liens expressly permitted by Section 7.01) on the Collateral
consisting of the equity of Foreign Subsidiaries purported to be covered
thereby.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings, and
Obligations then owing under Secured Hedge Agreements, ratably among the
Lenders, the L/C Issuer and the Hedge Banks in proportion to the respective
amounts described in this clause Fourth held by them;


 


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


 


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


 


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


 


Notwithstanding the
foregoing, Obligations arising under Secured Hedge Agreements shall be excluded
from the application described above if the Administrative Agent has not
received written notice thereof, together with such supporting documentation as
the Administrative Agent may request, from the applicable Hedge Bank.  Each Hedge Bank not a party to the Credit
Agreement that has given the notice contemplated by the preceding sentence
shall, by such notice, be deemed to have acknowledged and accepted the
appointment of the Administrative Agent pursuant to the terms of Article IX
hereof for itself and its Affiliates as if a “Lender” party hereto.


 


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ARTICLE
IX.

ADMINISTRATIVE AGENT


9.01                        Appointment and Authority.


 


(a)                                  Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Wells Fargo to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of
this Article are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and the Borrower shall not have rights as a third
party beneficiary of any of such provisions.


 


(b)                                 The Administrative Agent shall also act
as the “collateral agent” under the Pledge Agreement, and each of the
Lenders and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent,
as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any lien on the Collateral (or any portion
thereof) granted under the Pledge Agreement, or for exercising any rights and
remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


The Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or the
creation, perfection or priority of any Lien purported to be created by the
Pledge Agreement, (v) the value or sufficiency of any Collateral, or (vi) 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 the Administrative Agent.


 


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


 


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


 


9.06                        Resignation of Administrative
Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the
Borrower at all times other than during the continuance of an Event of Default
(which consent shall not be unreasonably withheld or delayed), to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify the 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
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


9.07                        Non-Reliance on Administrative
Agent and Other Lenders.  Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also
acknowledges that it 


 


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will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


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


 


9.09                        Administrative Agent May File
Proofs of Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


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


 


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


 


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


 


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


 


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9.10                        Collateral Matters. 
Each of the Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Lien
on any property granted to or held by the Administrative Agent under the Pledge
Agreement (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and
the expiration or termination of all Letters of Credit, (ii) that is sold
or to be sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, (iii) in accordance with Section 6.13
or (iv) if approved, authorized or ratified in writing in accordance with Section 11.01.


 


Upon request by the Administrative Agent at any time,
the Required Lenders will confirm in writing the Administrative Agent’s
authority to release its interest in particular types or items of
property.  In each case as specified in
this Section 9.10, the Administrative Agent will, at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the Pledge
Agreement in accordance with the terms of the Loan Documents and this Section 9.10.


 


9.11                      Secured Hedge Agreements.  No Hedge Bank that obtains the benefits of Section 8.03
or any Collateral by virtue of the provisions hereof or the Pledge Agreement
shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral) other
than in its capacity as a Lender and, in such case, only to the extent
expressly provided in the Loan Documents. 
Notwithstanding any other provision of this Article IX to
the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Secured Hedge Agreements unless the
Administrative Agent has received written notice of such Obligations, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Hedge Bank.


 


ARTICLE
X.

MISCELLANEOUS


 


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


 


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


 


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


 


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


 


(d)                                 reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (v) of
the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate;


 


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


 


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


 


and, provided  further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver
or consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.06(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


10.02                 Notices; Effectiveness;
Electronic Communication.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10.03                 No Waiver; Cumulative Remedies. 
No failure by any Lender, the L/C Issuer or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


10.04                 Expenses; Indemnity;
Damage Waiver.


 


(a)                                  Costs and Expenses. 
The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Syndication Agent and their
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative 


 


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


 


(b)                                 Indemnification by the Borrower. 
Subject to the provisions of Sections 3.01 and 3.04
(which shall be controlling with respect to the matters covered thereby), the
Borrower shall indemnify the Administrative Agent and the Syndication Agent
(and any sub-agent of either thereof), each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee), incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder 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 L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.


 


(c)                                  Reimbursement by Lenders. 
To the extent that the Borrower for any reason fails to indefeasibly pay
any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent or the Syndication Agent (or any
sub-agent or either thereof), the 


 


85

















 


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


 


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


 


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


 


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


 


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


 


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10.06                 Successors and Assigns.


 


(a)                                  Successors and Assigns Generally. 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection (f) of
this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


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


 


(i)                                     except in the case of an assignment of
the entire remaining amount of the assigning Lender’s Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000  unless each of
the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (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 of the assigning Lender’s Loans
and Commitments, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans;


 


(iii)                               any assignment of a Revolving Commitment
must be approved by the Borrower, unless an Event of Default shall have
occurred and be continuing, the Administrative Agent, the L/C Issuer and the
Swing Line Lender (each such consent not to be unreasonably withheld or
delayed) unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an 


 


87

















 


Eligible Assignee) and any assignment of a Class A
Term Loan must be approved by the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower (each such consent not
to be unreasonably withheld or delayed) unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and


 


(iv)                              the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


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


 


(c)                                  Register.  The Administrative
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection
by each of the Borrower and the L/C Issuer at any reasonable time and from time
to time upon reasonable prior notice.  In
addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.


 


(d)                                 Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the 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 (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such



 


88

















 


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, (iii) the Borrower, the Administrative Agent, the Lenders and
the L/C Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, (iv) any
such participation shall be of a ratable percentage of all of such Lender’s
Commitments and Loans and (v) to the extent required under applicable
Gaming Laws, each Participant must be registered with, approved by, or not
disapproved by (whichever may be required under applicable Gaming Laws), all
applicable Gaming Boards and may not be the subject of a Lender Disqualification.


 


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


 


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


 


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


 


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


 


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(h)                                 Special Purpose Funding Vehicles. 
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide
all or any part of any Committed Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Committed Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof or, if it
fails to do so, to make such payment to the Administrative Agent as is required
under Section 2.12(b)(ii). 
Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of the Borrower under
this Agreement (including its obligations under Section 3.04), (ii) no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver
or other modification of any provision of any Loan Document, remain the lender
of record hereunder.  The making of a
Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof.  Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of the Borrower and the Administrative Agent and with
the payment of a processing fee of $3,500, assign all or any portion of its
right to receive payment with respect to any Committed Loan to the Granting
Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Committed Loans to any rating agency,
commercial paper dealer or provider of any surety or Guarantee or credit or
liquidity enhancement to such SPC.


 


10.07                 Treatment of Certain Information;
Confidentiality.  Each of the Administrative Agent, the Lenders
and the L/C Issuer agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, members,
directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and agrees to keep such Information
confidential), (b) to the extent requested by any Gaming Board or any
regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement (it being understood that the
Persons to whom such disclosure is made will be informed of the 


 


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confidential
nature of the information and agree to keep such Information confidential) or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of the information and agree to keep such Information
confidential), (g) with the consent of the 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 L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower and
such recipient reasonably believes such disclosure was proper.


 


For purposes of this Section, “Information”
means all information received from the Borrower or any Subsidiary relating to
the Borrower or any Subsidiary or any of their respective businesses, other
than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary; provided that all Information may be shared
by and among the Administrative Agent, any Lender or the L/C Issuer whether or
not such Information is 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.


 


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


 


10.08                 Right of Setoff. 
If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender, the L/C Issuer or any such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other
Loan Document and although such obligations of the Borrower may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender,
the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the 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.


 


10.09                 Interest Rate Limitation. 
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not 


 


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


 


10.10                 Counterparts; Integration;
Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements (including, without limitation, the Existing Credit
Agreement) and understandings, oral or written, relating to the subject matter
hereof.  Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


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


 


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


 


10.13                 Replacement of Lenders. 
If any Lender requests compensation under Section 3.04, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender 


 


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is a
Defaulting Lender or an Impacted Lender or the subject of a Lender
Disqualification or is no longer an Eligible Assignee under clause (B) of
the definition thereof, then the 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 10.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


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


 


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


 


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


 


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


 


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


 


10.14                 Governing Law;
Jurisdiction; Etc.


 


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


 


(b)                                 SUBMISSION TO JURISDICTION. 
THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH 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 


 


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THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY
LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


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


 


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


 


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


 


10.16                 USA PATRIOT Act Notice. 
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the 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 the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.


 


10.17                 Cooperation with Gaming
Boards.  The Administrative Agent and the Lenders
agree to cooperate with all Gaming Boards in connection with the administration
of their 


 


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regulatory
jurisdiction over the Borrower and its Subsidiaries, including the
provision of such documents and other information as may be requested by any
such Gaming Board relating to Borrower or any of its Subsidiaries or to the
Loan Documents.  The Borrower agrees to
cooperate with Governmental Authorities that have regulatory jurisdiction over
the Lenders in connection with this Agreement, including the provision of such
documents and other information as may be requested by any such Governmental
Authority relating to any Lender or this Agreement.


 


10.18                 Pledge Agreement Release. 
Except as otherwise provided herein, if the Pledge Agreement is in
effect, no amendment, waiver or consent to this Agreement or the Pledge
Agreement shall release all or substantially all of the Collateral in any
transaction or series of transactions without the written consent of each
Lender.


 


10.19                 No Fiduciary Duty.  The Administrative Agent, each
Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the “Lenders”), may
have economic interests that conflict with those of the Borrower, its
stockholders and/or its affiliates.  The Borrower agrees that nothing in
the Loan Documents or otherwise will be deemed to create an advisory, fiduciary
or agency relationship or fiduciary or other implied duty between any Lender,
on the one hand, and Borrower, its stockholders or its affiliates, on the
other.  The Borrower acknowledges and agrees that (i) the
transactions contemplated by the Loan Documents (including the exercise of
rights and remedies hereunder and thereunder) are arm’s-length commercial
transactions between the Lenders, on the one hand, and the Borrower, on the
other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility
in favor of the Borrower, its stockholders or its affiliates with respect to the
transactions contemplated hereby (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any
Lender has advised, is currently advising or will advise the Borrower, its
stockholders or its Affiliates on other matters) or any other obligation to the
Borrower except the obligations expressly set forth in the Loan Documents and (y) each
Lender is acting solely as principal and not as the agent or fiduciary of the
Borrower, its management, stockholders, creditors or any other Person. 
The Borrower acknowledges and agrees that the Borrower has consulted its own
legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto.  The Borrower agrees that it
will not claim that any Lender has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Borrower, in connection
with such transaction or the process leading thereto.


 


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


 


	
   

  	
  INTERNATIONAL GAME TECHNOLOGY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick W. Cavanaugh

  
	
   

  	
  Name:

  	
  Patrick W. Cavanaugh

  
	
   

  	
  Title:

  	
  Executive Vice
  President and Chief Financial Officer

  
					



 

















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Deborah Fuetsch

  
	
   

  	
  Name:

  	
  Deborah Fuetsch

  
	
   

  	
  Title:

  	
  Vice President