Exhibit 10.1



 




Exhibit
10.1
 



 

 






Published CUSIP Number:                     




SECOND AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of November 1, 2006




among




GLOBAL CASH ACCESS HOLDINGS, INC.,




GLOBAL CASH ACCESS, INC.,




THE LENDERS FROM TIME TO TIME PARTY HERETO,




BANK OF AMERICA, N.A.,

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




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent




BANC OF AMERICA SECURITIES LLC

and

WACHOVIA CAPITAL MARKETS, LLC

as Joint Lead Arrangers and Joint Book Managers




 

 




 


 









 











TABLE OF CONTENTS




Page          




ARTICLE I

DEFINITIONS and accounting terms





	 	 	 	 	 	 	 	 	 
	Section 1.01	 	Defined Terms
	 	 	1	 
	Section 1.02	 	Other Interpretive Provisions
	 	 	38	 
	Section 1.03	 	Accounting Terms
	 	 	39	 
	Section 1.04	 	Rounding
	 	 	39	 
	Section 1.05	 	Times of Day
	 	 	40	 
	Section 1.06	 	Letter of Credit Amounts
	 	 	40	 






ARTICLE
II
THE COMMITMENTS AND CREDIT EXTENSIONS






	 	 	 	 	 	 	 	 	 
	Section 2.01	 	The Loans
	 	 	40	 
	Section 2.02	 	Borrowings, Conversions and Continuations of Loans
	 	 	40	 
	Section 2.03	 	Letters of Credit
	 	 	42	 
	Section 2.04	 	Swing Line Loans
	 	 	51	 
	Section 2.05	 	Prepayments
	 	 	54	 
	Section 2.06	 	Termination or Reduction of Commitments
	 	 	55	 
	Section 2.07	 	Repayment of Loans
	 	 	56	 
	Section 2.08	 	Interest
	 	 	56	 
	Section 2.09	 	Fees
	 	 	57	 
	Section 2.10	 	Computation of Interest and Fees
	 	 	57	 
	Section 2.11	 	Evidence of Debt
	 	 	58	 
	Section 2.12	 	Payments Generally; Administrative Agent’s Clawback
	 	 	58	 
	Section 2.13	 	Sharing of Payments by Lenders
	 	 	60	 
	Section 2.14	 	Increase in Commitments
	 	 	61	 






ARTICLE
III
TAXES, YIELD PROTECTION AND ILLEGALITY





	 	 	 	 	 	 	 	 	 
	Section 3.01	 	Taxes
	 	 	62	 
	Section 3.02	 	Illegality
	 	 	64	 
	Section 3.03	 	Inability to Determine Rates
	 	 	65	 
	Section 3.04	 	Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	65	 
	Section 3.05	 	Compensation for Losses
	 	 	67	 
	Section 3.06	 	Mitigation Obligations; Replacement of Lenders
	 	 	67	 
	Section 3.07	 	Survival
	 	 	68	 






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ARTICLE
IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS







	 	 	 	 	 	 	 	 	 
	Section 4.01	 	Conditions of Initial Credit Extension
	 	 	68	 
	Section 4.02	 	Conditions to all Credit Extensions
	 	 	71	 
	Section 4.03	 	Reaffirmation
	 	 	71	 






ARTICLE
V
REPRESENTATIONS AND WARRANTIES







	 	 	 	 	 	 	 	 	 
	Section 5.01	 	Existence, Qualification and Power; Compliance with Laws
	 	 	71	 
	Section 5.02	 	Authorization; No Contravention
	 	 	72	 
	Section 5.03	 	Governmental Authorization; Other Consents
	 	 	72	 
	Section 5.04	 	Binding Effect
	 	 	72	 
	Section 5.05	 	Financial Condition; No Material Adverse Effect
	 	 	72	 
	Section 5.06	 	Litigation
	 	 	73	 
	Section 5.07	 	No Default
	 	 	74	 
	Section 5.08	 	Ownership of Property; Liens
	 	 	74	 
	Section 5.09	 	Environmental Compliance
	 	 	74	 
	Section 5.10	 	Insurance
	 	 	74	 
	Section 5.11	 	Taxes
	 	 	74	 
	Section 5.12	 	ERISA Compliance
	 	 	75	 
	Section 5.13	 	Subsidiaries
	 	 	75	 
	Section 5.14	 	Margin Regulations; Investment Company Act; Public Utility
Holding Company Act
	 	 	76	 
	Section 5.15	 	Disclosure
	 	 	76	 
	Section 5.16	 	Compliance with Law
	 	 	76	 
	Section 5.17	 	Intellectual Property
	 	 	77	 
	Section 5.18	 	Purpose of Loans and Letters of Credit
	 	 	77	 
	Section 5.19	 	Labor Matters
	 	 	77	 
	Section 5.20	 	Solvency and Surplus
	 	 	77	 
	Section 5.21	 	Collateral Documents
	 	 	77	 
	Section 5.22	 	Ownership of the Borrower
	 	 	78	 






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TABLE OF CONTENTS

(continued)




Page          




ARTICLE
VI
AFFIRMATIVE COVENANTS








	 	 	 	 	 	 	 	 	 
	Section 6.01	 	Financial Statements
	 	 	78	 
	Section 6.02	 	Certificates; Other Information
	 	 	79	 
	Section 6.03	 	Notices
	 	 	82	 
	Section 6.04	 	Payment of Obligations
	 	 	83	 
	Section 6.05	 	Preservation of Existence Etc
	 	 	83	 
	Section 6.06	 	Maintenance of Properties
	 	 	84	 
	Section 6.07	 	Insurance; Certain Proceeds
	 	 	84	 
	Section 6.08	 	Compliance with Law
	 	 	85	 
	Section 6.09	 	Books and Records; Lender Meeting
	 	 	86	 
	Section 6.10	 	Inspection Rights
	 	 	86	 
	Section 6.11	 	Use of Proceeds
	 	 	86	 
	Section 6.12	 	Additional Loan Parties; Additional Security
	 	 	87	 
	Section 6.13	 	Contributions
	 	 	89	 
	Section 6.14	 	Cash Collateral Accounts
	 	 	89	 






ARTICLE
VII
NEGATIVE COVENANTS





	 	 	 	 	 	 	 	 	 
	Section 7.01	 	Limitation on Indebtedness
	 	 	90	 
	Section 7.02	 	Restriction on Liens
	 	 	92	 
	Section 7.03	 	Nature of Business
	 	 	94	 
	Section 7.04	 	Consolidation, Merger and Dissolution
	 	 	94	 
	Section 7.05	 	Asset Dispositions
	 	 	96	 
	Section 7.06	 	Investments
	 	 	97	 
	Section 7.07	 	Restricted Payments, etc
	 	 	99	 
	Section 7.08	 	Prepayments of Indebtedness, etc
	 	 	100	 
	Section 7.09	 	Transactions with Affiliates
	 	 	101	 
	Section 7.10	 	Fiscal Year; Accounting; Organizational and Other Documents
	 	 	102	 
	Section 7.11	 	Restrictions with Respect to Intercorporate Transfers
	 	 	102	 
	Section 7.12	 	Ownership of Subsidiaries; Limitations on Holdings and the Borrower
	 	 	103	 
	Section 7.13	 	Sale and Leaseback Transactions
	 	 	104	 
	Section 7.14	 	Capital Expenditures
	 	 	104	 
	Section 7.15	 	Additional Negative Pledges
	 	 	105	 





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	Section 7.16	 	Impairment of Security Interests
	 	 	105	 
	Section 7.17	 	Sales of Receivables
	 	 	105	 
	Section 7.18	 	Financial Covenants
	 	 	105	 
	Section 7.19	 	Independence of Covenants
	 	 	106	 






ARTICLE
VIII
DEFAULTS







	 	 	 	 	 	 	 	 	 
	Section 8.01	 	Events of Default
	 	 	106	 
	Section 8.02	 	Acceleration; Remedies
	 	 	110	 
	Section 8.03	 	Allocation of Payments After Event of Default
	 	 	111	 






ARTICLE
IX
AGENCY PROVISIONS







	 	 	 	 	 	 	 	 	 
	Section 9.01	 	Appointment and Authority
	 	 	114	 
	Section 9.02	 	Rights as a Lender
	 	 	114	 
	Section 9.03	 	Exculpatory Provisions
	 	 	114	 
	Section 9.04	 	Reliance by Administrative Agent
	 	 	115	 
	Section 9.05	 	Delegation of Duties
	 	 	116	 
	Section 9.06	 	Resignation of Administrative Agent
	 	 	116	 
	Section 9.07	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	117	 
	Section 9.08	 	No Other Duties, Etc
	 	 	117	 
	Section 9.09	 	Administrative Agent May File Proofs of Claim
	 	 	117	 
	Section 9.10	 	Collateral and Guaranty Matters
	 	 	118	 






ARTICLE
X
MISCELLANEOUS






	 	 	 	 	 	 	 	 	 
	Section 10.01	 	Amendments, Etc
	 	 	119	 
	Section 10.02	 	Notices; Effectiveness; Electronic Communications
	 	 	121	 
	Section 10.03	 	No Waiver; Cumulative Remedies
	 	 	123	 
	Section 10.04	 	Expenses; Indemnity; Damage Waiver
	 	 	123	 
	Section 10.05	 	Defaulting Lenders
	 	 	125	 
	Section 10.06	 	Payments Set Aside
	 	 	125	 
	Section 10.07	 	Successors and Assigns
	 	 	125	 
	Section 10.08	 	Treatment of Certain Information; Confidentiality
	 	 	130	 
	Section 10.09	 	Set-off
	 	 	131	 





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Page          




	 	 	 	 	 	 	 	 	 
	Section 10.10	 	Interest Rate Limitation
	 	 	131	 
	Section 10.11	 	Counterparts
	 	 	132	 
	Section 10.12	 	Integration
	 	 	132	 
	Section 10.13	 	Survival of Representations and Warranties
	 	 	132	 
	Section 10.14	 	Severability
	 	 	132	 
	Section 10.15	 	No Advisory or Fiduciary Responsibility
	 	 	132	 
	Section 10.16	 	Headings
	 	 	133	 
	Section 10.17	 	Governing Law; Submission to Jurisdiction
	 	 	133	 
	Section 10.18	 	Waiver of Right to Trial by Jury
	 	 	134	 
	Section 10.19	 	USA Patriot Act Notice; Lenders’ Compliance Certification
	 	 	135	 
	Section 10.20	 	Binding Effect
	 	 	135	 
	Section 10.21	 	Conflict
	 	 	135	 
	Section 10.22	 	Replacement of Lenders
	 	 	135	 





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Schedules:




	 	 	 	 	 
	Schedule 2.01

	 	-
	 	Lenders and Commitments
	Schedule 5.03

	 	-
	 	Required Consents, Authorizations, Notices and Filings
	Schedule 5.13

	 	-
	 	Subsidiaries
	Schedule 5.22

	 	-
	 	Ownership of the Borrower
	Schedule 7.01

	 	-
	 	Existing Indebtedness
	Schedule 7.09

	 	-
	 	Transactions with Affiliates
	Schedule 10.02

	 	-
	 	Administrative Agent’s Office, Certain Addresses for Notices






Exhibits:




	 	 	 	 	 
	Exhibit A-1

	 	-
	 	Form of Committed Loan Notice
	Exhibit A-2

	 	-
	 	Form of Swing Line Loan Notice
	Exhibit B-1

	 	-
	 	Form of Revolving Credit Note
	Exhibit B-2

	 	-
	 	Form of Term A Note
	Exhibit B-3

	 	-
	 	Form of Swing Line Note
	Exhibit C

	 	-
	 	Form of Assignment and Assumption
	Exhibit D

	 	 	 	Form of Compliance Certificate
	Exhibit E

	 	-
	 	Form of Opinion of Counsel for the Borrower and the Other Loan Parties
	Exhibit F

	 	-
	 	Form of Guaranty
	Exhibit G

	 	-
	 	Form of Perfection Certificate
	Exhibit H

	 	-
	 	Form of Intercompany Note
	Exhibit I

	 	-
	 	Form of Intercompany Note Subordination Provisions
	Exhibit J

	 	-
	 	Form of Loan Party Accession Agreement






vi





 













 






SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT







This Second Amended and Restated Credit Agreement is entered into as of November 1, 2006 and
is among GLOBAL CASH ACCESS HOLDINGS, INC., a Delaware corporation (“Holdings”), GLOBAL
CASH ACCESS, INC., a Delaware corporation (the “Borrower”), the banks and other financial
institutions from time to time party hereto (collectively, the “Lenders” and individually,
a “Lender”) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer. Banc of America Securities LLC and Wachovia Capital Markets, LLC are the joint lead
arrangers and joint book managers of the facilities provided under this Agreement.



Holdings, the Borrower, the Lenders, Bank of America, N.A, as Administrative Agent, Swing Line
Lender and L/C Issuer are parties to an Amended and Restated Credit Agreement dated as of April 13,
2005, as amended by Amendment No. 1, dated as of August 26, 2005 (as so amended, the “Existing
Credit Agreement”).



Holdings and the Borrower have requested, and the Lenders have agreed, to enter into this
Second Amended and Restated Credit Agreement, to amend and restate the Existing Credit Agreement,
upon the satisfaction or waiver of the conditions precedent set forth in Section 4.03.



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



ARTICLE
I
DEFINITIONS AND ACCOUNTING TERMS




Section 1.01 Defined Terms. Terms defined in the introductory section hereof have the
respective meanings set forth therein. As used in this Agreement, the following terms shall have
the meanings set forth below:



“Accession Agreement” means a Loan Party Accession Agreement, substantially in the
form of Exhibit J hereto, executed and delivered by an Additional Subsidiary Guarantor
after the Closing Date in accordance with Section 6.12(a) or (d).



“Acquired Capital Lease Obligations” means Capital Lease Obligations of a Person (i)
existing at the time such Person becomes a Subsidiary of the Borrower or (ii) assumed in connection
with the acquisition of assets from such Person, in each case, other than Capital Lease Obligations
incurred in connection with, or in contemplation of, such Person becoming a Subsidiary of the
Borrower or such acquisition, as the case may be.



“Acquired Purchase Money Indebtedness” means Purchase Money Indebtedness of a Person
(i) existing at the time such Person becomes a Subsidiary of the Borrower or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other than Purchase Money
Indebtedness incurred in connection with, or in contemplation of, such Person becoming a Subsidiary
of the Borrower or such acquisition, as the case may be.


 


1









 






“Additional Collateral Documents” has the meaning set forth in Section 6.12.



“Additional Subsidiary Guarantor” means each Person that becomes a Subsidiary
Guarantor after the Closing Date by execution of an Accession Agreement as provided in Section
6.12(b).



“Administrative Agent” means Bank of America, in its capacity as administrative agent
under any of the Finance 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 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. As used herein, the term “Control” means (i) with
respect to any Person having voting shares or their equivalent and elected directors, managers or
Persons performing similar functions, the possession, directly or indirectly, of the power to vote
10% or more of the Equity Interests having ordinary voting power of such Person or (ii) the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting shares or their equivalent, by
contract or otherwise. Notwithstanding the foregoing, in no event shall the Bank of America or any
of its affiliates be, or be deemed to be, an Affiliate of any Loan Party.



“Agent” means the Administrative Agent or the Collateral Agent and any successors and
assigns in such capacity, and “Agents” means both of them.



“Agent-Related Persons” means the Administrative Agent or the Collateral Agent,
together with their respective Affiliates (including, in the case of Bank of America in its
capacity as the Administrative Agent, the Arranger), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.



“Agreement” means this Credit Agreement, as amended, modified or supplemented from
time to time.



“Anti-Terrorism Laws” means any Laws relating to terrorism or money-laundering,
including, without limitation, (i) Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 and relating to Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism, (ii) the U.S. Patriot Act, (iii) the
International Emergency Economic Power Act, 50 U.S.C. § 1701 et seq., (iv) the Bank Secrecy Act,
(v) the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. and (vi) any related rules and
regulations of the U.S. Treasury Department’s Office of Foreign Assets Control or any other
Governmental Authority, in each case as the same may be amended, supplemented, modified, replaced
or otherwise in effect from time to time.


 


2









 





“Applicable Commitment Fee Percentage” means, at any time, in respect of the Revolving
Credit Facility, (a) from the Closing Date to the date on which the Administrative Agent receives a
Compliance Certificate pursuant to Section 6.02(b) for the fiscal quarter ending December
31, 2006, 0.25% per annum and (b) thereafter, the applicable rate per annum (expressed in basis
points) set forth below determined by reference to the Senior Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b):



	 	 	 	 	 	 	 	 	 
	Pricing Level	 	Senior Leverage Ratio	 	Commitment Fee
	 	1	 	 	Less than or equal to 1.0 to 1.0

	 	 	20.0	 
	 	2	 	 	Less than or equal to 1.5 to 1.0
but greater than 1.0 to 1.0

	 	 	25.0	 
	 	3	 	 	Less than or equal to 2.0 to 1.0
but greater than 1.5 to 1.0

	 	 	25.0	 
	 	4	 	 	Less than or equal to 2.5 to 1.0
but greater than 2.0 to 1.0

	 	 	30.0	 
	 	5	 	 	Less than or equal to 3.0 to 1.0
but greater than 2.5 to 1.0

	 	 	30.0	 
	 	6	 	 	Greater than 3.0 to 1.0

	 	 	35.0	 






Any increase or decrease in the Applicable Commitment Fee Percentage resulting from a change
in the Senior Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level 6 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered until such Compliance Certificate
is delivered.



“Applicable Lending Office” means (i) with respect to any Lender and for each Type of
Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such
Type of Loan in such Lender’s Administrative Questionnaire or in any applicable Assignment and
Assumption pursuant to which such Lender became a Lender hereunder or such other office of such
Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made
and maintained and (ii) with respect to any L/C Issuer and for each Letter of Credit, the “Lending
Office” of such L/C Issuer (or of an Affiliate of such L/C Issuer) designated on the signature
pages hereto or such other office of such L/C Issuer (or of an Affiliate of such L/C Issuer) as
such L/C Issuer may from time to time specify to the Administrative Agent and the Borrower as the
office by which its Letters of Credit are to be issued and maintained.



“Applicable Percentage” means (a) in respect of the Term A Facility, with respect to
any Term A Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
A Facility represented by (i) at any time during the Availability Period in respect of such
Facility, such Term A Lender’s Term A Commitment at such time and (ii) thereafter, the principal
amount of such Term A Lender’s Term A Loans at such time and (b) in respect of the Revolving Credit
Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to
the ninth decimal place) of the Revolving Credit Facility represented



 


3









 






by such Revolving Credit Lender’s Revolving Credit Commitment at such time. If the commitment
of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer
to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the
Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit
Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable
Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most
recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage
of each Lender in respect of each Facility is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.



“Applicable Rate” means (i) from the Closing Date to the date on which the
Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the
fiscal quarter ending December 31, 2006, 0.375% per annum for Base Rate Loans and 1.375% per annum
for Eurodollar Rate Loans and (ii) thereafter, the applicable rate per annum (expressed in basis
points) set forth below determined by reference to the Senior Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Eurodollar Rate	 	 
	Pricing Level	 	Senior Leverage Ratio	 	(Letters of Credit)	 	Base Rate
	 	1	 	 	Less than or equal to 1.0 to 1.0

	 	 	87.5	 	 	 	0.0	 
	 	2	 	 	Less than or equal to 1.5 to
1.0 but greater than 1.0 to 1.0

	 	 	112.5	 	 	 	12.5	 
	 	3	 	 	Less than or equal to 2.0 to
1.0 but greater than 1.5 to 1.0

	 	 	137.5	 	 	 	37.5	 
	 	4	 	 	Less than or equal to 2.5 to
1.0 but greater than 2.0 to 1.0

	 	 	162.5	 	 	 	62.5	 
	 	5	 	 	Less than or equal to 3.0 to
1.0 but greater than 2.5 to 1.0

	 	 	175.0	 	 	 	75.0	 
	 	6	 	 	Greater than 3.0 to 1.0

	 	 	200.0	 	 	 	100.0	 






Any increase or decrease in the Applicable Rate resulting from a change in the Senior Leverage
Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 6 shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until such Compliance Certificate is
delivered.



“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the
Revolving Credit Facility at such time.




 


4









 






“Appropriate Lender” means, at any time, (a) with respect to any of the Term A
Facility or the Revolving Credit Facility, a Lender that has a
Commitment with respect to such Facility or holds a Term A Loan or a Revolving Credit Loan, respectively, at such time, (b)
with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit
have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with
respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are
outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.



“Approved 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 and Wachovia Capital Markets, LLC, in
their capacity as joint lead arrangers and joint book managers.




“Arriva Card” means Arriva Card, Inc., a Delaware corporation.



“Asset Disposition” means any sale, lease (including any Sale/Leaseback Transaction,
whether or not involving a Capital Lease), transfer or other disposition (including any such
transaction effected by way of merger or consolidation and including any sale or other disposition
of Equity Interests of a Subsidiary, but excluding any sale or other disposition by way of Casualty
or Condemnation) by any Group Company of any asset.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



“Assignment and Assumption” means an Assignment and Assumption, substantially in the
form of Exhibit C hereto.




“ATMs” has the meaning set forth in Section 7.01(ix).



“Attributable Indebtedness” means, at any date (i) 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, (ii) in respect of any Synthetic Lease Obligation
of any Person, the capitalized or principal 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 or other agreement were accounted for as a Capital Lease and
(iii) in respect of any Sale/Leaseback Transaction described in Section 7.13, the lesser of
(A) the present value, discounted in accordance with GAAP at the debt rate implicit in the related
lease, of the obligations of the lessee for rental payments over the remaining term of such lease
(including any period for which such lease has been extended or may, at the option of the lessor be
extended) and (B) the fair market value of the assets subject to such transaction.



“Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries for the fiscal years ended 2004 and 2005, and the
related consolidated statements of income or operations, members’ equity and cash flows for such
fiscal year of the Borrower and its Consolidated Subsidiaries, including the notes thereto.




 


5









 






“Availability Period” means the period from and including the Closing Date to the
earliest of (i) the Revolving Termination Date, (ii) the date of the termination of the
Commitments pursuant to Section 2.06 and (iii) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02.



“Bank of America” means Bank of America, N.A., a national banking association, and its
successors.



“Bank Secrecy Act” means the Financial Recordkeeping and Reporting of Currency and
Foreign Transactions Act of 1970, 31 U.S.C. 1051, et seq., as the same may be amended,
supplemented, modified, replaced or otherwise in effect from time to time.



“Base Rate” means, for any day, a rate per annum equal to the higher of (i) the
Federal Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate”. The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of America’s 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 Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change.




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




“Borrower” means Global Cash Access, Inc., a Delaware corporation, and its successors.




“Borrower Materials” has the meaning specified in Section 6.02.



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



“Business Acquisition” means the acquisition by the Borrower or one or more of its
Subsidiaries of Equity Interests of, or all (or any substantial part for which audited financial
statements or other financial information satisfactory to the Administrative Agent is available) of
the assets or property of, another Person.



“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 where the Administrative Agent’s Office is located, except that if such day
relates to a borrowing of, a payment or prepayment of principal of or interest on, or the Interest
Period for, a Eurodollar Rate Loan, or a notice by the Borrower with respect to any such borrowing,
payment, prepayment or Interest Period, such day shall also be a day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar market.



“Capital Lease” of any Person means any lease of (or other arrangement conveying the
right to use) property (whether real, personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of
such Person.


 


6









 





“Capital Lease Obligations” means, with respect to any Person, all obligations of such
Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.



“Cash Collateral Account” means a blocked, non-interest bearing deposit account of one
or more of the Loan Parties at Bank of America (or another commercial bank selected in compliance
with Section 6.14) in the name of the Administrative Agent and under the sole dominion and
control of the Administrative Agent, and otherwise established in a manner satisfactory to the
Administrative Agent.




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




“Cash Equivalents” means:




(i) securities issued or directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof) having maturities
of not more than three months from the date of acquisition;




(ii) Dollar-denominated certificates of deposit of (A) any Lender, (B) any domestic
commercial bank of recognized standing having capital and surplus in excess of $500,000,000
or (C) any bank whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank
being an “Approved Lender”), in each case with maturities of not more than 90 days
from the date of acquisition;




(iii) commercial paper and variable or fixed rate notes issued by any Approved Lender
(or by the parent company thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation not an Affiliate of the Borrower rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within three months of the date of acquisition;




(iv) repurchase agreements with a term of not more than seven days with a bank or trust
company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower or one or more of its Subsidiaries shall
have a perfected first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations; and




(v) Investments, classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least $500,000,000
and the portfolios of which are limited to Investments of the character described in the
foregoing clauses (i) through (iv).



“Casualty” means any casualty, loss, damage, destruction or other similar loss with
respect to real or personal property or improvements or from business interruption.


 


7









 





“Casualty Insurance Policy” means any insurance policy maintained by any Group Company
covering losses with respect to Casualties.



“Certificate of Incorporation” means the Certificate of Incorporation of Holdings that
sets forth the rights and preferences of the common stock, par value $.001 per share and the
Preferred Stock, par value $.001 per share, as the same may be amended, modified or supplemented
form time to time in accordance with the provisions thereof and of this Agreement.



“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 an event or series of events by which:




(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) (other than M&C International or the Summit
Investors) 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,
whether such right is exercisable immediately or only after the passage of time (such right,
an “option right”)), directly or indirectly, of 25% or more of the equity securities
of Holdings entitled to vote for members of the board of directors or equivalent governing
body of Holdings 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); or




(b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of Holdings 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 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


 


8









 






(c) any Person or two or more Persons acting in concert (other than M&C International
or the Summit Investors) shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling influence over
the management or policies of Holdings, or control over the equity securities of Holdings
entitled to vote for members of the board of directors or equivalent governing body of
Holdings on a fully-diluted basis (and taking into account all such securities that such
Person or Persons have the right to acquire pursuant to any option right) representing 25%
or more of the combined voting power of such securities; or




(d) Holdings shall cease, directly or indirectly, to own and control legally and
beneficially all of the Equity Interests in the Borrower; or




(e) a “change of control” (as defined in the Senior Subordinated Note Indenture)
occurs.




“Closing Date” means November 3, 2006.



“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect
from time to time.



“Collateral” means all of the property which is subject or is purported to be subject
to the Liens granted by the Collateral Documents.



“Collateral Agent” means Bank of America, in its capacity as collateral agent for the
Finance Parties under the Collateral Documents, and its successor or successors in such capacity.



“Collateral Documents” means, collectively, the Security Agreement, the Pledge
Agreement, the Depositary Bank Agreements, any Additional Collateral Documents, any additional
pledges, security agreements, patent, trademark or copyright filings or mortgages required to be
delivered pursuant to the Finance Documents and any instruments of assignment, control agreements,
lockbox letters or other instruments or agreements executed pursuant to the foregoing.



“Commitment” means (i) with respect to each Lender, its Revolving Credit Commitment
and/or Term A Commitment, as and to the extent applicable, (ii) with respect to each L/C Issuer,
its L/C Commitment and (iii) with respect to the Swing Line Lender, the Swing Line Commitment, in
each case as set forth on Schedule 2.01 or in the applicable Assignment and Assumption as
its Commitment of the applicable Class, as any such amount may be increased or decreased from time
to time pursuant to this Agreement.



“Committed Loan Notice” means a notice of (a) a Term A Borrowing, (b) a Revolving
Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) 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-1.


 


9









 





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



“Condemnation” means any taking of property or assets, or any part thereof or interest
therein, for public or quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation or in any other manner.



“Condemnation Award” means all proceeds of any Condemnation or transfer in lieu
thereof.



“Consolidated Adjusted Working Capital” means at any date the excess of (i)
Consolidated Current Assets (excluding cash and Cash Equivalents classified as such in accordance
with GAAP) over (ii) Consolidated Current Liabilities (excluding the current portion of any
Consolidated Funded Indebtedness).



“Consolidated Capital Expenditures” means for any period the aggregate amount of all
expenditures (whether paid in cash or other consideration or accrued as a liability) that would, in
accordance with GAAP, be included as additions to property, plant and equipment and other capital
expenditures of the Borrower and its Consolidated Restricted Subsidiaries for such period, as the
same are or would be set forth in a consolidated statement of cash flows of the Borrower and its
Consolidated Restricted Subsidiaries for such period (including the amount of assets leased under
any Capital Lease).



“Consolidated Cash Taxes” means for any period the aggregate amount of all taxes of
the Borrower and its Consolidated Restricted Subsidiaries for such period to the extent the same
are paid directly in cash by the Borrower.



“Consolidated Current Assets” means at any date the consolidated current assets of the
Borrower and its Consolidated Restricted Subsidiaries determined as of such date, excluding
receivables arising out of the Overnight Settlements but only to the extent reflected on the
balance sheet of the Borrower and its Consolidated Restricted Subsidiaries.



“Consolidated Current Liabilities” means at any date (i) the consolidated current
liabilities of the Borrower and its Consolidated Restricted Subsidiaries, excluding liabilities
arising out of the Overnight Settlements but only to the extent reflected on the balance sheet of
the Borrower and its Consolidated Restricted Subsidiaries, plus (ii) all Guaranty Obligations of
the Borrower or any Consolidated Restricted Subsidiary of the Borrower in respect of the current
liabilities of any Person (other than the Borrower or a Consolidated Subsidiary of the Borrower),
all determined as of such date.



“Consolidated EBITDA” means for any period the sum of (i) Consolidated Net Income for
such period (excluding therefrom (x) any extraordinary items of gain or loss and (y) any gain or
loss from discontinued operations) plus (ii) an amount which, in the determination of Consolidated
Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) provisions
for Federal, state, local and foreign income, value added and similar taxes, if applicable, (C)
depreciation, amortization (including, without limitation, amortization of goodwill and other
intangible assets), impairment of goodwill and other non-recurring non-cash charges (excluding any
such non-cash charge to the extent that it represents amortization of a



 


10









 






prepaid cash expense that was paid in a prior period or an accrual of, or a reserve for, cash
charges or expenses in any future period), and (D) without duplication, the income of any
Unrestricted Subsidiary to the extent that such income is actually received in cash by the Borrower
or a Wholly-Owned Consolidated Restricted Subsidiary in the form of Restricted Payments during such
period, minus (iii) any amount which, in the determination of Consolidated Net Income for such
period, has been added for (A) interest income and (B) any non-cash income or non-cash gains, all
as determined in accordance with GAAP. For purposes of calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any
determination of the Total Leverage Ratio, the Senior Leverage Ratio and the Fixed Charge Coverage
Ratio, if during such Reference Period (or in the case of pro-forma calculations, during the period
from the last day of such Reference Period to and including the date as of which such calculation
is made) any Group Company shall have made a Permitted Business Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving effect thereto on a Pro-Forma Basis,
without giving effect to projected or anticipated cost savings.



“Consolidated Fixed Charges” means, for any period, the sum of (i) Consolidated
Interest Expense for such period plus (ii) Consolidated Scheduled Debt Payments for such period.



“Consolidated Funded Indebtedness” means at any date the Funded Indebtedness of the
Borrower and its Consolidated Restricted Subsidiaries as of such date, determined on a consolidated
basis in accordance with GAAP.



“Consolidated Indebtedness” means at any date the Indebtedness of the Borrower and its
Consolidated Restricted Subsidiaries determined on a consolidated basis as of such date.



“Consolidated Interest Expense” means, for any period, the total interest expense,
whether paid or accrued and whether or not capitalized, (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component of all payments
under Capital Leases and the implied interest component of Synthetic Leases (regardless of whether
accounted for as interest expense under GAAP), fees payable by the Borrower to a Vault Cash
Provider pursuant to Article VII (or a successor provision) of the Vault Cash Agreement (regardless
of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers’ acceptances and net costs in
respect of Swap Obligations constituting interest rate swaps, collars, caps or other arrangements
requiring payments contingent upon interest rates of the Borrower and its Consolidated Restricted
Subsidiaries), determined on a consolidated basis for such period.



“Consolidated Net Income” means, for any period, the net income (or net loss) after
taxes of the Borrower and its Consolidated Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP; provided that there shall be excluded from the
calculation of Consolidated Net Income (i) the income (or loss) of any Person in which any Person
other than the Borrower or any of its Wholly-Owned Consolidated Restricted Subsidiaries has an
ownership interest, except to the extent that any such income is actually received in cash by the
Borrower or such Wholly-Owned Consolidated Restricted



 


11









 






Subsidiary in the form of Restricted Payments during such period, (ii) the income (or loss) of
any Person accrued prior to the date it becomes a Consolidated Restricted Subsidiary of the
Borrower or is merged with or into or consolidated with the Borrower or any of its Consolidated
Restricted Subsidiaries or that Person’s assets are acquired by the Borrower or any of its
Consolidated Restricted Subsidiaries, except as provided in the definition of “Pro-Forma
Basis” herein and (iii) the income of any Restricted Subsidiary of the Borrower to the extent
that the declaration or payment of Restricted Payments or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary.



“Consolidated Restricted Subsidiary” means each Restricted Subsidiary of the Borrower
which is also a Consolidated Subsidiary of the Borrower.



“Consolidated Scheduled Debt Payments” means, for any period, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness (including, without limitation, the
principal component of Capital Lease Obligations and Purchase Money Indebtedness paid or payable
during such period), but excluding payments due on Revolving Credit Loans and Swing Line Loans
during such period; provided that Consolidated Scheduled Debt Payments for any period shall
not include voluntary prepayments of Consolidated Funded Indebtedness, mandatory prepayments of the
Term A Loans pursuant to Section 2.05(b) or other mandatory prepayments (other than by
virtue of scheduled amortization) of Consolidated Funded Indebtedness.



“Consolidated Subsidiary” means with respect to any Person at any date any Subsidiary
of such Person or other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such statements were prepared as of such date in
accordance with GAAP.



“Consolidated Total Assets” means at any date the total consolidated assets of the
Borrower and its Consolidated Subsidiaries determined as of such date.



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



“Control” has the meaning specified in the definition of “Affiliate” in this
Section 1.01.



“Credit Extension” means a Borrowing or the issuance, renewal or extension of a Letter
of Credit.



“Debt Equivalents” of any Person means (i) any Equity Interest of such Person which by
its terms (or by the terms of any security for which it is convertible or for which it is
exchangeable or exercisable), or upon the happening of any event or otherwise (including an event
which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible
into or exchangeable for Indebtedness or Debt Equivalents or (C) is redeemable or subject to any
repurchase requirement arising at the option of the holder thereof, in whole or in
part, on or prior to the first anniversary of the latest of the Revolving Termination Date or
the Term A Maturity Date and (ii) if such Person is a Subsidiary of the Borrower, any Preferred
Stock of such Person.



 


12









 







“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.



“Defaulting Lender” means any Lender that (a) has failed to fund any portion of a Term
A Borrowing, Revolving Credit 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, (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, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.



“Default” means any condition or event which constitutes an Event of Default or which
with the giving of notice or lapse of time or both would, unless cured or waived, become an Event
of Default.



“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.



“Depositary Bank Agreement” means an agreement between a Loan Party and any bank or
other depositary institution, substantially in the form of Exhibit D to the Security Agreement, as
the same may be amended, modified or supplemented from time to time.




“Dollars” and the sign “$” mean lawful money of the United States of America.



“Domestic Restricted Subsidiary” means a Domestic Subsidiary that is also a Restricted
Subsidiary.



“Domestic Subsidiary” means with respect to any Person each Subsidiary of such Person
that is organized under the laws of the United States or any political subdivision or any territory
thereof, and “Domestic Subsidiaries” means any two or more of them.



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.07(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.07(b)(iii)).


 


13









 





“Employee Benefit Arrangements” means in any jurisdiction the benefit schemes or
arrangements in respect of any employees or past employees operated by any Group Company or in
which any Group Company participates and which provide benefits on retirement, ill-health, injury,
death or voluntary withdrawal from or termination of employment, including termination indemnity
payments and life assurance and post-retirement medical benefits.



“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.



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of remediation, fines, penalties or indemnities), of any Group Company
directly or indirectly resulting from or based on (i) violation of any Environmental Law, (ii) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Material, (iii) exposure to any Hazardous Material, (iv) the release or threatened release of any
Hazardous Material into the environment or (v) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.



“Equity Equivalents” means with respect to any Person any rights, warrants, options,
convertible securities, exchangeable securities, indebtedness or other rights, in each case
exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of
such Person or securities exercisable for or convertible or exchangeable into Equity Interests of
such Person, whether at the time of issuance or upon the passage of time or the occurrence of some
future event.



“Equity Interests” means all shares of capital stock, partnership interests (whether
general or limited), limited liability company membership interests, beneficial interests in a
trust and any other interest or participation that confers on a Person the right to receive a share
of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt
securities convertible into such Equity Interests.



“Equity Investor Group” means M&C International, the Summit Investors and one or more
other investors reasonably acceptable to the Administrative Agent.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
rule or regulation issued thereunder.



“ERISA Affiliate” means each business or entity which is a member of a “controlled
group of corporations”, under “common control” or an “affiliated service group” with a Group
Company within the meaning of Section 414(b), (c) or (m) of the Code, or required to be aggregated
with a Group Company under Section 414(o) of the Code or is under “common control” with a Group
Company, within the meaning of Section 4001(a)(14) of ERISA.



 


14









 





“ERISA Event” means:



(i) a reportable event as defined in Section 4043 of ERISA and the regulations issued
under such Section with respect to a Plan, excluding, however, such events as to which the
PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event;




(ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of any Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days;




(iii) the failure to meet the minimum funding standard of Section 412 of the Code with
respect to any Plan (whether or not waived in accordance with Section 412(d) of the Code),
the application for a minimum funding waiver under Section 303 of ERISA with respect to any
Plan, the failure to make by its due date a required installment under Section 412(m) of the
Code with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan;




(iv) the incurrence of any material liability (or the reasonable expectation thereof)
by a Group Company or any ERISA Affiliate as the result of the violation of any provision of
Title I of ERISA or Section 4975 of the Code or pursuant to Title IV of ERISA relating to
employee benefit plans (as defined in Section 3 of ERISA), or the occurrence or existence of
any event, transaction or condition that could reasonably be expected to result in the
incurrence of any such liability by a Group Company or any ERISA Affiliate, or in the
imposition of any lien on any of the rights, properties or assets of a Group Company or any
ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or
Section 4975 of the Code or to Section 401(a)(29) or 412 of the Code;




(v) the provision by the administrator of any Plan pursuant to Section 4041(a)(2) of
ERISA of a notice (or the reasonable expectation of such provision of notice) of intent to
terminate such Plan in a distress termination described in Section 4041(c) of ERISA, the
institution by the PBGC of proceedings to terminate any Plan or the occurrence of any event
or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Plan;




(vi) the withdrawal of a Group Company or ERISA Affiliate in a complete or partial
withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by a Group Company or
ERISA Affiliate of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA;




(vii) the imposition of liability (or the reasonable expectation thereof) on a Group
Company or ERISA Affiliate pursuant to Section 4062, 4063, 4064 or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA;


 


15









 






(viii) the assertion of a material claim (other than routine claims for benefits)
against any Plan other than a Multiemployer Plan or the assets thereof, or against a Group
Company or ERISA Affiliate in connection with any Plan;




(ix) the receipt from the United States Internal Revenue Service of notice of the
failure of any Plan (or any other Employee Benefit Arrangement intended to be qualified
under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of any Plan to qualify for exemption from taxation under
Section 501(a) of the Code; or




(x) the establishment or amendment by a Group Company or ERISA Affiliate of any Welfare
Plan that provides post-employment welfare benefits in a manner that would materially
increase the liability of a Group Company.



“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
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
Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



“Eurodollar Rate Loan” means a Revolving Credit Loan, or a Term A Loan that bears
interest at a rate based on the Eurodollar Rate.




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



“Excess Cash Flow” means for any period an amount equal to (i) Consolidated EBITDA for
such period plus (ii) all cash non-recurring and extraordinary gains, if any, during such period
(whether or not accrued in such period), all business interruption insurance proceeds, if any, and
(without duplication) cash gains attributable to Asset Dispositions out of the ordinary course of
business, if any, of the Borrower and its Consolidated Restricted Subsidiaries during such period
to the extent not otherwise included in Consolidated EBITDA for such period and not required to be
utilized in connection with a repayment or prepayment of the Loans made or to be made pursuant to
Section 2.05(b)(iii), plus (iii) (x) the net decrease, if any, in Consolidated Adjusted
Working Capital less (y) the decrease, if any, in the principal amount of Revolving Credit Loans
and Swing Line Loans, in each case from the first day to the last day of such period, minus (iv)
the amount, if any, which, in the determination of Consolidated Net Income for such period, has
been included in respect of income or gain from Asset Dispositions of the Borrower and its
Consolidated Subsidiaries to the extent utilized or repay or prepay Loans



 


16









 






pursuant to Section 2.05(b)(iii), minus (v) the aggregate amount of Consolidated
Capital Expenditures during such period (net of the amount of Capital Lease Obligations and
Purchase Money Indebtedness (excluding Loans) incurred by the Borrower or any Subsidiary to finance
any such Capital Expenditures), minus (vi) Consolidated Interest Expense actually paid in cash by
the Borrower and its Consolidated Subsidiaries during such period, minus (vii) Consolidated Cash
Taxes (including Permitted Tax Distributions) actually paid during such period, minus (viii)
Consolidated Scheduled Debt Payments actually paid by the Borrower and its Consolidated
Subsidiaries during such period, minus (ix) optional prepayments of the Term A Loans during such
period minus (x) to the extent not included in clause (iv) above, repayments or prepayments
of the Revolving Credit Loans and Swing Line Loans to the extent the Revolving Credit Commitments
and the Swing Line Commitment are permanently reduced at the time of such payment, minus (xi) the
net increase, if any, in Consolidated Adjusted Working Capital less (y) the net increase, if any,
in the principal amount of Revolving Credit Loans and Swing Line Loans, in each case from the first
day to the last day of such period.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



“Excluded Asset Disposition” means an Asset Disposition permitted pursuant to any one
or more of clauses (i) through (vii) of Section 7.05.



“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, (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 the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (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 and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
10.22), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a).




“Existing Credit Agreement” has the meaning specified in the second recital.



“Existing Letters of Credit” means the letters of credit outstanding under the
Existing Credit Agreement as of the Closing Date.



“Extraordinary Receipts” means tax refunds received as a rebate or refund relating to
any federal or state income taxes paid, indemnity payments or proceeds received under any business
interruption or casualty insurance policy in respect of a covered loss thereunder, pension
reversions resulting from any surplus assets of any Pension Plan, certain
insurance proceeds and other payment amounts not received or expected in the ordinary course
of business.


 


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“Facility” means the Term A Facility or the Revolving Credit Facility, as the context
may require.



“Federal Funds Rate” means for any day the rate per annum (rounded upward, if
necessary, to a whole multiple of 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (i) 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 (ii) 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%) quoted to Bank of America on
such day on such transactions as determined by the Administrative Agent.



“Fee Letters” means the letter agreements dated September 20, 2006 among Bank of
America, Banc of America Securities LLC and the Borrower and September 28, 2006 among Wachovia
Bank, National Association, Wachovia Capital Markets, LLC and the Borrower.



“Finance Document” means each Senior Finance Document and each Swap Agreement between
one or more Loan Parties and a Swap Creditor entered into in accordance with Section
7.01(vi), and “Finance Documents” means all of them, collectively.



“Finance Obligations” means, at any date, (i) all Senior Obligations and (ii) all Swap
Obligations of a Loan Party owed or owing to any Swap Creditor under one or more Finance Documents.



“Finance Party” means each Lender, the Swing Line Lender, each L/C Issuer, each Swap
Creditor, each Agent and each Indemnitee and their respective successors and assigns, and
“Finance Parties” means any two or more of them, collectively.



“Fixed Charge Coverage Ratio” means, for any period, the ratio of (i) Consolidated
EBITDA less the aggregate amount of Maintenance Capital Expenditures for such period and less the
Borrower’s cash payments of Federal, state, local and foreign income, value added and similar
taxes, if applicable, for such period (exclusive of up to $9,500,000 of early extinguishment
charges incurred by the Borrower in October 2005 in connection with the prepayment of Senior
Subordinated Notes), to (ii) Consolidated Fixed Charges for such period.



“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 with respect to any Person any Subsidiary of such Person
that is not a Domestic Subsidiary of such Person.


 


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“Funded Indebtedness” means, with respect to any Person and without duplication, (i)
all Indebtedness of such Person of the types referred to in clauses (i), (ii),
(iii), (iv), (v), (vi), (vii) and (xi) of the
definition of “Indebtedness” in this Section 1.01, (ii) all Indebtedness of others of the
type referred to in clause (i) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on, or
payable out of the proceeds of production from, any property or asset of such Person, whether or
not the obligations secured thereby have been assumed by such Person, (iii) all Guaranty
Obligations of such Person with respect to Indebtedness of others of the type referred to in
clause (i) above and (iv) all Indebtedness of the type referred to in clause (i)
above of any other Person (including any Partnership in which such Person is a general partner and
any unincorporated joint venture in which such Person is a joint venturer) to the extent such
Person would be liable therefor under any applicable law or any agreement or instrument by virtue
of such Person’s ownership interest in or other relationship with such entity, except to the extent
the terms of such Indebtedness expressly provide that such Person shall not be liable therefor.



“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.



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



“Gaming Contract” means any written agreement, instrument or other arrangement entered
into by any Loan Party with any gaming establishment.



“Gaming License” means any license, permit, franchise or other authorization from any
Gaming Authority necessary on the date of this Agreement or at any time thereafter to own, lease or
operate the assets of or otherwise conduct the business of the Borrower or any of its Subsidiaries.



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



“Group Company” means any of Holdings, the Borrower or their respective Restricted
Subsidiaries (regardless of whether or not consolidated with Holdings or the Borrower for purposes
of GAAP), and “Group Companies” means all of them, collectively.



“Guaranty” means the First Amended and Restated Guaranty, substantially in the form of
Exhibit F hereto, dated as of the Closing Date among Holdings, the Subsidiary
Guarantors and the Administrative Agent, as the same may be amended, modified or supplemented
from time to time.



 


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“Guaranty Obligation” means, with respect to any Person, without duplication, any
obligation (other than endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) guarantying, intended to guaranty, or having the economic effect of
guarantying, any Indebtedness or other obligation of any other Person in any manner, whether direct
or indirect, and including, without limitation, any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or other obligation or any property constituting security therefor,
(ii) to advance or provide funds or other support for the payment or purchase of such indebtedness
or obligation or to maintain working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder
of Indebtedness or other obligation of such other Person, (iii) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner of such Indebtedness or
other obligation or (iv) to otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the Indebtedness or other obligation
in respect of which such Guaranty Obligation is made.



“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 Environment Law.



“Holdings” means Global Cash Access Holdings, Inc., a Delaware corporation, and its
successors.



“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:
(i) all obligations of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such
Person under conditional sale or other title retention agreements relating to property purchased by
such Person to the extent of the value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations, other than intercompany items, of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable arising in the ordinary
course of business and due within six months of the incurrence thereof), (v) the Attributable
Indebtedness of such Person in respect of Capital Lease Obligations and Synthetic Lease Obligations
(regardless of whether accounted for as indebtedness under GAAP), (vi) all obligations of such
Person to purchase securities or other property which arise out of or in connection with the sale
of the same or substantially similar securities or property, (vii) all non-contingent obligations
(and, for purposes of Section 7.01 and Section 8.01(e), all contingent obligations)
of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of
credit, bankers’ acceptance or similar instrument, (viii) all obligations of others



 


20









 






secured by (or for which the holder of such obligations has an existing right, contingent or
otherwise, to be secured by) a Lien on, or payable out of the proceeds of production from, any
property or asset of such Person, whether or not such obligation is assumed by such Person, (ix)
all Guaranty Obligations of such Person, (x) all Debt Equivalents of such Person (xi) all Swap
Obligations of such Person (determined at their then respective Swap Termination Values) and (xii)
the Indebtedness of any other Person (including any partnership in which such Person is a general
partner and any unincorporated joint venture in which such Person is a joint venturer) to the
extent such Person would be liable therefor under applicable law or any agreement or instrument by
virtue of such Person’s ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such person shall not be liable therefor.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitees” has the meaning set forth in Section 10.04.



“Innovative Funds Transfer, LLC” means Innovative Funds Transfer, LLC, a Delaware
limited liability company, and its successors.




“Intellectual Property” has the meaning set forth in the Security Agreement.



“Insurance Proceeds” means all insurance proceeds (other than business interruption
insurance proceeds), damages, awards, claims and rights of action with respect to any Casualty.



“Intercompany Note” means a promissory note contemplated by Section
7.06(a)(ix) or (x), substantially in the form of Exhibit H hereto, and
“Intercompany Notes” means any two or more of them.



“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; 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 or
Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity
Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under
the Revolving Credit Facility for purposes of this definition).



“Interest Period” means with respect to each Eurodollar Rate Loan, a period commencing
on the date of borrowing specified in the applicable Committed Loan Notice and ending one, two,
three or six months thereafter, as the Borrower may elect in the applicable notice;
provided that:




(i) any Interest Period which would otherwise end on a day which is not a Business Day
shall, subject to clause (v) below, 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;


 


21









 






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




(iii) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.



“Internal Control Event” means a fraud that involves management or other employees who
have a significant role in Holdings’ internal controls over financial reporting, in each case as
described in the Securities Laws.



“Investment” in any Person means (i) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock,
bonds, notes, debentures, time deposits or other securities of such Person, (ii) any deposit with,
or advance, loan or other extension of credit to or for the benefit of such Person (other than
deposits made in connection with the purchase of equipment or inventory in the ordinary course of
business) or (iii) any other capital contribution to or investment in such Person, including by way
of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued
on behalf of such Person incurred for the benefit of such Person or in the case of any Subsidiary
of the Borrower, any release, cancellation, compromise or forgiveness in whole or in part of any
Indebtedness owing by such Person.



“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).



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



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



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



“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 Documents” means, with respect to any Letter of Credit, the related Letter of
Credit Application and any other agreements, instruments, Guaranties or other documents


 


22









 





(whether general in application or applicable only to such Letter of Credit) entered into by
the L/C Issuer and the Borrower or any of its Subsidiaries in favor of the L/C Issuer and relating
to any such Letter of Credit or governing or providing for (i) the rights and obligations of the
parties concerned or at risk or (ii) any collateral security for such obligations.



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. 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.



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



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



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



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



“Letter of Credit Application” 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
Maturity Date then in effect for the Revolving Credit Facility (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 $25,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



“Lien” means, with respect to any asset, any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or nature whatsoever


 


23









 





(including any conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable Laws of any jurisdiction), including the
interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory
notes.



“Loan” means a Revolving Credit Loan, a Term A Loan or a Swing Line Loan (or a portion
of any Revolving Credit Loans, Term A Loans or Swing Line Loans), individually or collectively as
appropriate; provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Committed Loan Notice, the term “Loan” shall refer to the combined
principal amount resulting from such combination or to each of the separate principal amounts
resulting from such subdivision, as the case may be.



“Loan Party” means each of Holdings, the Borrower and each Subsidiary Guarantor, and
“Loan Parties” means any combination of the foregoing.



“M&C International” means M&C International, Inc., a Nevada corporation, and its
successors.



“Maintenance Capital Expenditures” means, for any period, an amount equal to 11/2% of
the net revenue of the Borrower and its Consolidated Restricted Subsidiaries for such period.




“Margin Stock” means “margin stock” as such term is defined in Regulation U.



“Material Adverse Effect” means (i) any material adverse effect upon the operations,
business, properties or condition (financial or otherwise) of the Borrower and its Consolidated
Restricted Subsidiaries, taken as a whole, (ii) a material adverse effect on the ability of a Loan
Party to consummate the transactions contemplated hereby to occur on the Closing Date, (iii) a
material impairment of the ability of any Loan Party to perform any of its obligations under any
Finance Document to which it is a party or (iv) a material impairment of the rights and benefits of
the Lenders under any Finance Document.



“Maturity Date” means (i) as to Revolving Credit Loans and Swing Line Loans, the
Revolving Termination Date and (ii) as to Term A Loans, the Term A Maturity Date.



“Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its
successors or, absent any such successor, such nationally recognized statistical rating
organization as the Borrower and the Administrative Agent may select.



“Multiemployer Plan” means a “multiemployer plan” as defined in Section 3(37) or
4001(a)(3) of ERISA.



“Net Cash Proceeds” means with respect to any Asset Disposition, Casualty or
Condemnation, (A) the gross amount of cash proceeds (including Insurance Proceeds and Condemnation
Awards in the case of any Casualty or Condemnation, except to the extent and for so long as such
Insurance Proceeds or Condemnation Awards constitute Reinvestment Funds or unless such Insurance
Proceeds or Condemnation Awards are to be used for repair, restoration or



 


24









 






replacement pursuant to plans approved by the Required Lenders, which consent shall not be
unreasonably withheld) actually paid to or actually received by any Group Company in respect of
such Asset Disposition, Casualty or Condemnation (including any cash proceeds received as income or
other proceeds of any non-cash proceeds of any Asset Disposition, Casualty or Condemnation as and
when received), less (B) the sum of (w) the amount, if any, of all taxes (other than income taxes)
and all income taxes or Permitted Tax Distributions (as estimated in good faith by a senior
financial or senior accounting officer of the Borrower in accordance with the provisions of
Section 7.07(iii) giving effect to the overall tax position of Holdings and its
Subsidiaries) (to the extent that the amount of such taxes or Permitted Tax Distributions shall
have been set aside for the purpose of paying such taxes or Permitted Tax Distributions when due),
and customary fees, brokerage fees, commissions, costs and other expenses (other than those payable
to any Group Company or Affiliates) that are incurred in connection with such Asset Disposition,
Casualty or Condemnation and are payable by the seller or the transferor of the assets or property
to which such Asset Disposition, Casualty or Condemnation relates, but only to the extent not
already deducted in arriving at the amount referred to in clause (i)(A) above, (x)
appropriate amounts that must be set aside as a reserve in accordance with GAAP against any
liabilities associated with such Asset Disposition, Casualty or Condemnation, (y) if applicable,
the amount of any Indebtedness secured by a Permitted Lien that has been repaid or refinanced in
accordance with its terms with the proceeds of such Asset Disposition, Casualty or Condemnation,
and (z) any payments to be made by any Group Company as agreed between such Group Company and the
purchaser of any assets subject to an Asset Disposition, Casualty or Condemnation in connection
therewith.



“Note” means a Revolving Credit Note, a Term A Note or a Swing Line Note, and
“Notes” means any combination of the foregoing.



“OFAC” means The Office of Foreign Assets Control (“OFAC”) of the U.S. Department of
the Treasury.



“Operating Lease” means, as applied to any Person, a lease (including leases which may
be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.



“Organization Documents” means, (i) 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); (ii) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (iii) 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 Senior Finance Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Senior Finance
Document.


 


25









 







“Outstanding Amount” means (a) with respect to Term A Loans, Revolving Credit Loans
and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Term A Loans, Revolving Credit Loans and
Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C
Obligations on any date, the 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 by the Borrower of
Unreimbursed Amounts.



“Overnight Settlement” means a settlement by a Loan Party with a credit or debit card
association, an ATM network or a provider of money order instruments, as the case may be, of an ATM
withdrawal by, or a cash advance (whether through the disbursement of cash or issuance of a
negotiable instrument, as the case may be, by such Loan Party) to, a patron of a gaming
establishment; provided that such settlement is made (i) in the ordinary course of such
Loan Party’s business consistent with past practices and (ii) within not more than five Business
Days following such ATM withdrawal or such cash advance is made.



“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.



“Perfection Certificate” means with respect to any Loan Party a certificate,
substantially in the form of Exhibit G to this Agreement, completed and supplemented with
the schedules and attachments contemplated thereby to the satisfaction of the Collateral Agent and
duly executed by the chief executive officer and the chief legal officer of such Loan Party.



“Permit” means any license, permit, franchise, right or privilege, certificate of
authority or order, or any waiver of the foregoing, issued or issuable by any Governmental
Authority.




“Permitted Business Acquisition” means a Business Acquisition; provided that:




(i) the Equity Interests or property or assets acquired in such acquisition relate to a
line of business similar to the business of the Borrower or any of its Restricted
Subsidiaries engaged in on the Closing Date;




(ii) the representations and warranties made by the Loan Parties in each Finance
Document shall be true and correct in all material respects at and as of the date of such
acquisition (as if made on such date after giving effect to such acquisition), except to the
extent such representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all material respects
at and as of such earlier date);


 


26









 






(iii) the Administrative Agent shall have received all items in respect of the Equity
Interests or property or assets acquired in such acquisition (and/or the seller thereof)
required to be delivered by Section 6.12;




(iv) in the case of an acquisition of the Equity Interests of another Person, (A)
except in the case of the incorporation of a new Subsidiary, the board of directors (or
other comparable governing body) of such other Person shall have duly approved such
acquisition and (B) the Equity Interests acquired shall constitute at least a majority of
the total Equity Interests of the issuer thereof; and




(v) no Default or Event of Default shall have occurred and be continuing immediately
before or immediately after giving effect to such acquisition, and the Borrower shall have
delivered to the Administrative Agent a Pro-Forma Compliance Certificate demonstrating that,
upon giving effect to such acquisition on a Pro-Forma Basis (with pro-forma adjustments
satisfactory to the Administrative Agent), the Borrower shall be in compliance with all of
the financial covenants set forth in Section 7.18 hereof as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which precedes or
ends on the date of such acquisition and with respect to which the Administrative Agent has
received the consolidated financial information required under Sections 6.01(a) and
(b) and the Compliance Certificate required by Section 6.02(b);



“Permitted Investors” means Karim Maskatiya, Robert Cucinotta and one or more trusts,
the sole beneficiaries of which, or corporations or partnerships, the sole stockholders or partners
of which, are Karim Maskatiya, Robert Cucinotta or their respective spouses, parents, immediate
family members or descendants.




“Permitted Liens” has the meaning set forth in Section 7.02.



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



“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code maintained by or contributed
to by any Group Company or any ERISA Affiliate.



“Pledge Agreement” means the Pledge Agreement, dated as of March 10, 2004, among
Holdings, the Borrower, the Subsidiary Guarantors and the Collateral Agent, as the same may be
amended, supplemented or modified from time to time.




“Pledged Collateral” has the meaning set forth in the Pledge Agreement.



“Preferred Stock” means, as applied to the Equity Interests of a Person, Equity
Interests of any class or classes (however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over the Equity Interests of any other class of such
Person.


 


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“Pro-Forma Basis” means, for purposes of calculating compliance of any transaction
with any provision hereof, that the transaction in question shall be deemed to have occurred as of
the first day of the most recent period of four consecutive fiscal quarters of the Borrower which
precedes or ends on the date of such transaction and with respect to which the Administrative Agent
has received the financial information for the Borrower and its Consolidated Subsidiaries required
under Section 6.01(a) or (b), as applicable, and the Compliance Certificate
required by Section 6.02(b) for such period. As used in this definition, “transaction”
means (i) any incurrence or assumption by a Group Company of Indebtedness under Section
7.01(ix), (ii) any merger or consolidation referred to in Section 7.04(iv), (iii) any
Permitted Business Acquisition referred to in Section 7.06(a)(xii) or in clause
(iv) of the definition of “Permitted Business Acquisition” set forth in Section 1.01 or
(iv) any computation of Consolidated EBITDA under the circumstances contemplated by the second
sentence of the definition thereof. In connection with any calculation of the financial covenants
set forth in Section 7.18 upon giving effect to a transaction on a “Pro-Forma Basis,” (i)
any Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection with
such transaction (or any other transaction which occurred during the relevant four fiscal quarter
period) shall be deemed to have been incurred as of the first day of the relevant four
fiscal-quarter period, (ii) if such Indebtedness has a floating or formula rate, then the rate of
interest for such Indebtedness for the applicable period for purposes of the calculations
contemplated by this definition shall be determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of such calculations and (iii)
income statement items (whether positive or negative) attributable to all property acquired in such
transaction or to the Investment comprising such transaction, as applicable, shall be included as
if such transaction has occurred as of the first day of the relevant four-fiscal-quarter period,
without giving effect to cost savings.



“Pro-Forma Compliance Certificate” means a certificate of the chief financial officer
or chief accounting officer of the Borrower delivered to the Administrative Agent in connection
with any “transaction” as defined in the definition of “Pro-Forma Basis” above and containing
reasonably detailed calculations (with pro-forma adjustments reasonably satisfactory to the
Administrative Agent), upon giving effect to the applicable transaction on a Pro-Forma Basis, of
the Fixed Charge Coverage Ratio, the Leverage Ratio and the Senior Leverage Ratio as of the last
day of the most recent period of four consecutive fiscal quarters of the Borrower which precedes or
ends on the date of the applicable transaction and with respect to which the Administrative Agent
shall have received the consolidated financial information for the Borrower and its Consolidated
Restricted Subsidiaries required under Section 6.01(a) or (b), as applicable, and
the Compliance Certificate required by Section 6.02(b) for such period.



“Purchase Money Indebtedness” means Indebtedness of the Borrower or any of its
Subsidiaries incurred for the purpose of financing all or any part of the purchase price or cost of
construction or improvement of property used in the business of the Borrower or such Subsidiary;
provided that such Indebtedness is incurred within 90 days after such property is acquired
or, in the case of improvements, constructed.



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


 


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



“Regulation T, U or X” means Regulation T, U or X, respectively, of the Board of
Governors of the Federal Reserve System as amended, or any successor regulation.



“Reinvestment Funds” means, with respect to any Insurance Proceeds or any Condemnation
Award, that portion of such funds as shall, according to a certificate of the senior financial
officer of the Borrower delivered to the Administrative Agent within 10 days after the occurrence
of the Casualty or Condemnation giving rise thereto (and in any case prior to the receipt thereof
by any Group Company), be reinvested in the repair, restoration or replacement of the properties
that were the subject of such Casualty or Condemnation; provided that (i) the aggregate
amount of such proceeds with respect to any such event or series of related events shall not exceed
$3,000,000 without the prior written consent of the Required Lenders, such consent not to be
unreasonably withheld, (ii) such certificate shall be accompanied by evidence reasonably
satisfactory to the Administrative Agent that any property subject to such Casualty or Condemnation
has been or will be substantially repaired, restored or replaced to its condition immediately prior
to such Casualty or Condemnation, (iii) pending such reinvestment, the entire amount of such
proceeds shall be deposited in an account (referring to the name of the Borrower) with the
Collateral Agent for the benefit of the Finance Parties, over which the Collateral Agent shall have
sole control and exclusive right of withdrawal (which may include the Reinvestment Funds Account
established under the Security Agreement), (iv) from and after the date of delivery of such
certificate, the Borrower or one or more of its Subsidiaries shall diligently proceed, in a
commercially reasonable manner, to complete the repair, restoration or replacement of the
properties that were the subject of such Casualty or Condemnation as described in such certificate
and (v) no Default or Event of Default shall have occurred and be continuing; and provided,
further, that, if any of the foregoing conditions shall cease to be satisfied at any time,
such funds shall no longer be deemed Reinvestment Funds and such funds shall immediately be applied
to prepayment of the Loans in accordance with Section 2.05.



“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.




“Representative” has the meaning specified in Section 8.03(a).



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



“Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being
deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment
of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.


 


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“Required Revolving Lenders” means, as of any date of determination, Revolving Credit
Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment of, and the portion of the Total
Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.



“Required Term A Lenders” means, as of any date of determination, Term A Lenders
holding more than 50% of the Term A Facility on such date; provided that the portion of the
Term A Facility held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term A Lenders.



“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



“Restricted Payment” means (i) any dividend or other distribution (whether in cash,
securities or other property), direct or indirect, on account of any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding, (ii) any payment (whether in
cash, securities or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation, termination or similar payment,
purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding, other than payments of up to
$2,000,000 in any fiscal year in connection with the redemption of Equity Interests at cost
pursuant to stock incentive plans with employees, officers, directors or consultants (iii) any
payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire any class of Equity Interests or Equity Equivalents of any Group Company, now or
hereafter outstanding and (iv) any loan, advance, tax sharing payment or indemnification payment
to, or investment in, any Affiliate of Holdings (other than Restricted Subsidiaries of Holdings)
except to the extent permitted under Section 7.06.



“Restricted Subsidiary” means each Subsidiary of the Borrower other than the
Unrestricted Subsidiaries.



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


 


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“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b),
(b) purchase participations in L/C Obligations, 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 Lender’s name on Schedule 2.01 under the caption “Revolving Credit
Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



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



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




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



“Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be,
made by such Revolving Credit Lender, substantially in the form of Exhibit B-1.



“Revolving Termination Date” means the fifth anniversary of the Closing Date or such
earlier date upon which the Revolving Credit Commitments shall have been terminated in their
entirety in accordance with this Agreement.



“Sale/Leaseback Transaction” means any direct or indirect arrangement or agreement
with any Person providing for the leasing to Holdings or any of its Subsidiaries of any property,
whether owned by Holdings or any of its Subsidiaries as of the Closing Date or later acquired,
which has been or is to be sold or transferred by Holdings or any of its Subsidiaries to such
Person or to any other Person from whom funds have been, or are to be, advanced by such Person on
the security of such property.



“Sanctioned Entity” means (i) an agency of the government of, (ii) an organization
directly or indirectly controlled by, or (iii) a person resident in a country that is subject to a
country sanctions program administered and enforced by OFAC described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to
time.



“Sanctioned Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC available at or through http://www.ustreas.gov/offices/enforcement/ofac/
or as otherwise published from time to time.



“S&P” means Standard & Poor’s, a division of McGraw Hill, Inc., a New York
corporation, and its successor or, absent any such successor, such nationally recognized
statistical rating organization as the Borrower and the Administrative Agent may select.



“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.


 


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



“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



“Security Agreement” means the Security Agreement, dated as of March 10, 2004, among
Holdings, the Borrower, the Subsidiary Guarantors and the Collateral Agent, as the same may be
amended, modified or supplemented from time to time.



“Senior Finance Documents” means this Agreement the Notes, the Guaranty, the
Acknowledgement and Agreement, the Collateral Documents, each Perfection Certificate, the
Intercompany Notes and each L/C Document, collectively, and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant hereto or thereto, in each case
as the same may be amended, modified or supplemented from time to time.



“Senior Leverage Ratio” means on any date the ratio of (i) Consolidated Indebtedness
(exclusive of Subordinated Indebtedness) as of such date to (ii) Consolidated EBITDA for the period
of four consecutive fiscal quarters of the Borrower ending on, or most recently preceding, such
date.




“Senior Obligations” means, without duplication:




(i) all principal of and interest (including, without limitation, any interest which
accrues after the commencement of any proceeding under any Debtor Relief Law with respect to
any Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on
any Loan or L/C Obligation under, or any Note issued pursuant to, this Agreement or any
other Senior Finance Document;




(ii) all fees, expenses, indemnification obligations and other amounts of whatever
nature now or hereafter payable by any Loan Party (including, without limitation, any
amounts which accrue after the commencement of any proceeding under any Debtor Relief Law
with respect to any Loan Party, whether or not allowed or allowable as a claim in any such
proceeding) pursuant to this Agreement or any other Senior Finance Document;




(iii) all expenses of the Agents as to which one or more of the Agents have a right to
reimbursement under Section 10.04 of this Agreement or under any other similar
provision of any other Senior Finance Document, including, without limitation, any and all
sums advanced by the Collateral Agent to preserve the Collateral or preserve its security
interests in the Collateral;




(iv) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 10.04 of this Agreement or under any other similar
provision of any other Senior Finance Document; and


 


32









 






(v) in the case of Holdings and each Subsidiary Guarantor, all amounts now or hereafter
payable by Holdings or such Subsidiary Guarantor and all other obligations or liabilities
now existing or hereafter arising or incurred (including, without limitation, any amounts
which accrue after the commencement of any proceeding under any Debtor Relief Law with
respect to the Borrower, Holdings or such Subsidiary Guarantor, whether or not allowed or
allowable as a claim in any such proceeding) on the part of Holdings or such Subsidiary
Guarantor pursuant to this Agreement, the Guaranty or any other Senior Finance Document;



together in each case with all renewals, modifications, consolidations or extensions thereof.



“Senior Subordinated Note” means any one of the 83/4% senior subordinated notes due 2012
issued by the Borrower in favor of the Senior Subordinated Noteholders pursuant to the Senior
Subordinated Note Indenture, as such Senior Subordinated Notes may be amended, modified or
supplemented from time to time in accordance with the limitations set forth herein, and “Senior
Subordinated Notes” means any two or more of them, collectively.



“Senior Subordinated Note Documents” means the Senior Subordinated Note Indenture, the
Purchase Agreement among the Borrower and the initial Senior Subordinated Noteholders, in each case
including all exhibits and schedules thereto, and all other agreements, documents and instruments
relating to the Senior Subordinated Notes, in each case as the same may be amended, modified or
supplemented form time to time in accordance with the provisions thereof and of this Agreement.



“Senior Subordinated Note Indenture” means the Indenture dated as of April 13, 2005
between the Borrower and The Bank of New York, a national banking association, as trustee, as such
Senior Subordinated Note Indenture may be amended, modified or supplemented from time to time.



“Senior Subordinated Noteholder” means any one of the holders from time to time of the
Senior Subordinated Notes.



“Solvent” means, with respect to any Person as of a particular date, that on such date
(i) such Person is able to pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature in their ordinary course, (iii) such Person is not engaged in
a business or a transaction, and is not about to engage in a business or a transaction, for which
such Person’s assets would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged or is to engage, (iv) the
fair value of the assets of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person and (v) the aggregate fair saleable
value (i.e., the amount that may be realized within a reasonable time, considered to be six months
to one year, either through collection or sale at the regular market value, conceiving the latter
as the amount that could be obtained for the assets in question within such period by a capable and
diligent businessman from an interested buyer who is willing to purchase under ordinary selling
conditions) of the assets of such Person will exceed its debts and other liabilities (including



 


33









 






contingent, subordinated, unmatured and unliquidated debts and liabilities). For purposes of
this definition, “debt” means any liability on a claim, and “claim” means (i) a right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (ii) a right
to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or
not such right is an equitable remedy, is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.




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



“Stockholders Agreement” means the Stockholders Agreement of Holdings, dated as of May
13, 2004, as the same may be amended, modified or supplemented from time to time in accordance with
the provisions thereof and of this Agreement.



“Subordinated Indebtedness” of any Person means (i) the Senior Subordinated Notes and
(ii) all other Indebtedness which (A) by its terms is not required to be repaid, in whole or in
part, before the first anniversary of the latest of the Revolving Termination Date and the Term A
Maturity Date, (B) is subordinated in right of payment to such Person’s indebtedness, obligations
and liabilities to the Lenders under the Finance Documents pursuant to payment and subordination
provisions satisfactory in form and substance to the Administrative Agent and (C) is issued
pursuant to credit documents having (x) covenants that are reasonably satisfactory in form and
substance to the Administrative Agent and (y) subordination provisions and events of default that
are satisfactory in form and substance to the Administrative Agent but, in any event in the case of
the foregoing clauses (x) and (y), that in no event are less favorable, including with respect to
rights of acceleration, to such Person than the terms hereof.



“Subsidiary” means with respect to any Person any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, more than
50% of the total voting power of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or business entity other than a corporation, more than 50% of the partnership
or other similar ownership interests thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50% ownership interest
in a partnership, limited liability company, association or other business entity if such Person or
Persons shall be allocated more than 50% of partnership, association or other business entity gains
or losses or shall be or control the managing director, manager or a general partner of such
partnership, association or other business entity. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Borrower.



“Subsidiary Guarantor” means each Subsidiary of Holdings on the Closing Date (other
than a Foreign Subsidiary and other than the Unrestricted Subsidiaries) and each Subsidiary of
Holdings (other than a Foreign Subsidiary, except to the extent otherwise provided in Section
6.12(d) and any Unrestricted Subsidiary) that becomes a party to the Guaranty after
the Closing Date by execution of an Accession Agreement, and “Subsidiary Guarantors”
means any two or more of them.


 


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“Summit Investors” means one or more investment funds directly or indirectly
administered or managed by Summit Partners, L.P.



“Swap Agreement” means (i) 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 (ii) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



“Swap Creditor” means any Lender or any Affiliate of any Lender from time to time
party to one or more Swap Agreements with a Loan Party (even if any such Lender for any reason
ceases after the execution of such agreement to be a Lender hereunder), and its successors and
assigns, and “Swap Creditors” means any two or more of them, collectively.



“Swap Obligations” of any Person means all obligations (including, without limitation,
any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with
respect to such Person, whether or not allowed or allowable as a claim under any proceeding under
any Debtor Relief Law) of such Person in respect of any Swap Agreement, excluding any amounts which
such Person is entitled to set-off against its obligations under applicable law.



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



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


 


35









 





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



“Swing Line Lender” means Bank of America 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
A-2.



“Swing Line Note” means a promissory note, substantially in the form of Exhibit
B-3 hereto, evidencing the obligation of the Borrower to repay outstanding Swing Line Loans, as
such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.



“Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b)
the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.



“Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a
so-called synthetic, off-balance sheet or tax retention lease or (ii) 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.



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



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



“Term A Facility” means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal
amount of the Term A Loans of all Term A Lenders outstanding at such time.


 


36









 





“Term A Lender” means (a) at any time on or prior to the Closing Date, any Lender that
has a Term A Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term A Loans at such time.




“Term A Loan” means an advance made by any Term A Lender under the Term A Facility.



“Term A Maturity Date” means November 1, 2011 (or if such day is not a Business Day,
the next preceding Business Day).



“Term A Note” means a promissory note made by the Borrower in favor of a Term A Lender
evidencing Term A Loans made by such Term A Lender, substantially in the form of Exhibit
B-2.




“Threshold Amount” means $5,000,000.



“Total Leverage Ratio” means on any day the ratio of (i) Consolidated Indebtedness as
of such date to (ii) Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower
ended on, or most recently preceding, such day.



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



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



“Type” means, with respect to a 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 from 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.



“Unfunded Liabilities” means with respect to each Plan, the amount (if any) by which
the present value of all nonforfeitable benefits under each Plan exceeds the current value of such
Plan’s assets allocable to such benefits, all determined in accordance with the respective most
recent valuations for such Plan using applicable PBGC plan termination actuarial assumptions (the
terms “present value” and “current value” shall have the same meanings specified in Section 3 of
ERISA).



“United States” means the United States of America, including each of the States and
the District of Columbia, but excluding its territories and possessions.



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


 


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“Unrestricted Subsidiary” means Innovative Funds Transfer, LLC and each of its
Subsidiaries so long as the business of Innovative Funds Transfer, LLC and its Subsidiaries is
limited to the development of products and services that enable cashless gaming and Arriva Card and
each of its Subsidiaries so long as the business of Arriva Card and its Subsidiaries is limited to
the provision, either alone or with a business partner, of private label credit cards or other
payment instructions and products and services ancillary thereto.



“U.S. Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), as the same may be amended, supplemented, modified,
replaced or otherwise in effect from time to time.



“Vault Cash Agreement” means the Treasury Services Terms and Conditions Booklet, dated
as of May 28, 2002, by and between the Borrower and Bank of America, as such Vault Cash Agreement
has been, and may be, amended, modified or supplemented from time to time. The term “Vault Cash
Agreement” shall include any successor vault cash custody agreement acceptable to the
Administrative Agent with the same or another Vault Cash Provider.



“Vault Cash Provider” means Bank of America, any of its bank Affiliates listed on
Exhibit A of the Vault Cash Agreement or another banking institution acceptable to the
Administrative Agent, which acceptance shall not be unreasonably withheld, in each case, as a
provider of vault cash under the Vault Cash Agreement or other person under a bailment arrangement
acceptable to the Administrative Agent.



“Welfare Plan” means a “welfare plan” as such term is defined in Section 3(1) of
ERISA.



“Wholly-Owned Subsidiary” means, with respect to any Person at any date, any
Subsidiary of such Person all of the shares of capital stock or other ownership interests of which
(except directors’ qualifying shares) are at the time directly or indirectly owned by such Person.



“Wholly-Owned Restricted Subsidiary” means a Wholly-Owned Subsidiary that is a
Restricted Subsidiary.



Section 1.02 Other Interpretive Provisions. With reference to this Agreement and each
other Senior Finance Document, unless otherwise specified herein or in such other Senior Finance
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 Senior Finance Document), (ii)



 


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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 Senior Finance Document, shall be construed to refer to
such Senior Finance Document in its entirety and not to any particular provision thereof, (iv)
all references in a Senior Finance Document to Articles, Sections, Preliminary Statements,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary
Statements, Exhibits and Schedules to, the Senior Finance 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 Senior Finance Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Senior Finance Document.



Section 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 Senior Finance 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 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.



Section 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).


 


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Section 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).



Section 1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit
in effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any L/C Document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




Section 2.01 The Loans. (a) The Term A Borrowing. Subject to the terms and
conditions set forth herein, each Term A Lender set forth on Schedule 2.01 severally agrees
to make a single loan to the Borrower on the Closing Date in an amount not to exceed such Term A
Lender’s Term A Commitment Percentage of the Term A Facility. The Term A Borrowing made on the
Closing Date shall consist of Term A Loans made simultaneously by the Term A Lenders in accordance
with their respective Applicable Percentage of the Term A Facility. It is understood and agreed
that additional Term A Loans may be made pursuant to the provisions of Section 2.14.
Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed.
Term A Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.




(b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
“Revolving Credit 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 such Lender’s Revolving Credit Commitment; provided, however, that after
giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings
shall not exceed the Revolving Credit Facility, and (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Lender, plus such Revolving Credit Lender’s Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment. Within
the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b),
prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving
Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



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



 


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later than 11:00 a.m. (i) three 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 Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of $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 Term A
Borrowing, a Revolving Credit Borrowing, a conversion of Term A Loans or Revolving Credit 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 Loans to be borrowed, converted or continued, (iv) the Type of Loans
to be borrowed or to which existing Term A Loans or Revolving Credit Loans are to be converted, and
(v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Term A Loans or Revolving
Credit Loans shall be made as, or converted to, a Eurodollar Rate Loan with an Interest Period of
one month. 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. Notwithstanding anything to the contrary herein, a
Swing Line Loan may not be converted to a Eurodollar Rate Loan.




(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the applicable Facility of
the applicable Term A Loans or Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Eurodollar Rate Loans described in Section
2.02(a). In the case of a Term A Borrowing or a Revolving Credit Borrowing, each Appropriate
Lender shall make the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower not later than 2:00 P.M. on the date of such Borrowing (other than a
Swing Line Borrowing) in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America 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 a Committed Loan Notice with respect to a Revolving Credit
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of
such Revolving Credit 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.


 


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(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 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 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 of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.




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



Section 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 Revolving Credit Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the Borrower or its Restricted
Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with
Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the
Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account
of the Borrower or its Restricted 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 Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such
Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender’s Revolving Credit 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 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 Closing Date shall be subject to and
governed by the terms and conditions hereof.


 


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(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 Revolving 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 the Revolving Credit 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 Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing 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 applicable to letters of credit generally;




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000, in the case
of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit;




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




(E) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer 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 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



 


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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.




(v) The L/C Issuer shall act on behalf of the Revolving Credit 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
L/C 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 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 (1) the Letter of Credit to be amended;
(2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the
proposed amendment; and (4) such other matters as the L/C Issuer may require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the 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 any Revolving Credit Lender, the Administrative
Agent or any Loan Party, 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 Restricted 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 Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C



 


44









 






Issuer a risk participation in such Letter of Credit in an amount equal to the product
of such Revolving Credit Lender’s Applicable Revolving Credit Percentage 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 Credit 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 Revolving Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such extension.




(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
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date,
an “Honor Date”), the Borrower shall 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 Credit
Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Revolving Credit Lender’s Applicable Revolving Credit
Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving
Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Credit



 


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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 Credit 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 Applicable Revolving
Credit Percentage 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 Credit Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.




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




(iv) Until each Revolving Credit Lender funds its Revolving Credit 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 Applicable Revolving Credit
Percentage of such amount shall be solely for the account of the L/C Issuer.




(v) Each Revolving Credit Lender’s obligation to make Revolving Credit 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 Credit Lender’s obligation
to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the Borrower of a
Committed Loan Notice ). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the Borrower to reimburse the 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.


 


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(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such 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, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender
pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute
such Lender’s Committed Loan included in the relevant Borrowing or L/C Advance in respect of
the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted
to any Revolving Credit Lender (through the Administrative Agent) with respect to any
amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest
error.




(d) Repayment of Participations. (i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Revolving Credit Lender such
Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), 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 Lender its Applicable Revolving Credit Percentage
thereof in the same funds as those received by the Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to
the Administrative Agent for the account of the L/C Issuer its Applicable Revolving Credit
Percentage thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The obligations of the
Lenders under this clause shall survive the payment in full of the Senior 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 Senior Finance Document;


 


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(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 of its Subsidiaries.



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.




(f) Role of L/C Issuer. Each 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 Lender for (i) any action taken or omitted
in connection herewith at the request or with the approval of the Revolving Credit Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or L/C 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



 


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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 because the conditions set forth in Section
4.02(a) or (b) have not been satisfied, 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 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 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 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 Bank of America. If at any time the Administrative Agent determines that any funds held as
Cash Collateral are subject to any right or claim of any Person other than the Administrative
Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all
L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to
the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any,
then held as Cash Collateral that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as
Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to
reimburse the L/C Issuer.




(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



 


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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 Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to
the Applicable Rate times the daily amount available to be drawn under such Letter of Credit.
For purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) 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 and (ii) computed on a quarterly basis in arrears. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under 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 Revolving 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 (i) with respect
to each commercial Letter of Credit, at a rate separately agreed between the Borrower and the L/C
Issuer, computed on the amount of such Letter of Credit, and payable upon the issuance thereof,
(ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such
Letter of Credit, at a rate separately agreed between the Borrower and the L/C Issuer, computed
on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii)
with respect to each standby Letter of Credit, at the rate per annum specified in the Fee Letter,
computed on the daily amount available to be drawn under such Letter of Credit on a quarterly
basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the
end of each March, June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), 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. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. 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 L/C Documents. In the event of any conflict between the terms
hereof and the terms of any L/C Document, the terms hereof shall control.


 


50









 






(l) Letters of Credit Issued for Restricted 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 Restricted 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 Restricted Subsidiaries
inures to the benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Restricted Subsidiaries.



Section 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 Applicable
Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations
of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit
Commitment; provided, however, that after giving effect to any Swing Line Loan, (i)
the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at such
time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving
Credit Lender at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line
Loans at such time shall not exceed such Lender’s Revolving Credit 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
bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line
Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Revolving Credit Lender’s Applicable Revolving Credit
Percentage times the amount of such Swing Line Loan.




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


 


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(including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in 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.




(c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender
make a Base Rate Loan in an amount equal to such Lender’s Applicable Revolving Credit Percentage
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 Revolving Credit Facility 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 Credit Lender shall make an amount equal to its Applicable Revolving Credit Percentage
of the amount specified in such Committed Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.




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




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



 


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any administrative, processing or similar fees customarily charged by the Swing Line
Lender in connection with the foregoing. If such Lender pays such amount (with interest and
fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




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




(d) Repayment of Participations. (i) At any time after any Revolving Credit Lender
has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to
such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds
as those received by the Swing Line Lender.




(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit
Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage 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 Lenders under this clause shall survive the payment in full of the Senior
Obligations and the termination of this Agreement.




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


 


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



Section 2.05 Prepayments. (a) Optional. (i) The Borrower may, upon notice
to the Administrative Agent, at any time or from time to time voluntarily prepay Term A Loans and
Revolving Credit Loans in whole or in part without premium or penalty; provided that (A)
such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of
Base Rate 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 Loans to
be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s
Applicable Percentage in respect of the relevant Facility). 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 prepayment of the outstanding Term A Loans
pursuant to this Section 2.05(a) shall be applied on a pro-rata basis, and each such
prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages
in respect of each of the relevant Facilities.




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




(b) Mandatory.




(i) Within 100 days after the end of each fiscal year of Holdings (commencing with the
fiscal year ending December 31, 2006), the Borrower shall prepay the Loans and/or Cash
Collateralize or pay the L/C Obligations in an amount equal to the Applicable Percentage of
the Excess Cash Flow for such prior fiscal year. For purposes of this subsection
(ii), “Applicable Percentage” shall mean (i) 50%, if the Senior Leverage Ratio
as of the last day of the fiscal year with respect to which such prepayment is being made is
greater than or equal to 3.0 to 1.0 or (ii) 0%, if the Senior Leverage Ratio as of the last
day of the fiscal year with respect to which such prepayment is being made is less than 3.0
to 1.0.


 


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(ii) Immediately upon receipt by any Group Company of proceeds from any Asset
Disposition (other than any Excluded Asset Disposition), Extraordinary Receipts, Casualty or
Condemnation, the Borrower shall prepay the Loans and/or Cash Collateralize or pay the L/C
Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds of such Asset
Disposition, Casualty or Condemnation or 100% of such Extraordinary Receipts, as applicable.




(iii) Immediately upon receipt by the Administrative Agent or any Lender of any amount
so payable pursuant to the subordination provision of the Senior Subordinated Notes or any
other Indebtedness of Holdings or any of its Subsidiaries that is subordinate to the Senior
Obligations, all proceeds thereof shall be applied as set forth in subsection (iv)
below.




(iv) All amounts required to be paid pursuant to the foregoing provisions of this
Section 2.05(b) shall be applied first, to the Term A Loans (applied to the
installments thereof on a pro rata basis) and second, to the Revolving Credit Facility
(without reduction in the Revolving Credit Facility).




(v) If for any reason the Total Revolving Credit Outstandings at any time exceed the
Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving
Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C
Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.




(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section
2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing
Line Loans, second, shall be applied ratably to the outstanding Revolving Credit
Loans (without reduction of the Revolving Credit Facility), and the amount remaining, if
any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving
Credit Loans outstanding at such time may be retained by the Borrower for use in the
ordinary course of its business.



Section 2.06 Termination or Reduction of Commitments. (a) The Borrower may, upon
notice to the Administrative Agent, terminate the Revolving Credit Facility, the Letter of Credit
Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Revolving Credit
Facility, the Letter of Credit Sublimit or the Swing Line Sublimit; 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, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the
Borrower shall not terminate or reduce (A) the Revolving Credit Facility if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would
exceed the Revolving Credit Facility, (B) the Letter of Credit Sublimit if, after giving effect
thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would
exceed the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect
thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans
would exceed the Letter of Credit Sublimit.


 


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(b) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit
Sublimit, Swing Line Sublimit or the Revolving Credit Commitment under this Section 2.06.
Upon any reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each
Revolving Credit Lender shall be reduced by such Lender’s Applicable Revolving Credit Percentage
of such reduction amount. All fees in respect of the Revolving Credit Facility accrued until the
effective date of any termination of the Revolving Credit Facility shall be paid on the effective
date of such termination.



Section 2.07 Repayment of Loans. (a) Term A Loans. The Borrower shall make
repayments of the Term A Loans on the last day of each March, June, September and December,
commencing March 31, 2007 in an amount equal to 0.25% of the aggregate principal amount of Term A
Loans advanced on the Effective Date plus, following each Increase Effective Date, if any, the
aggregate principal amount of increased Term A Loans advanced on each such Increase Effective Date.
The Borrowers shall repay the outstanding principal amount of all Term A Loans on the Maturity
Date.




(b) Revolving Credit Loans. The Borrower shall repay to the Revolving Credit
Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of
all Revolving Credit Loans outstanding on such date.




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



Section 2.08 Interest. (a) Subject to the provisions of Section 2.08(b), (i)
each Eurodollar Rate Loan under a Facility 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 for such Facility; (ii) each Base Rate Loan under a
Facility shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such
Facility; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate for the Revolving Credit Facility.




(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.




(ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Senior Finance 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.


 


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(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 Senior 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.



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




(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount
by which the Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving
Credit Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue
at all times during the Availability Period, 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 Closing Date, and on the last day of the Availability Period
for the Revolving Credit Facility. The commitment fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.




(b) Other Fees. (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
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




(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.



Section 2.10 Computation of Interest and Fees. All computations of interest for Base
Rate Loans when the Base Rate is determined by Bank of America’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



 


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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.



Section 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 Senior 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.




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



Section 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 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 Applicable
Percentage in respect of the relevant Facility (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 on
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
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate



 


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Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has
made such share available in accordance with and at the time required by 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 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, plus any administrative, processing or similar fees customarily charged
by the Administrative Agent in connection with the foregoing, 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 Borrowing
to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included
in such 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 time at which
any payment is due to the Administrative Agent for the account 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 the Appropriate 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 Appropriate 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 reasonably determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.



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



 


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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 promptly, and in any event within one Business Day after making such
determination, 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 Term Loans and Revolving Credit 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 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 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.




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



Section 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 (a) Senior Obligations
in respect of any the Facilities due and payable to such Lender hereunder and under the other
Senior Finance Documents at such time in excess of its ratable share (according to the proportion
of (i) the amount of such Senior Obligations due and payable to such Lender at such time to (ii)
the aggregate amount of the Senior Obligations in respect of the Facilities due and payable to all
Lenders hereunder and under the other Senior Finance Documents at such time) of payments on account
of the Senior Obligations in respect of the Facilities due and payable to all Lenders hereunder and
under the other Senior Finance Documents at such time obtained by all the Lenders at such time or
(b) Senior Obligations in respect of any of the Facilities owing (but not due and payable) to such
Lender hereunder and under the other Senior Finance Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Senior Obligations owing (but not due
and payable) to such Lender at such time to (ii) the aggregate amount of the Senior Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Parties at such time) of payment on account of the Senior Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Senior
Finance Documents at such time obtained by all of the Lenders at such time 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



 


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the 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 Senior
Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due
and payable) to the Lenders, as the case may be, 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




(ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its 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).



Each Loan Party 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 such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.




Section 2.14 Increase in Commitments.




(a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to
time request an increase in the Revolving Credit Facility or Term A Loans by an aggregate amount
(for all such requests) not exceeding $150,000,000 (the “Increase Option Amount”);
provided that (i) any such request for an increase shall be in a minimum amount of
$25,000,000, and (ii) the Borrower may make a maximum of three such requests.




(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within five Business Days from the date of delivery of such notice whether or not it agrees to
increase its Revolving Credit Commitment or Term A Loans and, if so, whether by an amount equal
to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to increase its Revolving
Credit Commitment and/or Term A Loans, as the case may be.




(c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. Subject to the approval of the Administrative Agent and, in the case of the Revolving
Credit Commitments, the L/C Issuer (which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.


 


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(d) Effective Date and Allocations. If the Revolving Credit Commitment and/or the
Term A Loans are increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the “Increase Effective Date”) and the final
allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the final allocation of such increase and the Increase Effective Date.




(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Senior Finance Documents are true and
correct on and as of the Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct as
of such earlier date, and (B) no Default exists. If the Borrower shall increase the Revolving
Credit Commitment, the Borrower shall prepay any Revolving Credit Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any
revised Applicable Percentages arising from any nonratable increase in the Revolving Credit
Commitments under this Section. The Borrower shall also pay any costs and expenses (including,
without limitation reasonable attorney costs) incurred in connection with the increase of any
Commitment pursuant to this Section 2.14.




(f) Notwithstanding anything to the contrary herein, in no event shall the interest rate
payable on any increased Revolving Credit Commitment or increased Term A Loan exceed the interest
rate from time to time payable on Revolving Credit Loans or Term A Loans, nor shall any Increased
Term A Loan mature prior to the Maturity Date or amortize faster than the Term A Loans.




(g) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.



ARTICLE
III
TAXES, YIELD PROTECTION AND ILLEGALITY







Section 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 Senior Finance 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


 


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Administrative Agent, any Lender or the 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.




(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above but without duplication, 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 as to the 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. 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 Senior Finance 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.



Without limiting the generality of the foregoing, if 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 date on which
such Foreign Lender becomes a Lender under this Agreement (and



 


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from time to time thereafter 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:




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



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





(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form
W-8BEN, or




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




(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 if 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.



Section 3.02 Illegality. If any Lender determines that any Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar 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



 


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continue Eurodollar Rate Loans or to convert Base Rate 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.



Section 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 Borrowing of Base Rate Loans in the amount specified therein.



Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
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 Rate 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 Rate 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 Rate Loan (or of maintaining its obligation to make any such Loan),



 


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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 (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.




(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 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 conclusive 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 30 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 six months 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
six-month 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



 


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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 30 days’ prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 30 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 30 days from receipt of such notice.



Section 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
10.22;



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.



Section 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



 


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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 10.22.



Section 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 Senior
Obligations hereunder.



ARTICLE
IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS







Section 4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer
and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:




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




(i) executed counterparts of this Agreement and the Guaranty, 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) a first amendment to, and affirmation of, the Pledge Agreement duly executed by
each Loan Party therein, together with certificates representing the Equity Interests
referred to therein accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,




(iv) a first amendment to, and affirmation of, the Security Agreement duly executed by
each Loan Party, together with




(A) proper Financing Statements in form appropriate for filing under the
Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the Security
Agreement, covering the Collateral described in the Security Agreement,


 


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(B) completed requests for information, dated on or before the date of the
initial Credit Extension, listing all effective financing statements filed in the
jurisdictions referred to in clause (A) above that name any Loan Party as debtor,
together with copies of such other financing statements,




(C) evidence of the completion of all other actions, recordings and filings of
or with respect to the Security Agreement that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created thereby,




(D) the Depository Bank Agreements, duly executed by the appropriate parties,
and




(E) evidence that all other action that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the Security
Agreement has been taken;




(v) vault cash custody arrangements shall be satisfactory in all respects to the
Administrative Agent. Except as otherwise agreed to by the Administrative Agent, (i) the
Vault Cash Agreement shall be in full force and effect and shall not have been amended or
modified (nor shall any condition thereof have been waived by the Borrower) and (ii) no
“Automatic Event of Default” or “Notice Event of Default” (each as defined in the Vault Cash
Agreement) shall have occurred or be continuing under the Vault Cash Agreement and no event
or condition shall exist thereunder that with notice or passage of time, or both, would
permit a Vault Cash Provider to terminate the Vault Cash Agreement or retrieve cash from
ATMs;




(vi) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may 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 Senior Finance Documents to which such Loan Party is a party or is to be a party;




(vii) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of
Holdings, the Borrower and each Guarantor is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease or operation
of properties or the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect;




(viii) a favorable opinion of Morrison & Foerster, LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set forth in
Exhibit E-1 and such other matters concerning the Loan Parties and the Senior Finance
Documents as the Required Lenders may reasonably request;


 


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(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Senior Finance 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;




(x) 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 could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) a calculation of the Senior Leverage Ratio
as of the last day of the fiscal quarter of the Borrower most recently ended prior to the
Closing Date;




(xi) evidence that all insurance required to be maintained pursuant to the Senior
Finance Documents has been obtained and is in effect, together with the certificates of
insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional
insured or loss payee, as the case may be, under all insurance policies maintained with
respect to the assets and properties of the Loan Parties that constitutes Collateral;




(xii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Borrower ended June 30, 2006, signed by the chief executive officer, chief financial
officer, treasurer or controller of the Borrower;




(xiii) evidence that the Existing Credit Agreement has been, or concurrently with the
Closing Date is being, terminated and all Liens securing obligations under the Existing
Credit Agreement have been, or concurrently with the Closing Date are being, released; and




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




(b) (i) All fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders
on or before the Closing 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 (directly to such counsel if
requested by the Administrative Agent) to the extent invoiced prior to or on the Closing 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 Closing Date shall have occurred on or before November 30, 2006.


 


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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 Closing Date specifying its objection thereto.



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




(a) The representations and warranties of the Borrower and each other Loan Party contained
in Article V or any other Senior Finance Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and correct 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.




(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.




(d) The Administrative Agent shall have received such other approvals, opinions or documents
as any Lender through the Administrative Agent may reasonably request.



Section 4.03 Reaffirmation. Each Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar
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




Each of Holdings and the Borrower represents and warrants to the Administrative Agent and the
Lenders that:



Section 5.01 Existence, Qualification and Power; Compliance with Laws. Each Group
Company (i) is a corporation, partnership or limited liability company duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (ii) has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (A) own its assets and carry on its business and (B)
execute, deliver and perform its obligations under the Finance Documents to



 


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which it is a party, (iii) 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, and (iv) is in compliance with all Laws,
except in each case referred to in clause (ii)(A), (iii) or (iv), to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.



Section 5.02 Authorization; No Contravention. The execution, delivery and performance
by each Loan Party of each Finance Document to which such Person is party have been duly authorized
by all necessary corporate or other organizational action, and do not and will not (i) contravene
the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any
breach or contravention of, or the creation of any Lien under, (A) any Contractual Obligation to
which such Person is a party or (B) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (iii) violate
any Law.



Section 5.03 Governmental Authorization; Other Consents. Except as set forth on
Schedule 5.03, no approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is necessary or required
in connection with the execution, delivery or performance by, or enforcement against, any Loan
Party of this Agreement or any other Finance Document to which it is a party.



Section 5.04 Binding Effect. This Agreement has been, and each other Finance
Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party
that is party thereto. This Agreement constitutes, and each other Finance Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable
against each Loan Party that is party thereto in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and (ii) that rights of
acceleration and the availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether enforcement is sought by proceedings in equity or at
law).




Section 5.05 Financial Condition; No Material Adverse Effect.




(a) Audited Financial Statements. 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) Unaudited Financial Statements. The unaudited consolidated and consolidating
balance sheet of the Borrower and its Consolidated Subsidiaries dated June 30, 2006, and the
related consolidated and consolidating statement of operations and retained earnings and
consolidated statement of cash flows for the fiscal quarter ended on that date (i)



 


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were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) present fairly in all material
respects the consolidated financial position and consolidated results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries as of the date thereof, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments.




(c) Material Adverse Change. Since December 31, 2005, no event or circumstance has
occurred or existed which, either individually or in the aggregate, has had or could reasonably
be expected to have a Material Adverse Effect.




(d) Post-Closing Financial Statements. The financial statements delivered to the
Lenders pursuant to Sections 6.01(a) and (b), if any, (i) have been prepared in
accordance with GAAP (except as may otherwise be permitted under Sections 6.01(a) and
(b)) and (ii) present fairly (on the basis disclosed in the footnotes to such financial
statements, if any) the consolidated and consolidating financial condition, results of operations
and cash flows of the Borrower and its Consolidated Subsidiaries as of the respective dates
thereof and for the respective periods covered thereby.




(e) No Undisclosed Liabilities. Except as fully reflected in the financial
statements described in subsection (a) above and the Indebtedness incurred under this
Agreement and the Senior Subordinated Notes, (i) there were as of the Closing Date (and after
giving effect to any Loans made and Letters of Credit issued on such date), no liabilities or
obligations (excluding current obligations incurred in the ordinary course of business) with
respect to any Group Company of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due and including obligations or liabilities for taxes, long-term
leases and unusual forward or other long-term commitments), and (ii) neither Holdings nor the
Borrower knows of any basis for the assertion against any Group Company of any such liability or
obligation which, either individually or in the aggregate, has or could reasonably be expected to
have, a Material Adverse Effect.




(f) Sarbanes-Oxley Act Compliance. To the best knowledge of the Holdings and
Borrower, no Internal Control Event exists or has occurred since December 31, 2005 that has
resulted in or could reasonably be expected to result in a misstatement in any material respect,
in any financial information delivered or to be delivered to the Administrative Agent or the
Lenders, of (i) covenant compliance calculations provided hereunder or (ii) the assets,
liabilities, financial condition or results of operations of the Borrower and its Subsidiaries on
a consolidated basis.



Section 5.06 Litigation. There are no actions, suits, investigations or legal,
equitable, arbitration or administrative proceedings pending or, to the knowledge of any Loan
Party, threatened against or affecting any Group Company in which there is a reasonable possibility
of an adverse decision that (i) involve any Finance Document or (ii) if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.


 


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Section 5.07 No Default. No Group Company is in default under or with respect to any
Contractual Obligation that could, 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 Finance Document.



Section 5.08 Ownership of Property; Liens. Each Group Company has good and marketable
title to, or valid leasehold interests in, all its material properties and assets, except for minor
defects in title that do not interfere with its ability to conduct its business as currently
conducted. All such material properties and assets are free and clear of Liens other than
Permitted Liens. Each Group Company has complied with all obligations under all leases to which it
is a party, other than leases that, individually or in the aggregate, are not material to the Group
Companies, taken as a whole, and the violation of which will not result in a Material Adverse
Effect, and all such leases are in full force and effect, other than leases that, individually or
in the aggregate, are not material to the Group Companies, taken as a whole, and in respect of
which the failure to be in full force and effect will not result in a Material Adverse Effect.
Each Group Company enjoys peaceful and undisturbed possession under all such leases with respect to
which it is the lessee, other than leases that, individually or in the aggregate, are not material
to the Group Companies, taken as a whole, and in respect of which the failure to enjoy peaceful and
undisturbed possession will not result in a Material Adverse Effect.



Section 5.09 Environmental Compliance. Except as does not and could not reasonably be
expected to have a Material Adverse Effect, no Group Company has failed to comply with any
Environmental Law or to obtain, maintain, or comply with any permit, license or other approval
required under any Environmental Law or is subject to any Environmental Liability or has received
notice of any claim with respect to any Environmental Liability, and no Group Company knows of any
basis for any Environmental Liability against any Group Company



Section 5.10 Insurance. The properties of each Group Company are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, 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 applicable
Group Company operates.



Section 5.11 Taxes. Each Group Company has filed, or caused to be filed, all tax
returns (including federal, state, local and foreign tax returns) required to be filed and paid (i)
all amounts of taxes shown thereon to be due (including interest and penalties) and (ii) all other
taxes, fees, assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangible taxes) owing by it, except for such taxes (A) which are not
yet delinquent or (B) that are being contested in good faith and by proper proceedings diligently
pursued, and against which adequate reserves are being maintained in accordance with GAAP. There
is no pending investigation of any Group Company by any taxing authority or proposed tax assessment
against any Group Company that would, if made, have a Material Adverse Effect.


 


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Section 5.12 ERISA Compliance.




(a) There are no Unfunded Liabilities.




(b) Each Plan complies in all respects with the applicable requirements of ERISA and the
Code.




(c) No ERISA Event has occurred or, subject to the passage of time, is reasonably expected
to occur with respect to any Plan.




(d) No Group Company: (i) is or has been within the last six years a party to any
Multiemployer Plan; or (ii) has withdrawn from any Multiemployer Plan.




(e) The execution and delivery of this Agreement and the consummation of the transactions
contemplated hereunder will not involve any transaction that is subject to the prohibitions of
Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section
4975(c)(1)(A)-(D) of the Code.




(f) No Group Company or any ERISA Affiliate has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.




(g) All liabilities under the Employee Benefit Arrangements are (i) funded to at least the
minimum level required by law or, if higher, to the level required by the terms governing the
Employee Benefit Arrangements, (ii) insured with a reputable insurance company, (iii) provided
for or recognized in the financial statements most recently delivered to the Administrative Agent
pursuant to Section 6.01(b) hereof or (iv) estimated in the formal notes to the financial
statements most recently delivered to the Administrative Agent pursuant to Section
6.01(a) hereof.




(h) There are no circumstances which may give rise to a liability in relation to the
Employee Benefit Arrangements which are not funded, insured, provided for, recognized or
estimated in the manner described in clause (g) above.




(i) Each Group Company is in material compliance with all applicable Laws, trust
documentation and contracts relating to the Employee Benefit Arrangements.



Section 5.13 Subsidiaries. Schedule 5.13 sets forth a complete and accurate
list as of the Closing Date of all Subsidiaries of Holdings. Schedule 5.13 sets forth as
of the Closing Date the jurisdiction of formation of each such Subsidiary, the number of authorized
shares of each class of Equity Interests of each such Subsidiary, the number of outstanding shares
of each class of Equity Interests, the number and percentage of outstanding shares of each class of
Equity Interests of each such Subsidiary owned (directly or indirectly) by any Person and the
number and effect, if exercised, of all Equity Equivalents with respect to Capital Stock of each
such Subsidiary. All the outstanding Equity Interests of each Subsidiary of Holdings are validly
issued, fully paid and non-assessable and were not issued in violation of the preemptive rights of
any shareholder or member, as the case may be, and, as of the Closing Date, are owned by Holdings,
directly or indirectly, free and clear of all Liens (other than those arising under the



 


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Collateral Documents). Other than as set forth on Schedule 5.13, as of the Closing
Date, no such Subsidiary has outstanding any Equity Equivalents nor does any such Person have
outstanding any rights to subscribe for or to purchase or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its Equity Interests. Holdings has no Subsidiaries, other
than the Borrower and its Subsidiaries.



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




(a) None of Holdings and its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying “margin
stock” within the meaning of Regulation U. No part of the Letters of Credit or proceeds of the
Loans will be used, directly or indirectly, for the purpose of purchasing or carrying any “margin
stock” within the meaning of Regulation U. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to in Regulation U.
No indebtedness being reduced or retired out of the proceeds of the Loans was or will be incurred
for the purpose of purchasing or carrying any margin stock within the meaning of Regulation U or
any “margin security” within the meaning of Regulation T. “Margin stock” within the meaning of
Regulation U does not constitute more than 25% of the value of the consolidated assets of the
Borrower and its Consolidated Subsidiaries. None of the transactions contemplated by this
Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or
result in a violation of the Securities Laws or Regulation T, U or X.




(b) None of the Group Companies is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, none of the Group Companies is (i) an “investment company” registered or
required to be registered under the Investment Company Act of 1940, as amended, (ii) controlled
by such a company, or (iii) a “holding company”, a “subsidiary company” of a “holding company”,
or an “affiliate” of a “holding company” or of a “subsidiary” of a “holding company”, within the
meaning of the Public Utility Holding Company Act of 1934, as amended.



Section 5.15 Disclosure. No statement, information, report, representation, or
warranty made by any Loan Party in any Finance Document or furnished to the Administrative Agent or
any Lender by or on behalf of any Loan Party in connection with any Finance Document contains any
untrue statement of a material fact or omits any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.



Section 5.16 Compliance with Law. Each Group Company is in compliance with all
requirements of Law (a) in respect of Anti-Terrorism Laws and the Bank Secrecy Act and (b) all
other requirements of Law (including Environmental Laws) applicable to it or to its properties,
except for any such failure to comply with such other requirements of Law which could not
reasonably be expected to cause a Material Adverse Effect. To the knowledge of the



 


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Loan Parties, none of the Group Companies or any of their respective material properties or
assets is subject to or in default with respect to any judgment, writ, injunction, decree or order
of any court or other Governmental Authority. None of the Group Companies has received any written
communication from any Governmental Authority that alleges that any of the Group Companies is not
in compliance in any material respect with any Law, except for allegations that have been
satisfactorily resolved and are no longer outstanding.



Section 5.17 Intellectual Property. The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, know how, including customer lists, plans, processes, supplier lists, business plans,
business methods, prototypes, inventions, discoveries, internet domain names, software, licenses
and other rights that are reasonably necessary for the operation of their respective businesses,
without, to the best knowledge of the Borrower, conflict with the rights of any other Person. 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.



Section 5.18 Purpose of Loans and Letters of Credit. The proceeds of the Term A Loans
and any Revolving Credit Loans made on the Closing Date will be used solely to refinance amounts
outstanding under the Existing Credit Agreement and pay fees and expenses incurred in connection
with the transactions contemplated hereby. The proceeds of the Revolving Credit Loans and Swing
Line Loans made after the Closing Date will be used solely to provide for the working capital
requirements of the Borrower and its Restricted Subsidiaries and for the general corporate purposes
of the Borrower and its Restricted Subsidiaries. The Letters of Credit shall be used only for or
in connection with obligations relating to transactions entered into by the Borrower and its
Restricted Subsidiaries in the ordinary course of business.



Section 5.19 Labor Matters. There are no strikes against Holdings or any of its
Subsidiaries, other than any strikes that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.



Section 5.20 Solvency and Surplus. Each Loan Party is Solvent.



Section 5.21 Collateral Documents.




(a) Article 9 Collateral. Each of the Security Agreement and the Pledge
Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Finance
Parties, a legal, valid and enforceable security interest in the Collateral described therein and
each of the Security Agreement and the Pledge Agreement constitutes a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors thereunder in such of the
Collateral in which a security interest can be perfected under Article 8 or 9 of the Uniform
Commercial Code, in each case prior and superior in right to any other Person, other than with
respect to Permitted Liens.




(b) Intellectual Property. The Security Agreement constitutes a fully perfected
Lien on, and security interest in, all right, title and interest of the grantors thereunder in
the Intellectual Property covered in the Assignments attached thereto as Exhibit A and



 


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Exhibit B, in each case prior and superior in right to any other Person except for Permitted
Liens (it being understood that subsequent recordings in the United States Patent and Trademark
Office and the United States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties after the Closing
Date).




(c) Status of Liens. The Collateral Agent, for the benefit of the Finance Parties,
will at all times have the Liens provided for in the Collateral Documents and, subject to the
filing by the Collateral Agent of continuation statements to the extent required by the Uniform
Commercial Code, the Collateral Documents will at all times constitute valid and continuing liens
of record and first priority perfected security interests in all the Collateral referred to
therein, except as priority may be affected by Permitted Liens. As of the Closing Date, no
filings or recordings are required in order to perfect the security interests created under the
Collateral Documents, except for filings or recordings listed on Schedule 4.01 to the Security
Agreement.



Section 5.22 Ownership of the Borrower. Holdings owns good, valid and marketable
title to all the outstanding common stock of the Borrower, free and clear of all Liens of every
kind, whether absolute, matured, contingent or otherwise, other than those arising under the
Collateral Documents. Except as set forth on Schedule 5.22, there are no shareholder or
member, as the case may be, agreements or other agreements pertaining to Holdings’ beneficial
ownership of the common stock of the Borrower, including any agreement that would restrict
Holdings’ right to dispose of such common stock and/or its right to vote such common stock.



ARTICLE
VI
AFFIRMATIVE COVENANTS




Each of Holdings and the Borrower agrees that so long as any Lender has any Commitment
hereunder, any Senior Obligation or other amount payable hereunder or under any Note or other
Senior Finance Document or any L/C Obligation remains unpaid or any Letter of Credit remains in
effect:



Section 6.01 Financial Statements. The Borrower will furnish, or cause to be
furnished, to the Administrative Agent:




(a) Annual Financial Statements. As soon as available, and in any event within 90
days after the end of each fiscal year of the Borrower, a consolidated and consolidating balance
sheet and income statement of the Borrower and its Consolidated Subsidiaries, as of the end of
such fiscal year, and the related consolidated and consolidating statement of operations and
retained earnings and consolidated statement of cash flows for such fiscal year, setting forth in
comparative form consolidated and consolidating figures for the preceding fiscal year, all such
financial statements to be in reasonable form and detail and (in the case of such consolidated
financial statements) audited by independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified or limited in any material respect) to the effect that
such consolidated financial statements have been prepared in accordance with GAAP and present
fairly the consolidated financial position



 


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and consolidated results of operations and cash flows of the Borrower and its Consolidated
Subsidiaries in accordance with GAAP consistently applied (except for changes with which such
accountants concur).




(b) Quarterly Financial Statements. As soon as available, and in any event within
45 days after the end of each of the first three fiscal quarters in each fiscal year of the
Borrower, a consolidated and consolidating balance sheet and income statement of the Borrower and
its Consolidated Subsidiaries as of the end of such fiscal quarter, together with related
consolidated and consolidating statement of operations and retained earnings and consolidated
statement of cash flows for such fiscal quarter and the then elapsed portion of such fiscal year,
setting forth in comparative form consolidated and consolidating figures for the corresponding
periods of the preceding fiscal year, all such financial statements to be in form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a certificate of the chief
financial officer of Holdings to the effect that such quarterly financial statements have been
prepared in accordance with GAAP and present fairly in all material respects the consolidated
financial position and consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP consistently applied, subject to changes
resulting from normal year-end audit adjustments and the absence of footnotes required by GAAP.



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 Section
6.01(a) or (b), but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Section 6.01(a) or
(b) at the times specified therein.



Section 6.02 Certificates; Other Information. The Borrower will furnish, or cause to
be furnished, to the Administrative Agent, with copies for each of the Lenders, in form and detail
reasonably satisfactory to them:




(a) Auditors’ Certificate. 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 the course of the
audit upon which their opinion on such financial statements was based (but without any special or
additional audit procedures for the purpose), they obtained knowledge of no condition or event
relating to financial matters which constitutes a Default or an Event of Default or, if such
accountants shall have obtained in the course of such audit knowledge of any such Default or
Event of Default, disclosing in such written statement the nature and period of existence
thereof, it being understood that such accountants shall be under no liability, directly or
indirectly, to the Lenders for failure to obtain knowledge of any such condition or event.




(b) Compliance Certificate. At the time of delivery of the financial statements
provided for in Sections 6.01(a) and (b) above, a Compliance Certificate of the
chief financial officer of Holdings (i) demonstrating compliance with the financial covenants
contained in Section 7.18 by calculation thereof as of the end of the fiscal period
covered by such financial statements, (ii) stating that no Default or Event of Default exists, or
if any Default or Event of Default does exist, specifying the nature and extent thereof and what



 


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action the Borrower proposes to take with respect thereto, (iii) stating whether, since the
date of the most recent financial statements delivered hereunder, there has been any material
change in the GAAP applied in the preparation of the financial statements of the Borrower and its
Consolidated Subsidiaries, and, if so, describing such change, (iv) identifying all Asset
Dispositions, Casualties and Condemnations that were made since the end of the previous fiscal
quarter and setting forth a reasonably detailed calculation of the Net Cash Proceeds received
from all Asset Dispositions (other than Excluded Asset Dispositions), Casualties and
Condemnations that were made since the end of the previous fiscal quarter and (v) reconciling the
calculations performed in connection with clause (i) above to the financial statements
being delivered with such Compliance Certificate insofar as such calculations treat the
Unrestricted Subsidiaries as other than Consolidated Subsidiaries of the Borrower. At the time
such certificate is required to be delivered, the Borrower shall promptly deliver to the
Administrative Agent, at the Administrative Agent’s Office, information regarding any change in
the Senior Leverage Ratio that would change the then existing Applicable Rate and Applicable
Commitment Fee Percentage.




(c) Auditor’s Reports. Promptly (but in any event within 5 days) upon receipt
thereof, a copy of any detailed audit reports, management letters or recommendations submitted to
the board of directors (or the audit committee of the board of directors) of any Group Company by
independent accountants in connection with the accounts or books of any Group Company, or any
audit of any of them;




(d) SEC Reports. Promptly (and in any event within 5 days) after the same are
available, copies of each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Holdings, and copies of all annual, regular, periodic
and special reports and registration statements which any Group Company 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 except as may have
been filed with the SEC.




(e) Annual Business Plan and Budgets. At least 30 days following the end of each
fiscal year of Holdings, beginning with the fiscal year ending December 31, 2006, an annual
business plan and budget of the Borrower and its Consolidated Subsidiaries containing, among
other things, projected financial statements for the next fiscal year.




(f) Excess Cash Flow. Within (a) 45 days after the end of each of the first three
fiscal quarters in each fiscal year of Holdings and (b) 100 days after the end of each fiscal
year of Holdings, a certificate of the chief financial officer of Holdings containing information
regarding the calculation of Excess Cash Flow for each such relevant period and indicating for
clause (a) above, the amount of Excess Cash Flow generated during the relevant quarter period and
for clause (b) above, the amount required to prepay the Loans and/or Cash Collateralize or pay
the L/C Obligations under Section 2.09(b)(iii).




(g) ERISA Reports. Promptly (and in any event within 30 days) after the same are
available, the most recently prepared actuarial reports in relation to the Plans for the time
being operated by Group Companies which are prepared in order to comply with the then current
statutory or auditing requirements within the relevant jurisdiction. If requested by the



 


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Administrative Agent, the Borrower will promptly instruct an actuary to prepare such
actuarial reports and deliver those to the Administrative Agent, if the Administrative Agent has
reasonable grounds for believing that any relevant statutory or auditing requirement within the
relevant jurisdiction is not being complied with. Promptly upon request, the Borrower shall also
furnish the Administrative Agent and the Lenders with such additional information concerning any
Plan as may be reasonably requested, including, but not limited to, with respect to any Plans,
copies of each annual report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each “plan year” (within the meaning of Section
3(39) of ERISA).




(h) Additional Patents, Trademarks and Copyrights. At the time of delivery of the
financial statements and reports provided for in Section 6.01(a), a report signed by the
chief financial officer of the Borrower setting forth (i) a list of domain names, and
registration numbers for all patents, trademarks, service marks, tradenames and copyrights
awarded to any Group Company since the last day of the immediately preceding fiscal year of
Holdings and (ii) a list of all patent applications, trademark applications, service mark
applications, trade name applications and copyright applications submitted by any Group Company
since the last day of the immediately preceding fiscal year and the status of each such
application, all in such form as shall be reasonably satisfactory to the Administrative Agent.




(i) Domestication in Other Jurisdiction. Not less than 30 days prior to any change
in the jurisdiction of organization of any Loan Party, a copy of all documents and certificates
intended to be filed or otherwise executed to effect such change.




(j) Other Information. With reasonable promptness (and in any event within 5 days)
upon request therefor, such other information regarding the business, properties or financial
condition of any Group Company as the Administrative Agent or any Finance Party may reasonably
request, which may include such information as any Finance Party may reasonably determine is
necessary or advisable to enable it either (i) to comply with the policies and procedures adopted
by it and its Affiliates (which, for purposes of this subsection (j), shall include only
a Lender, the parent holding company of such Lender and any direct or indirect Subsidiary of the
parent holding company of such Lender) to comply with the Bank Secrecy Act, the U.S. Patriot Act
and all applicable regulations thereunder or (ii) to respond to requests for information
concerning Holdings and its Subsidiaries from any governmental, self-regulatory organization or
financial institution in connection with its anti-money laundering and anti-terrorism regulatory
requirements or its compliance procedures under the U.S. Patriot Act, including in each case
information concerning the Borrower’s direct and indirect members and its use of the proceeds of
the Credit Extensions hereunder.



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,



 


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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). 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.



The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its securities) (each, a
“Public Lender”). The Borrower hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may be distributed to the Public
Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such
Borrower Materials as not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for purposes of United
States Federal and state securities laws (provided, however, that to the extent
such Borrower Materials constitute Information, they shall be treated as set forth in Section
10.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public Investor.”
Notwithstanding the foregoing, the Borrower shall be under no Obligation to mark any Borrower
Materials “PUBLIC”.



Section 6.03 Notices. The Borrower will promptly (and in any event within 3 days)
notify the Administrative Agent and each Lender:




(i) of the occurrence of any Default or Event of Default;




(ii) of any matter that has resulted or may result in a Material Adverse Effect,
including (A) breach or non-performance of, or any default under, any Contractual Obligation
of Holdings or any of its Subsidiaries; (B) any dispute, litigation, investigation,
proceeding or suspension between Holdings or any of its Subsidiaries and any Governmental
Authority; (C) the commencement of, or any material development in, any litigation or
proceeding affecting Holdings or any of its Subsidiaries, including pursuant to any
applicable Environmental Law; or (D) any pending or, to the knowledge of any Loan Party,
threatened litigation, investigation or proceeding affecting any Loan Party in which the
amount involved exceeds $2,000,000, or in which injunctive relief or
similar relief is sought, which relief, if granted, could be reasonably expected to
have a Material Adverse Effect;


 


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(iii) of the occurrence of any ERISA Event;




(iv) of any material change in accounting policies or financial reporting practice by
Holdings or any of its Subsidiaries; and




(v) of: (A) any event or condition, including any event, that constitutes, or is
reasonably likely to lead to, an ERISA Event; or (B) any change in the funding status of any
Plan that could have a Material Adverse Effect, together with a description of any such
event or condition or a copy of any such notice and a statement by the chief financial
officer of the Borrower briefly setting forth the details regarding such event, condition or
notice and the action, if any, which has been or is being taken or is proposed to be taken
by the Borrower with respect thereto.



Each notice pursuant to this Section 6.03 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 or the other Finance Documents that have been breached.



Section 6.04 Payment of Obligations. Each of the Group Companies will pay and
discharge (i) all taxes, assessments and other governmental charges or levies imposed upon it, or
upon its income or profits, or upon any of its properties, before they shall become delinquent,
(ii) all lawful claims (including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties and (iii) except as prohibited hereunder or under
the terms of the Senior Subordinated Notes, all of its other Indebtedness as it shall become due;
provided, however, that no Group Company shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings diligently pursued and as to which adequate reserves have been established
in accordance with GAAP, unless the failure to make any such payment (i) could give rise to an
immediate right to foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.



Section 6.05 Preservation of Existence Etc. Except as a result of or in connection
with a dissolution, merger or disposition of a Subsidiary of the Borrower permitted under
Section 7.04 or Section 7.05, each Group Company will: (i) preserve, renew and
maintain in full force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; (ii) 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 could not reasonably be expected to have a
Material Adverse Effect; and (iii) preserve, renew or pursue all of its registered patents,
trademarks, copyrights, trade names, service marks, and domain names, and any applications for any
such registrations, the non-preservation of which could reasonably be expected to have a Material
Adverse Effect.


 


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Section 6.06 Maintenance of Properties. Each Group Company will: (i) 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 (ii) make all
necessary repairs thereto and renewals and replacements thereof except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.




Section 6.07 Insurance; Certain Proceeds.




(a) Insurance Policies. Each of the Group Companies will at all times maintain in
full force and effect insurance (including worker’s compensation insurance, liability insurance
and casualty insurance) in such amounts, covering such risk and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal industry practice (or
as are otherwise required by the Collateral Documents). The Collateral Agent shall be named as
loss payee or mortgagee, as its interest may appear, with respect to all such property and
casualty policies and additional insured with respect to all such other policies (other than
workers’ compensation and employee health policies), and each provider of any such insurance
shall agree, by endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Collateral Agent, that the insurance carrier shall pay all proceeds
in excess of $2,000,000 (or, following receipt of written notice from the Collateral Agent of the
occurrence of an Event of Default, all proceeds) otherwise payable to Holdings or one or more of
its Subsidiaries under such policies directly to the Collateral Agent (which agreement shall be
evidenced by a “standard” or “New York” lender’s loss payable endorsement in the name of the
Collateral Agent on Accord Form 27) and that it will give the Collateral Agent thirty days’ prior
written notice before any such policy or policies shall be altered or canceled, and that no act
or default of any Group Company or any other Person shall affect the rights of the Collateral
Agent or the Lenders under such policy or policies.




(b) Loss Events. In case of any Casualty or Condemnation with respect to any
property of any Group Company or any part thereof, the Borrower shall promptly give written
notice thereof to the Administrative Agent generally describing the nature and extent of such
damage, destruction or taking. In such case, the Borrower shall, or shall cause such Group
Company to, promptly repair, restore or replace the property of such Person (or part thereof)
which was subject to such Casualty or Condemnation, at such Person’s cost and expense, whether or
not the Insurance Proceeds or Condemnation Award, if any, received on account of such event shall
be sufficient for that purpose; provided, however, that such property need not be
repaired, restored or replaced to the extent the failure to make such repair, restoration or
replacement (i)(A) is desirable to the proper conduct of the business of such Person in the
ordinary course and otherwise in the best interest of such Person and (B) would not materially
impair the rights and benefits of the Collateral Agent or the Finance Parties under the
Collateral Documents or any other Finance Document or (ii) the failure to repair, restore or
replace the property is attributable to the application of the Insurance Proceeds from such
Casualty or the Condemnation Award from such Condemnation to payment of the Senior Obligations in
accordance with the following provisions of this Section 6.07(b). If Holdings or any of
its Subsidiaries shall receive any Insurance Proceeds from a Casualty or Condemnation Award from
a Condemnation, such Person will immediately pay over such proceeds to the Administrative Agent,
for payment of the Senior Obligations in accordance with Section 2.05(b) or, if such
funds constitute Reinvestment Funds, to be held by



 


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the Collateral Agent in the Reinvestment Funds Account established under the Security
Agreement. The Administrative Agent agrees to cause the Collateral Agent to release such
Insurance Proceeds or Condemnation Awards to the Borrower upon its request and as needed from
time to time to pay for the repair, restoration or replacement of the portion of the property
subject to such Casualty or Condemnation if, but only if, the conditions set forth in the
definition of “Reinvestment Funds” are satisfied at the time of such request.




(c) Certain Rights of the Lenders. In connection with the covenants set forth in
this Section 6.07, it is understood and agreed that:




(i) none of the Administrative Agent, the Lenders or their respective agents or
employees shall be liable for any loss or damage insured by the insurance policies required
to be maintained under this Section 6.07, it being understood that (A) the Group
Companies shall look solely to their insurance companies or any other parties other than the
aforesaid parties for the recovery of such loss or damage and (B) such insurance companies
shall have no rights of subrogation against the Agents, the Lenders or their agents or
employees; provided, however, that if the insurance policies do not provide
waiver of subrogation rights against such parties, as required above, then each of the Loan
Parties hereby agrees to, and to cause each of the Group Companies to, waive its right of
recovery, if any, against the Agents, the Lenders and their agents and employees, to the
extent permitted by law;




(ii) the Group Companies will permit an insurance consultant retained by the
Administrative Agent, at the expense of the Borrower, to review from time to time the
insurance policies maintained by the Group Companies annually or upon the occurrence of an
Event of Default; and




(iii) the Required Lenders shall have the right from time to time to require the Group
Companies to keep other insurance in such form and amount as the Administrative Agent or the
Required Lenders may reasonably request; provided that such insurance shall be
obtainable on commercially reasonable terms; and provided, further, that the
designation of any form, type or amount of insurance coverage by the Administrative Agent or
the Required Lenders under this Section 6.07 shall in no event be deemed a
representation, warranty or advice by any Agent or the Lenders that such insurance is
adequate for the purposes of the business of the Group Companies or the protection of their
respective properties.



Section 6.08 Compliance with Law. Each of the Group Companies will comply with (a)
Anti-Terrorism Laws, the Bank Secrecy Act and all requirements of Law related thereto and (b) all
other requirements of Law applicable to it and its properties to the extent that noncompliance with
any such other requirement of Law could reasonably be expected to have a Material Adverse Effect.
Without limiting the generality of the foregoing, each of the Group Companies will do, and cause
each of its ERISA Affiliates to do, each of the following: (i) maintain each Plan in compliance in
all material respects with the applicable provisions of ERISA, the Code or other applicable Federal
or state law; (ii) cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; (iii) make all required contributions to any Plan subject to Section 412 of the
Code; (iv) ensure that there are no



 


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Unfunded Liabilities; (v) ensure that all liabilities under the Employee Benefit Arrangements
are either (A) funded to at least the minimum level required by law or, if higher, to the level
required by the terms governing the Employee Benefit Arrangements; (B) insured with a reputable
insurance company; or (C) provided for or recognized in the financial statements most recently
delivered to the Administrative Agent under Section 6.01(a) or (b); and (vi) ensure
that the contributions or premium payments to or in respect of all Employee Benefit Arrangements
are and continue to be promptly paid at no less than the rates required under the rules of such
arrangements and in accordance with the most recent actuarial advice received in relation to the
Employee Benefit Arrangement and generally in accordance with applicable law. None of the
Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower are in violation of and
shall not violate any of the country or list based economic and trade sanctions administered and
enforced by OFAC that are described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to
time. None of Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower (i) is a
Sanctioned Person, (ii) has a more than 10% of its assets located in Sanctioned Entities, or (iii)
derives more than 10% of its operating income from investments in, or transactions with Sanctioned
Persons or Sanctioned Entities. The proceeds of any Loan will not be used and have not been used
to fund any operations in, finance any Investments or activities in or make any payments to, a
Sanctioned Person or a Sanctioned Entity.



Section 6.09 Books and Records; Lender Meeting. Each of the Group Companies will keep
complete and accurate books and records of its transactions in accordance with good accounting
practices on the basis of GAAP (including the establishment and maintenance of appropriate
reserves). If requested by the Administrative Agent, within 180 days after the end of each fiscal
year of the Borrower, the Borrower will conduct a meeting of the Lenders to discuss such fiscal
year’s results and the financial condition of the Borrower and its Consolidated Subsidiaries. The
chief executive officer and the chief financial officer of the Borrower and such other officers of
the Borrower as the Borrower’s chief executive officer shall designate shall be present at each
such meeting. Such meetings shall be held at times and places convenient to the Lenders and to the
Borrower.



Section 6.10 Inspection Rights. Upon reasonable (not less than 72-hour) notice and
during normal business hours, each of the Group Companies will permit representatives appointed by
the Agents or the Required Lenders, including independent accountants, agents, employees, attorneys
and appraisers, to visit and inspect its property, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to make photocopies or
photographs thereof and to write down and record any information such representatives obtain and
shall permit the Agents or such representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the officers, employees,
independent accountants, attorneys and representatives of the Group Companies.



Section 6.11 Use of Proceeds. The Borrower will use the proceeds of the Loans and
will use the Letters of Credit solely for the purposes set forth in Section 5.18.


 


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Section 6.12 Additional Loan Parties; Additional Security.




(a) Additional Subsidiary Guarantors. Each of Holdings and the Borrower will take,
and will cause each of its Restricted Subsidiaries (other than Foreign Subsidiaries, except to
the extent provided in subsection (d) below) to take, such actions from time to time as
shall be necessary to ensure that all Restricted Subsidiaries of Holdings (other than the
Borrower, and Foreign Subsidiaries, except to the extent provided in subsection (d)
below) are Subsidiary Guarantors. Without limiting the generality of the foregoing, if any Group
Company shall form or acquire any new Subsidiary, the Borrower, as soon as practicable and in any
event within 30 days after such formation or acquisition, will provide the Collateral Agent with
notice of such formation or acquisition setting forth in reasonable detail a description of all
of the assets of such new Subsidiary and will cause such new Subsidiary (other than a Foreign
Subsidiary, except to the extent provided in subsection (d) below) to:




(i) within 30 days after such formation or acquisition, execute an Accession Agreement
pursuant to which such new Subsidiary shall agree to become a “Guarantor” under the
Guaranty, an “Obligor” under the Security Agreement and an “Obligor” under the Pledge
Agreement; and




(ii) deliver such proof of organizational authority, incumbency of officers, opinions
of counsel and other documents as is consistent with those delivered by each Loan Party
pursuant to Section 4.01 on the Closing Date or as the Administrative Agent, the
Collateral Agent or the Required Lenders shall have requested.




(b) Additional Security. Each of Holdings and the Borrower will cause, and will
cause each of its Restricted Subsidiaries (other than a Foreign Subsidiary, except to the extent
provided in subsection (d) below) to cause, (i) all of its owned Real Properties and
personal property located in the United States, (ii) to the extent deemed to be material by the
Administrative Agent or the Required Lenders in its or their sole and reasonable discretion, all
of its other owned Real Properties and personal property, (iii) all of its leased Real Properties
located in the United States (other than immaterial leased properties) and (iv) all other assets
and properties of Holdings and its Restricted Subsidiaries as are not covered by the original
Collateral Documents and as may be requested by the Collateral Agent or the Required Lenders in
their sole reasonable discretion to be subject at all times to first priority (subject only to
Permitted Liens), perfected and, in the case of Real Property (whether leased or owned), title
insured Liens in favor of the Collateral Agent pursuant to the Collateral Documents or such other
security agreements, pledge agreements, mortgages or similar collateral documents as the
Collateral Agent shall request in its sole reasonable discretion (collectively, the
“Additional Collateral Documents”). In furtherance of the foregoing terms of this
Section 6.12, the Borrower agrees to promptly provide the Administrative Agent with
written notice of the acquisition by Holdings or any of its Restricted Subsidiaries of any Real
Property located in the United States having a market value greater than $500,000 or the entering
into a lease by Holdings or any of its Restricted Subsidiaries of any Real Property located in
the United States for annual rent of $500,000 or more, setting forth in each case in reasonable
detail the location and a description of the asset(s) so acquired or leased. Without limiting
the generality of the foregoing, Holdings and the Borrower will cause, and will cause each of
their respective Restricted Subsidiaries to cause, 100% of the Equity Interests of each



 


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of their respective direct and indirect Subsidiaries (or 65% of such Equity Interests, if
such Subsidiary is a direct Foreign Subsidiary, except as provided in subsection (d)
below) to be subject at all times to a first priority, perfected Lien (subject only to Permitted
Liens) in favor of the Collateral Agent pursuant to the terms and conditions of the Collateral
Documents.



If, subsequent to the Closing Date, a Loan Party shall acquire any intellectual property,
securities, instruments, chattel paper or other personal property required to be delivered to the
Collateral Agent as Collateral hereunder or under any of the Collateral Documents, the Borrower
shall promptly (and in any event within three Business Days after any Responsible Officer of any
Loan Party acquires knowledge of the same) notify the Collateral Agent of the same. Each of the
Loan Parties shall adhere to the covenants regarding the location of personal property as set forth
in the Security Agreement.



All such security interests and mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Collateral Agent and shall constitute valid
and enforceable perfected security interests and mortgages superior to and prior to the rights of
all third Persons and subject to no other Liens except for Permitted Liens. The Additional
Collateral Documents or instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve and protect the
Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Collateral
Documents, and all taxes, fees and other charges payable in connection therewith shall have been
paid in full. The Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably requested by the
Collateral Agent to assure itself that this Section 6.12(b) has been complied with.




(c) Real Property Appraisals. If the Collateral Agent or the Required Lenders
determine that they are required by law or regulation to have appraisals prepared in respect of
the Real Property of any Group Company constituting Collateral, the Borrower shall provide to the
Collateral Agent appraisals which satisfy the applicable requirements set forth in 12 C.F.R.,
Part 34 — Subpart C or any successor or similar statute, rule, regulation, guideline or order,
and which shall be in scope, form and substance, and from appraisers, reasonably satisfactory to
the Required Lenders and shall be accompanied by a certification of the appraisal firm providing
such appraisals that the appraisals comply with such requirements.




(d) Foreign Subsidiaries Security. If, following a change in the relevant Sections
of the Code or the regulations, rules, rulings, notices or other official pronouncements issued
or promulgated thereunder, counsel for the Borrower acceptable to the Collateral Agent and the
Required Lenders does not within 30 days after a request from the Collateral Agent or the
Required Lenders deliver evidence, in form and substance mutually satisfactory to the Collateral
Agent and the Borrower, with respect to any Foreign Subsidiary of Holdings which has not already
had all of the Equity Interests issued by it pledged pursuant to the Pledge Agreement that (i) a
pledge (A) of 65.0% or more of the total combined voting power of all classes of capital stock of
such Foreign Subsidiary entitled to vote, and (B) of any promissory note issued by such Foreign
Subsidiary to the Borrower or any of its Domestic Subsidiaries, (ii) the entering into by such
Foreign Subsidiary of a guaranty in form and substance substantially identical to the Guaranty,
(iii) the entering into by such Foreign Subsidiary of a



 


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security agreement in form and substance substantially identical to the Security Agreement,
and (iv) the entering into by such Foreign Subsidiary of a pledge agreement substantially
identical to the Pledge Agreement, in any such case would cause the undistributed earnings of
such Foreign Subsidiary as determined for United States federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary’s United States parent for United States federal
income tax purposes, then, (A) in the case of a failure to deliver the evidence described in
clause (i) above, that portion of such Foreign Subsidiary’s outstanding capital stock or
any promissory notes so issued by such Foreign Subsidiary, in each case not theretofore pledged
pursuant to the Pledge Agreement, shall be pledged to the Collateral Agent for the benefit of the
Finance Parties pursuant to the Pledge Agreement (or another pledge agreement in substantially
identical form, if needed); (B) in the case of a failure to deliver the evidence described in
clause (ii) above, such Foreign Subsidiary shall execute and deliver the Guaranty (or
another guaranty in substantially identical form, if needed), guaranteeing the Senior
Obligations; (C) in the case of a failure to deliver the evidence described in clause
(iii) above, such Foreign Subsidiary shall execute and deliver the Security Agreement (or
another security agreement in substantially identical form, if needed), granting to the
Collateral Agent, for the benefit of the Finance Parties, a security interest in all of such
Foreign Subsidiary’s assets and securing the Senior Obligations; and (D) in the case of a failure
to deliver the evidence described in clause (iv) above, such Foreign Subsidiary shall
execute and deliver the Pledge Agreement (or another pledge agreement in substantially identical
form, if needed), pledging to the Collateral Agent, for the benefit of the Finance Parties, all
of the capital stock and promissory notes owned by such Foreign Subsidiary, in each case to the
extent that entering into such Guaranty, Security Agreement or Pledge Agreement is permitted by
the laws of the respective foreign jurisdiction and with all documents delivered pursuant to this
Section 6.12(d) to be in form, scope and substance reasonably satisfactory to the
Collateral Agent and the Required Lenders.




(e) Each of Holdings and the Borrower agrees that each action required by this Section
6.12 shall be completed as soon as possible, but in no event later than 60 days after such
action is either requested to be taken by the Collateral Agent or the Required Lenders or
required to be taken by Holdings or any of its Restricted Subsidiaries pursuant to the terms of
this Section 6.12.



Section 6.13 Contributions. Upon its receipt thereof or, in the event any cash
proceeds referred to below are received by Holdings after 1 P.M. on any Business Day, within one
Business Day after its received thereof, Holdings will contribute as a common equity contribution
to the capital of the Borrower any cash proceeds received by Holdings after the Closing Date from
any Asset Disposition, Casualty or Condemnation.



Section 6.14 Cash Collateral Accounts. After the occurrence of an Event of Default or
upon the occurrence of the circumstances described in Section 2.03(g), Borrower shall
maintain, and cause each of the other Loan Parties to maintain, all Cash Collateral Accounts with
Bank of America or another commercial bank located in the United States, which has accepted the
assignment of such accounts to the Administrative Agent for the benefit of the Secured Parties
pursuant to the terms of the Security Agreement.


 


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ARTICLE
VII
NEGATIVE COVENANTS







Each of Holdings and the Borrower agrees that so long as any Lender has any Commitment
hereunder, any Senior Obligations or other amount payable hereunder or under any Note or other
Senior Finance Document or any L/C Obligation remains unpaid or any Letter of Credit remains
unexpired:



Section 7.01 Limitation on Indebtedness. None of the Group Companies will incur,
create, assume or permit to exist any Indebtedness except:




(i) Indebtedness of the Loan Parties under this Agreement and the other Senior Finance
Documents;




(ii) Indebtedness and the Guaranties thereof arising under the Senior Subordinated
Indenture and the Senior Subordinated Notes (but not including any renewal, refinancing or
extension thereof);




(iii) Capital Lease Obligations and Purchase Money Indebtedness of the Borrower and its
Restricted Subsidiaries incurred after the Closing Date to finance Capital Expenditures
permitted by Section 7.14; provided that (A) the aggregate amount of all
such Indebtedness (together with refinancings thereof permitted by clause (iv)
below) does not exceed $10,000,000 at any time outstanding; provided,
however, that the aggregate amount of all such Indebtedness and the aggregate amount
of all refinancings thereof permitted by clause (iv) below (exclusive of Acquired
Capital Lease Obligations and Acquired Purchase Money Indebtedness) does not exceed
$7,500,000 at any time outstanding, (B) the Indebtedness when incurred shall not be less
than 80% or more than 100% of the lesser of the cost or fair market value as of the time of
acquisition of the asset financed, (C) such Indebtedness is issued and any Liens securing
such Indebtedness are created concurrently with, or within 90 days after, the acquisition of
the asset financed and (D) no Lien securing such Indebtedness shall extend to or cover any
property or asset of any Group Company other than the asset so financed;




(iv) Indebtedness of the Borrower or its Restricted Subsidiaries representing a
refinancing, replacement or refunding of Indebtedness permitted by clause (iii)
above or Indebtedness of the Borrower representing a refinancing, replacement or refunding
of Indebtedness permitted by clause (ii) above; provided that (A) such
Indebtedness (the “Refinancing Indebtedness”) is an original aggregate principal
amount not greater than the aggregate principal amount of, and unpaid interest on, the
Indebtedness being refinanced, replaced or refunded plus the amount of any premiums required
to be paid thereon and fees and expense associated therewith, (B) such Refinancing
Indebtedness has a later or equal final maturity and a larger or equal weighted average life
than the Indebtedness being refinanced, replaced or refunded, (C) if the Indebtedness being
refinanced, replaced or refunded is subordinated to the Senior Obligations, such Refinancing
Indebtedness is subordinated to the Senior Obligations on terms no less favorable to the
Lenders than the terms of the Indebtedness being refinanced, replaced or refunded, (D) the
covenants, events of default and any Guaranty



 


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Obligations in respect thereof shall be no less favorable to the Lenders than those
contained in the Indebtedness being refinanced, replaced or refunded and (E) at the time of,
and after giving effect to, such refinancing, replacement or refunding, no Default or Event
of Default shall have occurred and be continuing;




(v) other Indebtedness outstanding on the Closing Date and listed on Schedule
7.01 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 and the
direct or any contingent obligor with respect thereto is not changed, as a result of or in
connection with such refinancing, refunding, renewal or extension; and provided,
still further, that the terms relating to principal amount, amortization,
maturity and collateral (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Finance Parties than the terms of any agreement
or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and
the interest rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;




(vi) Swap Obligations of the Borrower or any Restricted Subsidiary under Swap
Agreements to the extent entered into after the Closing Date and provided that the
aggregate notional amount of all Swap Agreements relating to such Swap Obligations shall not
exceed $150,000,000 at any time outstanding to manage interest rate or foreign currency
exchange rate risks and not for speculative purposes;




(vii) Indebtedness consisting of Guaranty Obligations (A) by the Borrower in respect of
Indebtedness and leases permitted to be incurred by Wholly-Owned Domestic Restricted
Subsidiaries of the Borrower, (B) by Domestic Restricted Subsidiaries of the Borrower of
Indebtedness and leases permitted to be incurred by the Borrower or Wholly-Owned Domestic
Restricted Subsidiaries of the Borrower and (C) by Foreign Subsidiaries of the Borrower of
Indebtedness and leases permitted to be incurred by Wholly-Owned Foreign Subsidiaries of the
Borrower;




(viii) Indebtedness owing to the Borrower or a Restricted Subsidiary of the Borrower to
the extent permitted by Section 7.06(a)(viii) or (ix);




(ix) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries not
otherwise permitted by this Section 7.01 incurred after the Closing Date in an
aggregate principal amount not to exceed $12,500,000 at any time outstanding;
provided that (A) the credit documentation with respect to such Indebtedness shall
not contain covenants or default provisions relating to Holdings or any Restricted
Subsidiary that are more restrictive than the covenants and default provisions contained in
the Finance Documents, (B) no Event of Default shall have occurred and be continuing
immediately before and immediately after giving effect to such incurrence and (C) the



 


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Borrower shall have delivered to the Administrative Agent a certificate demonstrating
that, upon giving effect on a Pro-Forma Basis to the incurrence of such Indebtedness and to
the concurrent retirement of any other Indebtedness of any Group Company, the Loan Parties
shall be in compliance with the financial covenants set forth in Section 7.18;




(x) Subordinated Indebtedness of the Borrower not otherwise permitted by this
Section 7.01 incurred after the Closing Date in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding; provided that (A) no Event of Default
shall have occurred and be continuing immediately before and immediately after giving effect
to such incurrence and (B) the Borrower shall have delivered to the Administrative Agent a
certificate demonstrating that, upon giving effect on a Pro-Forma Basis to the incurrence of
such Indebtedness and to the concurrent retirement of any other Indebtedness of any Group
Company, the Loan Parties shall be in compliance with the financial covenants set forth in
Section 7.18;




(xi) indemnification obligations by any Group Company of the obligations of any other
Group Company;




(xii) Indebtedness arising solely out of the conversion of “vault cash” supplied
pursuant to the Vault Cash Agreement for normal operating requirements of the automated
teller machines of the Borrower covered by the Vault Cash Agreement (the “ATMs”)
into Indebtedness of the Borrower by operation of Section XI.2.a. of the Vault Cash
Agreement (or any successor provision), so long as the proceeds of such Indebtedness are
used solely in the ATMs, as provided in Section IV.E of the Vault Cash Agreement and for no
other purpose;




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




(xiv) Indebtedness in connection with bid bonds, performance bonds or similar
instruments issued in connection with the application for, issuance of or renewal of
licenses, permits or registrations with Governmental Authorities.



Section 7.02 Restriction on Liens. None of the Group Companies will create, incur,
assume or permit to exist any Lien on any property or assets (including Equity Interests or other
securities of any Person, including any Restricted Subsidiary of Holdings) now owned or hereafter
acquired by it or on any income or rights in respect of any thereof, except Liens described in any
of the following clauses (collectively, “Permitted Liens”):




(i) Liens created by the Collateral Documents;




(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law)
for taxes, assessments or governmental charges or levies not yet due or being contested in
good faith and by appropriate proceedings diligently pursued for which adequate reserves (in
the good faith judgment of the management of the Borrower) have been established in
accordance with GAAP (and as to which the property or assets subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);


 


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(iii) Liens imposed by law securing the charges, claims, demands or levies of
landlords, carriers, warehousemen, mechanics, carriers and other like persons which were
incurred in the ordinary course of business and which (A) do not, individually or in the
aggregate, materially detract from the value of the property or assets which are the subject
of such Lien or materially impair the use thereof in the operation of the business of the
Borrower or any of its Restricted Subsidiaries or (B) which are being contested in good
faith by appropriate proceedings diligently pursued, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to such Lien;




(iv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds
with respect thereto) in circumstances not constituting an Event of Default under
Section 8.01; provided that no cash or other property (other than proceeds
of insurance payable by reason of such judgments, decrees or attachments) the fair value of
which exceeds $1,000,000 is deposited or delivered to secure any such judgment, decree or
award, or any appeal bond in respect thereof;




(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law)
not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment insurance and
other types of social security and other similar obligations incurred in the ordinary course
of business;




(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds),
bids, leases, government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; provided that (A) in the
case of Liens on cash and Cash Equivalents, the amount of all cash and Cash Equivalents
subject to such Liens may at no time exceed $20,000,000 in the aggregate;




(vii) zoning restrictions, easements, rights of way, licenses, reservations, covenants,
conditions, waivers, restrictions on the use of property or other minor encumbrances or
irregularities of title not securing Indebtedness or Swap Obligations which do not,
individually or in the aggregate, materially impair the use of any property in the operation
or business of Holdings or any of its Subsidiaries or the value of such property for the
purpose of such business;




(viii) (A) Liens securing Capital Lease Obligations permitted to be incurred under
Section 7.01(iii) and refinancings or replacements thereof permitted to be incurred
under Section 7.01(iv) and (B) Liens securing Purchase Money Indebtedness permitted
to be incurred under Section 7.01(iii);




(ix) any Lien existing on any asset of any Person at the time such Person becomes a
Restricted Subsidiary of the Borrower and not created in contemplation of such event;


 


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(x) any Lien on any asset of any Person existing at the time such Person is merged or
consolidated with or into the Borrower or a Restricted Subsidiary of the Borrower and not
created in contemplation of such event;




(xi) any Lien existing on any asset prior to the acquisition thereof by the Borrower or
a Restricted Subsidiary of the Borrower and not created in contemplation of such
acquisition;




(xii) any Lien securing Refinancing Indebtedness in respect of any Indebtedness of the
Borrower or any Restricted Subsidiary of the Borrower secured by any Lien permitted by
clauses (ix), (x), (xi) or (xii) of this Section
7.02; provided that such Indebtedness is not secured by any additional assets;




(xiii) Liens arising from precautionary Uniform Commercial Code financing statements
regarding, and any interest or title of a licensor, lessor or sublessor under, Operating
Leases permitted by this Agreement;




(xiv) Liens arising solely by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar rights, in each case incurred in the
ordinary course of business;




(xv) Liens against the portion of cash access transactions settlement proceeds
representing fees accruing to a Group Company’s benefit; provided such Liens are to
secure the obligations of a Group Company in the ordinary course of business;




(xvi) licenses, leases or subleases granted to third Persons in the ordinary course of
business not interfering in any material respect with the business of any Group Company; and




(xvii) reserve accounts, security deposits, prepaid chargeback accounts, security
interests or similar arrangements with gaming establishment customers or financial services
business partners entered into in the ordinary course of business in regards to the
processing and settlement of cash access transactions.



Section 7.03 Nature of Business. None of the Group Companies will alter the character
or conduct of the business conducted by such Person as of the Closing Date; provided that
the expansion of product offerings to services or products to facilitate cash access by gaming
patrons shall not be deemed an alteration.



Section 7.04 Consolidation, Merger and Dissolution. Except in connection with an
Asset Disposition permitted by the terms of Section 7.05, none of the Group Companies will
enter into any transaction of merger or consolidation or liquidate, wind up or dissolve itself or
its affairs (or suffer any liquidations or dissolutions); provided that:




(i) any Wholly-Owned Domestic Restricted Subsidiary of the Borrower may merge with and
into, or be voluntarily dissolved or liquidated into, the Borrower, so long as (A) the
Borrower is the surviving corporation of such merger, dissolution or liquidation, (B) the
security interests granted to the Collateral Agent for the



 


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benefit of the Finance Parties pursuant to the Collateral Documents in the assets of
such Wholly-Owned Domestic Restricted Subsidiary so merged, dissolved or liquidated shall
remain in full force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolution or liquidation) and (C) no Default or Event of
Default shall have occurred and be continuing immediately before or immediately after giving
effect to such transaction;




(ii) any Wholly-Owned Domestic Restricted Subsidiary of the Borrower may merge with and
into, or be voluntarily dissolved or liquidated into, any other Wholly-Owned Domestic
Restricted Subsidiary of the Borrower, so long as (A) the security interests granted to the
Collateral Agent for the benefit of the Finance Parties pursuant to the Collateral Documents
in the assets of such Wholly-Owned Domestic Restricted Subsidiary so merged, dissolved or
liquidated shall remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such merger, dissolution or liquidation) and (B) no
Default or Event of Default shall have occurred and be continuing immediately before or
immediately after giving effect to such transaction;




(iii) any Group Company of the Borrower may be merged with and into, or any Group
Company (other than the Borrower or any Wholly-Owned Restricted Subsidiary) may be
voluntarily dissolved or liquidated into, any other Group Company, so long as (A) the
Borrower or such Wholly-Owned Restricted Subsidiary, as the case may be, is the surviving
corporation of such merger, and (B) no Default or Event of Default shall have occurred and
be continuing immediately before or immediately after giving effect to such transaction; and




(iv) the Borrower or any Restricted Subsidiary of the Borrower may merge with any
Person (other than Holdings or any of its Subsidiaries) in connection with a Permitted
Business Acquisition if (A) the Borrower or such Restricted Subsidiary shall be the
continuing or surviving corporation in such merger or consolidation, (B) the Loan Parties
shall cause to be executed and delivered such documents, instruments and certificates as the
Administrative Agent may reasonably request so as to cause the Loan Parties to be in
compliance with the terms of Section 6.12 after giving effect to such transactions,
(C) no Default or Event of Default shall have occurred and be continuing immediately before
or immediately after giving effect to such transaction and (D) the Borrower shall have
delivered to the Administrative Agent a Pro-Forma Compliance Certificate demonstrating that,
upon giving effect on a Pro-Forma Basis to such transaction, the Loan Parties will be in
compliance with all of the financial covenants set forth in Section 7.18 as of the
last day of the most recent period of four consecutive fiscal quarters of Holdings which
precedes or ends on the date of such transaction and with respect to which the
Administrative Agent has received the consolidated financial information required under
Section 6.01(a) or (b) and the Compliance Certificate required by
Section 6.02(b).



In the case of any merger or consolidation permitted by this Section 7.04 of any Subsidiary
of Holdings which is not a Loan Party into a Loan Party, the Loan Parties shall cause to be
executed and delivered such documents, instruments and certificates as the Administrative Agent may
reasonably request so as to cause the Loan Parties to be in compliance with the terms of
Section 6.12 after giving effect to such transaction.


 


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Section 7.05 Asset Dispositions. None of the Group Companies will make any Asset
Disposition; provided that:




(i) the Borrower and its Restricted Subsidiaries may sell inventory in the ordinary
course of business for fair value and on an arms’-length basis;




(ii) the Borrower or any of its Restricted Subsidiaries may make any Asset Disposition
to the Borrower or any of the Subsidiary Guarantors if (A) the Loan Parties shall cause to
be executed and delivered such documents, instruments and certificates as the Administrative
Agent or the Collateral Agent may request so as to cause the Loan Parties to be in
compliance with the terms of Section 6.12 after giving effect to such Asset
Disposition and (B) after giving effect to such Asset Disposition, no Default or Event of
Default exists;




(iii) the Borrower and its Restricted Subsidiaries may liquidate or sell Cash
Equivalents;




(iv) the Borrower or any of its Restricted Subsidiaries may sell, lease, transfer,
assign or otherwise dispose of assets (other than in connection with any Casualty or
Condemnation) to any other Person to the extent that the aggregate Net Cash Proceeds from
such sale, lease, transfer, assignment or other disposition, when combined with all other
such dispositions previously made (a) during any fiscal year, does not exceed $2,000,000 in
the aggregate and (b) from and after the Closing Date does not exceed $7,500,000 in the
aggregate;




(v) any Wholly-Owned Domestic Restricted Subsidiary of the Borrower may sell, lease or
otherwise transfer all or substantially all of its assets to the Borrower, so long as the
security interests granted to the Collateral Agent for the benefit of the Finance Parties
pursuant to the Collateral Documents in such assets shall remain in full force and effect
and perfected (to at least the same extent as in effect immediately prior to such sale,
lease or other transfer);




(vi) any Wholly-Owned Domestic Restricted Subsidiary of the Borrower may sell, lease or
otherwise transfer all or substantially all of its assets to any other Wholly-Owned Domestic
Restricted Subsidiary of the Borrower, so long as the security interests granted to the
Collateral Agent for the benefit of the Finance Parties pursuant to the Collateral Documents
in such assets shall remain in full force and effect and perfected (to at least the same
extent as in effect immediately prior to such sale, lease or other transfer);




(vii) any Foreign Subsidiary of the Borrower may sell, lease or otherwise transfer all
or substantially all of its assets to the Borrower or any Wholly-Owned Restricted Subsidiary
of the Borrower; and


 


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(viii) the Borrower or any of its Restricted Subsidiaries may make any other Asset
Disposition; provided that (A) the consideration therefor is cash or Cash
Equivalents; (B) such transaction does not involve the sale or other disposition of a
minority Equity Interest in any Group Company; and (C) no Default or Event of Default shall
have occurred and be continuing immediately before or immediately after giving effect to
such transaction.



Upon consummation of an Asset Disposition permitted under this Section 7.05, the
Administrative Agent shall (or shall cause the Collateral Agent to) (to the extent applicable)
deliver to the Borrower, upon the Borrower’s request and at the Borrower’s expense, such
documentation as is reasonably necessary to evidence the release of the Collateral Agent’s security
interests, if any, in the assets being disposed of, including amendments or terminations of Uniform
Commercial Code Financing Statements, if any, the return of stock certificates, if any, and the
release of any Subsidiary being disposed of in its entirety from all of its obligations, if any,
under the Senior Finance Documents.




Section 7.06 Investments.




(a) Investments. None of the Group Companies will hold, make or acquire, any
Investment in any Person, except the following:




(i) Investments existing on the date hereof in Persons which are Subsidiaries on the
date hereof and Investments after the date hereof in any Wholly-Owned Domestic Restricted
Subsidiary;




(ii) the Borrower or any Domestic Restricted Subsidiary of the Borrower may invest in
cash and Cash Equivalents;




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




(iv) the Borrower and each Restricted Subsidiary may acquire and own Investments
(including Indebtedness obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary course of business;




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




(vi) deposits by the Borrower or any of its Restricted Subsidiaries made in the
ordinary course of business consistent with past practices to secure the performance of
obligations in the ordinary course of business shall be permitted;


 


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(vii) Holdings may make equity contributions to the capital of the Borrower;




(viii) the Borrower may make Investments in any of its Wholly-Owned Domestic Restricted
Subsidiaries and any Restricted Subsidiary of the Borrower may make intercompany loans and
advances to the Borrower or any Wholly-Owned Domestic Restricted Subsidiary of the Borrower;
provided that (A) each item of intercompany Indebtedness shall be evidenced by a
promissory note in the form of Exhibit H hereto, (B) each promissory note evidencing
intercompany loans and advances made by a Foreign Subsidiary or a non-Wholly-Owned Domestic
Restricted Subsidiary to the Borrower or a Wholly-Owned Domestic Restricted Subsidiary of
the Borrower shall contain the subordination provisions set forth in Exhibit I
hereto and (C) each promissory note evidencing intercompany loans and advances (other than
promissory notes held by Foreign Subsidiaries, except to the extent provided in Section
6.12(d)) shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;




(ix) the Borrower and its Restricted Subsidiaries may make Investments in any Foreign
Subsidiary or any non-Wholly-Owned Domestic Restricted Subsidiary of the Borrower (A) in the
case of Investments by the Borrower or any Wholly-Owned Domestic Restricted Subsidiary of
the Borrower, in an aggregate amount, when taken together with the aggregate consideration
theretofore paid since the Closing Date by the Borrower and its Restricted Subsidiaries in
respect of Permitted Business Acquisitions of Foreign Subsidiaries and non-Wholly-Owned
Domestic Restricted Subsidiaries pursuant to clause (xii) below, not exceeding $5,000,000
for all such Investments occurring after the Closing Date, and (B) to the extent such
Investments arise from the sale of inventory in the ordinary course of business by the
Borrower or such Restricted Subsidiary to such Foreign Subsidiary or non-Wholly-Owned
Domestic Restricted Subsidiary for resale by such Foreign Subsidiary or non-Wholly-Owned
Domestic Restricted Subsidiary (including any such Investments resulting from the extension
of the payment terms with respect to such sales); provided that (A) each item of
intercompany Indebtedness shall be evidenced by a promissory note in the form of Exhibit
H hereto and (B) each promissory note evidencing intercompany loans and advances (other
than promissory notes (x) issued by Foreign Subsidiaries of the Borrower to the Borrower or
any of its Domestic Restricted Subsidiaries or (y) held by Foreign Subsidiaries of the
Borrower, in each case except to the extent provided in Section 6.12(d)) shall be
pledged to the Collateral Agent pursuant to the Pledge Agreement;




(x) the Borrower and its Restricted Subsidiaries may make Investments in Innovative
Funds Transfer, LLC (A) in the case of Investments by the Borrower or any Wholly-Owned
Domestic Restricted Subsidiary of the Borrower, in an aggregate amount (determined without
regard to any write-downs or write-offs of any such Investments constituting Indebtedness)
at any one time outstanding not exceeding $10,000,000 and (B) to the extent such Investments
arise from the sale of inventory in the ordinary course of business by the Borrower or such
Subsidiary to Innovative Funds Transfer, LLC for resale by Innovative Funds Transfer, LLC
(including any such Investments resulting from the extension of the payment terms with
respect to such



 


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sales); provided that (A) each item of intercompany Indebtedness
shall be evidenced by a promissory note in the form of Exhibit H hereto and (B) each promissory note
evidencing intercompany loans and advances shall be pledged to the Collateral Agent pursuant
to the Pledge Agreement;




(xi) the Borrower and its Restricted Subsidiaries may purchase inventory, machinery and
equipment in the ordinary course of business;




(xii) the Borrower and its Restricted Subsidiaries may make expenditures in respect of
Permitted Business Acquisitions;




(xiii) the Borrower and its Restricted Subsidiaries may make Investments in Arriva Card
in an aggregate amount after the Closing Date (determined without regard to any write-downs
or write-offs of any such Investments constituting Indebtedness) not to exceed $10,000,000;
provided that (A) each item of intercompany Indebtedness shall be evidenced by a
promissory note in the form of Exhibit H hereto and (B) each promissory note
evidencing intercompany loans and advances shall be pledged to the Collateral Agent pursuant
to the Pledge Agreement; and




(xiv) the Borrower and its Restricted Subsidiaries may make Investments which
constitute Indebtedness incurred in accordance with Section 7.01(viii);



provided that no Group Company may make or own any Investment in Margin Stock.




(b) Asset Acquisitions. No Group Company will make any acquisition of assets
outside the ordinary course of business; provided that the Borrower and its Restricted
Subsidiaries may make Permitted Business Acquisitions.




(c) Limitation on the Creation of Subsidiaries. No Group Company will establish,
create or acquire after the Closing Date any Subsidiary; provided that the Borrower and
its Wholly-Owned Restricted Subsidiaries shall be permitted to establish, create or acquire
Subsidiaries so long as (i) at least 10 days’ prior written notice thereof is given to the
Administrative Agent, (ii) the capital stock or other equity interests of such new Subsidiary
(other than a Foreign Subsidiary, except to the extent otherwise required pursuant to Section
6.12(d)) is pledged pursuant to, and to the extent required by, the Pledge Agreement and the
certificates representing such interests, together with transfer powers duly executed in blank,
are delivered to the Collateral Agent, (iii) such new Subsidiary (other than a Foreign
Subsidiary, except to the extent otherwise required pursuant to Section 6.12(d)) executes
a counterpart of the Accession Agreement, the Guaranty, the Security Agreement and the Pledge
Agreement as provided in Section 6.12(b), and (iv) such new Subsidiary, to the extent
requested by the Administrative Agent, takes all other actions required pursuant to Section
6.12.



Section 7.07 Restricted Payments, etc. None of the Group Companies will declare or
pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests
(exclusive of Debt Equivalents) of such Person), except that:


 


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(i) any Subsidiary of the Borrower may make Restricted Payments to the Borrower or to
any Wholly-Owned Subsidiary of the Borrower;




(ii) so long as no Default or Event of Default has occurred and is continuing, the
Borrower may make payments of dividends, other distributions or other amounts for the
purposes set forth in clauses (A) through (C) below:




(A) to Holdings in amounts equal to the amounts required for Holdings to pay
franchise taxes, accounting, legal and other fees required to maintain its corporate
existence and provide for other operating costs, in each case related to the
Borrower, of up to $300,000 per fiscal year;




(B) to Holdings in amounts equal to amounts expended by Holdings to purchase,
repurchase, redeem, retire or otherwise acquire for value Equity Interests of
Holdings owned by employees, former employees, directors or former directors,
consultants or former consultants of the Borrower or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors or former
directors, consultants or foreign consultants); provided, however,
that the aggregate amount paid, loaned or advanced to Holdings pursuant to this
clause (C) will not, in the aggregate, exceed $1,000,000 per fiscal year of the
Borrower, plus any amounts contributed by Holdings to the Borrower as a result of
sales of shares of Equity Interests to employees, directors and consultants; and




(C) to Holdings in an aggregate amount up to the sum of (i) $25,000,000 plus
(ii) 50% of cumulative Excess Cash Flow after September 30, 2006 so long (X) as the
Senior Leverage Ratio as of the end of the fiscal quarter of the Borrower which
precedes such payment was equal to or less than 3.0 to 1.0 and (Y) upon giving
effect on a Pro Forma Basis to such Restricted Payment, the Senior Leverage Ratio
would be less than 3.0 to 1.0, and




(iii) so long as no Default or Event of Default has occurred and is continuing,
Holdings may make payments of dividends and distributions to the holders of its Equity
Interests from payments received by Holdings from the Borrower pursuant to Section
7.07(ii)(C).




Section 7.08 Prepayments of Indebtedness, etc.




(a) Amendments of Indebtedness Agreements. None of the Group Companies will, or
will permit any of their respective Subsidiaries to, after the issuance thereof, amend, waive or
modify (or permit the amendment, waiver or modification of) any of the terms, agreements,
covenants or conditions of or applicable to any Indebtedness (other than (A) the Senior
Obligations and, (B) in the absence of any Default or Event of Default, (x) Indebtedness
permitted by Section 7.01(iii), (y) refinancings or replacements of Capital Lease
Obligations and Purchase Money Indebtedness permitted by Section 7.01(iv) and (z)
Indebtedness permitted by Section 7.01(viii)) issued by such Group Company if such
amendment, waiver or modification would add or change any terms, agreements, covenants or



 


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conditions in any manner materially adverse to any Group Company or shorten the final
maturity or average life to maturity or require any payment to be made sooner than originally
scheduled or increase the interest rate applicable thereto or change any subordination provision
thereof. The Borrower will not amend, waive or modify (or permit the amendment, waiver or
modification of) any of the terms, agreements, covenants or conditions of the Vault Cash
Agreement if such amendment, waiver or modification would add or change any terms, agreements,
covenants or conditions in any manner materially adverse to the Borrower (it being understood and
agreed that a grant by Holdings of a subordinated guaranty of the Senior Subordinated Notes that
is subordinated to the Holdings’ guaranty of the Senior Obligations to the same extent as the
Senior Subordinated Notes are subordinated to the Senior Obligations shall not be deemed to be
adverse to the Borrower).




(b) Prohibition Against Certain Payments of Principal and Interest of Other
Indebtedness. Except as provided in subsection (c), none of the Group Companies will
(i) directly or indirectly, redeem, purchase, prepay, retire, defease or otherwise acquire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness (other than (A) the Senior Obligations and, (B) in the absence of any Default or
Event of Default, (x) Indebtedness permitted by Section 7.01(iii), (y) refinancings or
replacements of Capital Lease Obligations and Purchase Money Indebtedness permitted by
Section 7.01(iv) and (z) Indebtedness permitted by Section 7.01(viii)), or give
any notice of any intent to do any of the foregoing or set aside any funds for such purpose,
whether such redemption, purchase, prepayment, retirement or acquisition is made at the option of
the maker or at the option of the holder thereof, and whether or not any such redemption,
purchase, prepayment, retirement or acquisition is required under the terms and conditions
applicable to such Indebtedness, (ii) make any interest payment in respect of the Senior
Subordinated Notes or (iii) release, cancel, compromise or forgive in whole or in part any
Indebtedness evidenced by any Intercompany Note.




(c) Certain Allowed Payments in Respect of Senior Subordinated Indebtedness. The
Borrower may (i) make regularly scheduled interest payments as and when due in respect of the
Senior Subordinated Notes, and (ii) make open market repurchases of, or redeem, the Senior
Subordinated Notes so long as the Borrower shall have delivered to the Administrative Agent a
certificate that, upon giving effect on a Pro-Forma Basis to such repurchase or redemption, the
Borrower shall be in compliance with the financial covenants in Section 7.18, other than
any such payment, redemption or repurchase prohibited by the subordination provisions thereof.



Section 7.09 Transactions with Affiliates. None of the Group Companies will engage in
any transaction or series of transactions with (i) any officer, director, holder of any Equity
Interest in or other Affiliate of Holdings, (ii) any Affiliate of any such officer, director,
holder or Affiliate or (iii) any party in the Equity Investor Group or any officer, director,
holder of any Equity Interest in or other Affiliate of the Equity Investor Group, other than:




(i) transfers of assets to any Loan Party other than Holdings permitted by Section
7.05;


 


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(ii) transactions expressly permitted by Section 7.01, Section 7.04,
Section 7.06 or Section 7.07;




(iii) normal compensation and reimbursement of reasonable expenses of officers and
directors of the Borrower and its Restricted Subsidiaries;




(iv) other transactions with the Equity Investor Group and its Affiliates in existence
on the Closing Date to the extent disclosed in Schedule 7.09;




(v) any transaction entered into among the Borrower and its Wholly-Owned Domestic
Restricted Subsidiaries or among such Wholly-Owned Domestic Restricted Subsidiaries;




(vi) transactions undertaken pursuant to (x) any management, employment, consulting or
similar agreement or arrangement in existence on the Closing Date to the extent disclosed in
Schedule 7.09 and (y) any amendment, renewal, supplement or modification thereof
made after the Closing Date and consented to by the Administrative Agent (which consent
shall not be unreasonably withheld); and




(vii) so long as no Default or Event of Default has occurred and is continuing, other
transactions which are engaged in by the Borrower or any of its Restricted Subsidiaries in
the ordinary course of its business on terms and conditions as favorable to such Person as
would be obtainable by it in a comparable arms’-length transaction with an independent,
unrelated third party. Except as expressly permitted by this Section 7.09, none of
Holdings or any of its Restricted Subsidiaries will enter into any management, employment,
consulting or similar agreement or arrangement with, or otherwise pay any professional,
consulting, management or similar fees to or for the benefit of, the Equity Investor Group,
any members of their families, any Affiliates of the Equity Investor Group or such family
members, any director, officer or security holder of any of the foregoing, or any successor
or transferee of any of the foregoing.



Section 7.10 Fiscal Year; Accounting; Organizational and Other Documents. None of the
Group Companies will (i) change its fiscal year or its accounting policies or reporting practices,
(ii) consent to any amendment, modification or supplement of any of the provisions of the Senior
Subordinated Note Documents, the Senior Subordinated Notes or any other documents establishing and
setting forth the rights and terms of the Senior Subordinated Notes on the Closing Date or (iii)
enter into any amendment, modification or waiver that is materially adverse in any respect to the
Lenders to its articles or certificate of incorporation, bylaws (or analogous organizational
documents) or any agreement entered into by it with respect to its Equity Interests (including the
Stockholders Agreement), in each case as in effect on the Closing Date. The Borrower will cause
the Group Companies to promptly provide the Lenders with copies of all amendments to the foregoing
documents and instruments as in effect as of the Closing Date.



Section 7.11 Restrictions with Respect to Intercorporate Transfers. None of the Group
Companies will create or otherwise cause or permit to exist any encumbrance or restriction which
prohibits or otherwise restricts (i) the ability of any such Restricted Subsidiary



 


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to (A) make Restricted Payments or pay any Indebtedness owed to the Borrower or any Restricted
Subsidiary of the Borrower, (B) pay Indebtedness or other obligations owed to any Loan Party, (C)
make loans or advances to the Borrower or any Restricted Subsidiary of the Borrower, (D) transfer
any of its properties or assets to the Borrower or any Restricted Subsidiary of the Borrower or (E)
act as a Subsidiary Guarantor and pledge its assets pursuant to the Senior Finance Documents or any
renewals, refinancings, exchanges, refundings or extensions thereof or (ii) the ability of Holdings
or any Restricted Subsidiary of Holdings to create, incur, assume or permit to exist any Lien upon
its property or assets whether now owned or hereafter acquired to secure the Senior Obligations,
except in each case for prohibitions or restrictions existing under or by reason of:




(i) this Agreement, and the other Senior Finance Documents;




(ii) applicable Law;




(iii) restrictions in effect on the date of this Agreement contained in the Senior
Subordinated Note Indenture, as in effect on the date of this Agreement, and, if such
Indebtedness is renewed, extended or refinanced, restrictions in the agreements governing
the renewed, extended or refinancing Indebtedness (and successive renewals, extensions and
refinancings thereof) if such restrictions are no more restrictive than those contained in
the agreements governing the Indebtedness being renewed, extended or refinanced;




(iv) customary non-assignment provisions with respect to leases or licensing agreements
entered into by the Borrower or any of its Subsidiaries, in each case entered into in the
ordinary course of business and consistent with past practices;




(v) any restriction or encumbrance with respect to a Subsidiary of the Borrower imposed
pursuant to an agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement; and




(vi) Liens permitted under Section 7.02 and any documents or instruments
governing the terms of any Indebtedness or other obligations secured by any such Liens;
provided that such prohibitions or restrictions apply only to the assets subject to
such Liens.




Section 7.12 Ownership of Subsidiaries; Limitations on Holdings and the Borrower.




(a) Holdings and the Borrower will not (i) permit any Person or Persons (other than the
Borrower or any Wholly-Owned Restricted Subsidiary of the Borrower) to own, individually or in
the aggregate, 50% or more of the Equity Interests of any Restricted Subsidiary of the Borrower,
(ii) permit any Restricted Subsidiary of the Borrower to issue Equity Interests to any Person,
except (A) the Borrower or any Wholly-Owned Restricted Subsidiary of the Borrower or (B) to
qualify directors where required by applicable law or to satisfy other requirements of applicable
law with respect to the ownership of Equity Interests



 


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of Foreign Subsidiaries or (C) pro rata to its then existing equity holders or (iii) permit
the Borrower or any Restricted Subsidiary of the Borrower to issue any shares of Preferred Stock.




(b) Holdings will not (i) hold any assets other than the Equity Interests of the Borrower,
(ii) have any material liabilities other than (A) liabilities under the Senior Finance Documents
and the Senior Subordinated Note Documents (including any subordinated guaranty by Holdings of
the Senior Subordinated Notes that is subordinated to the Holdings’ guaranty of the Senior
Obligations to the same extent as the Senior Subordinated Notes are subordinated to the Senior
Obligations) and (B) tax liabilities in the ordinary course of business or (iii) engage in any
business or activity other than (A) owning the common Equity Interests of the Borrower (including
purchasing additional common Equity Interests after the Closing Date) and activities incidental
or related thereto or to the maintenance of the corporate existence of Holdings or compliance
with applicable law, (B) acting as a Guarantor under the Guaranty Agreement and pledging its
assets to the Collateral Agent, for the benefit of the Lenders, pursuant to the Collateral
Documents to which it is a party and (C) acting as a guarantor in respect of the Indebtedness
arising under the Senior Subordinated Note Indenture and the Senior Subordinated Notes.




(c) Holdings and the Borrower will not permit any Person other than Holdings to hold any
Equity Interests or Equity Equivalents of the Borrower.



Section 7.13 Sale and Leaseback Transactions. None of the Group Companies will
directly or indirectly become or remain liable as lessee or as guarantor or other surety with
respect to any lease (whether an Operating Lease or a Capital Lease) of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, (i) which such Group Company has sold
or transferred or is to sell or transfer to any other Person which is not a Group Company or (ii)
which such Group Company intends to use for substantially the same purpose as any other property
which has been sold or is to be sold or transferred by such Group Company to another Person which
is not a Group Company in connection with such lease; provided that the Group Companies may
enter into any such transactions to the extent the Capital Lease Obligations and Liens associated
therewith would be permitted by Section 7.01(iii) and Section 7.02(viii)(A),
respectively.




Section 7.14 Capital Expenditures.




(a) None of the Group Companies will make any Consolidated Capital Expenditures, except that
during any of the fiscal years set forth below, the Borrower and its Restricted Subsidiaries may
make Consolidated Capital Expenditures so long as the aggregate amount of such Consolidated
Capital Expenditures does not exceed the amount indicated opposite such period; provided
that the reference below to the 2006 fiscal year shall be to the year from the Closing Date to
the last day of such fiscal year:


 


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	Period	 	Amount	 
	2006
	 	$	10,000,000	 
	2007
	 	$	10,000,000	 
	2008
	 	$	12,000,000	 
	2009
	 	$	14,000,000	 
	2010
	 	$	16,000,000	 
	2011
	 	$	18,000,000	 






plus, an additional $10,000,000 in the aggregate which may, at the discretion of the
Borrower, be expended in any one or more fiscal years.




(b) Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may make
Consolidated Capital Expenditures (which Consolidated Capital Expenditures will not be included
in any determination under subsection (a) above) with the Net Cash Proceeds of Asset
Dispositions, to the extent such Net Cash Proceeds are not required to be applied to repay Loans
or cash collateralize Letter of Credit Liabilities pursuant to Section 2.09(b)(iii).




(c) The aggregate expenditures made by the Borrower and its Restricted Subsidiaries with
respect to Permitted Business Acquisitions during any fiscal year or period which expenditures
constitute Consolidated Capital Expenditures as defined herein shall for all purposes of this
Agreement be included in any determination of Consolidated Capital Expenditures under this
Section 7.14.



Section 7.15 Additional Negative Pledges. None of the Group Companies will enter
into, assume or become subject to any agreement prohibiting or otherwise restricting the creation
or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired,
or requiring the grant of any security for an obligation if security is given for some other
obligation, except (i) pursuant to this Agreement and the other Senior Finance Documents and the
Senior Subordinated Note Indenture and (ii) pursuant to any document or instrument governing
Indebtedness incurred pursuant to Section 7.01(iii) or (iv) if any such restriction
contained therein relates only to the asset or assets acquired in connection therewith.



Section 7.16 Impairment of Security Interests. None of the Group Companies will (i)
take or omit to take any action which action or omission might or would materially impair the
security interests in favor of the Collateral Agent with respect to the Collateral or (ii) grant to
any Person (other than the Collateral Agent pursuant to the Collateral Documents) any interest
whatsoever in the Collateral, except for Permitted Liens.



Section 7.17 Sales of Receivables. None of the Group Companies will sell with
recourse, discount or otherwise sell or dispose of its accounts or notes receivables.




Section 7.18 Financial Covenants.




(a) Total Leverage Ratio. As of the close of business on any day on and after
December 31, 2006, the Total Leverage Ratio at such date will not be greater than the ratio set
forth below opposite the period during which such date occurs:


 


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	Period	 	Ratio	 
	December 31, 2006 through March 31, 2007
	 	 	4.00 to 1.0	 
	June 30, 2007 through December 31, 2007
	 	 	3.75 to 1.0	 
	March 31, 2008 through June 30, 2008
	 	 	3.50 to 1.0	 
	September 30, 2008 through December 31, 2008
	 	 	3.25 to 1.0	 
	March 31, 2009 and thereafter
	 	 	3.00 to 1.0	 







(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio for any period of
four consecutive fiscal quarters of Holdings, in each case taken as a single accounting period,
ending on a date set forth below will not be less than the ratio set forth opposite such date:



	 	 	 	 	 
	Fiscal Quarter Ended	 	Ratio	 
	December 31, 2006 through December 31, 2007
	 	 	1.50 to 1.0	 
	March 31, 2008 and for each June 30, September 30,
December 31 and March 31 thereafter
	 	 	1.75 to 1.0	 






Section 7.19 Independence of Covenants. All covenants contained herein shall be given
independent effect so that if a particular action or condition is not permitted by any of such
covenants, the fact that such action or condition would be permitted by an exception to, or
otherwise be within the limitations of, another covenant shall not avoid the occurrence of a
Default if such action is taken or condition exists.



ARTICLE
VIII
DEFAULTS




Section 8.01 Events of Default. An Event of Default shall exist upon the occurrence
of any of the following specified events or conditions (each an “Event of Default”):




(a) Payment. Any Loan Party shall:




(i) default in the payment when due (whether by scheduled maturity, acceleration or
otherwise) of any principal of any of the Loans or of any L/C Disbursement; or




(ii) default, and such default shall continue for three or more Business Days, in the
payment when due of any interest on the Loans, or of any fees or other amounts owing
hereunder, under any of the other Senior Finance Documents or in connection herewith.




(b) Representations. Any representation, warranty or statement made or deemed to be
made by any Loan Party herein, in any of the other Senior Finance Documents, or in any statement
or certificate delivered or required to be delivered pursuant hereto or thereto shall prove
untrue in any material respect on the date as of which it was made or deemed to have been made.


 


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(c) Covenants. Any Loan Party shall:




(i) default in the due performance or observance of any term, covenant or agreement
contained in Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11, 6.12, 6.13 or Article VII;




(ii) default in the due performance or observance by it of any term, covenant or
agreement contained in Article VI (other than those referred to in subsection
(a), (b) or (c)(i) of this Section 8.01) and such default shall
continue unremedied for a period of five Business Days after the earlier of an executive
officer of a Loan Party becoming aware of such default or notice thereof given by the
Administrative Agent; or




(iii) default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in subsection (a), (b) or
(c)(i) or (ii) of this Section 8.01) contained in this Agreement and
such default shall continue unremedied for a period of 30 days after the earlier of an
executive officer of a Loan Party becoming aware of such default or notice thereof given by
the Administrative Agent.




(d) Other Finance Documents. (i) Any Loan Party shall default in the due
performance or observance of any term, covenant or agreement in any of the other Senior Finance
Documents and such default shall continue unremedied for a period of 30 days after the earlier of
an executive officer of a Loan Party becoming aware of such default or notice thereof given by
the Administrative Agent, (ii) except pursuant to the terms thereof, any Senior Finance Document
shall fail to be in full force and effect or any Loan Party shall so assert or (iii) except
pursuant to the terms thereof, any Senior Finance Document shall fail to give the Administrative
Agent, the Collateral Agent and/or the Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby.




(e) Cross-Default.




(i) any Group Company (A) fails to make payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), regardless of amount, in
respect of any Indebtedness or Guaranty Obligation (other than in respect of (x)
Indebtedness outstanding under the Senior Finance Documents and (y) Swap Agreements) having
an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition shall exist, under any
agreement or instrument relating to any such Indebtedness or Guaranty Obligation, if the
effect of such failure, event or condition is to cause, or to permit the holder or holders
or beneficiary or beneficiaries of such Indebtedness or Guaranty Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such
Indebtedness to be declared to be due and payable prior to its stated maturity, or such
Guaranty Obligation to become payable, or cash collateral in respect thereof to be demanded
or (C) shall be required by the terms of such Indebtedness or Guaranty Obligation to offer
to prepay or repurchase



 


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such Indebtedness or the primary Indebtedness underlying such Guaranty Obligation (or
any portion thereof) prior to the stated maturity thereof; or




(ii) there occurs under any Swap Agreement an Early Termination Date (as defined in
such Swap Agreement) resulting from (A) any event of default under such Swap Agreement as to
which any Group Company is the Defaulting Party (as defined in such Swap Agreement) or (B)
any Termination Event (as so defined) as to which any Group Company is an Affected Party (as
so defined), and, in either event, the Swap Termination Value owed by a Group Company as a
result thereof is greater than the Threshold Amount; or




(iii) (A) an “Automatic Event of Default” or a “Notice Event of Default” (each as
defined in the Vault Cash Agreement) or a similar event of default, as may be defined under
any successor Vault Cash Agreement (beyond any applicable grace period), shall occur under
the Vault Cash Agreement or (B) any Group Company fails to perform or observe any other
condition or covenant, or any other event shall occur or condition shall exist, under the
Vault Cash Agreement, if the effect of such failure, event or condition is to cause, or to
permit a Vault Cash Provider or any of its agents, to terminate the Vault Cash Agreement or
to retrieve cash from the ATMs.




(f) Insolvency Events. (i) Any Group Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to itself or
its debts under any Debtor Relief Law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize any of the
foregoing or (ii) an involuntary case or other proceeding shall be commenced against any Group
Company seeking liquidation, reorganization or other relief with respect to it or its debts under
any Debtor Relief Law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 60 days, or any order for relief shall be entered against any Group Company under the
federal bankruptcy laws as now or hereafter in effect.




(g) Judgments. (i) One or more judgments, orders, decrees or arbitration awards is
entered against any Group Company involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which the insurer does not dispute coverage),
as to any single or related series of transactions, incidents or conditions, in excess of the
Threshold Amount, and the same shall not have been discharged, vacated or stayed pending appeal
within 30 days after the entry thereof, or any Group Company shall enter into any agreement to
settle or compromise any pending or threatened litigation, as to any single or related series of
claims, involving payment by any Group Company in excess of the Threshold Amount, or (ii) any
non-monetary judgment, order or decree is entered against any Group Company which has or would
reasonably be expected to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect.


 


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(h) ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be
expected to result in liability of any Group Company or any ERISA Affiliate in an aggregate
amount in excess of the Threshold Amount, or (ii) there shall exist an amount of Unfunded
Liabilities, individually or in the aggregate, for all Plans (excluding for purposes of such
computation any Plans with respect to which assets exceed benefit liabilities), in an aggregate
amount in excess of the Threshold Amount.




(i) Guaranties. The Guaranty given by any Loan Party or any provision thereof
shall, except pursuant to the terms thereof, cease to be in full force and effect, or any
Guarantor thereunder or any Person acting by or on behalf of such guarantor shall deny or
disaffirm such Guarantor’s obligations under such Guaranty.




(j) Impairment of Collateral. Any security interest purported to be created by any
Collateral Document shall cease to be, or shall be asserted by any Group Company not to be, a
valid, perfected, first-priority (except as otherwise expressly provided in this Agreement or
such Collateral Document) security interest in the securities, assets or properties covered
thereby, other than in respect of assets and properties which, individually and in the aggregate,
are not material to the Group Companies taken as a whole or in respect of which the failure of
the security interests in respect thereof to be valid, perfected first priority (except as
otherwise expressly provided in this Agreement or such Collateral Document) security interests
will not in the reasonable judgment of the Administrative Agent or the Required Lenders have a
Material Adverse Effect on the rights and benefits of the Lenders under the Senior Finance
Documents taken as a whole;




(k) Ownership. A Change of Control shall occur.




(l) Subordinated Indebtedness. (i) Any Governmental Authority with applicable
jurisdiction determines that the Lenders are not holders of Senior Indebtedness (as defined in
the Senior Subordinated Note Indenture) or (ii) the subordination provisions creating any
Subordinated Indebtedness shall, in whole or in part, terminate, cease to be effective or cease
to be legally valid, binding and enforceable as to any holder of such Subordinated Indebtedness.




(m) Gaming Contract. Any of the following shall occur:



(i) any Gaming Contract is not in full force and effect;





(ii) any Loan Party shall have materially breached, on one or more occasions, its
obligations under any Gaming Contract; or




(iii) any Gaming Contract shall be amended in any manner that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect;



 


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and such Gaming Contract(s) individually or in the aggregate, represented 20% or more of
Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower and its
Consolidated Subsidiaries most recently then ended.




(n) Intellectual Property Licenses. Any of the Intellectual Property Licenses
ceases to be in full force and effect, is amended in any manner that is adverse to the Loan Party
which is a party thereto, or any party thereto is in breach of its obligations thereunder.




(o) Gaming Licenses. Any material Gaming License is revoked, suspended, expired
(without previous or concurrent renewal) or lost for more than 30 days other than as a result of
any Asset Disposition made in accordance with Section 7.05 or any voluntary
relinquishment that is, in the reasonable judgment of the Borrower, both desirable in the conduct
of the business of the Borrower and its Subsidiaries and not disadvantageous to the Lenders in
any material respect, and such revocation, suspension, expiration or loss could reasonably be
expected to have a Material Adverse Effect.



Section 8.02 Acceleration; Remedies. Upon the occurrence of an Event of Default, and
at any time thereafter unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required pursuant to Section 10.01), the
Administrative Agent (or the Collateral Agent, as applicable) shall, upon the request and direction
of the Required Lenders, by written notice to the Borrower, take any of the following actions
without prejudice to the rights of the Agents or any Lender to enforce its claims against the Loan
Parties except as otherwise specifically provided for herein:




(a) Termination of Commitments. Declare the Commitments terminated whereupon the
Commitments shall be immediately terminated.




(b) Acceleration of Loans. Declare the unpaid principal of and any accrued interest
in respect of all Loans, any reimbursement obligations arising from drawings under Letters of
Credit and any and all other indebtedness or obligations of any and every kind owing by a Loan
Party to any of the Lenders hereunder to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Loan Parties.




(c) Cash Collateral. Direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or, to the extent permitted by applicable law, upon the occurrence of an
Event of Default under Section 8.01(f), it will immediately pay) to the Collateral Agent
additional cash, to be held by the Collateral Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the L/C Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to 105% of the maximum
aggregate amount which may be drawn under all Letters of Credits then outstanding.




(d) Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Finance Documents, including, without limitation,
all rights and remedies existing under the Collateral Documents, all rights and remedies against a
Guarantor and all rights of set-off.



 


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Notwithstanding the foregoing, if an Event of Default specified in Section 8.01(f)
shall occur, then the Commitments shall automatically terminate and all Loans, all reimbursement
obligations under Letters of Credit, all accrued interest in respect thereof and all accrued and
unpaid fees and other indebtedness or obligations owing to the Lenders hereunder and under the
other Senior Finance Documents shall immediately become due and payable without the giving of any
notice or other action by the Administrative Agent or the Lenders, which notice or other action is
expressly waived by the Loan Parties.



Notwithstanding the fact that enforcement powers reside primarily with the Administrative
Agent, each Lender has, to the extent permitted by law, a separate right of payment and shall be
considered a separate “creditor” holding a separate “claim” within the meaning of Section 101(5) of
the Bankruptcy Code or any other insolvency statute.



In case any one or more of the covenants and/or agreements set forth in this Agreement or any
other Senior Finance Document shall have been breached by any Loan Party, then the Administrative
Agent may proceed to protect and enforce the Lenders’ rights either by suit in equity and/or by
action at law, including an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this Agreement or such other
Senior Finance Document. Without limitation of the foregoing, the Borrower agrees that failure to
comply with any of the covenants contained herein will cause irreparable harm and that specific
performance shall be available in the event of any breach thereof. The Administrative Agent acting
pursuant to this paragraph shall be indemnified by the Borrower against all liability, loss or
damage, together with all reasonable costs and expenses related thereto (including reasonable legal
and accounting fees and expenses) in accordance with Section 10.04(b).




Section 8.03 Allocation of Payments After Event of Default.




(a) Priority of Distributions. Each Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of its Senior Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an Event of Default and
agrees that, notwithstanding the provisions of Sections 2.06(b), after the occurrence and
during the continuance of an Event of Default, all amounts collected or received by the
Administrative Agent, the Collateral Agent or any Finance Party on account of amounts outstanding
under any of the Senior Finance Documents or any Swap Agreement or in respect of the Collateral
shall be paid over or delivered as follows:




FIRST, to pay interest on and then principal of any portion of the Revolving Credit
Loans that the Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the Borrower;




SECOND, to pay interest on and then principal of any Swing Line Loan;



 


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THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of the Administrative Agent or the Collateral Agent in
connection with enforcing the rights of the Finance Parties under the Finance Documents,
including all expenses of sale or other realization of or in respect of the Collateral,
including reasonable compensation to the agents and counsel for the Collateral Agent, and
all expenses, liabilities and advances incurred or made by the Collateral Agent in
connection therewith, and any other obligations owing to the Collateral Agent in respect of
sums advanced by the Collateral Agent to preserve the Collateral or to preserve its security
interest in the Collateral;




FOURTH, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of (i) each of the Lenders (including any L/C Issuer in its
capacity as such) in connection with enforcing its rights under the Senior Finance Documents
or otherwise with respect to the Senior Obligations owing to such Lender and (ii) each Swap
Creditor in connection with enforcing any of its rights under the Swap Agreements or
otherwise with respect to the Swap Obligations owing to such Swap Creditor;




FIFTH, to the payment of all of the Senior Obligations consisting of accrued fees and
interest;




SIXTH, except as set forth in clauses FIRST through FIFTH above, to the
payment of the outstanding Senior Obligations and Swap Obligations owing to any Finance
Party, pro-rata, as set forth below, with (i) an amount equal to the Senior Obligations
being paid to the Collateral Agent (in the case of Senior Obligations owing to the
Collateral Agent) or to the Administrative Agent (in the case of all other Senior
Obligations) for the account of the Lenders or any Agent, with the Collateral Agent, each
Lender and the Agents receiving an amount equal to its outstanding Senior Obligations, or,
if the proceeds are insufficient to pay in full all Senior Obligations, its Pro-Rata Share
of the amount remaining to be distributed, and (ii) an amount equal to the Swap Obligations
being paid to the trustee, paying agent or other similar representative (each a
“Representative”) for the Swap Creditors, with each Swap Creditor receiving an
amount equal to the outstanding Swap Obligations owed to it by the Loan Parties or, if the
proceeds are insufficient to pay in full all such Swap Obligations, its Pro-Rata Share of
the amount remaining to be distributed; and




SEVENTH, to the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus.



In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) each of the
Finance Parties shall receive an amount equal to its Pro-Rata Share of amounts available to be
applied pursuant to clauses “FOURTH”, “FIFTH” and “SIXTH” above; and (iii)
to the extent that any amounts available for distribution pursuant to clause “SIXTH” above
are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Collateral Agent in a cash collateral account and applied (x) first, to
reimburse the L/C Issuer from time to time for any drawings under such Letters of Credit and (y)



 


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then, following the expiration of all Letters of Credit, to all other obligations of the types
described in clause “SIXTH” above in the manner provided in this Section
8.03.




(b) Pro-Rata Treatment. For purposes of this Section 8.03, “Pro-Rata
Share” means, when calculating a Finance Party’s portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid
amount of such Finance Party’s Senior Obligations or Swap Obligations, as the case may be, and
the denominator of which is the then outstanding amount of all Senior Obligations or Swap
Obligations, as the case may be. When payments to the Finance Parties are based upon their
respective Pro-Rata Shares, the amounts received by such Finance Parties hereunder shall be
applied (for purposes of making determinations under this Section 8.03 only) (i) first,
to their Senior Obligations and (ii) second, to their Swap Obligations. If any payment to any
Finance Party of its Pro-Rata Share of any distribution would result in overpayment to such
Finance Party, such excess amount shall instead be distributed in respect of the unpaid Senior
Obligations or Swap Obligations, as the case may be, of the other Finance Parties, with each
Finance Party whose Senior Obligations or Swap Obligations, as the case may be, have not been
paid in full to receive an amount equal to such excess amount multiplied by a fraction the
numerator of which is the unpaid Senior Obligations or Swap Obligations, as the case may be, of
such Finance Party and the denominator of which is the unpaid Senior Obligations or Swap
Obligations, as the case may be, of all Finance Parties entitled to such distribution.




(c) Distributions with Respect to Letters of Credit. Each of the Finance Parties
agrees and acknowledges that if (after all outstanding Loans and all L/C Obligations with respect
to Letters of Credit have been paid in full) the Lenders are to receive a distribution on account
of undrawn amounts with respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement, such amounts shall be deposited in the L/C Cash Collateral Account as cash security
for the repayment of Senior Obligations owing to the Lenders as such. Upon termination of all
outstanding Letters of Credit, all of such cash security shall be applied to the remaining Senior
Obligations of the Lenders. If there remains any excess cash security, such excess cash shall be
withdrawn by the Collateral Agent from the L/C Cash Collateral Account and distributed in
accordance with Section 8.03(a) hereof.




(d) Reliance by Collateral Agent. For purposes of applying payments received in
accordance with this Section 8.03, the Collateral Agent shall be entitled to rely upon
(i) the Administrative Agent under the Credit Agreement and (ii) the Representative, if any, for
the Swap Creditors for a determination (which the Administrative Agent, each Representative for
any Swap Creditor and the Finance Parties agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Senior Obligations and Swap Obligations owed to the
Administrative Agent, the Lenders or the Swap Creditors, as the case may be. Unless it has
actual knowledge (including by way of written notice from a Swap Creditor or any Representatives
thereof) to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume
that no Swap Agreements are in existence.


 


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ARTICLE
IX
AGENCY PROVISIONS





Section 9.01 Appointment and Authority.




(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to
act on its behalf as the Administrative Agent hereunder and under the other Senior Finance
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 neither the Borrower nor any other Loan Party shall 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 Senior
Finance Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender, and
potential Swap Creditor, as the case may be) 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 Senior 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 Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent),
shall be entitled to the benefits of all provisions of this Article IX and Article
XI (including Section 10.04(c), as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Senior Finance Documents) as if set forth
in full herein with respect thereto.



Section 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.



Section 9.03 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Senior Finance
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
Senior Finance 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 Senior Finance 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 Senior Finance Document or applicable law; and




(c) shall not, except as expressly set forth herein and in the other Senior Finance
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 Senior Finance 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 Senior Finance Document or any other agreement, instrument
or document, or the creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral, or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.



Section 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



 


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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.



Section 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 Senior Finance
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.



Section 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, in consultation with
the Borrower, to appoint a successor, which shall be a Lender. 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 (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Senior Finance Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Senior Finance Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is appointed) and (b)
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 Senior
Finance 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 Senior Finance 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.


 


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Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Senior Finance Documents,
and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.



Section 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 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 Senior Finance Document or any related agreement or any document furnished
hereunder or thereunder.



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



Section 9.09 Administrative Agent May File Proofs of Claim. In case of the pendency
of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise




(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Senior 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






 


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(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if 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 Senior Obligations or the rights of any Lender
or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer or in any such proceeding.



Section 9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its discretion,




(a) to release any Lien on any property granted to or held by the Administrative Agent under
any Senior Finance Document (i) upon termination of the Commitments and payment in full of all
Senior 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 Senior Finance Document, or (iii) if
approved, authorized or ratified in writing in accordance with Section 10.01;




(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases
to be a Subsidiary as a result of a transaction permitted hereunder; and




(c) to subordinate any Lien on any property granted to or held by the Administrative Agent
under any Senior Finance Document to the holder of any Lien on such property that is permitted by
Section 7.01(i).



Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10. 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 Collateral Documents or
to subordinate its interest in such item, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Senior Finance Documents and this
Section 9.10.


 


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ARTICLE
X
MISCELLANEOUS








Section 10.01 Amendments, Etc.




(a) Amendments Generally. No amendment or waiver of any provision of this Agreement
or any other Senior Finance Document, and no consent to any departure by the Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders
and the Borrower or the applicable Loan Party, as the case may be, and 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 that (x) the
Administrative Agent and the Borrower may, with the consent of the other, amend, modify or
supplement this Agreement and any other Senior Finance Document to cure any ambiguity,
typographical error, defect or inconsistency if such amendment, modification or supplement does
not adversely affect the rights of any Lender or any L/C Issuer and (y) no such amendment, waiver
or consent shall:




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




(ii) 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;




(iii) postpone any date fixed by this Agreement or any other Senior Finance Document
for any payment (excluding mandatory prepayments) of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or reduction of the Commitments
hereunder or under any other Senior Finance Document without the written consent of each
Lender directly affected thereby;




(iv) forgive or reduce the principal of, or the rate of interest specified herein on,
any Loan or unreimbursed L/C Disbursement, or (subject to subsection (B) below) any
fees or other amounts payable hereunder or under any other Senior Finance Document, or
change the manner of computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Rate that would result in a
reduction of any interest rate on any Loan or any fee payable hereunder 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 at such Default
Rate;




(v) change the third sentence of Section 2.12, Section 2.13 or
Section 8.03 in a manner that would alter the pro rata distribution and sharing of
payments required thereby without the written consent of each Lender;




(vi) 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;





 


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(vii) release the Borrower or any other Loan Parties from its or their obligations
under the Senior Finance Documents, without the written consent of each Lender (provided
that the Administrative Agent may, without the consent of any other Lender, release any
Guarantor that is sold or transferred in compliance with Section 7.05);




(viii) release all or substantially all of the Collateral securing the Senior
Obligations hereunder, without the written consent of each Lender (provided that the
Collateral Agent may, without consent from any other Lender, release any Collateral that is
sold or transferred by a Loan Party in compliance with Section 7.05 or released in
compliance with Section 9.10);




(ix) effect any waiver of the conditions to funding any Revolving Credit Loan or to
issuing any Letter of Credit in each case after the Closing Date, without the prior written
consent of Lenders having in the aggregate at least a majority of the outstanding principal
amount of Revolving Credit Loans, L/C Obligations and unused Revolving Credit Commitments;




(x) (A) affect the rights or duties of the L/C Issuer under this Agreement or any
Letter of Credit Request relating to any Letter of Credit issued or to be issued by it,
without the prior written consent of the L/C Issuer; (B) affect the rights or duties of the
Swing Line Lender under this Agreement, without the prior written consent of the Swing Line
Lender; or (C) affect the rights or duties of the Administrative Agent under this Agreement
or any other Finance Document, without the prior written consent of the Administrative
Agent;




(xi) effect any amendment, modification or waiver of Section 10.07(h) 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




(xii) without the consent of the Required Revolving Lenders, waive any condition set
forth in Section 4.02, including as a result of any waiver of (or amendment having
the effect of curing or waiving) any Default or Event of Default.




(b) Defaulting Lenders. 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.




(c) Payment Blockage Notices. Notwithstanding the above, the right to deliver a
Payment Blockage Notice (as defined in the Senior Subordinated Note Indenture), shall reside
solely with the Administrative Agent, and the Administrative Agent shall deliver such Payment
Blockage Notice, only upon the direction of the Required Lenders.


 


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(d) Proceedings Under Debtor Relief Laws. Notwithstanding the fact that the consent
of all the Lenders is required in certain circumstances as set forth above, (i) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans or the Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein in
respect of any matter that is a component of a bankruptcy reorganization plan and (ii) the
Required Lenders may consent to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding.




Section 10.02 Notices; Effectiveness; Electronic Communications.




(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:




(i) if to Holdings, 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”



 


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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-RELATED PERSONS 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-RELATED PERSON IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent-Related
Persons have any liability to Holdings, the 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-Related Person; provided, however, that in no event shall any
Agent-Related Person have any liability to Holdings, 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 Holdings, the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number 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 Notices of Borrowing) 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



 


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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.



Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder 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.




Section 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 and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative 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 Finance 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) 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 Finance Documents, including its rights under this
Section, or (B) in connection with 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. The Borrower shall indemnify the
Administrative Agent (and any sub-agent 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, penalties, 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 or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Finance 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, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of this Agreement
and the other Senior Finance Documents, (ii) any Loan or Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by



 


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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 or any other Loan Party, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Senior Finance Document, if the Borrower or
such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.




(c) Reimbursement by Lenders. To the extent that 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 any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) 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 (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 Finance 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 to such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this Agreement or the
other Senior Finance Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.


 


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




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



Section 10.05 Defaulting Lenders. Each Lender understands and agrees that if such
Lender is a Defaulting Lender then, notwithstanding the provisions of Section 10.01, it
shall not be entitled to vote on any matter requiring the consent of the Required Lenders or to
object to any matter requiring the consent of all the Lenders adversely affected thereby;
provided, however, that all other benefits and obligations under the Senior Finance
Documents shall apply to such Defaulting Lender, except as provided in Section 2.03(e).



Section 10.06 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 set-off, and such payment
or the proceeds of such set-off 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 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 (i) 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 set-off had not occurred and (ii) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share 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 (ii) of the preceding sentence shall
survive the payment in full of the Senior Obligations and the termination of this Agreement.




Section 10.07 Successors and Assigns.




(a) 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 neither Holdings nor the Borrower may 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 assignee in accordance with the provisions of Section 10.07(b), (ii) by
way of participation in accordance with the provisions of Section 10.07(d), (iii) by way
of pledge or assignment of a security interest subject to the restrictions of Section
10.07(f), or (iv) to an SPC in accordance with the provisions of Section 10.07(h)
(and any other attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to



 


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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
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section
10.07(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section, 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); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis;




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:


 


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(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any (i) Term A Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii)
any Term A Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund; and




(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Revolving Credit Facility.




(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



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
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



 


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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 Section
10.05(d).




(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 the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.




(d) Participations. Any Lender may at any time, without the consent of, or notice
to, 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 Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the 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. 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 Section
10.05(b). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 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, 3.04 or 3.05 than the
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a
Lender 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.


 


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(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.




(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 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 Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant
to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as
is required under Section 2.12(c). 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 Senior Finance Document, remain the lender of record
hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 in the amount of $3,500 (which processing fee may be
waived by the Administrative Agent in its sole discretion), assign all or any portion of its
right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC.


 


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(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Revolving Credit Commitments and Revolving Credit Loans pursuant to Section
10.07(b), Bank of America may, (i) upon 45 days’ notice to the Borrower and the Lenders,
resign as L/C Issuer and/or (ii) upon 45 days’ notice to the Borrower, resign as Swing Line
Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights,
powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.05(e)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.01(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to such Letters of
Credit.



Section 10.08 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, 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 instructed to keep such Information
confidential), (b) to the extent requested by 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 Senior Finance Document or any action or
proceeding relating to this Agreement or any other Senior Finance 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 or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) 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.


 


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For purposes of this Section, “Information” means all information received from any
Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or 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 any Loan
Party or any Subsidiary thereof, provided that, in the case of information received from a
Loan Party or any such Subsidiary after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.



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.



Section 10.09 Set-off. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuance of an Event of Default, each Lender (and each of its Affiliates) is
authorized at any time and from time to time, without presentment, demand, protest or other notice
of any kind (all of such rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or specific) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies or Affiliates of such
Lender wherever located) to or for the credit or the account of any Loan Party against obligations
and liabilities of such Loan Party to the Lenders hereunder, under the Notes, under the other
Senior Finance Documents or otherwise, irrespective of whether the Administrative Agent or the
Lenders shall have made any demand hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured or denominated in a currency different from that of
the applicable deposit or indebtedness, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge is made or entered
on the books of such Lender subsequent thereto. The Loan Parties hereby agree that to the extent
permitted by law any Person purchasing a participation in the Loans, Commitments and L/C
Obligations hereunder pursuant to Section 2.01(c), 2.05(d), 2.13 or
10.07(d) may exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender hereunder and any such set-off shall reduce the amount owed
by such Loan Party to the Lender.



Section 10.10 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts that are treated as interest on such Loan under applicable law (collectively, the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
charged or contracted for, charged or otherwise received by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in respect of such



 


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Loan but were not payable as a result of the operation of this Section 10.10, shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such Lender shall have received
such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of
payment.



Section 10.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart. Delivery of an executed
counterpart by facsimile shall be effective as an original executed counterpart and shall be deemed
a representation that the original executed counterpart will be delivered.



Section 10.12 Integration. This Agreement, together with the other Finance Documents,
comprises the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event
of any conflict between the provisions of this Agreement and those of any other Senior Finance
Document, the provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other
Senior Finance Document shall not be deemed a conflict with this Agreement. Each Senior Finance
Document was drafted with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance with the fair meaning
thereof.



Section 10.13 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Senior Finance 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 or Event of 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 shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.



Section 10.14 Severability. If any provision of this Agreement or the other Senior
Finance Documents is held to be illegal, invalid or unenforceable, (i) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Senior Finance Documents
shall not be affected or impaired thereby and (ii) 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.



Section 10.15 No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby, the Borrower and Holdings each acknowledge and agree that:
(i) the credit facilities provided for hereunder and any related arranging or other



 


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services in connection therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Senior Finance Document) are an arm’s-length commercial
transaction between the Borrower, Holdings and their respective Affiliates, on the one hand, and
the Administrative Agent and the Lead Arrangers, on the other hand, and each of the Borrower and
Holdings is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated hereby and by the other Senior Finance Documents
(including any amendment, waiver or other modification hereof or thereof); (ii) in connection with
the process leading to such transaction, the Administrative Agent and each Lead Arranger is and has
been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the
Borrower, Holdings or any of their respective Affiliates, stockholders, creditors or employees or
any other Person; (iii) neither the Administrative Agent nor the Lead Arrangers have assumed or
will assume an advisory, agency or fiduciary responsibility in favor of the Borrower or Holdings
with respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Senior
Finance Document (irrespective of whether the Administrative Agent or any Lead Arranger has advised
or is currently advising the Borrower, Holdings or any of their respective Affiliates on other
matters) and neither the Administrative Agent nor any Lead Arranger has any obligation to the
Borrower, Holdings or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Senior
Finance Documents; (iv) the Administrative Agent and the Lead Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, Holdings and their respective Affiliates, and neither the Administrative
Agent nor any Lead Arranger has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the Lead Arrangers
have not provided and will not provide any legal, accounting, regulatory or tax advice with respect
to any of the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Senior Finance Document) and each of the Borrower and Holdings
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each of the Borrower and Holdings hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Administrative Agent and the Lead
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.



Section 10.16 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or construction of any
provision of this Agreement.




Section 10.17 Governing Law; Submission to Jurisdiction.




(a) THIS AGREEMENT AND THE OTHER FINANCE DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND OTHER
THAN AS EXPRESSLY SET FORTH IN SUCH OTHER SENIOR FINANCE DOCUMENTS) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS



 


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PRINCIPLES. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR
RULES ARE DESIGNATED, (i) THE RULES OF THE “INTERNATIONAL STANDBY PRACTICES 1998” PUBLISHED BY
THE INSTITUTE OF INTERNATIONAL BANKING LAW & PRACTICE (OR SUCH LATER VERSION THEREOF AS MAY BE IN
EFFECT AT THE TIME OF ISSUANCE) AND (ii) THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS
(1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (OR SUCH LATER VERSION
THEREOF AS MAY BE IN EFFECT AT THE TIME OF ISSUANCE) AND, AS TO MATTERS NOT GOVERNED BY SUCH
RULES REFERRED TO IN THE FOREGOING CLAUSES (i) AND (ii), THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.




(b) Any legal action or proceeding with respect to this Agreement or any other Senior
Finance Document may be brought in the courts of the State of New York in New York County, or of
the United States for the Southern District of New York, and, by execution and delivery of this
Agreement, each of Holdings and the Borrower hereby irrevocably accepts for itself and in respect
of its property, generally and unconditional, the nonexclusive jurisdiction of such courts. Each
of Holdings and the Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any such proceeding
brought in such court and any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.




(c) Each of Holdings and the Borrower hereby irrevocably appoints C.T. Corporation System
its authorized agent to accept and acknowledge service of any and all process which may be served
in any suit, action or proceeding of the nature referred to in this Section 10.17 and
consents to process being served in any such suit, action or proceeding upon C.T. Corporation
System in any manner or by the mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to Holdings’ or the Borrower’s address referred to in
Section 10.02, as the case may be. Each of Holdings and the Borrower agrees that such
service (i) shall be deemed in every respect effective service of process upon it in any such
suit, action or proceeding and (ii) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to it. Nothing in this Section
10.17 shall affect the right of any Lender to serve process in any manner permitted by law or
limit the right of any Lender to bring proceedings against Holdings or the Borrower in the courts
of any jurisdiction or jurisdictions.



Section 10.18 Waiver of Right to Trial by Jury. 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 SENIOR FINANCE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES



 


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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 SENIOR FINANCE DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.




Section 10.19 USA Patriot Act Notice; Lenders’ Compliance Certification.




(a) Notice to Borrower. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies Holdings and the Borrower that pursuant to the
requirements of the US Patriot Act it is required to obtain, verify and record information that
identifies each of Holdings and the Borrower, which information includes the name and address of
each Loan Party and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each such Loan Party in accordance with the Act.




(b) Lenders’ Certification. Each Lender or assignee or participant of a Lender that
is not incorporated under the Laws of the United States or a State thereof (and is not excepted
from the certification requirement contained in Section 313 of the U.S. Patriot Act and the
applicable regulations because it is both (i) an Affiliate of a depository institution or foreign
bank that maintains a physical presence in the United States or foreign country and (ii) subject
to supervision by a banking regulatory authority regulating such affiliated depository
institution or foreign bank) shall deliver to the Administrative Agent the certification or, if
applicable, recertification, certifying that such Lender is not a “shell” and certifying to other
matters as required by Section 313 of the U.S. Patriot Act and the applicable regulations
thereunder: (i) within 10 days after the Closing Date or, if later, the date such Lender,
assignee or participant of a Lender becomes a Lender, assignee or participant of a Lender
hereunder and (ii) at such other times as are required under the U.S. Patriot Act.



Section 10.20 Binding Effect. Subject to Section 4.03, this Agreement shall
be binding upon and inure to the benefit of Holdings, the Borrower, the Administrative Agent and
each Lender and their respective successors and assigns.



Section 10.21 Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of any other Senior Finance
Document, on the other hand, this Agreement shall control.



Section 10.22 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 is a Defaulting Lender or if any other circumstance exists hereunder that gives the
Borrower the right to replace a Lender as a party hereto, 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



 


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restrictions contained in, and consents required by, Section 10.07), all of its
interests, rights and obligations under this Agreement and the related Senior Finance 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 or have caused to be paid to the Administrative Agent the
assignment fee specified in Section 10.07(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 Senior Finance 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.



[Signature Pages Follow]



 


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



	 	 	 	 	 
	 	GLOBAL CASH ACCESS HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Harry C. Hagerty 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	Global Cash Access Holdings, Inc.

3525 East Post Road, Suite 120

Las Vegas, NV 89120

Attn: Chief Executive Officer

Telephone: (702) 855-3006

Fax: (702) 262-5039	 




	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Harry C. Hagerty 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	Global Cash Access, Inc.

3525 East Post Road, Suite 120

Las Vegas, NV 89120

Attn: Chief Executive Officer

Telephone: (702) 855-3006

Fax: (702) 262-5039	 




Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Bank of America, N.A.

TX1-492-14-11

901 Main Street, 14th Floor

Dallas, TX 75202-3714

Attn: Donna F. Kimbrough

Telephone: (214) 209-1569

Fax: (214) 290-9436

Email: donna.f.kimbrough@bankofamerica.com	 




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as L/C Issuer, Swing Line Lender and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Bank of America, N.A.

TX1-492-64-01

901 Main Street, 64th Floor

Dallas, TX 75202-3714

Attn: Justin Lien

Telephone: (214) 209-3363

Fax: (214) 209-0905

Email: justin.lien@bankofamerica.com	 




Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	LEHMAN COMMERCIAL PAPER INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	COMERICA WEST INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	CAPITAL ONE, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

Second Amended and Restated Credit Agreement




 


 









 







SCHEDULE 2.01




Revolving Credit Commitment




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Name	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	12,500,000	 	 	 	12.5	%
	Wachovia Bank, National Association
	 	$	12,500,000	 	 	 	12.5	%
	Deutsche Bank Trust Company Americas
	 	$	9,000,000	 	 	 	9.0	%
	JPMorgan Chase Bank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Lehman Commercial Paper Inc.
	 	$	9,000,000	 	 	 	9.0	%
	Citibank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Commerzbank AG, New York and Grand
Cayman Branches
	 	$	9,000,000	 	 	 	9.0	%
	Union Bank of California, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Wells Fargo Bank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Comerica West Incorporated
	 	$	9,000,000	 	 	 	9.0	%
	Capital One, N.A.
	 	$	3,000,000	 	 	 	3.0	%
	 
	 	 	 	 	 	 
	 
	 	$	100,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 






Term A Commitment




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Name	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	12,500,000	 	 	 	12.5	%
	Wachovia Bank, National Association
	 	$	12,500,000	 	 	 	12.5	%
	Deutsche Bank Trust Company Americas
	 	$	9,000,000	 	 	 	9.0	%
	JPMorgan Chase Bank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Lehman Commercial Paper Inc.
	 	$	9,000,000	 	 	 	9.0	%
	Citibank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Commerzbank AG, New York and Grand
Cayman Branches
	 	$	9,000,000	 	 	 	9.0	%
	Union Bank of California, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Wells Fargo Bank, N.A.
	 	$	9,000,000	 	 	 	9.0	%
	Comerica West Incorporated
	 	$	9,000,000	 	 	 	9.0	%
	Capital One, N.A.
	 	$	3,000,000	 	 	 	3.0	%
	 
	 	 	 	 	 	 
	 
	 	$	100,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 






Schedule 2.01 - 1




 


 









 







SCHEDULE 10.02




ADMINISTRATIVE
AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES








ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):

 

Jesse Phalen

Bank of America, N.A.

Mail Code: CA4-702-02-25

Building B

2001 Clayton Road, 2nd Floor

Concord, CA 94520-2405

Telephone: 925.675.8458

Fax: 888.969.9228

Email: jesse.c.phalen@bankofamerica.com




Other Notices as Administrative Agent:

Donna Kimbrough

Bank of America, N.A.

Mail Code: TX1-492-14-11

901 Main Street, 14th Floor

Dallas, TX 75202-3714

Telephone: 214.209.1569

Fax: 214.290.9436

Email: donna.f.kimbrough@bankofamerica.com




L/C ISSUER:




Sandra Leon

Bank of America, N.A.

Mail Code: CA9-705-07-05

1000 West Temple Street, 7th Floor

Los Angeles, CA 90012-1514

Telephone: 213.580.8369

Fax: 213.580.8440

Email: sandra.leon@bankofamerica.com



A-1

Form of Committed Loan Notice



 


 









 








SWING LINE LENDER:




Jesse Phalen

Bank of America, N.A.

Mail Code: CA4-702-02-25

Building B

2001 Clayton Road, 2nd Floor

Concord, CA 94520-2405

Telephone: 925.675.8458

Fax: 888.969.9228

Email: jesse.c.phalen@bankofamerica.com




A-1

Form of Committed Loan Notice




 


 









 







EXHIBIT A-1




FORM OF COMMITTED LOAN NOTICE




Date:                     ,      




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
November 1, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Global Cash Access Holdings, Inc., a Delaware corporation (“Holdings”),
Global Cash Access, Inc., a Delaware corporation (the “Borrower”), the banks and other
financial institutions from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.







	 	 	 	 	 
	 	 	The undersigned hereby requests (select one):


	 	 	 	 	 

	 ̈
	 	A Borrowing of [Term A/Revolving Credit] Loans

	 ̈
	 	A conversion or continuation of [Term A/Revolving Credit] Loans

	 	 	 	 	 

	 	1.	 	 	On                                          (a Business Day).

	 	 	 	 	 

	 	2.	 	 	In the amount of $                                        .

	 	 	 	 	 

	 	3.	 	 	Comprised of                                                                                                                         .

	 	 	 	 	                    [Type of Loan Requested]

	 	 	 	 	 

	 	4.	 	 	For Eurodollar Rate Loans: with an Interest Period of       months.







[The Revolving Credit Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01(b) of the Agreement.]



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



A-1

Form of Committed Loan Notice




 


 









 







EXHIBIT A-2




FORM OF SWING LINE LOAN NOTICE




Date:                 ,                





			
	To:	 	Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent







Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
November 1, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Global Cash Access Holdings, Inc., a Delaware corporation (“Holdings”),
Global Cash Access, Inc., a Delaware corporation (the “Borrower”), the banks and other
financial institutions from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.





	 	 	 	 	 
	 	 	 	 	The undersigned hereby requests a Swing Line Loan:

	 	 	 	 	 

	 	1.	 	 	On                                          (a Business Day).

	 	 	 	 	 

	 	2.	 	 	In the amount of $                    .







The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



A-2

Form of Swing Line Loan Notice




 


 









 







EXHIBIT B-1




FORM OF REVOLVING CREDIT NOTE



 



			
	$                    
	 	November 1, 2006







FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit
Loan from time to time made by the Lender to the Borrower under that certain Second Amended and
Restated Credit Agreement, dated as of November 1, 2006 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among the Borrower, Global Cash Access
Holdings, Inc., a Delaware corporation (“Holdings”), the banks and other financial
institutions from time to time party thereto and Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.



The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit
Loan from the date of such Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in immediately available
funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder,
such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the per annum rate set
forth in the Agreement.



This Revolving Credit Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. This Revolving Credit Note is also entitled to the benefits of the Guaranty and
is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note
shall become, or may be declared to be, immediately due and payable all as provided in the
Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Revolving Credit Note and endorse thereon the date, amount and
maturity of its Revolving Credit Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit
Note.



B-1-1

Form of Revolving Credit Note




 


 









 







THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



B-1-2

Form of Revolving Credit Note




 


 









 







LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	End of	 	 	Amount of
Principal
or
Interest	 	 	Outstanding
Principal	 	 	 	 
	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Paid This	 	 	Balance	 	 	Notation	 
	Date	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	Date	 	 	This Date	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






B-1-3

Form of Revolving Credit Note




 


 









 







EXHIBIT B-2




FORM OF TERM A NOTE




 



			
	$                    
	 	November 1, 2006






FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
                                        
or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Term A Loan from
time to time made by the Lender to the Borrower under that certain Second Amended and Restated
Credit Agreement, dated as of November 1, 2006 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), among the Borrower, Global Cash Access Holdings, Inc., a
Delaware corporation (“Holdings”), the banks and other financial institutions from time to
time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



The Borrower promises to pay interest on the unpaid principal amount of each Term A Loan from
the date of such Loan until such principal amount is paid in full, at such interest rates and at
such times as provided in the Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



This Term A Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Term A Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Term A Note shall become, or may be
declared to be, immediately due and payable all as provided in the Agreement. Term A Loans made by
the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this Term A Note and
endorse thereon the date, amount and maturity of its Term A Loans and payments with respect
thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Term A Note.



B-2-1

Form of Term A Note




 


 









 







THIS TERM A NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



B-2-2

Form of Term A Note





 


 










 




LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 






B-2-3

Form of Term A Note




 


 









 







EXHIBIT B-3




FORM OF SWING LINE NOTE




 



			
	$                    
	 	November 1, 2006






FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to Bank
of America, N.A. or registered assigns (the “Lender”), in accordance with the provisions of
the Agreement (as hereinafter defined), the principal amount of each Swing Line Loan from time to
time made by the Lender to the Borrower under that certain Second Amended and Restated Credit
Agreement, dated as of November 1, 2006 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms defined therein being
used herein as therein defined), among the Borrower, Global Cash Access Holdings, Inc., a Delaware
corporation (“Holdings”), the banks and other financial institutions from time to time
party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



The Borrower promises to pay interest on the unpaid principal amount of each Swing Line Loan
from the date of such Loan until such principal amount is paid in full, at such interest rates and
at such times as provided in the Agreement. All payments of principal and interest shall be made
to the Lender in Dollars in immediately available funds at the Lender’s Office. If any amount is
not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before as well as after
judgment) computed at the per annum rate set forth in the Agreement.



This Swing Line Note is one of the Notes referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. This Swing Line Note is also entitled to the benefits of the Guaranty and is
secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this Swing Line Note shall
become, or may be declared to be, immediately due and payable all as provided in the Agreement.
Swing Line Loans made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also attach schedules
to this Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans
and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Swing Line Note.



B-3-1

Form of Swing Line Note




 


 









 








THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK.



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



B-3-2

Form of Swing Line Note




 


 









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






B-3-3

Form of Swing Line Note




 


 









 







EXHIBIT C




ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1
Assignor identified in item 1 below ([the][each, an] “Assignor”) and
[the][each]2 Assignee identified in item 2 below ([the][each, an]
“Assignee”). [It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities) and (ii) to the extent permitted to be assigned under applicable law,
all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each
such sale and assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by [the][any]
Assignor.





 




			
	1	 	For bracketed language here and
elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is
from multiple Assignors, choose the second bracketed language.

	 
	2	 	For bracketed language here and
elsewhere in this form relating to the Assignee(s), if the assignment is to a
single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.

	 
	3	 	Select as appropriate.

	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.






C-1

Form of Assignment and Assumption



 


 









 





	 	 	 	 	 	 	 
	1.

	 	Assignor[s]:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	 	 	 	 	 	 
	3.	 	Borrower(s):	 	Global Cash Access, Inc.
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit
Agreement
	 
	 	 	 	 	 	 
	5.	 	Credit Agreement: Second Amended and Restated Credit Agreement, dated as of November 1, 2006
among Global Cash Access Holdings, Inc., a Delaware corporation (“Holdings”), Global Cash
Access, Inc., a Delaware corporation (the “Borrower”), the banks and other financial
institutions from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.
	 
	 	 	 	 	 	 
	6.	 	Assigned Interest[s]:5






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Commitment/	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Commitment/Loans	 	 	Loans	 	 	Commitment/	 	 	CUSIP	 
	Assignor[s]6	 	Assignee[s]7	 	 	Assigned	 	 	for all Lenders8	 	Assigned	 	 	Loans9	 	 	Number	 
	 
	 	 	 	 	 	Revolving Credit	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Term A	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 
	[7.

	 	Trade Date:                     ]10






Effective Date:                                         , 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]





 




			
	5	 	The reference to “Loans” in
the table should be used only if the Credit Agreement provides for Term Loans.

	 
	6	 	List each Assignor, as appropriate.

	 
	7	 	List each Assignee, as appropriate.

	 
	8	 	Amounts in this column and in the
column immediately to the right to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.

	 
	9	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.

	 
	10	 	To be completed if the Assignor and
the Assignee intend that the minimum assignment amount is to be determined as
of the Trade Date.






C-2

Form of Assignment and Assumption




 


 









 








The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



[Consented to and] Accepted:




BANK OF AMERICA, N.A.,

as Administrative Agent




By:                                                                                                     

Title:




[Consented to:]




BANK OF AMERICA, N.A.,

as Swing Line Lender and L/C Issuer




By:                                                                                                     

Title:




[Consented to:]




GLOBAL CASH ACCESS, INC.




By:                                                                                                     

Title:




C-3

Form of Assignment and Assumption




 


 









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




GLOBAL CASH ACCESS, INC.




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




1. Representations and Warranties.



1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents,
if any, as may be required under Section 10.07(b)(iii) of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and
without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not



C-4

Form of Assignment and Assumption




 


 









 







taking action under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are required to be performed
by it as a Lender.



2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the internal law of the State of New York.



C-5

Form of Assignment and Assumption



 


 









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
November 1, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Global Cash Access Holdings, Inc., a Delaware corporation (“Holdings”),
Global Cash Access, Inc., a Delaware corporation (the “Borrower”), the banks and other
financial institutions from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.



The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                         of the Borrower, and that, as such, he/she is authorized to execute and
deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]



1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]



1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during
such fiscal period the Borrower performed and observed all its Obligations under the Loan
Documents, and


D-1

Form of Compliance Certificate



 


 









 









[select one:]




[to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



-or-





[the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



4. The representations and warranties of the Borrower contained in Article V of the
Agreement, and any representations and warranties of any Loan Party that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in connection with
which this Compliance Certificate is delivered.



5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                     .



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



D-2

Form of Compliance Certificate




 


 









 







For the Quarter/Year ended _________________ (“Financial Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




I. SECTION 7.18(A) — TOTAL LEVERAGE RATIO




	 	 	 	 	 
	A. Consolidated Indebtedness at Financial Statement Date:
	 	$	 	 
	 
	 	 	 
	B. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date (“Reference Period”):
	 	$	 	 
	 
	 	 	 
	1. Consolidated Net Income per GAAP for Reference Period:
	 	$	 	 
	 
	 	 	 
	2. Unremitted income from Subsidiaries or other Persons
in which persons other than Holdings or Wholly-Owned
Subsidiary have ownership interests:
	 	$	 	 
	 
	 	 	 
	3. Income/Loss of acquired Subsidiaries prior to date of
acquisition:
	 	$	 	 
	 
	 	 	 
	4. Income of Subsidiaries subject to dividend blocks or
other restrictions:
	 	$	 	 
	 
	 	 	 
	5. Amount of Line B.1 attributable to extraordinary items
of gain or loss and any gain or loss attributable to
discontinued operations:
	 	$	 	 
	 
	 	 	 
	6. Consolidated Interest Expense for Reference Period:
	 	$	 	 
	 
	 	 	 
	7. Provision for income taxes for Reference Period:
	 	$	 	 
	 
	 	 	 
	8. Depreciation expense for Reference Period:
	 	$	 	 
	 
	 	 	 
	9. Amortization expense for Reference Period:
	 	$	 	 
	 
	 	 	 
	10. Goodwill impairment recognized during Reference
Period:
	 	$	 	 
	 
	 	 	 
	11. Income from Unrestricted Subsidiaries to the extent
received by the Borrower or a Wholly-Owned Restricted
Subsidiary during Reference Period:
	 	$	 	 
	 
	 	 	 
	12. Consolidated Interest Income during Reference Period:
	 	$	 	 
	 
	 	 	 
	13. Non-Cash Income or Gain for Reference Period:
	 	$	 	 
	 
	 	 	 
	14. Consolidated EBITDA (Lines B.1 - B.2 - B.3 - B.4
- B.5 + B.6 + B.7 + B.8 + B.9 + B.10 + B.11 - B.12 - B.13)
	 	 	 	 
	C. Total Leverage Ratio: Line A divided by Line B
	 	$	 	 
	 
	 	 	 






D-3

Form of Compliance Certificate




 


 









 





Maximum permitted:



	 	 	 	 	 
	Period	 	Ratio	 
	December 31, 2006 through March 31, 2007
	 	 	4.00 to 1.0	 
	June 30, 2007 through December 31, 2007
	 	 	3.75 to 1.0	 
	March 31, 2008 through June 30, 2008
	 	 	3.50 to 1.0	 
	September 30, 2008 through December 31, 2008
	 	 	3.25 to 1.0	 
	March 31, 2009 and thereafter
	 	 	3.00 to 1.0	 






II. SECTION 7.18(B) — FIXED CHARGE COVERAGE RATIO



	 	 	 	 	 
	A. Consolidated EBITDA for Reference Period (Line I.B.14
above):
	 	$	 	 
	 
	 	 	 
	B. Maintenance Capital Expenditures for Reference Period:
	 	$	 	 
	 
	 	 	 
	C. Borrower’s provisions for Federal, state, local and
foreign income, value added and similar taxes for Reference
Period:
	 	$	 	 
	 
	 	 	 
	D. Consolidated Interest Expense for Reference Period:
	 	$	 	 
	 
	 	 	 
	E. Consolidated Scheduled Debt Payments for Reference
Period:
	 	$	 	 
	 
	 	 	 
	F. Fixed Charge Coverage Ratio: ((Lines A-B-C) divided by
(Lines D+E)):
	 	 	 	 






Minimum required:




	 	 	 	 	 
	Fiscal Quarter Ended	 	Ratio	 
	December 31, 2006 through December 31, 2007
	 	 	1.50 to 1.0	 
	March 31, 2008 and for each June 30, September 30,
December 31 and March 31 thereafter
	 	 	1.75 to 1.0	 






III. SECTION 7.14 — CONSOLIDATED CAPITAL EXPENDITURES



	 	 	 	 	 
	A. Allowed Consolidated Capital Expenditures for
current fiscal year (from Table Below):
	 	$	 	 
	 
	 	 	 
	B. Consolidated Capital Expenditures made during
fiscal year to date:
	 	$	 	 
	 
	 	 	 
	C. Excess (deficit) for covenant compliance (Line
A-B):
	 	$	 	 
	 
	 	 	 






D-4

Form of Compliance Certificate


 


 









 





Maximum Permitted:




	 	 	 	 	 
	Period	 	Amount	 
	11/1/2006 - 12/31/2006
	 	$	10,000,000	 
	2007
	 	$	10,000,000	 
	2008
	 	$	12,000,000	 
	2009
	 	$	14,000,000	 
	2010
	 	$	16,000,000	 
	2011
	 	$	18,000,000	 






plus, an additional $10,000,000 in the aggregate which may, at the discretion of the
Borrower, be expended in any one or more fiscal years.



D-5

Form of Compliance Certificate



 


 









 





EXHIBIT E




FORM OF OPINION




E-1

Form of Opinion




 


 









 







EXHIBIT F




FORM OF GUARANTY




FIRST AMENDED AND RESTATED GUARANTY




Dated as of November 1, 2006




among




GLOBAL CASH ACCESS HOLDINGS, INC.,




THE GUARANTORS FROM TIME TO TIME PARTY HERETO




and




BANK OF AMERICA, N.A.,

as Administrative Agent






F-1

Form of Guaranty



 


 









 








FIRST AMENDED AND RESTATED GUARANTY




FIRST AMENDED AND RESTATED GUARANTY dated as of November 1, 2006 (as amended, restated,
modified or supplemented from time to time, this “Agreement”) among the Guarantors from
time to time party hereto and Bank of America, N.A., as Administrative Agent for the benefit of the
Finance Parties referred to herein.



Global Cash Access, Inc., a Delaware corporation, together with its respective successors and
permitted assigns, the “Borrower”), has entered into an Amended and Restated Credit
Agreement dated as of April 13, 2005 (as amended, the “Existing Credit Agreement”) among
Global Cash Access Holdings, Inc., a Delaware corporation (together with its successors and
permitted assigns, “Holdings”), the Borrower, the banks and other lending institutions from
time to time party thereto (each a “Lender” and, collectively, the “Lenders”), Bank
of America, N.A., as Administrative Agent (together with is successor or successors in such
capacity, the “Administrative Agent”), L/C Issuer and Swing Line Lender. The Guarantors
have entered into that certain Guaranty dated as of March 10, 2004 in favor of the Administrative
Agent for the benefit of the Finance Parties (the “Existing Guaranty”).



The Borrower, Holdings, the Lenders and the Administrative Agent have agreed to enter into a
Second Amended and Restated Credit Agreement dated of even date herewith (the “Credit
Agreement”), which agreement constitutes an amendment and restatement of the Existing Credit
Agreement.



The Swap Creditors may from time to time provide forward rate agreements, options, swaps,
caps, floors, other financial derivatives agreements and other combinations or hybrids of any of
the foregoing (collectively, “Swap Agreements”). The Lenders, each L/C Issuer, the Swing
Line Lender, the Administrative Agent, the Collateral Agent and each Swap Creditor and their
respective successors and assigns are herein referred to individually as a “Finance Party”
and collectively as the “Finance Parties”.



To induce the Lenders to enter into the Credit Agreement and the other Senior Finance
Documents referred to therein (collectively with the Credit Agreement, the “Senior Finance
Documents”) and the Swap Creditors to enter into the Swap Agreements (the Senior Finance
Documents and the Swap Agreements being herein referred to collectively as the “Finance
Documents” and each a “Finance Document”), and as a condition precedent to the Lenders’
and the Swap Creditors’ obligations thereunder, Holdings and each of the subsidiaries of the
Borrower listed on the signature pages hereof or which shall become parties hereto from time to
time in accordance with Section 5.11 hereof (each a “Subsidiary Guarantor” and,
collectively, the “Subsidiary Guarantors” and, together with Holdings, each a
“Guarantor” and, collectively, the “Guarantors”) have agreed, jointly and
severally, to provide a guaranty of all obligations of the Borrower and the other Loan Parties (as
hereinafter defined) under and in respect of the Finance Documents by amending and restating the
Existing Guaranty. The Borrower and the Guarantors are referred to herein individually as a
“Loan Party” and collectively as the “Loan Parties.” As used herein, “Other
Loan Parties” means, with respect to any Guarantor, any and all of the Loan Parties other than
such Guarantor.



F-2

Form of Guaranty



 


 









 








Each of the Guarantors is a Subsidiary or Affiliate of the Borrower and will receive not
insubstantial benefits from the Credit Agreement, the Swap Agreements and the Loans, Letters of
Credit and other financial accommodations to be made, issued or entered into thereunder.
Accordingly, the Guarantors hereby agree with the Administrative Agent for the benefit of the
Finance Parties that the Existing Guaranty shall be amended and restated as follows:



ARTICLE I

GUARANTY




Section 1.01 The Guaranty. Each Guarantor unconditionally guarantees, jointly with
the other Guarantors, and severally, as a primary obligor and not merely as a surety: (x) the due
and punctual payment of:




(A) all principal of, and premium, if any, and interest (including, without
limitation, any interest which accrues after the commencement of any proceeding
under any Debtor Relief Law with respect to any Loan Party, whether or not allowed
or allowable as a claim under any such proceeding) on any Loan or L/C Obligation
under, or any Note issued pursuant to, the Credit Agreement or any other Finance
Document;




(B) all fees, expenses, indemnification obligations and other amounts of
whatever nature now or hereafter payable by any Loan Party (including, without
limitation, any amounts which accrue after the commencement of any proceeding under
any Debtor Relief Law with respect to any Loan Party, whether or not allowed or
allowable as a claim under any Debtor Relief Law) pursuant to the Credit Agreement
or any other Finance Document;




(C) all expenses of the Agents as to which one or more of the Agents has a
right to reimbursement under Section 5.04(a) of this Agreement, Section
10.04 of the Credit Agreement or any other similar provision of any other
Finance Document, including, without limitation, any and all sums advanced by the
Collateral Agent to preserve any Collateral or to preserve its security interest in
any Collateral;




(D) all amounts paid by an lndemnitee as to which such lndemnitee has the right
to reimbursement under Section 5.04(b) of this Agreement, Section
10.04 of the Credit Agreement or under any other similar provision of any other
Finance Document;




(E) all obligations (including, without limitation, any amounts which accrue
after the commencement of any proceeding under any Debtor Relief Law) of any Loan
Party to one or more Swap Creditors in respect of any Swap Agreement, excluding any
amounts which such Loan Party is entitled to set off against its obligations under
applicable law; and




(F) all amounts now or hereinafter payable by Holdings or any other (Guarantor
and all obligations or liabilities now existing or hereafter arising or



F-3

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incurred (including, without limitation, any amounts which accrue after the
commencement of any proceeding under any Debtor Relief Law with respect to Holdings
or any other Loan Party, whether or not allowed or allowable as a claim under any
Debtor Relief Law) pursuant to this Agreement, as applicable, the Credit Agreement
or any other Finance Document;



together in each case with all renewals, modifications, consolidations as or extensions thereof,
and (y) the due and punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower and the Other Loan Parties under or pursuant to the Credit Agreement and the other
Finance Documents (all such monetary and other obligations being herein collectively referred to as
the “Guaranteed Obligations”).



Anything contained in this Agreement to the contrary notwithstanding, the obligations of each
Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount
that would not render such Subsidiary Guarantor’s obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 1l of the United States Code or any
provisions of applicable state law (collectively, the “Fraudulent Transfer Laws”), in each
case after giving effect to all other liabilities of such Subsidiary Guarantor, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Subsidiary Guarantor (i) in respect of intercompany indebtedness to the
Borrower or any of its Affiliates to the extent that such indebtedness (A) would be discharged or
would be subject to a right of set-off in an amount equal to the amount paid by such Subsidiary
Guarantor hereunder or (B) has been pledged to, and is enforceable by, the Collateral Agent on
behalf of the Finance Parties and (ii) under any Guaranty of Indebtedness subordinated in right of
payment to the Guaranteed Obligations which Guaranty contains a limitation as to a maximum amount
similar to that set forth in this paragraph pursuant to which the liability of such Subsidiary
Guarantor hereunder is included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets of such Subsidiary Guarantor to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Subsidiary Guarantor pursuant to
(i) applicable Law or (ii) any agreement providing for an equitable allocation among such
Subsidiary Guarantor and other Affiliates of the Borrower of obligations arising under Guaranties
by such parties (including the agreements in Article II of this Agreement). In the event
that any Subsidiary Guarantor’s liability hereunder is limited pursuant to this paragraph to an
amount that is less than the total amount of the Guaranteed Obligations, then it is understood and
agreed that the portion of the Guaranteed Obligations for which such Subsidiary Guarantor is liable
hereunder shall be the last portion of the Guaranteed Obligations to be repaid.



Section 1.02 Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Finance Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the Finance Parties with respect thereto. The obligations of the
Guarantors under this Agreement are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Agreement,
irrespective of whether any action is brought against the Borrower or any Other Loan Party or
whether the Borrower or any Other Loan Party is joined in any such action or



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actions. This Agreement is an absolute and unconditional guaranty of payment when due, and not
of collection, by each Guarantor, jointly and severally with any other Guarantor of the Guaranteed
Obligations in each and every particular. The obligations of each Guarantor hereunder are several
from those of the Other Loan Parties and are primary obligations concerning which each Guarantor is
the principal obligor. The Finance Parties shall not be required to mitigate damages or take any
action to reduce, collect or enforce the Guaranteed Obligations.



The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including the existence of any claim, set-off or other
right which any Guarantor may have at any time against any Other Loan Party, any Agent or other
Finance Party or any other Person, whether in connection herewith or any unrelated transactions,
except for the full and final payment and satisfaction of the Guaranteed Obligations in cash.
Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by any Other Loan
Party to any Finance Party under the Finance Documents but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Borrower or such Other Loan Party.



Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be released, discharged or otherwise affected or impaired by:




(i) any extension, renewal, settlement, compromise, acceleration, waiver or release in
respect of any obligation of the Borrower or any Other Loan Party under the Credit
Agreement, the Notes, any other Finance Document, any Swap Agreement or any other agreement
or instrument evidencing or securing any Guaranteed Obligation, by operation of law or
otherwise;




(ii) any change in the manner, place, time or terms of payment of any Guaranteed
Obligation or any other amendment, supplement or modification to the Credit Agreement, the
Notes, any other Senior Finance Document, any Swap Agreement or any other agreement or
instrument evidencing or securing any Guaranteed Obligation;




(iii) any release, non-perfection or invalidity of any direct or indirect security for
any Guaranteed Obligation, any sale, exchange, surrender, realization upon, offset against
or other action in respect of any direct or indirect security for any Guaranteed Obligation
or any release of any Other Loan Party or any other guarantor or guarantors of any
Guaranteed Obligation;




(iv) any change in the existence, structure or ownership of the Borrower or any Other
Loan Party or any insolvency, bankruptcy, reorganization, arrangement, readjustment,
composition, liquidation or other similar proceeding affecting the Borrower or any Other
Loan Party or its assets or any resulting disallowance, release or discharge of all or any
portion of any Guaranteed Obligation;




(v) the existence of any claim, set-off or other right which any Guarantor may have at
any time against the Borrower, any Other Loan Party, any Agent, any other



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Finance Party or any other Person, whether in connection herewith or any unrelated
transaction; provided that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;




(vi) any invalidity or unenforceability relating to or against the Borrower or any
Other Loan Party for any reason of the Credit Agreement, any Note, any other Finance
Document, any Swap Agreement or any other agreement or instrument evidencing or securing any
Guaranteed Obligation or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any Other Loan Party of any Guaranteed Obligation;




(vii) any failure by any Agent or any other Finance Party: (A) to file or enforce a
claim against any Other Loan Party or its estate (in a bankruptcy or other proceeding); (B)
to give notice of the existence, creation or incurrence by any Other Loan Party of any new
or additional indebtedness or obligation under or with respect to the Guaranteed
Obligations; (C) to commence any action against any Other Loan Party; (D) to disclose to any
Guarantor any facts which such Agent or such other Finance Party may now or hereafter know
with regard to any Other Loan Party; or (E) to proceed with due diligence in the collection,
protection or realization upon any collateral securing the Guaranteed Obligations;




(viii) any direction as to application of payment by the Borrower, any Other Loan Party
or any other Person;




(ix) any subordination by any Finance Party of the payment of any Guaranteed Obligation
to the payment of any other liability (whether matured or unmatured) of any Other Loan Party
to its creditors;




(x) any act or failure to act by the Administrative Agent or any other Finance Party
under this Agreement or otherwise which may deprive any Guarantor of any right to
subrogation, contribution or reimbursement against any Other Loan Party or any right to
recover full indemnity for any payments made by such Guarantor in respect of the Guaranteed
Obligations; or




(xi) any other act or omission to act or delay of any kind by the Borrower, any Other
Loan Party, the Administrative Agent or any Finance Party or any other Person or any other
circumstance whatsoever which might, but for the provisions of this clause, constitute a
legal or equitable discharge of any Guarantor’s obligations hereunder, except for the full
and final payment and satisfaction of the Guaranteed Obligations in cash.



Each Guarantor has irrevocably and unconditionally delivered this Agreement to the
Administrative Agent, for the benefit of the Finance Parties, and the failure by any Other Loan
Party or any other Person to sign this Agreement or a guaranty similar to this Agreement or
otherwise shall not discharge the obligations of any Guarantor hereunder. The irrevocable and
unconditional liability of each Guarantor hereunder applies whether it is jointly and severally
liable for the entire amount of the Guaranteed Obligations, or only for a pro-rata portion, and
without regard to any rights (or the impairment thereof) of subrogation, contribution or



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reimbursement that such Guarantor may now or hereafter have against any Other Loan Party or
any other Person. This Agreement is and shall remain fully enforceable against each Guarantor
irrespective of any defenses that any Other Loan Party may have or assert in respect of the
Guaranteed Obligations, including, without limitation, failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury.



Section 1.03 Payments.



(a) Payments to be Made Upon Default. If the Borrower or any Other Loan Party fails
to pay or perform any Guaranteed Obligation when due in accordance with its terms (whether at
stated maturity, by acceleration or otherwise) or if any Default or Event of Default specified in
Section 8.01(f) of the Credit Agreement occurs with respect to the Borrower, the Guarantors
shall, forthwith on demand of the Administrative Agent, pay the aggregate amount of all Guaranteed
Obligations to the Administrative Agent.



(b) General Provisions as to Payments. Each payment hereunder shall be made without
set-off, counterclaim or other deduction, in Federal or other funds immediately available in New
York City, to the Administrative Agent and to all Swap Creditors, as applicable, or to its or their
representatives, at the address(es) referred to in Section 5.01.



(c) Taxes.




(i) Payments Net of Certain Taxes. Any and all payments by any Guarantor to or
for the account of any Finance Party hereunder or under any other Senior Finance Document or
Swap Agreement shall be made without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges and withholdings and all liabilities with
respect thereto, excluding taxes imposed on or measured by the net income of, franchise or
similar taxes imposed on, any Finance Party by a jurisdiction under the laws of which such
Finance Party (or its Applicable Lending Office) is organized or licensed to do business or
in which its principal executive office is located (all such nonexcluded taxes, duties,
levies, imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as “Taxes”). if any Guarantor shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any other Senior Finance
Document or any Swap Agreement to any Finance Party, (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) such Finance Party receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such Guarantor
shall make such deductions, (iii) such Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law and (iv)
such Guarantor shall furnish to the Administrative Agent, for delivery to such Finance
Party, the original or a certified copy of a receipt evidencing payment thereof.




(ii) Other Taxes. In addition, the Guarantors, jointly and severally, agree to
pay any present or future stamp or documentary taxes and any other excise or property taxes,
or similar charges or levies, which arise from any payment made pursuant to this Agreement
or any other Finance Document or from the execution, delivery, registration
or enforcement of, or otherwise with respect to, this Agreement or any other Finance
Document (collectively, “Other Taxes”).


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Form of Guaranty



 


 









 







(iii) Indemnification. Each Guarantor, jointly and severally, agrees to
indemnify each Finance Party for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 1.03(c)), whether or not correctly or legally
asserted, paid by such Finance Party and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be paid
within 15 days after such Finance Party makes written demand therefor.




(d) Application of Payments.




(i) Priority of Distributions. All payments received by the Administrative
Agent hereunder shall be applied as provided in Section 8.03 of the Credit
Agreement.




(ii) Distributions with Respect to Letters of Credit. Each of the Guarantors
and the Finance Parties agrees and acknowledges that if (after all outstanding Loans and L/C
Obligations have been paid in full) the Lenders are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit Agreement, such
amounts shall be deposited in the L/C Cash Collateral Account as cash security for the
repayment of Guaranteed Obligations owing to the Lenders as such. Upon termination of all
outstanding Letters of Credit, all of such cash security shall be applied to the remaining
Guaranteed Obligations of the Lenders. If there remains any excess cash security, such
excess cash shall be withdrawn by the Collateral Agent from the L/C Cash Collateral Account
and distributed in accordance with Section 1.03(d)(i) hereof.



Section 1.04 Discharge; Reinstatement in Certain Circumstances. Each Guarantor’s
obligations hereunder shall remain in full force and effect until the Commitments have been
terminated and the principal of and interest on the Notes and all other amounts payable by the
Borrower and the Other Loan Parties under or with respect to the Guaranteed Obligations have been
irrevocably paid in full in cash. No payment or payments made by the Borrower, any Other Loan
Party or any other Person or received or collected by any Finance Party from the Borrower, any
Other Loan Party or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or in payment of the
Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability
of any Guarantor hereunder, it being understood that each Guarantor shall, notwithstanding any such
payment or payments, remain liable for all outstanding Guaranteed Obligations until such Guaranteed
Obligations are irrevocably paid in full in cash. If at any time any payment by the Borrower, any
Other Loan Party or any other Person of any Guaranteed Obligation is rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or such Other Loan Party or other Person or upon or as a result of the appointment of
a receiver, intervener or conservator of, or trustee or similar officer for, the Borrower or such
Other Loan Party or other Person or any substantial part of its respective property or otherwise,
each Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time. Each Guarantor agrees that payment or



F-8

Form of Guaranty



 


 









 








performance of any of the Guaranteed Obligations or other acts which toll any statute of
limitations applicable to the Guaranteed Obligations shall also toll the statute of limitations
applicable to each Guarantor’s liability hereunder.



Section 1.05 Waiver by the Guarantors. Each Guarantor hereby waives presentment to,
demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations,
and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with
respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent
or any other Finance Party protect, secure, perfect or insure any Lien or any property subject
thereto. Each Guarantor further waives any right to require that resort be had by any Agent or any
other Finance Party to any security held for payment of the Guaranteed Obligations or to any
balance of any deposit, account or credit on the books of the any Agent or any other Finance Party
in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each
of the following to the fullest extent permitted by law, and agrees that such Guarantor’s
obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely
affected by any of the following, and waives any rights (including rights to notice) which such
Guarantor might otherwise have as a result of or in connection with any of the following:




(i) any renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument executed in
connection therewith, or any contract or understanding with any Other Loan Party, any Agent,
the other Finance Parties, or any of them, or any other Person, pertaining to the Guaranteed
Obligations;




(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by any Agent or any other Finance Party to any Other Loan Party or any other Person
liable on the Guaranteed Obligations; or the failure of any Agent or any other Finance Party
to assert any claim or demand or to exercise any right or remedy against any Other Loan
Party under the provisions of any Finance Document or otherwise; or any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions of, any
Finance Document or any other agreement, including with respect to any Other Loan Party
under this Agreement;




(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of any Other Loan Party or any other Person at any
time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution
of any Other Loan Party, or any change, restructuring or termination of the corporate
structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all
of the assets of any Other Loan Party, or any change in the shareholders, partners, or
members of any Other Loan Party; or any default, failure or delay, willful or otherwise, in
the performance of the Guaranteed Obligations;




(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed
Obligations, or any part thereof, exceed the amount permitted by law, the act



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Form of Guaranty



 


 









 









of creating the Guaranteed Obligations or any part thereof is ultra
vires, the officers or representatives executing the documents or otherwise creating
the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations
violate applicable usury laws, any Other Loan Party has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly
or partially uncollectible from such Other Loan Party, the creation, performance or
repayment of the Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations or executed in
connection with the Guaranteed Obligations or given to secure the repayment of the
Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or
the documents or instruments pertaining to the Guaranteed Obligations have been forged or
otherwise are irregular or not genuine or authentic;




(v) any full or partial release of the liability of any Other Loan Party or of any
other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed
Obligations or any part thereof, it being recognized, acknowledged and agreed by each
Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full
without assistance or support of any other Person, and such Guarantor has not been induced
to enter into this Agreement on the basis of a contemplation, belief, understanding or
agreement that any party other than the Borrower will be liable to perform the Guaranteed
Obligations, or that the Finance Parties will look to any other party to perform the
Guaranteed Obligations;




(vi) the taking or accepting of any other security, collateral or guarantee, or other
assurance of payment, for all or any part of the Guaranteed Obligations;




(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any
Letter of Credit, collateral, property or security, at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed Obligations;




(viii) any right that any Guarantor may now or hereafter have under Section 3-606 of
the UCC or otherwise to unimpaired collateral;




(ix) the failure of any Agent, any other Finance Party or any other Person to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or security;




(x) the fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the Guaranteed
Obligations shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and agreed by
each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility or value of
any of the Collateral;



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(xi) any payment by any Other Loan Party to the Administrative Agent, any other Agent
or any other Finance Party being held to constitute a preference under Title 11 of the
United States Code or any similar Federal, or foreign state law, or for any reason any Agent
or any other Finance Party being required to refund such payment or pay such amount to any
Other Loan Party or someone else;




(xii) any other action taken or omitted to be taken with respect to the Guaranteed
Obligations, or the security and collateral therefor, whether or not such action or omission
prejudices any Guarantor or increases the likelihood that any Guarantor will be required to
pay the guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and
unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the
Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action
or omission whatsoever, whether or not contemplated, and whether or not otherwise or
particularly described herein, except for the full and final payment and satisfaction of the
Guaranteed Obligations in cash;




(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by
operation of law, including by way of a discharge, limitation or tolling thereof under
applicable Debtor Relief Laws;




(xiv) the existence of any claim, set-off or other right which any Guarantor may have
at any time against any Other Loan Party, the Administrative Agent, any other Finance Party
or any other Person, whether in connection herewith or any unrelated transactions:
provided that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim; or




(xv) any other circumstance that might in any manner or to any extent otherwise
constitute a defense available to, vary the risk of, or operate as a discharge of, such
Guarantor as a matter of law or equity.



All waivers herein contained shall be without prejudice to the right of the Administrative Agent at
its option to proceed against any Loan Party or any other Person, whether by separate action or by
joinder,



Section 1.06 Security for Guaranty. Each of the Guarantors authorizes the Collateral
Agent, in accordance with the terms and subject to the conditions set forth in the Collateral
Documents and applicable Law, to (i) take and hold security for the payment of this Agreement and
the Guaranteed Obligations and to exchange, enforce, waive and release any such security, (ii)
apply such security and direct the order or manner of sale thereof as the Collateral Agent in its
sole discretion may determine and (iii) release or substitute any one or more endorsees, other
guarantors or other obligors. The Collateral Agent may, at its election, in accordance with the
terms and subject to the conditions set forth in the Collateral Documents and applicable Law,
foreclose on any security held by it by one or more judicial or nonjudicial sales, or exercise any
other right or remedy available to it against any Loan Party, or any security, without affecting or
impairing in any way the liability of any of the Guarantors hereunder, except to the extent the
Guaranteed Obligations have been indefeasibly paid in full in cash.



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Section 1.07 Agreement to Pay; Subordination of Subrogation Claims. In furtherance of
the foregoing and not in limitation of any other right that the Administrative Agent, any other
Agent or any other Finance Party has at law or in equity against any Guarantor by virtue hereof,
upon the failure of any Other Loan Party to pay any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise,
each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent or such other Finance Party as designated thereby in cash the amount of such
unpaid Guaranteed Obligations. Upon payment by any Guarantor of any sums to the Administrative
Agent or any Finance Party as provided above, all rights of such Guarantor against any Other Loan
Party arising as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall (including, without limitation, in the case of any Subsidiary
Guarantor, any rights of such Guarantor arising under Article II of this Agreement) in all
respects be subordinate and junior in right of payment to the prior indefeasible payment in full in
cash of all the Guaranteed Obligations. No failure on the part of any Other Loan Party or any other
Person to make any payments in respect of any subrogation, contribution, reimbursement, indemnity
or similar right (or any other payments required under applicable law or otherwise) shall in any
respect limit the obligations and liabilities of any Subsidiary Guarantor with respect to its
obligations hereunder. If any amount shall erroneously be paid to any Guarantor on account of such
subrogation, contribution, reimbursement, indemnity or similar right, such amount shall be held in
trust for the benefit of the Finance Parties and shall forthwith be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly endorsed by such Guarantor
to the Administrative Agent, if required) to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the Credit Documents.



Section 1.08 Stay of Acceleration. If acceleration of the time for payment of any
amount payable by the Borrower under or with respect to the Guaranteed Obligations is stayed upon
the insolvency or bankruptcy of the Borrower, all such amounts otherwise subject to acceleration
under the terms of the Credit Agreement, the Notes, any Swap Agreement or any other agreement or
instrument evidencing or securing the Guaranteed Obligations shall nonetheless be payable by the
Guarantors hereunder, jointly and severally, forthwith on demand by the Administrative Agent, the
holders of at least 51% of the Swap Obligations or any other Finance Party, as applicable, in the
manner provided in Section 1.01.



Section 1.09 No Set-Off. No act or omission of any kind or at any time on the part of
any Finance Party in respect of any matter whatsoever shall in any way affect or impair the rights
of the Administrative Agent or any other Finance Party to enforce any right, power or benefit under
this Agreement, and no set-off, claim, reduction or diminution of any Guaranteed Obligation or any
defense of any kind or nature which any Guarantor has or may have against the Borrower or any
Finance Party shall be available against the Administrative Agent or any other Finance Party in any
suit or action brought by the Administrative Agent or any other Finance Party to enforce any right,
power or benefit provided for by this Agreement; provided that nothing herein shall prevent
the assertion by any Guarantor of any such claim by separate suit or compulsory counterclaim.
Nothing in this Agreement shall be construed as a waiver by any Guarantor of any rights or claims
which it may have against any Finance Party hereunder or otherwise, but any recovery upon such
rights and claims shall be had from such Finance Party separately, it being the intent of this
Agreement that each Guarantor shall be unconditionally,
absolutely and jointly and severally obligated to perform fully all its obligations, covenants
and agreements hereunder for the benefit of each finance Party.


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ARTICLE II

INDEMNIFICATION, SUBROGATION AND CONTRIBUTION




Section 2.01 Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Subsidiary Guarantors may have under applicable law (but subject to
Section 1.07 above), the Borrower agrees that (i) in the event a payment shall be made by
any Subsidiary Guarantor under this Agreement, the Borrower shall indemnify such Subsidiary
Guarantor for the full amount of such payment and such Subsidiary Guarantor shall be subrogated to
the rights of the person to whom such payment shall have been made to the extent of such payment
and (ii) in the event any assets of any Subsidiary Guarantor shall be sold pursuant to any
Collateral Document to satisfy a claim of any Finance Party, the Borrower shall indemnify such
Subsidiary Guarantor in an amount equal to the greater of the book value or the fair market value
of the assets so sold.



Section 2.02 Contribution and Subrogation. Each Subsidiary Guarantor (a
“Contributing Guarantor”) agrees (subject to Section 1.07 above) that, in the event
a payment shall be made by any other Subsidiary Guarantor under this Agreement or assets of any
other Subsidiary Guarantor shall be sold pursuant to any Collateral Document to satisfy a claim of
any finance Party and such other Subsidiary Guarantor (the “Claiming Guarantor”) shall not
have been fully indemnified by the Borrower as provided in Section 2.01, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment
or the greater of the book value or the fair market value of such assets, as the case may be, in
each case multiplied by a fraction the numerator of which shall be the net worth of the
Contributing Guarantor on the date that the obligation(s) supporting such claim were incurred under
this Agreement and the denominator of which shall be the aggregate net worth of all the Subsidiary
Guarantors on such date (or, in the case of any Subsidiary Guarantor becoming a party hereto
pursuant to Section 5.11, the date of the Accession Agreement executed and delivered by
such Subsidiary Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor
pursuant to this Section 2.02 shall be subrogated to the rights of such Claiming Guarantor
under Section 2.01 to the extent of such payment.



ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS




Section 3.01 Representations and Warranties; Certain Agreements. Each Guarantor
hereby represents, warrants and covenants as follows:



(a) All representations and warranties contained in the Credit Agreement that relate to such
Guarantor are true and correct.



(b) Such Guarantor agrees to comply with each of the covenants contained in the Credit
Agreement that imposes or purports to impose, through agreements with the Borrower, restrictions or
obligations on such Guarantor.



F-13

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(c) Such Guarantor acknowledges that any default in the due observance or performance by such
Guarantor of any covenant, condition or agreement contained herein may constitute an Event of
Default under Section 8.01 of the Credit Agreement, subject to and in accordance with the
terms thereof.



(d) There are no conditions precedent to the effectiveness of this Agreement that have not
been satisfied or waived.



(e) Such Guarantor has, independently and without reliance upon the Administrative Agent or
any other Finance Party and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Such Guarantor has
investigated fully the benefits and advantages which will be derived by it from execution of this
Agreement, and the Board of Directors (or persons performing similar functions in case of a
Guarantor which is not a corporation) of such Guarantor has decided that a direct or an indirect
benefit will accrue to such Guarantor by reason of the execution of this Agreement.



(f) (i) This Agreement is not given with actual intent to hinder, delay or defraud any Person
to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such
Guarantor has received at least a reasonably equivalent value in exchange for the giving of this
Agreement; (iii) such Guarantor is not insolvent on the date hereof and will not become insolvent
as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or
transaction, nor is it about to engage in a business or transaction, for which any property
remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such
Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as
such debts mature.



Section 3.02 Information. Each of the Guarantors assumes all responsibility for being
and keeping itself informed of the financial condition and assets of the Other Loan Parties, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees
that none of the Administrative Agent, any other Agent or the other Finance Parties will have any
duty to advise any of the Guarantors of information known to it or any of them regarding such
circumstances or risks.



Section 3.03 Subordination by Guarantors. In addition to the terms of subordination
provided for under Section 1.07, each Guarantor hereby subordinates in right of payment all
indebtedness of the Other Loan Parties owing to it, whether originally contracted with such
Guarantor or acquired by such Guarantor by assignment, transfer or otherwise, whether now owed or
hereafter arising, whether for principal, interest, fees, expenses or otherwise, together with all
renewals, extensions, increases or rearrangements thereof, to the prior indefeasible payment in
full in cash of the Guaranteed Obligations, whether now owed or hereafter arising, whether for
principal, interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), fees, expenses or otherwise, together with all renewals, extensions, increases or
rearrangements thereof.



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ARTICLE IV

SET-OFF




Section 4.01 Right of Set-Off. Upon the occurrence of any Event of Default under the
Credit Agreement, each Finance Party is hereby irrevocably authorized at any time and from time to
time without notice to any Guarantor, any such notice being expressly waived by each Guarantor, to
set off and appropriate and apply any and all deposits (general or special, time or demand,
provisional or final) in any currency and any other credits, indebtedness or claims, in each case
whether direct, indirect, contingent, matured or unmatured, at any time held or owing by such
Finance Party to or for the credit or account of any Guarantor, or any part thereof in such amounts
as such Finance Party may elect, against and on account of the obligations of such Guarantor to the
Finance Parties hereunder and claims of every nature and description of any Finance Party against
any Guarantor, whether arising hereunder or otherwise, as any Finance Party may elect, whether or
not such Finance Party has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured. The rights of the Finance Parties under this Article
IV are in addition to other rights and remedies (including, without limitation, other rights of
set off) which any Finance Party may have. Each Guarantor agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a Loan, a Note or the
L/C Obligations, whether or not acquired pursuant to the arrangements provided for in Section
10.07 of the Credit Agreement, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation were a direct
creditor of such Guarantor in the amount of such participation.



ARTICLE V

MISCELLANEOUS




Section 5.01 Notices. Unless otherwise specified herein, all notices, requests and
other communications to a party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party: (i) in the case of any Guarantor, at its
address or facsimile number set forth on the signature pages hereof; (ii) in the case of the
Borrower, the Administrative Agent or any Lender, at its address or facsimile number specified in
or pursuant to Section 10.02 of the Credit Agreement; (iii) in the case of the Collateral
Agent, at its address or facsimile number specified in or pursuant to Section 7.01 of the
Security Agreement; (iv) in the case of any Swap Creditor at its address or facsimile number set
forth in any applicable Swap Agreement; or (v) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the purpose of communications hereunder by
notice to the Administrative Agent and each other party hereto. Each such notice, request or other
communication shall be effective: (i) if given by facsimile transmission, when transmitted to the
facsimile number referred to in this Section and confirmation of receipt is received; (ii) if given
by mail, 96 hours after such communication is deposited in the mails, certified mail, return
receipt requested, with appropriate first class postage prepaid, addressed as specified in this
Section; or (iii) if given by any other means, when delivered at the address referred to in this
Section 5.01. Rejection or refusal to accept, or the inability to deliver because of a
changed address of which no notice was given, shall not affect the validity of notice given in
accordance with this Section.



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Section 5.02 Benefit of Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of the parties hereto;
provided that none of the Guarantors may assign or transfer any of its interests and
obligations without prior written consent of the requisite Lenders in accordance with Section
10.01 of the Credit Agreement (and any such purported assignment or transfer without such
consent shall be void); provided further that the rights of each Lender to
transfer, assign or grant participations in its rights and/or obligations hereunder shall be
limited as set forth in Section 10.07 of the Credit Agreement. Upon the assignment by any
Lender or other Finance Party of all or any portion of its rights and obligations under the Credit
Agreement (including all or any portion of its Commitments and the Loans owing to it) or any other
Finance Document to any other Person, such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such transferor or assignor herein or otherwise.



Section 5.03 No Waivers; Non-Exclusive Remedies. No failure or delay on the part of
any Agent or any Finance Party to exercise, no course of dealing with respect to, and no delay in
exercising any right, power or privilege under this Agreement or any other Finance Document, Swap
Agreement or other document or agreement contemplated hereby or thereby shall operate as a waiver
thereof nor shall any single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided herein and in the other Finance Documents are cumulative and are not
exclusive of any other rights or remedies provided by law.




Section 5.04 Expenses; Indemnification.



(a) Expenses. The Guarantors, jointly and severally, agree to pay (i) all
out-of-pocket expenses of the Administrative Agent, including Attorney Costs of the Administrative
Agent, in connection with the preparation and administration of this Agreement or any other
document or agreement contemplated hereby, any waiver or consent hereunder or any amendment hereof
and (ii) all out-of-pocket expenses incurred by the Agents, any representative and each Finance
Party in collecting any or all of the Guaranteed Obligations and/or enforcing any rights under this
Agreement or under any other agreement or instrument evidencing or securing the Guaranteed
Obligations.



(b) Indemnification. The Guarantors, jointly and severally, agree to indemnify the
Agents, the Representatives (as defined in the Credit Agreement) and each other Finance Party,
their respective Affiliates and the respective directors, officers, trustees, agents and employees
of the foregoing (each an “lndemnitee”) and hold each Indemnitee harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs
and expenses or disbursements of any kind whatsoever, including, without limitation, the reasonable
fees and disbursements of counsel, which may at any time (including, without limitation, at any
time following the payment of the Guaranteed Obligations) be imposed on, incurred by or asserted
against such lndemnitee in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement or in any other way connected with the enforcement of any of
the terms hereof or the preservation of any rights hereunder; provided that no Indemnitee
shall have the right to be indemnified hereunder for such



F-16

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Indemnitee’s own gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment or order.



(c) Contribution. If and to the extent that the obligations of any Subsidiary
Guarantor under this Section 5.04 are unenforceable for any reason, each other Subsidiary
Guarantor, jointly and severally, hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations as is permissible under applicable law.



(d) Obligation; Survival. Any amounts paid by any Indemnitee as to which such
Indemnitee has a right to reimbursement hereunder shall constitute Guaranteed Obligations. The
indemnity obligations of the Guarantors contained in this Section 5.04 shall continue in
full force and effect notwithstanding the full payment of all Notes issued under the Credit
Agreement and all of the other Guaranteed Obligations and notwithstanding the discharge or other
termination or release thereof.



Section 5.05 Enforcement. The Finance Parties agree that this Agreement may be
enforced only by (i) the action of the Administrative Agent acting upon the instructions of the
Required Lenders, or (ii) after the date on which all of the Senior Obligations have been paid in
full, the holders of at least 51% of the outstanding Swap Obligations or (iii) after the date on
which all of the Senior Obligations and all of the Swap Obligations have been paid in full, the
holders of at least 51% of the Guaranteed Obligations remaining outstanding, and that no other
Finance Party shall have any right individually to seek to enforce this Agreement, it being
understood and agreed that such rights and remedies may be exercised by the Administrative Agent or
the holders of at least 51% of the outstanding Swap Obligations or other Guaranteed Obligations, as
the case may be, for the benefit of the Finance Parties upon the terms of this Agreement.



Section 5.06 Amendments and Waivers. Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed by each Guarantor
directly affected by such amendment or waiver (it being understood that the addition or release of
any Guarantor hereunder shall not constitute an amendment or waiver affecting any Guarantor other
than the Guarantor so added or released) and either (i) at all times prior to the time at which all
Senior Obligations have been paid in full, the Administrative Agent (with the consent of the
Required Lenders or, to the extent required by Section 10.01 of the Credit Agreement, all
of the Lenders) or (ii) at all times after the time at which the Senior Obligations have been paid
in full, the holders of at least 51% of the outstanding Swap Obligations; provided,
however, that no such amendment, change, discharge, termination or waiver affecting the
rights and benefits of a single Class of Finance Parties (and not all Finance Parties in a like or
similar manner) shall require the written consent of the Required Finance Parties of such Class of
Finance Parties. For the purposes of this Section 5.46, the term “Class” means each class of
Finance Parties, i.e., whether (i) the Lenders, as holders of the Senior Obligations or (ii) the
Swap Creditors, as holders of the Swap Obligations. For the purposes of this Section 5.06,
the term “Required Finance Parties” of any Class means (i) with respect to the Senior
Obligations, the Required Lenders and (ii) with respect to the Swap Obligations, the holders of at
least 51% of all Swap Obligations outstanding from time to time.



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Section 5.07 Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING,
WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Each of the Guarantors hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern District of New York
and of any New York State court sitting in the Borough of Manhattan in The City of New York for
purposes of all legal proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Guarantors irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such court and any claim that any such proceeding brought in such court has
been brought in an inconvenient forum. Each Guarantor hereby irrevocably appoints C.T. Corporation
System its authorized agent to accept and acknowledge service of any and all process which may be
served in any suit, action or proceeding of the nature referred to in this Section 5.07 and
consents to process being served in any such suit, action or proceeding upon C.T. Corporation
System in any manner or by the mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to such Guarantor’s address referred to in Section 5.01.
Each Guarantor agrees that such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and personal delivery to it.
Nothing in this Section 5.07 shall affect the right of any Agent or other Finance Party to
serve process in any manner permitted by law or limit the right of any Agent or other Finance Party
to bring proceedings against any Guarantor in the courts of any jurisdiction or jurisdictions.




Section 5.08 Limitation of Law; Severability.



(a) All rights, remedies and powers provided in this may be exercised only to the extent that
the exercise thereof does not violate any applicable provision of law, and all of the provisions of
this Agreement are intended to be subject to all applicable mandatory provisions of law which may
be controlling and be limited to the extent necessary so that they will not render this Agreement
invalid, unenforceable in whole or in part, or not entitled to be recorded, registered or filed
under the provisions of any applicable law.



(b) If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the
fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in favor of the Agents and the other
Finance Parties in order to carry out the intentions of the parties hereto as nearly as may be
possible; and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provisions in any other jurisdiction.



Section 5.09 Counterparts; Integration; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement and the other Senior
Finance Documents and, in the case of the Swap Creditors, the Swap Agreements, constitute the
entire agreement and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter hereof



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and thereof. This Agreement shall become effective with respect to each Guarantor when the
Administrative Agent shall have received counterparts hereof signed by itself and such Guarantor.



Section 5.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



Section 5.11 Additional Guarantors. It is understood and agreed that any Subsidiary
of the Borrower that is required by the Credit Agreement to execute an Accession Agreement and
counterpart of this Agreement after the date hereof shall automatically become a Subsidiary
Guarantor hereunder with the same force and effect as if originally named as a Subsidiary Guarantor
hereunder by executing an Accession Agreement and counterpart hereof and delivering the same to the
Administrative Agent. The execution and delivery of any such instrument shall not require the
consent of any other Guarantor or other parts hereunder. The rights and obligations of each
Guarantor or other parry hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Guarantor as a party to this Agreement.




Section 5.12 Termination; Release of Guarantors.



(a) Termination. Upon the full, final and irrevocable payment and performance of all
Guaranteed Obligations, the cancellation of all outstanding L/C Obligations and the termination of
the Commitments under the Credit Agreement and all Swap Agreements, this Agreement shall terminate
and have no further force or effect.



(b) Release of Guarantors. In the event that all of the capital stock of one or more
of the Subsidiary Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 7.05 of the Credit Agreement (or such sale, other disposition or
liquidation has been approved in writing by the Required Lenders (or all of the Lenders, if
required by Section 10.01 of the Credit Agreement)) and the proceeds of such sale,
disposition or liquidation are applied in accordance with the provisions of the Credit Agreement,
to the extent applicable, such Subsidiary Guarantor or Subsidiary Guarantors shall be released from
this Agreement, and this Agreement shall, as to each such Subsidiary Guarantor or Subsidiary
Guarantors, terminate and have no further force or effect (it being understood and agreed that the
sale of one or more Persons that own, directly or indirectly, all of the capital stock of any
Subsidiary Guarantor shall be deemed to be a sale of such Subsidiary Guarantor for purposes of this
Section 5.12(b)).



Section 5.13 Conflict. To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of the Credit Agreement, on the
other hand, the Credit Agreement shall control.



[Signature Pages Follow]



F-19

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IN WITNESS WHEREOF, each Guarantor has executed this Agreement as of the day and year first
above written.





	 	 	 	 	 
	GUARANTORS:	GLOBAL CASH ACCESS HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Global Cash Access Holdings, Inc.

3525 East Post Road, Suite 120

Las Vegas, NV 89120

Attn: Chief Executive Officer

Telephone: (702) 855-3006

Fax: (702) 262-5039
	 





	 	 	 	 	 
	 	CENTRAL CREDIT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Central Credit, LLC

3525 East Post Road, Suite 120

Las Vegas, NV 89120

Attn: Chief Executive Officer

Telephone: (702) 855-3006

Fax: (702) 262-5039	 




Acknowledged and Agreed with Respect to Section 2.01:




GLOBAL CASH ACCESS, INC.




By:                                                                                 

     Name:

     Title





F-20

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Agreed to and Accepted:




BANK OF AMERICA, N.A., as Administrative Agent




By:                                                                                 

     Name:

     Title:




Bank of America, N.A.

TX1-492-14-11

901 Main Street, 14th Floor

Dallas, TX 75202-3714

Attn: Donna F. Kimbrough

Te1ephone: (214) 209-1569

Fax: (214) 290-9436



F-21

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EXHIBIT G




FORM OF PERFECTION CERTIFICATE




[NAME OF LOAN PARTY]




PERFECTION CERTIFICATE





I,                     ,                      of [Name of Loan Party], a                      (the
“Company”), hereby certify with reference to the Security Agreement dated March 10, 2004,
as amended, by and among Global Cash Access, Inc., a Delaware corporation; the Subsidiary
Guarantors referred to therein; and Bank of America, N.A., as Collateral Agent (the “Collateral
Agent”) (terms defined therein being used herein as therein defined) to the Collateral Agent
and the Secured Parties as follows:



I. Names.




	 	(A)	 	The exact corporate name of the Company as it appears in its certificate of
incorporation is                     .

	 
	 	(B)	 	Since its organization, the Company has had no other corporate, limited
liability company or partnership name.

	 
	 	(C)	 	Neither the Company nor any of its divisions, sectors or other business units
has used any other names (including trade names or similar appellations) at any time
during the past five years.

	 
	 	(D)	 	The Company has not changed its identity or corporate, limited liability
company or partnership structure in any way within the past five years.






II. Business Locations/Jurisdiction of Organization.





	 	(A)	 	The Company’s jurisdiction of organization and organization number are
                     and                      respectively.

	 
	 	(B)	 	The Company has no other place of business.

	 
	 	(C)	 	The Company has not maintained any other chief executive office or location or
place(s) of business at any time during the past five years.






III. Locations and Other Information Regarding Collateral.





	 	(A)	 	None of the Company’s Equipment, Inventory, Instruments, securities
certificates (as defined in the UCC), Documents, books and records relating to Accounts
or other tangible Collateral are in the possession of any Person other than the
Company.






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Form of Perfection Certificate



 


 









 









	 	(B)	 	None of the Company’s Equipment, Inventory, Instruments, securities
certificates (as defined in the UCC), Documents, books and records relating to Accounts
or other tangible Collateral has been lodged at any other location or with any other
bailee at any time during the past four months.

	 
	 	(C)	 	None of the Company’s Collateral is or has at any time been covered by a
certificate of title.

	 
	 	(D)	 	The Company has no interests in unextracted minerals or the like (including oil
and gas), assets consisting of timber to be cut or equipment used in farming
operations, farm products, grain or crops growing or to be grown.

	 
	 	(E)	 	The Company holds no securities.

	 
	 	(F)	 	The Company holds no partnership interests, limited liability company
membership interests or other equity interests not constituting securities (as defined
in the UCC).

	 
	 	(G)	 	The Company maintains no Securities Accounts.

	 
	 	(H)	 	Listed Schedule III.I. hereto, is the bank or other financial
institution and account number of each Deposit Account or other bank account maintained
by the Company, together with a description of the purpose for which each such account
is used.

	 
	 	(I)	 	The Company has no Inventory consigned to third parties.

	 
	 	(J)	 	The approximate dollar value of all tangible Collateral located in the
following States is:

	 
	 	 	 	Alabama: $0

Tennessee: $0

	 
	 	(K)	 	The Company has no Inventory located outside of the United States of America.

	 
	 	(L)	 	There are no commercial tort claims in favor of the Company.






IV. Unusual Transactions. No unusual transactions have occurred in the past five years,
all Accounts have been originated by the Company and all Inventory or Equipment has been acquired
by the Company in the ordinary course of business from a dealer in goods of that type.



V. Patents, Trademarks and Copyrights. The Company owns no, and has not applied for any,
Patents, Trademarks, Copyrights or domain names and is not a party to any Licenses.



VI. Assigned Agreements. The Company has no contracts or agreements to be identified as
“Assigned Agreements” under the Security Agreement.



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VII. Taxpayer Identification Number. The Company’s taxpayer identification number is                     .



VIII. Existing Liens. As of the date hereof, there are no (i) Uniform Commercial Code
financing statements naming the Company as debtor or seller and covering any of the Collateral,
(ii) notices of the filing of any federal tax lien (filed pursuant to section 6323 of the Code) or
any lien of the PBGC (filed pursuant to Section 4068 of ERISA) covering any of the Collateral or
(iii) judgment liens filed against the Company.



Date:                     ,      




	 	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:






G-3

Form of Perfection Certificate



 


 









 





EXHIBIT H




FORM OF INTERCOMPANY NOTE




No. ___




INTERCOMPANY NOTE




 



			
	                    
	 	[City of Closing)

[Date]






For value received, [SUBSIDIARY A NAME], [SUBSIDIARY A DESCRIPTION], [SUBSIDIARY B NAME],
[SUBSIDIARY B DESCRIPTION], [SUBSIDIARY C NAME], SUBSIDIARY C DESCRIPTION] (together with their
respective successors and permitted assigns, each a “Payor”, and collectively, the
“Payors”), hereby promise to pay on demand to the order of [PAYEE], a                      corporation
(together with its successors and permitted assigns, the “Payee”), the unpaid principal amount of
all loans and advances made by the Payee to each Payor. Each Payor promises to pay interest on the
unpaid principal amount hereof from the date hereof until paid at such rate per annum as shall be
agreed upon from time to time by the Payors and the Payee. All such payments of principal and
interest shall be made without offset, counterclaim or deduction of any kind in lawful money of the
United States of America in immediately available funds at such location in the United States of
America as the Payee shall designate from time to time.



Upon the commencement by or against any Payor of any ease or other proceeding seeking
liquidation, reorganization or other relief with respect to such Payor or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial
part of its property, the unpaid principal amount hereof shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are hereby waived by such
Payor.



The Payee is hereby authorized (but not required) to record all loans and advances made by it
to each Payor (all of which shall be evidenced by this Intercompany Note), and all repayments or
prepayments thereof, in its books and records, such books and records constituting prima facie
evidence of the accuracy of the information contained therein.



This Intercompany Note is one of the Intercompany Notes referred to in the Second Amended and
Restated Credit Agreement dated as of November 1, 2006 (as amended, modified or supplemented from
time to time, the “Credit Agreement”) among Global Cash Access Holdings, Inc., a Delaware
corporation, Global Cash Access, Inc., a Delaware corporation, the banks and other financial
institutions from time to time party thereto and Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer. This Intercompany Note shall be pledged by the Payee pursuant to
the Pledge Agreement (as defined in the Credit Agreement). Each Payor hereby acknowledges and
agrees that the Collateral Agent
pursuant to and as defined in the Pledge Agreement may exercise all rights provided therein
with respect to this Intercompany Note.



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THIS INTERCOMPANY NOTE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE
GENERAL OBLIGATIONS OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.



	 	 	 	 	 
	 	[SUBSIDIARY A NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[SUBSIDIARY B NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[SUBSIDIARY C NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Pay to the order of




[PAYEE]




	 	 	 	 	 
	By:
	 	 
	 	 
	 
	 	Name: 	 	 
	 	 	Title:
	 	 






H-2

Form of Intercompany Note



 


 









 





EXHIBIT I




FORM OF INTERCOMPANY NOTE SUBORDINATION PROVISIONS




EACH PROMISSORY NOTE EVIDENCING AN INTERCOMPANY LOAN OR ADVANCE INCURRED BY THE BORROWER OR A
WHOLLY-OWNED DOMESTIC SUBSIDIARY OF THE BORROWER OWING TO ANY FOREIGN SUBSIDIARY OF THE BORROWER OR
ANY NON-WHOLLY-OWNED DOMESTIC SUBSIDIARY OF THE BORROWER SHALL HAVE INCLUDED ON ITS FACE THE
FOLLOWING PROVISION AND SHALL HAVE “ANNEX A TO INTERCOMPANY NOTE” ATTACHED THERETO AND MADE A PART
THEREOF.



“This Intercompany Note, and the obligations of the Payor hereunder, shall be subordinate and
junior in right of payment to all Senior Debt (as defined in Section 1 of Annex A hereto) on the
terms and conditions set forth in Annex A hereto. Annex A hereto is incorporated herein by
reference in its entirety and is a part of this Intercompany Note to the same extent as if it had
been set forth in its entirety in this Intercompany Note.”



I-1

Form of Intercompany Note Subordination Provisions



 


 









 





EXHIBIT J




FORM OF LOAN PARTY ACCESSION AGREEMENT





LOAN
PARTY ACCESSION AGREEMENT dated as of
                 , among Global Cash Access, Inc., the
NEW LOAN PARTY referred to herein and Bank of America, N.A., as Administrative Agent and
Collateral Agent.



Global Cash Access, Inc., a Delaware corporation (together with its successors and permitted
assigns, the “Borrower”), entered into a Second Amended and Restated Credit Agreement dated
as of November 1, 2006 (as amended, supplemented and/or modified to the date hereof and as the same
may be further amended, supplemented or modified from time to time and including any agreement
extending the maturity of, refinancing or otherwise restructuring all or any portion of the
obligations of the Borrower under such agreement or any successor agreement, the “Credit
Agreement”) among Global Cash Access Holdings, Inc., a Delaware corporation (together with its
successors and permitted assigns, “Holdings”), the Borrower, the banks and other lending
institutions from time to time party thereto (each a “Lender” and, collectively, the
“Lenders”) and Bank of America, N.A., as Administrative Agent (together with its successor
or successors in such capacity, the “Administrative Agent”), Swingline Lender and L/C
Issuer. Capitalized terms defined in the Credit Agreement and not otherwise defined herein have,
as used herein, the respective meanings provided for therein.



Certain Lenders and their affiliates (the “Swap Creditors”) may from time to time
provide forward rate agreements, options, swaps, caps, floors, other financial derivatives
agreements and other combinations or hybrids of any of the foregoing (collectively, “Swap
Agreements”) . The Lenders, each Issuing Lender, the Swingline Lender, the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Collateral Agent (as each such term is
defined in the Credit Agreement) and each Swap Creditor and their respective successors and assigns
are herein referred to individually as a “Finance Party” and collectively as the
“Finance Parties”.



[New Loan Party Name], [New Loan Party Description] (the “New Loan Party”), was
[formed] [acquired] by [the Borrower] [[Name of Immediate Parent Company], [Description of
Immediate Parent Company] and a [Wholly-Owned] Subsidiary of the Borrower], [DESCRIBE FORMATION OR
ACQUISITION TRANSACTION, AS APPLICABLE].



Section 6.12 of the Credit Agreement requires each Subsidiary (other than certain
Foreign Subsidiaries) formed or acquired by Holdings or the Borrower or any of their respective
Subsidiaries after the Closing Date to become a party to the Guaranty as an additional “Guarantor”,
to become a party to the Security Agreement as an additional “Loan Party” and to become a party to
the Pledge Agreement as an additional “Loan Party”. The Guaranty, the Security Agreement and the
Pledge Agreement specify that such additional Subsidiaries may become “Guarantors” under the
Guaranty and “Loan Parties” under each of the Security Agreement and the Pledge Agreement by
execution and delivery of a counterpart of each such Finance Documents. To induce the Lenders to
make or maintain extensions of credit to the Borrower under the Credit Agreement and the other
Senior Finance Documents referred to



Schedule 10.02 - 1



 


 









 





therein (collectively with the Credit Agreement, the “Senior Finance Documents”) and
the Swap Creditors to enter into or maintain the Swap Agreements (the Senior Finance Document and
the Swap Agreements being herein collectively referred to as the “Finance Documents”), and
as consideration for extensions of credit previously made to, and/or Swap Agreements previously
entered into with, the Borrower, the New Loan Party has agreed to execute and deliver this Loan
Party Accession Agreement (as the same may be amended, supplemented or modified from time to time,
this “Agreement”) in order to evidence its agreement to become a “Guarantor” under the
Guaranty and a “Loan Party” under each of the Security Agreement and the Pledge Agreement.
Accordingly, the parties hereto agree as follows:



Section 1. Guaranty. In accordance with Section 5.11 of the Guaranty, the New
Loan Party hereby (i) agrees that, by execution and delivery of a counterpart signature page to the
Guaranty in the form attached hereto as Exhibit A, the New Loan Party shall become a
“Guarantor” under the Guaranty with the same force and effect as if originally named therein as a
Guarantor (as defined in the Guaranty), (ii) acknowledges receipt of a copy of and agrees to be
obligated and bound as a “Guarantor” by all of the terms and provisions of the Guaranty and (iii)
acknowledges and agrees that, from and after the date hereof, each reference in the Guaranty to a
“Guarantor” or the “Guarantors” shall be deemed to include the New Loan Party. The New Loan Party
hereby waives acceptance by the Administrative Agent and the Finance Parties of the guarantee by
the New Loan Party under the Guaranty upon the execution and delivery by each of the New Loan Party
of the counterpart signature referred to herein.



Section 2. Security Agreement. In accordance with Section 7.10 of the
Security Agreement, the New Loan Party hereby (i) agrees that, by execution and delivery of a
counterpart signature page to the Security Agreement in the form attached hereto as Exhibit
B, the New Loan Party shall become a “Loan Party” under the Security Agreement with the same
force and effect as if originally named therein as a Loan Party (as defined in the Security
Agreement), (ii) acknowledges receipt of a copy of and agrees to be obligated and bound as a “Loan
Party” by all of the terms and provisions of the Security Agreement, (iii) grants to the Collateral
Agent for the benefit of the Finance Parties a continuing security interest in the Collateral (as
defined in the Security Agreement), in each case to secure the full and punctual payment of the
Secured Obligations (as defined in the Security Agreement) in accordance with the terms thereof and
to secure the performance of all of the obligations of each Loan Party under the Credit Agreement
and the other Finance Documents, (iv) represents and warrants that each of Schedules 1.01,
3.06 and 4.01 to the Security Agreement, as amended, supplemented and modified as
set forth on Schedules 1.01, 3.06 and 4.01 hereto, is complete and accurate
with respect to the New Loan Party as of the date hereof alter giving effect to the New Loan
Party’s accession to the Security Agreement as an additional Loan Party thereunder and (v)
acknowledges and agrees that, from and after the date hereof, each reference in the Security
Agreement to a “Loan Party” or the “Loan Parties” shall be deemed to include the New Loan Party.



Section 3. Pledge Agreement. In accordance with Section 8.10 of the Pledge
Agreement, the New Loan Party hereby (i) agrees that, by execution and delivery of-a counterpart
signature page to the Pledge Agreement in the form attached hereto as Exhibit C, the New
Loan Party shall become a “Loan Party” under the Pledge Agreement with the same force and effect as
if originally named therein as a Loan Party (as defined in the Pledge Agreement),



Schedule 10.02 - 2



 


 









 





(ii) acknowledges receipt of a copy of and agrees to be obligated and bound as a “Loan Party”
by all of the terms and provisions of the Pledge Agreement, (iii) grants to the Collateral Agent
for the benefit of the Finance Parties a continuing security interest in the Collateral (as defined
in the Pledge Agreement), in each case to secure the full and punctual payment of the Secured
Obligations (as defined in the Pledge Agreement) in accordance with the terms thereof and to secure
the performance of all of the obligations of each Loan Party under the Credit Agreement and the
other Finance Documents, (iv) represents and warrants that each of Schedules I, II,
III, IV, and V to the Pledge Agreement, as amended, supplemented and
modified as set forth on Schedules I, II, III, IV, and V
hereto, is complete and accurate with respect to the New Loan Party as of the date hereof after
giving effect to the New Loan Party’s accession to the Pledge Agreement as an additional Loan Party
thereunder and (v) acknowledges and agrees that, from and after the date hereof, each reference in
the Pledge Agreement to a “Loan Party” or the “Loan Parties” shall be deemed to include the New
Loan Party.



Section 4. Representations and Warranties. The New Loan Party hereby represents and
warrants that:



(a) This Agreement has been duly authorized, executed and delivered by the New Loan Party, and
each of this Agreement and the Guaranty, the Security Agreement and the Pledge Agreement, as
acceded to hereby by the New Loan Party, constitutes a valid and binding agreement of the New Loan
Party, enforceable against the New Loan Party in accordance with its terms, except in each case as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforceability of creditors’ rights generally and by equitable principles of
general applicability (regardless of whether such enforceability is considered in a proceeding in
equity or at law).



(b) Each of the representations and warranties contained in the Credit Agreement, the
Guaranty, the Security Agreement, the Pledge Agreement and each of the other Finance Documents is
true and correct in all material respects as of the date hereof, with the same effect as though
such representations and warranties had been made on and as of the date hereof after giving effect
to the accession of the New Loan Party as an additional “Guarantor” under the Guaranty and an
additional “Loan Party” under each of the Security Agreement and the Pledge Agreement.



(c) Attached hereto as Exhibit D is a correct and complete Perfection Certificate relating to
the New Loan Party and its Collateral.



Section 5. Effectiveness. This Agreement and the accession of the New Loan Party to
the Guaranty, the Security Agreement and the Pledge Agreement as provided herein shall become
effective with respect to the New Loan Party when (i) the Administrative Agent shall have received
a counterpart of this Agreement duly executed by such New Loan Party; and (ii) the Administrative
Agent and/or the Collateral Agent, as applicable, shall have received duly executed counterpart
signature pages to each of the Guaranty, the Security Agreement and the Pledge Agreement as
contemplated hereby.



Section 6. Integration; Confirmation. On and after the date hereof, each of the
Guaranty, the Security Agreement and the Pledge Agreement and the respective Schedules



Schedule 10.02 - 3



 


 









 





thereto shall be supplemented as expressly set forth herein; all other terms and provisions of
each of the Guaranty, the Security Agreement, the Pledge Agreement, the other Finance Documents and
the respective Schedules thereto shall continue in full force and effect and unchanged and are
hereby confirmed in all respects.



Section 7. Expenses. The New Loan Party agrees to pay (i) all out-of-pocket expenses
of the Agents, including fees and disbursements of special and local counsel for the Agents, in
connection with the preparation, execution and delivery of this Agreement and any document or
agreement contemplated hereby and (ii) all taxes which the Collateral Agent or any Finance Party
may be required to pay by reason of the security interests granted in the Collateral (including any
applicable transfer taxes).



Section 8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT AS OTHERWISE
REQUIRED BY MANDATORY PROVISIONS OF LAW.



Section 9. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement may be transmitted and/or signed by facsimile and if
so transmitted or signed, shall, subject to requirements of law, have the same force and effect as
a manually signed original and shall be binding on the New Loan Party, the Agents and the Finance
Parties. The Administrative Agent may also require that this Agreement be confirmed by a manually
signed original hereof; provided, however, that the failure to request or deliver the same shall
not limit the effectiveness of any facsimile document or signature.



[Signature Pages to Follow]




Schedule 10.02 - 4




 


 









 







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



	 	 	 	 	 
	 	GLOBAL CASH ACCESS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[NEW LOAN PARTY NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A,

as Administrative Agent and Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Schedule 10.02 - 5




 


 









 





Exhibit A




COUNTERPART TO GUARANTY




The undersigned hereby executes this counterpart to the Amended and Restated Guaranty dated as
of November 1, 2006 by the Subsidiary Guarantors party thereto from time to time in favor of Bank
of America, N.A., as Administrative Agent, and, as of the date hereof, assumes all of the rights
and obligations of a “Subsidiary Guarantor” thereunder.



Date:                                         




	 	 	 	 	 
	 	[New Loan Party Name]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Schedule 10.02 - 6




 


 









 





Exhibit B




COUNTERPART TO SECURITY AGREEMENT




The undersigned hereby executes this counterpart to the Security Agreement dated as of March
10, 2004 by Loan Parties party thereto from time to time in favor of Bank of America, N.A., as
Collateral Agent, and, as of the date hereof, assumes all of the rights and obligations of a “Loan
Party” thereunder .



Date:                                         




	 	 	 	 	 
	 	[New Loan Party Name]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Schedule 10.02 - 7




 


 









 





Exhibit C




COUNTERPART TO PLEDGE AGREEMENT




The undersigned hereby executes this counterpart to the Pledge Agreement dated as of March 10,
2004 by Loan Parties party thereto from time to time in favor of Bank of America, N.A., as
Collateral Agent, and, as of the date hereof, assumes all of the rights and obligations of a “Loan
Party” thereunder .



Date:                                         




	 	 	 	 	 
	 	[New Loan Party Name]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Schedule 10.02 - 8