AMENDED AND RESTATED CREDIT AGREEMENT Dated as of July 16, 2010 among TRUMP ENTERTAINMENT RESORTS HOLDINGS, L.P. as Borrower TRUMP ENTERTAINMENT RESORTS, INC. as General Partner The Guarantors named herein as Guarantors and ICAHN PARTNERS LP, ICAHN...

EXHIBIT 10.1

Execution Copy

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of July 16, 2010

among

XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.

as Borrower

XXXXX ENTERTAINMENT RESORTS, INC.

as General Partner

The Guarantors named herein

as Guarantors

and

ICAHN PARTNERS LP,

ICAHN PARTNERS MASTER FUND LP,

ICAHN PARTNERS MASTER FUND II LP, AND

ICAHN PARTNERS MASTER FUND III LP,

as Initial Lenders

and

Xxxx Bank SSB

as Collateral Agent and Administrative Agent

TABLE OF CONTENTS


		PAGE
SECTION

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS		2

Section 1.01.	Certain Defined Terms	2
Section 1.02.	Computation of Time Periods; Other Definitional Provisions	26
Section 1.03.	Accounting Terms	26
Section 1.04.	U.S. Dollars	26

ARTICLE II AMOUNTS AND TERMS OF THE TERM LOANS		26

Section 2.01.	The Term Loans	26
Section 2.02.	Reduction of Non-Interest Component for Interest Payments	27
Section 2.03.	[Reserved]	27
Section 2.04.	Repayment of Term Loans	27
Section 2.05.	Application of Payments on Term Loans	27
Section 2.06.	Prepayments	28
Section 2.07.	Interest	29
Section 2.08.	Fees	30
Section 2.09.	[Reserved]	30
Section 2.10.	Increased Costs, Etc.	30
Section 2.11.	Payments and Computations	31
Section 2.12.	Taxes	33
Section 2.13.	Sharing of Payments, Etc.	36
Section 2.14.	[Reserved]	37
Section 2.15.	Defaulting Lenders	37
Section 2.16.	Evidence of Debt	38

ARTICLE III CONDITIONS OF LENDING		39

Section 3.01.	Conditions Precedent to Effectiveness of this Agreement	39
Section 3.02.	[Reserved]	45
Section 3.03.	Determinations Under Section 3.01	45

ARTICLE IV REPRESENTATIONS AND WARRANTIES		45

Section 4.01.	Representations and Warranties of the Loan Parties	45

ARTICLE V COVENANTS OF THE LOAN PARTIES		52

Section 5.01.	Affirmative Covenants	52
Section 5.02.	Negative Covenants	58
Section 5.03.	Reporting Requirements	71

(i)


ARTICLE VI EVENTS OF DEFAULT		74

Section 6.01.	Events of Default	74

ARTICLE VII THE AGENTS		77

Section 7.01.	Authorization and Action	77
Section 7.02.	Agents’ Reliance, Etc.	78
Section 7.03.	Agents and their Affiliates	79
Section 7.04.	Lender Party Credit Decision	79
Section 7.05.	Indemnification	79
Section 7.06.	Successor Agents	80
Section 7.07.	Agency Agreement	81

ARTICLE VIII GUARANTY		81

Section 8.01.	Guaranty; Limitation of Liability	81
Section 8.02.	Guaranty Absolute	82
Section 8.03.	Waivers and Acknowledgments	83
Section 8.04.	Subrogation	84
Section 8.05.	Guaranty Supplements	85
Section 8.06.	Subordination	85
Section 8.07.	Continuing Guaranty; Assignments	86

ARTICLE IX MISCELLANEOUS		86

Section 9.01.	Amendments, Etc.	86
Section 9.02.	Notices, Etc.	87
Section 9.03.	No Waiver; Remedies	89
Section 9.04.	Costs and Expenses	89
Section 9.05.	Right of Set-off	90
Section 9.06.	Binding Effect	91
Section 9.07.	Assignments and Participations	91
Section 9.08.	Execution in Counterparts	94
Section 9.09.	[Reserved]	95
Section 9.10.	Non-Consenting Lenders	95
Section 9.11.	Confidentiality	95
Section 9.12.	Release of Collateral	95
Section 9.13.	Patriot Act Notice	95
Section 9.14.	Jurisdiction, Etc.	96
Section 9.15.	Application of Liquor Laws and Gaming Laws	96
Section 9.16.	Governing Law	97
Section 9.17.	WAIVER OF JURY TRIAL	97
Section 9.18.	Limitation of Liability	98
Section 9.19.	Collateral Documents	98
Section 9.20.	[Reserved]	98
Section 9.21.	Amendment and Restatement of Existing Credit Agreement	98

(ii)


Section 9.22.	Ratification of Existing Liens	98
Section 9.23.	[Reserved]	98
Section 9.24.	No Personal Liability of Directors, Officers, Employees and Equity Holders	98
Section 9.25.	WAIVER AND RELEASE	99


SCHEDULES

Schedule I	-	Applicable Lending Offices
Schedule II	-	Guarantors
Schedule IV	-	Existing Unrestricted Subsidiaries
Schedule V		Payoff Obligations
Schedule 2.01(d)		Wire Instructions for Effective Date Paydown
Schedule 4.01(b)	-	Subsidiaries
Schedule 4.01(d)	-	Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f)	-	Disclosed Litigation
Schedule 4.01(o)	-	Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(q)	-	Tax Disclosure
Schedule 4.01(s)	-	Existing Debt
Schedule 4.01(t)	-	Surviving Debt
Schedule 4.01(u)	-	Liens
Schedule 4.01(v)	-	Owned Real Property; Leased Real Property (Lessee); Leased Real Property (Lessor)
Schedule 4.01(w)	-	Investments
Schedule 4.01(x)	-	Intellectual Property
Schedule 4.01(y)	-	Existing Defaults or Events of Default
Schedule 5.01(d)	-	Insurance
Schedule 5.01(k)	-	Post-Closing Matters

EXHIBITS

Exhibit A	-	Form of Assignment and Acceptance
Exhibit B	-	Form of Note
Exhibit C	-	Form of Security Agreement
Exhibit D	-	Form of Mortgage
Exhibit F-1	-	Form of Opinion of Xxxxxx Xxxxxx LLP, counsel to the Loan Parties
Exhibit F-2	-	Form of Opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties
Exhibit F-3	-	Form of Opinion of New Jersey gaming counsel to the Loan Parties
Exhibit G	-	Form of Guaranty Supplement

(iii)

AMENDED AND RESTATED CREDIT AGREEMENT

AMENDED AND RESTATED CREDIT AGREEMENT (this “AGREEMENT”) dated as of July 16, 2010 among XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P., a Delaware limited partnership (the “BORROWER”), XXXXX ENTERTAINMENT RESORTS, INC., a Delaware corporation and general partner of the Borrower (“TER” or the “GENERAL PARTNER”), as a Guarantor (as hereinafter defined), the Subsidiary Guarantors (as hereinafter defined), the Initial Lenders (as hereinafter defined), Xxxx Bank, SSB, as collateral agent (together with any successor collateral agent appointed pursuant to Article VII, the “COLLATERAL AGENT”) for the Secured Parties (as hereinafter defined) and Xxxx Bank, SSB, as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the “ADMINISTRATIVE AGENT”, and together with the COLLATERAL AGENT, the “AGENTS”) for the Lender Parties (as hereinafter defined).

PRELIMINARY STATEMENTS:

(1) The Borrower and the other Loan Parties are parties to that certain Credit Agreement dated as of December 21, 2007, initially among the Borrower, the General Partner, the Guarantors, Xxxx Bank and Xxxx Bank Nevada, as lenders, and Xxxx Bank, as collateral agent and administrative agent for such lenders, as amended by that certain (a) First Amendment to Credit Agreement dated as of December 21, 2007, (b) Second Amendment to Credit Agreement dated as of May 29, 2008, and (c) Third Amendment to Credit Agreement dated as of October 28, 2008 (as amended, the “EXISTING CREDIT AGREEMENT”).

(2) The Borrower, the General Partner, the Guarantors and the other Debtors are debtors and debtors-in-possession in the Bankruptcy Cases.

(3) The Bankruptcy Court has approved the Plan of Reorganization pursuant to which, among other things, (a) certain pre-petition debt of the Debtors is to be eliminated (excluding debt outstanding under the Existing Credit Agreement (the “EXISTING CREDIT AGREEMENT DEBT”)), (b) the Existing Credit Agreement Debt is to be restructured as provided in this Agreement, (c) $225,000,000 of new capital is to be contributed to the Borrower on the Effective Date, of which $125,000,000 is to be used to repay a portion of the Existing Credit Agreement Debt, and (d) the ownership of the General Partner is to be restructured on the date hereof pursuant to a rights offering to certain creditors of the Debtors and a related Noteholder Backstop Agreement (collectively, the “RIGHTS OFFERING”).

(4) Subject to Section 3.01, this Agreement shall become effective on the Plan Effective Date.

(5) The parties hereto now desire to restructure the Existing Credit Agreement Debt and amend and restate the Existing Credit Agreement as contemplated by the Plan of Reorganization and as provided in this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

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

“ADMINISTRATION FEE” has the meaning set forth in Section 2.08(c).

“ADMINISTRATIVE AGENT” has the meaning specified in the recital of parties to this Agreement.

“ADMINISTRATIVE AGENT’S ACCOUNT” means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lender Parties from time to time.

“AFFILIATE” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.

“AGENTS” has the meaning specified in the recital of parties to this Agreement.

“AGREEMENT VALUE” means, for each Hedge Agreement, on any date of determination, an amount determined by the Administrative Agent equal to the amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if (a) such Hedge Agreement was being terminated early on such date of determination, (b) such Loan Party or Subsidiary was the sole “Affected Party,” and (c) the Administrative Agent was the sole party determining such payment amount (with the Administrative Agent making such determination pursuant to the provisions of the form of Master Agreement or other applicable agreement).

“APPLICABLE LENDING OFFICE” means, with respect to each Lender Party, such Lender Party’s Domestic Lending Office.

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

“ASSIGNMENT AND ACCEPTANCE” means an assignment and acceptance entered into by a Lender Party and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07 or the definition of “ELIGIBLE ASSIGNEE”), and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of EXHIBIT A hereto or any other form approved by the Administrative Agent.

“ASSIGNMENTS OF LEASES AND RENTS” means those certain assignments of leases and rents, executed in connection with the Existing Credit Agreement and/or this Agreement, corresponding to the real property to which each of the Mortgages relate.

“AVAILABLE CASH FLOW” means, with respect to the Borrower and its Subsidiaries and for any period, the remainder of the following determined on a Consolidated basis in accordance with GAAP to the extent applicable: (a) EBITDA minus (b) without duplication and to the extent not deducted in determining EBITDA for such period, the sum of the following expenses to the extent (but only to the extent) they were actually paid in cash during such period (or, in the case of clause (viii) succeeding, anticipated to be spent in cash during the immediately succeeding period): (i) payments made to the New Jersey State Treasurer by the Borrower and its Subsidiaries (A) in satisfaction of the investment alternative tax imposed under N.J.S.A. 5:12-144.1 or (B) for direction to the New Jersey Casino Reinvestment Development Authority for the purpose of making direct investments (including donations) or purchasing bonds entitling the Borrower and its Subsidiaries to an investment tax credit against the investment alternative tax imposed under N.J.S.A. 5:12-144.1, (ii) state and federal income taxes and state and local property taxes, (iii) Capital Expenditures permitted in accordance with Section 5.02(o) (other than such Capital Expenditures which were made with cash proceeds of casualty insurance in an amount that was previously deducted pursuant to clause (viii) succeeding for the prior period), (iv) professional fees, (v) Tax Distributions, (vi) reasonable cash reserves for environmental liabilities, (vii) the aggregate amount of principal of, and accrued interest on, all Debt for Borrowed Money, other than the Term Loans, paid by the Borrower, and permitted to be paid by the Borrower in accordance with this Agreement, during such period, and (viii) subject to the proviso below, cash proceeds of casualty insurance received and included in Net Income during such period that are anticipated to be spent (and permitted to be spent in accordance with Section 5.02(o)) in cash as Capital Expenditures during the immediately succeeding period, provided, however, that, if and to the extent that such cash proceeds are not in fact so used to make Capital Expenditures during such immediately succeeding period, the amount of such cash proceeds not so used shall be added for purposes of determining Available Cash Flow for such immediately succeeding period.

“BANKRUPTCY CASES” means Chapter 11 Case No. 09-13654 (JHW) of the Debtors filed with the Bankruptcy Court on or about February 17, 2009.

“BANKRUPTCY CODE” means Title 11, U.S. Code.

“BANKRUPTCY COURT” means the United States Bankruptcy Court for the District of New Jersey.

“BANKRUPTCY LAW” means the Bankruptcy Code, or any similar foreign, federal or state law for the relief of debtors.

“XXXX BANK” means Xxxx Bank, SSB, a savings bank organized under the laws of the state of Texas.

“BORROWER” has the meaning specified in the recital of parties to this Agreement.

“BORROWER’S ACCOUNT” means the account of the Borrower specified by the Borrower in writing to the Administrative Agent from time to time.

“BUSINESS DAY” means a day of the year on which banks are not required or authorized by law to close in New York City.

“CAPITAL EXPENDITURES” means, for any Person for any period, the sum of, without duplication, (a) all cash expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated balance sheet of such Person plus (b) the aggregate principal amount of all Debt (including Obligations under Capitalized Leases) assumed or incurred in connection with any such expenditures. For purposes of this definition, the purchase price of equipment that is purchased simultaneously with the trade in of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be.

“CAPITAL STOCK” means (a) in the case of a corporation, corporate stock; (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“CAPITALIZED LEASES” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

“CARRYOVER AMOUNT” means a Carryover Project Capex Amount, as defined in Section 5.02(o).

“CASH EQUIVALENTS” means any of the following, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens other than Liens created under the Collateral Documents and having a maturity of not greater than 180 days from the date of acquisition thereof: (a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) insured certificates of deposit of or time deposits with any commercial bank that is a Lender Party or a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1 billion or (c) commercial paper in an aggregate amount of no more than $5,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Xxxxx’x or “A-1” (or the then equivalent grade) by S&P or (d) Investments, classified in accordance with generally accepted accounting principles as Current Assets of the Borrower or any of its Subsidiaries, in money market investment programs

registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Xxxxx’x or S&P, and the portfolios of which are limited solely to Investments of the amount, character, quality and maturity described in clauses (a), (b) and (c) of this definition.

“CASINO PROPERTY” means, (a) the hotel and complex currently known as the “Xxxxx Plaza Hotel and Casino” in Atlantic City, New Jersey, (b) the hotel and complex currently known as the “Xxxxx Xxxxxx Hotel Casino” in Atlantic City, New Jersey, so long as such property continues to be owned by the Borrower or one of its Subsidiaries, (c) the hotel and complex currently known as the “Xxxxx Xxx Xxxxx Casino Resort” in Atlantic City, New Jersey and (d) each future hotel and complex owned by the Borrower or any of its Subsidiaries (other than its Unrestricted Subsidiaries).

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.

“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

“CFC” means an entity that is a controlled foreign corporation under Section 957 of the Internal Revenue Code.

“CHANGE OF CONTROL” means the occurrence of any of the following at any time after the Plan Effective Date: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Interests of the General Partner (or other securities convertible into such Voting Interests) representing 51% or more of the combined voting power of all Voting Interests of the General Partner; (b) [reserved]; (c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise the power to exercise, directly or indirectly, a controlling influence over the management or policies of the General Partner (or other securities convertible into such Voting Interests) representing 51% or more of the combined voting power of all Voting Interests of the General Partner; (d) the General Partner shall cease to directly own all of the Equity Interests in the New Limited Partner; or (e) the General Partner shall cease to be the sole general partner of the Borrower; provided, however, that the consummation of the Transactions contemplated by the Plan of Reorganization and the Rights Offering shall not result in a Change of Control.

“COLLATERAL” means all “Collateral” and “Mortgaged Property” referred to in the Collateral Documents and all other property that is or is intended to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

“COLLATERAL ACCOUNT” has the meaning specified in the Security Agreement.

“COLLATERAL AGENT” has the meaning specified in the recital of parties to this Agreement.

“COLLATERAL AGENT’S OFFICE” means, with respect to the Collateral Agent or any successor Collateral Agent, the office of such Agent as such Agent may from time to time specify to the Borrower and the Administrative Agent.

“COLLATERAL DOCUMENTS” means the Security Agreement, the Mortgages, the Assignments of Leases and Rents, the Intellectual Property Security Agreement, each of the collateral documents, instruments and agreements delivered pursuant to Section 5.01(j), and each other agreement that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

“CONFIDENTIAL INFORMATION” means information that any Loan Party furnishes to any Agent or any Lender Party in a writing designated as confidential, but does not include any such information that is or becomes generally available to the public or that is or becomes available to such Agent or such Lender Party from a source other than the Loan Parties that is not, to the best of such Agent’s or such Lender Party’s knowledge, acting in violation of a confidentiality agreement with a Loan Party.

“CONFIRMATION ORDER” means an order issued by the Bankruptcy Court with respect to the Bankruptcy Cases confirming the Plan of Reorganization pursuant to Section 1129 of the Bankruptcy Code.

“CONSENT AND AGREEMENT” means a Consent and Agreement executed by Xxxxxx X. Xxxxx, Xxxxxx Xxxxx and the Borrower pursuant to which Xx. Xxxxx and Xx. Xxxxx consent to the assignment by the Borrower to the Collateral Agent of all rights of the Borrower under the Trademark License Agreement and which shall satisfy the requirements of Section 5.2.5 as appeared in the version of the Trademark License Agreement that was filed with the Bankruptcy Court in the Plan Supplement on March 5, 2010.

“CONSOLIDATED” refers to the consolidation of accounts in accordance with GAAP.

“CONSTRUCTION CONTRACTS” means the construction contracts entered into by any Loan Party relating to the construction of the New Tower and which are described on Schedule IV to the Existing Credit Agreement.

“CONTRIBUTION AGREEMENT” means an agreement, in form and substance satisfactory to Administrative Agent, executed by and among the Loan Parties relating to their respective contribution rights and obligations, as among themselves, under the Loan Documents.

“CURRENT ASSETS” of any Person means all assets of such Person that would, in accordance with GAAP, be classified as current assets of a company conducting a business the same as or similar to that of such Person, after deducting adequate reserves in each case in which a reserve is proper in accordance with GAAP.

“DEBT” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all Obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 90 days incurred in the ordinary course of such Person’s business), (c) all Obligations of such Person evidenced by

notes, bonds, debentures or other similar instruments, (d) all Obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Obligations of such Person as lessee under Capitalized Leases, (f) all Obligations of such Person under acceptance, letter of credit or similar facilities, (g) all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (h) all Obligations of such Person in respect of Hedge Agreements, valued at the Agreement Value thereof, (i) all Guarantee Obligations and Synthetic Debt of such Person and (j) all indebtedness and other payment Obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment Obligations.

“DEBT FOR BORROWED MONEY” of any Person means, at any date of determination, the sum of (a) the balance sheet amount of all items that, in accordance with GAAP, would be classified as indebtedness for borrowed money or Capitalized Leases on a Consolidated balance sheet of such Person at such date and (b) all Synthetic Debt of such Person at such date.

“DEBTORS” has the meaning specified in the Plan of Reorganization (and includes, without limitation, the Borrower and the Guarantors).

“DEFAULT” means any Event of Default or any event that would constitute an Event of Default but for the passage of time or the requirement that notice be given or both.

“DEFAULT INTEREST” has the meaning specified in Section 2.07(b).

“DEFAULTED AMOUNT” means, with respect to any Lender Party at any time, any amount required to be paid by such Lender Party to any Agent or any other Lender Party hereunder or under any other Loan Document at or prior to such time that has not been so paid as of such time, including, without limitation, any amount required to be paid by such Lender Party to (a) any other Lender Party pursuant to Section 2.13 to purchase any participation in Loans owing to such other Lender Party and (b) any Agent pursuant to Section 7.05 to reimburse such Agent for such Lender Party’s ratable share of any amount required to be paid by the Lender Parties to such Agent as provided therein. In the event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder or under any other Loan Document on the same date as the Defaulted Amount so deemed paid in part.

“DEFAULTING LENDER” means, at any time, any Lender Party that, at such time, (a) owes a Defaulted Amount or (b) shall take any action or be the subject of any action or proceeding of a type described in Section 6.01(f).

“DISCLOSED LITIGATION” has the meaning specified in Section 4.01(f).

“DOMESTIC LENDING OFFICE” means, with respect to any Lender Party, the office of such Lender Party specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party, as the case may be, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrower and the Administrative Agent.

“EBITDA” means, with respect to the Borrower and its Subsidiaries for any period, the sum of the following determined on a Consolidated basis in accordance with GAAP: (a) Net Income, plus (b) without duplication and to the extent deducted from Net Income for such period, the sum of (i) interest expense, (ii) income tax expense, (iii) depreciation and amortization expense, and (iv) any non-cash charges, minus (c) without duplication and to the extent included in Net Income for such period, any extraordinary gains and any non-cash items of income.

“EFFECTIVE DATE” has the meaning specified in Section 3.01.

“EFFECTIVE DATE PAYDOWN” has the meaning specified in Section 2.01(d).

“ELIGIBLE ASSIGNEE” means (a) a Lender Party; (b) an Affiliate of a Lender Party; (c) an Approved Fund; (d) any commercial bank organized under the laws of the United States or any State thereof, or the laws of any other country; a finance company, insurance company or other financial institution, investment, mutual or other fund which is engaged in making, purchasing, holding or otherwise investing in commercial loans or other senior secured debt obligations as one of its businesses; or a qualified institutional buyer, as such term is defined under Rule 144A as promulgated under the Securities Act, provided that any such entity, together with its affiliated funds, has total assets of at least $250 million and is not a competitor, or an owner of a majority equity interest in a competitor, of any Loan Party; (e) any other Person (other than an individual) that, unless an Event of Default has occurred and is continuing, is approved by Borrower (such approval not to be unreasonably withheld or delayed); provided, however, that neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under this definition.

“ELIGIBLE TRANSFEREE” means and includes a Person that is (a) a commercial bank, financial institution or other institutional “accredited investor” (as defined in Regulation D of the Securities Act) and (b) (i) a retirement fund administered by a public agency for the exclusive benefit of federal, state or local public employees; (ii) an investment company registered under the Investment Company Act of 1940 (15 U.S.C. ss. 80b-1 et seq.); (iii) a collective investment trust organized by banks under Part Nine of the Rules of the Comptroller of the Currency; (iv) a closed end investment trust; (v) a chartered or licensed life insurance company or property and casualty insurance company; (vi) a banking and other chartered or licensed lending institution; (vii) an investment adviser registered under the Investment Advisers Act of 1940 (15 U.S. ss. 80b- 1 et seq.); or (viii) such other Person as the Gaming Authorities may determine for reasons in accordance with the policies of Gaming Laws.

“ENVIRONMENTAL ACTION” means any action, suit, demand, written demand letter, claim, written notice of non-compliance or violation, written notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

“ENVIRONMENTAL LAW” means any applicable Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or enforceable agency interpretation, legally enforceable policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.

“ENVIRONMENTAL PERMIT” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“EQUITY INTERESTS” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

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

“ERISA AFFILIATE” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Internal Revenue Code.

“ERISA EVENT” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30- day notice requirement with respect to such event has been waived by the PBGC or (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 a 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; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041 (a)(2) of ERISA (including any such notice with

respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that could reasonably be expected to constitute grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“ESCROW BANK” has the meaning specified in Section 2.15(c).

“EVENTS OF DEFAULT” has the meaning specified in Section 6.01.

“EXCLUDED PROPERTIES” shall mean those real estate assets identified as “Excluded Properties” on Schedule 4.01(v).

“EXCLUDED SUBSIDIARIES” has the meaning specified in Section 5.01(e).

“EXISTING CREDIT AGREEMENT” has the meaning specified in Preliminary Statement (1) hereto.

“EXISTING CREDIT AGREEMENT DEBT” has the meaning specified in Preliminary Statement (1) hereto.

“EXISTING NOTES” means the “Notes” as such term is defined in the Existing Credit Agreement.

“EXTRAORDINARY RECEIPT” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including, without limitation, tax refunds, pension plan reversions, proceeds of insurance (including, without limitation, any key man life insurance but excluding proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustment received in connection with any purchase agreement; provided, however, that an Extraordinary Receipt shall not include cash receipts received from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.

“FEDERAL FUNDS RATE” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so

published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“FINAL ORDER” means a final order, ruling or judgment issued by the Bankruptcy Court in the Bankruptcy Cases, which order, ruling or judgment (a) is in full force and effect, (b) is not stayed, and (c) is no longer subject to review, reversal, modification or amendment, by appeal or writ of certiorari or otherwise; provided, however, that the possibility that a motion under Rule 50 or 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Federal Rules of Civil Procedure or Bankruptcy Rules, may be filed relating to such order, ruling or judgment shall not cause such order, ruling or judgment not to be a Final Order.

“FISCAL YEAR” means a fiscal year of the Borrower and its Consolidated Subsidiaries ending on December 31 in any calendar year.

“FREE CASH FLOW” means, with respect to the Borrower and its Subsidiaries and for any period, the remainder of the following determined on a Consolidated basis in accordance with GAAP to the extent applicable: (a) Available Cash Flow minus (b) the aggregate amount of principal of, and accrued interest on, all Debt for Borrowed Money paid by the Borrower during such period.

“FUND” means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

“FUNDED DEBT” of any Person means Debt in respect of the Loans, in the case of the Borrower, and all other Debt of such Person that by its terms matures more than one year after the date of determination or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year after such date.

“GAAP” has the meaning specified in Section 1.03.

“GAMING AUTHORITIES” 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 existing, or any officer or official thereof, including, without limitation, the New Jersey Casino Control Commission, the New Jersey Division of Gaming Enforcement and any other agency, in each case, with authority to regulate any gaming operation (or proposed gaming operation) owned, managed or operated by the Loan Parties or any of their Subsidiaries.

“GAMING FACILITY” means the casinos owned or operated by the Loan Parties and all other real property owned by a Loan Party which is directly ancillary thereto or used in connection therewith, including any hotels, resorts, card clubs, theaters, parking facilities, recreational vehicle parks, timeshare operations, retail shops, restaurants, other buildings, land, golf courses and other recreation and entertainment facilities, marinas, vessels, barges, ships and related equipment.

“GAMING LAWS” means all laws and regulations pursuant to which any Gaming Authority possesses regulatory, licensing or permit authority over gambling, gaming or casino activities conducted by the Loan Parties.

“GAMING LICENSES” means every license, franchise or other authorization required to own, lease, operate or otherwise conduct or manage gambling, gaming or casino activities in any state or jurisdiction where the Loan Parties conduct business, and any applicable liquor licenses.

“GENERAL PARTNER” has the meaning specified in the Preliminary Statements.

“GOVERNMENTAL AUTHORITY” means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether xxxxxxx, xxxxx, xxxxxxxxxx, xxxxxxxxxxx, local or foreign.

“GOVERNMENTAL AUTHORIZATION” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

“GROSS GAMING REVENUES” means all revenues derived from slot machines and other licensed gaming activities at the casinos operated by the Borrower and its Subsidiaries (other than the sale of lottery tickets), less payments to winning players and all applicable gaming taxes; provided, however, that the cash equivalent value of any merchandise or thing of value included in a jackpot or payout shall not be deemed to be payments to winning players for purposes of this calculation. For the avoidance of doubt, “Gross Gaming Revenues” shall not include revenues from any non-gaming activity at the Properties, including, but not limited to, hotel charges, retail sales, service charges (such as spa, limousine and other non-room/retail services provided by casino hotels) and/or rental income from subtenants and/or licensees.

“GUARANTEE OBLIGATION” means, with respect to any Person, any Obligation or arrangement of such Person to guarantee or intended to guarantee any Debt (“PRIMARY OBLIGATIONS”) of any other Person (the “PRIMARY OBLIGOR”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any Obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or

equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guarantee Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

“GUARANTEED OBLIGATIONS” has the meaning specified in Section 8.01.

“GUARANTORS” means the General Partner and the Subsidiary Guarantors and any other Person who at any time guarantees the payment or performance of the Obligations or any portion thereof.

“GUARANTY” means the Parent Guaranty and the Subsidiary Guaranty and any other guaranty of the Obligations or any portion thereof executed by a Guarantor.

“GUARANTY SUPPLEMENT” has the meaning specified in Section 8.05.

“HAZARDOUS MATERIALS” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.

“HEDGE AGREEMENTS” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements.

“ICAHN ENTITY” means any Person that is (1) a corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) 100% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is directly or indirectly beneficially owned and controlled by a member or members of the Icahn Family, (b) the interest in the capital or profits of such partnership, joint venture or limited liability company is directly or indirectly beneficially owned and controlled by a member or members of the Icahn Family, or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned and controlled by a member or members of the Icahn Family or (2) a Subsidiary of Icahn Enterprises L.P., a Delaware limited partnership or Icahn Enterprises Holdings L.P., a Delaware limited partnership.

“ICAHN FAMILY” means: (i) Xxxx X. Icahn and his children; (ii) the current and former spouses of any person described in clause (i) of this definition; (iii) the ancestors and descendants, whether by blood, marriage or adoption, of any person described in clause (i) or (ii) of this definition; and (iv) the Icahn Entities.

“INDEMNIFIED PARTY” has the meaning specified in Section 9.04(b).

“INITIAL LENDER PARTIES” means the Initial Lenders.

“INITIAL LENDERS” means the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders.

“INSUFFICIENCY” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

“INTELLECTUAL PROPERTY” has the meaning specified in Section 1(b) of the Security Agreement.

“INTELLECTUAL PROPERTY SECURITY AGREEMENT” has the meaning specified in Section 3.01(b)(ii)(G).

“INTEREST BEARING COMPONENT” means, as of any date of determination, a principal amount of the Term Loans equal to $334,000,000.00 less (A) the aggregate amount of principal payments made by Borrower and/or the Guarantors with respect to the Term Loans from and after the Effective Date and prior to such date of determination, which are to be applied to the repayment of the Interest Bearing Component of the Term Loans in accordance with Section 2.05 of this Agreement and (B) without duplication of the adjustment reflected in the definition of “New Term Loan” in the Plan of Reorganization, that portion of any Recharacterization Amount (as defined in the Plan of Reorganization) that the Bankruptcy Court determines should be applied to reduce the Interest Bearing Component, if any, to the extent and in the manner determined by the Bankruptcy Court pursuant to its resolution of the Recharacterization Motion (as defined in the Plan of Reorganization); provided, however, that the Interest Bearing Component shall never be less than zero.

“INTERNAL REVENUE CODE” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“INVENTORY” means all Inventory referred to in Section 1(b) of the Security Agreement.

“INVESTMENT” in any Person means any loan or Loan to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (i) or (j) of the definition of “DEBT” in respect of such Person.

“LENDER PARTY” means any Lender.

“LENDERS” means the Initial Lenders and each Person that shall become a Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.

“LICENSE REVOCATION” shall mean the loss, revocation, failure to renew, termination or suspension of any Gaming License issued by any Gaming Authority covering any Gaming Facility.

“LIEN” means any mortgage, deed of trust, lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

“LIQUOR LAWS” has the meaning specified in Section 9.15(a).

“LOAN” means a Term Loan.

“LOAN DOCUMENTS” means (a) this Agreement, (b) the Notes, (c) the Guaranty and all Guaranty Supplements, (d) the Collateral Documents, (e) the Contribution Agreement, if any, and (f) any and all other agreements, documents, instruments or certificates from time to time executed and/or delivered by any Loan Party in connection with any of the foregoing to which any Agent or Lender Party is a party or is an intended beneficiary as evidenced by the terms thereof, in each case as amended.

“LOAN PARTIES” means (subject to Section 5.01(e)) the Borrower and the Guarantors.

“MAINTENANCE CAPITAL EXPENDITURES” means Capital Expenditures other than Project Capital Expenditures.

“MARGIN STOCK” has the meaning specified in Regulation U.

“MATERIAL ADVERSE CHANGE” means any material adverse change in the business, condition (financial or otherwise), operations, performance or properties of the Borrower and its Subsidiaries, taken as a whole.

“MATERIAL ADVERSE EFFECT” means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance or properties of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Loan Parties to perform their Obligations under the Loan Documents or (c) the rights and remedies of any Agent or any Lender Party under any Loan Document.

“MATURITY DATE” means December 31, 2015.

“MOODY’S” means Xxxxx’x Investor Services, Inc.

“MORTGAGE POLICIES” has the meaning specified in Section 3.01(b)(iv)(B).

“MORTGAGES” has the meaning specified in Section 3.01(b)(iv).

“MULTIEMPLOYER PLAN” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“MULTIPLE EMPLOYER PLAN” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“NET CASH PROCEEDS” means:

(a)

with respect to any sale, lease, transfer or other disposition of any asset of the Borrower or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of assets (x) by any Unrestricted Subsidiary or (y) pursuant to clauses (i) through (ix) of Section 5.02(e)), the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such sale, lease, transfer or other disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Debt (other than Debt under the Loan Documents) that (x) is secured by such asset and that is required to be repaid or (y) is Debt of the Subsidiary that is the subject of such sale, lease, transfer or disposition and repaid, in each case in connection with such sale, lease, transfer or other disposition thereof, (B) the reasonable and customary out-of-pocket costs, fees, commissions, premiums and expenses incurred by the Borrower or its Subsidiaries, (C) federal, state, provincial, foreign and local taxes reasonably estimated (on a Consolidated basis) to be actually payable within the current or the immediately succeeding tax year as a result of any gain recognized in connection therewith (including any Tax Distributions required to be paid in connection therewith), and (D) a reasonable reserve for any purchase price adjustment or any indemnification payments (fixed and contingent) attributable to the seller’s obligations to the purchaser undertaken by the Borrower or any of its Subsidiaries in connection with such sale, lease, transfer or other disposition (but excluding any purchase price adjustment or any indemnity which, by its terms, will not under any circumstances be made prior to the Maturity Date); provided, however, that Net Cash Proceeds shall not include any such amounts to the extent such amounts are reinvested in Casino Property within 365 days after the date of receipt thereof as permitted by Section 5.02(e)(xi) hereof;

(b)

with respect to the incurrence or issuance of any Debt by the Borrower or any of its Subsidiaries (other than Debt incurred or issued (x) by any Unrestricted Subsidiary or (y) pursuant to Section 5.02(b), but including Debt under clause (xi) thereof to the extent such Debt is not used to make (A) Investments pursuant to Section 5.02(f) within 60 days following the incurrence thereof or (B) Capital Expenditures pursuant to Section 5.02(o) that are committed to be made within 365 days following the incurrence of such Debt pursuant to a plan disclosed to the Lenders in reasonable detail within 60 days following the incurrence of such Debt), an amount equal to the excess of (i) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (ii) the underwriting discounts and commissions or other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by the Borrower or any of its Subsidiaries in connection with such incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i);

(c)

with respect to the sale or issuance of any Equity Interests (including, without limitation, the receipt of any capital contribution) by the Borrower or any of its Subsidiaries (other than its Unrestricted Subsidiaries), an amount equal to the excess of (i) the sum of the cash and Cash Equivalents received in connection with such sale or issuance over (ii) the underwriting discounts and commissions or similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses, incurred by the Borrower or any of its Subsidiaries in connection with such sale or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i), such excess amount to exclude any portion thereof that is utilized to make Investments pursuant to Section 5.02(f)(vii); and

(d)

with respect to any Extraordinary Receipt received by the Borrower or any of its Subsidiaries (other than its Unrestricted Subsidiaries) that is not otherwise included in clauses (a), (b) or (c) above, an amount equal to the excess, if any, of (i) the sum of the cash and Cash Equivalents received in connection therewith over (ii) the sum of (A) premiums and expenses incurred by the Borrower or its Subsidiaries and (B) federal, state, provincial, foreign and local taxes reasonably estimated (on a Consolidated basis) to be actually payable within the current or the immediately succeeding tax year as a result of any gain recognized in connection therewith (including any Tax Distributions required to be paid in connection therewith); provided, however, that Net Cash Proceeds shall not include any such amounts to the extent such amounts are (1) if the Extraordinary Receipt in question is proceeds of casualty insurance, used to repair and/or replace the damaged property or (2) as to all other Extraordinary Receipts, reinvested in the business of the Borrower and its Subsidiaries, in each case within 365 days after the date of receipt thereof.

“NET INCOME” means, with respect to the Borrower and its Subsidiaries and for any period, the net income (or loss) determined on a Consolidated basis in accordance with GAAP, provided that, in determining such net income (or loss) there shall be excluded, without duplication and to the extent included in or deducted from net income for such period (a) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or loss) of any Person (other than a Subsidiary) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary to the extent that the declaration or payment of any dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than such obligations under the Loan Documents) or law applicable to such Subsidiary.

“NEW LIMITED PARTNER” means TERH LP Inc., the limited partner of the Borrower as of the Effective Date.

“NEW TOWER” means the new tower at the Xxxxx Xxx Mahal Casino Resort in Atlantic City, New Jersey, which was recently built as referred to in the Existing Credit Agreement.

“NON-CONSENTING LENDER” means, in the event that the Required Lenders have agreed to any consent, waiver or amendment pursuant to Section 9.01 that requires the consent of one or more Lenders in addition to the Required Lenders, any Lender who is entitled to agree to such consent, waiver or amendment but who does not so agree.

“NON-INTEREST COMPONENT” means, as of any date of determination, a principal amount of the Term Loans equal to $22,374,965.32 less the sum of (A) the aggregate amount of principal payments made by the Borrower and/or the Guarantor with respect to the Terms Loans from and after the Effective Date and prior to such date of determination, which are applied to repayment of the Non-Interest Component in accordance with Section 2.05 of this Agreement, (B) the aggregate amount of interest paid on the Interest Bearing Component of the Term Loans from the Effective Date through and including such date of determination and (C) that portion, as determined by the Bankruptcy Court, of any Recharacterization Amount (as defined in the Plan of Reorganization) that the Bankruptcy Court determines should be applied to reduce the Non-Interest Component, if any, to the extent and in the manner determined by the Bankruptcy Court pursuant to its resolution of the Recharacterization Motion (as defined in the Plan of Reorganization); provided, however, that the Non-Interest Component shall never be less than zero.

“NOTE” means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of EXHIBIT B hereto, evidencing all or any portion of the Term Loans payable by the Borrower to such Lender.

“NPL” means the National Priorities List under CERCLA.

“OBLIGATION” means, with respect to any Person, any payment, performance or other obligation of such Person of any kind, including, without limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f). Without limiting the generality of the foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the Term Loans (including the Outstanding Prior Advances, as reduced by the Effective Date Paydown) and the obligation to pay principal (including both the Interest Bearing Component and the Non-Interest Component), interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Loan Party under any Loan Document, (b) the obligation of such Loan Party to reimburse any amount in respect of any of the foregoing that any Lender Party, in its sole discretion, may elect to pay or advance on behalf of such Loan Party and (c) all “Obligations,” as such term is defined in the Existing Credit Agreement which have not been paid as of the Effective Date.

“OTHER TAXES” has the meaning specified in Section 2.12(b).

“OUTSTANDING PRIOR ADVANCES” has the meaning specified in Section 2.01(c).

“PARENT GUARANTY” means the guaranty of the General Partner set forth in Article VIII.

“PARTNERSHIP AGREEMENT” means the Fifth Amended and Restated Agreement of Limited Partnership of the Borrower, dated as of the Plan Effective Date.

“PATRIOT ACT” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).

“PERMIT” means any license (including, without limitation, any Gaming License), franchise, authorization, statement of compliance, certificate of operation, certificate of occupancy and permit required for the lawful ownership, occupancy, operation and use of all or a material portion of the Gaming Facilities (which may be temporary or permanent) (including, without limitation, those required for the use of the Gaming Facilities as a licensed casino facility).

“PERMITTED BUSINESS” means: (a) any line of business conducted by the Borrower, the General Partner or any Subsidiary on the Effective Date; (b) all businesses whether or not licensed by a Gaming Authority that are necessary for, incident to, useful to, arising out of, supportive of or connected to the development, ownership or operation of a gaming facility; (c) any casino and gaming activities (including, without limitation, the development, ownership, operation or management of casinos, casino hotels, riverboat casinos, slot machines, video lottery terminals, racetracks, internet gaming or related activities); or (d) any business that is a reasonable extension, development or expansion of any of the foregoing.

“PERMITTED ENCUMBRANCES” has the meaning specified in the Mortgages.

“PERMITTED LIENS” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced (in each case, that is not being contested in good faith and by proper proceedings or pursuant to this Agreement, is not required to be contested and such enforcement, collection, execution, levy or foreclosure proceeding could not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect): (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b); (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that either (i) (A) are not overdue for a period of more than 60 days and (B) individually or together with all other Permitted Liens outstanding on any date of determination do not materially adversely affect the use of the property to which they relate or (ii) are being contested in good faith and by proper proceedings, as to which appropriate reserves are being maintained and each such Lien (A) has not attached to such property, (B) has not become enforceable and (C) is subject to a stay; (c) pledges or deposits in the ordinary course of business to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) Liens securing judgments (or the payment of money not constituting an Event of Default under Section 6.01(g) or securing appeal or other surety bonds related to such judgments); (f) easements, zoning restrictions, rights of way and other encumbrances on title to real property that do not materially adversely affect the use or value of such property for its present purposes; (g) operating leases, subleases, licenses, occupancy agreements and rights-of-use entered into by any Loan Party or any of their respective Subsidiaries as a lessor or a similar capacity in the ordinary course of business that do not materially and adversely affect the use of the Properties encumbered thereby for its intended purpose; and (h) Permitted Encumbrances.

“PERSON” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

“PLAN” means a Single Employer Plan or a Multiple Employer Plan.

“PLAN EFFECTIVE DATE” means the effective date of the Plan of Reorganization.

“PLAN OF REORGANIZATION” means the Supplemental Modified Sixth Amended Chapter 11 Plan of Reorganization submitted to the Bankruptcy Court by the Ad Hoc Committee of Certain Holders of the 8-1/2% Senior Secured Notes Due 2015 issued by the Borrower and the Debtors, together with any and all Contracts, schedules, exhibits, supplements, certificates, orders and other documents and instruments prepared in connection therewith.

“PLANS AND SPECIFICATIONS” means the plans and specifications for the construction of the New Tower which are described in Schedule V to the Existing Credit Agreement.

“PLEDGED DEBT” has the meaning specified in the Security Agreement.

“PLEDGED EQUITY” has the meaning specified in the Security Agreement.

“POST-PETITION INTEREST” has the meaning specified in Section 8.06(b).

“PREFERRED INTERESTS” means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person’s property and assets, whether by dividend or upon liquidation.

“PREPAYMENT PREMIUM” shall mean, for each optional prepayment of the Term Loans made pursuant to Section 2.06(a) hereof during the eighteen (18) month period after the Effective Date: (x) in the case of an optional prepayment made during the period from the Effective Date to the date that is six (6) calendar months thereafter (the “SIX MONTH DATE”), a prepayment premium equal to 2.00% of the aggregate principal amount of the Interest Bearing Component of the Term Loans then being prepaid, and (y) in the case of an optional prepayment made during the period from the Business Day following the Six Month Date to the date that is twelve (12) calendar months thereafter, a prepayment premium equal to 1.00% of the aggregate principal amount of the Interest Bearing Component of the Term Loans then being prepaid.

“PROJECT CAPITAL EXPENDITURES” means Capital Expenditures consisting of new construction (including, without limitation, the construction of the New Tower) or other capital improvements.

“PROPERTIES” shall mean those real estate assets listed on Schedule 4.01(v).

“QUALIFYING ICAHN ENTITY” shall mean an Icahn Entity that is either: (a) a bank or licensed lending institution exempt from the qualification requirements of the New Jersey Casino Control Act or an institutional investor waived from the qualification requirements of the New Jersey Casino Control Act or (b) a Person found qualified by the New Jersey Casino Control Commission to serve in the capacity of successor Agent hereunder.

“REDEEMABLE” means, with respect to any Equity Interest, any such Equity Interest that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.

“REFINANCING DEBT” has the meaning specified in Section 5.02(b)(xiv).

“REGISTER” has the meaning specified in Section 9.07(d).

“REGULATION U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“REQUIRED LENDERS” means, at any time, Lenders owed or holding at least a majority of the aggregate principal amount of the Term Loans outstanding at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time the aggregate principal amount of the Term Loans owing to such Lender (in its capacity as a Lender) and outstanding at such time.

“RESPONSIBLE OFFICER” means the chief executive officer, president, chief financial officer or 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.

“RIGHT OF FIRST REFUSAL” has the meaning specified in Section 5.02(e)(x).

“RIGHTS OFFERING” has the meaning specified in Recital (3).

“ROFO AGREEMENT” means the Right of First Offer Agreement, dated as of May 20, 2005, among Xxxxx Organization LLC, the General Partner and the Borrower as amended by that certain Amended Right of First Offer Agreement dated as of September 27, 2006, as amended.

“SECURED PARTIES” means the Agents and the Lender Parties.

“SECURITIES ACT” means the Securities Act of 1933, as amended.

“SECURITY AGREEMENT” has the meaning specified in Section 3.01(b)(ii).

“SERVICES AGREEMENT” means the Amended and Restated Services Agreement dated as of the Plan Effective Date among the Borrower, the General Partner, Xxxxxx X. Xxxxx and Xxxxxx Xxxxx (and any renewals or replacements thereof or amendments thereto so long as the terms of such renewals, replacements or amendments are not less favorable to the Secured Parties in any material respect, taken as a whole, as compared to such agreement as in effect on the Plan Effective Date).

“SINGLE EMPLOYER PLAN” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained during any of the preceding five plan years and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“SIX MONTH DATE” has the meaning specified in the definition of “PREPAYMENT PREMIUM”.

“SOLVENT” and “SOLVENCY” mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than

the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“S&P” means Standard & Poor’s, a division of The McGraw Hill Companies, Inc.

“SUBORDINATED OBLIGATIONS” has the meaning specified in Section 8.06.

“SUBSIDIARY” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate, is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries. For purposes of Section 2.06(b) and Articles IV (other than Section 4.01(h) thereof), V (other than Section 5.03(b), (c) and (d) thereof) and VI, the term “Subsidiary” shall not include any Unrestricted Subsidiary, unless specifically referred to therein.

“SUBSIDIARY GUARANTORS” means the Subsidiaries of the General Partner listed on Schedule II hereto and each other Subsidiary of the General Partner that shall be required to execute and deliver a guaranty pursuant to Section 5.01(j).

“SUBSIDIARY GUARANTY” means the guaranty of the Subsidiary Guarantors set forth in Article VIII, together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, amended and restated, modified or otherwise supplemented.

“SUPPLEMENTAL COLLATERAL AGENT” has the meaning specified in Section 7.01(c).

“SURVIVING DEBT” means Debt of each Loan Party and its Subsidiaries outstanding immediately before the Effective Date and set forth on Schedule 4.01(t).

“SYNTHETIC DEBT” means, with respect to any Person as of any date of determination thereof, all Obligations of such Person in respect of transactions entered into by such Person, that are intended to function primarily as a borrowing of funds (including, without limitation, any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Debt” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

“TAX DISTRIBUTION” has the meaning specified in Section 5.02(g)(vi).

“TAXES” has the meaning specified in Section 2.12(a).

“TCI 2” means TCI 2 Holdings, LLC, a Delaware limited liability company.

“TERM B-1 ADVANCE” has the meaning specified in the Existing Credit Agreement.

“TERM B-2 ADVANCE” has the meaning specified in the Existing Credit Agreement.

“TERM LOANS” has the meaning specified in Section 2.01.

“THIRD PARTY OFFER” means a bona fide offer to purchase the Xxxxx Xxxxxx by a third party that is not a Loan Party and has the financial means to close the underlying acquisition, evidenced by an executed purchase agreement or letter of intent that (i) contains all the material terms and conditions of such offer, (ii) is subject to the applicable terms and conditions of this Agreement, including, without limitation, Section 5.02(e)(x), and (iii) provides that (A) the purchase price shall be payable only in the form of cash or publicly traded securities, (B) the Xxxxx Xxxxxx shall be delivered free and clear of all liens and encumbrances (other than customary permitted liens and encumbrances), and no other property or assets unrelated to the Xxxxx Xxxxxx shall be included in such sale, and (C) the closing under the contract shall occur not later than a specified date that is no earlier than twenty-one (21) days and no later than one hundred twenty (120) days after the date on which such Third Party Offer is received by the Loan Parties.

“TRADEMARK LICENSE AGREEMENT” means the Second Amended and Restated Trademark License Agreement, dated as of the Plan Effective Date, among the Borrower, the General Partner, certain Subsidiaries of the Borrower, Xxxxxx X. Xxxxx and Xxxxxx Xxxxx.

“TRANSACTION” means consummation of the transactions contemplated by the Transaction Documents.

“TRANSACTION DOCUMENTS” means, collectively, the Loan Documents.

“XXXXX XXXXXX” means the hotel and complex currently known as the “Xxxxx Xxxxxx Hotel Casino in Atlantic City, New Jersey located on the real property described in item A of Schedule 4.01(v) to the Existing Credit Agreement.

“XXXXX XXXXXX SALE” means a sale by Xxxxx Xxxxxx Associates, LLC of the Xxxxx Xxxxxx.

“XXXXX PLAZA” means the hotel and complex currently known as the “Xxxxx Plaza Hotel and Casino” in Atlantic City, New Jersey located on the real property described in item B of Schedule 4.01(v) to the Existing Credit Agreement.

“UNMATURED SURVIVING OBLIGATIONS” means Obligations under this Agreement and the other Loan Documents that by their terms survive the termination of this Agreement or the other Loan Documents but are not, as of the date of determination, due and payable and for which no outstanding claim has been made.

“UNRESTRICTED SUBSIDIARY” means (a) any direct or indirect Subsidiary of the General Partner that (i) has been designated by the Board of Directors of the General Partner to be an Unrestricted Subsidiary, (ii) does not own any Equity Interests or Debt of, or own or hold any Lien or any property of the Borrower or any Subsidiary Guarantor, (iii) does not create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the relevant lender has recourse to the Borrower or any Subsidiary Guarantor or any of their respective assets and (iv) may be designated as an “Unrestricted Subsidiary” in compliance by the Borrower with Section 5.02(f) and (b) any Subsidiary of an “Unrestricted Subsidiary”. In no event shall the Borrower or any Subsidiary of the Borrower existing on the date hereof, other than the Unrestricted Subsidiaries identified on Schedule IV hereto, be an “Unrestricted Subsidiary” nor shall any Subsidiary of the Borrower that is not designated as an “Unrestricted Subsidiary” on the date such Subsidiary is created or acquired be designated as an “Unrestricted Subsidiary” after the date of creation or acquisition unless (x) all Investments made in such Unrestricted Subsidiary prior to such designation shall be treated as Investments in an Unrestricted Subsidiary and subject to the limitations set forth in Section 5.02(f) and (y) after giving effect to such designation and the application of the foregoing clause (x), no Default or Event of Default shall have occurred and be continuing.

“VOTING AGREEMENT” means the Voting Agreement, dated as of May 20, 2005, between the General Partner and Xxxxxx X. Xxxxx, as amended.

“VOTING INTERESTS” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

“WARRANT AGREEMENT” means the Warrant Agreement, dated as of May 20, 2005, between the General Partner and Xxxxxx X. Xxxxx, as amended.

“WEIGHTED AVERAGE LIFE TO MATURITY” means, when applied to any Debt, or preferred stock, as the case may be, at any date, the quotient obtained by dividing: (a) the sum of the products of (x) the number of years from the date of determination to the date of each successive scheduled principal payment of such Debt, including remaining sinking fund payments or payments at serial or final maturity or redemption or similar payment with respect to such preferred stock multiplied by (y) the amount of such payment, by (b) the sum of all such payments.

“WITHDRAWAL LIABILITY” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

Section 1.02. Computation of Time Periods; Other Definitional Provisions. In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “FROM” means “from and including” and the words “TO” and “UNTIL” each mean “to but excluding”. References in the Loan Documents to any agreement or contract “AS AMENDED” shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.

Section 1.03. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(g) (“GAAP”).

Section 1.04. U.S. Dollars. All Term Loans were made in U.S. Dollars, and all payments made or to be made to the Agents and/or the Lenders shall be in U.S. Dollars and neither any Agent nor any Lender is required to accept any payment other than in U.S. Dollars.

ARTICLE II

AMOUNTS AND TERMS OF THE TERM LOANS

Section 2.01. The Term Loans.

(a) The Term B-1 Advances. Xxxx Bank previously made a Term B-1 Advance to the Borrower under the Existing Credit Agreement in the principal amount of $98,795,750.00, the outstanding principal amount of which is $96,325,856.18 on the Effective Date. Xxxx Bank Nevada previously made a Term B-1 Advance to the Borrower under the Existing Credit Agreement in the principal amount of $294,454,250.00, the outstanding principal amount of which is $287,092,803.70 on the Effective Date. As of the date hereof, the holders of the Term B-1 Advances are the Initial Lenders.

(b) The Term B-2 Advances. Xxxx Bank Nevada previously made a Term B-2 Advance to the Borrower under the Existing Credit Agreement in the principal amount of $100,000,000.00, the outstanding principal amount of which is $97,956,305.44 on the Effective Date. As of the date hereof, the holders of the Term B-2 Advance are the Initial Lenders.

(c) The loans or advances referred to in Sections 2.01(a) and 2.01(b) previously made to the Borrower under the Existing Credit Agreement and outstanding on the Effective Date (collectively, the “OUTSTANDING PRIOR ADVANCES”) aggregate $481,374,965.32 in principal amount.

(d) On the Effective Date, a $125,000,000.00 portion of the Outstanding Prior Advances shall be repaid by delivering such amounts to the Initial Lenders in accordance with the wiring instructions set forth on Schedule 2.01(d) attached hereto (the “EFFECTIVE DATE PAYDOWN”) with proceeds from the Rights Offering in the amount of $125,000,000. The

remaining balance of the Outstanding Prior Advances after giving effect to the Effective Date Paydown are herein called the “TERM LOANS”, of which, as of the Plan Effective Date, $334,000,000.00 initially comprises the Interest Bearing Component and $22,374,965.32 initially comprises the Non-Interest Component (in each case, prior to giving effect to any reduction on account of any portion of the Recharacterization Amount, if any, as set forth in the definitions of Interest Bearing Component and Non-Interest Component or pursuant to Section 2.05 hereof). The parties hereto acknowledge and agree that, upon the satisfaction (or effective waiver by the Agents and/or the Lender Parties, as may be applicable and required) of all conditions precedent to the effectiveness of this Agreement as set forth in Section 3.01, this Agreement shall become effective on the Effective Date, whereupon the Outstanding Prior Advances, as reduced by the Effective Date Paydown, shall immediately and automatically become the Term Loans hereunder and shall for all purposes be outstanding under, governed by and payable in accordance with this Agreement, the Notes and the other Loan Documents. None of the Term Loans or any portion thereof may be borrowed after being repaid.

Section 2.02. Reduction of Non-Interest Component for Interest Payments. As set forth in the definition of Non-Interest Component in this Agreement, the Non-Interest Component of the Term Loans shall (except as otherwise determined by the Bankruptcy Court in resolving the Recharacterization Motion) be automatically reduced, on a dollar-for-dollar basis, by the aggregate amount of all interest payments made after the Effective Date by the Borrowers and/or the Guarantors with respect to the Interest Bearing Component of the Terms Loans, until the Non-Interest Component has been reduced to zero.

Section 2.03. [Reserved].

Section 2.04. Repayment of Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the aggregate outstanding principal amount of the Term Loans as follows: (i) prior to the Maturity Date, in quarterly installments payable on the last Business Day of each March, June, September and December, commencing on September 30, 2010, in an amount equal to 0.25% of the aggregate principal amount of the Interest Bearing Component of all outstanding Term Loans on the Effective Date (after giving effect to the Effective Date Paydown) and (ii) on the Maturity Date, in an amount equal to the aggregate principal amount of the Term Loans outstanding on such date.

Section 2.05. Application of Payments on Term Loans. Payments applied to the outstanding principal amount of the Term Loans (other than any payments described in Section 2.02 hereof) from and after the Effective Date shall first be applied to the Interest Bearing Component until the Interest Bearing Component is reduced to zero and shall thereafter be applied to the Non-Interest Component. Any principal or interest paid on the Term Loans at any time after the Effective Date which relates to any portion of the Recharacterization Amount shall be adjusted or applied as the Bankruptcy Court may determine in resolving the Recharacterization Motion (and the Agent, Lenders, the Borrower and the other Loan Parties shall enter into appropriate written amendments to this Agreement and each other Loan Document to the extent necessary to give effect to any such adjustment or application).

Section 2.06. Prepayments.

(a) Optional. The Borrower may upon at least one Business Day’s notice to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Term Loans in whole or ratably in part, together with accrued interest to the date of such prepayment on the aggregate principal amount of the Interest Bearing Component of the Term Loans that is then being prepaid and any Prepayment Premium, if applicable; provided, however, that each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $500,000 in excess thereof; provided, however, that, in the case of any such notice of an optional prepayment made in connection with a proposed refinancing in full of the Term Loans, the Borrower shall be permitted to revoke such notice in the event that such refinancing is not consummated subject to payment of all costs of the Lenders under Section 9.04(c) incurred by such Lenders as a result of such notice of prepayment. Subject to allocation among the Interest Bearing Component and the Non-Interest Component as set forth in Section 2.05, each such prepayment of any Term Loans shall be applied ratably to the remaining installments thereof on a pro rata basis.

(b) Mandatory.

(i) Subject to the Borrower’s rights under clause (iii) of this Section 2.06(b) below, the Borrower shall, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries at any time after the Effective Date, offer to the Lenders to prepay, at 100% of the principal amount being prepaid, an aggregate principal amount of the Term Loans or deposit into the Collateral Account an amount equal to the amount of such Net Cash Proceeds. Subject to allocation among the Interest Bearing Component and the Non-Interest Component as set forth in Section 2.05, each such prepayment accepted by the Lenders shall be applied ratably to each of the Term Loans on a pro rata basis. Each Lender shall have the right to reject any offered mandatory prepayment under this Section 2.06(b)(i) and, if a Lender does so reject an offered mandatory prepayment, the Borrower will offer to the Lenders that have agreed to accept the offered prepayment to prepay to such Lenders ratably the amount of such prepayment so rejected. Any amount of Net Cash Proceeds which all Lenders reject as a mandatory prepayment under this Section 2.06(b) may be retained and used by the Borrower subject to compliance with the other requirements of the Loan Documents.

(ii) The Borrower shall, commencing on March 31, 2011, and on each subsequent anniversary of such date that occurs prior to the Maturity Date, offer to the Lenders to prepay, at 100% of the principal amount being prepaid, a principal amount of the Term Loans equal to fifty percent (50%) of the Free Cash Flow for the calendar year then most recently ended. Each Lender shall have the right to reject any offered mandatory prepayment under this Section 2.06(b)(ii) and, if a Lender does so reject such an offered mandatory prepayment, the Borrower will offer to the Lenders that have agreed to accept the offered prepayment to prepay to such Lenders ratably the amount of such prepayment so rejected. Any amount of Free Cash Flow that all Lenders reject as a mandatory prepayment under this Section 2.06(b)(ii) may be retained and used by the Borrower subject to compliance with the other requirements of the Loan Documents. In

the event one or more Lenders accept in writing the Borrower’s offer to prepay the Term Loans pursuant to this Section 2.06(b)(ii), the Borrower shall make such prepayment not later than April 30 of the applicable calendar year.

(iii) Notwithstanding anything to the contrary contained in subsection (b)(i) of this Section 2.06, so long as no Event of Default shall have occurred and be continuing, if, on any date on which a prepayment of the Term Loans would otherwise be required pursuant to subsection (b)(i) of this Section 2.06, the aggregate amount of Net Cash Proceeds or other amounts otherwise required by such subsection to be applied to prepay the Term Loans on such date are less than or equal to $5,000,000, the Borrower may defer such prepayment until the date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required by such subsections to be applied to prepay the Term Loans exceeds $10,000,000, at which time the aggregate amount of all Net Cash Proceeds received and not applied to prepay the Term Loans shall be required to be offered as a prepayment of the Term Loans in accordance with Section 2.06(b)(i). Upon the occurrence of an Event of Default and upon demand from the Administrative Agent, the Borrower shall immediately prepay the Term Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay the Term Loans in accordance with this Section 2.06 (without giving effect to the first and second sentences of this subsection (b)(iii)) but which have not previously been so applied.

(iv) All prepayments under this subsection (b) shall be made together with (A) accrued interest to the date of such prepayment on the principal amount of the Interest Bearing Component of the Term Loans then being prepaid and (B) any amounts owing pursuant to Section 9.04(c).

Section 2.07. Interest.

(a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of the Interest Bearing Component of the Term Loans owing to each Lender from the Effective Date until the principal amount of the Interest Bearing Component of the Term Loans shall be paid in full, at a rate per annum equal to 12%, payable in arrears quarterly on the last Business Day of each March, June, September and December. For the avoidance of doubt, and notwithstanding anything else herein to the contrary, no interest shall accrue, become due, or be required to be paid at any time with respect to the Non-Interest Component of the Term Loans.

(b) Default Interest. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require that the Borrower pay interest (“DEFAULT INTEREST”) on (i) the unpaid principal amount of the Interest Bearing Component of the Term Loans owing to each Lender Party, payable in arrears on the dates referred to in Section 2.07(a), and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Interest Bearing Component of the Term Loans pursuant to Section 2.07(a), and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender Party that is not

paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid, in the case of interest, on the Interest Bearing Component of the Term Loans on which such interest has accrued pursuant to Section 2.07(a); provided, however, that following the acceleration of the Term Loans, or the giving of notice by the Agent to accelerate the Term Loans, pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent.

Section 2.08. Fees.

(a) [Reserved].

(b) [Reserved].

(c) Administration Fee. The Borrower shall pay to the Administrative Agent an annual Administration Fee of $60,000.00 (the “ADMINISTRATION FEE”), which is payable in equal quarterly installments on the last Business Day of each March, June, September and December.

(d) Agents’ Fees. The Borrower shall pay to each Agent for its own account such other fees as may from time to time be agreed between the Borrower and such Agent.

Section 2.09. [Reserved].

Section 2.10. Increased Costs, Etc.

(a) [Reserved].

(b) If any Lender Party determines that (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) compliance with any law or regulation or any guideline or request issued after the Effective Date from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender Party or any corporation controlling such Lender Party and that the amount of such capital is increased by or based upon the existence of such Lender Party’s Term Loans, then, upon demand by such Lender Party or such corporation and a certificate setting forth the calculation of such amount (with a copy of such demand and such certificate to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to compensate such Lender Party in the light of such circumstances, to the extent that such Lender Party reasonably determines such increase in capital to be allocable to the existence of such Lender Party’s Term Loans; provided, however, that the Borrower shall not be responsible for costs under this Section 2.10(b) arising more than 180 days prior to receipt by the Borrower of the demand from the affected Lender Party pursuant to this Section 2.10(b). A certificate as to such amounts submitted to the Borrower by such Lender Party shall be conclusive and binding for all purposes, absent manifest error.

(d) [Reserved].

(e) In the event that any Lender Party demands payment of costs or additional amounts pursuant to Section 2.10 or Section 2.12 or becomes a Defaulting Lender then (subject to such Lender Party’s right to rescind such demand or assertion within ten days after the notice from the Borrower referred to below) the Borrower may, at its sole cost and expense, upon 20 days’ prior written notice to such Lender Party and the Administrative Agent, elect to cause such Lender Party to assign its Term Loans in full to one or more Persons selected by the Borrower so long as (i) each such Person satisfies the criteria of an Eligible Assignee and is reasonably satisfactory to the Administrative Agent, (ii) such Lender Party receives payment in full in cash of the outstanding principal amount of all Term Loans held by it and all accrued and unpaid interest on the Interest Bearing Component of the Term Loans and all other amounts due and payable to such Lender Party as of the date of such assignment (including, without limitation, amounts owing pursuant to Sections 2.10, 2.12 and 9.04) and (iii) each such Lender Party assignee agrees to accept such assignment and to assume all obligations of such Lender Party hereunder in accordance with Section 9.07.

Section 2.11. Payments and Computations.

(a) The Borrower shall make each payment hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off (except as otherwise provided in Section 2.15), not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, fees or any other Obligation then payable hereunder and under the other Loan Documents to more than one Lender Party, to such Lender Parties for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of such respective Obligations then payable to such Lender Parties and (ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender Party, to such Lender Party for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(d), from and after the effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the other Loan Documents in respect of the interest assigned thereby to the Lender Party assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

(b) The Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the extent payment owed to such Lender Party is not made when due hereunder or under the other Loan Documents, to charge from time to time, to the fullest extent permitted by law, against any or all of the Borrower’s accounts with such Lender Party or such Affiliate any amount so due.

(c) All computations of interest shall be made by the Administrative Agent on the basis of a year of 365 or 366 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d) Whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment or other fee, as the case may be.

(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender Party hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender Party on such due date an amount equal to the amount then due such Lender Party. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender Party shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender Party together with interest on any Interest Bearing Component thereof, for each day from the date such amount is distributed to such Lender Party until the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds Rate.

(f) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Agents and the Lender Parties under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Agents and the Lender Parties in the following order of priority:

(i) first, to the payment of all of the fees, indemnification payments, costs and expenses that are due and payable to the Agents (solely in their respective capacities as Agents) under or in respect of this Agreement and the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such fees, indemnification payments, costs and expenses owing to the Agents on such date;

(ii) second, to the payment of all of the indemnification payments, costs and expenses that are due and payable to the Lenders under Sections 9.04 hereof, Section 22 of the Security Agreement and any similar section of any of the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such indemnification payments, costs and expenses owing to the Lenders on such date;

(iii) third, to the payment of all of the amounts that are due and payable to the Administrative Agent and the Lender Parties under Sections 2.10 and 2.12 hereof on such date, ratably based upon the respective aggregate amounts thereof owing to the Administrative Agent and Lender Parties on such date;

(iv) fourth, to the payment of all of the accrued and unpaid interest on the Interest Bearing Component of the Loans that is due and payable to the Lender Parties under Section 2.07(a) on such date, ratably based upon the respective aggregate amounts of all such interest owing to the Lender Parties on such date;

(v) fifth, subject to allocation among the Interest Bearing Component and the Non-Interest Component as set forth in Section 2.05, to the payment of the principal amount of all of the outstanding Term Loans that is due and payable to the Lender Parties on such date, ratably based upon the respective aggregate amounts of all such principal owing to the Administrative Agent and the Lender Parties on such date; and

(vi) sixth, to the payment of all other Obligations of the Loan Parties owing under or in respect of the Loan Documents that are due and payable to the Agents and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Agents and the other Secured Parties on such date.

If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the Obligations to which, or the manner in which, such funds are to be applied, the Administrative Agent shall distribute such funds ratably among the Lender Parties in accordance with the outstanding principal amounts of the Term Loans they hold at such time, in repayment or prepayment of such of the outstanding Term Loans or other Obligations then owing to such Lender Party, as the Administrative Agent may, in its discretion, so determine, and, if and to the extent applied to the Term Loans, for application to the principal repayment installments thereof in inverse order of maturity and subject to allocation among the Interest Bearing Component and the Non-Interest Component as set forth in Section 2.05.

Section 2.12. Taxes.

(a) Any and all payments by any Loan Party to or for the account of any Lender Party or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto imposed by the United States or any political subdivision thereof or any other jurisdiction or any political subdivision thereof from or through which such payments are made, excluding, in the case of each Lender Party and each Agent, taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such Lender Party or such Agent, as the case may be, is organized or any political subdivision thereof and, in the case of each Lender Party, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of such Lender Party’s Applicable Lending Office or any political subdivision thereof and branch profits taxes imposed by the United States or similar tax imposed by the jurisdiction of such Lender Party’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,

charges, withholdings and liabilities in respect of payments hereunder or under the other Loan Documents being hereinafter referred to as “TAXES”). If any Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender Party or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender Party or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property, intangible, mortgage recording or similar taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement and/or the other Loan Documents (hereinafter referred to as “OTHER TAXES”).

(c) The Loan Parties shall indemnify each Lender Party and each Agent for and hold them harmless against the full amount of Taxes and Other Taxes, and for the full amount of Taxes and Other Taxes imposed or asserted on amounts payable under this Section 2.12, imposed on or paid by such Lender Party or such Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender Party or such Agent (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or on behalf of a Loan Party through an account or branch outside the United States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections (d) and (e) of this Section 2.12, the terms “UNITED STATES” and “UNITED STATES PERSON” shall have the meanings specified in Section 7701 of the Internal Revenue Code.

(e) Each Lender Party that is not a United States person shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender Party and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as reasonably requested in writing by the Loan Party (but only so long thereafter as such Lender Party remains lawfully able to do so), provide each of the Administrative Agent and such Loan Party with two original Internal Revenue Service Forms W-8BEN and/or Form W-8IMY, as applicable (in each case,

certifying that it is entitled to benefits under an income tax treaty to which the United States is a party) or W-8ECI, or in the case of a Lender Party that has certified in writing to the Administrative Agent that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a 10-percent shareholder (within the meaning of Section 871 (h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form W-8BEN or Form W-8IMY, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the other Loan Documents. If the forms provided by a Lender Party at the time such Lender Party first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender Party provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to which a Lender Party becomes a party to this Agreement, the Lender Party assignor was entitled to payments under subsection (a) of this Section 2.12 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender Party assignee on such date. To the extent required by applicable law, each Lender Party that is a United States person shall, on the date of its execution and delivery of this Agreement in the case of each Initial Lender Party and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender Party in the case of each other Lender Party, upon expiration or obsolescence of any form previously submitted under this Section 2.12(e), and from time to time thereafter as reasonably requested in writing by the Loan Party (but only so long thereafter as such Lender Party remains lawfully able to do so), provide each of the Administrative Agent and such Loan Party with two original Internal Revenue Service Forms W-9 (or successor forms) establishing that such Lender Party is not subject to U.S. backup withholding tax. If any form or document referred to in this subsection requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8EC1 or the related certificate described above, that the applicable Lender Party reasonably considers to be confidential, such Lender Party shall give notice thereof to the Borrower and shall not be obligated to include in such form or document such confidential information.

(f) For any period with respect to which a Lender Party has failed to provide the Borrower with the appropriate form, certificate or other document described in subsection (e) above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender Party shall not be entitled to payments of additional amounts or indemnification under subsection (a) or (c) of this Section 2.12 with respect to Taxes imposed by the United States by reason of such failure; provided, however, that should a Lender Party become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Loan Parties shall take such steps as such Lender Party shall reasonably request to assist such Lender Party to recover such Taxes.

(g) If a Lender Party determines, in its sole discretion, that it has received a refund from a taxing authority of Taxes as to which it has been indemnified or paid additional amounts by a Loan Party pursuant to this Section 2.12, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.12 with respect to the Taxes giving rise to such refund), net of all out of pocket expenses of the Lender Party, and without interest (other than any interest paid by the relevant taxing authority with respect to such refund), within 60 days after receipt of such refund. Notwithstanding the foregoing, (i) no Loan Party shall be entitled to review the tax records or financial information of any Lender Party, (ii) no Lender Party shall have any obligation to pursue (and no Loan Party shall have any right to assert) any refund of Taxes that may be paid by a Loan Party, and (iii) a Loan Party receiving any such refund from a Lender Party pursuant to this Section 2.12(g) shall promptly pay over to the Lender Party any portion of such refund that subsequently is disallowed by the relevant taxing authority (plus any interest, penalties or other charges imposed by the relevant taxing authority).

Section 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other than as a result of an assignment pursuant to Section 9.07) (a) on account of Obligations due and payable to such Lender Party hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender Party at such time to (ii) the aggregate amount of the Obligations due and payable to all Lender Parties hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lender Parties hereunder and under the other Loan Documents at such time obtained by all the Lender Parties at such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing to such Lender Party at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lender Parties hereunder and under the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lender Parties hereunder and under the other Loan Documents at such time obtained by all of the Lender Parties at such time, such Lender Party shall forthwith purchase from the other Lender Parties such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender Party to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such other Lender Party shall repay to the purchasing Lender Party the purchase price to the extent of such Lender Party’s ratable share (according to the proportion of (i) the purchase price paid to such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties) of such recovery together with an amount equal to such Lender Party’s ratable share (according to the proportion of (i) the amount of such other Lender Party’s required repayment to (ii) the total amount so recovered from the purchasing Lender Party) of any interest or other amount paid or payable by the purchasing Lender Party in respect of the total amount so recovered. The Borrower agrees that

any Lender Party so purchasing an interest or participating interest from another Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender Party were the direct creditor of the Borrower in the amount of such interest or participating interest, as the case may be.

Section 2.14. [Reserved].

Section 2.15. Defaulting Lenders.

(a) [Reserved].

(b) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to any Agent or any of the other Lender Parties and (iii) the Borrower shall make any payment hereunder or under any other Loan Document to the Administrative Agent for the account of such Defaulting Lender, then the Administrative Agent may, on its behalf or on behalf of such other Agents or such other Lender Parties and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Borrower to or for the account of such Defaulting Lender to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other Loan Documents payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Agents or such other Lender Parties, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent, such other Agents and such other Lender Parties and, if the amount of such payment made by the Borrower shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Lender Parties, in the following order of priority:

(i) first, to the Agents for any Defaulted Amounts then owing to them, in their capacities as such, ratably in accordance with such respective Defaulted Amounts then owing to the Agents; and

(ii) second, to any other Lender Parties for any Defaulted Amounts then owing to such other Lender Parties, ratably in accordance with such respective Defaulted Amounts then owing to such other Lender Parties.

Any portion of such amount paid by the Borrower for the account of such Defaulting Lender remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (b), shall be applied by the Administrative Agent as specified in subsection (c) of this Section 2.15.

(c) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Amount and (iii) the Borrower, any Agent or any other Lender Party shall be required to pay or distribute any amount

hereunder or under any other Loan Document to or for the account of such Defaulting Lender, then the Borrower or such Agent or such other Lender Party shall pay such amount to the Administrative Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the Administrative Agent shall, to the fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (c) shall be deposited by the Administrative Agent in an account with a bank (the “ESCROW BANK”) selected by the Administrative Agent, in the name and under the control of the Administrative Agent, but subject to the provisions of this subsection (c). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be the Escrow Bank’s standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (c). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to pay any amount payable by such Defaulting Lender hereunder and under the other Loan Documents to the Administrative Agent or any other Lender Party, as and when such amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to pay all such amounts required to be paid at such time, in the following order of priority:

(i) first, to the Agents for any amounts then due and payable by such Defaulting Lender to them hereunder, in their capacities as such, ratably in accordance with such respective amounts then due and payable to the Agents; and

(ii) second, to any other Lender Parties for any amount then due and payable by such Defaulting Lender to such other Lender Parties hereunder, ratably in accordance with such respective amounts then due and payable to such other Lender Parties.

In the event that any Lender Party that is a Defaulting Lender shall, at any time, cease to be a Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect to such Lender Party shall be distributed by the Administrative Agent to such Lender Party and applied by such Lender Party to the Obligations owing to such Lender Party at such time under this Agreement and the other Loan Documents ratably in accordance with the respective amounts of such Obligations outstanding at such time.

(d) The rights and remedies against a Defaulting Lender under this Section 2.15 are in addition to other rights and remedies that the Borrower may have against such Defaulting Lender with respect to any Defaulted Amount.

Section 2.16. Evidence of Debt.

(a) Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Term Loans owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. On the

Effective Date or, in the case of any change after the Effective Date in the identity of any Lender or, as a result of any Assignment and Acceptance, in the principal amount of the Term Loans held by any Lender, promptly upon the request of any Lender, the Borrower shall execute and deliver to each Lender, with a copy to the Administrative Agent, one or more Notes in substantially the form of EXHIBIT B hereto, payable to the order of such Lender in the aggregate principal amount equal to the Term Loans held by such Lender. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.

(b) If requested by Required Lenders, the Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender Party, in which accounts (taken together) shall be recorded (i) the amount of the Term Loans held by each Lender Party, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender Party hereunder, and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender Party’s share thereof.

(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and entries made in good faith by each Lender Party in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender Party and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent or such Lender Party to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.

ARTICLE III

CONDITIONS OF LENDING

Section 3.01. Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “EFFECTIVE DATE”) on which the following conditions have been satisfied or waived, and the obligation of each Lender to extend the maturity date of the Term Loans on the Effective Date is subject to the satisfaction or waiver of such conditions precedent before or concurrently with (and continuing on) the Effective Date (which Effective Date is contemplated to occur on the Plan Effective Date):

(a) The Plan of Reorganization shall have been approved by the Bankruptcy Court and become fully effective and consummated in accordance with its terms and the Confirmation Order, which Confirmation Order shall approve the Plan of Reorganization and the execution, delivery and performance of the Transactions Documents and shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and shall have been issued and become effective and shall remain effective as provided in the definition of the term “Final Order”. In addition to and without limiting the generality of the foregoing, all interest, fees, costs, expenses and other “Obligations” (as such term is defined in the Existing Credit Agreement) accrued, incurred, outstanding, owing or payable under or pursuant to the Existing

Credit Agreement or any other “Loan Document” (as such term is defined in the Existing Credit Agreement), other than the principal amount of the “Advances” (as such term is defined in the Existing Credit Agreement) (all such interest, fees, costs and expenses and other “Obligations” other than the principal amount of the “Advances”, together with all fees and expenses due and payable under Section 3.01(f), are referred to as the “PAYOFF OBLIGATIONS”), as of the Effective Date (the total amount of the Payoff Obligations being set forth on Schedule V hereto) shall have been paid in full as of the Effective Date to the applicable “Agent” (as such term is defined in the Existing Credit Agreement) or “Lender” (as such term is defined in the Existing Credit Agreement) to which the same is owing or payable, except to the extent directed, on July 15, 2010, by the Bankruptcy Court to be set aside as a reserve pending resolution by the Bankruptcy Court (it being understood that only if the Bankruptcy Court determines that such amounts are to be paid by one or more of the Loan Parties, then such fees, costs, expenses or other “Obligations” shall be due and payable by such Loan Party or Loan Parties in accordance with and on the terms set forth by the Bankruptcy Court).

(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:

(i) The Notes payable to the order of the Lenders.

(ii) An amendment and restatement of the “Security Agreement” (as such term is defined in the Existing Credit Agreement) executed and delivered in connection with the Existing Credit Agreement in substantially the form of EXHIBIT C hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended or amended and restated, the “SECURITY AGREEMENT”), duly executed by each Loan Party, together with:

(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,

(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,

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

(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the security interest created thereunder,

(E) evidence of the insurance required by the terms of the Security Agreement,

(F) a copy of the Trademark License Agreement, duly executed by each party thereto,

(G) the Intellectual Property Security Agreement referred to in the Security Agreement (the “INTELLECTUAL PROPERTY SECURITY AGREEMENT”) in form appropriate for filing with the U.S. Copyright Office and/or U.S. Patent and Trademark Office, as applicable, duly executed by each Loan Party,

(H) the “Securities Account Control Agreements” and/or “Uncertificated Security Control Agreement” referred to in the Security Agreement, duly executed by the Collateral Agent, the applicable Loan Party and the applicable securities intermediary, and

(I) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken.

(iii) The Consent and Agreement, duly executed by Xxxxxx X. Xxxxx, Xxxxxx Xxxxx and the Borrower.

(iv) Amendments to the “Mortgages” (as such term is defined in the Existing Credit Agreement) executed and delivered in connection with the Existing Credit Agreement in substantially the form of EXHIBIT D hereto (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local law matters) and otherwise in form and substance reasonably satisfactory to the Administrative Agent and covering the Properties (other than Excluded Properties) (together with Assignments of Leases and Rents and each other mortgage delivered pursuant to Section 5.01(j), in each case as amended or amended and restated, the “MORTGAGES”), duly executed by the appropriate Loan Party, together with:

(A) evidence that counterparts of the amendments to the Mortgages have been either (x) duly recorded on or before the Effective Date (y) duly executed, acknowledged and delivered in form suitable for filing or recording, in all filing or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid,

(B) currently dated, replacement policies to “Mortgage Policies” (as such term is defined in the Existing Credit Agreement; as so replaced, the

“MORTGAGE POLICIES”) in form and substance reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by the title insurers that issued the Mortgage Policies, or their successors, or other title insurers acceptable to the Administrative Agent, insuring that the Mortgages as amended continue to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens and Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future Loans under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,

(D) estoppel and consent agreements (or reaffirmations of or amendments to the estoppel and consent agreements previously executed in connection with the Existing Credit Agreement), in form and substance reasonably satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Part B of Schedule 4.01(v) hereto, along with (x) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent; provided, however, that the condition precedent set forth in this clause (D) shall be deemed satisfied if and to the extent that the required Mortgage Policies are received without the necessity of obtaining the agreements and other matters referred to in this clause (D),

(E) evidence of the insurance required by the terms of the Mortgages,

(F) certified copies of all management agreements (to the extent not previously delivered of the Administrative Agent), duly executed by each of the parties thereto, relating to each of the Properties, if any,

(G) duly executed management subordination agreements, each in a form reasonably satisfactory to the Administrative Agent, corresponding to each of the management agreements, if any, and

(H) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken.

(v) Copies of (i) certified resolutions of the board of directors (or similar governing body) of each Loan Party approving the Transaction and each Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate (or limited liability company) action; provided, however, that such resolutions and other documents evidencing other corporate (or limited liability company) action shall not be required if the Confirmation Order so provides and (ii) governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which any Loan Party is or is to be a party.

(vi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or formation, as applicable, of each Loan Party (other than the Excluded Subsidiaries), dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated or formed, as applicable, and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or formation, as applicable.

(vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the date of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(vi), or, in the case of the Excluded Subsidiaries, attaching a true and correct copy of the certificate of incorporation or certificate of formation, as applicable, including any amendments thereto, as in effect prior to the filing of the certificate of dissolution referred to in clause (C) of this Section 3.01(b)(vii); (B) a true and correct copy of the bylaws (or other applicable formation documents) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)(v) were adopted and on the Effective Date, or, in the case of the Excluded Subsidiaries, as in effect prior to the filing of the certificate of dissolution referred to in clause (C) of this Section 3.01(b)(vii), (C) the due incorporation (or formation) and good standing or valid existence of such Loan Party as a corporation organized (or, in the case of a limited partnership or limited liability company, formed) under the laws of the jurisdiction of its incorporation (or formation) and the absence of any proceeding for the dissolution or liquidation of such Loan Party, or, in the case of the Excluded Subsidiaries, attaching a true and correct copy of the certificate of dissolution to be filed in connection with the dissolution proceeding of such Excluded Subsidiary, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date (or, with respect to the Excluded Subsidiaries, as to the representations and warranties not excluded by Section 5.01(e)(ii)(x)(B)) and (E) the absence of any event occurring and continuing, or resulting from the Transaction and the Transaction Documents, that constitutes a Default (or, with respect to the Excluded Subsidiaries, as to the Events of Default not excluded by Section 5.01(e)(ii)(x)(C)).

(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.

(ix) [Reserved].

(x) [Reserved].

(xi) [Reserved].

(xii) [Reserved].

(xiii) [Reserved].

(xiv) [Reserved].

(xv) [Reserved].

(xvi) A favorable opinion of Xxxxxx Xxxxxx LLP, counsel for the Loan Parties, in substantially the form of EXHIBIT F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.

(xvii) A favorable opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Loan Parties, in substantially the form of EXHIBIT F-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.

(xviii) A favorable opinion of gaming counsel for the Loan Parties in New Jersey, in substantially the form of EXHIBIT F-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.

(d) [Reserved].

(e) The Administrative Agent shall be satisfied that all approvals, acknowledgments and consents from all applicable Gaming Authorities shall have been received in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, including, without limitation, an acknowledgment that the Initial Lenders are exempt from the financial source requirements of the New Jersey Casino Control Act and that all conditions or requirements relating to any such approval, acknowledgment or consent have been obtained.

(f) The Borrower shall have paid all accrued fees of the Agents and the Lender Parties and all expenses of the Agents (including the accrued fees and expenses of

counsel to the Administrative Agent and local counsel to the Lender Parties) due and payable on or prior to the Effective Date (such fees and expenses as set forth in Schedule V hereof) except to the extent directed, on July 15, 2010, by the Bankruptcy Court to be set aside as a reserve pending resolution by the Bankruptcy Court (it being understood that only if the Bankruptcy Court determines that such amounts are to be paid by one or more of the Loan Parties, then such fees or expenses shall be due and payable by such Loan Party or Loan Parties in accordance with and on the terms set forth by the Bankruptcy Court).

Section 3.02. [Reserved].

Section 3.03. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each Lender Party 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 the Lender Parties unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender Party prior to the Effective Date specifying its objection thereto.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.01. Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:

(a) Each Loan Party and each of its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly qualified and in good standing as a foreign corporation or company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed, except where the failure to so qualify or be licensed could not be reasonably expected to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding Equity Interests in the Borrower have been validly issued, are fully paid and non-assessable.

(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Subsidiary Guarantor have been validly issued, are fully paid and non-assessable and are owned by the Persons set forth in Schedule 4.01(b) and, to the extent owned by a Loan Party, are free and clear of all Liens, except those created under the Collateral Documents.

(c) The execution, delivery and performance by each Loan Party of each Transaction Document to which it is or is to be a party, and the consummation of the Transaction, are within such Loan Party’s corporate, limited liability company or limited partnership (as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene such Loan Party’s charter, bylaws, limited liability company agreement, partnership agreement or other constituent documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System and Gaming Laws), order, writ, judgment, injunction, decree, determination or award, except for any such violation which could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties, except for any such conflict, breach, default or required payment which could not, either individually or in the aggregate reasonably be expected to have a Material Adverse Effect or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.

(d) No Governmental Authorization, and no notice to or filing with, any Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Transaction Document to which it is or is to be a party, or for the consummation of the Transactions contemplated thereby, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings specifically contemplated in the Collateral Documents or listed on Schedule 4.01(d) hereto, all of which (other than those specifically contemplated by the Collateral Documents) have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.

(e) This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.

(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the matters described in Schedule 4.01(f) hereto (the “DISCLOSED LITIGATION”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there has been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.

(g) The Debtors’ Consolidated financial statements for the year ended December 31, 2009 included in the General Partner’s Annual Report on Form 10-K for the year ended December 31, 2009 and for the three months ended March 31, 2010 included in the General Partner’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010, copies of which have been furnished to each Lender Party, fairly present in all material respects the Consolidated financial condition of the General Partner and its Subsidiaries as at such dates and the Consolidated results of operations of the General Partner and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, and since December 31, 2009, there has been no Material Adverse Change, other than any change disclosed in publicly filed documents filed by the General Partner or any of its Subsidiaries not less than five Business Days prior to the Effective Date.

(h) [Reserved].

(i) [Reserved].

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

(k) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan have been or will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.

(l) Neither any Loan Party nor any of its Subsidiaries is an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as

amended. Neither any Loan Party nor any of its Subsidiaries is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” as such terms are defined in the Public Utility Holding Company Act of 1935, as amended. Neither the making or maintenance of any Loans, nor the application of the proceeds or repayment thereof by the Borrower, nor the consummation of the other transactions contemplated by the Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.

(m) All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral (subject solely to Permitted Liens), securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents and Permitted Liens. Each Mortgage creates, as security for the obligations purported to be secured thereby, a valid and enforceable first mortgage Lien on the respective Property in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Parties, superior and prior to the rights of all third Persons, subject to Permitted Liens.

(n) Each Loan Party is, individually and together with its Subsidiaries, Solvent after giving effect to the consummation of (i) the Plan of Reorganization, (ii) the Transactions contemplated by Loan Documents and (iii) the contributions of equity to the capital of the Borrower pursuant to the Rights Offering.

(o) (i) Set forth on Schedule 4.01(o) hereto is a complete and accurate list of all Plans and Multiemployer Plans.

(ii) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that could reasonably be expected to result in a material liability to a Loan Party or any ERISA Affiliate.

(iii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Lender Parties, is complete and accurate in all material respects and fairly presents in all material respects the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status.

(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.

(v) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.

(p) (i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing material obligations or costs, and no circumstances exist that could be reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law.

(ii) Except for matters that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; there are no and to its knowledge never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries; there is no friable asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries; neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries at the time owned or operated by said entity have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries.

(q) (i) Except as set forth on Part I of Schedule 4.01(q), neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement.

(ii) Each Loan Party and each of its Subsidiaries and Affiliates has filed, has caused to be filed or has been included in all material tax returns (Federal, state, local and foreign) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties.

(iii) Except as set forth in Part II of Schedule 4.01(q), no issues have been raised by any Federal, state, local or foreign tax authorities in respect of tax periods for which the applicable statute of limitations for assessment or collection has not expired that, individually or in the aggregate, could be reasonably likely to have a Material Adverse Effect.

(r) Neither the business nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that would be reasonably likely to have a Material Adverse Effect.

(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate list of all existing debt of the Loan Parties (other than Surviving Debt) as of the Effective Date, showing as of the date set forth therein the obligor and the principal amount outstanding thereunder.

(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate list of all Surviving Debt as of the Effective Date, showing as of the date set forth therein the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor.

(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate list of all Liens on the property or assets of any Loan Party or any of its Subsidiaries as of the date set forth therein, showing the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party or such Subsidiary subject thereto as of the date set forth therein.

(v) (i) Set forth on Part A of Schedule 4.01(v) hereto is a complete and accurate list of all real property owned by any Loan Party or any of its Subsidiaries, as of the date hereof, showing the street address, county or other relevant jurisdiction, state, record owner and book value thereof as of the date set forth therein. Each Loan Party or such Subsidiary has good, marketable and insurable fee simple title to such real property, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.

(ii) Set forth on Part B of Schedule 4.01(v) is a complete and accurate list, as of the date hereof, of all leases of the real property under which any Loan Party is the lessee, showing as of the date hereof the material terms thereof (including the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof) to the reasonable satisfaction of the Administrative Agent. To the knowledge of the Borrower, each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms.

(iii) Set forth on Part C of Schedule 4.01(v) hereto is a complete and accurate list, as of the date hereof, of all leases of real property under which any Loan Party is the lessor, showing as of the date hereof the street address, county or other

relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. To the knowledge of the Borrower, each such lease is the legal, valid and binding obligation of the lessee thereof, enforceable in accordance with its terms.

(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all Investments involving amounts in excess of $100,000 held by any Loan Party or any of its Subsidiaries on the date hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any, thereof.

(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate list of all patents, trademarks, trade names, service marks and copyrights, and all applications therefor and licenses thereof on the date hereof, of each Loan Party or any of its Subsidiaries, showing as of the date hereof the jurisdiction in which registered, the registration number, the date of registration and the expiration date.

(y) Neither any material “Default” nor any “Event of Default”, as such terms are defined in the Existing Credit Agreement, has occurred and is continuing, except for any such Default or Event of Default which (i) has occurred (A) under clause (f) of Section 6.01 of the Existing Credit Agreement in connection with the filing of the Bankruptcy Cases, (B) under clause (e) of Section 6.01 of the Existing Credit Agreement in connection with the nonpayment of (1) the “New Notes” (as such term is defined in the Existing Credit Agreement) or (2) any other Debt, (C) under clause (k) of Section 6.01 of the Existing Credit Agreement in connection with a Change of Control (as such term is defined in the Existing Credit Agreement) resulting from the consummation of the Transactions contemplated by the Plan of Reorganization, or (ii) is disclosed on Schedule 4.01(y) hereto.

(z) Each of the Loan Parties represents and warrants that, as of the Effective Date, it is not a party to any management, franchise agreement or other similar agreement with any Person (other than a Loan Party) relating to the management or operation of any Casino Property; and each of the Loan Parties agrees that it shall not enter into any such agreement with any Person (other than a Loan Party) if, (i) in the case of a management agreement, such agreement relates to the day-to-day management of substantially all of the hotel operations of any Casino Property or (ii) in the case of a franchise agreement or similar agreement, such agreement relates to the management and operation of substantially all of the hotel operations of any Casino Property, unless, in each case, it causes such Person to enter into, contemporaneously therewith, a subordination agreement, in the case of a management agreement, or a comfort letter, in the case of a franchise agreement or similar agreement, in either case in form and substance reasonably satisfactory to Administrative Agent.

(aa) The New Tower has been constructed and developed substantially in accordance with the Plans and Specifications, the Construction Contracts and all requirements of Governmental Authorities. The New Tower has been completed and is being operated in the ordinary course of business. All amounts heretofore due in regard to the construction of the New Tower have been paid to the knowledge of the Loan Parties, and no Lien or Lien claim, including, without limitation, any Lien or Lien claim in favor of any person or entity providing labor and/or materials for the construction of the New Tower, exists or is threatened. All material permits, licenses and authorizations necessary for the construction, completion and operation of the New Tower as of the date hereof have been obtained and are in effect.

(bb) Each of the Subsidiaries of the Borrower identified on Schedule IV hereto was previously designated as an “Unrestricted Subsidiary” in accordance with the terms and provisions of the Existing Credit Agreement and, as of the date of such initial designation thereunder and as of the date hereof, such Unrestricted Subsidiary satisfies all requirements of an Unrestricted Subsidiary under the Existing Credit Agreement and under this Agreement.

(cc) Each of the Loan Parties represents and warrants that none of the Casino Properties contains any material amount of asbestos or asbestos-containing material.

(dd) [Reserved].

(ee) Each of the ROFO Agreement, the Voting Agreement and the Warrant Agreement has expired or has been terminated pursuant to the Plan of Reorganization and no such agreement is in effect.

ARTICLE V

COVENANTS OF THE LOAN PARTIES

Section 5.01. Affirmative Covenants. So long as any Term Loan or any other Obligation (other than Unmatured Surviving Obligations) of any Loan Party under any Loan Document shall remain unpaid, each Loan Party will:

(a) Compliance with Laws; Maintenance of Gaming Licenses, Etc.

(i) Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA, the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and Gaming Laws.

(ii) Maintain, and cause each of its Subsidiaries to maintain, (A) such valid Gaming Licenses in all jurisdictions as may be necessary to operate each of its Gaming Facilities, the absence of which could reasonably be expected to have a Material Adverse Effect, and (B) all liquor licenses and registrations as may be necessary to sell alcoholic beverages from and in its Gaming Facilities.

(iii) Except in the case of any License Revocation or a revocation or non-renewal of a liquor license or registration that could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, notify, and cause each of its Subsidiaries to notify, the Administrative Agent promptly upon a License Revocation or a revocation or non-renewal of a liquor license or registration.

(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all material taxes,

assessments and governmental charges or levies imposed upon it or upon its property and (ii) all material lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither any Loan Party nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors and is not subject to a stay.

(c) Compliance with Environmental Laws. Comply, and cause each of its Subsidiaries and all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew, and cause each of its Subsidiaries to obtain and renew, all Environmental Permits necessary for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws; provided, however, that neither any Loan Party nor any of its Subsidiaries shall be required to undertake any such investigation, cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances.

(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, property and liability insurance with responsible and reputable insurance companies or associations (rated A- or better by Best’s Insurance Guide and Key Ratings with a minimum Financial Size Condition of “X”) that, with regard to property insurance, is in the forms, types (and covering the perils) and amounts, and with the deductibles, set forth in Schedule 5.01(d) hereto; provided, however, that the amount of coverage for each peril must at all times be at least equal to the greater of (i) the amount therefor set forth on Schedule 5.01(d), or (ii) the then outstanding aggregate principal amount of the Term Loans, in each case more than the deductible therefor and the associated deductible cannot be greater than $20,000,000, except that, with respect to flood and named storm coverage only, such deductible may be as much as 3% of insurable values; provided, further, however, that at any time during which insurance coverage for terrorism is unavailable, then the Loan Parties and their Subsidiaries shall not be required to maintain such insurance. The Agents and the Lenders shall have the right, but not the obligation, to independently investigate options for insurance and/or to obtain any of the aforesaid insurance for the benefit of the Agents and the Lenders and add such insurance costs to the Obligations. The Collateral Agent shall be named as loss payee and mortgagee with respect to all property insurance policies, and the Agents and the Lenders shall be named as additional insureds with respect to all liability insurance policies.

(e) Preservation of Legal Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its existence, legal structure, legal name, rights (charter and statutory), permits, licenses, approvals, privileges and franchises, other than those, in each case, which could not reasonably be expected to have a Material Adverse Effect; provided, however, that (i) such Loan Party and its Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(d) and (ii) TCI 2 Holdings, LLC and/or Xxxxx Entertainment Resorts Funding, Inc. (collectively, the “EXCLUDED SUBSIDIARIES”) shall be

permitted, on or at any time on or after the Effective Date, upon written notice to the Administrative Agent, to take the necessary steps, including without limitation paying any required fees and complying with applicable provisions of the Delaware Limited Liability Company Act or the Delaware General Corporation Law, as applicable, to dissolve as a limited liability company or corporation, as applicable, and wind up its affairs, in which event, upon the filing of the certificate of dissolution in the case of Xxxxx Entertainment Resorts Funding, Inc. or the adoption of resolutions approving dissolution in the case of TCI 2 Holdings, LLC, (x) each of the following provisions shall cease to apply to such Excluded Subsidiary: (A) Sections 5.01 and 5.03 of this Agreement, to the extent it would be unreasonable to expect any such covenant to apply to an entity that is in the process of dissolving and winding-up under the Delaware Limited Liability Company Act or the Delaware General Corporation Law, as applicable; (B) (1) the representations and warranties in Section 4.01(a) and (2) any other representation and warranty in Article IV of this Agreement, to the extent it relates to covenants within Section 5.01 or 5.03 of this Agreement of the type referred to in the preceding clause (A) above, or to the extent it would be unreasonable to expect any such representation and warranty to apply to an entity that is in the process of dissolving and winding-up under the Delaware Limited Liability Company Act or the Delaware General Corporation Law, as applicable and (C) any Event of Default, to the extent it relates to covenants within Section 5.01 or 5.03 of this Agreement of the type referred to in the preceding clause (A) above or the representations and warranties referred to in the preceding clause (B), or to the extent it would be unreasonable to expect any such Event of Default to apply to an entity that is in the process of dissolving and winding-up under the Delaware Limited Liability Company Act or the Delaware General Corporation Law, as applicable; provided, however, that for the avoidance of doubt, such Excluded Subsidiary shall continue to be a Loan Party hereunder to the extent permitted by Delaware law and, other than as provided for in clauses (A) through (C) above and (y) below, the remainder of this Agreement and the Loan Documents shall continue to apply to such Excluded Subsidiary in all respects, (y) such Excluded Subsidiary shall continue to be a Guarantor of all amounts due and payable in respect of the Obligations for purposes of Article VIII hereof and a “Grantor” for purposes of the Security Agreement, in each case, to the extent permitted by Delaware law, until completion of any applicable winding up process in accordance with Delaware law (at which time such Excluded Subsidiary shall be automatically released as a Guarantor for purposes of Article VIII hereof and as a “Grantor” for purposes of the Security Agreement) and (z) such Excluded Subsidiary shall administer and complete as promptly as practicable the winding up process, as may be required by the Delaware Limited Liability Company Act or the Delaware General Corporation Law, as applicable, and provide, from time to time as the Administrative Agent (unless otherwise specified) may reasonably request, evidence of the diligent administration and (when possible) completion of such winding up process.

(f) Visitation Rights. At any reasonable time during normal business hours and from time to time upon reasonable notice, permit any of the Agents or any of the Lender Parties, or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, such Loan Party and any of its Subsidiaries, and to discuss the affairs, finances and accounts of such Loan Party and any of its Subsidiaries with any of their officers, directors or members and with their independent certified public accountants at the Borrower’s expense; provided that only one such visit of each Agent and Lender Party per Fiscal Year shall be at the expense of the Borrower.

(g) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Loan Party and each such Subsidiary in accordance with generally accepted accounting principles in effect from time to time.

(h) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted.

(i) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents with any of their Affiliates on terms that are fair and reasonable and no less favorable to such Loan Party or such Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person not an Affiliate; provided that the foregoing provision shall not apply to: (i) the payment of (x) reasonable and customary fees paid to, and (y) indemnities in the ordinary course of business provided on behalf of, officers, directors, employees or consultants of the Borrower, the General Partner or any of their respective Subsidiaries; (ii) the Trademark License Agreement; (iii) the Services Agreement; and (iv) payments of the Obligations under this Agreement and the other Loan Documents.

(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the request of the Collateral Agent following the occurrence and during the continuance of an Event of Default, (y) the formation or acquisition of any new direct or indirect Subsidiary (other than a CFC or a Subsidiary that is held directly or indirectly by a CFC) by any Loan Party (each, a “NEW SUBSIDIARY”) or (z) the acquisition of any property by any Loan Party, and such property, in the judgment of the Collateral Agent, shall not already be subject to a perfected first priority Lien in favor of the Collateral Agent for the benefit of the Secured Parties, then in each case at the Borrower’s expense:

(i) in connection with the formation or acquisition of a New Subsidiary, within 10 days after such formation or acquisition, cause each such New Subsidiary, and cause each direct and indirect parent of such New Subsidiary (if it has not already done so), to duly execute and deliver to the Collateral Agent a Guaranty or Guaranty Supplement, in form and substance reasonably satisfactory to the Collateral Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,

(ii) within 10 days after (A) such request furnish to the Collateral Agent a description of the real and personal properties of the Loan Parties and their respective Subsidiaries in detail reasonably satisfactory to the Collateral Agent and (B) such formation or acquisition, furnish to the Collateral Agent a description of the real and personal properties of such New Subsidiary or the real and personal properties so acquired, in each case in detail reasonably satisfactory to the Collateral Agent,

(iii) within 15 days after (A) such request or acquisition by any Loan Party of a parcel of real property with a value greater than $5,000,000, duly execute and deliver, and cause each Loan Party to duly execute and deliver, to the Collateral Agent such additional mortgages, pledges, assignments, security agreement supplements,

intellectual property security agreement supplements and other security agreements as specified by, and in form and substance reasonably satisfactory to the Collateral Agent, securing payment of all the Obligations of such Loan Party under the Loan Documents and constituting Liens on all such properties and (B) such formation or acquisition of any New Subsidiary, duly execute and deliver and cause each New Subsidiary to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements and other security agreements as specified by, and in form and substance reasonably satisfactory to the Collateral Agent, securing payment of all of the obligations of such New Subsidiary under the Loan Documents; provided that if such new property is Equity Interests in a CFC, only 66% of such Equity Interests shall be pledged in favor of the Secured Parties,

(iv) within 30 days after such request, formation or acquisition, take, and cause each Loan Party and each such New Subsidiary to take, whatever action (including, without limitation, the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements and security agreements delivered pursuant to this Section 5.01(j), enforceable against all third parties in accordance with their terms,

(v) within 60 days after such request, formation or acquisition, deliver to the Collateral Agent, upon the reasonable request of the Collateral Agent, a signed copy of a favorable opinion, addressed to the Collateral Agent and the other Lender Parties, of counsel for the Loan Parties acceptable to the Collateral Agent as to (A) such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements and security agreements being legal, valid and binding obligations of each Loan Party thereto enforceable in accordance with their terms, as to the matters contained in clause (iv) above, (B) such recordings, filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such properties, and (C) such other matters as the Collateral Agent may reasonably request,

(vi) as promptly as practicable after such request, formation or acquisition, deliver, upon the reasonable request of the Collateral Agent, to the Collateral Agent with respect to each parcel of real property with a value greater than $5,000,000 owned or held by each Loan Party and each New Subsidiary, title reports, surveys and engineering, soils and other reports, environmental assessment reports, tenant estoppels and each of the other items, mutatis mutandis, set forth in Section 3.01(b)(iv) as may be applicable, each in scope, form and substance reasonably satisfactory to the Collateral Agent, provided, however, that to the extent that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Collateral Agent, and

(vii) at any time and from time to time, promptly execute and deliver, and cause each Loan Party and each New Subsidiary to execute and deliver, any and all further instruments and documents and take, and cause each Loan Party and each New Subsidiary to take, all such other action as the Collateral Agent may reasonably deem necessary or desirable in perfecting and preserving the Liens of, such guaranties, mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and security agreements.

(k) Further Assurances.

(i) Promptly upon request by any Agent, or any Lender Party through the Administrative Agent, correct, and cause each of its Subsidiaries promptly to correct, any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,

(ii) promptly upon request by any Agent, or any Lender Party through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as any Agent, or any Lender Party through the Administrative Agent, may reasonably require from time to time in order to (A) carry out more effectively the provisions of the Loan Documents, (B) to the fullest extent permitted by applicable law and agreements with third parties, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter covered by any of the Collateral Documents, (C) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens created thereunder and (D) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so, and

(iii) take each action set forth on Schedule 5.01(k) hereto within the time period set forth on such Schedule for the taking of such action.

(l) [Reserved].

(m) Preparation of Environmental Reports. Upon and during the continuance of an Event of Default, permit the Administrative Agent on five days’ prior written notice to the Borrower to retain an environmental consulting firm to prepare an environmental site assessment report at the expense of the Borrower or such Loan Party, and each Loan Party hereby grants and agrees to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Agents, the Lender Parties, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants and customary access terms, to enter onto their respective properties to undertake such an assessment.

(n) Compliance with Terms of Leaseholds. Make all material payments and otherwise perform in all material respects all obligations in respect of all material leases of real property to which each Loan Party or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated prior to the end of their term or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any material default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(o) Cash Concentration Accounts. Maintain, and cause each of its Subsidiaries to maintain, main cash concentration accounts with depositories reasonably acceptable to the Administrative Agent that have complied with the requirements set forth in the Security Agreement with respect to each such account.

(p) [Reserved].

(q) [Reserved].

(r) [Reserved].

(s) Gaming Laws. Promptly perform and observe, and cause each of its Subsidiaries to promptly perform and observe, all conditions, requirements and other terms and provisions of each resolution, notice, approval, consent or other action of or by any Gaming Authority in any way relating to the execution, delivery or performance of this Agreement or any other Loan Document or any transaction contemplated hereby or thereby.

Section 5.02. Negative Covenants. So long as any Loan or any other Obligation (other than an Unmatured Surviving Obligation) of any Loan Party under any Loan Document shall remain unpaid, no Loan Party will at any time:

(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of its properties of any character (including, without limitation, accounts) whether now owned or hereafter acquired, or sign or file or suffer to exist, or permit any of its Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a financing statement that names such Loan Party or any of its Subsidiaries as debtor, or sign or suffer to exist, or permit any of its Subsidiaries to sign or suffer to exist, any security agreement authorizing any secured party thereunder to file such financing statement, or assign, or permit any of its Subsidiaries to assign, any accounts or other right to receive income, except:

(i) Liens created under the Loan Documents;

(ii) [Reserved];

(iii) Permitted Liens;

(iv) Liens relating to any custom duties imposed in the ordinary course of business;

(v) Liens existing on the date hereof and described on Schedule 4.01(u) hereto;

(vi) purchase money Liens upon or in moveable personal property not essential (as determined by the Administrative Agent in its reasonable judgment) to the operation of any property owned by such Loan Party taken as a whole, and, in the case of any Loan Party that owns any Casino Property, not essential (as determined by the Administrative Agent in its reasonable judgment) to the operation of such Casino Property taken as a whole, and acquired or held by such Loan Party or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or Liens existing on any such property at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced; and provided further that the aggregate principal amount of the Debt secured by Liens permitted by this clause shall not exceed the amount permitted under Section 5.02(b)(iii) at any time outstanding;

(vii) Liens arising in connection with Capitalized Leases permitted under Section 5.02(b)(iv); provided that no such Lien shall extend to or cover any Collateral or assets other than the assets subject to such Capitalized Leases;

(viii) Liens arising under applicable Gaming Laws; provided that no such Lien constitutes a Lien securing repayment of Debt;

(ix) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower, the General Partner or any of their respective Subsidiaries, in each case granted in the ordinary course of business in favor of the financial institutions with which such accounts are maintained, securing amounts owing to such financial institutions with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements, so long as, in no event, shall any such Lien secure (either directly or indirectly) the repayment of any Debt;

(x) licenses of Intellectual Property granted by the Borrower or any of their respective Subsidiaries in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Borrower and any of their respective Subsidiaries;

(xi) Leases with respect to the properties (other than those relating to any material part of any Casino Property) of the Borrower or any Subsidiary, in each case entered into in the ordinary course of the Borrower or any Subsidiary’s business, so long as such leases are expressly subordinate to the Liens of the Collateral Agent on the properties subject to such leases and such leases do not, individually or in the aggregate, (x) interfere in any material respect with the ordinary conduct of the business of any of the Gaming Facilities and (y) materially impair the use (for its intended purposes) or the value of the property subject thereto;

(xii) Liens on property of a Person existing at the time such Person is acquired or merged with or into or consolidated with the Borrower, the General Partner or any of their respective Subsidiaries (and not created in anticipation or contemplation thereof) in accordance with Section 5.02(f); provided that such Liens were in existence prior to the contemplation of the acquisition, merger or consolidation and do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no more favorable to the lienholders than the existing Lien;

(xiii) Liens on Equity Interests in any Unrestricted Subsidiary solely to secure Debt of such Unrestricted Subsidiary; and

(xiv) other Liens securing Debt outstanding in an aggregate principal amount not to exceed $15,000,000.

(b) Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:

(i) Debt under the Loan Documents;

(ii) [Reserved];

(iii) Debt secured by Liens permitted by Section 5.02(a)(vi) not to exceed, together with Debt permitted under clause (iv) below, in an aggregate principal amount of $20,000,000 per Casino Property at any time outstanding;

(iv) Capitalized Leases not to exceed in an aggregate principal amount, together with Debt permitted pursuant to clause (iii) above, $20,000,000 per Casino Property at any time outstanding, and in the case of Capitalized Leases to which any Subsidiary of any Loan Party is a party, Debt of such Loan Party of the type described in clause (i) of the definition of “DEBT” guaranteeing the Obligations of such Subsidiary under such Capitalized Leases;

(v) the Surviving Debt;

(vi) [Reserved];

(vii) Debt owed to the Borrower or a wholly-owned Subsidiary of the Borrower, which Debt shall (x) in the case of Debt owed to a Loan Party, constitute Pledged Debt, (y) be on terms reasonably acceptable to the Administrative Agent and (z) be otherwise permitted under the provisions of Section 5.02(f);

(viii) to the extent such incurrence does not result in the incurrence by the Borrower or any of its Subsidiaries of any obligation for the payment of Debt for Borrowed Money of others, Debt of the Borrower or any of its Subsidiaries owed to any Person in connection with the termination of employment of or severance obligations owed to such Person and not to exceed $5,000,000 in the aggregate;

(ix) Debt arising from agreements of the Borrower or a Subsidiary Guarantor providing for indemnifications and adjustments of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantee Obligations in respect of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that:

(A) such Debt is not reflected on the balance sheet of the Borrower or any Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (ix)(A)); and

(B) the maximum assumable liability in respect of all such Debt shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and any Subsidiary in connection with such disposition; or

(x) Debt of the type described in clause (i) or (j) of the definition of Debt that constitutes an Investment solely to the extent permitted by Section 5.02(f);

(xi) unsecured Debt of the Borrower, subordinated to the Obligations under the Loan Documents on terms reasonably acceptable to the Administrative Agent and having a maturity date of not less than six months following the Maturity Date and having no amortization prior to the Maturity Date;

(xii) unsecured Debt in an aggregate principal amount not to exceed $30,000,000, subordinated to the Obligations under the Loan Documents on terms reasonably acceptable to the Administrative Agent, and having a maturity date of not less than six months following the Maturity Date and having no amortization prior to the Maturity Date;

(xiii) Debt secured by Liens permitted by Section 5.02(a)(xii) in an aggregate principal amount not to exceed $10,000,000; and

(xiv) Debt representing a refinancing, replacement or refunding of Debt permitted by clauses (b)(iii) through (b)(v) and (b)(xiii) above (the “REFINANCING DEBT”); provided that

(A) such Refinancing Debt has a Weighted Average Life to Maturity at the time such Refinancing Debt is incurred which is not less than the remaining Weighted Average Life to Maturity of the Debt being extended, refunded, refinanced, defeased, renewed or replaced,

(B) the terms relating to principal amount, amortization, maturity and subordination (if any) and other material terms, taken as a whole, of any such Refinancing Debt, 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 Lender Parties than the terms of any agreement or instrument governing the Debt being extended, refunded or refinanced and the interest rate applicable to any such Refinancing Debt does not exceed the then applicable market interest rate,

(C) the principal amount (or accreted value, if applicable) of such Refinancing Debt does not exceed the sum of the outstanding principal amount (or accreted value, if applicable) of the Debt so extended, refunded, refinanced, defeased, renewed or replaced (plus all accrued interest thereon and the amount of all premiums and reasonable expenses incurred in connection therewith),

(D) the Debt is incurred either by the Borrower or the Subsidiary that is the obligor of the Debt being extended, refunded, refinanced, defeased, renewed or replaced,

(E) the Debt shall be secured only by the property or assets (if any) securing the Debt to be so extended, refunded, refinanced, defeased, renewed or replaced, and

(F) such Refinancing Debt shall not include: (i) Debt of a Subsidiary that extends, refunds, refinances, defeases, renews or replaces Debt or preferred stock of the Borrower, or (ii) Debt of the Borrower or a Subsidiary that extends, refunds, refinances, defeases, renews or replaces Debt or preferred stock of an Unrestricted Subsidiary.

(c) Change in Nature of Business. Engage in, or permit any of its Subsidiaries to engage in, any business, other than Permitted Businesses.

(d) Mergers, Etc. Merge into or consolidate with any Person or permit any Person to merge into it, or permit any of its Subsidiaries to do so, except that:

(i) any Subsidiary of the Borrower may merge into or consolidate with the Borrower or any other Subsidiary of the Borrower; provided that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be the Borrower or a wholly-owned Subsidiary of the Borrower; provided, further

that, in the case of any such merger or consolidation to which a Guarantor is a party, the Person formed by such merger or consolidation shall be a Guarantor; provided, further, that, in the case of any such merger or consolidation to which the Borrower is a party, the surviving entity in such merger or consolidation shall be the Borrower; and

(ii) in connection with any acquisition permitted under Section 5.02(f), the Borrower or any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that the Person surviving such merger shall be the Borrower or a wholly-owned Subsidiary of the Borrower; provided, further that, in the case of any merger or consolidation to which a Guarantor is a party, the Person formed by such merger or consolidation shall be a Guarantor; provided, further, that, in the case of any such merger or consolidation to which the Borrower is a party, the surviving entity in such merger or consolidation shall be the Borrower; and

(iii) in connection with any sale or other disposition permitted under Section 5.02(e) (other than clause (viii) thereof), any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately before and after giving effect thereto, no Default shall have occurred and be continuing and, in the case of any such merger or consolidation to which the Borrower is a party, the surviving entity in such merger or consolidation shall be the Borrower.

(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except:

(i) sales, transfers or other dispositions of obsolete assets;

(ii) the lease or sublease of real property (other than any material part of any Casino Property) or equipment in the ordinary course of business;

(iii) the license or sublicense (subject to the Liens in favor of the Agents and/or the Lenders) of Intellectual Property in the ordinary course of business and on ordinary business terms;

(iv) sales, transfers or other dispositions of cash and Cash Equivalents or other property sold or disposed of in the ordinary course of business and on ordinary business terms, including sales of delinquent accounts receivables in connection with the compromise or collection thereof;

(v) transfers resulting from or made directly in connection with any casualty, condemnation of property or assets;

(vi) transfers in connection with any Investment permitted by Section 5.02(f);

(vii) sales of Inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire Inventory in the ordinary course of business;

(viii) in a transaction authorized by Section 5.02(d) (other than subsection (iii) thereof);

(ix) sales, transfers or other dispositions of assets among Loan Parties;

(x) a sale of the Xxxxx Xxxxxx (A) on the Plan Effective Date or (B) pursuant to a Third Party Offer, provided, however, that, prior to consummating any sale of the Xxxxx Xxxxxx pursuant to any such Third Party Offer at a time after the Plan Effective Date when any Term Loans remain outstanding, the Borrower shall be required to (x) advise the Initial Lenders (so long as the Initial Lenders continue to be Lenders hereunder) in the event the Borrowers commence discussions of substance with any third party regarding a potential sale of the Xxxxx Xxxxxx to such party and (y) afford the Initial Lenders (so long as the Initial Lenders continue to be Lenders hereunder) a right (the “RIGHT OF FIRST REFUSAL”), exercisable by written notice from the Administrative Agent (acting on behalf of the Initial Lenders) to the Borrower given within twenty (20) days following the Initial Lenders’ receipt of written notice from the Borrower of such Third Party Offer, to elect to purchase the Xxxxx Xxxxxx at the same purchase price and on the same terms and conditions as such Third Party Offer (except that the Initial Lenders may elect, by a statement in the written notice of exercise, to make payment of all or any portion of such purchase price for the Xxxxx Xxxxxx by offsetting any of the Obligations hereunder with respect to principal of the Term Loans and/or interest on the Interest Bearing Component of the Term Loans (i.e., by applying such Obligations as a credit toward such purchase price)), and if the Initial Lenders so elect to purchase the Xxxxx Xxxxxx pursuant to the Right of First Refusal, the Borrower shall not sell the Xxxxx Xxxxxx pursuant to such Third Party Offer unless the Initial Lenders fail (other than due to the Company’s non-compliance with the terms of the Third Party Offer) to pay the purchase price for the Xxxxx Xxxxxx or to consummate the purchase of the Xxxxx Xxxxxx within twenty (20) days after the Administrative Agent’s written notice of exercise of the Right of First Refusal; and

(xi) so long as no Default shall have occurred and be continuing or would result from such sale, sales, transfers or other dispositions of assets for at least 85% cash consideration and for fair value in an aggregate amount not to exceed $10,000,000 in a single transaction or a series of related transactions; provided that the aggregate amount of all assets disposed under this clause (xi) shall not exceed $50,000,000 and, in the case of any such sale, transfer or other disposition by a Loan Party that owns any Casino Property, all Net Cash Proceeds of such sale, if and to the extent not applied to pay the Obligations, shall be reinvested into Casino Property within 365 days after the date of such sale, transfer or other disposition.

(f) Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, except:

(i) (A) Investments by the Borrower and its Subsidiaries in their Subsidiaries outstanding on the date hereof, (B) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties and (D) so long as no Default has occurred and is continuing or would result from such Investment, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from and after the Effective Date, not to exceed $15,000,000;

(ii) loans and Loans to employees in the ordinary course of the business of the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $500,000 at any time outstanding;

(iii) Investments by the Borrower and its Subsidiaries in Cash Equivalents;

(iv) Investments existing on the date hereof and described on Schedule 4.01(w) hereto;

(v) [Reserved];

(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b);

(vii) the purchase or other acquisition of all of the Equity Interests in, or all or substantially all of the property and assets of, any Person that, upon the consummation thereof, will be wholly-owned directly by the Borrower or one or more of its wholly-owned Subsidiaries (including, without limitation, as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this clause (vii):

(A) any such newly created or acquired Subsidiary shall comply with the requirements of Section 5.01(j);

(B) the lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be Permitted Businesses;

(C) such purchase or other acquisition shall not include or result in any contingent liabilities that could reasonably be expected to be material to the business, financial condition or operations of the Borrower and its Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions) of the Borrower or such Subsidiary if the board of directors is otherwise approving such transaction and, in each other case, by the Responsible Officer);

(D) immediately before and immediately after giving effect to any such purchase or other acquisition, no Default shall have occurred; and

(E) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lender Parties, at least five Business Days prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition;

(viii) Investments by the Borrower and its Subsidiaries not otherwise permitted under this Section 5.02(f) in an aggregate amount (together with the aggregate amount of Investments made pursuant to clause (ix)(B) below) not to exceed $50,000,000; provided, however, that, with respect to each Investment made pursuant to this clause (viii):

(A) such Investment shall not include or result in any contingent liabilities that could reasonably be expected to be material to the business, financial condition or operations of the Borrower and its Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or persons performing similar functions) of the Borrower or such Subsidiary if the board of directors is otherwise approving such transaction and, in each other case, by a Responsible Officer);

(B) such Investment shall be in property and assets which are part of, or in lines of business which are, Permitted Businesses;

(C) any determination of the amount of such Investment shall include all cash and noncash consideration (including, without limitation, the fair market value of all Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and assets and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on behalf of the Borrower and its Subsidiaries in connection with such Investment; and

(D) immediately before and immediately after giving effect to any such purchase or other acquisition, no Default shall have occurred and be continuing;

(ix) Investments in Unrestricted Subsidiaries (A) with proceeds from the sale or issuance of Equity Interests and (B) otherwise, in an aggregate amount for such Investments (together with the aggregate amount of Investments made pursuant to clause (viii) above) not to exceed $50,000,000;

(x) Investments consisting of trade payables of the Borrower or any of its Subsidiaries created in the ordinary course of business;

(xi) Investments acquired by the Borrower or any of its Subsidiaries in exchange for settlements and collections;

(xii) Investments that constitute redemptions, retirements or defeasances of Equity Interests otherwise permitted under Section 5.02(g);

(xiii) Investments in securities or other assets not constituting cash or Cash Equivalents and received in connection with any transaction permitted under Section 5.02(e);

(xiv) Investments consisting of Capital Expenditures permitted under Section 5.02(o);

(xv) Investments required to be made in order to comply with the rules, regulations and requirements of Gaming Authorities and/or Gaming Laws;

(xvi) [Reserved]; and

(xvii) any Investment consisting of the extension of gaming credit to gaming patrons consistent with industry practice in the ordinary course of business.

(g) Restricted Payments. Declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereof) as such or (except in the case of the General Partner) issue or sell any Equity Interests or accept any capital contributions, or, in each case, permit any of its Subsidiaries to do any of the foregoing, or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interests in the General Partner or to issue or sell any Equity Interests therein, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(i) the Borrower may declare and pay distributions or dividends to the General Partner in amounts required by the General Partner for ordinary course costs and expenses in an aggregate amount not to exceed $1,500,000 in any Fiscal Year;

(ii) the Borrower may declare and pay distributions or dividends for the redemption, repurchase or other acquisition or retirement of, or any distribution or dividends to the General Partner to, and the General Partner may, effect the redemption, repurchase or acquisition or retirement of, any Equity Interests or Debt of the Borrower or the General Partner to the extent required by any Gaming Authority;

(iii) the Borrower may declare and pay distributions or dividends for the repurchase, retirement or other acquisition or retirement of common Equity Interests of the General Partner held by any future, present or former employee, director or consultant of the General Partner, the Borrower or any of their respective Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate payments made under this clause shall be in an aggregate amount not to exceed $1,000,000 in any calendar year;

(iv) the General Partner may repurchase Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;

(v) the Borrower and the General Partner may (A) declare and pay dividends and distributions payable only in Equity Interests of the Borrower or the General Partner, as applicable, and (B) except to the extent the Net Cash Proceeds thereof are required to be applied to the prepayment of the Term Loans pursuant to Section 2.06(b), purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock with the proceeds received contemporaneously from the issue of new Capital Stock with equal or inferior voting powers, designations, preferences and rights;

(vi) the Borrower may make cash distributions pursuant to the tax distribution provisions of Section 6.2 of the Partnership Agreement in an amount reasonably determined by the General Partner not to exceed the product of the taxable income of the partners of the Borrower attributable to their ownership interests in the Borrower multiplied by the highest applicable marginal tax rate of such partners and may make payments under the indemnification provisions of Section 6.3 the Partnership Agreement (such distributions, the “TAX DISTRIBUTIONS”), provided that the amount of any such Tax Distributions attributable to Unrestricted Subsidiaries of the General Partner, as determined by the Borrower in a manner reasonably acceptable to the Administrative Agent, which is in excess of the amount of cash distributions made by Unrestricted Subsidiaries to the Borrower and its Subsidiaries (other than Unrestricted Subsidiaries), shall be deemed to be an Investment under Section 5.02(f)(ix); and

(vii) any Subsidiary of the Borrower may (A) declare and pay cash dividends to the Borrower, (B) declare and pay cash dividends to its equity owners so long as such dividends are made ratably among its equity owners and (C) accept capital contributions from its parent to the extent permitted under Section 5.02(f)(i).

(h) Amendments of Constitutive Documents. Amend, or permit any of its Subsidiaries to amend, its certificate of incorporation or bylaws or other constitutive documents other than amendments that could not be reasonably expected to have a Material Adverse Effect.

(i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting policies or reporting practices, except as required or permitted by generally accepted accounting principles, or (ii) Fiscal Year.

(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt, except (i) the prepayment of the Term Loans in accordance with the terms of this Agreement, (ii) regularly scheduled or required repayments or regularly scheduled or required redemptions of Debt incurred in accordance with the provisions of this Agreement or (iii) any prepayment, redemption or repayment of Debt arising in connection with any Refinancing Debt incurred in accordance with the terms hereof, or amend, modify or change in any manner any term or condition of any Debt in a manner materially adverse to the Loan Parties or the Lender Parties, or permit any of its Subsidiaries to do any of the foregoing other than to prepay any Debt payable to a Loan Party.

(k) [Reserved].

(l) Negative Pledge. Enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or conditioning the creation or assumption of any Lien upon any of its property or assets except (i) in favor of the Secured Parties or (ii) in connection with (A) any Surviving Debt, (B) any purchase money Debt permitted by Section 5.02(b)(iii) solely to the extent that the agreement or instrument governing such Debt prohibits a Lien on the property acquired with the proceeds of such Debt, (C) any Capitalized Lease permitted by Section 5.02(b)(iv) solely to the extent that such Capitalized Lease prohibits a Lien on the property subject thereto, (D) any Debt outstanding on the date any Subsidiary of such Loan Party becomes such a Subsidiary (so long as such agreement was not entered into solely in contemplation of such Subsidiary becoming a Subsidiary of such Loan Party), (E) restrictions imposed by Gaming Authorities on the payment of dividends by entities holding Gaming Licenses, (F) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, provided that such restrictions or encumbrances relate only to the assets (or Capital Stock of an entity directly or indirectly owning such assets) being sold pursuant to these contracts and such sale is permitted pursuant to Section 5.02(e), (G) customary provisions in joint venture agreements and other similar agreements so long as the related joint venture or Investment is permitted pursuant to Section 5.02(f), (H) customary provisions contained in leases and other agreements entered into in the ordinary course of business, and (I) customary restrictions in connection with Debt permitted under Section 5.02(b) so long as the Liens in favor of the Secured Parties are specifically permitted.

(m) Partnerships, Etc. Become a general partner in any general or limited partnership or joint venture, or permit any of its Subsidiaries to do so, other than any Subsidiary the sole assets of which consist of its interest in such partnership or joint venture.

(n) Speculative Transactions. Engage, or permit any of its Subsidiaries to engage, in any transaction involving commodity options or futures contracts or any similar speculative transactions.

(o) Capital Expenditures. Make, or permit any of its Subsidiaries to make, any Capital Expenditures other than:

(i) Project Capital Expenditures made by the Borrower and its Subsidiaries; provided, however, that the aggregate amount of such Project Capital Expenditures shall not exceed, during any Fiscal Year commencing with the Fiscal Year ending December 31, 2010, an amount equal to eight percent (8%) of Gross Gaming Revenues for such Fiscal Year, provided that if, for any such Fiscal Year, the amount of Project Capital Expenditures permitted to be made in such Fiscal Year exceeds the aggregate amount of Project Capital Expenditures made by the Borrower and its Subsidiaries during such Fiscal Year (the amount of such excess being the “EXCESS

PROJECT CAPEX AMOUNT”), the Borrower and its Subsidiaries shall be entitled to make additional Project Capital Expenditures in the immediately succeeding Fiscal Year in an amount (such amount being referred to herein as the “CARRYOVER PROJECT CAPEX AMOUNT”) equal to the lesser of (1) the Excess Project Capex Amount and (2) 75% of the amount permitted to be made in such immediately preceding Fiscal Year (after giving effect to any Carryover Project Capex Amount); provided, further, that the amount specified above for any Fiscal Year shall not be deemed to have been utilized to make Project Capital Expenditures until the Carryover Project Capex Amount, if any, applicable to such Fiscal Year shall be utilized in full; and

(ii) Maintenance Capital Expenditures made by the Borrower and its Subsidiaries.

(p) Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Debt owed to, make loans or Loans to, or otherwise transfer assets to or invest in, the Borrower or any Subsidiary of the Borrower (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents, (ii) [reserved], (iii) any agreement or instrument evidencing Surviving Debt, (iv) any agreement in effect at the time such Subsidiary becomes a Subsidiary of such Loan Party, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of such Loan Party, (v) any purchase money Debt permitted by Section 5.02(b)(iii) solely to the extent that the agreement or instrument governing such Debt prohibits a Lien on the property acquired with the proceeds of such Debt, (vi) any Capitalized Lease permitted by Section 5.02(b)(iv) solely to the extent that such Capitalized Lease prohibits a Lien on the property subject thereto, (vii) restrictions imposed by Gaming Authorities on the payment of dividends by entities holding Gaming Licenses, (viii) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, provided that such restrictions or encumbrances relate only to the assets (or Capital Stock of an entity directly or indirectly owning such assets) being sold pursuant to these contracts and such sale is permitted pursuant to Section 5.02(e), (ix) customary provisions in joint venture agreements and other similar agreements so long as the related joint venture or Investment is permitted pursuant to Section 5.02(f), and (x) customary restrictions in connection with Debt permitted under Section 5.02(b) so long as such restrictions are customary in the market for similar types of Debt for issuers or borrowers of similar credit quality.

(q) Restrictions on Certain Agreements. Enter into, or permit any of its Subsidiaries to enter into, any management or consulting agreement with Xxxxxx X. Xxxxx or any Affiliate of Xxxxxx X. Xxxxx, other than the Services Agreement.

(r) General Partner as Holding Company. In the case of the General Partner, enter into or conduct any business, or engage in any activity other than (i) the holding of the Equity Interests in the Borrower; (ii) the performance of its duties as general partner of the Borrower and the performance of its Obligations under this Agreement; (iii) the performance of

its obligations under agreements in existence on the Effective Date; (iv) the making of equity Investments in the Borrower and its Subsidiaries; (v) the maintenance of any deposit accounts required in connection with the conduct of business or activities otherwise permitted under the Loan Documents; and (vi) activities incidental to each of the foregoing. Notwithstanding anything herein to the contrary, the General Partner shall be permitted to make Investments in Unrestricted Subsidiaries to the extent permitted under Section 5.02(f).

(s) Excluded Subsidiaries. Directly or indirectly take, administer, make, cause or pursue any act, filing or proceeding, or directly or indirectly (by requisite board, member or shareholder action) approve or authorize any act, filing or proceeding, to revoke any dissolution of an Excluded Subsidiary, including without limitation pursuant to Section 311 of the Delaware General Corporation Law and/or Section 18-806 of the Delaware Limited Liability Company Act or any provisions similar thereto.

Section 5.03. Reporting Requirements. So long as any Term Loan or any other Obligation (other than any Unmatured Surviving Obligation) of any Loan Party under any Loan Document shall remain unpaid, the Loan Parties will furnish to the Agents and the Lender Parties:

(a) Default Notice. As soon as possible and in any event within two Business Days after the occurrence of each Default or any event, development or occurrence reasonably likely to have a Material Adverse Effect continuing on the date of such statement, a statement of the Responsible Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto.

(b) Annual Financials. As soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of independent public accountants of recognized standing acceptable to the Administrative Agent, (ii) a report of such independent public accountants as to the Borrower’s internal controls required under Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, in each case certified in a manner to which the Required Lenders have not reasonably objected in writing, together with (w) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (x) if the General Partner has any Unrestricted Subsidiaries, a consolidating balance sheet, consolidating statement of income and a consolidating statement of cash flows, in each case of the General Partner and its Subsidiaries (showing the General Partner and its Subsidiaries (other than Unrestricted Subsidiaries), taken as a whole, and the Unrestricted Subsidiaries of the General Partner, taken as a whole) as at the end of such Fiscal Year certified by a Responsible Officer of the General Partner, and (y) a certificate of the Responsible Officer of the Borrower stating that no Default has occurred and is continuing or, if a Default has occurred and is

continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto. In the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide a statement of reconciliation conforming such financial statements to GAAP.

(c) Quarterly Financials. As soon as available and in any event within 45 days after the end of each of the first three quarters of each Fiscal Year, a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal quarter and ending with the end of such fiscal quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal year-end audit adjustments) by the Responsible Officer of the Borrower as having been prepared in accordance with generally accepted accounting principles, together with (i) a certificate of said Responsible Officer stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto, and (ii) if the General Partner has any Unrestricted Subsidiaries, a consolidating balance sheet, consolidating statement of income and a consolidating statement of cash flows, in each case of the General Partner and its Subsidiaries (showing the General Partner and its Subsidiaries (other than Unrestricted Subsidiaries), and taken as a whole, and the Unrestricted Subsidiaries of the General Partner, taken as a whole) as at the end of such quarter certified by a Responsible Officer of the General Partner. In the event of any change in generally accepted accounting principles, the Borrower shall also provide a statement of reconciliation conforming such financial statements to GAAP.

(d) Annual Forecasts. As soon as available and in any event no later than 60 days after the end of each Fiscal Year, forecasts prepared by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements of the Borrower and Subsidiaries (other than Unrestricted Subsidiaries) on a quarterly basis for the Fiscal Year following such Fiscal Year and on a quarterly basis for each Fiscal Year thereafter until the Maturity Date.

(e) Litigation. Promptly after the commencement thereof, notice of all actions, suits, investigations, litigation and proceedings before any Governmental Authority affecting any Loan Party or any of its Subsidiaries of the type described in Section 4.01(f), and promptly after the occurrence thereof, notice of any adverse change in the status or the financial effect on any Loan Party or any of its Subsidiaries of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.

(f) Securities Reports. Promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports that any Loan Party or any of its Subsidiaries sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements, that any Loan Party or any of its Subsidiaries files with the Securities and Exchange Commission or any governmental authority that may be substituted therefor, or with any national securities exchange.

(g) Creditor Reports. Promptly after the furnishing thereof, copies of any statement or report furnished to any holder of Debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lender Parties pursuant to any other clause of this Section 5.03.

(h) Agreement Notices. Promptly upon receipt thereof, copies of all notices, requests and other documents received by any Loan Party or any of its Subsidiaries under or pursuant to any Related Document or any instrument, indenture, loan or credit or similar agreement with respect to Debt in excess of $20,000,000 and, from time to time upon request by the Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request.

(i) Revenue Agent Reports. Within 10 days after receipt, copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or other written proposals of the Internal Revenue Service, that propose, determine or otherwise set forth positive adjustments to the Federal income tax liability of any Loan Party or, as applicable, the affiliated group (within the meaning of Section 1504(a)(1) of the Internal Revenue Code) of which any Loan Party is a member aggregating $15,000,000 or more.

(j) ERISA.

(i) ERISA Events and ERISA Reports. (A) Promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.

(ii) Plan Terminations. Promptly and in any event within two Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.

(iii) Plan Annual Reports. Promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan.

(iv) Multiemployer Plan Notices. Promptly and in any event within five Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (A) or (B).

(k) Environmental Conditions. Promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.

(l) Real Property. At the same time as delivery of financial statements under Section 5.03(b), a report supplementing Schedule 4.01(v) hereto, including an identification of all owned and leased real property disposed of by the Borrower or any of its Subsidiaries during such Fiscal Year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all real property acquired or leased during such Fiscal Year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete.

(m) Insurance. At the same time as delivery of financial statements under Section 5.03(b), a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as any Agent, or any Lender Party through the Administrative Agent, may reasonably specify.

(n) Other Information. Such other information respecting the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of its Subsidiaries as any Agent, or any Lender Party through the Administrative Agent, may from time to time reasonably request.

(o) [Reserved].

(p) Trademark License Agreement. Promptly upon receipt thereof, copies of all notices, petitions, complaints or other writings that reflect or evidence the seeking of an injunction or similar order under the Trademark License Agreement.

ARTICLE VI

EVENTS OF DEFAULT

Section 6.01. Events of Default. If any of the following events (“EVENTS OF DEFAULT”) shall occur and be continuing:

(a) (i) the Borrower shall fail to pay any principal of any Term Loan when the same shall become due and payable or (ii) the Borrower shall fail to pay any interest on the Interest Bearing Component of the Term Loan, or any Loan Party shall fail to make any other payment under any Loan Document, in each case under this clause (ii) within five Business Days after the same shall become due and payable; or

(b) any representation or warranty made by any Loan Party (or any of its officers) under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; or

(c) the Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(e) (as it relates to preservation of existence) or (i), Section 5.02 or Section 5.03(a), (b) or (c); or

(d) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after the earlier of the date on which (i) any officer of a Loan Party becomes aware of such failure or (ii) written notice thereof shall have been given to the Borrower by any Agent or any Lender Party; or

(e) any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Debt of such Loan Party or such Subsidiary (as the case may be) that is outstanding in a principal amount of at least $15,000,000 either individually or in the aggregate for all such Loan Parties and Subsidiaries (but excluding Debt outstanding hereunder), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or

(f) any Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 30 consecutive days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or

(g) any judgments or orders, either individually or in the aggregate, for the payment of money in excess of $15,000,000 shall be rendered against any Loan Party or any of its Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 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 and such judgment has not been paid or discharged; or

(h) any non-monetary judgment or order shall be rendered against any Loan Party or any of its Subsidiaries that could be reasonably likely to have a Material Adverse Effect, and there shall be any period of 30 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 and such judgment or order remains in effect; or

(i) any Loan Document after delivery thereof pursuant to Sections 3.01 or 5.01(j) shall for any reason cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan Party shall so state in writing; or

(j) any Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority lien on and security interest in the Collateral covered thereby or any Loan Party shall so assert in writing; or

(k) a Change of Control shall occur; or

(l) any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event) exceeds $15,000,000; or

(m) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), exceeds $15,000,000 or requires payments exceeding $5,000,000 per annum; or

(n) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization or termination occurs by an amount exceeding $5,000,000; or

(o) the occurrence of a License Revocation with respect to a Gaming License in any jurisdiction in which any Loan Party owns or operates a Gaming Facility (except where

such License Revocation or such revocation could not be reasonably expected to have a Material Adverse Effect); provided that such License Revocation continues for at least ten consecutive Business Days; or

(p) the Trademark License Agreement shall terminate or expire for any reason, or any injunction or similar order is granted against any Loan Party under the Trademark License Agreement;

then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Term Loans, all interest on the Interest Bearing Component of the Term Loans, and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Term Loans, all such interest, and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, the Term Loans, all such interest, and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.

ARTICLE VII

THE AGENTS

Section 7.01. Authorization and Action.

(a) Each Lender Party hereby appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto, including the execution and filing of documents in accordance with the regulatory requirements of any Gaming Authority and consistent with this Agreement. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Term Loans), no Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lender Parties and all holders of Notes; provided, however, that no Agent shall be required to take any action that exposes such Agent to personal liability or that is contrary to this Agreement or applicable law. Each Agent agrees to give to each Lender Party prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.

(b) In furtherance of the foregoing, each Lender Party hereby appoints and authorizes the Collateral Agent to act as the agent of such Lender Party 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 Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any Supplemental Collateral Agents appointed by the Collateral Agent pursuant to Section 7.01(c) 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 or remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of this Article VII (including, without limitation, Section 7.05 as though any such Supplemental Collateral Agents were an “Agent” under the Loan Documents) as if set forth in full herein with respect thereto.

(c) Any Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Collateral Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Collateral Agent may also from time to time, when the Collateral Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “SUPPLEMENTAL COLLATERAL AGENT”) with respect to all or any part of the Collateral; provided, however, that no such Supplemental Collateral Agent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Borrower or any other Loan Party be required by any Supplemental Collateral Agent so appointed by the Collateral Agent to more fully or certainly vest in and confirm to such Supplemental Collateral Agent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent. If any Supplemental Collateral Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall automatically vest in and be exercised by the Collateral Agent until the appointment of a new Supplemental Collateral Agent. No Agent shall be responsible for the negligence or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent that it selects in accordance with the foregoing provisions of this Section 7.01(c) in the absence of such Agent’s gross negligence or willful misconduct.

Section 7.02. Agents’ Reliance, Etc. Neither any Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, each Agent: (a) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender Party and shall not be responsible to any Lender Party for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d) shall not be responsible to any Lender Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant

thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or e-mail transmission) believed by it to be genuine and signed or sent by the proper party or parties.

Section 7.03. Agents and their Affiliates. With respect to the Term Loans held by it and any Notes issued to it, each of the Administrative Agent and the Collateral Agent shall have the same rights and powers under the Loan Documents as any other Lender Party and may exercise the same as though each of the Administrative Agent and the Collateral Agent was not an Agent; and the term “Lender Party” or “Lender Parties” shall, unless otherwise expressly indicated, include the Administrative Agent and the Collateral Agent in their individual capacities, the Administrative Agent and the Collateral Agent and their affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if the Administrative Agent and the Collateral Agent (and/or the Affiliates of either) were not an Agent and without any duty to account therefor to the Lender Parties. No Agent shall have any duty to disclose any information obtained or received by it or any of its Affiliates relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as such Agent.

Section 7.04. Lender Party Credit Decision. Each Lender Party acknowledges that it has, independently and without reliance upon any Agent or any other Lender Party and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Party also acknowledges that it will, independently and without reliance upon any Agent or any other Lender Party 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 taking action under this Agreement.

Section 7.05. Indemnification.

(a) Each Lender Party severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the “INDEMNIFIED COSTS”); provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, reasonable fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any Lender Party or any other Person.

(b) [Reserved].

(c) For purposes of this Section 7.05, each Lender Party’s respective ratable share of any amount shall be determined, at any time, according to the ratio of (i) the aggregate principal amount of the Term Loans outstanding at such time and owing to such Lender Party and (ii) the aggregate principal amount of all Term Loans at such time. The failure of any Lender Party to reimburse any Agent promptly upon demand for its ratable share of any amount required to be paid by the Lender Parties to such Agent as provided herein shall not relieve any other Lender Party of its obligation hereunder to reimburse such Agent for its ratable share of such amount, but no Lender Party shall be responsible for the failure of any other Lender Party to reimburse such Agent for such other Lender Party’s ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender Party hereunder, the agreement and obligations of each Lender Party contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.

Section 7.06. Successor Agents. Any Agent may resign at any time by giving written notice thereof to the Lender Parties and the Borrower and may be removed at any time with or without cause by the Required Lenders; provided, however, that any removal of the Administrative Agent will not be effective until it or its Affiliate has also been replaced as Collateral Agent and discharged from all of its obligations in respect thereof. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent; provided, however, if the successor Agent is not a Qualifying Icahn Entity, such appointment shall be subject to the prior written consent of the Borrower, so long as no Event of Default is then in existence If no successor Agent shall have been so appointed by the Required Lenders (or, if the successor Agent is not a Qualifying Icahn Entity and no Event of Default is then in existence, consented to by the Borrower), and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lender Parties, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent and, in the case of a successor Collateral Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, such successor Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. If within 45 days after written notice is given of the retiring Agent’s resignation or removal under this Section 7.06 no successor Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (a) the retiring Agent’s resignation or removal shall become effective, (b) the retiring Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter

perform all duties of the retiring Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring Agent’s resignation or removal hereunder as Agent shall have become effective, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

Section 7.07. Agency Agreement. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed by Agents and Lenders that (a) Xxxx Bank, in its capacities as initial Collateral Agent and initial Administrative Agent, and the Initial Lenders have executed a separate Agency Agreement dated as of July 16, 2010 (as amended from time to time, the “Agency Agreement”) which, among other things, supplements and modifies, as among Agents and Lenders only, certain terms and provisions of Section 3.01 and this Article VII, (b) all present and future Agents and Lenders shall be bound by and subject to the terms and provisions of the Agency Agreement, and (c) in the event of any conflict between the terms and provisions of Section 3.01 and Article VII and the terms and provisions of the Agency Agreement, the terms and provisions of the Agency Agreement shall control. For avoidance of doubt, this Section shall not in any way affect (or create) any obligations or rights of any Loan Party.

ARTICLE VIII

GUARANTY

Section 8.01. Guaranty; Limitation of Liability.

(a) Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the “GUARANTEED OBLIGATIONS”), and agrees to pay any and all reasonable expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by any Agent or any Lender Party in enforcing any rights under this Guaranty or any other Loan Document. 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 Agent or any Lender Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.

(b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Subsidiary Guarantor (that is a Subsidiary of the Borrower) hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the

Obligations of each Subsidiary Guarantor (that is a Subsidiary of the Borrower) hereunder. To effectuate the foregoing intention, the Administrative Agent, the Lender Parties and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.

(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Lender Party under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Agents and the Lender Parties under or in respect of the Loan Documents.

Section 8.02. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan 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 any Agent or any Lender Party with respect thereto. The Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, 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 actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;

(f) any failure of any Agent or any Lender Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Agent or such Lender Party, as the case may be (each Guarantor waiving any duty on the part of the Agents and the Lender Parties to disclose such information);

(g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty Supplement or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Agent or any Lender Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety, in its capacity as a guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Agent or any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.

Section 8.03. Waivers and Acknowledgments.

(a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, intent to accelerate, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Agent or any Lender Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral.

(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Agent or any Lender Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such Guarantor hereunder.

(d) Each Guarantor acknowledges that the Collateral Agent may, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the recovery by the Collateral Agent and the other Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.

(e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Agent or any Lender Party to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by such Agent or such Secured Party, as the case may be.

(f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.

Section 8.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s Obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Agent or any Lender Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations (other than Unmatured Surviving Obligations) and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in cash of the Guaranteed Obligations (other than Unmatured Surviving Obligations) and all other amounts payable under this Guaranty, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to any Secured Party of all or any part of the Guaranteed Obligations, and (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, the Agents and the Lender Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.

Section 8.05. Guaranty Supplements. Upon the execution and delivery by any Person of a guaranty supplement in substantially the form of EXHIBIT G hereto (each, a “GUARANTY SUPPLEMENT”), (a) such Person shall be referred to as an “ADDITIONAL GUARANTOR” and shall become and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and each reference in any other Loan Document to a “GUARANTOR” shall also mean and be a reference to such Additional Guarantor, and (b) each reference herein to “ THIS GUARANTY,” “HEREUNDER,” “HEREOF” or words of like import referring to this Guaranty, and each reference in any other Loan Document to the “GUARANTY,” “THEREUNDER,” “THEREOF” or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty Supplement.

Section 8.06. Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other Obligations owed to such Guarantor by each other Loan Party (the “SUBORDINATED OBLIGATIONS”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 8.06:

(a) Prohibited Payments, Etc. Except during the continuance of an Event of Default, each Guarantor may receive payments from any other Loan Party on account of the Subordinated Obligations. After the occurrence and during the continuance of any Event of Default, however, unless the Required Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b) Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Agents and the Lender Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“POST-PETITION INTEREST”)) before such Guarantor receives payment of any Subordinated Obligations.

(c) Turn-Over. After the occurrence and during the continuance of any Event of Default, each Guarantor shall, if the Administrative Agent, acting at the direction of, or with the consent of, the Required Lenders, so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Agents and the Lender Parties and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of this Guaranty.

(d) Administrative Agent Authorization. After the occurrence and during the continuance of any Event of Default, the Administrative Agent acting at the direction of, or with the consent of, the Required Lenders, is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each Guarantor, to collect and enforce, and to

submit claims in respect of, the Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post-Petition Interest).

Section 8.07. Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the payment in full in cash of the Guaranteed Obligations (other than Unmatured Surviving Obligations) and all other amounts payable under this Guaranty, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Agents and the Lender Parties and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Lender Party may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of the Term Loans owing to it and any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent provided in Section 9.07. No Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Secured Parties; provided that any Guarantor may assign its rights to the applicable Loan Party in a transaction permitted pursuant to Section 5.02(d).

ARTICLE IX

MISCELLANEOUS

Section 9.01. Amendments, Etc. No amendment or waiver of, or forbearance from taking any action in respect of, any provision of this Agreement or any other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (or, in the case of the Collateral Documents, consented to) by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that

(a) no amendment, waiver or consent shall, unless in writing and signed by all of the Lender Parties (other than any Lender Party that is, at such time, a Defaulting Lender), do any of the following at any time:

(i) waive any of the conditions specified in Section 3.01; or

(ii) change the definition of “Required Lenders” or otherwise change the number of Lenders or the percentage of the aggregate unpaid principal amount of the Loans that, shall be required for the Lenders or any of them to take any action hereunder; or

(iii) change the order of application of payments set forth in Section 2.11(f); or

(iv) other than in connection with a transaction specifically permitted hereby, release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Agents and the Lender Parties under the Guaranties) if such release or limitation is in respect of all or substantially all of the value of the Guaranties to the Lender Parties; or

(v) other than in connection with a transaction specifically permitted under this Agreement, release any material portion of the Collateral having a value in excess of $50,000,000 in any transaction or series of related transactions.

(b) no amendment, waiver or consent shall, unless in writing and signed by the Required Lenders and each Lender specified below for such amendment, waiver or consent:

(i) [Reserved];

(ii) reduce or forgive the principal of the Term Loans, or stated rate of interest (other than Default Interest) on the Interest Bearing Component of the Term Loans owed to a Lender Party or any fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender Party without the consent of such Lender Party;

(iii) postpone any date scheduled for any payment of principal of the Term Loans, or interest (other than Default Interest) on the Interest Bearing Component of the Term Loans pursuant to Section 2.04 or 2.07 or any date fixed for any payment of fees hereunder to a Lender Party without the consent of such Lender Party;

(iv) [Reserved];

(v) change the order of application of any prepayment of Term Loans from the application thereof set forth in the applicable provisions of Section 2.06(b), in any manner that materially adversely affects the Lenders under one Facility without the consent of such Lender;

(vi) [Reserved]; or

(vii) amend, waive, modify or consent to any departure from the provisions of this Section 9.01 in a manner that would adversely affect the rights of any Lender under this Section 9.01 without the consent of such Lender;

provided, further, that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.

Section 9.02. Notices, Etc.

(a) All notices and other communications provided for hereunder shall be either (x) in writing (including telegraphic or telecopy communication) and mailed, telegraphed, telecopied or delivered, or (y) as and to the extent set forth in Section 9.02(b) and in the proviso

to this Section 9.02(a), in an electronic medium and as delivered as set forth in Section 9.02(b) if to any Loan Party, at the Borrower’s address at 00 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000, Attention: Mr. Xxxx Xxxxx, Executive Vice President and Corporate Treasurer; if to any Initial Lender Party, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender Party, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender Party; if to the Collateral Agent or the Administrative Agent, at its address at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxx, or, as to any party, at such other address as shall be designated by such party in a written notice to the other parties; provided, however, that materials and information described in Section 9.02(b) shall be delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices and other communications shall, when mailed, telegraphed or telecopied, be effective when deposited in the mails, delivered to the telegraph company or transmitted by telecopier, respectively, except that notices and communications to any Agent pursuant to Article II, III or VII shall not be effective until received by such Agent. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof. As agreed to among the Borrower, including as set forth in subsection (b) below, the Administrative Agent and the applicable Lender Parties from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.

(b) The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding (i) any notice of any prepayment of the Term Loans pursuant to Section 2.06, (ii) any notice of a Default or Event of Default under this Agreement or (iii) any certificate, agreement or other document required to be delivered to satisfy any condition set forth in Article III of this Agreement (all such non-excluded communications being referred to herein collectively as “Communications”), by delivering the Communications by e-mail to an e-mail address specified by the Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system reasonably acceptable to the Borrower (the “PLATFORM”).

(c) The Platform is provided on an “as is” and “as available” basis and the Agent Parties (as defined below) make no representation or warranty of any kind as the accuracy or completeness of the Communications or as to the adequacy of the Platform, and expressly disclaim any liability for any errors or omissions in the Communications. In no event shall the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, Advisors or representatives (collectively, the “AGENT PARTIES”) have any liability to the Borrower, any Lender Party or any other Person or entity for damages of any kind, including, without limitation, any direct or indirect, special, incidental or consequential damages,

losses or expenses (whether in tort, contract or otherwise) arising out of either Borrower’s or the Administrative Agent’s delivery of any Communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Party’s gross negligence or willful misconduct.

(d) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender Party agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender Party for purposes of the Loan Documents. Each Lender Party agrees to (i) notify the Administrative Agent in writing (including by e-mail) from time to time of such Lender Party’s e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender Party to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

Section 9.03. No Waiver; Remedies. No failure on the part of any Lender Party or any Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

Section 9.04. Costs and Expenses.

(a) The Borrower agrees to pay on demand (i) all reasonable costs and expenses of each Agent in connection with the preparation, execution, delivery, administration, modification and amendment of, or any consent or waiver under, the Loan Documents (including, without limitation, (A) all reasonable due diligence, collateral review, syndication, transportation, computer, duplication, appraisal, audit, insurance, title insurance, survey, environmental, inspection, due diligence, consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for each Agent with respect thereto, with respect to advising such Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto), (ii) all reasonable costs and expenses of each Agent and each Lender Party in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally (including, without limitation, the reasonable fees and expenses of counsel (A) for the Administrative Agent and (B) counsel for each Lender Party with respect thereto) and (iii) to the extent directed to be paid by the Bankruptcy Court, all reasonable costs and expenses of each Agent and each Lender relating to the Bankruptcy Cases, including without limitation the reasonable fees and expenses of counsel for each Agent and each Lender with respect thereto.

(b) The Borrower agrees to indemnify, defend and save and hold harmless each Agent, each Lender Party and each of their Affiliates and their respective officers, directors, trustees, employees, agents and advisors (each, an “INDEMNIFIED PARTY”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and reasonable expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Term Loans, the actual or proposed use of the proceeds of the Term Loans, the Transaction Documents or any of the transactions contemplated hereby or thereby or (ii) the actual or alleged presence of Hazardous Materials on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan Party or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the Transaction is consummated.

(d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender Party, in its sole discretion.

(e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Loan Documents.

Section 9.05. Right of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Term Loans due and payable pursuant to the provisions of Section 6.01, each Agent and each Lender Party and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Agent, such Lender Party or such Affiliate to or for the credit or the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under the Loan Documents, irrespective of whether such Agent or such Lender Party shall have made any

demand under this Agreement or the other Loan Documents and although such Obligations may be unmatured. Each Agent and each Lender Party agrees promptly to notify the Borrower after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent and each Lender Party and their respective Affiliates under this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Agent, such Lender Party and their respective Affiliates may have.

Section 9.06. Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower and each Agent and the Administrative Agent shall have been notified by each Initial Lender Party that such Initial Lender Party has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender Party and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender Party.

Section 9.07. Assignments and Participations.

(a) Each Lender may assign all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Term Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of the Term Loans, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate principal amount of the Term Loans being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.10(e) or Section 9.15(b) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.10(e) or Section 9.15(b) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Term Loans owing to such Lender, together with accrued interest on the Interest Bearing Component of the Term Loans to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes (if any) subject to such assignment.

(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party 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 taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.

(d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the principal amount of the Term Loans owing to, each Lender Party from time to time (the “REGISTER”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.

(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) a new Note to the order of such Eligible Assignee in an amount equal to the principal amount of the Term Loans assigned to such Eligible Assignee pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained any amount of the Term Loans, a new Note to the order of such assigning Lender in an amount equal to the principal amount of the Term Loans retained by it hereunder. Such new Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of EXHIBIT B.

(f) [Reserved].

(g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Term Loans owing to it and any Note or Notes held by it); provided, however, that (i) such Lender Party’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest (other than default interest) on, the Term Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Term Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release a substantial portion of the value of the Collateral or the value of the Guaranties and (vi) the participating banks or other entities shall be entitled to the benefit of Section 2.12 to the same extent as if they were a Lender Party but, with respect to any particular participant, to no greater extent than the Lender Party that sold the participation to such participant and only if such participant agrees to comply with Sections 2.12(e) and 2.12(g) as though it were a Lender Party.

(h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower or any

other Loan Party furnished to such Lender Party by or on behalf of the Borrower or such other Loan Party; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.

(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time (and without the consent of the Administrative Agent or the Borrower) create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Term Loans owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank, in accordance with Regulation A of the Board of Governors of the Federal Reserve System, or any Federal Home Loan Bank.

(j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loans owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, however, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

(k) [Reserved].

(l) In connection with any of the transactions described above in this Section 9.07, the Loan Parties agree to use all commercially reasonable efforts to assist each applicable Lender in its efforts to syndicate and assign interests in the Term Loans and/or to sell participation interests in such Lender’s interest in the Term Loans. Such assistance by the Loan Parties and its affiliates shall include, without limitation, (i) using commercially reasonable efforts to ensure that the syndication efforts benefit materially from the Loan Parties’ existing lending relationships, (ii) direct contact between senior management and advisors of the Loan Parties and the proposed syndicate lenders, (iii) assistance in the preparation of a Confidential Information Memorandum and other marketing materials to be used in connection with any syndication and (iv) the hosting, with each applicable Lender, of one or more meetings, consulting with each applicable Lender with respect to the presentations to be made at such meetings, and making available appropriate officers and representatives of the Loan Parties to rehearse such presentations prior to such meetings, as requested by each applicable Lender.

Section 9.08. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery by telecopier or email transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.

Section 9.09. [Reserved].

Section 9.10. Non-Consenting Lenders. If at any time, any Lender becomes a Non-Consenting Lender, then the Borrower may, at its sole cost and expense, on five Business Days’ prior written notice to the Administrative Agent and such Lender, replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 9.07 all of its rights and obligations under this Agreement to one or more Eligible Assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person; provided, further, that such Non-Consenting Lender shall be entitled to receive the full outstanding principal amount of Term Loans so assigned, together with accrued interest and fees payable in respect of such Term Loans (in the case of interest, only the interest payable in respect of the Interest Bearing Component of the Term Loans) as of the date of such assignment.

Section 9.11. Confidentiality. Neither any Agent nor any Lender Party shall disclose any Confidential Information to any Person without the consent of the Borrower, other than (a) to such Agent’s or such Lender Party’s Affiliates and their officers, directors, employees, agents and advisors and to actual or prospective Eligible Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner (including the Federal Home Loan Bank, the Federal Deposit Insurance Corporation, the National Association of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating such Lender Party, (d) to any rating agency when required by it; provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan Parties received by it from such Lender Party, (e) in connection with any litigation or proceeding to which such Agent or such Lender Party or any of its Affiliates may be a party or (f) in connection with the exercise of any right or remedy under this Agreement or any other Loan Document.

Section 9.12. Release of Collateral. Upon the sale, lease, transfer or other disposition of any item of Collateral of any Loan Party (including, without limitation, as a result of the sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such Collateral) in accordance with the terms of the Loan Documents or sale of all of the assets of, or all of the Equity Interests in, a Subsidiary in a transaction permitted by Section 5.02(e), the Collateral Agent will, at the Borrower’s expense, execute and deliver to such Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item or such Subsidiary of Collateral from the Lien granted under the Collateral Documents in accordance with the terms of the Loan Documents.

Section 9.13. Patriot Act Notice. Each Lender Party and each Agent (for itself and not on behalf of any Lender Party) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender Party or such Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such information and take such actions as are reasonably requested by any Agents or any Lender Party in order to assist the Agents and the Lender Parties in maintaining compliance with the Patriot Act.

Section 9.14. Jurisdiction, Etc.

(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.

(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court of the United States of America sitting in New York, New York. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

Section 9.15. Application of Liquor Laws and Gaming Laws.

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

(b) This Agreement and the other Loan Documents are subject to Gaming Laws. Without limiting the foregoing, each of the Administrative Agent and the Lenders acknowledges that if the Borrower receives a notice from any applicable Gaming Authority that a Lender has been found disqualified to hold Term Loans made to the Borrower under applicable

Gaming Laws (a “DISQUALIFICATION FINDING”), then the Borrower shall, within thirty (30) days after the date of the Disqualification Finding, either (i) replace such Lender with a Person that is both an Eligible Assignee and an Eligible Transferee or (ii) prepay the Term Loans (and other Obligations as set forth in the proviso below) held by or owed to or for the benefit of such disqualified Lender, even where a Default has occurred and is continuing; provided, however, that, concurrently with such replacement or prepayment (as applicable), all Term Loans, accrued and unpaid interest, fees and other Obligations then payable or owed to or for the benefit of such disqualified Lender shall be paid in full. Any such payment under this Section 9.15(b) shall be deemed to be a prepayment as set forth in Section 2.06(a). Notice to such disqualified Lender and the Administrative Agent shall be given by the Borrower within three (3) days of receipt of notice of such Disqualification Finding from the applicable Gaming Authority, and shall be accompanied by evidence demonstrating that such transfer or prepayment is required pursuant to Gaming Laws. Upon receipt of a notice in accordance with the foregoing, the disqualified Lender shall cooperate with the Borrower in effectuating the required transfer or prepayment within the time period set forth in such notice. Commencing on the date the Gaming Authority serves notice of its Disqualification Finding upon the Borrower, and to the extent (but only to the extent) required by applicable Gaming Laws, (A) such Lender shall no longer receive any interest payment on the Term Loans, (B) such Lender shall no longer exercise, directly or indirectly, any right conferred by the Term Loans, and (C) such Lender shall not receive any remuneration in any form from the Borrower for services or otherwise in respect of the Term Loans.

(c) Each of the Administrative Agent and the Lenders agrees to cooperate with all Gaming Authorities (or be subject to the provisions of Section 2.15) in connection with the provision of such documents or other information as may be requested by such Gaming Authorities relating to the Loan Parties or to the Loan Documents.

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

Section 9.16. Governing Law. This Agreement, the Notes and the other Loan Documents (unless otherwise expressly provided therein) shall be governed by, and construed in accordance with, the internal laws of the State of New York (including Section 5-1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles that would require application of another law.

Section 9.17. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE OTHER LOAN PARTIES, THE AGENTS AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE TERM

LOANS OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.

Section 9.18. Limitation of Liability. Each of the Borrower and the other Loan Parties agrees not to assert any claim against any Agent, any Lender Party or any of their Affiliates, or any of their respective officers, directors, employees, agents and advisors, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Term Loans, the actual or proposed use of the proceeds of the Term Loans, the Transaction Documents or any of the transactions contemplated by the Transaction Documents.

Section 9.19. Collateral Documents. Each Lender, for the benefit of the Agents, consents and agrees to the terms of the Collateral Documents as the same may be in effect or may be amended from time to time in accordance with its terms and the terms of this Agreement, and authorizes and directs the Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights and remedies thereunder in accordance therewith, subject in each case to any discretion that may be provided to the Collateral Agent by any of the terms of any such Collateral Document.

Section 9.20. [Reserved].

Section 9.21. Amendment and Restatement of Existing Credit Agreement. Upon the effectiveness of this Agreement and effective as of the Effective Date, this Agreement shall constitute an amendment and restatement of, but not an extinguishment of any of the “Loans”, “Loans” or other indebtedness, liabilities and/or obligations of the Borrower or any other Loan Party under, the Existing Credit Agreement, except to the extent set forth in the Plan of Reorganization and the terms of this Agreement.

Section 9.22. Ratification of Existing Liens. Each of the Borrower and the other Loan Parties hereby (a) ratifies, confirms and reaffirms any and all Liens that it previously granted to the Collateral Agent pursuant to the “Collateral Documents” (as such term is defined in the Existing Credit Agreement) to the extent that the Loan Parties continue to have an interest in the property or assets securing such Liens, (b) acknowledges and agrees that none of such Liens has expired or has been terminated or released, and (c) acknowledges and agrees that each of such Liens is valid and enforceable in accordance with its terms and continues in full force and effect to secure the payment and performance of the Obligations.

Section 9.23. [Reserved].

Section 9.24. No Personal Liability of Directors, Officers, Employees and Equity Holders. No direct or indirect stockholder, partner, member, equity holder, employee, officer or director, as such, past, present or future, of the Borrower, any Guarantor or any successor entity shall have any personal liability in respect of the obligations of the Borrower or any Guarantor under any Loan Document by reason of his, her or its status as such stockholder, partner, member, equity holder, employee, officer or director, except to the extent such Person (a) is a Borrower or a Guarantor, (b) has assumed such obligations of a Borrower or a Guarantor, or (c) otherwise has agreed in writing to have such personal liability. For avoidance of doubt, nothing

contained in this Section 9.24 shall limit, restrict, impair or otherwise affect any Lien granted by any Person referred to in this Section 9.24, any indebtedness or obligation secured by any such Lien or any right or remedy of any Agent or Lender with respect to any such Lien, all of which shall be and remain in full force and effect in accordance with their terms.

Section 9.25. WAIVER AND RELEASE. TO INDUCE THE AGENTS AND THE LENDERS TO EXECUTE THIS AGREEMENT, EACH OF THE LOAN PARTIES (BY ITS EXECUTION OF THIS AGREEMENT BELOW) REPRESENTS AND WARRANTS THAT, AS OF THE EFFECTIVE DATE, THERE ARE NO CLAIMS, COUNTERCLAIMS, CAUSES OF ACTION, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR DEMANDS AGAINST OR WITH RESPECT TO ANY OF ITS INDEBTEDNESS OR OBLIGATIONS UNDER THE EXISTING CREDIT AGREEMENT OR ANY OTHER “LOAN DOCUMENT” (AS SUCH TERM IS DEFINED IN THE EXISTING CREDIT AGREEMENT) OR UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND, IN ADDITION, EACH OF THE LOAN PARTIES HEREBY:

(a) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, COUNTERCLAIMS, CAUSES OF ACTION, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES AND DEMANDS, WHETHER KNOWN OR UNKNOWN, ARISING ON OR BEFORE THE EFFECTIVE DATE; AND

(b) RELEASE. RELEASES AND DISCHARGES EACH OF THE AGENTS AND THE LENDERS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE “RELEASED PARTIES”) FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, COUNTERCLAIMS, CAUSES OF ACTION, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES AND DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH SUCH LOAN PARTY EVER HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING ON OR BEFORE THE EFFECTIVE DATE AND FROM OR IN CONNECTION WITH OR RELATING TO THE EXISTING CREDIT AGREEMENT OR ANY OTHER “LOAN DOCUMENT” (AS SUCH TERM IS DEFINED IN THE EXISTING CREDIT AGREEMENT) OR UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY OR HEREBY.

[Remainder of Page Intentionally Left Blank]

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


XXXX BANK, SSB
as Administrative Agent and Collateral Agent

By:
Name:
Title:

100


ICAHN PARTNERS LP
as an Initial Lender

By:
Name:
Title:

ICAHN PARTNERS MASTER FUND LP
as an Initial Lender

By:
Name:
Title:

ICAHN PARTNERS MASTER FUND II LP
as an Initial Lender

By:
Name:
Title:

ICAHN PARTNERS MASTER FUND III LP
as an Initial Lender

By:
Name:
Title:

101


XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.,
as Borrower

By: Xxxxx Entertainment Resorts, Inc., its general partner

By:
Name:
Title:

XXXXX ENTERTAINMENT RESORTS INC.,
as a Guarantor

By:
Name:
Title:

TERH LP Inc.,
as a Subsidiary Guarantor

By:
Name:
Title:

102


XXXXX XXXXXX ASSOCIATES, LLC;

XXXXX PLAZA ASSOCIATES, LLC;

XXXXX XXX XXXXX ASSOCIATES, LLC;

XXXXX ENTERTAINMENT RESORTS DEVELOPMENT COMPANY, LLC; each as a Subsidiary Guarantor

By: Xxxxx Entertainment Resorts Holdings, L.P., their sole member

By: Xxxxx Entertainment Resorts, Inc., its general partner

By:
Name:
Title:

103


TCI 2 HOLDINGS, LLC,
as a Subsidiary Guarantor

By: Xxxxx Entertainment Resorts, Inc., its sole member

By:
Name:
Title:

XXXXX ENTERTAINMENT RESORTS FUNDING, INC.,
as a Subsidiary Guarantor

By:
Name:
Title:

104

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AMENDED AND RESTATED CREDIT AGREEMENT Dated as of July 16, 2010 among TRUMP ENTERTAINMENT RESORTS HOLDINGS, L.P. as Borrower TRUMP ENTERTAINMENT RESORTS, INC. as General Partner The Guarantors named herein as Guarantors and ICAHN PARTNERS LP, ICAHN...

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