-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FaXSjrex9AxahZfILKnY5kxInTPEeLMa62YzWJxUw+cgW2N243TOvGyqNSx31bAU NJEiz8WLksB/ky0NEHUpUA== 0000912145-97-000015.txt : 19970731 0000912145-97-000015.hdr.sgml : 19970731 ACCESSION NUMBER: 0000912145-97-000015 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19970715 ITEM INFORMATION: Changes in control of registrant FILED AS OF DATE: 19970730 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERISTAR CASINOS INC CENTRAL INDEX KEY: 0000912145 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 880304799 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-22494 FILM NUMBER: 97647760 BUSINESS ADDRESS: STREET 1: 3773 HOWARD HUGHES PKWY STREET 2: SUITE 490 SOUTH CITY: LAS VEGAS STATE: NV ZIP: 89109 BUSINESS PHONE: 702-567-7000 MAIL ADDRESS: STREET 1: 3773 HOWARD HUGHES PKWY STREET 2: SUITE 490 SOUTH CITY: LAS VEGAS STATE: NV ZIP: 89109 8-K 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): July 15, 1997 AMERISTAR CASINOS, INC. (Exact name of registrant as specified in its charter) Nevada 0-22494 88-0304799 (State or other (Commission File (IRS Employer jurisdiction of Number) Identification incorporation or Number) organization) 3773 Howard Hughes Parkway Suite 490 South Las Vegas, Nevada 89109 (Address of principal executive offices and Zip Code) (702) 567-7000 (Registrant's telephone number, including area code) ITEM 5. OTHER EVENTS. REFINANCING OF LONG-TERM DEBT. On July 24, 1997, Ameristar Casinos, Inc. ("Ameristar") issued a press release announcing that it has refinanced its long-term debt through a new $125 million revolving bank credit facility (the "Revolving Credit Facility") and the sale of $100 million aggregate principal amount of 10-1/2% Senior Subordinated Notes due 2004 Series A (the "Senior Subordinated Notes"). The Revolving Credit Facility was entered into on July 8, 1997, pursuant to a Credit Agreement among Ameristar and its four principal wholly owned subsidiaries (the "Borrowers"), a syndicate of bank lenders and Wells Fargo Bank, National Association ("WFB") as Agent Bank, Arranger and Swingline Lender. The Borrowers made an initial draw of $114.5 million under the Revolving Credit Facility on July 15, 1997, which was used to repay $94.5 million in borrowings outstanding under Ameristar's prior revolving credit facility (the "1995 Revolving Credit Facility") and a $20.0 million short-term loan from WFB. The Senior Subordinated Notes were issued by Ameristar at par in a private placement to certain initial purchasers for resale to qualified institutional buyers pursuant to the exemption provided by Rule 144A of the Securities and Exchange Commission. The net proceeds from the sale of the Senior Subordinated Notes were used to repay $82.4 million in borrowings and interest under the Revolving Credit Facility, $13.1 million in other indebtedness and $800,000 in loan fees for the Revolving Credit Facility. Following the application of the net proceeds from the sale of the Senior Subordinated Notes, the outstanding principal balance of the Revolving Credit Facility was $32.6 million. THE REVOLVING CREDIT FACILITY. In addition to Ameristar, the Borrowers under the Revolving Credit Facility include: Cactus Pete's Inc. ("CPI"), which owns and operates Cactus Petes Resort Casino and The Horseshu Hotel & Casino, in Jackpot, Nevada; Ameristar Casino Vicksburg, Inc. ("ACVI"), which owns and operates Ameristar Casino Vicksburg in Vicksburg, Mississippi; Ameristar Casino Council Bluffs, Inc. ("ACCBI"), which owns and operates Ameristar Casino Hotel Council Bluffs, in Council Bluffs, Iowa; and Ameristar Casino Las Vegas, Inc. ("ACLVI"), which owns and is developing The Reserve Hotel & Casino in Henderson, Nevada ("The Reserve"). Until Phase I of The Reserve is completed, additional draws under the Revolving Credit Facility may be used only for the construction of The Reserve, the acquisition of additional land for the development of The Reserve currently under option and the replenishment of working capital used to fund $4.0 million in payments due in June 1997 related to the acquisition of The Reserve and certain expenses incurred in connection with the Revolving Credit Facility. Draws for construction of The Reserve will be subject to the satisfaction of various conditions typically applicable to construction loans. Following completion of Phase I of The Reserve, Revolving Credit Facility proceeds may be used only for working capital purposes of the Borrowers and funding ongoing capital expenditures for existing facilities, including construction of Phase II of The Reserve and the acquisition of additional land under option adjacent to The Reserve site. Borrowings under the Revolving Credit Facility will be designated by the Borrowers on a quarterly basis as either base rate or London Interbank Offered Rate ("LIBOR") borrowings. The interest rate generally will be equal to WFB's per annum prime rate in effect from time to time or the per annum LIBOR rate, plus in each case an applicable margin determined by reference to the Borrowers' rolling four-quarter ratio of total funded debt to EBITDA (as defined below). The range of the base rate margin is from 0.25 percentage points to 2.25 percentage points, and the range of the LIBOR margin is from 1.50 percentage points to 3.50 percentage points. The Revolving Credit Facility will mature on June 30, 2003. Prior to maturity, the maximum principal available under the Revolving Credit Facility will reduce semiannually (commencing on July 1, 1999) by an aggregate of $50.0 million in increasing increments ranging from $2.5 million to $10.0 million. The Borrowers may prepay any borrowings under the Revolving Credit Facility without penalty (subject to certain charges applicable to the prepayment of LIBOR draws prior to the end of the applicable interest period) so long as a minimum of $10.0 million in borrowings is repaid. The Borrowers may also optionally reduce the maximum principal available under the Revolving Credit Facility at any time so long as any such reduction is for a minimum of $10.0 million. The Revolving Credit Facility includes covenants and conditions that limit the Borrowers' outstanding borrowings under the Revolving Credit Facility to not more than the lesser of the Borrowers' rolling four-quarter EBITDA multiplied by 3.25 and the Borrowers' total funded debt to not more than the Borrowers' rolling four-quarter EBITDA multiplied initially by 5.0, which multiplier will decline to 4.5 commencing March 31, 1999 and to 4.0 commencing March 31, 2000. For purposes of the Revolving Credit Facility, the Borrowers' EBITDA is generally defined as net income before interest expense, income taxes, depreciation and amortization, preopening costs and certain extraordinary and non-cash items. The Revolving Credit Facility also includes covenants requiring the Borrowers to maintain rolling four-quarter gross fixed charge coverage and adjusted fixed charge coverage ratios of 1.5 to 1.0 and 1.1 to 1.0, respectively. The gross fixed charge coverage ratio is generally defined as EBITDA divided by the aggregate sum of interest expense actually paid and current capitalized lease obligations plus required principal reductions on funded debt. The adjusted fixed charge coverage ratio is generally defined as the aggregate sum of EBITDA minus income taxes minus distributions to stockholders (other than to another Borrower) minus repurchases of Ameristar Common Stock divided by the aggregate sum of interest expense actually paid and current capitalized lease obligations plus required principal reductions on funded, debt. For purposes of these covenants, principal payments on the $28.7 million promissory notes issued to the former stockholders of Gem Gaming, Inc. in connection with the acquisition of The Reserve (the "Gem Notes") will be included only to the extent actually paid in the applicable period. The Revolving Credit Facility prohibits Ameristar from making any dividend or other distribution on its capital stock during any period in which the Borrowers' rolling four-quarter ratio of total funded debt to EBITDA is greater than 2.0 to 1.0. The Revolving Credit Facility is secured by liens on substantially all of the real and personal property of the Borrowers. The Revolving Credit Facility prohibits any future secondary liens on these properties without the prior written approval of the lenders. Certain changes in control of Ameristar may constitute a default under the Revolving Credit Facility. The Revolving Credit Facility also requires the Borrowers to expend two percent of their consolidated revenues on capital maintenance annually. The Revolving Credit Facility binds the Borrowers to a number of additional affirmative and negative covenants, including promises to maintain certain financial ratios and tests within defined parameters. Following the completion of Phase I of The Reserve, the Revolving Credit Facility also provides for WFB to make certain swingline loans to the Borrowers generally to provide short-term financing pending the funding of a draw by the lenders under the Revolving Credit Facility. Such swingline loans will bear interest based on WFB's prime rate determined from time to time in the same manner as for other borrowings under the Revolving Credit Facility. The Borrowers paid various fees and other loan costs upon the closing of the Revolving Credit Facility that will be amortized over the term of the Revolving Credit Facility. In addition, commencing on the first anniversary of the closing of the Revolving Credit Facility, the Borrowers will be required to pay quarterly commitment fees at an annual rate of 0.50% (subject to reduction to 0.375% if the Borrowers' ratio of total funded debt to rolling four-quarter EBITDA is less than 2.00 to 1.00) of the unused portion of the Revolving Credit Facility. The 1995 Revolving Credit Facility was terminated early in connection with entering into the Revolving Credit Facility. As a result, Ameristar will incur a $1.0 million pre-tax non-cash extraordinary charge ($637,000 or $0.03 per share on an after-tax basis) during the 1997 third quarter to reflect the accelerated write-off of unamortized deferred financing costs. THE SENIOR SUBORDINATED NOTES. The Senior Subordinated Notes were issued under an Indenture dated July 15, 1997 (the "Indenture"), under which the Trustee is First Trust National Association. In addition to Ameristar and the Trustee, certain of Ameristar's subsidiaries (the "Guarantors") are parties to the Indenture for the purpose of guaranteeing (the "Guarantees") payments on the Senior Subordinated Notes. The Guarantors include ACVI, ACCBI, ACLVI, A.C. Food Services, Inc. (a food purchasing concern) and AC Hotel Corp. (which will own and develop a 149-room hotel at Ameristar Vicksburg). ACCBI's obligations under its Guarantee were subject to the approval of the Iowa Racing and Gaming Commission, which was obtained on July 24, 1997. CPI is currently a Restricted Subsidiary (as defined) and will become a Guarantor pursuant to a Supplemental Indenture subject to the prior approval of the Nevada Gaming Commission, for which an application has been submitted. Future Restricted Subsidiaries will be required to become Guarantors. The Senior Subordinated Notes will mature on August 1, 2004. Interest is payable semiannually on February 1 and August 1, commencing February 1, 1998, at the per annum rate of 10.5%. The Senior Subordinated Notes and the Guarantees are not secured and are subordinate to all existing and future Senior Indebtedness (as defined), which includes the Revolving Credit Facility. Ameristar may redeem the Senior Subordinated Notes, in whole or in part, at any time on or after August 1, 2001, at redemption prices that decline over time from 105.25% to 101.75%. Senior Subordinated Notes may also be redeemed if the holder or beneficial owner thereof is required to be licensed, qualified or found suitable under applicable Gaming Laws (as defined) and is not so licensed, qualified or found suitable. Ameristar may also be required to redeem a portion of the Senior Subordinated Notes in the event of certain asset sales or the loss of a material gaming license, and each holder of the Senior Subordinated Notes will have the right to require Ameristar to redeem such holder's Senior Subordinated Notes upon a Change of Control (as defined) of Ameristar. The Senior Subordinated Notes are not subject to any mandatory redemption or sinking fund obligations. The Indenture includes covenants that restrict the ability of Ameristar and the Restricted Subsidiaries from incurring future Indebtedness (as defined); provided, however, that Ameristar or any Guarantor may incur Indebtedness if the incurrence thereof would not result in the Consolidated Coverage Ratio (as defined) to be greater than 2.0 to 1.0. The Consolidated Coverage Ratio is defined generally as the ratio of the consolidated cash flow (measured by an EBITDA formula) to consolidated interest and other fixed charges of Ameristar and its Restricted Subsidiaries on a rolling four-quarter basis. The Indenture also permits Ameristar or a Restricted Subsidiary to incur Indebtedness without regard to the Consolidated Coverage Ratio test in certain circumstances, including borrowings of up to $140 million under the Revolving Credit Facility, as amended or replaced from time to time, up to $15.0 million in recourse FF&E financings, up to $7.5 million in borrowings for the construction of the hotel at Ameristar Vicksburg and up to $5.0 million of other Indebtedness. The Indenture also includes certain covenants that, among other things, limit the ability of Ameristar and its Restricted Subsidiaries to pay dividends or other distributions, make investments, repurchase subordinated obligations or capital stock, create certain liens (except those securing Senior Indebtedness), enter into certain transactions with affiliates, sell assets, issue or sell subsidiary stock, create or permit restrictions on distributions from subsidiaries or enter into certain mergers and consolidations. Pursuant to a Registration Rights Agreement among Ameristar, its subsidiaries and the initial purchasers of the Senior Subordinated Notes, Ameristar and its subsidiaries have agreed to file by September 15, 1997, a registration statement under the Securities Act of 1933 with respect to an offer to exchange the Senior Subordinated Notes for debt securities with terms identical to the Senior Subordinated Notes (except for provisions relating to transfer restrictions, registration rights and liquidated damages) and use their best efforts to cause the exchange offer thereunder to be consummated by January 12, 1998. In certain circumstances, Ameristar and its subsidiaries have agreed to file a shelf registration statement for resales of the Senior Subordinated Notes by the holders thereof. If the registration obligations are not satisfied, Ameristar will be required to pay liquidated damages to the holders of the Senior Subordinated Notes under certain circumstances. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) and (b) Financial Statements and Pro Forma Financial Information. None. (c) Exhibits. 4.1 Credit Agreement, dated as of July 8, 1997, among Ameristar Casinos, Inc., Cactus Pete's Inc., Ameristar Casino Vicksburg, Inc., Ameristar Casino Council Bluffs, Inc. and Ameristar Casino Las Vegas, Inc., as Borrowers, the Lenders named therein, and Wells Fargo Bank, National Association as Arranger, Agent Bank and Swingline Lender. See also Exhibit 99.1 4.2 Indenture, dated as of July 15, 1997, among Ameristar Casinos, Inc., Ameristar Casino Las Vegas, Inc., Ameristar Casino Vicksburg, Inc., A.C. Food Services, Inc., AC Hotel Corp., Ameristar Casino Council Bluffs, Inc. and First Trust National Association. 4.3 Registration Rights Agreement, dated as of July 15, 1997, among Ameristar Casinos, Inc., Ameristar Casino Council Bluffs, Inc., A.C. Food Services, Inc., AC Hotel Corp., Ameristar Casino Las Vegas, Inc., Ameristar Casino Vicksburg, Inc., Cactus Pete's, Inc., Bear, Stearns & Co. Inc., BT Securities Corporation and First Chicago Capital Markets, Inc. 20.1 Press Release of Ameristar Casinos, Inc. dated July 24, 1997. 99.1 Supplemental Agreement to furnish the Securities and Exchange Commission omitted exhibits and schedules to Exhibit 4.1. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the undersigned registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AMERISTAR CASINOS, INC. (Registrant) Date: July 29, 1997 By: /s/ Thomas M. Steinbauer Thomas M. Steinbauer, Senior Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit Number Description of Exhibit Method of Filing 4.1 Credit Agreement, dated as of Filed electronically July 8, 1997, among Ameristar herewith. Casinos, Inc., Cactus Pete's Inc., Ameristar Casino Vicksburg, Inc., Ameristar Casino Council Bluffs, Inc. and Ameristar Casino Las Vegas, Inc., as Borrowers, the Lenders named therein, and Wells Fargo Bank, National Association as Arranger, Agent Bank and Swingline Lender. See also Exhibit 99.1 4.2 Indenture, dated as of July 15, Filed electronically 1997, among Ameristar Casinos, herewith. Inc., Ameristar Casino Las Vegas, Inc., Ameristar Casino Vicksburg, Inc., A.C. Food Services, Inc., AC Hotel Corp., Ameristar Casino Council Bluffs, Inc. and First Trust National Association. 4.3 Registration Rights Agreement, Filed electronically dated as of July 15, 1997, herewith. among Ameristar Casinos, Inc., Ameristar Casino Council Bluffs, Inc., A.C. Food Services, Inc., AC Hotel Corp., Ameristar Casino Las Vegas, Inc., Ameristar Casino Vicksburg, Inc., Cactus Pete's, Inc., Bear, Stearns & Co. Inc., BT Securities Corporation and First Chicago Capital Markets, Inc. 20.1 Press Release of Ameristar Filed electronically Casinos, Inc. dated July 24, herewith. 1997. 99.1 Supplemental Agreement to Filed electronically furnish the Securities and herewith. Exchange Commission omitted exhibits and schedules to Exhibit 4.1. EX-4 2 CREDIT AGREEMENT THIS CREDIT AGREEMENT ("Credit Agreement") is made and entered into as of the 8th day of July, 1997, by and among AMERISTAR CASINOS, INC., a Nevada corporation ("ACI"), CACTUS PETE'S, INC., a Nevada corporation ("CPI"), AMERISTAR CASINO VICKSBURG, INC., a Mississippi corporation ("ACVI"), AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation ("ACCBI") and AMERISTAR CASINO LAS VEGAS, INC., a Nevada corporation ("ACLVI" and together with ACI, CPI, ACVI and ACCBI, collectively referred to as the "Borrowers"), each of the Lenders, as hereinafter defined, WELLS FARGO BANK, National Association, as the swingline lender (herein in such capacity, together with its successors and assigns, the "Swingline Lender") and WELLS FARGO BANK, National Association, as administrative and collateral agent for the Lenders and Swingline Lender (herein, in such capacity, called the "Agent Bank" and, together with the Lenders and Swingline Lender, collectively referred to as the "Banks"). R E C I T A L S: WHEREAS: A. In this Credit Agreement all capitalized words and terms shall have the respective meanings and be construed herein as hereinafter provided in Section 1.01 of this Credit Agreement and shall be deemed to incorporate such words and terms as a part hereof in the same manner and with the same effect as if the same were fully set forth. B. CPI, ACVI, ACCBI and ACLVI are wholly owned subsidiaries of ACI. On or about June 1, 1995, ACI, as borrower, and CPI, ACVI and ACCBI, as guarantors, entered into a Credit Agreement, dated June 1, 1995 (the "Existing Credit Agreement") with certain banks, as lenders, described in the Existing Credit Agreement (each individually an "Existing Lender" and collectively the "Existing Lenders") under the terms of which Existing Lenders established a reducing revolving line of credit in favor of ACI, as borrower, and CPI, ACVI and ACCBI, as guarantors, in the amount of One Hundred Five Million Dollars ($105,000,000.00) (the "Existing Bank Loan") as evidenced by a Promissory Note due December 31, 2001 (the "Existing Note") executed by ACI and payable to the order of the Existing Lenders. C. Pursuant to the terms of the Merger Agreement dated May 30, 1996 (as amended, the "GEM Merger Agreement") executed by and among Gem Gaming, Inc., ACI, ACLVI, Steven W. Rebeil ("Rebeil") and Dominic J. Magliarditi ("Magliarditi"), Gem Gaming, Inc. was merged with and into ACLVI (the "Gem Merger"). As a consequence of the Gem Merger ACLVI is the owner of the ACLVI Real Property and the ACLVI Project. D. ACI desires to issue up to One Hundred Twenty- Five Million Dollars ($125,000,000.00) in Senior Subordinated Notes due 2004 (the "Initial Senior Subordinated Notes") in a limited offering to Qualified Institutional Buyers (as defined in Rule 144A of the Securities and Exchange Commission (the "SEC")), accredited institutional investors (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D of the SEC) and outside the United States to certain persons in reliance on Regulation S of the SEC, which Initial Senior Subordinated Notes are intended to be issued under and pursuant to an indenture (the "Indenture") a draft of which has been provided to and reviewed by the Lenders. ACI intends to use all net proceeds from the issuance of the Initial Senior Subordinated Notes to reduce Indebtedness of the Borrower Consolidation, including Funded Obligations under the Credit Facility. E. Following the issuance of the Initial Senior Subordinated Notes and in order to facilitate trading in such debt securities, ACI intends to file a registration statement with the SEC seeking to register an exchange offer for the exchange of the Initial Senior Subordinated Notes for an issue of up to One Hundred Twenty-Five Million Dollars ($125,000,000.00) in Senior Subordinated Notes due 2004 (the "Exchange Senior Subordinated Notes") under and pursuant to the Indenture. The Exchange Senior Subordinated Notes will be identical in all material respects to the Initial Senior Subordinated Notes. F. The Borrower Consolidation desires to refinance the Existing Bank Loan, Existing Credit Agreement and Existing Note for the purpose of adding CPI, ACVI, ACCBI and ACLVI as Borrowers and increasing the maximum amount available for Borrowing to One Hundred Twenty-Five Million Dollars ($125,000,000.00), including a swingline subfacility for fundings in smaller minimum amounts and on shorter notice in the maximum amount of Five Million Dollars ($5,000,000.00) at any time outstanding. G. Lenders are willing to refinance the Existing Credit Agreement and Existing Note for the purpose of establishing the Credit Facility in the initial principal amount of One Hundred Twenty-Five Million Dollars ($125,000,000.00), including the Swingline Facility to be funded by the Swingline Lender, as a subfacility in the maximum aggregate amount of Five Million Dollars ($5,000,000.00) at any time outstanding, all on the terms and subject to the conditions, covenants and understandings hereinafter set forth and contained in each of the Loan Documents. NOW, THEREFORE, in consideration of the foregoing, and other valuable considerations as hereinafter described, the parties hereto do promise, covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. For the purposes of this Credit Agreement, each of the following terms shall have the meaning specified with respect thereto, unless a different meaning clearly appears from the context: "ACCBI Assignment of Permits, Licenses and Contracts" shall mean the assignment to be executed by ACCBI on or before the Closing Date, pursuant to which ACCBI assigns to Agent Bank on behalf of the Lenders, as additional security for the Bank Facilities, all of its right, title and interest in and to all permits, licenses and contracts relating to the ACCBI Riverboat/Hotel Facilities, except those gaming permits and licenses which are unassignable and except those permits, licenses and contracts which may not be assigned without obtaining the consent of ACCBI's counterparty, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACCBI Assignment of Spaceleases, Contracts, Rents and Revenues" shall mean the assignment to be executed by ACCBI on or before the Closing Date, pursuant to which ACCBI assigns to Agent Bank on behalf of the Lenders, as additional security for the Bank Facilities: (a) all of its right, title and interest under all ACCBI Equipment Leases and Contracts and ACCBI Space Leases relating to the ACCBI Riverboat/Hotel Facilities, and (b) all rents, issues, profits, revenues and income from the ACCBI Premises and the ACCBI Riverboat/Hotel Facilities and any other business activity conducted on the ACCBI Premises, together with any future expansions thereof, related thereto or used in connection therewith, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACCBI Collateral" shall mean collective reference to: (i) all of the ACCBI Riverboat, ACCBI Premises, ACCBI FF&E and the contract rights, leases, intangibles and other interests of ACCBI, which are subject to the liens and security interests of the ACCBI Security Documents; (ii) all rights of ACCBI assigned as additional security pursuant to the terms of the ACCBI Security Documents; and (iii) any and all other property and/or intangible rights, interest or benefits inuring to or in favor of ACCBI, which are in any manner assigned, pledged, encumbered or otherwise hypothecated in favor of Agent Bank on behalf of Lenders to secure payment of the Bank Facilities. "ACCBI Deed of Trust" shall mean the Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by ACCBI on or before the Closing Date in favor of Agent Bank, on behalf of Lenders, encumbering the ACCBI Premises, the ACCBI FF&E and other ACCBI Collateral therein described for the purpose of securing the Bank Facilities and Borrowers' payment and performance under each of the Loan Documents (other than the Environmental Certificate) as such deed of trust may be amended, modified, extended, renewed or restated from time to time. "ACCBI Equipment Leases and Contracts" shall mean the executed leases and purchase contracts pertaining to the ACCBI FF&E wherein ACCBI is the lessee or vendee, as the case may be, as set forth on that certain scheduled marked "Schedule 4.16(A)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACCBI Equipment Lender" shall mean WFB, as the successor by merger to First Interstate Bank of Nevada, N.A., in its capacity as the lender under the ACCBI Equipment Loan. "ACCBI Equipment Loan" shall mean the loan by the ACCBI Equipment Lender to ACCBI as evidenced by the ACCBI Equipment Loan Documents. "ACCBI Equipment Loan Documents" shall mean collective reference to (i) that certain Promissory Note dated December 12, 1995, in the original principal amount of Seven Million One Hundred Thirty-Seven Thousand Four Hundred Dollars ($7,137,400.00) executed by ACCBI, payable to the order of the ACCBI Equipment Lender, (ii) that certain Loan Agreement dated December 12, 1995, executed by and among ACCBI, as borrower, ACI, as guarantor and ACCBI Equipment Lender, (iii) that certain Security Agreement dated December 12, 1995, executed by ACCBI, as grantor, and the ACCBI Equipment Lender, as secured party, (iv) the ACCBI Equipment Loan Financing Statements, and (v) the ACCBI Equipment Ship Mortgage. "ACCBI Equipment Loan Financing Statements" shall mean collective reference to the UCC Financing Statements executed by ACCBI in favor of the ACCBI Equipment Lender filed (i) in the Office of the County Recorder of Pottawattamie County, Iowa, on December 14, 1995, under File No. G76353, and (ii) in the Office of the Secretary of State of the State of Iowa on December 14, 1995, under file number K695761. "ACCBI Equipment Ship Mortgage" shall mean the Preferred Ship Mortgage dated December 12, 1995, executed by ACCBI, as grantor, in favor of the ACCBI Equipment Lender, received by the USCG, New Orleans Office, on December 13, 1995, and recorded in the NVDC in Book 95-5, as Instrument No. 789. "ACCBI FF&E" shall mean the furniture, fixtures and equipment and all gaming equipment and devices which have been installed or are to be installed and used or owned by ACCBI in connection with the operation of the ACCBI Riverboat/Hotel Facilities. "ACCBI Fee Property" shall mean the real property owned by ACCBI which is more particularly described on that certain schedule marked "Schedule A-1", affixed hereto and by this reference incorporated herein and made a part hereof. "ACCBI Financing Statements" shall mean the Uniform Commercial Code Financing Statements to be filed in the office of the Secretary of State of the State of Iowa, and in the office of the County Recorder of Pottawattamie County, Iowa, in order to perfect the security interest granted to Agent Bank on behalf of the Lenders under the ACCBI Deed of Trust and other ACCBI Security Documents in accordance with the requirements of the Iowa Uniform Commercial Code, as they may be amended, modified, extended, renewed or restated from time to time. "ACCBI Hotel Attornment Agreement" shall mean that certain Second Recognition, Nondisturbance and Attornment Agreement to be executed on or before the Closing Date by and among Council Bluffs Hotel Associates, ACCBI, Agent Bank and Miller & Schroeder Investments Corporation, a Minnesota corporation (as the holder of a mortgage lien on the interest of Council Bluffs Hotel Associates under the ACCBI Hotel Lease and the ACCBI Hotel Easement) pursuant to which, among other things: (i) the interest of Council Bluffs Hotel Associates under the ACCBI Hotel Lease and the ACCBI Hotel Easement is subordinated to the lien of the ACCBI Deed of Trust; (ii) Agent Bank agrees that, upon acquisition of ACCBI Fee Property by Foreclosure under the ACCBI, or conveyance in lieu thereof, Agent Bank (or any purchaser at a foreclosure sale) will recognize and attorn to the interest of Council Bluffs Hotel Associates under the ACCBI Hotel Lease and the ACCBI Hotel Easement; and (iii) Miller and Schroeder Investments Corporation consents to the terms and conditions set forth therein. "ACCBI Hotel Easement" shall mean that certain Easement from ACCBI, as grantor, to Kinseth Hotel Corporation, an Iowa corporation which is recorded in the office of the County Recorder of Pottawattamie County, Iowa On April 3, 1996, in Book 96, at Page 28334, as amended by that certain Amendment to Easement by and between ACCBI and Council Bluffs Hotel Associates as the successor to Kinseth Hotel Corporation, which Amendment to Easement was recorded in the office of the County Recorder of Pottawattamie County, Iowa on June 25, 1996, in Book 96 at Page 39287, all pursuant to which Council Bluffs Hotel Associates is granted: (i) a nonexclusive right of way easement over and across that portion of the ACCBI Fee Property which is described by Exhibit "A" to said Amendment to Easement; and (ii) a nonexclusive easement for vehicular and pedestrian ingress and egress over roads, driveways and sidewalks which are situate from time to time upon Ameristar Property that is adjacent to the ACCBI Hotel Lease Parcel; both of which easements are granted to Council Bluffs Hotel Associates to be utilized in connection with Council Bluffs Hotel Associates occupation and use of the ACCBI Hotel Parcel under the ACCBI Hotel Lease; and as said Easement may be further amended, modified, extended, renewed or restated from time to time. "ACCBI Hotel Lease" shall mean that certain Amended and Restated Ground Lease Agreement under date of September 7, 1995, by and between ACCBI, as lessor, and Kinseth Hotel Corporation, an Iowa corporation, as lessee, record notice of which is granted pursuant to a Memorandum of Ground Lease that is recorded in the office of the County Recorder of Pottawattamie County, Iowa on April 3, 1996 in Book 96 at Page 28330, with the lessee's interest thereunder having been assigned to Council Bluffs Hotel Associates by an Assignment of Ground Lease recorded in the office of the County Recorder of Pottawattamie County, Iowa on May 13, 1996 in Book 96 at Page 33420, as such lease is amended by that certain Amendment No. 1 to Amended and Restated Ground Lease under date of May 1, 1996, record notice of which is granted pursuant to an Amendment to Memorandum of Ground Lease recorded in the office of the County Recorder of Pottawattamie County, Iowa on June 25, 1996 in Book 96 at Page 39290; all pursuant to which: (i) the ACCBI Hotel Parcel is leased to Council Bluffs Hotel Associates for the purpose of building and maintaining a hotel thereon; (ii) Council Bluffs Hotel Associates is granted a right of first refusal with respect to any sale by ACCBI of any portion of the ACCBI Fee Property to be used for construction of a hotel; (iii) ACCBI is granted a right of first refusal with respect to, and an option to purchase, the ACCBI Hotel Parcel; and (iv) Council Bluffs Hotel Associates is granted certain licenses and easements with respect to the ACCBI Fee Property; all as more particularly set forth therein; as such Amended and Restated Ground Lease Agreement may be further amended, modified, extended, renewed or restated from time to time. "ACCBI Hotel Parcel" shall mean that parcel of real property which is situate within the ACCBI Fee Property and is particularly described by Exhibit "A" to the Amendment to Memorandum of Ground Lease under date of May 1, 1996, that is recorded in the office of the County Recorder of Pottawattamie County, Iowa on June 25, 1996, in Book 96 at Page 39290. "ACCBI IDNR Attornment Agreement" shall mean the Second Attornment Agreement for the benefit of Mortgagee to be executed on or before the Closing Date by and among ACCBI and IDNR pursuant to which, among other things, certain representations and assurances are made for the benefit of the Banks with regard to the terms and conditions of the ACCBI Land Use Agreement, and with regard to Agent Bank's entitlement to the benefit of those provisions set forth by the ACCBI Land Use Agreement which are defined therein as the "Mortgagee Protection Provisions". "ACCBI Land Use Agreement" shall mean the Settlement Use and Management Agreement and IDNR Permit dated May 15, 1995, executed between IDNR and Koch providing for the occupancy and use of the IDNR Parcel, with the interest of Koch therein having been assigned to ACCBI pursuant to that certain Assignment and Assumption Agreement executed by Koch and by ACCBI under date of July 26, 1995, as such Settlement, Use and Management Agreement and IDNR Permit may be amended, modified, extended, renewed or restated from time to time. "ACCBI Permitted Encumbrances" shall mean, at any particular time, (i) liens for taxes, assessments or governmental charges not then due and payable or not then delinquent, (ii) statutory liens for labor and/or materials and liens for taxes, assessments or governmental charges the validity of which, in either instance, are being contested in good faith by Borrowers by appropriate proceedings, and as provided in Sections 5.03 and 5.10 hereof, respectively, provided that, Borrowers shall have maintained adequate reserves in accordance with GAAP for payment of same, (iii) liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (iv) leases or subleases granted to others (including, without limitation, any Subsidiary) not interfering in any material respect with the ordinary conduct of the business of the ACCBI Riverboat/Hotel Facilities; (v) liens created or contemplated by the ACCBI Security Documents, (vi) the liens, encumbrances and restrictions on the ACCBI Real Property, ACCBI FF&E and existing improvements which are shown as exceptions on Schedule B of the ACCBI Title Insurance Policy to be issued by the Title Insurance Company as of the Closing Date, (vii) liens consented to in writing by Agent Bank upon the approval of Requisite Lenders, (viii) liens of legally valid capital leases and purchase money security interests for ACCBI FF&E to the extent permitted by Section 6.08, (ix) the GECC Ship Mortgage and any Liens created thereby, (x) the Liens securing the ACCBI Equipment Loan, including the ACCBI Equipment Ship Mortgage and ACCBI Equipment Loan Financing Statements, (xi) each and every easement, license, restriction or right-of-way that (A) is hereafter granted to any Governmental Authority or public utility providing services to the ACCBI Premises or (B) does not interfere in any material respect with the ACCBI Riverboat/Hotel Facilities; and (xii) judgment liens, writs, warrants, levies, distraints, attachments and other similar process which do not constitute an Event of Default. "ACCBI Premises" shall mean collective reference to the ACCBI Fee Property and the IDNR Parcel. "ACCBI Riverboat" shall mean the whole of the vessel named below and described as follows: Vessel Name Official Number AMERISTAR II 1035267 together with any and all present and future engines, boilers, machinery, components, masts, boats, anchors, cables, chains, rigging, tackle, apparel, furniture, capstans, outfit, tools, pumps, gear, furnishings, appliances, fittings, spare and replacement parts, and any and all other appurtenances thereto, appertaining or belonging to the ACCBI Riverboat, whether now or hereafter acquired, and whether on board or not on board, together with any and all present and future additions, improvements, and replacements therefor, made in or to the ACCBI Riverboat, or any part or parts thereof; and all accounts, earned hire, charter payments, freight, earnings, revenues, income and profit therefrom and additionally, all log books, manuals, trip records, maintenance records, inspection reports, seaworthiness certificates, and other historical records or information relating to the ACCBI Riverboat; all of which shall be deemed to be included in any reference herein to the term "ACCBI Riverboat". "ACCBI Riverboat/Hotel Facilities" shall mean the riverboat casino hotel business and related activities conducted by ACCBI in and on the ACCBI Premises and ACCBI Riverboat and all improvements now or hereafter situate thereon. "ACCBI Security Documents" shall mean collective reference to the ACCBI Deed of Trust, ACCBI Ship Mortgage, ACCBI Financing Statements, ACCBI Assignment of Permits, Licenses and Contracts, ACCBI Assignment of Spaceleases, Contracts, Rents and Revenues, ACCBI IDNR Attornment Agreement, ACCBI Hotel Attornment Agreement and all other documents, instruments or agreements which are executed or delivered by or on behalf of ACCBI, and accepted by Agent Bank, on behalf of Lenders, as security for payment of the Bank Facilities. "ACCBI Ship Mortgage" shall mean the Preferred Ship Mortgage to be executed by ACCBI on or before the Closing Date wherein ACCBI, as owner and mortgagor, grants a first mortgage lien in favor of Agent Bank on behalf of Lenders in and to the ACCBI Riverboat and other ACCBI Collateral more particularly therein described, as such ACCBI Ship Mortgage may be amended, supplemented or otherwise modified from time to time. "ACCBI Spaceleases" shall mean the executed leases and concession agreements pertaining to the ACCBI Riverboat/Hotel Facilities, or any portion thereof, wherein ACCBI is the lessor as set forth on the certain schedule marked "Schedule 4.15(A)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACCBI Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders Policy of Title Insurance, and the endorsements thereto, which are to be issued by the Title Insurance Company, as of the Closing Date, in the amount of Eighteen Million Four Hundred Thousand Dollars ($18,400,000.00), in favor of Agent Bank, insuring the ACCBI Deed of Trust as first priority mortgage or leasehold liens, as applicable, encumbering the ACCBI Premises subject only to the exceptions shown therein in Schedule B, Part One, together with such endorsements thereto as are required by Agent Bank (including, without limitation, a Tie-In endorsement with regard to the remaining Title Insurance Policies) all in accordance with the Closing Instructions. "ACLVI Assignment of Permits, Licenses and Contracts" shall mean the assignment to be executed by ACLVI on or before the Closing Date, pursuant to which ACLVI assigns to Agent Bank on behalf of Lenders, as additional security for the Bank Facilities, all of its right, title and interest in and to all permits, licenses and contracts relating to the ACLVI Hotel/Casino Facility, except those gaming permits and licenses which are unassignable and except those permits, licenses and contracts which may not be assigned without obtaining the consent of ACLVI's counterparty, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACLVI Assignment of Spaceleases, Contracts, Rents and Revenues" shall mean the assignment to be executed by ACLVI on or before the Closing Date, whereby ACLVI assigns to Agent Bank on behalf of Lenders, as additional security for the Bank Facilities: (a) all of its right, title and interest under all ACLVI Spaceleases and ACLVI Equipment Leases and Contracts relating to the ACLVI Hotel/Casino Facility and (b) all rents, issues, profits, revenues and income from the ACLVI Real Property and the ACLVI Hotel/Casino Facility and any other business activity conducted on the ACLVI Real Property, together with any and all future expansions thereof, related thereto or used in connection therewith, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACLVI Collateral" shall mean collective reference to: (i) all of the ACLVI Real Property, ACLVI FF&E, and the contract rights, leases, intangibles and other interests of ACLVI, which are subject to the liens and security interests of the ACLVI Security Documents; (ii) all rights of ACLVI assigned as additional security pursuant to the terms of the ACLVI Security Documents; and (iii) any and all other property and/or intangible rights, interest or benefits inuring to or in favor of ACLVI, which are in any manner assigned, pledged, encumbered or otherwise hypothecated in favor of Agent Bank on behalf of Lenders to secure payment of the Bank Facilities. "ACLVI Deed of Trust" shall mean the Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by ACLVI on or before the Closing Date in favor of Agent Bank on behalf of the Lenders, encumbering the ACLVI Real Property, ACLVI FF&E and other ACLVI Collateral therein described, together with ACLVI's rights under the Option Agreement and all right, title and interest of ACLVI acquired on and after the Closing Date in and to the Option Property or any portion or portions thereof, for the purpose of securing the Bank Facilities and Borrowers' payment and performance under each of the Loan Documents (other than the Environmental Certificate), as such deed of trust may be amended, modified, extended, renewed or restated from time to time. "ACLVI Equipment Leases and Contracts" shall mean the executed leases and purchase contracts pertaining to the ACLVI FF&E wherein ACLVI is the lessee or vendee, as the case may be, as set forth on that certain schedule marked "Schedule 4.16(D)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACLVI FF&E" shall mean the furniture, fixtures and equipment and all gaming equipment and devices which have been installed or are to be installed and used or owned by ACLVI in connection with the operation of the ACLVI Hotel/Casino Facility. "ACLVI Financing Statements" shall mean the Uniform Commercial Code financing statements to be filed in the Office of the Secretary of State of the State of Nevada and in the Office of the County Recorder of Clark County, Nevada, in order to perfect the security interest granted to Agent Bank on behalf of Lenders under the ACLVI Deed of Trust and other ACLVI Security Documents in accordance with requirements of the Nevada Uniform Commercial Code, as such financing statements may be amended, modified, extended, renewed or restated from time to time. "ACLVI Hotel/Casino Facility" shall mean the improvements and the hotel and casino business and related activities to be conducted on the ACLVI Real Property following completion of the ACLVI Project. "ACLVI Permitted Encumbrances" shall mean, at any particular time, (i) liens for taxes, assessments or governmental charges not then due and payable or not then delinquent, (ii) statutory liens for labor and/or materials and liens for taxes, assessments or governmental charges the validity of which, in either instance, are being contested in good faith by Borrowers by appropriate proceedings, and as provided in Sections 5.03 and 5.10 hereof, respectively, provided that, Borrowers shall have maintained adequate reserves in accordance with GAAP for payment of same, (iii) liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (iv) leases or subleases granted to others (including, without limitation, any Subsidiary) not interfering in any material respect with the ordinary conduct of the business of the ACLVI Hotel/Casino Facility; (v) liens created or contemplated by the ACLVI Security Documents, (vi) the liens, encumbrances and restrictions on the ACLVI Real Property, ACLVI FF&E and existing improvements which are shown as exceptions on Schedule B of the ACLVI Title Insurance Policy to be issued by Title Insurance Company as of the Closing Date, (vii) liens consented to in writing by Agent Bank upon the approval of Requisite Lenders, (viii) liens of legally valid capital leases and purchase money security interests for ACLVI FF&E to the extent permitted by Section 6.08, and (ix) each and every easement, license, restriction or right-of-way that (A) is hereafter granted to any Governmental Authority or public utility providing services to the ACLVI Real Property or (B) does not interfere in any material respect with the ACLVI Hotel/Casino Facility; and (x) judgment liens, writs, warrants, levies, distraints, attachments and other similar process which do not constitute an Event of Default. "ACLVI Project" shall mean the Phase I of the hotel and casino facility to be developed, constructed and completed on the ACLVI Real Property, consisting of approximately thirty-five thousand (35,000) square feet of casino space, at least two hundred (200) hotel rooms, four (4) restaurants, six (6) lounges, a race and sports book, facilities and a pool. "ACLVI Real Property" shall mean the real property owned by ACLVI which is more particularly described on that certain schedule marked "Schedule D-1", affixed hereto and by this reference incorporated herein and made a part hereof, together with all portions of the Option Property to which ACLVI acquires title on and after the Closing Date. "ACLVI Security Documents" shall mean collective reference to the ACLVI Deed of Trust, ACLVI Assignment of Spaceleases, Contracts, Rents and Revenues, ACLVI Assignment of Permits, Licenses and Contracts, the ACLVI Financing Statements, Assignment of Architect's Contract, Assignment of Existing General Contractor's Agreement, Assignment of New General Contractor's Agreement, Assignment of Interior Designer's Contract, Major Subcontractor Assignments and all other documents, instruments or agreements which are executed or delivered by or on behalf of ACLVI, and accepted by Agent Bank, on behalf of the Lenders, as security for payment of the Bank Facilities. "ACLVI Spaceleases" shall mean the executed leases and concession agreements pertaining to the ACLVI Hotel/Casino Operation, or any portion thereof, wherein ACLVI is the lessor, as set forth on that certain schedule marked "Schedule 4.15(D)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACLVI Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders Policy of Title Insurance, and the endorsements thereto, which are to be issued by the Title Insurance Company, as of the Closing Date, in the amount of Forty-Nine Million Seven Hundred Thousand Dollars ($49,700,000.00), in favor of Agent Bank, insuring the ACLVI Deed of Trust as a first priority mortgage lien encumbering the ACLVI Real Property therein described subject only to the exceptions shown therein in Schedule B, Part One, together with all such endorsements thereto as are required by Agent Bank (including, without limitation, a Tie-In endorsement with regard to the remaining Title Insurance Policies); all in accordance with the Closing Instructions. "ACVI Assignment of Permits, Licenses and Contracts" shall mean the assignment to be executed by ACVI on or before the Closing Date, pursuant to which ACVI assigns to Agent Bank on behalf of the Lenders, as additional security for the Bank Facilities, all of its right, title and interest in and to all assignable permits, licenses and contracts relating to the ACVI Casino Facility, except those gaming permits and licenses which are unassignable and except those permits, licenses and contracts which may not be assigned without obtaining the consent of ACVI's counterparty, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACVI Assignment of Spaceleases, Contracts, Rents and Revenues" shall mean the Assignment to be executed by ACVI on or before the Closing Date, pursuant to which ACVI assigns to Agent Bank on behalf of the Lenders, as additional security for the Bank Facilities: (a) all of its right, title and interest under all ACVI Equipment Leases and Contracts and ACVI Spaceleases relating to the ACVI Casino Facility, and (b) all rents, issues, profits, revenues and income from the ACVI Casino Facility and any other business activity conducted at the ACVI Casino Facility, together with any future expansions thereof, related thereto or used in connection therewith, as such assignment may be amended, modified, extended, renewed or restated from time to time. "ACVI Casino Deed of Trust" shall mean that certain Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by ACVI as of the Closing Date in favor of Agent Bank, on behalf of Lenders, encumbering the ACVI Fee Property and ACVI's interest in the ACVI Leased Parcels for the purpose of securing the Bank Facilities and all other sums which may be owing by Borrowers to the Banks from time to time under the terms of the Credit Agreement, as it may be amended, modified, extended, renewed or restated from time to time. "ACVI Casino Facility" shall mean the riverboat casino business and related activities conducted by ACVI in and on the ACVI Fee Property and ACVI Leased Parcels and ACVI Riverboat and all improvements now or hereafter situate thereon. "ACVI Casino Financing Statements" shall mean the Uniform Commercial Code Financing Statements to be filed in the office of the Secretary of State of the State of Mississippi, and in the office of the Chancery Clerk of Warren County, Mississippi, in order to perfect the security interest granted to Agent Bank on behalf of the Lenders under the ACVI Casino Deed of Trust in accordance with the requirements of the Mississippi Uniform Commercial Code, as such financing statements may be amended, modified, extended, renewed or restated from time to time. "ACVI Collateral" shall mean collective reference to: (i) all of the ACVI Riverboat, ACVI Premises, ACVI FF&E and the contract rights, leases, intangibles and other interests of ACVI, which are subject to the liens and security interests of the ACVI Security Documents; (ii) all rights of ACVI assigned as additional security pursuant to the terms of the ACVI Security Documents; and (iii) any and all other property and/or intangible rights, interest or benefits inuring to or in favor of ACVI, which are in any manner assigned, pledged, encumbered or otherwise hypothecated in favor of Agent Bank on behalf of Lenders to secure payment of the Bank Facilities. "ACVI Estoppel Certificates" shall mean collective reference to the Brady/Lum Estoppel Certificate and Magnolia Estoppel Certificate, Morrison Estoppel Certificate and the Trustmark Nondisturbance Agreement. "ACVI Equipment Leases and Contracts" shall mean the executed leases and purchase contracts pertaining to the ACVI FF&E wherein ACVI is the lessee or vendee, as the case may be, as set forth on that certain schedule marked "Schedule 4.16(B)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACVI FF&E" shall mean the furniture, fixtures and equipment and all gaming equipment and devices which have been installed or are to be installed and used or owned by ACVI in connection with the operation of the ACVI Casino Facility. "ACVI Fee Property" shall mean the real property owned by ACVI which is described on that certain schedule marked "Schedule B-1", affixed hereto and by this reference incorporated herein and made a part hereof. "ACVI Hotel" shall mean the hotel to be constructed by the ACVI Hotel Subsidiary on the ACVI Hotel Property with the proceeds of the ACVI Hotel Construction Loan as permitted under Section 6.08(d). "ACVI Hotel Construction Deed of Trust" shall mean the Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by the ACVI Hotel Subsidiary in favor of any ACVI Hotel Construction Lender for the purpose of securing the payment of any ACVI Hotel Construction Loan and any ACVI Hotel Construction Note. "ACVI Hotel Construction Financing Statements" shall mean the Uniform Commercial Code Financing Statements to be filed in the Office of the Secretary of State of the State of Mississippi and in the Office of the Chancery Clerk of Warren County, Mississippi in order to perfect the security interest granted to any ACVI Hotel Construction Lender under any ACVI Hotel Construction Deed of Trust in accordance with the requirements of the Mississippi Uniform Commercial Code, as such financing statements may be amended, modified, extended, renewed or restated from time to time. "ACVI Hotel Construction Lender" shall mean the Person which funds any ACVI Hotel Construction Loan and is the holder of the ACVI Hotel Construction Note and the beneficiary and secured party under the ACVI Hotel Construction Security Documents. "ACVI Hotel Construction Loan" shall mean a loan or loans to be made by the ACVI Hotel Construction Lender to the ACVI Hotel Subsidiary for construction of a hotel on the ACVI Hotel Property together with any refinancings thereof, which ACVI Hotel Construction Loan shall not exceed a maximum aggregate principal amount of Seven Million Dollars ($7,000,000.00) and shall contain terms consistent with the provisions set forth in Section 6.08(d) of this Credit Agreement. "ACVI Hotel Construction Note" shall mean the promissory note to be executed by the ACVI Hotel Subsidiary, payable to the order of any ACVI Hotel Construction Lender, evidencing any ACVI Hotel Construction Loan. "ACVI Hotel Construction Security Documents" shall mean collective reference to the ACVI Hotel Construction Deed of Trust and the ACVI Hotel Construction Financing Statements. "ACVI Hotel Deed of Trust" shall mean that certain Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by ACVI as of the Closing Date in favor of Agent Bank, on behalf of Lenders, encumbering the ACVI Hotel Property, all improvements constructed thereon and all ACVI FF&E located thereon for the purpose of securing the Bank Facilities and all other sums which may be owing by Borrowers to the Banks from time to time under the terms of the Credit Agreement, as it may be amended, modified, extended, renewed or restated from time to time. "ACVI Hotel Financing Statements" shall mean the Uniform Commercial Code Financing Statements to be filed in the office of the Secretary of State of the State of Mississippi, and in the office of the Chancery Clerk of Warren County, Mississippi, in order to perfect the security interest granted to Agent Bank on behalf of the Lenders under the ACVI Hotel Deed of Trust in accordance with the requirements of the Mississippi Uniform Commercial Code, as such financing statements may be amended, modified, extended, renewed or restated from time to time. "ACVI Hotel Property" shall mean the real property owned by ACVI which is described on that certain schedule marked "Schedule B-5," affixed hereto and by this reference incorporated herein and made a part hereof. "ACVI Hotel Subsidiary" shall mean AC Hotel Corp., a Mississippi Corporation, which is the corporation formed as a wholly owned subsidiary of ACVI for the purpose of holding title to the ACVI Hotel Property and constructing and owning the hotel to be constructed on the ACVI Hotel Property. "ACVI Land Leases" shall mean collective reference to the Brady/Lum Lease, Magnolia Lease and Morrison Lease. "ACVI Leased Parcels" shall mean collective reference to the Brady/Lum Parcel, Magnolia Parcel and Morrison Parcel. "ACVI Permitted Encumbrances" shall mean, at any particular time, (i) Liens for taxes, assessments or governmental charges not then due and payable or not then delinquent, (ii) statutory liens for labor and/or materials and liens for taxes, assessments or governmental charges the validity of which, in either instance, are being contested in good faith by Borrowers by appropriate proceedings, and as provided in Sections 5.03 and 5.10 hereof, respectively, provided that, Borrowers shall have maintained adequate reserves in accordance with GAAP for payment of same, (iii) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (iv) leases or subleases granted to others (including, without limitation, any Subsidiary) not interfering in any material respect with the ordinary conduct of the business of the ACVI Casino Facility; (v) Liens created or contemplated by the ACVI Security Documents, (vi) the liens, encumbrances and restrictions on the ACVI Premises, ACVI FF&E and existing improvements which are shown as exceptions on Schedule B of the ACVI Title Insurance Policy to be issued by Title Insurance Company as of the Closing Date, (vii) Liens consented to in writing by Agent Bank upon the approval of Requisite Lenders, (viii) Liens of legally valid capital leases and purchase money security interests for ACVI FF&E and ACVI Hotel Construction Security Documents to the extent permitted by Section 6.08, (ix) each and every easement, license, restriction or right- of-way that (A) is hereafter granted to any Governmental Authority or public utility providing services to the ACVI Premises or (B) does not interfere in any material respect with the ACVI Casino Facility; and (x) judgment liens, writs, warrants, levies, distraints, attachments and other similar process which do not constitute an Event of Default. "ACVI Premises" shall mean collective reference to the ACVI Fee Property, the ACVI Leased Parcels and the ACVI Hotel Property. "ACVI Riverboat" shall mean the whole of the vessel named below and described as follows: Vessel Name Official Number AMERISTAR 515275 together with any and all present and future engines, boilers, machinery, components, masts, boats, anchors, cables, chains, rigging, tackle, apparel, furniture, capstans, outfit, tools, pumps, gear, furnishings, appliances, fittings, spare and replacement parts, and any and all other appurtenances thereto, appertaining or belonging to the ACVI Riverboat, whether now or hereafter acquired, and whether on board or not on board, together with any and all present and future additions, improvements, and replacements therefor, made in or to the ACVI Riverboat, or any part or parts thereof; and all accounts, earned hire, charter payments, freight, earnings, revenues, income and profit therefrom and additionally, all log books, manuals, trip records, maintenance records, inspection reports, seaworthiness certificates, and other historical records or information relating to the ACVI Riverboat; all of which shall be deemed to be included in any reference herein to the term "ACVI Riverboat". "ACVI Security Documents" shall mean collective reference to the ACVI Casino Deed of Trust, ACVI Hotel Deed of Trust, ACVI Ship Mortgage, ACVI Casino Financing Statements, ACVI Hotel Financing Statements, ACVI Assignment of Permits, Licenses and Contracts, ACVI Assignment of Spaceleases, Contracts, Rents and Revenues, ACVI Estoppel Certificates and all other documents, instruments or agreements which are executed or delivered by or on behalf of ACVI, and accepted by Agent Bank, on behalf of Lenders, as security for payment of the Bank Facilities. "ACVI Ship Mortgage" shall mean the First Preferred Ship Mortgage to be executed by ACVI on or before the Closing Date wherein ACVI, as owner and mortgagor, grants a first mortgage lien in favor of Agent Bank on behalf of Lenders in and to the ACVI Riverboat and other ACVI Collateral more particularly therein described, as such ACVI Ship Mortgage may be amended, supplemented or otherwise modified from time to time. "ACVI Spaceleases" shall mean the executed leases and concession agreements pertaining to the ACVI Casino Facility, or any portion thereof, wherein ACVI is the lessor as set forth on the certain schedule marked "Schedule 4.15(B)", affixed hereto and by this reference incorporated herein and made a part hereof. "ACVI Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders Policy of Title Insurance, and the endorsements thereto, which are to be issued by Title Insurance Company, as of the Closing Date, in the amount of Thirty Million One Hundred Thousand Dollars ($30,100,000.00) in favor of Agent Bank, insuring: (i) the ACVI Casino Deed of Trust as first priority mortgage or leasehold liens, as applicable, encumbering the ACVI Fee Property and the ACVI Leased Parcels therein described; and (ii) the ACVI Hotel Deed of Trust as a first priority mortgage lien encumbering the ACVI Hotel Property therein described; both subject only to the exceptions shown therein in Schedule B, Part One together with such endorsements thereto as are required by Agent Bank (including, without limitation, a Tie-In endorsement with regard to the remaining Title Insurance Policies); all in accordance with the Closing Instructions. "Adjusted Fixed Charge Coverage Ratio" as of the end of any Fiscal Quarter shall mean with reference to the Borrower Consolidation: For the Fiscal Quarter under review, together with the most recently ended three (3) preceding Fiscal Quarters, the sum of: (i) EBITDA, less (ii) the aggregate amount of actually paid federal and state taxes on or measured by income, less (iii) Distributions actually paid, less (iv) treasury stock purchases Divided by () The sum of: (i) the aggregate amount of actually paid Interest Expense, plus (ii) the aggregate of Scheduled Reductions, plus (iii) the aggregate of actual principal payments made on the Gem Settlement Notes, plus (iv) principal payments or reductions (without duplication) required to be made on all other Indebtedness, plus (v) the current portion of Capitalized Lease Liabilities, in each case of (i) through (v) determined for the Fiscal Quarter under review together with the most recently ended three (3) preceding Fiscal Quarters. "Affiliate", as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person (provided, however, that Rebeil and Magliarditi shall not be deemed to be Affiliates of any Borrower by reason of the issuance of the Gem Settlement Notes or other payments to be made under the Gem Merger Agreement or Gem Settlement Agreement or by reason of the Gem Merger Agreement or Gem Settlement Agreement). For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. "Agent Bank" shall mean WFB in its capacity as administrative and collateral agent for Lenders and Swingline Lender. "Aggregate Commitment" shall mean reference to the aggregate amount committed by Lenders for advance to or on behalf of the Borrower Consolidation as Borrowings and Construction Disbursements under the Credit Facility in the initial principal amount of One Hundred Twenty-Five Million Dollars ($125,000,000.00), subject to the limitations for advance as set forth in the definition of Maximum Permitted Balance. "Aggregate Commitment Reduction Schedule" shall mean the Aggregate Commitment Reduction Schedule marked "Schedule 2.01(c)", affixed hereto and by this reference incorporated herein and made a part hereof, setting forth the Scheduled Reductions and Maximum Scheduled Balance as of each Reduction Date under the Credit Facility. "Aggregate Outstandings" shall mean collective reference to the sum of the Funded Outstandings and Swingline Outstandings as of any given date of determination. "Applicable Margin" means for any Base Rate Loan or LIBOR Loan the applicable per annum percentage amount to be added to the Base Rate or the LIBO Rate, as the case may be, as follows: (i) commencing on the Closing Date and continuing until the Rate Adjustment Date, one and one- quarter percent (1.25%) to be added to the Base Rate and two and one-half percent (2.5%) to be added to the applicable LIBO Rate; (ii) commencing on the Rate Adjustment Date and continuing until the Maturity Date, the margin rates set forth in the table below based on the Leverage Ratio of the Borrower Consolidation as of each Fiscal Quarter end, commencing with the end of the Fiscal Quarter ending September 30, 1997, together with the immediately preceding three (3) Fiscal Quarters on a four (4) Fiscal Quarter basis, any change in the applicable percentage amount by reason thereof to be effective as of the 1st day of the third month immediately following each such Fiscal Quarter end: LIBO LEVERAGE RATIO BASE RATE RATE MARGIN MARGIN Greater than 4.00 2.25% 3.5% to 1.00 Greater than 3.00 1.75% 3.00% to 1.00 but less than or equal to 4.00 to 1.00 LIBO LEVERAGE RATIO BASE RATE RATE MARGIN MARGIN Greater than 2.0 1.25% 2.50% to 1.0 but less than or equal to 3.0 to 1.00 Greater than 1.00 0.75% 2.00% to 1.0 but less than or equal to 2.0 to 1.00 Less than or equal 0.25% 1.50% to 1.00 to 1.00 "Architect" shall mean Morris & Brown Architects, Ltd., 1695 Meadow Wood Lane, No. 220, Reno, Nevada 89502, who has been engaged by ACLVI for the purpose of preparing the Structural Plans and Specifications for the design of the structural and exterior components of the ACLVI Project. "Architect's Consent" shall mean that certain Architect's Consent and Agreement which is to be executed by the Architect and delivered to Agent Bank, on behalf of the Lenders, prior to the Initial Construction Disbursement, for the purpose, among other things, of evidencing the Architect's: (i) consent to Assignment of Architect's Contract; (ii) agreement not to modify the Architect's Contract without Agent Bank's consent; and (iii) agreement to continue performance under the Architect's Contract on behalf of Agent Bank subject to the terms and conditions set forth therein. "Architect's Contract" shall mean the Standard Form of Agreement Between Owner and Architect for Designated Services, AIA Document B161, 1977 Edition, dated as of December 12, 1996, by and between Architect and ACLVI under the terms of which Architect agrees to provide architectural services in connection with the design of the structural and exterior components of the ACLVI Project including, but not limited to, preparation of the Structural Plans and Specifications. "Assigned Major Subcontract(s)" shall have the meaning set forth in Section 5.27(b). "Assignment and Assumption Agreement" shall mean the document evidencing an assignment of a Syndication Interest by any Lender to an Eligible Assignee in the form of the Assignment, Assumption and Consent Agreement marked "Exhibit L", affixed hereto and by this reference incorporated herein and made a part hereof. "Assignment of Architect's Contract" shall mean the Assignment of Architect's Contract with Plans and Specifications under which ACLVI's rights under the Architect's Contract are assigned to Agent Bank on behalf of Lenders as additional security for the Bank Facilities. "Assignment of Existing General Contractor's Agreement" shall mean the Assignment of Existing General Contractor's Agreement under which ACLVI's rights under the Existing General Contractor's Agreement are assigned to Agent Bank on behalf of Lenders as additional security for the Bank Facilities. "Assignment of Interior Designer's Contract" shall mean the Assignment of Interior Designer's Contract with Plans and Specifications under which ACLVI's rights under the Interior Designer's Contract are assigned to Agent Bank on behalf of Lenders as additional security for the Bank Facilities. "Assignment of New General Contractor's Agreement" shall mean the Assignment of New General Contractor's Agreement under which ACLVI's rights under the New General Contractor's Agreement are assigned to Agent Bank on behalf of Lenders as additional security for the Bank Facilities, the terms of which shall be substantially the same as set forth in the Assignment of Existing General Contractor's Agreement. "Assignments" shall mean collective reference to the Assignments of Spaceleases, Contracts, Rents and Revenues, Assignments of Permits, Licenses and Contracts, Assignment of Architect's Contract, Assignment of Interior Designer's Contract, Assignment of Existing General Contractor's Agreement, Assignment of New General Contractor's Agreement and Major Subcontractor Assignments. "Assignments of Permits, Licenses and Contracts" shall mean collective reference to the CPI Assignment of Permits, Licenses and Contracts, ACLVI Assignment of Permits, Licenses and Contracts, ACCBI Assignment of Permits, Licenses and Contracts and ACVI Assignment of Permits, Licenses and Contracts. "Assignments of Spaceleases, Contracts, Rents and Revenues" shall mean collective reference to the CPI Assignment of Spaceleases, Contracts, Rents and Revenues, ACLVI Assignment of Spaceleases, Contracts, Rents and Revenues, ACCBI Assignment of Spaceleases, Contracts, Rents and Revenues and ACVI Assignment of Spaceleases, Contracts, Rents and Revenues. "Authorized Officer(s)" shall mean, relative to the Borrower Consolidation, those of the respective officers whose signatures and incumbency shall have been certified to Agent Bank and the Banks as required in Section 3.05(iv) of the Credit Agreement with the authority and responsibility to deliver Notices of Borrowing, Construction Disbursement Requests, Continuation/ Conversion Notices, Pricing Certificates, Availability Limit Certificates, Compliance Certificates, Notices of Swingline Advances and all other requests, notices, reports, consents, certifications and authorizations on behalf of Borrowers. "Availability Determination Date" shall mean the date upon which Agent Bank receives an Availability Limit Certificate in accordance with Section 5.08(f) setting forth the calculation of EBITDA as of the most recently ended Fiscal Quarter. "Availability Limit" shall mean three and one- quarter (3.25) times (x) EBITDA of the Borrower Consolidation determined as of the end of each Fiscal Quarter together with the immediately preceding three (3) Fiscal Quarters on a four (4) Fiscal Quarter basis as set forth on an Availability Limit Certificate and received by Agent Bank on each Availability Determination Date. "Availability Limit Certificate" shall have the meaning set forth in Section 5.08(f). "Available Borrowings" shall mean, at any time, and from time to time, the aggregate amount available to Borrowers for a Borrowing, Construction Disbursement or a Swingline Advance not exceeding the amount of the Maximum Availability, as of each date of determination. "Bank Facilities" shall mean collective reference to the Credit Facility, Swingline Facility and Construction Loan Subfacility. "Bank Facility Termination" shall mean indefeasible payment in full of all sums owing under the Bank Facilities and each of the Loan Documents and the irrevocable termination of the obligation of Lenders to advance Borrowings and Construction Disbursements under the Credit Facility and of Swingline Lender to advance Swingline Advances under the Swingline Facility. "Banking Business Day" means (a) with respect to any Borrowing, payment or rate determination of LIBOR Loans, a day, other than a Saturday or Sunday, on which Agent Bank is open for business in San Francisco and on which dealings in Dollars are carried on in the London interbank market, and (b) for all other purposes any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the States of California and/or Nevada, or is a day on which banking institutions located in California and/or Nevada are required or authorized by law or other governmental action to close. "Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended, 11 U.S.C. Section 101, et seq. "Banks" shall have the meaning set forth in the Preamble to this Credit Agreement. "Base Rate" shall mean, as of any date of determination, the rate per annum equal to the higher of (a) the Prime Rate in effect on such date and (b) the Federal Funds Rate in effect on such date plus one-half of one percent (1/2 of 1%) (fifty basis points). "Base Rate Loan" shall mean reference to that portion of the unpaid principal balance of the Credit Facility bearing interest with reference to the Base Rate plus the Applicable Margin. "Borrower Consolidation" shall mean collective reference to Borrowers on a consolidated basis, without regard to any other Subsidiaries or Affiliates. "Borrower Construction Budget" shall mean the line item breakdown for those Construction Completion Costs of the ACLVI Project which are not a part of the General Contractor's Agreement or General Contractor Budget. "Borrower Construction Expenditures" shall mean collective reference to the aggregate amount of funds which may be required to be advanced by Borrowers at any time and from time to time for payment of the costs and expenses for construction and development of the ACLVI Project in accordance with the Project Development Budget, other than from the Bank Facilities or from third party purchase money financing. "Borrowers" shall mean collective reference to ACI, CPI, ACLVI, ACCBI and ACVI. "Borrowing(s)" shall mean such amounts as Borrowers may request from Agent Bank from time to time to be advanced under the Credit Facility by Notice of Borrowing in the manner provided in Section 2.03 and/or Construction Disbursement Request in the manner provided in Section 2.09 or at the request of Agent Bank pursuant to Section 2.08. "Brady/Lum Estoppel Certificate" shall mean that certain Acknowledgment and Estoppel Certificate duly executed by the Brady/Lum Trustee, as lessor, and ACVI, as lessee, under the Brady/Lum Lease, wherein each certifies and represents to Agent Bank on behalf of Lenders that (a) the Brady/Lum Lease represents the entire agreement between the parties thereto with respect to the Brady/Lum parcel, (b) the Brady/Lum Lease has not been modified, supplemented or amended except as described herein, (c) to the best knowledge of the Brady/Lum Trustee and to the best knowledge of ACVI there are no defaults presently existing or continuing under any of the provisions of the Brady/Lum Lease, and (d) other provisions regarding notice to Agent Bank on behalf of the Lenders in the event of default thereunder and Agent Bank's entitlement to the benefit of certain mortgagee protection provisions which are set forth by the Brady/Lum Lease. "Brady/Lum Lease" shall mean that certain agreement dated December 11, 1992, between the Brady/Lum Parties, as lessors, and Neilsen, as lessee, a Memorandum of which was recorded on July 16, 1993, in Deed Book 980, at Page 830, of the records of the Chancery Clerk of Warren County, Mississippi, Neilsen's interest thereunder, among other things, having been assigned to ACVI pursuant to that certain Assignment of Leasehold and Option to Purchase recorded in Book 990, at Page 417, of the records of the Chancery Clerk of Warren County, Mississippi, the interest of the Brady/Lum Parties under the Brady/Lum Lease having been conveyed to the Brady/Lum Trustee pursuant to that certain Deed dated May 15, 1993, recorded in the records of the Chancery Clerk of Warren County, Mississippi, in Deed Book 980, at Page 839, and the Brady/Lum Lease having been amended pursuant to that First Amendment to Lease Agreement dated as of June 1, 1995, executed between the Brady/Lum Trustee, as owner, and ACVI, as tenant, a memorandum of which was recorded on July 5, 1995 in Deed Book 1048, at Page 203, of the records of the Chancery Clerk of Warren County, Mississippi. "Brady/Lum Lease Parcel" shall mean the real property and appurtenances which is the subject of the Brady/Lum Lease, a description of which is more particularly described on that certain schedule marked "Schedule B-3", affixed hereto and by this reference incorporated herein and made a part hereof. "Brady/Lum Parties" shall mean collective reference to Martha Ker Brady Lum, Dorothy W. Brady, James O. Brady, Jr., Sarah Brady Noble, Anne Brady Baxter and John B. Brady. "Brady/Lum Trustee" shall mean Lawrence O. Branyan, Jr., as trustee of the Brady/Lum Family Trust dated May 15, 1993. "Breakage Charges" shall have the meaning set forth in Section 2.07(c) of the Credit Agreement. "CPI Assignment of Permits, Licenses and Contracts" shall mean the assignment to be executed by CPI as of the Closing Date, pursuant to which CPI assigns to Agent Bank on behalf of Lenders, as additional security for the Bank Facilities, all of its right, title and interest in and to all permits, licenses and contracts relating to the CPI Hotel/Casino Facilities, except those gaming permits and licenses which are unassignable and except those permits, licenses and contracts which may not be assigned without the consent of CPI's counterparty. "CPI Assignment of Spaceleases, Contracts, Rents and Revenues" shall mean the assignment to be executed by CPI on or before the Closing Date, whereby CPI assigns to Agent Bank on behalf of Lenders, as additional security for the Bank Facilities: (a) all of its right, title and interest under all CPI Spaceleases and CPI Equipment Leases and Contracts relating to the CPI Hotel/Casino Facilities and (b) all rents, issues, profits, revenues and income from the CPI Real Property and the operation of the CPI Hotel/Casino Facilities and any other business activity conducted on the CPI Real Property, together with any and all future expansions thereof, related thereto or used in connection therewith, as such assignment may be amended, modified, extended, renewed or restated from time to time. "CPI Collateral" shall mean collective reference to: (i) all of the CPI Real Property, CPI FF&E and the contract rights, leases, intangibles and other interests of CPI which are subject to the liens and security interests of the CPI Security Documents; (ii) all rights of CPI assigned as additional security pursuant to the terms of the CPI Security Documents; and (iii) any and all other property and/or intangible rights, interest or benefits inuring to or in favor of Borrowers, which are in any manner assigned, pledged, encumbered or otherwise hypothecated in favor of Agent Bank on behalf of Lenders to secure payment of the Bank Facilities. "CPI Deed of Trust" shall mean the Deed of Trust, Fixture Filing and Security Agreement with Assignment of Rents to be executed by CPI on or before the Closing Date in favor of Agent Bank, on behalf of Lenders, for the purpose of securing the Bank Facilities and Borrowers payment and performance under each of the Loan Documents (other than the Environmental Certificate) as such deed of trust may be amended, modified, extended, renewed or restated from time to time. "CPI Equipment Leases and Contracts" shall mean the executed leases and purchase contracts pertaining to the CPI FF&E wherein CPI is the lessee or vendee, as the case may be, as set forth on that certain schedule marked "Schedule 4.16(c)", affixed hereto and by this reference incorporated herein and made a part hereof. "CPI FF&E" shall mean the furniture, fixtures and equipment and all gaming equipment and devices which have been installed or are to be installed and used or owned by CPI in connection with the operation of the CPI Hotel/Casino Facilities. "CPI Financing Statements" shall mean the Uniform Commercial Code financing statements to be filed in the Office of the Secretary of State of the State of Nevada and in the Office of the County Recorder of Elko County, Nevada, in order to perfect the security interest granted to Agent Bank on behalf of Lenders under the CPI Deed of Trust and other CPI Security Documents in accordance with requirements of the Nevada Uniform Commercial Code, as such financing statements may be amended, modified, extended, renewed or restated from time to time. "CPI Hotel/Casino Facilities" shall mean the hotel and casino business and related activities conducted on the CPI Real Property under the trade names of the Horseshu Casino and Cactus Pete's Hotel & Casino. "CPI Permitted Encumbrances" shall mean, at any particular time, (i) liens for taxes, assessments or governmental charges not then due and payable or not then delinquent, (ii) statutory liens for labor and/or materials and liens for taxes, assessments or governmental charges the validity of which, in either instance, are being contested in good faith by Borrowers by appropriate proceedings, and as provided in Sections 5.03 and 5.10 hereof, respectively, provided that, Borrowers shall have maintained adequate reserves in accordance with GAAP for payment of same, (iii) liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (iv) leases or subleases granted to others (including, without limitation, any Subsidiary) not interfering in any material respect with the ordinary conduct of the business of the CPI Hotel/Casino Facilities, (v) liens created or contemplated by the CPI Security Documents, (vi) the liens, encumbrances and restrictions on the CPI Real Property, CPI FF&E and existing improvements which are shown as exceptions on Schedule B of the CPI Title Insurance Policy to be issued by Title Insurance Company as of the Closing Date, (vii) liens consented to in writing by Agent Bank upon the approval of Requisite Lenders, (viii) liens of legally valid capital leases and purchase money security interests for CPI FF&E to the extent permitted by Section 6.08, (ix) each and every easement, restriction, license or right-of-way that (A) is hereafter granted to any Governmental Authority or public utility providing services to the CPI Real Property or (B) does not interfere in any material respect with the CPI Hotel/Casino facilities; and (x) judgment liens, writs, warrants, levies, distraints, attachments and other similar process which do not constitute an Event of Default. "CPI Real Property" shall mean the real property owned by CPI which is more particularly described on that certain schedule marked "Schedule C-1", affixed hereto and by this reference incorporated herein and made a part hereof. "CPI Security Documents" shall mean collective reference to the CPI Deed of Trust, CPI Assignment of Spaceleases, Contracts, Rents and Revenues, CPI Assignment of Permits, Licenses and Contracts, the CPI Financing Statements and all other documents, instruments or agreements which are executed or delivered by or on behalf of CPI and accepted by Agent Bank, on behalf of Lenders, as security for payment of the Bank Facilities. "CPI Spaceleases" shall mean the executed leases and concession agreements pertaining to the CPI Hotel/Casino Facilities, or any portion thereof, wherein CPI is the lessor, as set forth on that certain schedule marked "Schedule 4.15(C)", affixed hereto and by this reference incorporated herein and made a part hereof. "CPI Title Insurance Policy" shall mean the ALTA Extended Coverage Lenders Policy of Title Insurance, and the endorsements thereto, which are to be issued by the Title Insurance Company, as of the Closing Date, in the amount of Twenty-Six Million Eight Hundred Thousand Dollars ($26,800,000.00), in favor of Agent Bank, insuring the CPI Deed of Trust as a first priority mortgage lien encumbering the CPI Real Property therein described, subject only to the exceptions shown therein in Schedule B, Part One, together with such endorsements thereto as are required by Agent Bank (including, without limitation, a Tie-In endorsement with regard to the remaining Title Insurance Policies); all in accordance with the CPI Closing Instructions. "Capital Expenditures" shall mean, for any period, without duplication, the aggregate of all expenditures (whether paid in cash or accrued as liabilities during that period and including Capitalized Lease Liabilities) by a Borrower or the Borrower Consolidation, as the context may require, during such period that, in conformity with GAAP, are required to be included in or reflected by the property, plant or equipment or similar fixed or capital asset accounts reflected in the balance sheet of a Borrower or the Borrower Consolidation, as the context may require (including equipment which is purchased simultaneously with the trade-in of existing equipment owned by Borrower or the Borrower Consolidation, as the context may require, to the extent of (a) the gross amount of such purchase price less (b) the cash proceeds of trade-in credit of the equipment being traded in at such time), but excluding capital expenditures made in connection with the replacement or restoration of assets, to the extent reimbursed or refinanced from insurance proceeds paid on account of the loss of or damage to the assets being replaced or restored, or from awards of compensation arising from the taking by condemnation of or the exercise of the power of eminent domain with respect to such assets being replaced or restored. "Capital Proceeds" shall mean the net proceeds (after deducting all reasonable expenses incurred in connection therewith) available to the Borrower Consolidation in excess of One Million Dollars ($1,000,000.00) in the aggregate during any Fiscal Year from (i) partial or total condemnation or destruction of any part of the Collateral, (ii) insurance proceeds (other than rent insurance and business interruption insurance) received in connection with damage to or destruction of the Collateral, and (iii) the sale or other disposition of any portion of the Collateral in accordance with the provisions of this Credit Agreement (not including, however, any proceeds received by Borrowers, or any of them, from a sale, condemnation, damage or destruction of FF&E or other personal property if such FF&E or other personal property is replaced by items of equivalent value and utility, in each case such exclusion to apply only during any period in which no Default or Event of Default has occurred and is continuing). "Capitalized Lease Liabilities" means all monetary obligations of the Borrower Consolidation under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Credit Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. "Cash" shall mean, when used in connection with any Person, all monetary and non-monetary items owned by that Person that are treated as cash in accordance with GAAP. "Cash Equivalents" shall mean, when used in connection with any Person, that Person's Investments in: (a) Government Securities due within one (1) year after the date of the making of the Investment; (b) readily marketable direct obligations of any State of the United States of America given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. or AA by Standard & Poor's Corporation, in each case due within one (1) year from the making of the Investment; (c) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers' acceptance of, and repurchase agreements covering Government Securities executed by, any bank incorporated under the laws of the United States of America or any State thereof and having on the date of such Investment combined capital, surplus and undivided profits of at least Two Hundred Fifty Million Dollars ($250,000,000.00), or total assets of at least Five Billion Dollars ($5,000,000,000.00), in each case due within one (1) year after the date of the making of the Investment; (d) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers' acceptances of, and repurchase agreements covering Government Securities executed by, any branch or office located in the United States of America of a bank incorporated under the laws of any jurisdiction outside the United States of America having on the date of such Investment combined capital, surplus and undivided profits of at least Five Hundred Million Dollars ($500,000,000.00), or total assets of at least Fifteen Billion Dollars ($15,000,000,000.00) in each case due within one year after the date of the making of the Investment; (e) repurchase agreements covering Government Securities executed by a broker or dealer registered under Section 15(b) of the Securities Exchange Act of 1934 having on the date of the Investment capital of at least One Hundred Million Dollars ($100,000,000.00), due within thirty (30) days after the date of the making of the Investment; provided that the maker of the Investment receives written confirmation of the transfer to it of record ownership of the Government Securities on the books of a "primary dealer" in such Government Securities on the books of such registered broker or dealer, as soon as practicable after the making of the Investment; (f) readily marketable commercial paper of corporations doing business in and incorporated under the laws of the United States of America or any State thereof or of any corporation that is the holding company for a bank described in clauses (c) or (d) above given on the date of such Investment a credit rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by Standard & Poor's Corporation, in each case due within three hundred sixty-five (365) days after the date of the making of the Investment; (g) "money market preferred stock" issued by a corporation incorporated under the laws of the United States of America or any State thereof given on the date of such Investment a credit rating of at least Aa by Moody's Investors Service, Inc. or AA by Standard & Poor's Corporation, in each case having an investment period not to exceed fifty (50) days; provided that (i) the amount of all such Investments issued by the same issuer does not exceed Five Million Dollars ($5,000,000.00) and (ii) the aggregate amount of all such Investments does not exceed Fifteen Million Dollars ($15,000,000.00); and (h) a readily redeemable "money market mutual fund" sponsored by a bank described in clauses (c) or (d) hereof, or a registered broker or dealer described in clause (e) hereof, that has and maintains an investment policy limiting its investments primarily to instruments of the types described in clauses (a) through (g) hereof and having on the date of such Investment total assets of at least One Billion Dollars ($1,000,000,000.00). "Casino Facility" shall mean individual reference and "Casino Facilities" shall mean collective reference to the CPI Hotel/Casino Facilities, ACLVI Hotel/Casino Facility, the ACCBI Riverboat/Hotel Facilities and the ACVI Casino Facility. "Certificate of Occupancy" shall mean a final or temporary certificate of occupancy issued by the appropriate Governmental Authorities for the occupancy and use of the ACLVI Project. "Change in Control" shall mean the occurrence of any of the following: (a) any Person, other than members of the Neilsen Family Group, owns or controls, more than fifty percent (50%) of the common voting stock of ACI; or (b) ACI fails to own, directly or indirectly, one hundred percent (100%) of the capital stock interests of CPI, ACLVI, ACCBI or ACVI. "Closing Certificate" shall have the meaning ascribed to such term in Section 3.05(v). "Closing Date" shall mean the date upon which: (i) each condition precedent required under Article IIIA of this Credit Agreement has been satisfied or waived and (ii) the Security Documentation has been filed and/or recorded in accordance with and in the manner required by the Closing Instructions, or such other date as to which Agent Bank and Borrower agree in writing. "Closing Disbursements" shall have the meaning set forth in Section 2.02(a). "Closing Instructions" shall mean the Closing Instructions to be given by Agent Bank to the Title Insurance Company on or before the Closing Date setting forth the requirement of Lenders for issuance of the Title Insurance Policies and other conditions for the occurrence of the Closing Date. "Collateral" shall mean: (a) a collective reference to the CPI Collateral, the ACLVI Collateral, the ACCBI Collateral, and the ACVI Collateral; and (b) any and all other property and/or intangible rights, interests or benefits inuring to or in favor of Borrowers which are in any manner assigned, pledged, encumbered or otherwise hypothecated in favor of Lenders or Agent Bank on behalf of the Lenders to secure repayment of the Bank Facilities. "Collateral Properties" shall mean collective reference to the real properties, improvements and associated FF&E which are pledged and encumbered as Collateral securing repayment of the Credit Facility from time to time, which shall consist of the CPI Real Property, ACLVI Real Property, ACCBI Premises, and ACVI Premises, together with any other real property or interests therein which may be held by Agent Bank from time to time to secure repayment of the Bank Facilities. "Completion Date" shall mean the date upon which: (a) the ACLVI Project has been completed in substantial accordance and compliance with the Plans and Specifications and in accordance and compliance with the terms and conditions of all Governmental Authorities, (b) the Occupancy Date has occurred, (c) a Notice of Completion has been posted with respect to the ACLVI Project and recorded in the office of the County Recorder of Clark County, Nevada, the lien period has expired or the liens have been removed and Title Insurance Company has issued its final 101.6 indorsement to the Title Insurance Policy showing no liens, claims or encumbrances except those approved by Agent Bank upon the consent of Requisite Lenders, (d) Borrowers have obtained all licenses, permits and other authorizations from all necessary Governmental Authorities for the use and operation of the ACLVI Project as a part of the ACLVI Hotel/Casino Facility, and (e) each other condition applicable to the final release of retainage, as set forth in Section 9.15, shall have been met, other than with respect to the completion of "Punch List" items. "Compliance Certificate" shall mean a compliance certificate as described in Section 5.08(e) which is more particularly described on "Exhibit F", affixed hereto and by this reference incorporated herein and made a part hereof. "Construction Budgets" shall mean collective reference to the Project Development Budget, General Contractors Budget and Borrower Construction Budget. "Construction Completion Costs" means, as of any date of determination, an amount equal to the remaining unpaid costs, including, without limitation all Hard Costs and Soft Costs, and including retainage, of causing the ACLVI Project to be completed and opened to the public, together with all other requirements for the occurrence of the Completion Date, as determined by Lenders' Consultant and Agent Bank from time to time. "Construction Cost Analysis" shall mean the review and analysis of the Plans and Specifications, General Contractor Budget, Borrower Construction Budget, Project Development Budget and all other related documentation, including, without limitations, the General Contractor's Agreement, Architect's Contract, subcontracts, bids and other agreements relating to and necessary for the construction of the ACLVI Project and occurrence of the Completion Date, to be made from time to time by Lenders' Consultant and Agent Bank for the purpose of determining the Construction Completion Costs as of any date of determination. "Construction Disbursement Request" shall mean the form to be executed and appropriately completed by an Authorized Officer and submitted to Agent Bank concurrently with each request for the advance by Lenders of a Construction Disbursement during the Construction Period, a copy of which form is marked "Exhibit K", affixed hereto and by this reference incorporated herein and made a part hereof. "Construction Disbursements" shall mean reference to the proceeds of the Construction Loan Subfacility which are disbursed for financing the development, furnishing, equipping and construction of the ACLVI Project in accordance with the Project Development Budget and as provided in Article IX. "Construction Loan Subfacility" shall mean the agreement of Lenders to make Construction Disbursements during the Construction Period to Borrowers for construction and completion of the ACLVI Project in accordance with the Project Development Budget subject to terms and conditions set forth in the Credit Agreement. "Construction Overage" shall have the meaning set forth in Section 9.07(f) of the Credit Agreement. "Construction Period" shall mean the period commencing on the Closing Date and terminating on the Completion Date. "Construction Schedule" shall mean the anticipated time schedule for completion of the ACLVI Project as shown on a schedule to be delivered to Agent Bank on or before the Initial Construction Disbursement Date. "Contingency Reserve" shall have the meaning set forth in Section 9.06. "Contingency Transaction Ledger" shall have the meaning set forth in Section 9.06. "Contingent Liability(ies)" shall mean, as to any Person any obligation of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness, leases or dividends ("primary obligations") of any other Person that is not a Borrower hereunder (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) to make payment in respect of any net liability arising in connection with any Interest Rate Hedges, foreign currency exchange agreement, commodity hedging agreement or any similar agreement or arrangement in any such case if the purpose or intent of such agreement is to provide assurance that such primary obligation will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such primary obligation will be protected (in whole or in part) against loss in respect thereof or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Liability shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Liability shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Liability is made or, if not stated or determinable, the reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. "Continuation/Conversion Notice" shall mean a notice of continuation of or conversion to a LIBOR Loan and certificate duly executed by an Authorized Officer, substantially in the form of that certain exhibit marked "Exhibit D", affixed hereto and by this reference incorporated herein and made a part hereof. "Convert, Conversion and Converted" shall refer to a Borrowing at or continuation of a particular interest rate basis or conversion of one interest rate basis to another pursuant to Section 2.05(c). "Council Bluffs Hotel Associates" shall mean Council Bluffs Hotel Associates, Inc., an Iowa limited liability company. "Credit Agreement" shall mean this Credit Agreement together with all Schedules and Exhibits attached thereto, executed by and among Borrowers and Banks setting forth the terms and conditions of the Credit Facility and Swingline Facility, as may be amended, modified, extended, renewed or restated from time to time. "Credit Facility" shall mean the agreement of Lenders to fund a reducing revolving line of credit (including the Construction Loan Subfacility), subject to the terms and conditions set forth in this Credit Agreement and the Revolving Credit Note, up to the Maximum Permitted Balance as reduced from time to time in accordance with the terms of this Credit Agreement and the Revolving Credit Note. "Deeds of Trust" shall mean collective reference to the CPI Deed of Trust, ACLVI Deed of Trust, ACCBI Deed of Trust and ACVI Deed of Trust. "Default" shall mean the occurrence or non-occurrence, as the case may be, of any event that with the giving of notice or passage of time, or both, would become an Event of Default. "Default Notice Recording" shall mean either: (i) the recordation of a notice of default and election to sell by Agent Bank, on behalf of Lenders, in the office of the County Recorder of Elko County or Clark County, Nevada, under which a non-judicial foreclosure proceeding under NRS Chapter 107 is initiated by Agent Bank as beneficiary under either or both of the CPI Deed of Trust and/or the ACLVI Deed of Trust; (ii) the commencement of a judicial foreclosure action in a court of competent jurisdiction, pursuant to which Lenders or Agent Bank, on behalf of Lenders, seek judicial foreclosure under NRS Chapter 106 of either or both of the CPI Deed of Trust and/or the ACLVI Deed of Trust; (iii) the commencement of a non-judicial or judicial foreclosure proceeding or action, as applicable, under either or both of the ACVI Deed of Trust and/or the ACCBI Mortgage pursuant to which Lenders or Agent Bank on behalf of Lenders seek non-judicial foreclosure or a judicial action in a court of competent jurisdiction for foreclosure under applicable law of either or both of the ACVI Deed of Trust and/or ACCBI Mortgage; or (iv) commencement of a foreclosure action pursuant to which Lenders or Agent Bank on behalf of Lenders seek foreclosure of either or both of the ACCBI Ship Mortgage and/or the ACVI Ship Mortgage. "Default Rate" shall have the meaning set forth in Section 2.12(b) with respect to defaults occurring under the Notes and shall mean the Prime Rate plus the then Applicable Margin plus two percent (2%) per annum for all other purposes. "Defaulting Lender" means any Lender which fails or refuses to perform its obligations under this Credit Agreement within the time period specified for performance of such obligation or, if no time frame is specified, if such failure or refusal continues for a period of five (5) Banking Business Days after notice from Agent Bank. "Designated Deposit Account" shall mean a deposit account to be maintained by Borrowers with Agent Bank, as from time to time designated in writing by an Authorized Officer. "Dispute" shall have the meaning set forth in Section 11.14(a). "Distributions" shall mean and collectively refer to any and all cash dividends, loans, management fees, payments, advances or other distributions, fees or compensation of any kind or character whatsoever, other than within the Borrower Consolidation, but shall not include consideration paid for tangible and intangible assets in an arms length exchange for fair market value, trade payments made and other payments for liabilities incurred in the ordinary course of business or compensation to officers, directors and employees of Borrowers in the ordinary course of business. "Documents" shall have the meaning set forth in Section 11.14(a). "Dollars" and "$" means the lawful money of the United States of America. "EBITDA" shall mean with reference to any Person, for any fiscal period under review, the sum of (i) Net Income for that period, less (ii) any one-time non-Cash gain reflected in such Net Income, plus (iii) any losses on sales of assets and other extraordinary losses and one-time non- Cash charges, plus (iv) Interest Expense for that period, plus (v) the aggregate amount of federal and state taxes on or measured by income for that period (whether or not payable during that period), plus (vi) depreciation, amortization and all other non-cash expenses for that period, plus (vii) preopening expenses for that period, in each case determined in accordance with GAAP and, in the case of items (iii), (iv), (v), (vi) and (vii), only to the extent deducted in the determination of Net Income for that period. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. "Eligible Assignee" means (a) another Lender, (b) with respect to any Lender, any Affiliate of that Lender and (c) any commercial bank having a combined capital and surplus of Fifty Million Dollars ($50,000,000.00) or more that is (i) organized under the Laws of the United States of America, any State thereof or the District of Columbia or (ii) organized under the Laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of such a country, provided that (A) such bank is acting through a branch or agency located in the United States of America and (B) is otherwise exempt from withholding of tax on interest and delivers Form 1001 or Form 4224 at the time of any assignment. "Environmental Certificate" shall mean the Certificate and Indemnification Regarding Hazardous Substances to be executed by Borrowers on or before the Closing Date as a further inducement to the Banks to establish the Bank Facilities, as it may be amended, modified, extended, renewed or restated from time to time. "Equipment Leases and Contracts" shall mean collective reference to the CPI Equipment Leases and Contracts, ACLVI Equipment Leases and Contracts, ACCBI Equipment Leases and Contracts, ACVI Equipment Leases and Contracts. "Equity Offering" shall mean the issuance and sale of additional shares of common voting stock by ACI to the public in exchange for Cash or Cash Equivalents and/or the issuance and sale of shares of common voting stock of any Subsidiary of ACI to the public in exchange for Cash or Cash Equivalents. "Event of Default" shall mean any event of default as defined in Section 7.01 hereof. "Exchange Senior Subordinated Notes" shall have the meaning set forth in Recital E. "Existing Bank Loan" shall have the meaning ascribed to such term in Recital Paragraph B. "Existing Bank Loan Security Documents" shall mean collective reference to all pledges, security agreements, mortgages, deeds of trust, financing statements, ship mortgages and other documents and instruments securing repayment of the Existing Bank Loans, including, without limitation, those documents and instruments set forth on the Schedule of Existing Bank Loan Security Documents marked "Schedule 3.11(a), affixed hereto and by this reference incorporated herein and made a part hereof. "Existing Credit Agreement" shall have the meaning ascribed to such term in Recital Paragraph B. "Existing Equipment Intercreditor Agreement" shall mean that certain letter agreement dated December 12, 1995, executed by and among ACI, the ACCBI Equipment Lender and First Interstate Bank of Nevada, N.A., as agent for the Existing Lenders, providing for the relative priority in right to payment as between the parties thereto upon liquidation of the equipment and other collateral securing repayment of the ACCBI Equipment Loan and the ACCBI Riverboat in the event of foreclosure of the ACCBI Equipment Ship Mortgage and/or the ship mortgages securing repayment of the Existing Bank Loan and ACCBI's guarantee thereof. "Existing GECC Intercreditor Agreement" shall mean the Subordination and Intercreditor Agreement dated December 28, 1995, executed by and among GECC, First Interstate Bank of Nevada, N.A., as agent for Existing Lenders, ACCBI Equipment Lender, ACCBI and ACI, for the purposes of: (i) affirming the subordination of the ACCBI Equipment Ship Mortgage and the ship mortgages securing repayment of the Existing Bank Loan and ACCBI's guarantee thereof to the GECC Ship Mortgage; and (ii) providing for the relative priority in right to payment as between GECC, on the one hand, and the ACCBI Equipment Lender and the holders of the ship mortgages securing repayment of the Existing Bank Loan and ACCBI's guarantee thereof, on the other hand, in the event of foreclosure of the GECC Ship Mortgage, ACCBI Equipment Ship Mortgage and/or the ship mortgages securing repayment of the Existing Bank Loan and ACCBI's guarantee thereof. "Existing General Contractor's Agreement" shall mean collective reference to the Standard Form of Agreement Between Owner and Contractor for the Hotel, dated October 25, 1995, and the Standard Form of Agreement Between Owner and Contractor for the Casino, dated October 25, 1995, each of which is entered into by and between ACLVI (as the successor by merger to Gem pursuant to the Gem Merger) and General Contractor for the construction of the structural and exterior components of the ACLVI Project, subject to additions and deductions as provided in the Contract Documents, as therein defined, and consistent with the Project Development Budget. "Existing General Contractor's Consent" shall mean that certain Contractor's Consent and Agreement which is to be executed by the General Contractor and delivered to Agent Bank, on behalf of the Lenders, prior to the Initial Construction Disbursement, for the purpose, among other things, of evidencing the General Contractor's: (i) consent to the Assignment of Existing General Contractor's Agreement; (ii) agreement not to modify the Existing General Contractor's Agreement without Agent Bank's consent; and (iii) agreement to continue performance under the Existing General Contractor's Agreement on behalf of Agent Bank subject to the terms and conditions set forth therein. "Existing Intercompany Security Documents" shall mean collective reference to all pledges, security agreements, mortgages, deeds of trust, financing statements, ship mortgages and other documents and instruments securing repayment of any and all loans, advances and extensions of credit as between or amongst members of the Borrower Consolidation, including, without limitation, those documents and instruments set forth on the Schedule of Existing Intercompany Security Documents marked "Schedule 3.11(b)", affixed hereto and by this reference incorporated herein and made a part hereof. "Existing Lender(s)" shall have the meaning ascribed to such term in Recital Paragraph B. "Existing Note" shall have the meaning ascribed to such term in Recital Paragraph B. "FF&E" shall mean reference to the CPI FF&E, the ACLVI FF&E, ACCBI FF&E and the ACVI FF&E and any other furniture, fixtures and equipment, including, without limitation, all gaming devices and associated equipment, inventories and supplies used in connection with the Casino Facilities. "FIRREA" shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989. "Federal Funds Rate" means, as of any date of determination, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, "H.15(519)") for such date opposite the caption "Federal Funds (Effective)". If for any relevant date such rate is not yet published in H.15(519), the rate for such date will be the rate set forth in the daily statistical release designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Bank of New York (including any successor, the "Composite 3:30 p.m. Quotation") for such date under the caption "Federal Funds Effective Rate". If on any relevant date the appropriate rate for such date is not yet published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date will be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by each of three leading brokers of Federal funds transactions in New York City selected by the Agent Bank. For purposes of the Credit Agreement, any change in the Base Rate due to a change in the Federal Funds Rate shall be effective as of the opening of business on the effective date of such change. "Fee Side Letter" shall mean the Side Letter of Understanding Regarding Fees to be executed by and between Borrowers and Agent Bank on or before the Closing Date concerning payment of the fees more particularly therein described. "Financial Covenants" shall mean collective reference to the financial covenants set forth in Article VI of this Credit Agreement. "Financing Statements" shall mean collective reference to the CPI Financing Statements, ACLVI Financing Statements, ACCBI Financing Statements and ACVI Financing Statements. "Fiscal Quarter" shall mean the consecutive three (3) month periods during each Fiscal Year beginning on January 1, April 1, July 1 and October 1 and ending on March 31, June 30, September 30 and December 31, respectively. "Fiscal Year" shall mean the fiscal year period beginning January 1 of each calendar year and ending on the following December 31. "Fiscal Year End" shall mean December 31 of each calendar year. "Funded Debt" shall mean with reference to the Borrower Consolidation for any period the daily average of the Aggregate Outstandings for such period, plus the total as of the last day of such period of both the long-term and current portions (without duplication) of all other Indebtedness and Capitalized Lease Liabilities, but excluding the Indebtedness evidenced by the Gem Settlement Notes. "Funded Outstandings" shall mean the unpaid principal amount outstanding on the Credit Facility as of any given date of determination for Borrowings and Construction Disbursements made thereunder, but not including Swingline Outstandings. "Funding Date" shall mean each date upon which Lenders fund Borrowings or Construction Disbursements requested by Borrowers in accordance with the provisions of Section 2.03 or at the request of Agent Bank pursuant to Section 2.08. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, which are applicable to the circumstances as of the date of determination. "GECC" shall mean General Electric Capital Corporation. "GECC Ship Mortgage" shall mean the Preferred Ship Mortgage executed by ACCBI in favor of GECC, received by the USCG, New Orleans office, on December 29, 1995, and recorded in the NVDC in Book 95-7, as Instrument No. 793. "GECC Ship Note" shall mean that certain Promissory Note dated December 28, 1995, in the original principal amount of Eleven Million Five Hundred Eleven Thousand Dollars ($11,511,000.00), executed by ACCBI, payable to the order of GECC, which is secured by the GECC Ship Mortgage. "Gaming Authority(ies)" shall mean any agency, authority, board, bureau, commission, department, office or instrumentality of any nature whatsoever of the United States federal or foreign government, any state, province or any city or other political subdivision or otherwise and whether now or hereafter in existence or any officer or official thereof, including, without limitation, Nevada Gaming Authorities, Mississippi Gaming Authorities and Iowa Gaming Authorities, with authority to regulate any gaming operation (or proposed gaming operation) owned, managed or operated by the Borrower Consolidation. "Gaming Devices" shall mean slot machines and other devices which constitute gaming devices and related equipment. "Gaming Laws" means all statutes, rules, regulations, ordinances, codes and administrative or judicial precedents pursuant to which any Gaming Authority possesses regulatory, licensing or permit authority over gambling, gaming or casino activities conducted by Borrowers within its jurisdiction, including the Mississippi Gaming Control Act, the Iowa Gaming Control Act and the Nevada Gaming Control Act. "Gaming Permits" shall mean collective reference to every license, permit or other authorization required to own, operate and otherwise conduct unrestricted gaming operations at the Casino Facilities. "Gem" shall mean Gem Gaming, Inc., a Nevada corporation, which was merged into ACLVI pursuant to the Gem Merger. "Gem Merger" shall have the meaning ascribed to such term in Recital Paragraph C. "Gem Merger Agreement" shall have the meaning ascribed to such term in Recital Paragraph C. "Gem Settlement Agreement" shall mean that certain Settlement Agreement made as of May 3, 1997, as amended by a First Amendment to Settlement Agreement dated June 2, 1997, each executed by and among ACI, ACLVI, Rebeil, Magliarditi and other parties more particularly therein named for the purpose of resolving various issues and claims and considerations to be paid to Rebeil and Magliarditi by ACI to conclude the Gem Merger, all subject to approval by the Nevada Gaming Authorities. "Gem Settlement Effective Date" shall have the meaning ascribed to the term "Effective Date" in the Gem Settlement Agreement. "Gem Settlement Notes" shall mean collective reference to the Rebeil Notes and the Magliarditi Notes. "General Contractor" shall mean Camco Pacific Construction Company, Inc. with respect to the Existing General Contractor's Agreement and either Camco Pacific Construction Company, Inc. or such other general contractor which is licensed in the State of Nevada and approved by Agent Bank with respect to the New General Contractor's Agreement, in each case engaged by ACLVI for construction of the structural and exterior components of the ACLVI Project. "General Contractor Budget" shall mean the line item breakdown for construction costs, materials, labor and other payments to be made under the General Contractor's Agreement, together with all amendments, revisions and modifications thereto. "General Contractor's Agreement" shall mean collective reference to the Existing General Contractor's Agreement and the New General Contractor's Agreement. "Government Securities" means readily marketable (a) direct full faith and credit obligations of the United States of America or obligations guaranteed by the full faith and credit of the United States of America and (b) obligations of an agency or instrumentality of, or corporation owned, controlled or sponsored by, the United States of America that are generally considered in the securities industry to be implicit obligations of the United States of America. "Governmental Authority" or "Governmental Authorities" shall mean any federal, state, regional, county or municipal governmental agency, board, commission, officer or official whose consent or approval is required or whose regulations must be followed as a prerequisite to (i) the continued operation and occupancy of the Collateral Properties and the Casino Facilities or (ii) the performance of any act or obligation or the observance of any agreement, provision or condition of whatever nature herein contained. "Gross Fixed Charge Coverage Ratio" as of the end of any Fiscal Quarter shall mean with reference to the Borrower Consolidation: The sum of EBITDA during the Fiscal Quarter under review, plus EBITDA during each of the most recently ended three (3) preceding Fiscal Quarters, Divided by () The sum of: (i) the aggregate amount of actually paid Interest Expense, plus (ii) the aggregate of Scheduled Reductions, plus (iii) the aggregate of actual principal payments made on the Gem Settlement Notes, plus (iv) principal payments or reductions (without duplication) required to be made on all other Indebtedness, plus (v) the current portion of Capitalized Lease Liabilities to the extent not included in (i) above; in each case of (i) through (v) determined for the Fiscal Quarter under review together with the most recently ended three (3) preceding Fiscal Quarters. "Gross Gaming Revenues" shall mean all income and revenues of a Borrower, or a Casino Facility, as the context may require, which are subject to taxation by a Gaming Authority. "Hard Costs" shall mean those costs which are shown in the Construction Budgets as a "construction cost" and any adjustments to such costs pursuant to properly approved change orders. "Hazardous Materials Laws" shall have the meaning set forth in Section 5.21. "IDNR" shall mean the Iowa Department of Natural Resources. "IDNR Parcel" shall mean the real property which is the subject of the ACCBI Land Use Agreement, more particularly described on that certain schedule marked "Schedule A-2", affixed hereto and by this reference incorporated herein and made a part hereof. "Indebtedness" of any Person includes all obliga tions, contingent or otherwise, which in accordance with GAAP should be classified upon such Person's balance sheet as liabilities, but in any event including liabilities for borrowed money or other liabilities secured by any lien existing on property owned or acquired by such Person, Affiliate or a Subsidiary thereof (whether or not the liability secured thereby shall have been assumed), obligations which have been or under GAAP should be capitalized for financial reporting purposes, and all guaranties, endorsements, and other contingent obligations with respect to Indebtedness of others, including, but not limited to, any obligations to acquire any of such Indebtedness, to purchase, sell, or furnish property or services primarily for the purpose of enabling such other Person to make payment of any of such Indebtedness, or otherwise to assure the owner of any of such Indebtedness against loss with respect thereto. "Indenture" shall have the meaning set forth in Recital D. "Initial Construction Disbursement" shall mean the first Construction Disbursement to be made by Lenders to Borrowers pursuant to the Construction Loan Subfacility. "Initial Construction Disbursement Date" shall mean the date upon which Borrowers request Lenders to fund the Initial Construction Disbursement. "Initial Senior Subordinated Notes" shall have the meaning set forth in Recital D. "Intangibles" shall mean the aggregate goodwill, trademarks, patents, organizational expense and other similar intangible items of the Borrower Consolidation determined on a consolidated basis in accordance with GAAP. "Interest Expense" shall mean with respect to any Person, as of the last day of any fiscal period under review, the sum of (i) all interest, fees, charges and related expenses paid or payable (without duplication but including capitalized interest) for that fiscal period by such Person to a lender in connection with borrowed money (including any obligations for fees, charges and related expenses payable to the issuer of any letter of credit) or the deferred purchase price of assets that are considered "interest expense" under GAAP, plus (ii) the portion of the up front costs and expenses for Interest Rate Hedges (to the extent not included in (i)) fairly allocated to such interest rate hedges as expenses for such period, plus (iii) the portions of Capital Lease Liabilities paid or payable with respect to such period that should be treated as interest in accordance with GAAP. "Interest Period(s)" shall have the meaning set forth in Section 2.05(d) of the Credit Agreement. "Interest Rate Hedges" shall mean, with respect to any Person, all liabilities of such Person under interest rate swap agreements, interest rate cap agreements, basis swap, forward rate agreement and interest collar or floor agreements and all other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency exchange rates. "Interest Rate Option" shall have the meaning ascribed to such term in Section 2.05(b) of the Credit Agreement. "Interior Designer" shall mean H.C. Designs, Inc., who has been engaged by ACLVI for the purpose of preparing the Interior Plans and Specifications for the construction of the interior components, equipment and furnishings of the ACLVI Project. "Interior Designer's Consent" shall mean that certain Interior Designer's Consent and Agreement which is to be executed by the Interior Designer and delivered to Agent Bank, on behalf of the Lenders, prior to the initial Construction Disbursement, for the purpose, among other things, of evidencing the Interior Designer's: (i) consent to Assignment of Interior Designer's Contract; (ii) agreement not to modify the Interior Designer's Contract without Agent Bank's consent; and (iii) agreement to continue performance under the Interior Designer's Contract on behalf of Agent Bank subject to the terms and conditions set forth therein. "Interior Designer's Contract" shall mean the Letter of Agreement executed or to be executed by and between Interior Designer and ACLVI under the terms of which Interior Designer agrees to provide design and consulting services in connection with the interior components, equipment and furnishings of the ACLVI Project, including, but not limited to, preparation of the Interior Plans and Specifications. "Interior Plans and Specifications" shall mean the plans and specifications for the development and construction of the interior components of the ACLVI Project and for equipping and furnishing the ACLVI Project prepared by the Interior Designer and the Interior Designer's consultants, as such plans and specifications may be amended from time to time. Said plans and specifications shall include, but not be limited to, all plans, layouts sketches, diagrams, elevations, drawings, specifications, lists, and all other reports, data and plans prepared by the Interior Designer and the Interior Designer's consultants in connection with the interior components, equipment and furnishing of the ACLVI Project. "Investment" shall mean, when used in connection with any Person, any investment by or of that Person, whether by means of purchase or other acquisition of stock or other securities of any other Person or by means of a loan, advance creating a debt, capital contribution, guaranty or other debt or equity participation or interest in any other Person, including any partnership and joint venture interests of such Person. The amount of any Investment shall be the amount actually invested without adjustment for subsequent increases or decreases in the value of such Investment. "Iowa Gaming Authorities" shall mean, without limitation, the Iowa Racing and Gaming Commission and any other applicable governmental or administrative state or local agency involved in the regulation of gaming and gaming activities conducted by any member of the Borrower Consolidation in the State of Iowa. "Koch" shall mean Koch Fuels, Inc., a Delaware corporation. "LIBO Rate" means, relative to any LIBOR Loan Interest Period for any LIBOR Loan included in any Borrowing, the per annum rate (reserve adjusted as hereinbelow provided) of interest quoted by Agent Bank, rounded upwards, if necessary, to the nearest one-sixteenth of one percent (0.0625%) at which Dollar deposits in immediately available funds are offered by Agent Bank to leading banks in the London interbank market at approximately 9:00 A.M. San Francisco time two (2) Banking Business Days prior to the beginning of such Interest Period, for delivery on the first day of such Interest Period for a period approximately equal to such Interest Period and in an amount equal or comparable to the LIBOR Loan to which such Interest Period relates. The foregoing rate of interest shall be reserve adjusted by dividing the applicable LIBO Rate by a one (1.00) minus the LIBOR Reserve Percentage, with such quotient to be rounded upward to the nearest whole multiple of one-hundredth of one percent (0.01%). All references in this Credit Agreement or other Loan Documents to a LIBO Rate include the aforesaid reserve adjustment. "LIBOR Loan" shall mean each portion of the total unpaid principal under the Credit Facility which bears interest at a rate determined by reference to the LIBO Rate plus the Applicable Margin. "LIBOR Loan Interest Period" shall mean each portion of the Credit Facility bearing interest with reference to a LIBO Rate which shall in each instance be fixed for either a one (1), two (2), three (3) or six (6) month period. "LIBOR Reserve Percentage" means, relative to any Interest Period for LIBOR Loans made by any Lender, the reserve percentage (expressed as a decimal) equal to the actual aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transactional adjustments or other scheduled changes in reserve requirements) announced within Agent Bank as the reserve percentage applicable to Agent Bank as specified under regulations issued from time to time by the Federal Reserve Board. The LIBOR Reserve Percentage shall be based on Regulation D of the Federal Reserve Board or other regulations from time to time in effect concerning reserves for "Eurocurrency Liabilities" from related institutions as though Agent Bank were in a net borrowing position. "Laws" means, collectively, all international, foreign, federal, state and local statutes, maritime laws, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents. "Lender Reply Period" shall have the meaning set forth in Section 10.10(d). "Lenders" means WFB and any other bank, finance company, insurance or other financial institution which is or becomes a party to this Credit Agreement by execution of a counterpart signature page hereto or an Assignment and Assumption Agreement, as assignee. At all times that there are no Lenders other than WFB, the terms "Lender" and "Lenders" means WFB in its individual capacity. With respect to matters requiring the consent to or approval of all Lenders at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and, for voting purposes only, "all Lenders" shall be deemed to mean "all Lenders other than Defaulting Lenders". "Lenders' Consultant" shall mean the architectural or engineering firm of Agent Bank's choice and/or affiliate of Agent Bank to be engaged by Agent Bank in connection with the construction and development of the ACLVI Project pursuant to the Lenders' Consultant Contract at the expense of Borrowers after having been first reasonably approved by Borrowers. "Lenders' Consultant Contract" shall mean the agreement or agreements to be executed by and between Agent Bank and Lenders' Consultant for the purpose set forth herein, including, without limitation: (a) An examination of the Plans and Specifications, structural engineering calculations, and geotechnical report to ascertain completeness and acceptability of documentation relating to the ACLVI Project and to determine that the individual elements of documentation are not contradictory. (b) Periodic site inspections of the ACLVI Project to ascertain that: (i) Percentage of construction completed and/or percentage of acceptably-stored materials are in accordance with percentages specified on the payment request document (AIA form G-702 or a form substantially similar thereto which has been first approved by Agent Bank); (ii) the ACLVI Project is in compliance with governing construction documentation, ie., plans, specifications, engineering calculations, geotechnical recommendations, approved change orders, etc. (c) A review of change orders which will physically affect the ACLVI Project. This review will be inclusive of budgetary aspects, including Construction Cost Analysis from time to time, as well as physical/structural acceptability. "Leverage Ratio" as of the end of any Fiscal Quarter shall mean the ratio resulting by dividing (a) Funded Debt for the Fiscal Quarter under review by (b) the sum of EBITDA for the Fiscal Quarter under review plus EBITDA for each of the most recently ended three (3) preceding Fiscal Quarters. "Liabilities and Costs" means all claims, judgments, liabilities, obligations, responsibilities, losses, damages (including lost profits), punitive or treble damages, costs, disbursements and expenses (including, without limitation, reasonable attorneys', experts' and consulting fees and costs of investigation and feasibility studies), fines, penalties and monetary sanctions, interest, direct or indirect, known or unknown, absolute or contingent, past, present or future. "Lien" means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing. "Loan Documents" shall mean collective reference to the Credit Agreement, the Revolving Credit Note, the Swingline Note, the Security Documentation, the Environmental Certificate and all other documents and instruments which may hereafter be executed and delivered by or on behalf of Borrowers or any other Person in connection with the Bank Facilities for the benefit of Banks or Agent Bank on behalf of the Lenders. "Magliarditi" shall have the meaning set forth in Recital Paragraph C. "Magliarditi Notes" shall mean collective reference to the Magliarditi Negotiable Note and the Magliarditi Non-Negotiable Note, as defined in and in the form attached to the Gem Settlement Agreement. "Magnolia" shall mean Magnolia Hotel Company, a Mississippi corporation. "Magnolia Estoppel Certificate" shall mean the Acknowledgement and Estoppel Certificate duly executed by Magnolia, as lessor, and ACVI, as lessee, under the Magnolia Lease, wherein each certifies and represents to Agent Bank on behalf of Lenders that: (a) the Magnolia Lease represents the entire agreement between the parties thereto with respect to the Magnolia Parcel, (b) the Magnolia Lease has not been modified, supplemented or amended except as described herein, (c) to the best knowledge of Magnolia and to the best knowledge of ACVI, there are no defaults presently existing or continuing under any of the provisions of the Magnolia Lease, and (d) other provisions regarding Notice to Agent Bank on behalf of Lenders in the event of default thereunder, and Agent Bank's entitlement to the benefit of certain mortgagee protection provisions which are set forth by the Magnolia Lease. "Magnolia Lease" shall mean that certain agreement dated September 8, 1992, executed between Magnolia, as lessor, and Neilsen, as lessee, a Memorandum of which was recorded in Deed Book 956, at Page 699, of the records of the Chancery Clerk of Warren County, Mississippi, and a restatement of which dated April 29, 1993, was recorded in Deed Book 976, at Page 221 of the Records of the Chancery Clerk of Warren County, Mississippi. Neilsen's interest under the Magnolia Lease, among other things, was assigned to ACVI pursuant to Assignment of Leasehold and Option to Purchase recorded in Deed Book 990, at Page 410 of the Records of the Chancery Clerk of Warren County, Mississippi, and was further amended by First Amendment to Lease Agreement dated as of July 14, 1993, executed between Magnolia, as owner, and Neilsen, as tenant, a Memorandum of which was recorded in Deed Book 980, at Page 770, of the records of the Chancery Clerk of Warren County, Mississippi, and was further amended by Second Amendment to Lease Agreement dated as of June 1, 1995, between Magnolia, as owner, and ACVI, as tenant, a Memorandum of which was recorded in Deed Book 1048, at Page 181, of the records of the Chancery Clerk of Warren County, Mississippi. "Magnolia Parcel" shall mean the real property which is the subject of the Magnolia Lease, a description of which is more particularly described on that certain schedule marked "Schedule B-2", affixed hereto and by this reference incorporated herein and made a part hereof. "Major Subcontractor Assignments" shall mean collective reference to the assignments of the Assigned Major Subcontracts which are required to be executed by ACLVI and delivered to Agent Bank under Section 5.27(b). "Major Subcontractor Consents" shall mean collective reference to the consents to be executed by each Major Subcontractor that is a party to an Assigned Major Subcontract as required under Section 5.27(b). "Major Subcontracts" shall mean all contracts or subcontracts executed by a Subcontractor and either ACLVI General Contractor or another Subcontractor in connection with the ACLVI Project if the aggregate amount of such contracts or subcontracts executed by such Subcontractor is equal to or greater than One Hundred Thousand Dollars ($100,000.00). "Margin Stock" shall have the meaning provided in Regulation U of the Board of Governors of the Federal Reserve System. "Material Adverse Change" shall mean any change which is material and adverse to the Collateral or the condition (financial or otherwise), business operations or prospects of: (a) any of the Borrowers, or (b) the Borrower Consolidation, or (c) the ability of Borrowers to perform their respective obligations under the Loan Documents or the ability of any of the Lenders to enforce any of their rights or remedies under any of the Loan Documents.. "Material Adverse Effect" means (i) a material adverse effect upon (a) the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Borrower or any of such Borrower's Subsidiaries, (b) the value of the ACCBI Riverboat/Hotel Facilities, the ACLVI Hotel/Casino Facility, the ACVI Casino Facility or the CPI Hotel/Casino Facilities, (c) the validity, priority or enforceability of any of the Loan Documents, or (d) the construction, use, occupancy or operation of the ACLVI Project or the use, occupancy or operation of the ACCBI Riverboat/Hotel Facilities, the ACVI Casino Facility or the CPI Hotel/Casino Facilities or, in each case, any part thereof or (ii) the impairment of the ability of any Borrower to perform, or of Agent Bank or Lenders to enforce, the Obligations in any material respect. "Material Adverse Event" shall mean any event or change which is material and adverse to the Casino Facilities, the Collateral or the financial condition or business operations of the Borrower Consolidation. "Maturity Date" shall mean June 30, 2003. "Maximum Availability" shall mean the Maximum Permitted Balance less the Aggregate Outstandings. "Maximum Permitted Balance" shall mean the maximum amount of Aggregate Outstandings which may be outstanding on the Bank Facilities from time to time which shall be the lesser of: (a) the Maximum Scheduled Balance, or (b) the amount to which the Maximum Scheduled Balance is voluntarily reduced by Borrowers pursuant to Section 2.01(c) or is otherwise reduced or limited pursuant to Sections 2.01(d), 5.01, 5.12 or 8.02 or by Scheduled Reductions, and, during the Construction Period, by the amount of undisbursed Retainage. "Maximum Scheduled Balance" shall mean the maximum amount of scheduled principal which may be outstanding on the Credit Facility from time to time as set forth on the Aggregate Commitment Reduction Schedule. "Mississippi Gaming Authorities" means, without limitation, the Mississippi Gaming Commission and any other applicable governmental or administrative state or local agency involved in the regulation of gaming and gaming activities conducted by any member of the Borrower Consolidation in the State of Mississippi. "Morrison" shall mean R.R. Morrison and Son, Inc., a Mississippi corporation. "Morrison Estoppel Certificate" shall mean the Acknowledgement and Estoppel Certificate duly executed by Morrison, as lessor, and ACVI, as lessee, under the Morrison Lease, wherein each certifies and represents to Agent Bank on behalf of Lenders that: (a) the Morrison Lease represents the entire agreement between the parties thereto with respect to the Morrison Parcel, (b) the Morrison Lease has not been modified, supplemented or amended except as described herein, (c) to the best knowledge of Morrison and to the best knowledge of ACVI, there are no defaults presently existing or continuing under any of the provisions of the Morrison Lease, and (d) other provisions regarding notice to Agent Bank on behalf of Lenders in the event of default thereunder and Agent Bank's entitlement to the benefit of certain mortgagee protection provisions which are set forth by the Morrison Lease. "Morrison Lease" shall mean that certain Agreement dated September 18, 1992, between R.R. Morrison, Jr., as lessor, and Neilsen, as lessee, a Memorandum of which was recorded on May 24, 1993, in Deed Book 976, at Page 217, of the records of the Chancery Clerk of Warren County, Mississippi, as was ratified by Morrison, as the successor to R.R. Morrison, Jr., pursuant to Ratification of Lease dated September 18, 1992, executed between Morrison and ACVI, recorded in the Official Records on October 6, 1993, in Book 990, Page 434, as Instrument No. 089117, Neilsen's interest under the Morrison Lease, among other things, was assigned to ACVI pursuant to that certain Assignment of Leasehold and Option to Purchase recorded in Deed Book 990, at Page 427, of the records of the Chancery Clerk of Warren County, Mississippi, and such lease was amended pursuant to that certain First Amendment to Lease Agreement dated as of June 1, 1995, between Morrison, as owner, and ACVI, as tenant, recorded in Deed Book 1048, at Page 216, of the records of the Chancery Clerk of Warren County, Mississippi. "Morrison Lease Parcel" shall mean the real property and appurtenances which are the subject of the Morrison Lease, a description of which is more particularly described on that certain schedule marked "Schedule B-4", affixed hereto and by this reference incorporated herein and made a part hereof. "NVDC" shall mean the National Vessel Documentation Center of the USCG. "Neilsen" shall mean Craig Neilsen. "Neilsen Family Group" shall mean collective reference to: (i) Neilsen and his executors, administrators, testamentary trustees, heirs, legatees and beneficiaries, and (ii) Neilsen as the trustee of the Trust created under the Last Will and Testament of Ray Neilsen dated October 9, 1963, together with each successor trustee thereof. "Net Income" shall mean with respect to any Person for any fiscal period, the net income of such Person during such fiscal period determined in accordance with GAAP. "Nevada Gaming Authorities" shall mean, without limitation, the Nevada Gaming Commission and the State Gaming Control Board and any other applicable governmental or administrative state or local agency involved in the regulation of gaming and gaming activities conducted by ACI and its subsidiaries in the State of Nevada. "New General Contractor's Agreement" shall mean two construction contracts to be entered into by and between ACLVI and General Contractor for the construction of those portions of the structural and exterior components of the ACLVI Project which are not part of the Existing General Contractor's Agreement, subject to the additions and deductions as provided therein, and consistent with the Project Development Budget. "New General Contractor's Consent" shall mean a Contractor's Consent and Agreement, the terms of which shall be substantially the same as set forth in the Existing General Contractor's Consent, which is to be executed by the General Contractor and delivered to Agent Bank, on behalf of the Lenders, prior to the Closing Date, for the purpose, among other things, of evidencing the General Contractor's: (i) consent to the Assignment of New General Contractor's Agreement; (ii) agreement not to modify the New General Contractor's Agreement without Agent Bank's consent; and (iii) agreement to continue performance under the New General Contractor's Agreement on behalf of Agent Bank subject to the terms and conditions set forth therein. "Non Pro Rata Borrowing" means a Borrowing with respect to which fewer than all Lenders have funded their respective Pro Rata Shares of such Borrowing and the failure of the non-funding Lender or Lenders to fund its or their respective Pro Rata Shares of such Borrowing constitutes a breach of this Credit Agreement. "Nonusage Fee" shall have the meaning ascribed to such term in Section 2.10(b) of this Credit Agreement. "Notes" shall mean collective reference to the Revolving Credit Note and the Swingline Note. "Notice of Borrowing" shall have the meaning set forth in Section 2.03. "Notice of Swingline Advance" shall have the meaning set forth in Section 2.08(b). "Obligations" means, from time to time, all Indebtedness of Borrowers owing to Agent Bank, any Lender or any Person entitled to indemnification pursuant to Section 5.14, or any of their respective successors, transferees or assigns, of every type and description, whether or not evidenced by any note, guaranty or other instrument, arising under or in connection with this Credit Agreement or any other Loan Document, whether or not for the payment of money, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired. The term includes, without limitation, all interest, charges, expenses, fees, reasonable attorneys' fees and disbursements, reasonable fees and disbursements of expert witnesses and other consultants, and any other sum now or hereinafter chargeable to Borrowers under or in connection with Credit Agreement or any other Loan Document. Notwithstanding the foregoing definition of "Obligations", Borrowers' obligations under any environmental indemnity agreement constituting a Loan Document, or any environmental representation, warranty, covenant, indemnity or similar provision in this Credit Agreement or any other Loan Document, shall be secured by the Collateral only to the extent, if any, specifically provided in the Security Documentation. "Occupancy Date" shall mean the date upon which the City of Henderson issues a final or temporary Certificate of Occupancy for the use and occupancy of all of the public areas and hotel rooms of the ACLVI Project. "Option Agreement" shall mean that certain Option Agreement dated July 11, 1995, between Levy Realty Trust, as the optionor, and ACLVI (as the successor by merger to Gem), as optionee, under the terms of which ACLVI acquired the exclusive option to purchase the Option Property in minimum five (5) acre increments for the purchase price and subject to the terms therein contained, which Option Agreement was recorded in the Official Records of Clark County, Nevada, on July 11, 1996, in Book 960711, as Instrument No. 00964. "Option Disbursement" shall mean a Construction Disbursement during the Construction Period or a Borrowing during the Revolving Credit Period which is used for the purpose of funding the acquisition cost of portions of the Option Property. "Option Property" shall mean the real property located in Clark County, Nevada, which is the subject of the Option Agreement, which real property is more particularly described on that certain schedule marked "Schedule D-2", affixed hereto and by this reference incorporated herein and made a part hereof. "Pension Plan" means any "employee pension benefit plan" (other than a "multi-employer plan" as defined in Title IV of ERISA which is maintained by any Person which is not a member of the Borrower Consolidation) that is subject to Title IV of ERISA and which is maintained for employees of Borrowers or any of its ERISA Affiliates. "Permitted Encumbrances" shall mean collective reference to the CPI Permitted Encumbrances, the ACLVI Permitted Encumbrances, the ACCBI Permitted Encumbrances and the ACVI Permitted Encumbrances. "Person" means an individual, firm, corporation, limited liability company, trust, association, partnership, joint venture, tribunal or other entity. "Plans and Specifications" shall mean collective reference to the Structural Plans and Specifications, the Interior Plans and Specifications and all other plans and specifications which are approved by Agent Bank in connection with the construction and development of the ACLVI Project, together with all additions, changes and amendments thereto which are first approved by Agent Bank. "Policies of Insurance" shall mean the insurance to be obtained and maintained by Borrowers throughout the term of this Credit Agreement as provided by Section 5.09 herein. "Post Foreclosure Plan" shall have the meaning set forth in Section 10.11(e). "Pricing Certificate" shall have the meaning set forth in Section 5.08(b). "Prime Rate" means at any time, and from time to time, the rate of interest most recently announced within WFB at its principal office in San Francisco, California, as its "Prime Rate", with the understanding that WFB's "Prime Rate" is one of its base rates and serves as the basis upon which effective rates of interest are calculated for those loans and extensions of credit making reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as WFB may designate. Each change in the Prime Rate shall be effective on the day the change is announced within WFB. "Principal Prepayments" shall have the meaning set forth in Section 2.07(a) of this Credit Agreement. "Pro Rata Share" shall mean, with respect to any Lender, a percentage equal to such Lender's Syndication Interest in the Credit Facility as set forth on the Schedule of Lenders' Proportions in Credit Facility. "Project Development Budget" shall mean the detailed line item budget, a copy of which is marked "Exhibit N", affixed hereto and by this reference incorporated herein and made a part hereof, showing in detail to the satisfaction of Agent Bank and each of the Lenders the anticipated costs of the developing, constructing, furnishing and equipping the ACLVI Project, including the cost of gaming devices, slot machines and other ACLVI FF&E to be used in connection therewith and including all items shown on the General Contractor's Budget and Borrower Construction Budget. "Protective Advance" means all sums expended as determined by Agent Bank to be necessary to: (a) protect the priority, validity and enforceability of the Security Documentation on, and security interests in, any Collateral and the instruments evidencing or securing the Obligations, or (b) prevent the value of any Collateral from being materially diminished (assuming the lack of such a payment within the necessary time frame could potentially cause such Collateral to lose value), or (c) protect any of the Collateral from being materially damaged, impaired, mismanaged or taken, including, without limitation, any amounts expended in accordance with Section 11.20 or post- foreclosure ownership, maintenance, operation or marketing of any Collateral. "Qualified Appraisal" shall mean reference to an appraisal or appraisals of the Casino Facilities and Collateral, or any portion thereof, acceptable to Agent Bank, prepared at Borrowers' expense in compliance with FIRREA by an appraiser acceptable to Agent Bank, with sufficient copies delivered to Agent Bank for distribution to each of the Lenders. "Rate Adjustment Date" shall mean December 1, 1997. "Rebeil" shall have the meaning set forth in Recital Paragraph C. "Rebeil Notes" shall mean collective reference to the Rebeil Negotiable Note and the Rebeil Non-Negotiable Note, as defined in and in the form attached to the Gem Settlement Agreement. "Reduction Date(s)" shall mean reference to each date or the dates, as the context may require upon which the Maximum Scheduled Balance is reduced by a Scheduled Reduction as set forth on the Aggregate Commitment Reduction Schedule. "Related Entities" shall mean collective reference to all stockholders, employees, Affiliates and Subsidiaries of the Borrowers, or any of them, other than another Borrower. "Related Receivables" shall mean the aggregate amount of all accounts receivable, notes receivable, obligations, debts and other sums owing to Borrowers, or any of them, from Related Entities. "Replacement Note(s)" shall have the meaning set forth in Section 2.06(i) of the Credit Agreement. "Reportable Event" shall mean any of the events described in Section 4043(b) of ERISA, other than an event for which the thirty (30) day notice requirement is waived by regulations. "Requisite Lenders" means, as of any date of determination prior to the occurrence of an Event of Default, Lenders holding Syndication Interests equal to or in excess of sixty-six and two-thirds percent (66-2/3%) of the Credit Facility; and at all times during which an Event of Default has occurred and remains continuing, Lenders holding a percentage equal to or in excess of sixty-six and two-thirds percent (66-2/3%) of the Funded Outstandings; provided that, (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the Pro Rata Shares of Lenders shall be redetermined, for voting purposes only, to exclude the Pro Rata Shares of such Defaulting Lenders, and (ii) notwithstanding the foregoing, at all times when two or more Lenders are party to this Credit Agreement, the term Requisite Lenders shall in no event mean less than two (2) Lenders. "Restated Equipment Intercreditor Agreement" shall mean an agreement or restatement of the Existing Equipment Intercreditor Agreement to be executed by and between the ACCBI Equipment Lender and Agent Bank, for the purposes of: (i) evidencing the ACCBI Equipment Lender's consent to the encumbrance of the ACCBI Riverboat with the ACCBI Ship Mortgage, and (ii) providing for the relative priority in right to payment as between the ACCBI Equipment Lender, on the one hand, and Agent Bank, on the other hand, in the event of foreclosure of the ACCBI Equipment Ship Mortgage and/or ACCBI Ship Mortgage, the terms of which shall be substantially the same as set forth in the Existing Equipment Intercreditor Agreement and otherwise as approved by Lenders. "Restated GECC Intercreditor Agreement" shall mean a Subordination and Intercreditor Agreement or an amendment to or restatement of the Existing GECC Intercreditor Agreement to be executed by and among GECC, ACCBI Equipment Lender and Agent Bank on or before the Closing Date, for the purposes of: (i) evidencing GECC's consent to the encumbrance of the ACCBI Riverboat with the ACCBI Ship Mortgage, and (ii) providing for the relative priority in right to payment as between GECC, on the one hand, and the ACCBI Equipment Lender and Agent Bank, on the other hand, in the event of foreclosure of the GECC Ship Mortgage, ACCBI Equipment Ship Mortgage and/or ACCBI Ship Mortgage, the terms of which shall be substantially the same as set forth in the Existing GECC Intercreditor Agreement and otherwise as approved by Lenders. "Retainage" shall have the meaning ascribed to such term in Section 9.15. "Revolving Credit Note" shall mean the Revolving Credit Promissory Note, a copy of which is marked "Exhibit A", affixed hereto and by this reference incorporated herein and made a part hereof, to be executed by Borrowers on the Closing Date, payable to the order of Agent Bank on behalf of the Lenders, evidencing the Credit Facility. "Revolving Credit Period" shall mean the period commencing on the Completion Date and terminating on the Maturity Date. "Schedule of Lenders' Proportions in Credit Facility" shall mean the Schedule of Lenders' Proportions in Credit Facility, a copy of which is marked "Schedule 2.01(a)", affixed hereto and by this reference incorporated herein and made a part hereof, setting forth the respective Syndication Interest and maximum amount to be funded under the Credit Facility by each Lender, as the same may be amended, modified or restated from time to time in connection with an Assignment and Assumption Agreement. "Schedule of Significant Litigation" shall mean the Schedule of Significant Litigation, a copy of which is set forth as Schedule 3.18, affixed hereto and by this reference incorporated herein and made a part hereof, setting forth the information described in Section 3.18 with respect to each Significant Litigation. "Scheduled Reductions" shall mean the amount by which the Aggregate Commitment is reduced on each Reduction Date as set forth on the Aggregate Commitment Reduction Schedule. "Second Determination Date" shall have the meaning set forth in Section 2.01(d)(ii) of the Credit Agreement. "Secured Interest Rate Hedge(s)" shall mean any Interest Rate Hedge entered into between any Borrower and any Lender, or Affiliate of any Lender, which is secured by the Security Documentation. "Security Documentation" shall mean a collective reference to the CPI Security Documents, the ACLVI Security Documents, the ACCBI Security Documents, the ACVI Security Documents and Stock Pledge, the Trademark Security Agreement and all other instruments and agreements to be executed by or on behalf of Borrowers or other applicable Persons, in favor of Agent Bank on behalf of the Lenders securing repayment of the Bank Facilities. "Senior Subordinated Notes" shall mean at any time the issued and outstanding Initial Senior Subordinated Notes and/or the Exchange Senior Notes, as the case may be; provided, however, that at no time may the aggregate principal amount of outstanding Senior Subordinated Notes exceed One Hundred Twenty-Five Million Dollars ($125,000,000.00). "Senior Subordinated Notes Effective Date" shall mean the date upon which the Initial Senior Subordinated Notes shall have been issued by ACI and ACI shall have received the proceeds thereof, net of any discounts and any other amounts due to the initial purchasers or third parties in connection with offering and issuance of the Initial Senior Subordinated Notes. "Significant Litigation" shall mean each action, suit, proceeding, litigation and controversy involving Borrowers, or any of them, involving claims in excess of One Million Dollars ($1,000,000.00) or which if determined adverse to the interests of Borrowers, or any of them, could have a Material Adverse Effect. "Soft Costs" shall mean all costs which are shown in the Construction Budgets, other than Hard Costs, including, without limitation, the purchase of ACLVI FF&E and other items outside the scope of the General Contractor's Agreement. "Spaceleases" shall mean collective reference to the CPI Spaceleases, ACLVI Spaceleases, ACCBI Spaceleases and ACVI Spaceleases. "Stock Pledges" shall mean collective reference to the Security Agreements and Stock Pledges to be executed and delivered into escrow on behalf of the Banks as of the Closing Date, pursuant to which, subject to the prior approval of all necessary Gaming Authorities, the stock of CPI, ACLVI, ACCBI and ACVI is pledged by ACI to Agent Bank on behalf of Lenders as security for the Bank Facilities and all other sums which may be owing by Borrowers to the Banks from time to time under the terms of the Credit Agreement. "Structural Plans and Specifications" shall mean the plans and specifications for the development and construction of the structural and exterior components of the ACLVI Project prepared by the Architect and the Architect's consultants, as such plans and specifications may be amended from time to time. Said plans and specifications shall include, but not be limited to, all plans, maps, sketches, diagrams, surveys, drawings, specifications, lists, geotechnical reports, structural engineering calculations and all other engineering reports, data and plans prepared by the Architect and the Architect's consultants in connection with the structural and exterior components of the ACLVI Project. "Subcontractor(s)" means any person(s) or firm(s), other than an employee of the General Contractor, who is engaged by the General Contractor, ACLVI or by another Subcontractor to furnish labor, material, analysis or other services with respect to a portion of the work, labor, materials and services to be provided: (i) for General Contractor under the General Contractor's Agreement, or (ii) for ACLVI or another Subcontractor for work, labor, materials and services not included in the General Contractor's Agreement. "Subsidiary" shall mean, on the date in question, any Person of which an aggregate of 50% or more of the stock of any class or classes (or equivalent interests) is owned of record or beneficially, directly or indirectly, by another Person and/or any of its Subsidiaries, if the holders of the stock of such class or classes (or equivalent interests) (a) are ordinarily, in the absence of contin gencies, entitled to vote for the election of a majority of the directors (or individuals performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency, or (b) are entitled, as such holders, to vote for the election of a majority of the directors (or individuals performing similar functions) of such Person, whether or not the right so to vote exists by reason of the happening of a contingency. "Swingline Advance" shall mean each advance made by Swingline Lender to Borrowers under the Swingline Facility. "Swingline Facility" shall mean the agreement of Swingline Lender to make Swingline Advances to Borrowers subject to the terms and conditions and up to the maximum amounts and for the duration as set forth in Section 2.08 of this Credit Agreement. "Swingline Lender" shall have the meaning set forth in the Preamble of this Credit Agreement. "Swingline Note" shall mean the Swingline Note, a copy of which is marked "Exhibit B", affixed hereto and by this reference incorporated herein and made a part hereof, to be executed by Borrowers on the Closing Date, payable to the order of Swingline Lender evidencing the Swingline Facility. "Swingline Outstandings" shall mean the aggregate amount of all outstanding and unpaid Swingline Advances as of each date of determination. "Syndication Interest" shall mean the proportionate interest of each Lender in the Credit Facility as set forth on the Schedule of Lenders' Proportions in Credit Facility, as the same may be amended or restated from time to time. "Tangible Net Worth" shall mean ACI stockholder's equity, minus the aggregate value of ACI treasury stock, less Intangibles, less Related Receivables. "Title Insurance Company" shall mean Stewart Title Guaranty Company. "Title Insurance Policies" shall mean collective reference to the ACCBI Title Insurance Policy, ACLVI Title Insurance Company, ACVI Title Insurance Company and CPI Title Insurance Company. "Trademark Security Agreement" shall mean the security agreement to be executed by Borrowers as of the Closing Date for the purpose of granting a security interest in favor of Agent Bank on behalf of Lenders in all trademarks, tradenames, copyrights and servicemarks used in connection with the Hotel/Casino Facilities, including, without limitation each registration and application set forth on Schedule 4.27 or otherwise described on Schedule A to the Trademark Security Agreement. "Trustmark Nondisturbance Agreement" shall mean that certain Nondisturbance Agreement to be executed on or before the Closing Date by and between ACVI and Trustmark National Bank ("Trustmark") as the holder of a deed of trust encumbering the fee interest in the Magnolia Parcel pursuant to which, among other things, Trustmark agrees that, upon acquisition of the Magnolia Parcel by foreclosure under its deed of trust, or conveyance in lieu thereof, Trustmark (or any purchaser at such a foreclosure sale) will recognize and will not disturb the interest of ACVI under the Magnolia Lease, or the interest of any party acquiring ACVI's interest under the Magnolia Lease pursuant to foreclosure under the ACVI Deed of Trust or conveyance in lieu thereof. "USCG" shall mean the United States Coast Guard. "Vessels" shall mean collective reference to the ACCBI Riverboat and the ACVI Riverboat. "Voluntary Reduction" shall have the meaning set forth in Section 2.01(c). "WFB" shall mean Wells Fargo Bank, National Association. "WFB Loan" shall mean that certain unsecured loan which was advanced to ACI by WFB, in the principal amount of Twenty Million Dollars ($20,000,000.00), the terms of repayment of which is evidenced by that certain Unsecured Promissory Note dated as of March 26, 1997, executed by ACI, payable to the order of WFB in the principal amount of Twenty Million Dollars ($20,000,000.00), together with interest at the rate or rates therein specified. Section 1.02. Interpretation and Construction. In this Credit Agreement, unless the context otherwise requires: (a) Articles and Sections mentioned by number only are the respective Articles and Sections of this Credit Agreement as so numbered; (b) Words importing a particular gender mean and include every other gender, and words importing the singular number mean and include the plural number and vice versa; (c) All times specified herein, unless otherwise specifically referred, shall be the time in San Francisco, California; (d) Any headings preceding the texts of the several Articles and Sections of this Credit Agreement, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Credit Agreement, nor shall they affect its meaning, construction or effect; (e) If any clause, definition, provision or Section of this Credit Agreement shall be determined to be apparently contrary to or conflicting with any other clause, definition, provision or Section of this Credit Agreement then the clause, definition, provision or Section containing the more specific provisions shall control and govern with respect to such apparent conflict. The parties hereto do agree that each has contributed to the drafting of this Credit Agreement and all Loan Documents and that the provisions herein contained shall not be construed against either Borrowers or Lenders as having been the person or persons responsible for the preparation thereof; (f) The terms "herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms as used in the Credit Agreement refer to this Credit Agreement; the term "heretofore" means before the date of execution of this Credit Agreement; and the term "hereafter" means after the date of the execution of this Credit Agreement; (g) All accounting terms used herein which are not otherwise specifically defined shall be used in accordance with GAAP; (h) If any clause, provision or Section of this Credit Agreement shall be ruled invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any of the remaining provisions hereof; (i) Each reference to this Credit Agreement or any other Loan Document or any of them, as used in this Credit Agreement or in any other Loan Document, shall be deemed a reference to this Credit Agreement or such Loan Document, as applicable, as the same may be amended, modified, supplemented, replaced, renewed or restated from time to time; and (j) Every affirmative duty, covenant and obligation of Borrowers hereunder shall be equally applicable to each of the Borrowers individually and where the context would result in the best interests or rights of Banks shall be construed to mean "Borrowers or any of them" or "Borrowers and each of them", as applicable. Section 1.03. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Credit Agreement shall have such meanings when used in the Notes and in each Loan Document and other communication delivered from time to time in connection with this Credit Agreement or any other Loan Document. Section 1.04. Cross-References. Unless otherwise specified, references in this Credit Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Credit Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition. Section 1.05. Exhibits and Schedules. All Exhibits and Schedules to this Credit Agreement, either as originally existing or as the same may from time to time be supplemented, modified or amended, are incorporated herein by this reference. ARTICLE II AMOUNT, TERMS AND SECURITY OF THE BANK FACILITIES Section 2.01. The Credit Facility. a. Subject to the conditions and upon the terms hereinafter set forth and in accordance with the terms and provisions of the Revolving Credit Note on and after the Closing Date Lenders severally agree in the proportions set forth on the Schedule of Lenders' Proportions in Credit Facility to lend and advance Borrowings to Borrowers, up to the Maximum Permitted Balance, the Closing Disbursements on the Closing Date and such amounts as Borrowers may request by: (i) Notice of Borrowing duly executed by an Authorized Officer and delivered to Agent Bank from time to time during the Revolving Credit Period as provided in Section 2.03, subject to the uses and purposes set forth in Section 2.02, and (ii) Construction Disbursement Request during the Construction Period duly executed by an Authorized Officer and delivered to Agent Bank from time to time, together with all other requirements as provided in Section 2.09 and Article IX. b. Subject to the uses and purposes set forth in Section 2.02, on and after the Closing Date Borrowers may borrow, repay and reborrow the Borrowings up to the Available Borrowings from time to time. Provided, however, amounts of Funded Outstandings bearing interest with reference to a LIBO Rate shall be subject to Breakage Charges incident to prepayment. The Credit Facility shall be for a term commencing on the Closing Date and terminating on the Maturity Date. In no event shall any Lender be liable to fund any amounts under the Credit Facility in excess of its respective Syndication Interest in any Borrowing. c. Notwithstanding the Scheduled Reductions to the Maximum Permitted Balance as set forth on the Aggregate Commitment Reduction Schedule, Borrowers may voluntarily further reduce the Maximum Permitted Balance from time to time (a "Voluntary Reduction") on the following conditions: (i) that each such Voluntary Reduction be in the minimum amount of Ten Million Dollars ($10,000,000.00) and made in writing by an Authorized Officer, effective on the fifth (5th) Banking Business Day following receipt by Agent Bank; (ii) that each such Voluntary Reduction shall be irrevocable and a permanent reduction to the Maximum Permitted Balance; and (iii) no Voluntary Reduction of the Maximum Permitted Balance shall relieve or otherwise defer the making of each Scheduled Reduction on each Reduction Date, it being understood that each Scheduled Reduction shall be made on each Reduction Date to the Maximum Permitted Balance as it may be reduced by each Voluntary Reduction. d. Notwithstanding anything herein contained to the contrary, the Maximum Permitted Balance shall be limited to the Availability Limit, as determined from time to time. If on any Availability Determination Date, the Aggregate Outstandings are in excess of the Availability Limit: (i) Borrowers shall not be entitled to any further Borrowings, Construction Disbursements or Swingline Advances until the Availability Limit is demonstrated to be in excess of the Aggregate Outstandings as of a subsequent Availability Determination Date, and then only to the extent of such excess; (ii) so long as no Default or Event of Default shall have occurred and remains continuing, Aggregate Outstandings in excess of the Availability Limit need not be repaid unless as of the next occurring Availability Determination Date (the "Second Determination Date") the Aggregate Outstandings continue to exceed the Availability Limit in which event the Borrowers shall reduce the Aggregate Outstandings to no more than the most recently determined Availability Limit on or before thirty (30) days following the Second Determination Date; and (iii) notwithstanding the provisions set forth in subparagraph (ii) hereinabove, if a Default or Event of Default shall have occurred and remains continuing, then the Borrowers shall cause the Aggregate Outstandings to be reduced to no more than the most recently determined Availability Limit on or before the Banking Business Day following such Availability Determination Date. e. Other than limitations as a result of the Availability Limit determined under Section 2.01(d), no limitation of the Maximum Permitted Balance shall relieve or otherwise defer the making of each Scheduled Reduction on each Reduction Date. In the event the Maximum Permitted Balance is less than the Maximum Scheduled Balance as of any Reduction Date, to the extent the difference is a result of the Availability Limit determined under Section 2.01(d), the Scheduled Reduction shall only reduce the Maximum Scheduled Balance. In all other instances, the amount of each Scheduled Reduction shall further reduce the Maximum Permitted Balance by the amount of such Scheduled Reduction. In no event shall the Maximum Permitted Balance exceed the Maximum Scheduled Balance as of Reduction Dates set forth on the Aggregate Commitment Reduction Schedule. f. In addition to the requirements set forth in Section 2.01(d), in the event any Scheduled Reduction or Voluntary Reduction reduces the Maximum Permitted Balance to less than the sum of the Aggregate Outstandings, the Borrowers shall, except as otherwise provided in Section 2.01(d)(ii) and (iii), on or before the next ensuing Banking Business Day cause the Aggregate Outstandings to be reduced by such amount as may be necessary to cause the Aggregate Outstandings to be equal to or less than the Maximum Permitted Balance. Section 2.02. Use of Proceeds of the Credit Facility. Available Borrowings shall be used for the purposes of: a. On the Closing Date (collectively the "Closing Disbursements"): (i) paying in full all loans and advances outstanding under the Existing Bank Loan and the WFB Loan as of the Closing Date; (ii) paying to Rebeil and Magliarditi or reimbursing ACI for the payment to Rebeil and Magliarditi of up to a maximum aggregate amount of Four Million Dollars ($4,000,000.00) pursuant to the terms of the Gem Settlement Agreement; and (iii) paying in full the Upfront Fee, the costs, fees and expenses of Title Insurance Companies incurred in connection with the issuance of the Title Insurance Policies, the costs, fees and expenses of the attorneys for Borrowers and the costs, fees and expenses of Henderson & Nelson, attorneys for Agent Bank, and associate counsel and insurance consultants retained by them incurred to the Closing Date. b. During the Construction Period: (i) funding Construction Disbursements under the Construction Loan Subfacility, subject to the terms and conditions set forth in Section 2.09 and Article IX of the Credit Agreement; (ii) funding the cost of acquiring a portion or portions of the Option Property, subject to the terms and conditions set forth in Article III D of the Credit Agreement. c. Subsequent to the Completion Date: (i) funding the repayment of Swingline Advances as provided in Section 2.08; (ii) funding working capital needs of the Borrower Consolidation relating to the Casino Facilities; (iii) funding ongoing Capital Expenditure requirements of the Borrower Consolidation relating to the Casino Facilities; and (iv) funding the cost of acquiring a portion or portions of the Option Property, subject to the terms and conditions set forth in Article III D of the Credit Agreement. Section 2.03. Notice of Borrowings and Interest Rate Options. a. An Authorized Officer may give Agent Bank, no later than 11:00 a.m. on any Banking Business Day at Agent Bank's office specified in Section 2.07, three (3) full Banking Business Days prior written notice in the form of the Notice of Borrowing ("Notice of Borrowing"), a copy of which is marked "Exhibit E", affixed hereto and by this reference incorporated herein and made a part hereof, for each proposed Borrowing to be made with reference to a LIBO Rate and at least two (2) full Banking Business Days prior notice for all other Borrowings, specifying the date and amount of each proposed Borrowing. Borrowings made pursuant to a Construction Disbursement Request shall be Base Rate Loans as of the applicable Funding Date and shall be made in accordance with the provisions of Section 2.09(a). Agent Bank shall give prompt notice of all Borrowings to Lenders of the amount to be funded and specifying the Funding Date. Not later than 9:00 o'clock a.m. on the Funding Date specified, each Lender shall disburse to Agent Bank the Pro Rata Share of the amount to be advanced by Lenders in lawful money of the United States of America and in immediately available funds. Agent Bank shall make the proceeds of such fundings that it receives from the Lenders on or before 11:00 o'clock a.m. available to Borrowers by depositing, prior to 1:00 o'clock p.m. on the day so received (but not prior to the Funding Date), the amounts received from the Lenders in the Designated Deposit Account maintained with Agent Bank. No Borrowing may exceed the Available Borrowings. Each Borrowing shall be in a minimum amount of Five Hundred Thousand Dollars ($500,000.00) and in increments of One Hundred Thousand Dollars ($100,000.00). Borrowers shall be entitled to no more than one (1) Construction Disbursement during each month during the Construction Period and no more than three (3) Borrowings during each calendar month following the Completion Date, exclusive of Borrowings made for the sole purpose of funding repayment of a Swingline Advance. b. The failure of any Lender to fund its Pro Rata Share of any Borrowing on any Funding Date shall neither relieve any other Lender of any obligation hereunder to fund its Pro Rata Share of such Borrowing on such Funding Date nor relieve such Lender which has failed to fund its Pro Rata Share of its obligations to Borrowers hereunder. No Lender shall be responsible for the failure of any other Lender to fund its Pro Rata Share of such Borrowing on any Funding Date nor shall any Lender be responsible for the failure of any other Lender to perform its respective obligations hereunder. Section 2.04. Conditions of Borrowings. During the Revolving Credit Period, Borrowings, other than Borrowings made at the request of Agent Bank for the purpose of funding repayment of Swingline Outstandings as hereinafter provided, will only be made so long as Borrowers are in full compliance with each of the requirements and conditions precedent set forth in Article III B of this Credit Agreement. Provided, however, upon the consent of Requisite Lenders, Lenders shall advance Borrowings notwithstanding the existence of less than full compliance with the requirements of Article III B and Borrowings so made shall be deemed to have been made pursuant to this Credit Agreement. Section 2.05. The Revolving Credit Note and Interest Rate Options. a. The Credit Facility shall be further evidenced by the Revolving Credit Note payable to the order of Agent Bank on behalf of the Lenders. Agent Bank shall record manually or electronically the date and amount of each Borrowing advanced by the Lenders together with the applicable LIBOR Loan Interest Period in the case of portions of the unpaid principal under the Credit Facility bearing interest with reference to a LIBO Rate, and the amount of each repayment of principal made thereunder by Borrowers and the entry of such records shall be conclusive absent manifest or demonstrable error; provided, however, the failure to make such a record or notation with respect to any Borrowing or repayment thereof, or an error in making such a record or notation, shall not limit or otherwise affect the obligations of Borrowers hereunder or under the Revolving Credit Note. b. Interest shall accrue on the entire outstanding principal balance at a rate per annum equal to the Base Rate plus the Applicable Margin, unless Borrowers request a LIBOR Loan pursuant to Section 2.03 or elect pursuant to Section 2.05(c) hereinbelow to have interest accrue on a portion or portions of the outstanding principal balance at a LIBO Rate ("Interest Rate Option"), in which case interest on such portion or portions shall accrue at a rate per annum equal to such LIBO Rate plus the Applicable Margin, as long as: (i) each such LIBOR Loan is in a minimum amount of Five Million Dollars ($5,000,000.00) and in minimum increments of One Million Dollars ($1,000,000.00), and (ii) no more than five (5) LIBOR Loans may be outstanding at any one time. Interest accrued on each Base Rate Loan shall be due and payable on the first day of the month following the Closing Date, on the first day of each successive month thereafter, and on the Maturity Date. For each LIBOR Loan, accrued interest shall be due and payable at the end of each Interest Period applicable thereto, but in any event no less frequently than at the end of each three (3) month period during the term of such LIBOR Loan. Except as qualified above, the outstanding principal balance hereunder may be a Base Rate Loan or one or more LIBOR Loans, or any combination thereof, as Borrowers shall specify. c. Borrowers may Convert from one Interest Rate Option to another Interest Rate Option by giving irrevocable notice to Agent Bank of such Conversion by 10:00 A.M., on a day which is at least three (3) Banking Business Days prior to the proposed date of such Conversion to each LIBOR Loan or two (2) Banking Business Days prior to the proposed date of such Conversion to each Base Rate Loan. Each such notice shall be made by an Authorized Officer by telephone or telex and thereafter immediately confirmed in writing by delivery to Agent Bank of a Continuation/Conversion Notice specifying the date of such Conversion, the amounts to be so Converted and the initial Interest Period if the Conversion is to a LIBOR Loan. Upon receipt of such Continuation/Conversion Notice, Agent Bank shall promptly set the applicable interest rate (which in the case of a LIBOR Loan shall be the LIBO Rate plus the Applicable Margin as of the second Banking Business Day prior to the first day of the applicable Interest Period) and the applicable Interest Period if the Conversion is to a LIBOR Loan and shall confirm the same in writing to Borrowers and Lenders. Each Conversion shall be on a Banking Business Day. No LIBOR Loan shall be converted to a Base Rate Loan or renewed on any day other than the last day of the current Interest Period relating to such amounts outstanding unless Borrowers pay any applicable Breakage Charges. All Borrowings advanced at the request of Agent Bank under Sections 2.08 or 2.09 of the Credit Agreement shall bear interest with reference to the Base Rate plus the Applicable Margin, subject to Borrowers' right to Convert such Borrowing to a LIBOR Loan or LIBOR Loans as provided herein. If Borrowers fail to give a Continuation/Conversion Notice for the continuation of a LIBOR Loan as a LIBOR Loan for a new Interest Period in accordance with this Section 2.05(c), such LIBOR Loan shall automatically become a Base Rate Loan at the end of its then current Interest Period. d. Each interest period (each individually an "Interest Period" and collectively the "Interest Periods") for a LIBOR Loan shall commence on the date such LIBOR Loan is made or the date of Conversion of any amount or amounts of the outstanding Borrowings hereunder to a LIBOR Loan, as the case may be, and shall end on the date which is one (1), two (2), three (3) or six (6) months thereafter, as elected by Borrowers. However, no Interest Period may extend beyond the Maturity Date. Each Interest Period for a LIBOR Loan shall commence and end on a Banking Business Day. If any Interest Period commences on a date for which there is no corresponding date in the month in which it is scheduled to end, such Interest Period shall end on the last Banking Business Day of such month. If any Interest Period would otherwise expire on a day which is not a Banking Business Day, the Interest Period shall be extended to expire on the next succeeding Banking Business Day, unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Banking Business Day. e. The applicable LIBO Rate and Base Rate shall be determined by the Agent Bank, and notice thereof shall be given promptly to Borrowers and Lenders. Each determination of the applicable Base Rate and LIBO Rate shall be conclusive and binding upon the Borrowers, in the absence of manifest or demonstrable error. The Agent Bank shall, upon written request of Borrowers or any Lender, deliver to Borrowers or such Lender, as the case may be, a statement showing the computations used by the Agent Bank in determining any rate hereunder. f. Computation of interest on all Base Rate Loans and LIBOR Loans shall be calculated on the basis of a year of three hundred sixty (360) days and the actual number of days elapsed. The applicable Base Rate shall be effective the same day as a change in the Base Rate is announced by WFB as being effective. g. If with respect to any Interest Period, (a) the Agent Bank reasonably determines (which determination shall be binding and conclusive on Borrowers) that by reason of circumstances affecting the inter-bank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable LIBO Rate, or (b) Requisite Lenders advise Agent Bank that the LIBO Rate as determined by Agent Bank will not adequately and fairly reflect the cost to such Lenders of maintaining or funding, for such Interest Period, a LIBOR Loan, then so long as such circumstances shall continue: (i) Agent Bank shall promptly notify Borrowers thereof, (ii) the Agent Bank shall not be under any obligation to make a LIBOR Loan or Convert a Base Rate Loan into a LIBOR Loan for which such circumstances exist, and (iii) on the last day of the then current Interest Period, the LIBOR Loan for which such circumstances exist shall, unless then repaid in full, automatically Convert to a Base Rate Loan. h. Notwithstanding any other provisions of the Credit Agreement, if, after the Closing Date, any law, rule, regulation, treaty, interpretation or directive (whether having the force of law or not) or any change therein shall make it unlawful for any Lender to make or maintain LIBOR Loans, then (i) the commitment and agreement to maintain LIBOR Loans as to such Lender shall immediately be suspended, and (ii) unless required to be terminated earlier, LIBOR Loans as to such Lender, if any, shall be Converted on the last day of the then current Interest Period applicable thereto to Base Rate Loans. If it shall become lawful for such Lender to again maintain LIBOR Loans, then Borrowers may once again as to such Lender request Conversions to the LIBO Rate. During any period of such suspension, such Lender shall make Base Rate Loans. i. The Borrowers agree that upon written notice by: (y) Agent Bank or (z) any Lender to the Borrowers (with a copy of such notice concurrently delivered to Agent Bank) to the effect that a promissory note or other evidence of indebtedness is required for such Lender by a Governmental Authority, banking regulatory agency or regulatory audit in order for such Lender to evidence (whether for the purposes of pledge, enforcement or otherwise) the Borrowings owing to, or to be made by, such Lender: (i) The Borrowers shall promptly execute and deliver to each Lender a promissory note payable to the order of each such Lender (each individually a "Replacement Note" and collectively the "Replacement Notes") in the form of the Revolving Credit Note in the amount of each Lender's respective Syndication Interest in the Credit Facility subject to Scheduled Reductions to be allocated amongst Lenders in accordance with their respective Syndication Interests; (ii) The Replacement Notes shall, in the aggregate, fully replace the Revolving Credit Note and each reference to the Revolving Credit Note in this Credit Agreement and each of the Loan Documents shall be deemed to be a collective reference to the Replacement Notes; (iii) Borrowings, Interest Rate Options, Fixed Rate Notices and all other provisions for the disbursement of funds, setting of interest rates and collection of repayments of interest and principal shall continue to be made by Agent Bank as the administrative and collateral agent for the Lenders in the same manner and to the same extent as provided in the Revolving Credit Note and this Credit Agreement as fully applicable to each of the Replacement Notes; (iv) the Agent Bank, upon the consent of Requisite Lenders, shall cause the Title Insurance Company to issue, at the expense of Borrowers, such endorsements to the Title Insurance Policies as may be reasonably necessary to assure the aggregate obligation evidenced by the Replacement Notes is secured by the Deed of Trust with the same coverage and priority as the obligation evidenced by the Revolving Credit Note; and (v) Concurrently with the delivery of the Replacement Notes, Agent Bank shall return the original Revolving Credit Note to Borrower marked as superseded and replaced by the Replacement Notes. Section 2.06. Security for the Credit Facility. As security for the due and punctual payment and performance of the terms and provisions of this Credit Agreement, the Notes and all of the other Loan Documents, the Security Documentation shall be executed and delivered, as of the Closing Date, by the respective parties to each of the Security Documentation. Section 2.07. Place and Manner of Payment. a. All amounts payable by Borrowers to the Lenders or Agent Bank on behalf of Lenders pursuant to the Credit Facility shall be made on a Banking Business Day in lawful money of the United States of America and in immediately available funds. Other than in connection with: (i) the Scheduled Reductions of principal, or (ii) principal payments which may be required to decrease the Aggregate Outstandings to an amount equal to or less than the Maximum Permitted Balance, or (iii) principal payments to increase the Available Borrowings to an amount equal to or in excess of Construction Completion Costs as of any date of determination, Borrowers shall not make repayments ("Principal Prepayments") of the outstanding balance of principal owing under the Revolving Credit Note more frequently than three such Principal Prepayments during each calendar month. Each such Principal Prepayment shall be in a minimum amount of Ten Million Dollars ($10,000,000.00) and in increments of One Million Dollars ($1,000,000.00) during the Construction Period and thereafter in a minimum amount of Five Million Dollars ($5,000,000.00) and in increments of One Million Dollars ($1,000,000.00). b. All such amounts payable by Borrowers shall be made to Agent Bank at its office located at Wells Fargo Bank, Syndications Division, 201 Third Street, Eighth Floor, San Francisco, California 94103, or at such other address as may be directed in writing by Agent Bank from time to time. If such payment is received by Agent Bank prior to 11:00 o'clock a.m., Agent Bank shall credit Borrowers with such payment on the day so received and shall promptly disburse to the appropriate Lenders on the same day the Pro Rata Share of payments relating to the Credit Facility, in immediately available funds. If such payment is received by Agent Bank after 11:00 o'clock a.m., Agent Bank shall credit Borrowers with such payment as of the next Banking Business Day and disburse to the appropriate Lenders on the next Banking Business Day such Pro Rata Share of such payment relating to the Credit Facility in immediately available funds. Any payment on the Credit Facility made by Borrowers to Agent Bank pursuant to the terms of this Credit Agreement or the Revolving Credit Note for the account of Lenders shall constitute payment to the appropriate Lenders. If the Revolving Credit Note or any payment required to be made thereon or hereunder, is or becomes due and payable on a day other than a Banking Business Day, the due date thereof shall be extended to the next succeeding Banking Business Day and interest thereon shall be payable at the then applicable rate during such extension. c. The outstanding principal owing under the Credit Facility and the Revolving Credit Note may, subject to Section 2.07(a), be prepaid at any time in whole or in part without penalty, provided, however, that any portion or portions of the unpaid principal balance which is accruing interest at a LIBO Rate may only be prepaid or repaid on the last day of the applicable Interest Period unless Borrowers give three (3) days prior written notice to Agent Bank and additionally pay concurrently with such prepayment or repayment such additional amount or amounts as will compensate Lenders for any losses, costs or expenses which they may incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such LIBOR Loan ("Breakage Charges"). A certificate of a Lender as to amounts payable hereunder shall be conclusive and binding on Borrowers for all purposes, absent manifest or demonstrable error. Any calculation hereunder shall be made on the assumption that each Lender has funded or will fund each LIBOR Loan in the London interbank market; provided that no Lender shall have any obligation to actually fund any LIBOR Loan in such manner. d. Unless the Agent Bank receives notice from an Authorized Officer prior to the date on which any payment is due to the Lenders that the Borrowers will not make such payment in full as and when required, the Agent Bank may assume that the Borrowers have made such payment in full to the Agent Bank on such date in immediately available funds and the Agent Bank may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrowers have not made such payment in full to the Agent Bank, each Lender shall repay to the Agent Bank on demand such amount distributed to such Lender, together with interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to such Lender until the date repaid. e. If, other than as expressly provided elsewhere herein, any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its Syndication Interest, such Lender shall immediately (a) notify the Agent Bank of such fact, and (b) purchase from the other Lenders such participations in the Credit Facility as shall be necessary to cause such purchasing Lender to share the excess payment with each of them in proportion to their respective Syndication Interests; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender, such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender's ratable share (according to the proportion of (i) the amount of such paying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrowers agree that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. The Agent Bank will keep records (which shall be conclusive and binding in the absence of manifest or demonstrable error) of each participation purchased under this section and will in each case notify the Lenders following any such purchases or repayments. Section 2.08. The Swingline Facility. a. Subject to the conditions and upon the terms hereinafter set forth and in accordance with the terms and provisions of the Swingline Note subsequent to the Completion Date, Swingline Lender agrees to lend and advance Swingline Advances to Borrowers in the amounts and at the times provided below. b. With respect to each proposed Swingline Advance, an Authorized Officer shall no later than 11:00 a.m. of the date for such proposed Swingline Advance give Swingline Lender written notice in the form of the Notice of Swingline Advance ("Notice of Swingline Advance"), a copy of which is marked "Exhibit E", affixed hereto and by this reference incorporated herein and made a part hereof, specifying the requested amount to be funded. Swingline Lender shall deposit such amounts as Borrowers may request into the Designated Deposit Account in lawful money of the United States of America in immediately available funds, provided, that: (i) after giving effect to such Swingline Advance, the Swingline Outstandings do not exceed Five Million Dollars ($5,000,000.00), (ii) the amount requested does not exceed the Available Borrowings, (iii) the Completion Date shall have occurred, and (iv) no Default or Event of Default has occurred and remains continuing. Within the foregoing limitations, Borrowers may borrow, repay and reborrow under the Swingline Facility. Each Swingline Advance shall be in an integral multiple of One Hundred Thousand Dollars ($100,000.00). Promptly after receipt of each request for a Swingline Advance, Swingline Lender shall obtain telephonic verification from Agent Bank that, giving effect to such request, the amount of such request does not exceed the Available Borrowings (such verification to be promptly confirmed in writing). Unless Borrowers are notified to the contrary by the Swingline Lender, each repayment of a Swingline Advance shall be in an amount which is an integral multiple of One Hundred Thousand Dollars ($100,000.00), together with the accrued interest thereon. The Swingline Lender shall promptly notify the Agent Bank of the Swingline Outstandings each time there is a change therein. c. Each Swingline Advance shall bear interest at the Base Rate plus the Applicable Margin and shall be payable at the times and in the manner set forth below and, in any event, on or before ten (10) days prior to the Maturity Date. In the event any Swingline Advance is outstanding for thirty (30) consecutive calendar days, then on the next Banking Business Day (unless Borrowers have made other arrangements acceptable to the Swingline Lender to pay the Swingline Outstanding in full or to continue such Swingline Outstanding), Borrowers shall request a Borrowing under the Credit Facility in an amount sufficient to pay the applicable Swingline Advance in full, together with all interest accrued thereon. Upon receipt of the amount of the Borrowing from the Lenders, the Agent Bank shall provide such amount to the Swingline Lender for repayment of the applicable Swingline Advance and the balance of the Borrowing, if any, shall be deposited in immediately available funds to the Designated Deposit Account. In the event Borrowers fail to request a Borrowing within the period specified above, Agent Bank shall, without notice to the Borrowers and without regard to any other conditions precedent for the making of Borrowings under the Credit Facility, including, without limitation the remedies set forth in Section 7.02, promptly (but subject to the notice periods for Borrowings set forth in Section 2.03) cause a Borrowing to be made and funded by the Lenders under the Credit Facility in the amount necessary to pay the applicable Swingline Advance in full, together with all interest accrued thereon, to the extent of Available Borrowings, and the Borrowers shall be deemed to have requested such Borrowing and consented to its being made as provided for herein. d. Each Lender's obligation to advance Borrowings in the proportionate amount of its Syndication Interest in the Credit Facility of any unreimbursed Swingline Outstandings pursuant hereto is several, and not joint or joint and several. The failure of any Lender to perform its obligation to advance a Borrowing in a proportionate amount of such Lender's Syndication Interest of any unreimbursed Swingline Outstandings shall neither relieve any other Lender of its obligation hereunder to advance such Borrowing in the amount of such other Lender's proportionate Syndication Interest of such amount, nor relieve the Lender which has failed to fund of its obligations to Borrowers hereunder. The Borrowers agree to accept the Borrowings for payment of Swingline Outstandings as provided hereinabove, whether or not such Borrowings could have been made pursuant to the terms of Article III B, or any other section of this Credit Agreement. Section 2.09. Construction Loan Subfacility. a. Subject to the conditions and upon the terms hereinafter set forth and in accordance with the terms and provisions of the Revolving Credit Note, Lenders severally agree to advance Construction Disbursements to Borrowers up to the Maximum Availability in proportion to their respective Syndication Interests in such amounts as Borrowers may request from time to time by Construction Disbursement Request, pursuant to Article IX of this Credit Agreement. Borrowers shall use the proceeds of the Construction Loan Subfacility to finance, construct, furnish and equip the ACLVI Project on the ACLVI Real Property to pay other costs and expenses permitted herein related to the financing, furnishing, equipping and construction of the ACLVI Project and otherwise as contemplated or permitted herein for the ACLVI Project, all as more particularly described in the Construction Budgets. Borrowers may use proceeds of the Construction Loan Subfacility to finance the acquisition cost of portions of the Option Property subject to the terms and conditions set forth in Article III D of this Credit Agreement. b. Each Lender's obligation to advance Construction Disbursements in the proportionate amount of its Pro Rata Share is several, and not joint or joint and several. The failure of any Lender to perform its obligation to advance a Construction Disbursement in a proportionate amount of such Lender's Pro Rata Share will not relieve any other Lender of its obligation hereunder to advance such Construction Disbursement Borrowing in the amount of such other Lender's Pro Rata Share, nor relieve the Lender which has failed to fund of its obligations to Borrowers hereunder. Section 2.10. Fees. a. On the Closing Date and on each other applicable date, Borrowers shall pay the fees as required in the Fee Side Letter, each of such fees to be retained by Agent Bank or distributed to Lenders as agreed between Agent Bank and each Lender. b. Commencing on the first annual anniversary of the Closing Date, Borrowers shall be obligated to pay a quarterly nonusage fee (the "Nonusage Fee") to the Agent Bank for the account of Lenders in the proportions of their respective Syndication Interests based on the Leverage Ratio, determined as of the end of the immediately prior Fiscal Quarter with reference to the Borrower Consolidation, in accordance with the following schedule: Leverage Nonusage Ratio Percentage Less than 2.0 to 1.0 .375% Equal to or greater than 2.0 to 1.0 .500% The Nonusage Fee shall begin to accrue on the first anniversary of the Closing Date and shall be calculated as of the last day of each Fiscal Quarter thereafter occurring as the product of (i) the applicable Nonusage Percentage determined as set forth above, multiplied by (ii) as of the end of such Fiscal Quarter, the daily average during such Fiscal Quarter (except with respect to the Fiscal Quarter in which the first annual anniversary of the Closing Date occurs, which shall be calculated with reference to the daily average during such Fiscal Quarter only for those number of days following the first annual anniversary of the Closing Date) of the Maximum Permitted Balance without regard to any Availability Limit as provided in Section 2.01(d), less the daily average during such Fiscal Quarter of the Funded Outstandings, all on the basis of a three hundred sixty (360) day year. Each Nonusage Fee shall be payable in arrears on a quarterly basis on or before ten (10) Banking Business Days following the end of each Fiscal Quarter commencing with the Fiscal Quarter in which the first annual anniversary of the Closing Date occurs, and upon termination of this Credit Agreement, whether at maturity, by acceleration or otherwise. Each Nonusage Fee shall be promptly distributed by Agent Bank to Lenders in proportion to their respective Syndication Interests in the Credit Facility. Section 2.11. Late Charges and Default Rate. a. If any payment due under the Revolving Credit Note is not paid within one (1) Banking Business Day after receipt by Borrowers of written notice of such nonpayment from Agent Bank, Borrowers promise to pay a late charge in the amount of three percent (3%) of the amount of such delinquent payment and Agent Bank need not accept any late payment made unless it is accompanied by such three percent (3%) late payment charge. Any late charge shall be paid to Lenders in proportion to their respective Syndication Interests. b. In the event of the existence of an Event of Default, commencing on the first (1st) Banking Business Day following the receipt by Borrowers of written notice of the occurrence of such Event of Default from Agent Bank, the total of the unpaid balance of the principal and the then accrued and unpaid interest owing under each of the Notes shall commence accruing interest at a rate equal to two percent (2.0%) over the interest rate otherwise applicable to such Note (the "Default Rate") until all Events of Default which may exist have been cured, at which time the interest rate shall revert to the rate of interest otherwise accruing pursuant to the terms of such Note. c. In the event of the occurrence of an Event of Default, Borrowers agree to pay all reasonable costs of collection, including the reasonable attorneys' fees incurred by Agent Bank, in addition to and at the time of the payment of such sum of money and/or the performance of such acts as may be required to cure such Event of Default. In the event legal action is commenced for the collection of any sums owing hereunder or under the terms of the Revolving Credit Note, the Borrowers agree that any judgment issued as a consequence of such action against Borrowers shall bear interest at a rate equal to the Default Rate until fully paid. Section 2.12. Net Payments. All payments under this Credit Agreement, the Revolving Credit Note and/or the Swingline Note shall be made without set-off, counterclaim, recoupment or defense of any kind and in such amounts as may be necessary in order that all such payments, after deduction or withholding for or on account of any future taxes, levies, imposts, duties or other charges of whatsoever nature imposed by the United States or any Governmental Authority, other than franchise taxes or any tax on or measured by the gross receipts or overall net income of any Lender pursuant to the income tax laws of the United States or any State, or the jurisdiction where each Lender's principal office is located (collectively "Taxes"), shall not be less than the amounts otherwise specified to be paid under this Credit Agreement and the Notes. A certificate as to any additional amounts payable to the Lenders under this Section 2.12 submitted to the Borrowers by the Lenders shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall be conclusive absent manifest or demonstrable error. Any amounts payable by the Borrowers under this Section 2.12 with respect to past payments shall be due within ten (10) days following receipt by the Borrowers of such certificate from the Lenders; any such amounts payable with respect to future payments shall be due within ten (10) days after demand with such future payments. With respect to each deduction or withholding for or on account of any Taxes, the Borrowers shall promptly furnish to the Lenders such certificates, receipts and other documents as may be required (in the reasonable judgment of the Lenders) to establish any tax credit to which the Lenders may be entitled. Section 2.13. Increased Costs. If after the date hereof the adoption of, or any change in, any applicable law, rule or regulation (including without limitation Regulation D of the Board of Governors of the Federal Reserve System and any successor thereto), or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any future request or future directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency: a. Shall subject any Lender to any tax, duty or other charge with respect to the Credit Facility, the Revolving Credit Note, the Swingline Note or such Lender's obligation to make any funding of the Credit Facility, or shall change the basis of taxation of payments to such Lender of the principal of, or interest on, the Credit Facility or any other amounts due under the Revolving Credit Note and/or the Swingline Note in respect of the Credit Facility or such Lender's obligation to fund the Credit Facility (except for changes in the rate of tax on the overall net income of such Lender imposed by the United States or any Governmental Authority pursuant to the income tax laws of the United States or any State, or the jurisdiction where each Lender's principal office is located); or b. With respect to the Credit Facility or the obligation of the Lenders to advance Borrowings under the Credit Facility, shall impose, modify or deem applicable any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capitalization, capital adequacy or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; or c. Shall impose on any Lender any other condition affecting the Credit Facility, the Revolving Credit Note or such Lender's obligation to advance Borrowings under the Credit Facility; and the result of any of the foregoing, as set forth in subsections (a), (b) or (c) is to increase the cost to (or in the case of Regulation D or reserve requirements referred to above or a successor thereto, to impose a cost on) such Lender of making or maintaining the Credit Facility, or to reduce the amount of any sum or rate of return received or receivable by such Lender under the Revolving Credit Note, then within ten (10) days after demand by such Lender (which demand shall be accompanied by a certificate setting forth the basis of such demand), the Borrowers shall pay directly to such Lender such additional amount or amounts as will compensate such Lender for such increased cost (or in the case of Regulation D or reserve requirements referred to above or a successor thereto, such costs which may be imposed upon such Lender) or such reduction of any sum or rate of return received or receivable under the Revolving Credit Note. A certificate as to any additional amounts payable to any Lender under this Section 2.13 submitted to the Borrowers by such Lender shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall be conclusive absent manifest or demonstrable error. Each Lender agrees to use its reasonable efforts not materially disadvantageous to it (in its reasonable determination) to minimize such increased or imposed costs or such reduction. Section 2.14. Mitigation; Exculpation. a. Each Lender agrees that it will promptly notify the Borrowers in writing upon its becoming aware that any payments are to become due to it under this Credit Agreement pursuant to Section 2.12 or 2.13. Each Lender further agrees that it will use reasonable efforts not materially disadvantageous to it (in its reasonable determination) in order to avoid or minimize, as the case may be, the payment by the Borrowers of any additional amounts pursuant to Section 2.12 or 2.13. Each Lender represents, to the best of its knowledge, that as of the Closing Date no such amounts are payable to it. b. Borrowers shall not be liable to any Lender for any payments under Section 2.12 or 2.13 arising to the extent of such Lender's gross negligence or wilful misconduct or breach of any laws (other than as a result of Borrowers' breach), or for amounts which were incurred more than ninety (90) days prior to the date Borrowers are notified of the incurrence of such amount. ARTICLE III CONDITIONS PRECEDENT TO THE CLOSING DATE A. Closing Conditions. The obligation of each of the Banks to fund any Closing Disbursement under the Bank Facilities is subject to the following conditions precedent, each of which shall be satisfied on or before July 31, 1997 (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise). The occurrence of the Closing Date is subject to and contingent upon Agent Bank having received, in each case in form and substance reasonably satisfactory to Agent Bank, or in the case of an occurrence, action or event, the occurrence of, each of the following: Section 3.01. Credit Agreement. Executed counterparts of this Credit Agreement in sufficient duplicate originals for Borrowers and each of the Banks. Section 3.02. The Notes. a. The Revolving Credit Note duly executed by the Borrowers, payable to the order of Agent Bank, on behalf of the Lenders. b. The Swingline Note duly executed by the Borrowers, payable to the order of Swingline Lender. Section 3.03. Security Documentation. The Security Documentation duly executed by each applicable Borrowers or other party thereto, consisting of the following: With Respect to the CPI Hotel/Casino Facilities a. CPI Deed of Trust; b. CPI Financing Statements; c. CPI Assignment of Spaceleases, Contracts, Rents and Revenues; d. CPI Assignment of Permits, Licenses and Contracts; With Respect to the ACLVI Hotel/Casino Facility e. ACLVI Deed of Trust; f. ACLVI Financing Statements; g. ACLVI Assignment of Spaceleases, Contracts, Rents and Revenues; h. ACLVI Assignment of Permits, Licenses and Contracts; With Respect to the ACCBI Riverboat/Hotel Facilities i. ACCBI Deed of Trust; j. ACCBI Ship Mortgage; k. ACCBI Financing Statements; l. ACCBI Assignment of Permits, Licenses and Contracts; m. ACCBI Assignment of Spaceleases, Contracts, Rents and Revenues; n. ACCBI Hotel Attornment Agreement; o. ACCBI IDNR Attornment Agreement; p. Restated GECC Intercreditor Agreement (only required if the GECC Ship Note is not fully paid concurrently or substantially concurrently with the Closing Date); q. Restated Equipment Intercreditor Agreement (only required if the ACCBI Equipment Loan is not fully paid concurrently or substantially concurrently with the Closing Date); With Respect to the ACVI Casino Facility r. ACVI Casino Deed of Trust; s. ACVI Hotel Deed of Trust; t. ACVI Ship Mortgage; u. ACVI Casino Financing Statements; v. ACVI Hotel Financing Statements; w. ACVI Assignment of Permits, Licenses and Contracts; x. ACVI Assignment of Spaceleases, Contracts, Rents and Revenues; y. Brady/Lum Estoppel Certificate; z. Magnolia Estoppel Certificate; aa. Morrison Estoppel Certificate; bb. Trustmark Nondisturbance Agreement. Section 3.04. Other Loan Documents. The following Loan Documents duly executed by Borrowers and each other applicable party thereto consisting of the following: a. Environmental Certificate. b. Stock Pledge of all issued and outstanding stock of CPI, together with the delivery to Agent Bank, or into an escrow pending approval of the Nevada Gaming Authorities, of all stock certificates which are pledged thereunder; c. Stock Pledge of all issued and outstanding stock of ACLVI, together with the delivery to Agent Bank, or into an escrow pending approval of the Nevada Gaming Authorities, of all stock certificates which are pledged thereunder; d. Stock Pledge of all issued and outstanding stock of ACCBI, together with the delivery to Agent Bank, or into an escrow pending approval of the Iowa Gaming Authorities, if such approval is required, of all stock certificates which are pledged thereunder; e. Stock Pledge of all issued and outstanding stock of ACVI, together with the delivery to Agent Bank, or into an escrow pending approval of the Mississippi Gaming Authorities, if such approval is required, of all stock certificates which are pledged thereunder; and f. Trademark Security Agreement. Section 3.05. Articles of Incorporation, Bylaws, Corporate Resolutions, Certificates of Good Standing and Closing Certificate. On or before the Closing Date, Agent Bank shall have received from each of the Borrowers: (i) a Certificate of Good Standing issued by the Secretary of State of the applicable state of incorporation and dated within thirty (30) Banking Business Days of the Closing Date, (ii) a copy of the articles of incorporation and by-laws certified to be true and correct by a duly Authorized Officer of each respective Borrower, (iii) an original Certificate of Corporate Resolution and Certificate of Incumbency executed by the Secretary of each respective Borrower and attested to by its President, Vice President, or Treasurer authorizing Borrowers to enter into all documents and agreements to be executed by it pursuant to this Credit Agreement and further authorizing and empowering the officer or officers who will execute such documents and agreements with the authority and power to execute such documents and agreements on behalf of each respective Borrower, (iv) designation by corporate certificate ("Authorized Officer Certificate"), substantially in the form of the Authorized Officer Certificate marked "Exhibit I", affixed hereto and by this reference incorporated herein and made a part hereof, of the officers of each respective Borrower who are authorized to give Notices of Borrowing, Continuation/ Conversion Notices, Pricing Certificates, Availability Limit Certificates, Compliance Certificates, Notices of Swingline Advances, Construction Disbursement Requests and all other notices, requests, reports, consents, certifications and authorizations on behalf of each of the Borrowers and the Borrower Consolidation, each individually an "Authorized Officer" and collectively the "Authorized Officers", and (v) an original closing certificate ("Closing Certificate"), substantially in the form of the Closing Certificate marked "Exhibit J", affixed hereto and by this reference incorporated herein and made a part hereof, duly executed by an Authorized Officer of Borrowers. Section 3.06. Opinion of Counsel. One or more opinions of counsel to the Borrowers, dated as of the Closing Date and addressed to the Agent Bank on behalf of itself and each of the Banks, together with their respective successors and assigns, substantially in the form of the legal opinion marked "Exhibit M", affixed hereto and by this reference incorporated herein and made a part hereof. Section 3.07. Title Insurance Policies. As of the Closing Date, the Title Insurance Policies (or proforma commitment for the issuance thereof) consistent with the requirements of the Closing Instructions. Section 3.08. Survey. Subject to exceptions approved by Lenders prior to the Closing Date, a current boundary and location survey for the ACLVI Real Property delivered to Agent Bank no less than ten (10) Banking Business Days prior to the Closing Date, which must (a) be certified to Agent Bank and the Title Insurance Company, (b) show the ACLVI Real Property to be free of encroachments, overlaps, and other survey defects, (c) show the courses and distances of the lot lines for the ACLVI Real Property, (d) show that all existing improvements are located within said lot and building lines, and (e) show the location of all above and below ground easements, improvements, appurtenances, utilities, rights-of-way, water rights and ingress and egress, by reference to book and page numbers and/or filed map reference. On or before the Closing Date, all other survey requirements of Title Insurance Company for the issuance of the ACLVI Title Insurance Policy. Section 3.09. Payment of Taxes. Evidence satisfactory to Agent Bank that all past and current real and personal property taxes and assessments which are presently due and payable applicable to the Collateral Properties have been paid in full. Section 3.10. Insurance. Copies of declaration pages of each insurance policy, certified to be true and correct in all respects by an Authorized Officer of Borrowers, together with original binders evidencing Borrowers as the named insured, and original certificates of insurance, loss payee and mortgagee endorsements naming Agent Bank as mortgagee, loss payee and additional insured as required by the insurance provisions set forth in Section 5.09 of this Credit Agreement. Section 3.11. Payment of Fees and Existing Bank Loan and Occurrence of Senior Subordinated Notes Effective Date. Payment by Borrowers of that portion of the Upfront Fee and Agency Fee as provided in Sections 2.10(a) and 2.10(c). Payment in full of the Existing Bank Loan from the Closing Disbursement under the Credit Facility. As of the Closing Date, all Existing Bank Loan Security Documents and all Existing Intercompany Security Documents shall be fully released and reconveyed. The Senior Subordinated Notes Effective Date shall have occurred and Agent Bank shall have received a fully executed copy of the Indenture. Section 3.12. Reimbursement for Expenses and Fees. Reimbursement by Borrowers for all reasonable fees and out-of-pocket expenses incurred by Agent Bank in connection with the Bank Facilities, including, but not limited to, escrow charges, title insurance premiums, environmental examinations, recording fees, appraisal fees, reasonable attorney's fees of Henderson & Nelson and Iowa, Mississippi and maritime co-counsel retained by them and insurance consultant fees, and all other like fees and expenses remaining unpaid as of the Closing Date to the extent then due and payable on the Closing Date, provided that the amount then invoiced shall not thereafter preclude Borrowers' obligation to pay such costs and expenses relating to the closing of the Bank Facilities following the Closing Date or to reimburse Agent Bank for the payment thereof. Section 3.13. Schedules of Spaceleases and Equipment Leases and Contracts. The Schedules of Spaceleases (Schedules 4.18(A) through (D)) and Equipment Leases and Contracts (Schedule 4.19(A) through (D)) in each instance setting forth the name of the other party thereto, a brief description of each spacelease, equipment lease and contract and the commencement and ending date thereof. Section 3.14. Phase I Environmental Site Assessments. a. A Phase I Environmental Site Assessment or Assessments of the ACLVI Real Property prepared in conformance with the scope and limitations of ASTM Standard Designation E1527-93 and approved by Agent Bank. Any recommended action shall have been completed by Borrowers. b. Borrowers hereby confirm the representations contained in Sections 2.1 and 2.2 of the Environmental Certificate are true and correct in all respects. Section 3.15. Evidence of Right to Occupancy of Collateral Properties. A copy of the permanent certificate of occupancy issued by each applicable Governmental Authority, evidencing the right of the Borrower Consolidation to use and hold open for the use and occupancy of the public of the CPI Hotel/Casino Facilities, ACVI Casino Facility and ACCBI Riverboat/Hotel Facilities. Section 3.16. Gaming Permits. Copies of those Gaming Permits issued by each applicable Gaming Authority evidencing the right of the Borrower Consolidation to conduct gaming activities and games of chance at the CPI Hotel/Casino Facility, ACVI Casino Facility and the ACCBI Riverboat/Hotel Facility. Section 3.17. Financial Statements. Audited financial statements of the Borrower Consolidation for the most recently ended Fiscal Year, to the extent the same have been prepared and are available. Section 3.18. Schedule of all Significant Litigation. A Schedule of Significant Litigation (Schedule 3.18) involving any member of the Borrower Consolidation, in each instance setting forth the names of the other parties thereto, a brief description of such litigation, whether or not such litigation is covered by insurance and, if so, whether the defense thereof and liability therefor has been accepted by the applicable insurance company indicating whether such acceptance of such defenses with or without a reservation of rights, the commencement date of such litigation and the amount sought to be recovered by the adverse parties thereto or the amount which is otherwise in controversy. Section 3.19. No Injunction or Other Litigation. No law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall, and no litigation shall be pending or threatened which in the reasonable judgment of the Agent Bank would or would reasonably be expected to, enjoin, prohibit, limit or restrain the execution and delivery of this Credit Agreement or the making of any advance under the Bank Facilities. Section 3.20. Additional Documents and Statements. As of the Closing Date such additional documents, affidavits, certificates and opinions as Requisite Lenders may reasonably require to insure compliance with this Credit Agreement. The statements set forth in Section 3.25 shall be true and correct. Section 3.21. Availability Limit Certificates. An Availability Limit Certificate executed by an Authorized Officer and prepared with reference to the Borrower Consolidation as of the Fiscal Quarter ended March 31, 1997. Section 3.22. Subsidiary Stock. Original stock certificates of CPI, ACLVI, ACVI and ACCBI shall be delivered to Agent Bank on behalf of Lenders or into an escrow pending approval of the applicable Gaming Authorities, as may be required. Section 3.23. Gem Settlement Agreement. Copies of the Gem Settlement Agreement and, if issued, the Gem Settlement Notes in the form approved by Agent Bank and authorized by the Nevada Gaming Authorities. B. Conditions Precedent to all Borrowings. The obligation of each Lender and Agent Bank to make any Borrowing requested to be made on any Funding Date, except Borrowings made upon the demand of Agent Bank for the purpose of funding repayment of Swingline Outstandings, is subject to the occurrence of each of the following conditions precedent as of such Funding Date: Section 3.24. Notice of Borrowing. With respect to any Borrowing (other than in connection with a Construction Disbursement), the Agent Bank shall have received in accordance with Section 2.03 on or before such Funding Date an original and duly executed Notice of Borrowing or facsimile copy thereof, to be promptly followed by an original. Borrowings requested to be made under the Construction Loan Subfacility shall be made in accordance with the terms and procedures set forth in Section 2.09 and Article IX. Section 3.25. Certain Statements. On the Closing Date and as of the Funding Date the following statements shall be true and correct: a. The representations and warranties with respect to the Borrowers contained in Article IV hereof (other than representations and warranties which expressly speak only as of a different date which shall be true and correct as of such date) are true and correct on and as of the Funding Date and as of the Closing Date in all material respects as though made on and as of that date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by this Credit Agreement or by any other Loan Document, or which is otherwise consented to by Requisite Lenders; b. The representations and certifications contained in the Environmental Certificate are true and correct in all material respects (other than representations and warranties which expressly speak only as of a different date which shall be true and correct as of such date); c. Since the date of the most recent financial statements referred to in Section 3.17 and 5.08(b), no Material Adverse Change shall have occurred; and d. No event has occurred or as a result of any Borrowings contemplated hereby would occur and is continuing, or would result from the making thereof, which constitutes a Default or Event of Default hereunder. Section 3.26. Gaming Permits. The Borrower Consolidation shall have all Gaming Permits material to or required for the conduct of its gaming businesses and the conduct of games of chance at the CPI Hotel/Casino Facility, the ACVI Casino Facility, the ACCBI Riverboat/Hotel Facilities and, on and after the Completion Date, the ACLVI Hotel/Casino Facility and such Gaming Permits shall not then be suspended, enjoined or prohibited (for any length of time) by any Gaming Authority or any other Governmental Authority. C. Conditions Precedent to Initial Construction Disbursement. In addition to the requirements set forth in Sections 2.01(d), 2.09 and Article IX, the obligation of each Lender and Agent Bank to advance the Initial Construction Disbursement is subject to Agent Bank having received, in each case in form and substance reasonably satisfactory to Agent Bank, Lenders and Lenders' Consultant, each of the following: Section 3.27. Construction Schedule, Structural Plans and Specifications and Construction Budgets. The Construction Schedule, the Structural Plans and Specifications, General Contractor's Budget, Borrower Construction Budget and the Project Development Budget, each approved by Lenders' Consultant and Agent Bank as substantially final and complete and acceptable for the Initial Construction Disbursement. Section 3.28. Construction Agreements. The Existing General Contractor's Agreement and New General Contractor's Agreement, each duly executed by the General Contractor and ACLVI. Section 3.29. Architect's Contract and Interior Designer's Contract. The Architect's Contract duly executed by ACLVI and the Architect. The Interior Designer's Contract duly executed by ACLVI and the Interior Designer. Section 3.30. Major Subcontractor's Construction Contracts. A copy of all Major Subcontractor's construction contracts then executed by and between ACLVI and the Major Subcontractors or by and between the General Contractor and the Major Subcontractors. Section 3.31. Evidence of Availability of Utilities for ACLVI Project. Evidence of the availability of water, sewer, electric, gas and telephone service to the ACLVI Project adequate for the use and occupation of the ACLVI Project as the ACLVI Hotel/Casino Facility. Section 3.32. Regulatory Approvals, Permits, Consents, Etc. Copies of all material permits, approvals or consents by all Governmental Authorities permitting the construction of the ACLVI Project in accordance with the Plans and Specifications or evidence that same can be obtained, together with all supporting documents and materials reasonably requested by Agent Bank. Section 3.33. Assignment of Architect's Contract. The Assignment of Architect's Contract duly executed by ACLVI and Architect and the Architect's Consent duly executed by Architect. Section 3.34. Assignment of General Contractor's Agreement. The Assignment of Existing General Contractor's Agreement and New General Contractor's Agreement duly executed by ACLVI and General Contractor and the Existing General Contractor's Consent and New General Contractor's Consent duly executed by General Contractor. Section 3.35. Assignment of Interior Designer's Contract. The Assignment of Interior Designer's Contract duly executed by ACLVI an the Interior Designer and the Interior Designer's Consent duly executed by the Interior Designer. Section 3.36. Major Subcontractor Assignments. A Major Subcontractor Agreement and Major Subcontractor Consent for each Assigned Major Subcontract which has been executed as of the Initial Construction Disbursement Date. Section 3.37. Soil Test Report. A soil test report reasonably acceptable to Agent Bank, indicating the suitability of the ACLVI Real Property for the construction of the ACLVI Project thereon. D. Conditions Precedent to Option Disbursement. In addition to the requirements set forth in Sections 2.01(d), 2.09 and Article IX, the obligation of each Lender and Agent Bank to advance an Option Disbursement is subject to Agent Bank having received, in each case in form and substance reasonably satisfactory to Agent Bank, Lenders and Lenders' Consultant, each of the following: Section 3.38. Legal Description and Parcel Map. A complete legal description of that portion of the Option Property to be acquired together with a true, complete and correct copy of the parcel map recorded in the Official Records of Clark County establishing such portion as a separate legal parcel under Chapter 278 of the Nevada Revised Statutes. Section 3.39. Environmental Site Assessment. a. A Phase I Environmental Site Assessment of the portion of the Option Property to be acquired by ACLVI, prepared in conformance with the scope and limitations of ASTM Standard Designation E1527-93 and approved by Agent Bank. Any recommended action shall have been completed by ACLVI. b. ACLVI shall confirm in writing that the representations contained in Sections 2.1 and 2.2 of the Environmental Certificate are true and correct in all respects as to the property to be acquired. Section 3.40. Title Policy or Endorsement. ACLVI shall cause, at its expense, concurrently with the funding of such Option Disbursement, the Title Insurance Company to either: (a) issue a title insurance policy in favor of Agent Bank insuring the ACLVI Deed of Trust as a first priority lien encumbering the portion of the Option Property acquired with such Option Disbursement, subject only to ACLVI Permitted Encumbrances, or (ii) issue an endorsement to the ACLVI Title Insurance Policy insuring the ACLVI Deed of Trust as a first priority lien encumbering the portion of the Option Property acquired with such Option Disbursement, subject only to ACLVI Permitted Encumbrances. Section 3.41. Certification of Construction Completion Costs. ACLVI shall certify to the reasonable satisfaction of Agent Bank and Lenders' Consultant that the Available Borrowings, after giving effect to the advance of the Option Disbursement, will be equal to or in excess of the Construction Completion Costs as of the requested Funding Date. ARTICLE IV REPRESENTATIONS AND WARRANTIES To induce Banks to enter into this Credit Agreement, Borrowers make the following representations and warranties: Section 4.01. Organization; Power and Author ization. ACI, CPI and ACLVI are each a corporation duly organized and validly existing under the laws of the State of Nevada. ACVI is a corporation duly organized and validly existing under the laws of the State of Mississippi. ACCBI is a corporation duly organized and validly existing under the laws of the State of Iowa. Each Borrower (i) has all requisite corporate power, authority and legal right to execute and deliver each document, agreement or certificate to which it is a party or by which it is bound in connection with the Bank Facilities, to consummate the transactions and perform its obligations hereunder and thereunder, and, except with respect to ACLVI and the ACLVI Hotel/Casino Facility prior to the Completion Date, to own its properties and assets and to carry on and conduct its business as presently conducted or proposed to be conducted, and (ii) has taken all necessary corporate action to authorize the execution, delivery and performance of this Credit Agreement and the other Loan Documents to which it is a party or by which it is bound and to consummate the transactions contemplated hereunder and thereunder. Section 4.02. No Conflict With, Violation of or Default Under Laws or Other Agreements. Neither the execution and delivery of this Credit Agreement, the Revolving Credit Note, the Swingline Note, or any other Loan Document, or any other agreement, certificate or instrument to which any Borrower is a party or by which it is bound in connection with the Bank Facilities, nor the consummation of the transactions contemplated hereunder or thereunder, nor the compliance with or performance of the terms and conditions herein or therein, is prevented by, limited by, conflicts in any material respect with, or will result in a material breach or violation of, or a material default (with due notice or lapse of time or both) under, or the creation or imposition of any lien, charge, or encumbrance of any nature whatsoever upon any of their respective property or assets by virtue of, the terms, conditions or provisions of (a) any indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument of whatever nature to which any Borrower is bound, or (b) any provision of any existing law, rule, regulation, order, writ, injunction or decree of any court or Governmental Authority to which Borrowers are subject. Section 4.03. Litigation. Except as disclosed on the Schedule of Significant Litigation delivered in connection with Section 3.18, to the best knowledge of Borrowers, after due inquiry and investigation, there is no action, suit, proceeding, inquiry, hearing or investigation pending or threatened, in any court of law or in equity, or before any Governmental Authority, which reasonably would be expected to (a) result in any Material Adverse Event in the Casino Operations or in the construction and development of the ACLVI Facilities or in its business, financial condition, properties or operations, (b) materially adversely affect the Borrowers' ability to perform their respective obligations under the Credit Agreement and the other Loan Documents, or (c) materially adversely affect the validity or enforceability of this Credit Agreement and the other Loan Documents. To the best knowledge of Borrowers, after due inquiry and investigation, no Borrower is in violation of or default with respect to any order, writ, injunction, decree or demand of any Governmental Authority. Section 4.04. Agreements Legal, Binding, Valid and Enforceable. This Credit Agreement, the Revolving Credit Note, the Swingline Note, the Security Documentation and all other Loan Documents, when executed and delivered by Borrowers in connection with the Bank Facilities will constitute legal, valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws of general application relating to or affecting the enforcement of creditors' rights and the exercise of judicial discretion in accordance with general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). Section 4.05. Information and Financial Data Accurate; Financial Statements; No Adverse Event. All information and financial and other data previously furnished in writing by Borrowers in connection with the Bank Facilities was true, correct and complete in all material respects as of the date furnished (unless subsequently corrected prior to the date hereof), and there has been no Material Adverse Event with respect thereto to the date of this Credit Agreement since the dates thereof. No information has been omitted which would make the information previously furnished in such financial statements to Banks misleading or incorrect in any material respect to the date of this Credit Agreement. Any and all financial statements heretofore furnished to Banks by Borrowers: (a) present fairly the financial position of Borrowers as of their respective dates and the results of operations and changes in financial position for the periods to which they apply, and (b) have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved. Since the date of the financial statements referred to in this Section 4.05, there has been no Material Adverse Event in the financial condition, assets, liabilities, business or operations of Borrowers. Section 4.06. Governmental Approvals. All timely consents, approvals, orders or authorizations of, or registrations, declarations, notices or filings with any Governmental Authority which are required in connection with the valid execution and delivery of this Credit Agreement and the other Loan Documents by Borrowers and the carry-out or performance of any of the transactions required or contemplated hereunder, or thereunder, by Borrowers, have been obtained or accomplished and are in full force and effect, or can be obtained or accomplished by Borrowers. All timely consents, approvals, orders or authorizations of, or registrations, declarations, notices or filings with any Governmental Authority which are required by Borrowers in connection with the use and operation of the CPI Hotel/Casino Facility, ACVI Casino Facility and ACCBI Riverboat/Hotel Facility have been obtained or accomplished and are in full force and effect. Section 4.07. Payment of Taxes. Borrowers have duly filed or caused to be filed all federal, state and local tax reports and returns which are required to be filed by them and have paid or made provisions for the payment of, all material taxes, assessments, fees and other governmental charges which have or may have become due pursuant to said returns or otherwise pursuant to any assessment received by Borrowers except such taxes, assessments, fees or other governmental charges, if any, as are being contested in good faith by Borrowers by appropriate proceedings and for which Borrowers have maintained adequate reserves for the payment thereof in accordance with GAAP. Section 4.08. Title to Properties. Borrowers shall have good and marketable title to the Collateral Properties (other than the ACVI Leased Parcels and the IDNR Parcel) as of the Closing Date and at all times during the term of the Credit Facility. ACVI shall have a good and marketable leasehold interest in the ACVI Leased Parcels, and ACCBI shall have a good and marketable right to use the IDNR Parcel, all as of the Closing Date and at all times during the term of the Credit Facility. Except with respect to the ACVI Leased Parcels and the IDNR Parcel, each of the Borrowers has good and marketable title to: (a) all of its properties and assets reflected in the most recent financial statements referred to in Section 4.05 hereof as owned by them (except those properties and assets disposed of since the date of said financial statements in the ordinary course of business or those properties and assets which are no longer used or useful in the conduct of its businesses), including, but not limited to, Borrowers' interest in patents, trademarks, tradenames, servicemarks, and licenses relating to or pertaining to the Collateral Properties or the Casino Facilities, and (b) all properties and assets acquired by them subsequent to the date of the most recent financial statements referred to in Section 4.05 hereof. All such properties and assets are not subject to any liens, encumbrances or restrictions except Permitted Encumbrances. All roads, easements and rights of way necessary for the full utilization of the Collateral Properties have been completed and/or obtained. Section 4.09. No Untrue Statements. All statements, representations and warranties made by Borrowers in this Credit Agreement, any other Loan Document and any other agreement, document, certificate or instrument previously furnished or to be furnished by Borrowers to Banks pursuant to the provisions of this Credit Agreement, at the time they were made and on and as of the Closing Date: (a) are and shall be true, correct and complete in all material respects, (b) do not and shall not contain any untrue statement of a material fact, and (c) do not and shall not omit to state a material fact, the absence of which makes the information contained herein or therein materially misleading or incomplete. Borrowers understand that all such statements, representations and warranties shall be deemed to have been relied upon by Banks as a material inducement to establish the Bank Facilities. Section 4.10. Brokerage Commissions. No person is entitled to receive any brokerage commission, finder's fee or similar fee or payment in connection with the extensions of credit contemplated by this Credit Agreement. No brokerage or other fee, commission or compensation is to be paid by Banks with respect to the extensions of credit contemplated hereby and Borrowers agree to indemnify Banks against any such claims for brokerage fees or commissions and to pay all expenses including, without limitation, reasonable attorney's fees incurred by Banks in connection with the defense of any action or proceeding brought to collect any such brokerage fees or commissions. Section 4.11. No Defaults. Borrowers are not in violation of any applicable law and/or regulations, the violation of which materially and adversely affects the business, financial condition or operations of the Collateral Properties or the Casino Operations. Borrowers are not in violation or default (nor is there any waiver in effect which, if not in effect, would result in a violation or default) in any material and adverse respect under any indenture, evidence of indebtedness, loan or financing agreement or other agreement or instrument of whatever nature to which they are a party or by which they are bound (except for any defaults previously brought to Banks' attention in writing, for which Borrowers have received a waiver from Requisite Lenders), a default under which would reasonably be expected to have a Material Adverse Effect. Section 4.12. Employee Retirement Income Security Act of 1974. No Reportable Event has occurred and is continuing with respect to any Pension Plan under ERISA, that gives rise to liabilities that would constitute a Material Adverse Effect. Section 4.13. Availability of Utility Services. All utility services and facilities necessary for the Casino Facilities and the Collateral Properties including, without limitation, electrical, water, gas and sewage services and facilities are available at the boundaries of the Collateral Properties. Section 4.14. Policies of Insurance. As of the Closing Date, each of the copies of the declaration pages, original binders and certificates of insurance evidencing the Policies of Insurance relating to the Casino Facilities and the ACLVI Project delivered to Agent Bank by Borrowers (i) is a true, correct and complete copy of the respective original thereof as in effect on the date hereof, and no amendments or modifications of any of said documents or instruments not included in such copies have been made, and (ii) has not been terminated and is in full force and effect. Borrowers are not in default in the observance or performance of their respective obligations under said documents and instruments, and Borrowers have done all things required to be done as of the Closing Date to keep unimpaired their respective rights thereunder. Section 4.15. Spaceleases. Schedules of all executed Spaceleases pertaining to the Casino Facilities, or any portion thereof, in existence as of the Closing Date, are set forth on Schedules 4.15(A) through (D) attached hereto. Section 4.16. Equipment Leases and Contracts. Schedules of all executed Equipment Leases and Contracts pertaining to the Casino Facilities or any portion thereof, in existence as of the Closing Date, are set forth on Schedules 4.16 (A) through (D) attached hereto. Section 4.17. Gaming Permits and Approvals. All Gaming Permits required to be held by Borrowers are current and in good standing and Borrowers presently hold all Gaming Permits necessary for the continued operation of the CPI Hotel/Casino Facility, ACVI Casino Facility and ACCBI Riverboat/Hotel Facility. Section 4.18. Environmental Certificate. The representations and certifications contained in the Environmental Certificate are true and correct in all material respects. Section 4.19. ACVI Land Leases. The copies of each of the ACVI Land Leases delivered to Agent Bank by Borrowers is a true, correct and complete copy of the original thereof, as in effect on the date hereof, and no amendments or modifications thereto which are not included in such copy have been made. None of the ACVI Land Leases have been terminated and each of the ACVI Land Leases is in full force and effect. ACVI is not in default in the observance or performance of its obligations under any of the ACVI Land Leases, except and to the extent, such default reasonably would not be expected to have a Material Adverse Effect. ACVI has done all things required to be done as of the date of this Credit Agreement to keep unimpaired its rights under the ACVI Land Leases. Section 4.20. ACCBI Land Use Agreement. The copy of the ACCBI Land Use Agreement delivered to Agent Bank by Borrowers is a true, correct and complete copy of the original thereof, as in effect on the date hereof, and no amendments or modifications thereto which are not included in such copy have been made. The ACCBI Land Use Agreement has not been terminated and is in full force and effect. The interest of Koch under the ACCBI Land Use Agreement has been duly assigned to ACCBI and ACCBI is not in default in the observance or performance of its obligations under the ACCBI Land Use Agreement, except and to the extent, such default reasonably would not be expected to have a Material Adverse Effect. ACCBI has done all things required to be done as of the date of this Credit Agreement to keep unimpaired its rights under the ACCBI Land Use Agreement. Section 4.21. Investment Company Act. Each Borrower is neither an "investment company" nor a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended. Section 4.22. Public Utility Holding Company Act. Each Borrower is neither a "holding company," nor a "subsidiary company" of a "holding company," nor an "affiliate" of a "holding company" nor of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, as amended. Section 4.23. Labor Relations. There is no strike or work stoppage in existence, or to the best knowledge of Borrowers threatened, involving any Borrower or the Casino Facilities or the ACLVI Project that reasonably would be expected to have a Material Adverse Effect. Section 4.24. Trademarks, Patents, Licenses, Franchises, Formulas and Copyrights. Except as disclosed in Schedule 4.24, each of the Borrowers owns all the patents, trademarks, permits, service marks, trade names, copyrights, licenses, franchises and formulas, or has a valid license or sublicense of rights with respect to the foregoing, and has obtained assignments of all leases and other rights of whatever nature, necessary for the present conduct of its respective businesses, without any known conflict with the rights of others which, or the failure to obtain which, as the case may be, could reasonably be expected to result in a Material Adverse Effect on the business, operations, property, assets or condition (financial or otherwise) of Borrowers. Each of the patents, trademarks, servicemarks, tradenames and copyrights owned by Borrowers which is registered with any Governmental Authority is set forth on Schedule 4.24, attached hereto. Section 4.25. Contingent Liabilities. As of the Closing Date, Borrowers have incurred no material Contingent Liabilities (any Contingent Liability in excess of One Million Dollars ($1,000,000.00) being deemed material) other than those described on Schedule 4.25. Section 4.26. Subsidiaries. As of the Closing Date, no member of the Borrower Consolidation has any Subsidiaries that are not members of the Borrower Consolidation, other than the ACVI Hotel Subsidiary, Ameristar Casino Lawrenceberg, an Indiana corporation, Nevada AG Air, Ltd., a Nevada limited liability company, Kid's Quest of Council Bluffs, LLC, an Iowa limited liability company and AC Food Services, Inc., a Nevada corporation. Section 4.27. Construction Permits. All permits and authorizations by all applicable Governmental Authorities for the construction of the ACLVI Project have been issued in favor of and received by ACLVI and a true and correct copy thereof delivered to Lender. Section 4.28. The ACLVI Project. The ACLVI Project will be carried out and undertaken by ACLVI in complete compliance with all applicable zoning, environmental protection, use and building codes, laws, rules, regulations and ordinances, including, without limitation, the Americans with Disabilities Act. The General Contractor Budget and the Borrower Construction Budget, as aggregated in the Project Development Budget, set forth all Construction Completion Costs as of the Closing Date. Section 4.29. General Contractor Agreement, Architect Contract and Interior Designer's Contract. The copies of each of the General Contractor Agreement, Architect's Contract and Interior Designer's Contract relating to the ACLVI Project delivered to Lenders by Borrowers is a true, correct and complete copy of the respective original thereof as in effect on the date hereof, and no amendments or modifications of any of said documents or instruments not included in such copies have been made. Each of the General Contractor Agreement, the Architect's Contract and Interior Designer's Contract has not been terminated and is in full force and effect. ACLVI is not in default in the observance or performance of its obligations under said documents and instruments, except and to the extent, such default reasonably would not be expected to have a Material Adverse Effect. ACLVI has done all things required to be done as of the date of this Credit Agreement to keep unimpaired its rights thereunder. ARTICLE V GENERAL COVENANTS OF BORROWERS To induce the Banks to enter into this Credit Agreement, Borrowers covenant to Banks as follows: A. General Covenants. Section 5.01. FF&E. The Borrower Consolidation shall furnish, fixture and equip the Casino Facilities with FF&E it reasonably deems appropriate for the operation of the Casino Facilities. All FF&E that is purchased and installed in the Casino Facilities shall be purchased free and clear of any liens, encumbrances or claims, other than Permitted Encumbrances. If Borrowers should sell, transfer, convey or otherwise dispose of any FF&E and not replace such FF&E with purchased items of equivalent value and utility or replace said FF&E with leased FF&E of equivalent value and utility, within the permissible leasing and purchase agreement limitation set forth herein, to the extent such non-replaced FF&E exceeds a cumulative aggregate value of One Hundred Thousand Dollars ($100,000.00) as to any one of the Collateral Properties during the term of the Credit Facility, Borrowers shall be required to immediately, permanently reduce the Maximum Permitted Balance of the Credit Facility by the amount of the Capital Proceeds of the FF&E so disposed of in excess of such One Hundred Thousand Dollars ($100,000.00), subject, however, to the right of Agent Bank to verify to its reasonable satisfaction the amount of said Capital Proceeds; in the event Agent Bank and Borrowers do not agree as to the value of the FF&E disposed of and the amount of the Capital Proceeds, then Borrowers, at their sole cost and expense, shall obtain a written appraisal of the FF&E disposed of, in excess of such One Hundred Thousand Dollars ($100,000.00) from an appraiser reasonably satisfactory to Agent Bank, setting forth said values and amounts, and Lenders agree to accept the results of said appraisal. The Maximum Permitted Balance shall immediately be reduced without duplication by the amount of such appraisal. Section 5.02. Permits; Licenses and Legal Requirements. Borrowers shall comply in all material respects with and keep in full force and effect, as and when required, all Gaming Permits and all material permits, licenses and approvals obtained from any Governmental Authorities which are required for the operation and use of the Collateral Properties as the Casino Facilities. Borrowers shall comply in all material respects with all applicable material existing and future laws, rules, regulations, orders, ordinances and requirements of all Governmental Authorities, and with all recorded restrictions affecting the Collateral Properties. Section 5.03. Protection Against Lien Claims. Borrowers shall promptly pay and discharge or cause to be paid and discharged all claims and liens for labor done and materials and services supplied and furnished in connection with the ACLVI Project and the Casino Facilities in accordance with this Section 5.03, except such claims and liens, if any, as: (a) are being contested in good faith by Borrowers by appropriate proceedings and for which Borrowers have maintained adequate reserves for the payment thereof in accordance with GAAP, and (b) are junior in priority to the applicable Deed of Trust or the Title Insurance Company has insured the applicable Deed of Trust with priority over such claims and liens, except with respect to the ACCBI Permitted Encumbrances which are shown as exceptions on Schedule B of the ACCBI Title Insurance Policy. If any mechanic's lien or materialman's lien shall be recorded, filed or suffered to exist against the Collateral Properties or any interest therein by reason of work, labor, services or materials supplied, furnished or claimed to have been supplied and furnished in connection with the ACLVI Project or the Casino Facilities, upon Borrowers receipt of written notice from Agent Bank demanding the release and discharge of such lien, said lien or claim shall be paid, released and discharged of record within one hundred eighty (180) days following its receipt of such notice with respect to liens and/or claims against the ACCBI Riverboat/Hotel Facilities and within sixty (60) days following its receipt of such notice with respect to any of the other Casino Facilities. Section 5.04. Full Payment of Existing Bank Loan and WFB Loan. On or before the Closing Date, Borrowers shall pay in full or cause to be fully paid all sums of principal and interest owing under the Existing Bank Loan and WFB Loan and shall cause all Existing Bank Loan Security Documents and Existing Intercompany Security Documents to be fully released, discharged and reconveyed. Section 5.05. No Change in Character of Business or Location of Chief Executive Office. At all times throughout the term of the Credit Facility (a) the chief executive office of Borrowers shall be located at 3773 Howard Hughes Parkway, Las Vegas, Nevada 89109; provided, however, Borrowers shall be entitled to move their chief executive office to another location within the State of Nevada upon no less than thirty (30) days prior written notice to Agent Bank, (b) the Casino Facilities shall be operated by the Borrower Consolidation, and (c) Borrowers shall not effect a material change in the nature and character of the business at the Casino Facilities as presently conducted and as presently contemplated and disclosed to Banks. Section 5.06. Preservation and Maintenance of Properties and Assets. At all times throughout the term of the Credit Facility, (a) the Borrower Consolidation shall operate, maintain and preserve all rights, privileges, franchises, licenses, Gaming Permits and other properties and assets necessary to conduct its businesses and the Casino Facilities, in accordance with all applicable governmental laws, ordinances, approvals, rules and regulations and requirements, including, but not limited to, zoning, sanitary, pollution, building, environmental and safety laws and ordinances, rules and regulations promulgated thereunder, and (b) Borrowers shall not consolidate with, remove, demolish, materially alter, discontinue the use of, sell, transfer, assign, hypothecate or otherwise dispose of to any Person, any part of its properties and assets necessary for the continuance of its business, as presently conducted and as presently contemplated, other than in the normal course of business, alterations or modifications as are reasonably expected to increase the value of the Collateral, or as otherwise permitted pursuant to this Credit Agreement. Furthermore, in the event any Borrower, or any Affiliate and/or Related Entity thereof, shall acquire any other real property or rights to the use of real property which is: (a) adjacent to any of the Collateral Properties and used in a material manner in connection with the use and/or operation at the Collateral Properties, the Casino Facilities, or any of them, or (b) if not so adjacent, necessary and required for the use and operation of such Collateral Property, Casino Facilities, or any of them, Borrowers shall concurrently with the acquisition of such real property or the rights to the use of such real property, execute or cause the execution of such documents as may be necessary to add such real property or rights to the use of real property as Collateral under the Credit Facility. Section 5.07. Repair of Properties and Assets. At all times throughout the term of the Credit Facility, Borrowers shall, at their own cost and expense, (a) maintain, preserve and keep in a manner consistent with hotel and gaming casino operating practices, as the case may be, applicable to hotel/casino operations operating in the jurisdictions in which such properties are located, its assets and properties, including, but not limited to, the Collateral Properties and all FF&E owned or leased by Borrowers in good and substantial repair, working order and condition, ordinary wear and tear excepted, (b) from time to time, make or cause to be made, all necessary and proper repairs, replacements, renewals, improvements and betterments thereto, and (c) from time to time, make such substitutions, additions, modifications and improvements as may be necessary and as shall not impair the structural integrity, operating efficiency and economic value of said assets and properties. All alterations, replacements, renewals, or additions made pursuant to this Section 5.07 shall become and constitute a part of said assets and property and subject, inter alia, to the provisions of Section 5.01 and subject to the lien of the Loan Documents. Section 5.08. Financial Statements; Reports; Certificates and Books and Records. Until Bank Facility Termination, Borrowers shall, unless the Agent Bank (with the written approval of the Requisite Lenders) otherwise consents, at Borrowers' sole expense, deliver to the Agent Bank and each of the Lenders a full and complete copy of each of the following and shall comply with each of the following financial requirements: a. As soon as practicable, and in any event within forty-five (45) days after the end of each Fiscal Quarter (including the fourth (4th) Fiscal Quarter in any Fiscal Year), the consolidated and consolidating balance sheet, income statement, operating statement setting forth average daily room rate, hotel occupancy rate, win per slot and win per table game, patron admission counts at the Casino Facilities to the extent available and statement of retained earnings and cash flows (in each case reconciled with year end audited statements and compared to budget and prior year period) of the Borrower Consolidation as at the end of such Fiscal Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, all in reasonable detail. Such financial statements shall be certified by an Authorized Officer of the Borrower Consolidation as fairly presenting the financial condition, results of operations and cash flows of the Borrower Consolidation in accordance with GAAP (other than footnote disclosures) as at such date and for such periods, subject only to normal year-end accruals and audit adjustments; b. As soon as practicable, and in any event within forty-five (45) days after the end of each Fiscal Quarter (including the fourth (4th) Fiscal Quarter in any Fiscal Year), a pricing certificate in the form marked "Exhibit G", affixed hereto and by this reference incorporated herein and made a part hereof (the "Pricing Certificate") setting forth a preliminary calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of the Borrower Consolidation for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof; provided, however, that in the event that Borrowers do not deliver a Pricing Certificate when due, then until (but only until) such Pricing Certificate is delivered as provided herein, the Leverage Ratio shall be deemed, for the purpose of determining the Applicable Margin, to be greater than 4.0 to 1.0 and the Applicable Margin determined with respect thereto. c. As soon as practicable, and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated and consolidating balance sheet, income statement, statement of retained earnings and cash flows (reconciled with year end audited statements) of the Borrower Consolidation as at the end of such Fiscal year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP and shall be accompanied by a report of independent public accountants of recognized standing selected by ACI and reasonably satisfactory to the Agent Bank (it being understood that any "Big 6" accounting firm shall be automatically deemed satisfactory to the Agent Bank), which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to be adverse to the interests of the Banks. Such accountants' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed the Financial Covenants as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.01 through 6.07, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by the Borrower Consolidation in the manner prescribed by this Credit Agreement. Such financial statements shall be certified by an Authorized Officer of the Borrower Consolidation in the same manner as required with respect to financial statements delivered pursuant to Section 5.08(a); d. As soon as practicable, and in any event no later than fifteen (15) days prior to the commencement of each Fiscal Year, a budget (including a Capital Expenditure budget) and projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next four (4) succeeding Fiscal Years, including for the first such Fiscal Year, projected consolidated and consolidating balance sheets, statements of operations and statements of cash flow and, for the second (2nd) and third (3rd) such Fiscal Years, projected consolidated and consolidating condensed balance sheets and statements of operations and cash flows, of the Borrower Consolidation, all in reasonable detail; e. Concurrently with the financial statements and reports required pursuant to Sections 5.08(a) and 5.08(c), Compliance Certificate signed by an Authorized Officer; f. As soon as practicable, and in any event within forty-five (45) days after the end of each Fiscal Quarter (including the fourth (4th) Fiscal Quarter in any Fiscal Year) an Availability Limit Certificate in the form marked "Exhibit H", affixed hereto and by this reference incorporated herein and made a part hereof (the "Availability Limit Certificate") setting forth the calculation of EBITDA as of the last day of such Fiscal Quarter, together with the immediately three (3) preceding Fiscal Quarters on a four (4) Fiscal Quarter basis, and providing reasonable detail as to the calculation thereof and setting forth the Availability Limit as of the Availability Determination Date as a multiple of three and one-quarter (3.25) times (x) the aggregate EBITDA for such four (4) Fiscal Quarters; and g. Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication that shall have been sent to the stockholders of ACI, and copies of all annual, regular, periodic and special reports (including, without limitation, each 10Q and 10K report) and registration statements which ACI shall have filed or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Banks pursuant to other provisions of this Section 5.08. h. Until Bank Facility Termination, Borrowers, and each of them, shall keep and maintain complete and accurate books and records in accordance with GAAP, consistently applied. Borrowers, and each of them, shall permit Banks and any authorized representatives of Banks to have reasonable access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Borrowers at all reasonable times upon the giving of reasonable notice of such intent. In addition: (i) in the event of the occurrence of any Default or Event of Default, or (ii) in the event any Material Adverse Change occurs, Borrowers shall promptly, and in any event within three (3) days after actual knowledge thereof, notify Agent Bank in writing of such occurrence. i. Until Bank Facility Termination, Borrowers, and each of them, shall furnish to Agent Bank, with sufficient copies for distribution to each of the Banks, any financial information or other information bearing on the financial status of the Borrowers, or any of them, which is reasonably requested by Agent Bank or Requisite Lenders. Section 5.09. Insurance. Until Bank Facility Termination, Borrowers shall obtain, or cause to be obtained, and shall maintain or cause to be maintained with respect to the Collateral, including without limitation, the Vessels, at their own cost and expense, and shall deposit with Agent Bank on or before the Closing Date: a. Property Insurance. Borrowers shall maintain a special causes of loss (ISO form or equivalent), perils policy covering the buildings and improvements, and any other permanent structures for one hundred percent (100%) of the replacement cost. Borrowers shall maintain a Ten Million Dollar ($10,000,000.00) limit of coverage for the perils of flood and earthquake covering the Collateral. Upon the request of Agent Bank, replacement cost for insurance purposes will be established by an independent appraiser mutually selected by Borrowers and Agent Bank. The policy will include Agreed Amount (waiving co-insurance), replacement cost valuation and building ordinance endorsements. The policy will include a standard mortgagee clause (ISO form or equivalent) and provide that all losses in excess of Five Hundred Thousand Dollars ($500,000.00) be adjusted with the Agent Bank. The Borrowers waive any and all rights of subrogation against Banks resulting from losses to property. b. Personal Property (including machinery, equipment, furniture, fixtures, stock). Borrowers shall maintain a special causes of loss perils "All Risk" property coverage for all personal property owned, leased or for which Borrowers are legally liable. The coverage will include a lenders' loss payable endorsement in favor of Agent Bank. The policy providing real property and personal property coverages, as specified in 5.09(a) and (b) hereinabove, may include a deductible of no more than One Hundred Thousand Dollars ($100,000.00) for any single occurrence. Flood and earthquake deductibles can be no more than Two Hundred Fifty Thousand Dollars ($250,000.00), if a separate deductible applies. c. Business Interruption/Extra Expense. Borrowers shall maintain combined Business Interruption/Extra Expense coverage with a limit representing no less than Eighty percent (80%) of the projected annual net profit plus continuing expenses (including debt service) for the Casino Facilities with respect to all land-based facilities. Such coverage shall include an extensions for off premises power losses at One Million Dollars ($1,000,000.00) and extended period of indemnity of sixty (60) days endorsement. These coverages may have deductible of no greater than forty-eight (48) hours, or One Hundred Thousand ($100,000.00), if a separate deductible applies. d. Boiler and Machinery. Borrowers shall maintain a Boiler and Machinery policy for the Casino Facilities written on a Comprehensive Form with a combined direct and indirect limit of no less than Twenty Million Dollars ($20,000,000.00). The policy shall include extensions for Agreed Amount (waiving co-insurance) and Replacement Cost Valuation. The policy may contain deductibles of no greater than Fifty Thousand Dollars ($50,000.00) direct and forty-eight (48) hours indirect. e. Crime Insurance. Borrowers shall obtain a comprehensive crime policy, including the following coverages: (i) employee dishonesty - Two Million Dollars ($2,000,000.00); (ii) money and securities (inside) - Five Hundred Thousand Dollars ($500,000.00); (iii) money and securities (outside) - Five Hundred Thousand Dollars ($500,000.00); (iv) depositor's forgery - One Million Dollars ($1,000,000.00); (v) computer fraud - One Million Dollars ($1,000,000.00). The policy must be amended so that money is defined to include "tokens and chips" (as defined in Regulation 12.010 of the Nevada Gaming Authorities). The policy may contain deductibles of no greater than Two Hundred Thousand Dollars ($200,000.00) for employee dishonesty and Fifty Thousand Dollars ($50,000.00) for all coverages listed above. f. Commercial General Liability (1996 Form or Equivalent). Borrowers shall maintain a Commercial General Liability policy with a One Million Dollar ($1,000,000.00) combined single limit for bodily injury and property damage, including Products Liability, Contractual Liability, and all standard policy form extensions. The policy must provide a Two Million Dollar ($2,000,000.00) general aggregate (per location, if multi-location risk) and be written on an "occurrence form". The policy will be extended to provide watercraft Liability for permanently moored barges while stationary. The policy will also include extensions for Liquor Legal Liability and Employee Benefits Legal Liability, Innkeepers Legal and Safe Deposit Box Legal coverages. If the general liability policy contains a self-insured retention, it shall be no greater than Fifty Thousand Dollars ($50,000.00) per occurrence. The policy shall be endorsed to include Agent Bank as an additional insured on behalf of the Banks. Definition of additional insured shall include all officers, directors, employees, agents and representatives of the additional insured. The coverage for additional insured shall apply on a primary basis irrespective of any other insurance whether collectible or not. g. Automobile. Borrowers shall maintain a comprehensive Automobile Liability Insurance Policy written under coverage "symbol 1", providing a One Million Dollar ($1,000,000.00) combined single limit for bodily injury and property damage covering all owned, non-owned and hired vehicles of the Borrowers. If the policy contains a self insured retention it shall be no greater than Fifty Thousand Dollars ($50,000.00) per occurrence. The following additional coverages must be purchased by Borrowers: (i) Garage Liability. A One Million Dollar ($1,000,000.00) combined single limit for bodily and property damage for the garage operation. (ii) Garagekeepers Legal Liability. Five Hundred Thousand Dollar ($500,000.00) limit for comprehensive and collision coverages for physical damage to vehicles in the Borrowers' care, custody and control. The policy can be subject to a deductible of no greater than Five Thousand Dollars ($5,000.00) for each auto and Twenty-Five Thousand Dollars ($25,000.00) for each loss. h. Workers Compensation and Employers Liability Insurance. Borrowers shall maintain a standard workers compensation policy covering the states of Nevada, Mississippi, Iowa and any other state where the company is operating, including employers liability coverage subject to a limit of no less than One Million Dollars ($1,000,000.00) each employee, One Million Dollars ($1,000,000.00) each accident, One Million Dollars ($1,000,000.00) policy limit. The policy shall include endorsements for Voluntary Compensation, Stop Gap Liability, Long-Shoreman's and Harbors Workmans Compensation Act and Maritime Coverages (as applicable). If the Borrowers have elected to self-insure Workers Compensation coverage in the State of Nevada (or any other state), the Agent Bank must be furnished with a copy of the certificate from the state(s) permitting self- insurance and evidence of a Stop Loss Excess Workers Compensation policy with a specific retention of no greater than Three Hundred Thousand Dollars ($300,000.00) per occurrence. i. Marine Insurance (for all vessels that are owned or leased by any Borrower or for which any of the Borrowers are legally liable). (i) Hull and Machinery Coverage. This policy will provide the broadest possible scope of property coverage available including all Traditional Commercial Hull insuring conditions, American Institute clauses (including liner negligence and SR&CC clauses) covering the vessel for physical damage at a value that represents one hundred percent (100%) of the replacement cost for each Vessel. The policy will include Agreed Amount (waving co-insurance) and replacement cost valuation endorsements. The policy may contain a deductible of no greater than Two Hundred Fifty Thousand Dollars ($250,000.00) per occurrence. (ii) Casino Boat Business Interruption. Borrowers will purchase business interruption coverage under a "comprehensive facility form" indemnifying each vessel operation for loss of net profits and continuing expenses (including debt service) for loss arising from casualty to the vessel and any other cause beyond the control of the Borrowers. The limit purchase must represent no less than fifty percent (50%) of the annual net profit plus continuing expenses. The policy may have a deductible of no greater than twenty-one (21) days for each vessel. (iii) Protection and Indemnity. Protection and Indemnity coverage will be written through a combination of Primary and Excess coverage with a Twenty-Five Million Dollar ($25,000,000.00) combined single limit for bodily injury and property damage, including all standard policy form extensions. The policy shall be written on an occurrence form. The Agent Bank and Banks will be included as additional insureds under the policy. (iv) Comprehensive Pollution Liability. Borrowers shall purchase Comprehensive Pollution Liability coverage with a limit of no less than Twenty-Nine Million Dollars ($29,000,000.00) per incident covering any loss or damage resulting from any discharge, admission, spillage or leakage on or into water, including governmental mandated clean up. The limits can be secured through the purchase of primary and excess policies, as long as all coverages follow form. The Agent Bank and Banks will be included as additional insureds under the policy. j. Aircraft Policy. Borrowers shall maintain aircraft liability coverage with a limit of no less than Fifty Million Dollars ($50,000,000.00) on all aircraft that are owned, operated or leased by any of the Borrowers. The policy shall also provide physical damage coverage for all "owned" aircrafts with a deductible of no greater than Fifty Thousand Dollars ($50,000.00). k. Underground Storage Tank Liability. Borrowers shall maintain an underground storage tank liability policy providing first party (property damage) and third party (bodily/property damage) coverages for environmental claims resulting from underground storage tanks at the Casino Facilities. The policy will include coverage for all governmental and regulatory agency mandated clean ups. The policy shall provide limits of no less than Five Million Dollars ($5,000,000.00) each incident, Five Million Dollars ($5,000,000.00) in the aggregate, with a sublimit of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) for covering defense expenses for first and third party claims. The policy may contain a deductible of no greater than Five Hundred Thousand Dollars ($500,000.00) for first and third party claims. This provision may be satisfied in part by CPI's and ACLVI's participation in and compliance with NRS 590.700 through 590.920, inclusive, and the regulations promulgated thereunder. Borrowers shall provide Agent Bank proof of registration of all regulated underground storage tanks. l. If Borrowers' general liability and automobile policies include a self-insured retention, it is agreed and fully understood that Borrowers are solely responsible for payment of all amounts due within said self- insured retentions. Any Indemnification/Hold Harmless provision is extended to cover all liabilities associated with said self-insured retentions. m. Umbrella/Bumbershoot Liability. An Umbrella/Bumbershoot Liability policy shall be purchased with a limit of not less than One Hundred Million Dollars ($100,000,000.00) providing excess coverage over all limits and coverages indicated in paragraphs (f), (g), (h), (i)(iii) and (iv) above. Excess Umbrella/Bumbershoot policies can be obtained by a combination of Primary and Excess Umbrella/Bumbershoot policies, provided that all layers follow form with the underlying policies indicated in (f), (g), (h) and (i)(iii) and (iv) and are written on an "occurrence" form. This policy shall be endorsed to include the Agent Bank as an additional insured on behalf of the Banks. n. All policies indicated above shall be written with insurance companies licensed and admitted to do business in all states where the Borrower Consolidation, or any of them, is operating and shall be rated no lower than "A XII" in the most recent addition of A.M. Best's and "AA" in the most recent edition of Standard & Poor's, or such other carrier reasonably acceptable to Agent Bank. All policies discussed above shall be endorsed to provide that in the event of a cancellation, non-renewal or material modification, Agent Bank shall receive thirty (30) days prior written notice thereof. The Borrowers shall furnish Agent Bank with Certificates of Insurance executed by an authorized agent evidencing compliance with all insurance provisions discussed above on an annual basis. Certificates of Insurance executed by an authorized agent of each carrier providing insurance evidencing continuation of all coverages will be provided on the Closing Date and annually on or before ten (10) days prior to the expiration of each policy. All certificates and other notices related to the insurance program shall be delivered to Agent Bank concurrently with the delivery of such certificates or notices to such carrier or to Borrowers, or any of them, as applicable. o. Construction Insurance Coverages. Borrowers shall obtain, or cause to be obtained and shall maintain, or caused to be maintained with respect to the ACLVI Project until the occurrence of the Completion Date, at their own cost and expense, the following policies: (i) Builders Risk. All Risk Builders Risk form providing property coverage during construction on a completed value form (representing one hundred percent (100%) of the anticipated construction cost). The policy will include endorsements extending coverage for (a) Delay of Opening (Business Interruption); (b) Soft Costs; (c) Property in Transit; (d) Offsite Storage. The policy can be subject to a deductible of no greater than Twenty-Five Thousand Dollars ($25,000.00) for Property Damage and ten (10) days for Delay of Opening. Agent Bank must be included as mortgagee. (ii) Owners/Contractors Protective Liability Policy ("OCP"). During the Construction Period, OCP policies will be purchased and maintained by owner, or owners general contractor, providing separate liability coverage for owner and Agent Bank. The policy limit of liability will be no less than Five Million Dollars ($5,000,000.00). (iii) Contractors/Sub-Contractors Insurance Requirements. ACLVI shall require that the General Contractor and each Subcontractor party to a Major Subcontract with an expected or stated costs in excess of One Million Dollars ($1,000,000.00) performing work at the ACLVI Project comply with the minimum insurance requirements per Schedule 5.09(o) attached hereto and by this reference incorporated herein and made a part hereof. (iv) On and after the Completion Date, the ACLVI Project shall be protected by the insurance coverages required under Section 5.09 a through j, k, l and m. p. Any other insurance reasonably requested by Agent Bank or Requisite Lenders in such amount and covering such risks as may be reasonably requested. Section 5.10. Taxes. Throughout the term of the Credit Facility, Borrowers shall prepare and timely file or cause to be prepared and timely filed all federal, state and local tax returns required to be filed by it, and Borrowers shall pay and discharge prior to delinquency all taxes, assessments and other governmental charges or levies imposed upon it, or in respect of any of any of its properties and assets except such taxes, assessments and other governmental charges or levies, if any, as are being contested in good faith by Borrowers in the manner which is set forth for such contests by Section 4.07 herein. Section 5.11. Permitted Encumbrances Only. At all times throughout the term of the Credit Facility, Borrowers shall not create, incur, assume or suffer to exist any mortgage, deed of trust, pledge, lien, security interest, encumbrance, attachment, levy, distraint, or other judicial process and burdens of every kind and nature except the Permitted Encumbrances on or with respect to the Collateral, except (a) with respect to matters described in Sections 5.03 and 5.10 such items as are being contested in the manner described therein, and (b) with respect to any other items, if any, as are being contested in good faith by appropriate proceedings and for which Borrowers have maintained adequate reserves for the payment thereof. Section 5.12. Advances. At any time during the term of the Credit Facility, if Borrowers should fail (a) to perform or observe, or (b) to cause to be performed or observed, any covenant or obligation of Borrowers under this Credit Agreement or any of the other Loan Documents, then Agent Bank, upon the giving of reasonable notice may (but shall be under no obligation to) take such steps as are necessary to remedy any such non-performance or non- observance and provide for payment thereof. All amounts advanced by Agent Bank or Lenders pursuant to this Section 5.12 shall become an additional obligation of Borrowers to Lenders secured by the Deeds of Trust and other Loan Documents, shall reduce the amount of Available Borrowings and shall become due and payable by Borrowers on the next interest payment date, together with interest thereon at a rate per annum equal to the Default Rate (such interest to be calculated from the date of such advancement to the date of payment thereof by Borrowers). Section 5.13. Further Assurances. Borrowers will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such amendments or supplements hereto or to any of the Loan Documents and such further documents, instruments and transfers as Requisite Lender or Agent Bank may reasonably require for the curing of any defect in the execution or acknowledgement hereof or in any of the Loan Documents, or in the description of the Collateral Properties or other Collateral or for the proper evidencing of giving notice of each lien or security interest securing repayment of the Credit Facility. Further, upon the execution and delivery of the Deeds of Trust and each of the Loan Documents and thereafter, from time to time, Borrowers shall cause the Deeds of Trust and each of the Loan Documents and each amendment and supplement thereto to be filed, registered and recorded and to be refiled, re-registered and re-recorded in such manner and in such places as may be reasonably required by the Requisite Lenders or Agent Bank, in order to publish notice of and fully protect the liens of the Deeds of Trust and the Loan Documents and to protect or continue to perfect the security interests created by the Deeds of Trust and Loan Documents in the Collateral Properties and Collateral and to perform or cause to be performed from time to time any other actions required by law and execute or cause to be executed any and all instruments of further assurance that may be necessary for such publication, perfection, continuation and protection. Section 5.14. Indemnification. Borrowers agree to and do hereby jointly and severally indemnify, protect, defend and save harmless Agent Bank and each of the Banks and their respective trustees, officers, employees, agents, attorneys and shareholders (individually an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all losses, damages, expenses or liabilities of any kind or nature from any suits, claims, or demands, including reasonable counsel fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with this Credit Agreement, with any other Loan Document or with the transactions contemplated herein and thereby; provided, however, Borrowers shall not be obligated to indemnify, protect, defend or save harmless an Indemnified Party if, and to the extent, the loss, damage, expense or liability was caused by (a) the gross negligence or intentional misconduct of such Indemnified Party, or (b) the breach of this Credit Agreement or any other Loan Document by such Indemnified Party or the breach of any laws, rules or regulation by such Indemnified Party (other than those breaches of laws arising from any Borrowers' default). In case any action shall be brought against any Indemnified Party based upon any of the above and in respect to which indemnity may be sought against Borrowers, Agent Bank shall promptly notify Borrowers in writing, and Borrowers shall assume the defense thereof, including the employment of counsel selected by Borrowers and reasonably satisfactory to Indemnified Party, the payment of all costs and expenses and the right to negotiate and consent to settlement upon the consent of the Indemnified Party. Upon reasonable determination made by Indemnified Party that such counsel would have a conflict representing such Indemnified Party and Borrowers, the applicable Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof. Borrowers shall not be liable for any settlement of any such action effected without their consent, but if settled with Borrowers' consent, or if there be a final judgment for the claimant in any such action, Borrowers agree to indemnify, defend and save harmless such Indemnified Parties from and against any loss or liability by reason of such settlement or judgment. The provisions of this Section 5.14 shall survive the termination of this Credit Agreement and the repayment of the Credit Facility and the assignment or subparticipation of all or any portion of the Syndication Interest held by any Lender pursuant to Section 11.10. Section 5.15. Inspection of the Collateral and Appraisal. At all times during the term of the Credit Facility, Borrowers shall provide or cause to be provided to Banks and any authorized representatives of Banks, accompanied by representatives of Borrowers, the reasonable right of entry and free access to the Collateral Properties to inspect same on reasonable prior notice to Borrowers. If at any time any Qualified Appraisal of the Collateral Properties, or any of them, is required to be made by any banking regulatory authority or determined to be necessary by Agent Bank or Requisite Lenders after the occurrence of an Event of Default, Borrowers agree to pay all fees, costs and expenses incurred by Agent Bank in connection with the preparation of such Qualified Appraisal. Section 5.16. Compliance With Other Loan Documents. Borrowers shall comply with each and every term, condition and agreement contained in the Loan Documents. Section 5.17. Suits or Actions Affecting Borrowers. Throughout the term of the Credit Facility, Borrowers shall promptly advise Agent Bank in writing within ten (10) days after Borrowers obtain knowledge of (a) any claims, litigation, proceedings or disputes (whether or not purportedly on behalf of Borrowers) against, or to the actual knowledge of Borrowers, threatened or affecting Borrowers which, if adversely determined, would have a Material Adverse Effect on the Collateral Properties or the business, operations or financial conditions of Borrowers, (b) any material labor controversy resulting in or threatening to result in a strike against any of the Collateral Properties or Casino Facilities, or (c) any proposal by any Governmental Authority to acquire any of the material assets or business of Borrowers. Section 5.18. Occurrence of Senior Subordinated Notes Effective Date, Designation of Senior Debt and Required Payments from Proceeds of Senior Subordinated Notes. As of the Closing Date, Lenders do hereby consent to the issuance of the Senior Subordinated Notes by ACI in accordance with and pursuant to the Indenture, in the form of the Senior Subordinated Notes and Indenture reviewed and approved by Lenders (with such changes as do not materially and adversely affect the Banks), up to the aggregate outstanding amount at any time of One Hundred Twenty-Five Million Dollars ($125,000,000.00). The Senior Subordinated Notes Effective Date shall occur on or before July 31, 1997. Either (i) pursuant to the terms of the Indenture, the Bank Facilities shall be designated as senior debt or (ii) on or before ten (10) Banking Business Days following the Senior Subordinated Notes Effective Date, Borrowers shall cause the Bank Facilities to be designated as senior debt pursuant to an officers' certificate in accordance with such procedure, if any, as may be set forth in the Indenture. On or before ten (10) Banking Business Days following the Senior Subordinated Notes Effective Date, Borrowers shall pay or cause to be paid the following Indebtedness: a. no less than Seventy Million Dollars ($70,000,000.00) in the aggregate of the outstanding principal then owing under the Revolving Credit Note, the Existing Bank Loan and/or the WFB Loan; b. all Indebtedness owing under the terms of the GECC Ship Note and ACCBI Equipment Loan and shall additionally cause the release and reconveyance of the GECC Ship Mortgage, the ACCBI Equipment Ship Mortgage and other security instruments encumbering the ACCBI Riverboat or any equipment, furniture, fixtures or gaming devices located on the ACCBI Riverboat other than the ACCBI Ship Mortgage and related security interests in favor of Agent Bank on behalf of the Lenders; and c. other Indebtedness of the Borrower Consolidation as determined by Borrowers. Section 5.19. Consents of and Notice to Gaming Authorities. a. ACI shall make all necessary applications to and pursue in good faith and obtain with reasonable diligence (but in no event later than ninety (90) days following the Closing Date) all necessary consents and approvals of the applicable Gaming Authorities to the: (i) pledge of the stock of CPI, ACLVI, ACCBI and ACVI pursuant to the Stock Pledges, (ii) the restrictions on transfer and hypothecation of the stock of CPI, ACLVI, ACCBI and ACVI contained in Sections 6.10 and 7.01(u), and (iii) the terms set forth in the Credit Agreement and each of the Loan Documents, to the extent which may be required by the Iowa Gaming Authorities; and b. Borrowers shall comply in all material respects with all applicable statutes, rules and regulations requiring reports and disclosures to all applicable Gaming Authorities, including, but not limited to, reporting this Credit Facility transaction, within the time period required by Regulation 8.130(2) of the Regulations of Nevada Gaming Commission and State Gaming Control Board and Regulation II.I. Section 11(b) of the Regulations of the Mississippi Gaming Commission. Section 5.20. Tradenames, Trademarks and Servicemarks. Borrowers shall not assign or in any other manner alienate their respective interests in any material tradenames, trademarks or servicemarks relating or pertaining to the Casino Facilities during the term of the Credit Facility. No Borrower shall change its name without first giving at least thirty (30) days prior written notice to Agent Bank. Section 5.21. Notice of Hazardous Materials. Within ten (10) days after an executive officer of any of the Borrowers shall have obtained actual knowledge thereof, Borrowers shall promptly advise Agent Bank and each of the Lenders in writing of and deliver a copy of: (a) any and all enforcement, clean-up, removal or other governmental or regulatory actions instituted or threatened by any Governmental Agency pursuant to any applicable federal, state or local laws, ordinances or regulations relating to any Hazardous Materials (as defined in the Environmental Certificate) affecting the Collateral Properties ("Hazardous Materials Laws"); (b) all written claims made or threatened by any third party against Borrowers, the Collateral Properties, the Casino Facilities, or any of them, relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (a) and (b) above are hereinafter referred to as "Hazardous Materials Claims"); and (c) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Collateral Properties, the Casino Facilities, or any of them, that could cause any Borrower or any part thereof to be held liable under the provisions of, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Collateral Properties or the Casino Facilities under, any Hazardous Materials Laws. Section 5.22. Compliance with ACVI Land Leases and ACCBI Land Use Agreement. a. Until Bank Facilities Termination, Borrowers shall fully perform and comply with or cause to be performed and complied with all of the respective material covenants, material terms and material conditions imposed or assumed by them, or any of them, as lessee under each of the ACVI Land Leases and under the ACCBI Land Use Agreement. Except the exercise of renewal and purchase options under the Brady/Lum Lease and the Morrison Lease in accordance with subsections (b) and (c) below, none of the Borrowers shall amend, modify or terminate, or enter into any agreement to amend, modify or terminate any of the ACVI Land Leases or the ACCBI Land Use Agreement without the prior written consent of Requisite Lenders. b. At least six (6) months prior to expiration of the Primary Term under the Brady/Lum Lease (as defined therein) and at least six (6) months prior to each Renewal Term under the Brady/Lum Lease (as also defined therein), ACVI shall either: (i) exercise its option to extend the Brady/Lum Lease for a Renewal Term in accordance with the terms and conditions set forth therein; or (ii) provide written notice to the lessor under the Brady/Lum Lease of its intention to exercise the Purchase Option (as also defined therein) (a "Purchase Option Notice") and thereafter diligently pursue the closing for such purchase on, or before, expiration of the then current term of the Brady/Lum Lease. Concurrently with all notices to the lessor under the Brady/Lum Lease which are required under this subsection (b), ACVI shall deliver copies of such notices to Agent Bank, and if ACVI delivers a Purchase Option Notice, ACVI shall from time to time provide Agent Bank with such information as Agent Bank may reasonably request, regarding actions taken by ACVI in pursuit of closing in accordance with said Purchase Option Notice. c. At least six (6) months prior to expiration of the Primary Term under the Morrison Lease (as defined therein), ACVI shall provide written notice to the lessor under the Morrison Lease of its intention to exercise the Purchase Option (as also defined therein) and thereafter diligently pursue the closing for such purchase on, or before, expiration of the Primary Term under the Morrison Lease. Concurrently with such notice, ACVI shall deliver a copy thereof to Agent Bank, and from time to time shall provide Agent Bank with such information as Agent Bank may reasonably request, regarding actions taken by ACVI in pursuit of closing in accordance with the Purchase Option under the Morrison Lease. Section 5.23. Compliance with Access Laws. a. Borrowers agree that Borrowers, the Casino Facilities and the Collateral Properties shall at all times strictly comply with the requirements of the Americans with Disabilities Act of 1990; the Fair Housing Amendments Act of 1988; and other federal, state or local laws or ordinances related to disabled access; or any statute, rule, regulation, ordinance, order of Governmental Authorities, or order or decree of any court adopted or enacted with respect thereto, as now existing or hereafter amended or adopted (collectively, the "Access Laws"). At any time, Agent Bank may require a certificate of compliance with the Access Laws and indemnification agreement in a form reasonably acceptable to Agent Bank. Agent Bank may also require a certificate of compliance with the Access Laws from an architect, engineer, or other third party acceptable to Agent Bank. b. Notwithstanding any provisions set forth herein or in any other document, Borrowers shall not alter or permit any tenant or other person to alter the Casino Facilities or the Collateral Properties in any manner which would increase Borrowers' responsibilities for compliance with the Access Laws without the prior written approval of Agent Bank. In connection with such approval, Agent Bank may require a certificate of compliance with the Access Laws from an architect, engineer or other person acceptable to Agent Bank. c. Borrowers agree to give prompt written notice to Agent Bank of the receipt by Borrowers of any claims of violation of any of the Access Laws and of the commencement of any proceedings or investigations which relate to compliance with any of the Access Laws. d. Borrowers shall indemnify, defend and hold harmless Indemnified Parties from and against any and all claims, demands, damages, costs, expenses, losses, liabilities, penalties, fines and other proceedings including, without limitation, reasonable attorneys' fees and expenses arising directly or indirectly from or out of or in any way connected with any failure of the Casino Facilities or the Collateral Properties to comply with any of the Access Laws. The obligations and liabilities of Borrowers under this section shall survive Bank Facility Termination, any satisfaction, assignment, judicial or nonjudicial foreclosure proceeding, or delivery of a deed in lieu of foreclosure. Section 5.24. ACVI Hotel Provisions. a. ACVI may convey the ACVI Hotel Property to the ACVI Hotel Subsidiary at any time subsequent to the Closing Date. Upon such conveyance ACVI shall give written notice thereof to Agent Bank and shall promptly deliver to Agent Bank a conformed copy of the conveyance instrument. b. Upon the closing of the ACVI Hotel Construction Loan in accordance with the provisions set forth in Section 6.08(d), Agent Bank shall subordinate the lien priority of the ACVI Hotel Deed of Trust and ACVI Hotel Financing Statements to the ACVI Hotel Construction Deed of Trust and ACVI Hotel Construction Financing Statements, without further authorization or consent of the Lenders. c. Upon completion of the ACVI Hotel, ACVI and the ACVI Hotel Subsidiary may enter into a management agreement under the terms of which ACVI will operate and manage the ACVI Hotel so long as: (i) the terms of such management agreement are first approved in writing by Agent Bank, and (ii) all costs, expenses, fees and other charges incurred by ACVI in connection with the operation and management of the ACVI Hotel will be fully reimbursed to ACVI by the ACVI Hotel Subsidiary no less frequently than as of the end of each Fiscal Quarter. B. Construction Covenants. Section 5.25. Commencement and Completion of the ACLVI Project. ACLVI will commence the ACLVI Project and shall complete the ACLVI Project with due diligence (i) in accordance and compliance with the Plans and Specifications prepared by the Architect and the Interior Designer in all material respects and (ii) in accordance and compliance with the terms and conditions of this Credit Agreement, and all material requirements of all Governmental Authorities acting in or for the locality in which the ACLVI Real Property is situated. The Completion Date shall be no later than June 30, 1998. Section 5.26. Master Set of Plans and Specifications. a. A master set of the final Structural Plans and Specifications shall be furnished to Agent Bank and Lenders' Consultant at least ten (10) Banking Business Days prior to the Initial Construction Disbursement and shall be held by Agent Bank throughout the term of the Credit Facility, and said set of Structural Plans and Specifications shall govern all matters that may arise with respect to the construction and completion of the structural and exterior components of the ACLVI Project. b. A master set of the final Interior Plans and Specifications shall be furnished to Agent Bank and Lenders' Consultant at least ten (10) Banking Business Days prior to the advance of any Construction Disbursement relating to the payment of any amounts not set forth on the General Contractor's Budget and shall be held by Agent Bank throughout the term of the Credit Facility, and said set of Interior Plans and Specifications shall govern all matters that may arise with respect to the construction and completion of the interior components, equipment and furnishing of the ACLVI Project. Section 5.27. Construction of the ACLVI Project Entirely on the ACLVI Real Property. The ACLVI Project shall be constructed entirely on the ACLVI Real Property and shall not encroach upon or overhang any real property, easement (other than Permitted Encumbrances) or restriction rights owned by any other person or entity unless such other person or entity has consented or waived such encroachment to the reasonable satisfaction of Agent Bank and Requisite Lenders. Section 5.28. List and Assignment of Major Subcontracts. a. ACLVI shall furnish to Agent Bank from time to time during the Construction Period, within a reasonable time after written request by Agent Bank to ACLVI, in a form reasonably acceptable to Agent Bank, a then current correct list and copy of all contracts, subcontracts and material suppliers, including, without limitation, all Major Subcontracts executed by any Borrower and/or General Contractor in connection with the ACLVI Project. Borrowers agree that Agent Bank or Lenders' Consultant may contact any such contractor, subcontractor or material supplier to verify any facts disclosed in the lists. b. Concurrently with the execution of each Major Subcontract requiring payment thereunder in excess of Five Million Dollars ($5,000,000.00) in the aggregate (each individually an "Assigned Major Subcontract" and collectively the "Assigned Major Subcontracts"), ACLVI shall cause such Assigned Major Subcontract to be assigned to Agent Bank on behalf of Lenders as additional security for the Credit Facility and the Subcontractor party thereto to consent to such assignment, each in substantially the form of the Assignment of General Contractor's Agreement and General Contractor's Consent, or as otherwise reasonably required by Agent Bank. Section 5.29. Project Sign. During the construction of the ACLVI Project, Agent Bank may require the Borrowers to erect a sign at the ACLVI Project at ACLVI's expense. The size, design, wording and location of such a sign shall be subject to Agent Bank's approval. The sign may be erected as soon as practical following the Agent Bank's request. Section 5.30. Inspection of Construction Progress and Lenders' Consultant. Designated representatives of Agent Bank, Lenders and Lenders' Consultant, shall, at all times during the Construction Period, have the right of reasonable entry and free access to the ACLVI Real Property and the right to inspect all work done, labor performed and materials furnished in connection with the ACLVI Project and the right of reasonable inspection to inspect all books, contracts and records of Borrowers relating to the ACLVI Project. In performing such inspection, Agent Bank, Lenders and Lenders' Consultant shall cooperate with Borrowers in making suitable arrangements to minimize disruption of the construction work, and pursuant to Borrowers' insurance policies and safety and security requirements. ARTICLE VI FINANCIAL COVENANTS Until payment in full of all sums owing hereunder and under the Notes and the occurrence of Bank Facilities Termination, Borrowers agree, as set forth below, to comply or cause compliance with the following Financial Covenants. Section 6.01. Minimum Capital Expenditures. During each Fiscal Year, commencing with the Fiscal Year commencing January 1, 1998, Borrowers shall make or cause to be made, Capital Expenditures to the Collateral Properties in a minimum aggregate amount equal to or greater than two percent (2%) of net revenues derived from the Collateral Properties by the Borrower Consolidation during the immediately preceding Fiscal Year. Section 6.02. Minimum Tangible Net Worth. The Borrower Consolidation shall maintain as of the last day of each Fiscal Quarter a Tangible Net Worth equal to or greater than the sum of (a) Fifty Million Dollars ($50,000,000.00), plus (b) ninety percent (90%) of Net Income after taxes realized as of each Fiscal Quarter end occurring on and after March 31, 1997 (without reduction for any net losses), plus (c) ninety percent (90%) of the proceeds received in Cash or Cash Equivalents (net of reasonable expenses) of any and all additional Equity Offerings made after the Closing Date, other than proceeds of any Equity Offerings that are required to be paid to Rebeil or Magliarditi pursuant to the terms of the Gem Merger Agreement. Section 6.03. Leverage Ratio. Commencing as of the first Fiscal Quarter ending subsequent to the Closing Date and continuing as of each Fiscal Quarter end until Bank Facilities Termination, the Borrower Consolidation shall maintain a Leverage Ratio no greater than the ratios described hereinbelow to be calculated as of the end of each Fiscal Quarter in accordance with the following schedule: Fiscal Quarter End Leverage Ratio As of the Closing Date through the Fiscal Quarter ending December 31, 1998 5.00 to 1.00 As of the Fiscal Quarter ending March 31, 1999, through the Fiscal Quarter ending December 31, 1999 4.50 to 1.00 As of the Fiscal Quarter ending March 31, 2000, through Bank Facilities Termination 4.00 to 1.00 Section 6.04. Gross Fixed Charge Coverage Ratio. Commencing as of the first Fiscal Quarter ending subsequent to the Closing Date and continuing as of each Fiscal Quarter end until Bank Facilities Termination, the Borrower Consolidation shall maintain a Gross Fixed Charge Coverage Ratio no less than 1.50 to 1.00. Section 6.05. Adjusted Fixed Charge Coverage Ratio. Commencing as of the first Fiscal Quarter ending subsequent to the Closing Date and continuing as of each Fiscal Quarter end until Bank Facilities Termination, the Borrower Consolidation shall maintain an Adjusted Fixed Charge Coverage Ratio no less than 1.10 to 1.00. Section 6.06. Contingent Liability(ies). The Borrower Consolidation shall not directly or indirectly incur any Contingent Liability(ies) in excess of the cumulative aggregate amount of Five Million Dollars ($5,000,000.00) without the prior written consent of Requisite Lenders. Section 6.07. Investment Restrictions. Other than Investments permitted herein or approved in writing by Requisite Lenders, the Borrower Consolidation shall not make any Investments (whether by way of loan, stock purchase, capital contribution, or otherwise) other than the following: (a) Cash, Cash Equivalents and direct obligations of the United States Government; (b) Prime commercial paper (AA rated or better); (c) Certificates of Deposit or Repurchase Agreement issued by a commercial bank having capital surplus in excess of One Hundred Million Dollars ($100,000,000.00); (d) Money market or other funds of nationally recognized institutions investing solely in obligations described in (a), (b) and (c) above; (e) Loans and advances to employees in the ordinary course of business not exceeding Two Hundred Thousand Dollars ($200,000.00) in the aggregate at any one time; and (f) In addition to Investments permitted under clause (g) below, Investments, including Investments in Subsidiaries which are not members of the Borrower Consolidation, at the discretion of Borrowers up to the maximum cumulative aggregate amount of Two Million Dollars ($2,000,000.00); (g) In addition to Investments permitted under clause (f) above, investment by ACVI in the ACVI Hotel Subsidiary up to the maximum cumulative aggregate amount of Two Million Dollars ($2,000,000.00), together with conveyance of title to the ACVI Hotel Property by ACVI to the ACVI Hotel Subsidiary following the Closing Date; and (h) Capital Expenditures for the Casino Facilities. Section 6.08. Total Liens. The Borrower Consolidation shall not directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any of the Collateral, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any of the Collateral under the Uniform Commercial Code of any State or under any similar recording or notice statute, except: (a) Permitted Encumbrances; (b) Liens granted or permitted pursuant to the Security Documentation; (c) Liens on the FF&E and other goods securing Indebtedness to finance the purchase price thereof; provided that (i) such Liens shall extend only to the equipment and other goods so financed and the proceeds thereof, (ii) such Liens shall not secure Indebtedness in excess of Fifteen Million Dollars ($15,000,000.00) in the aggregate at any time, and (iii) Agent Bank, upon the written request of an Authorized Officer, shall confirm the priority of such Liens as paramount to the Security Documentation to the extent such Liens are permitted under this Section 6.08(c); (d) The ACVI Hotel Construction Security Documents and any Liens created thereunder, so long as each of the following conditions are true and correct in all respects: (i) that the ACVI Hotel Construction Loan and the ACVI Hotel Construction Date evidence Indebtedness owing by the ACVI Hotel Subsidiary to the ACVI Hotel Construction Lender in an aggregate principal amount of no greater than Seven Million Five Hundred Thousand Dollars ($7,500,000.00); (ii) that the ACVI Hotel Construction Loan and ACVI Hotel Construction Note be non- recourse as to ACVI and each other member of the Borrower Consolidation, except for Contingent Liabilities that will be subject to the limitation set forth in Section 6.06; and (iii) that the proceeds of the ACVI Hotel Construction Loan be used to finance the construction and development of a hotel on the ACVI Hotel Property containing no less than one hundred forty (140) rooms to be constructed in accordance with plans and specifications which are first approved in writing by Agent Bank; and (e) Liens described on Schedule 6.08 annexed hereto. Section 6.09. No Merger. No Borrower shall merge, consolidate with or sell all or substantially all of its assets. Section 6.10. No Transfer of Ownership. ACI shall not transfer or hypothecate its ownership interests in CPI, ACLVI, ACCBI or ACVI except in connection with the Security Documentation. This provision shall not be effective as to ACVI until it is approved by the Mississippi Gaming Authorities. Section 6.11. Dividend Restriction. ACI shall not pay or declare any dividends or Distributions on capital stock during any period in which the most recently calculated Leverage Ratio of the Borrower Consolidation is greater than 2.00 to 1.00. Section 6.12. ERISA. No Borrower shall: a. At any time, permit any Pension Plan which is maintained by any Borrower or to which any Borrower is obligated to contribute on behalf of its employees, in such case if to do so would constitute a Material Adverse Effect, to: (i) engage in any non-exempt "prohibited transaction", as such term is defined in Section 4975 of the Code; (ii) incur any material "accumulated funding deficiency", as that term is defined in Section 302 of ERISA; or (iii) suffer a termination event to occur which may reasonably be expected to result in liability of any Borrower to the Pension Plan or to the Pension Benefit Guaranty Corporation or the imposition of a lien on the Collateral pursuant to Section 4068 of ERISA. b. Fail, upon any Borrower becoming aware thereof, promptly to notify the Agent Bank of the occurrence of any Reportable Event with respect to any Pension Plan or of any non-exempt "prohibited transaction" (as defined in Section 4975 of the Code) with respect to any Pension Plan which is maintained by any Borrower or to which Borrowers are obligated to contribute on behalf of their employees or any trust created thereunder which Reportable Event or prohibited transaction would constitute a Material Adverse Effect. c. At any time, permit any Pension Plan which is maintained by any Borrower or to which any Borrower is obligated to contribute on behalf of its employees to fail to comply with ERISA or other applicable laws in any respect that would result in a Material Adverse Effect. Section 6.13. Margin Regulations. No part of the proceeds of the Credit Facility or Swingline Facility will be used by Borrowers to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. Neither the making of such loans, nor the use of the proceeds of such loans will violate or be inconsistent with the provisions of Regulations G, T, U or X of the Board of Governors of the Federal Reserve System. Section 6.14. Transactions with Affiliates. No Borrower shall engage in any transaction with any Affiliate of Borrowers which is not a member of the Borrower Consolidation, other than arms length transactions for fair market value, except to the extent more favorable to the Borrower Consolidation. Section 6.15. Change in Accounting Principles. Except as otherwise provided herein, if any changes in accounting principles from those used in the preparation of the most recent financial statements delivered to Agent Bank pursuant to the terms hereof are hereinafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or successors thereto or agencies with similar functions) and are adopted by the Borrowers with the agreement of their independent certified public accountants and such changes result in a change in the method of calculation of any of the financial covenants, standards or terms found herein, the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such changes with the desired result that the criteria for evaluating the financial condition of Borrowers shall be the same after such changes as if such changes had not been made; provided, however, that no change in GAAP that would affect the method of calculation of any of the financial covenants, standards or terms shall be given effect in such calculations until such provisions are amended, in a manner satisfactory to Agent Bank and Requisite Lenders, to so reflect such change in accounting principles. ARTICLE VII EVENTS OF DEFAULT Section 7.01. Events of Default. Any of the following events and the passage of any applicable notice and cure periods shall constitute an Event of Default hereunder: a. Any representation or warranty made by Borrowers pursuant to or in connection with this Credit Agreement, the Notes, the Environmental Certificate, or any other Loan Document or in any report, certificate, financial statement or other writing furnished by Borrowers in connection herewith, shall prove to be false, incorrect or misleading in any materially adverse aspect as of the date when made; b. Borrowers shall have defaulted in the payment of any principal or interest on the Notes when due, and such default continues for a period of more than five (5) days; c. Borrowers shall have defaulted under the terms of any other obligation owing Agent Bank, which default continues beyond any applicable grace period therein contained; d. Borrowers shall have defaulted in the payment of any late charge, Nonusage Fees, Agency Fees, expenses, indemnities or any other amount owing under any Loan Document for a period of five (5) days after notice thereof to Borrowers from Agent Bank; e. Borrowers shall fail duly and punctually to perform or comply with: (i) any term, covenant, condition or promise contained in Sections 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08 or 6.09, or (ii) any other term, covenant, condition or promise contained in this Credit Agreement, the Notes, the Deeds of Trust or any other Loan Document and, in the case of any term, covenant, condition or promise covered by this clause (ii), such failure shall continue thirty (30) days after written notice thereof is delivered to Borrowers by Agent Bank or any Lender of such failure; f. Any of the Security Documentation or any provision thereof: (i) shall cease to be in full force and effect in any material respect and such cessation has a Material Adverse Effect, or (ii) shall cease to give the Agent Bank in any material respect the liens, rights, powers and privileges purported to be created thereby, or (iii) the Borrowers shall default in the due performance or observance of any term, covenant or agreement on their part to be performed or observed pursuant to the Security Documentation for a period of thirty (30) days after written notice thereof is delivered to Borrowers by Agent Bank of such failure (or such shorter period following such notice as may be specifically required in any Loan Document); g. Any Borrower shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official, for all or substantially all of its property, or shall consent to any such relief or to the appointment or taking possession by any such official in any involuntary case or other proceeding against it; h. An involuntary case or other proceeding shall be commenced against any Borrower seeking liquidation, reorganization or other relief with respect to itself or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official, for all or substantially all of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of ninety (90) days; i. Any Borrower makes an assignment for the benefit of its creditors or admits in writing its inability to pay its debts generally as they become due; j. Borrowers shall fail to make any payment when due (whether by scheduled maturity, required prepayment, offer to purchase, redemption, acceleration, demand or otherwise, in each case beyond the grace period provided with respect to such Indebtedness) on any Indebtedness (other than any Indebtedness under this Credit Agreement or under the Gem Settlement Notes), if the aggregate amount of such Indebtedness is One Million Dollars ($1,000,000.00), or more, or any breach, default or event of default shall occur, or any other event shall occur or condition shall exist, under any instrument, agreement or indenture pertaining thereto if the effect thereof is to accelerate, the maturity of any such Indebtedness; or any such Indebtedness shall be declared to be due and payable or shall be required to be prepaid, purchased or redeemed (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof, or the holder of any lien in any amount, shall commence foreclosure of such lien upon property of Borrowers having a value in excess of One Million Dollars ($1,000,000.00) and such foreclosure shall continue against such property to a date less than thirty (30) days prior to the date of the proposed foreclosure sale; k. The occurrence of any event of default, beyond any applicable grace period, under the terms of any agreement with any Lender in connection with a Secured Interest Rate Hedge relating to the Credit Facility; l. Any Borrower shall be voluntarily or involuntarily divested of title or possession of any Collateral Property or shall lease or in any other manner, voluntarily or involuntarily alienate any of its interest in any Collateral Property or Casino Facility, other than the Permitted Encumbrances and as permitted in Section 5.01; m. The occurrence of any Reportable Event with respect to a Pension Plan which Agent Bank determines in good faith constitutes proper grounds for the termination of any Pension Plan by the Pension Benefit Guaranty Corporation or for the appointment by an appropriate United States District Court of a trustee to administer any such plan that would constitute a Material Adverse Effect, should occur and should continue for thirty (30) days after written notice of such determination shall have been given to Borrowers by Agent Bank; n. Commencement against any Borrower, any time after the execution of this Credit Agreement, of any litigation which is not stayed, bonded, dismissed, terminated or disposed of to the satisfaction of Agent Bank within ninety (90) days after its commencement, and which (i) has a reasonable probability of success, and could, if successful, in the reasonable opinion of Agent Bank, materially and adversely affect the priority of the Liens granted Agent Bank by the Deeds of Trust in the Collateral Properties, or (ii) results in the issuance of a preliminary or permanent injunction which is not dissolved or stayed pending appeal within sixty (60) days of its issuance and which preliminary or permanent injunction materially adversely affects any Borrower's right to use the Collateral Properties as the Casino Facilities; o. Any Borrower shall fail to perform, in a timely manner, any material obligation which such Borrower has under any of the ACVI Land Leases or ACCBI Land Use Agreement and does not cure such failure prior to the expiration of any applicable grace period; p. The loss or suspension, other than on account of forces majeure, of any Borrower's unrestricted Gaming Permits or the failure of any Borrower to maintain gaming activities at the Casino Facilities other than on account of forces majeure at least to the same general extent as is presently conducted thereon or in the case of the ACLVI Project as presently contemplated thereon for a period in excess of thirty (30) consecutive days; q. Any money judgment, writ or warrant of attachment or similar process involving (i) in any individual case an amount in excess of One Million Dollars ($1,000,000.00) or (ii) in the aggregate at any time an amount in excess of Two Million Dollars ($2,000,000.00) (in either case not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against any Borrower or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder); r. Any order, judgment or decree shall be entered against any Borrower decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of thirty (30) days, or Borrowers shall otherwise dissolve or cease to exist; s. The occurrence of any Change of Control or the occurrence of any "Change of Control" as defined in the Indenture which causes any holder or holders of the Senior Subordinated Notes to require ACI to repurchase all or any part of such holder's or holders' Senior Subordinated Notes; t. Any redemption, repurchase, defeasance or pre-payment of principal owing under the Senior Subordinated Notes, or any portion thereof, is made by any Borrower prior to the occurrence of Bank Facility Termination; u. The Completion Date does not occur on or before June 30, 1998; v. ACI sells, transfers, assigns, hypothecates or otherwise alienates its interest in all or any portion of the common voting stock of CPI, ACLVI, ACCBI or ACVI (subject to this provision being first approved by all necessary Gaming Authorities), other than in connection with the Stock Pledges; or w. The failure of the Iowa Gaming Authorities to grant all necessary approvals and consents in connection with the execution by ACCBI of the Credit Agreement and each of the Loan Documents to be executed by ACCBI. Section 7.02. Default Remedies. Upon the occurrence of any Event of Default, Agent Bank, upon the consent or direction of Requisite Lenders, shall declare the unpaid balance of the Notes, together with the interest thereon, to be fully due and payable, and Agent Bank shall, upon the consent or direction of Requisite Lenders, exercise any or all of the following remedies: a. Terminate the obligation of Lenders to make any advances for Borrowings and/or Construction Disbursements and may declare all outstanding unpaid Indebtedness hereunder and under the Revolving Credit Note and other Loan Documents together with all accrued interest thereon immediately due and payable without presentation, demand, protest or notice of any kind. This remedy will be deemed to have been automatically exercised on the occurrence of any event set out in Sections 7.01 (g), (h) or (i). b. Terminate the obligation of Swingline Lender to make any advances under the Swingline Facility and may declare all outstanding unpaid Indebtedness hereunder and under the Swingline Note, together with all accrued interest thereon immediately due and payable without presentation, demand, protest or notice of any kind. This remedy will be deemed to have been automatically exercised on the occurrence of any event set out in Sections 7.01 (g), (h) or (i). c. The Banks and/or Agent Bank may exercise any and all remedies available to Banks or Agent Bank under the Loan Documents. d. In the event Borrowers have failed to provide any insurance required under Section 5.09, Agent Bank may elect at its discretion to purchase such insurance. All payments made by Agent Bank for the purpose of providing the insurance coverages required under Section 5.09 shall be deemed amounts advanced under Section 5.12 of this Credit Agreement. e. The Banks and/or Agent Bank may exercise any other remedies available to Banks or Agent Bank at law or in equity, including requesting the appointment of a receiver to perform any acts required of Borrowers under this Credit Agreement, and Borrowers hereby specifically consent to any such request by Banks. For the purpose of carrying out this section and exercising these rights, powers and privileges, Borrowers hereby irrevocably constitute and appoint Agent Bank as their true and lawful attorney-in-fact to execute, acknowledge and deliver any instruments and do and perform any acts such as are referred to in this paragraph in the name and on behalf of Borrowers. Agent Bank on behalf of Lenders may exercise one or more of Lenders' remedies simultaneously and all its remedies are nonexclusive and cumulative. Agent Bank and Lenders shall not be required to pursue or exhaust any Collateral or remedy before pursuing any other Collateral or remedy. Agent Bank and Lenders' failure to exercise any remedy for a particular default shall not be deemed a waiver of (i) such remedy, nor their rights to exercise any other remedy for that default, nor (ii) their right to exercise that remedy for any subsequent default. Section 7.03. Application of Proceeds. All payments and proceeds received and all amounts held or realized from the sale or other disposition of the Real Collateral Properties and/or Collateral, which are to be applied hereunder towards satisfaction of Borrowers' obligations under the Credit Facility, shall be applied in the following order of priority: a. First, to the payment of all reasonable fees, costs and expenses (including reasonable attorney's fees and expenses) incurred by Agent Bank and Banks, their agents or representatives in connection with the realization upon any of the Collateral; b. Next, to the payment in full of any other amounts due under this Credit Agreement, the Deed of Trust, or any other Loan Documents (other than the Notes); c. Next, to the balance of interest remaining unpaid on the Notes; d. Next, to the balance of principal remaining unpaid on the Notes; e. Next, the balance, if any, of such payments or proceeds to whomever may be legally entitled thereto. Section 7.04. Notices. In order to entitle Agent Bank and/or Banks to exercise any remedy available hereunder, it shall not be necessary for Agent Bank and/or Banks to give any notice, other than such notice as may be required expressly herein or by applicable law. Section 7.05. Agreement to Pay Attorney's Fees and Expenses. Subject to the provisions of Section 11.14, upon the occurrence of an Event of Default, as a result of which Agent Bank shall require and employ attorneys or incur other expenses for the collection of payments due or to become due or the enforcement or performance or observance of any obligation or agreement on the part of Borrowers contained herein, Borrowers shall, on demand, pay to Agent Bank the reasonable fees of such attorneys and such other reasonable expenses so incurred by Agent Bank. Section 7.06. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Credit Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. Section 7.07. Licensing of Agent Bank and Lenders. In the event of the occurrence of an Event of Default hereunder or under any of the Loan Documents and it shall become necessary, or in the opinion of Requisite Lenders advisable, for an agent, supervisor, receiver or other representative of Agent Bank and Banks to become licensed under the provisions of the laws and/or regulations of any applicable Gaming Authority as a condition to receiving the benefit of any Collateral encumbered by the Deeds of Trust or other Loan Documents for the benefit of Lenders or otherwise to enforce their rights hereunder, Borrowers hereby give their consent to the granting of such license or licenses and agree to execute such further documents as may be required in connection with the evidencing of such consent. Section 7.08. Exercise of Rights Subject to Applicable Law. All rights, remedies and powers provided by this Article VII may be exercised only to the extent that the exercise thereof does not violate any applicable provision of the laws of any Governmental Authority and all of the provisions of this Article VII are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited to the extent necessary so that they will not render this Credit Agreement invalid, unenforceable or not entitled to be recorded or filed under the provisions of any applicable law. Section 7.09. Discontinuance of Proceedings. In case Agent Bank and/or Banks shall have proceeded to enforce any right, power or remedy under this Credit Agreement, the Notes, the Deeds of Trust or any other Loan Document by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to Banks, then and in every such case Borrowers, Agent Bank and/or Banks shall be restored to their former positions and rights hereunder with respect to the Collateral, and all rights, remedies and powers of Agent Bank and Banks shall continue as if such proceedings had not been taken, subject to any binding rule by the applicable court or other tribunal in any such proceeding. ARTICLE VIII DAMAGE, DESTRUCTION AND CONDEMNATION Section 8.01. No Abatement of Payments. If all or any part of the Collateral Properties shall be materially damaged or destroyed, or if title to or the temporary use of the whole or any part of any of the Collateral Properties shall be taken or condemned by a competent authority for any public use or purpose, there shall be no abatement or reduction in the amounts payable by Borrowers hereunder or under the Notes, and Borrowers shall continue to be obligated to make such payments. Section 8.02. Distribution of Capital Proceeds Upon Occurrence of Fire, Other Perils or Condemnation. All monies received from "All Risk" including flood and earthquake insurance policies covering any of the Collateral Properties or from condemnation or similar actions in regard to said Collateral Properties, shall be paid directly to Agent Bank. However, in the event the amount paid to Agent Bank is equal to or less than Five Hundred Thousand Dollars ($500,000.00), such amount shall be paid directly to Borrowers unless an Event of Default shall have occurred and then be continuing. In the event the amount paid to Agent Bank is greater than Five Hundred Thousand Dollars ($500,000.00), then at the option of Borrowers, unless an Event of Default has occurred hereunder and is then continuing, in which case at the option of Requisite Lenders, such amount may be applied to pay the outstanding balance of the Credit Facility or the entire amount so collected, or any part thereof, may be released to Borrowers for repair or replacement of the property destroyed or condemned or to reimburse Borrowers for the costs of such repair or replacement incurred prior to the date of such release. In the event the amount so collected is applied to reduce the outstanding balance of the Credit Facility, the entire amount received shall reduce the Maximum Principal Balance and Borrowers shall not be entitled to any further disbursements or Borrowings hereunder. In the event the Borrowers elect to, or Lenders are required to, release all or a portion of the collected funds to Borrowers for such repair or replacement of the property destroyed or condemned, such release of funds shall be made in accordance with the following terms and conditions: a. The repairs, replacements and rebuilding shall be made in accordance with plans and specifications approved by Requisite Lenders and in accordance with all applicable laws, ordinances, rules, regulations and requirements of Governmental Authorities; b. Borrowers shall provide Agent Bank with a detailed estimate of the costs of such repairs or restora tions; c. Borrowers shall satisfy the Requisite Lenders that after the reconstruction is completed, the value of the Collateral Properties, as determined by the Requisite Lenders in their reasonable discretion, will not be less than the value of the Collateral Properties prior to such destruction or condemnation as determined by the Requisite Lenders pursuant to this Credit Agreement; d. In the Requisite Lenders' sole reasonable opinion, any undisbursed portion of the Available Borrowings contemplated hereunder, after deposit of such proceeds, is sufficient to pay all costs of reconstruction of the Casino Facility or other Collateral Property damaged, destroyed or condemned; or if the undisbursed portion of such Credit Facility is not sufficient, Borrowers shall deposit additional funds with the Agent Bank, sufficient to pay such additional costs of reconstructing the Collateral Property; e. Borrowers have delivered to the Agent Bank a construction contract for the work of reconstruction in form and content, including insurance requirements, acceptable to the Requisite Lenders with a contractor acceptable to the Requisite Lenders; f. The Requisite Lenders in their reasonable discretion have determined that after the work of reconstruction is completed, the Casino Facilities or Collateral Property damaged, destroyed or condemned will produce income sufficient to pay all costs of operations and maintenance of the applicable Collateral Property with a reasonable reserve for repairs, and service all debts secured by the applicable Collateral Property; g. No Default or Event of Default has occurred and is continuing hereunder; h. Borrowers have deposited with the Agent Bank that amount reasonably determined by the Requisite Lenders (taking into consideration the amount of Borrowings available and the amount of proceeds, if any, of insurance policies covering property damage and business interruption, loss or rental income in connection with the Casino Facility or Collateral Property damaged, destroyed or condemned accruing and immediately forthcoming to the Agent Bank) to be sufficient to service the Indebtedness secured hereby during the period of reconstruction, as reasonably estimated by the Requisite Lenders; i. Before commencing any such work, Borrowers shall, at their own cost and expense, furnish Agent Bank with appropriate endorsements, if needed, to the "All Risk" insurance policy which Borrowers are then presently maintaining, and course of construction insurance to cover all of the risks during the course of such work; j. Such work shall be commenced by Borrowers within one hundred twenty (120) days after (i) settlement shall have been made with the insurance companies or condemnation proceeds shall have been received, and (ii) all the necessary governmental approvals shall have been obtained, and such work shall be completed within a reasonable time, free and clear of all liens and encumbrances so as not to interfere with the lien of the Deeds of Trust; k. Disbursements of such insurance or condemnation proceeds shall be made in the customary manner used by Agent Bank for the disbursement of construction loans; and l. That in the event the insurance or condemnation proceeds are inadequate to repair or replace the property destroyed or condemned and Requisite Lenders elect to, or are required to release all or a portion of the funds collected for such repair or replacement, Borrowers agree to deposit with Agent Bank sufficient funds to cover the difference between the costs of repair or replacement and the funds released by Requisite Lenders to Borrowers for such repair or replacement of the property destroyed. ARTICLE IX CONSTRUCTION DISBURSEMENT PROCEDURES Upon the satisfaction of all the terms and conditions set forth in Article III A of this Credit Agreement, on the Closing Date, and satisfaction of all terms and conditions set forth in Article III B and C of this Credit Agreement on or before the applicable Initial Disbursement Date and Article III D with respect to Option Disbursements, Construction Disbursements shall be disbursed or approved for payment by Lenders in the manner and subject to the conditions provided hereunder. Section 9.01. Advance of Construction Disbursements. The Plans and Specifications and Construction Budgets shall be reviewed and approved by Agent Bank and Lenders' Consultant as provided herein. Construction Disbursements shall be made to Borrowers in accordance with the Construction Budgets for work performed or materials supplied to the ACLVI Project or suitably stored in bonded warehouses located in Clark County, Nevada, which are first approved by Agent Bank in connection with the ACLVI Project. Construction Disbursements for Soft Costs and Hard Costs shall be disbursed in no event more than once a month in anticipation of the completion of the ACLVI Project by the end of the Construction Period. For each Construction Disbursement, Borrowers shall submit: (a) a Construction Disbursement Request, to Agent Bank, Lenders' Consultant and each of the Lenders accompanied by invoices or statements totalling the amount for which each Construction Disbursement is requested, and (b) a line item reconciliation of each of the Construction Budgets setting forth for each line item the amount paid to date, the amounts due and owing but not yet paid by Borrowers and budgeted amounts which have not been paid and are not due and owing. Lenders shall disburse such funds monthly in payment of such approved Construction Disbursement Requests, bills and invoices in a timely manner, but in no event later than ten (10) days following the date such proper request is approved by Agent Bank and Lender's Consultant in accordance with the requirements of Article IX. If the tenth (10th) day following the date of such proper request is not a Banking Business Day, the date for payment shall be the next Banking Business Day. Section 9.02. Disbursement for Soft Costs. All Construction Disbursements made hereunder for Soft Costs of the ACLVI Project, including those portions of the cost of purchased FF&E, shall be made by Lenders in accordance with Section 9.01 as the work progresses upon written application and certificate of Borrowers to Agent Bank as set forth in a Construction Disbursement Request. Section 9.03. Disbursement for Hard Costs. Each Construction Disbursement Request for Hard Costs shall be certified by ACLVI and General Contractor with respect to components of the Structural Plans and Specifications and by ACLVI with respect to components of the Interior Plans and Specifications prior to submission to Agent Bank and the Lenders. Each Construction Disbursement Request for Hard Costs shall be further supported by invoices, statements and other forms reasonably requested by Agent Bank (AIA Forms G702 or forms substantially similar thereto if first approved by Agent Bank). Each Subcontractor, material and labor supplier for whose labor or work of improvement such Construction Disbursement is made, together with the General Contractor, shall, prior to the Construction Disbursement next requested, execute and deliver labor and/or materialmen mechanics lien releases in favor of Borrowers, Agent Bank and Lenders releasing all lien rights and claims as of the date of such prior Construction Disbursement to the extent of payment received. Each Construction Disbursement Request shall be submitted to Lenders' Consultant at the address set forth in the Lenders' Consultant Contract and to Agent Bank and each of the Lenders in accordance with Section 11.03. Section 9.04. A Construction Disbursement Does Not Mean Approval of Work or Materials. Each Construction Disbursement Request shall be subject to the approval of Agent Bank and Lenders' Consultant, but the making of any Construction Disbursement or part thereof shall not constitute an approval or acceptance of the work or material, nor be binding upon Agent Bank, Lenders and Lenders' Consultant, except to the extent that the facts actually are as so represented when so approved, nor shall such approval give rise to any liability or responsibility related to: (i) the quality of the work, the quantity of the work, the rate or progress in completion of the work, or the sufficiency of materials or labor being supplied in connection therewith; and (ii) any errors, omissions, inconsistencies or other defects of any nature in the Plans and Specifications. Any inspection of the work that Agent Bank, Lenders and Lenders' Consultant may choose to make, whether through any consulting engineer, agent or employee or officer, during the progress of the work shall be solely for Agent Bank's and Lenders' information and under no circumstances will any such inspection be deemed to have been made for the purpose of supervising or superintending the work, or for the information or protection of any right or interest of any Persons or entities other than Agent Bank and Lenders. Section 9.05. Method of Disbursement. All Construction Disbursements for payment of approved Hard Costs and for approved Soft Costs shall be payable to ACLVI or in the sole and absolute discretion of Agent Bank jointly to ACLVI and the Person to whom payment is due. However, in no event shall Banks be liable for any liens or encumbrances which may be filed against the ACLVI Real Property, and ACLVI agrees to remove any liens or encumbrances filed against the ACLVI Real Property in accordance with Section 5.03. Section 9.06. Changes in the Construction Budgets and Work to be Performed Under the Plans and Specifications. The Project Development Budget shall be a detailed line item construction budget for the ACLVI Project (inclusive of all items shown on the General Contractor's Budget and the Borrower Construction Budget), which budget shall include a contingency reserve ("Contingency Reserve") as of the Closing Date in the amount of Three Million One Hundred Ninety-One Thousand Four Hundred Twenty-Eight Dollars ($3,191,428.00). Borrowers may make usual and ordinary changes in the work to be performed under the Plans and Specifications during the Construction Period provided Borrowers shall not approve any single change order to the General Contractor's Agreement or to any Major Subcontract exceeding the amount of One Hundred Thousand Dollars ($100,000.00) without the prior written consent of Agent Bank. All increases to a line item amount as shown on the Project Development Budget shall be deducted from the Contingency Reserve. Any decreases to a line item amount as shown on the Project Development Budget shall be added to the Contingency Reserve. Borrowers shall be entitled to utilize savings in any completed line item by adding such savings to the Contingency Reserve which shall be reported monthly on a Contingency Transaction Ledger to be prepared in connection with the ACLVI Project. In this regard, Borrowers shall prepare a "Contingency Transaction Ledger" each month which shall detail increases and decreases to budget line items and the Contingency Reserve as shown on the Project Development Budget. All change orders to the General Contractor's Agreement or to any Major Subcontract and changes to budget line items and the Contingency Reserve shall be detailed on the Contingency Transaction Ledger and Borrowers shall further provide Agent Bank with copies of all change orders for the portions of the ACLVI Project to which such Construction Disbursement relates. When the aggregate of all change orders to the General Contractor's Agreement or to any Major Subcontract and changes to budget line items in connection with the ACLVI Project results in a net decrease to the Contingency Reserve in the amount of One Million Dollars ($1,000,000.00) or more, Borrowers shall not approve any further change orders to the General Contractor's Agreement or any Major Subcontract or any further changes to budget line items, regardless of amount, without the prior written consent of Agent Bank and all additional costs shall be first approved in writing by Agent Bank. When the aggregate of all change orders to the General Contractor's Agreement or to any Major Subcontracts and changes to budget line items results in a net decrease to the Contingency Reserve in the amount of Three Million Dollars ($3,000,000.00), or more, Borrowers shall not approve any further change orders of further changes to budget line items, regardless of amount, without the prior written consent of Requisite Lenders. Further, all re-allocations of line items on the Project Development Budget greater than ten percent (10%) of any budgeted line item shall be first consented to by Agent Bank upon the approval of Requisite Lenders. Notwithstanding the foregoing, no structural changes to the Structural Plans and Specifications (other than minor changes not inconsistent with the Plans and Specifications taken as a whole) shall be made without the prior written consent of Agent Bank. Subject to the provisions set forth hereinabove, within the foregoing limitations, the amounts allocated on the Project Development Budget for Contingency Reserve may be allocated amongst the other line item categories at the discretion of Borrowers. Section 9.07. Conditions Precedent to Construction Disbursement. No Construction Disbursement shall be made to Borrowers with respect to the ACLVI Project until: a. Agent Bank and Lenders' Consultant shall have completed Construction Cost Analysis as of the applicable Funding Date and have reviewed and approved as adequate the Plans and Specifications and all engineering reports and any subsequent change orders to the General Contractor's Agreement or to any Major Subcontract or modification to the Plans and Specifications, and the Project Development Budget, each review of which shall be completed on or before ten (10) Banking Business Days after receipt of such Plans and Specifications and/or engineering reports or on or before five (5) Banking Business Days with respect to change orders to the General Contractor's Agreement or any Major Subcontract; b. Borrowers shall have actually paid for, other than the work of improvement for which the Construction Disbursement Request relates, all of the costs of the ACLVI Project as set forth on the itemized Project Development Budget (other than such costs incurred as: (i) have not been billed or invoiced to Borrowers, or (ii) for which Borrowers have received such billing or invoice within fifteen (15) days of such Construction Disbursement Request, or (iii) Borrowers dispute or contest such costs in good faith) for work completed on the ACLVI Project to the date of commencement of the period covered by such Construction Disbursement Request, less the Retainage required hereby; c. Borrowers and Lenders' Consultant shall have certified to Agent Bank that to the date of such Construction Disbursement Request the ACLVI Project has been constructed in substantial compliance with the approved Plans and Specifications and any change orders theretofore issued and in substantial compliance with all necessary Governmental Authorities, ordinances and regulations; d. ACLVI, to the best of its knowledge, the General Contractor and Lenders' Consultant shall have certified to Agent Bank that the portion of the ACLVI Project to be constructed by the General Contractor under the General Contractor's Agreement can be completed in overall compliance with the General Contractor's Budget and that portion of the Project Development Budget allocated for payment to the General Contractor; e. ACLVI shall have certified to Agent Bank, to the best of its knowledge, and Lenders' Consultant shall have approved such certification, that the ACLVI Project can be completed in substantial compliance with the Plans and Specifications and the Project Development Budget for an aggregate amount of Construction Completion Costs equal to or less than the amount of Available Borrowings for Construction Disbursement under the Construction Loan Subfacility; f. Additionally, no Construction Disbursement shall be made to Borrowers if, in the opinion of Lenders' Consultant, the value of the construction in place on the site and materials delivered and suitably stored on site or in a warehouse acceptable to Agent Bank and insured for at least the value of such material in a manner satisfactory to Agent Bank is less than the total of all costs disbursed in connection with the construction of the ACLVI Project. However, Construction Disbursements shall resume when said value exceeds the total of all costs disbursed. If at any time Lenders' Consultant or Agent Bank determine as a result of a Construction Cost Analysis that as of the date of such determination the aggregate amount of Construction Completion Costs exceeds the then amount of Available Borrowings for Construction Disbursement under the Construction Loan Subfacility (the amount of such excess, as the same may exist at any time or from time to time, being herein referred to as a "Construction Overage"), Borrowers shall have ten (10) days from written notice thereof from Agent Bank in which to: (i) increase the Available Borrowings by reducing the Aggregate Outstanding by the amount of such Construction Overage, (ii) deposit in an interest bearing account with Agent Bank, Cash in the amount of such Construction Overage, which Cash shall be disbursed by Agent Bank for the payment of such Construction Overages prior to the making of any further Construction Disbursements, or (iii) make alternative arrangements satisfactory to Requisite Lenders for the payment of Borrower Construction Expenditures in the amount of such Construction Overage. In the event of (ii) above, Borrowers shall have the right to select the type of interest bearing account so as to maximize the interest to be earned which shall accrue to the benefit of Borrowers. In the event of a Construction Overage, all Construction Disbursements for the ACLVI Project shall cease until Borrowers shall have complied with the requirements set forth in Subsections 9.07(f)(i), (ii) or (iii) hereinabove; and g. Agent Bank and Lenders' Consultant shall have approved each Construction Disbursement Request and/or payments made by Borrowers for items as shown on the Project Development Budget. By Borrowers requesting Construction Disbursements under this Article IX, Borrowers shall be deemed to have reaffirmed all representations and warranties contained in Article IV and confirmed that Borrowers are in full compliance with each covenant contained in Article V concurrently with the making of each Construction Disbursement Request. Section 9.08. No Obligation to See to Proper Application of Construction Disbursements. Nothing contained herein or in any other documents and agreements contemplated hereby or executed approximately simultaneously herewith shall impose upon Banks any obligation to see to the proper application of any Construction Disbursements by Borrowers, the Architect, the General Contractor or Subcontractors, and nothing shall prevent Lenders, at their option, from deducting from any Construction Disbursements any sums owed to Banks by Borrowers for unpaid interest or principal, or for sums paid and expended by Lenders for taxes, assessments, insurance and other like payments (after the expiration of any applicable notice and cure period), pursuant to their rights under the terms of this Credit Agreement, the Notes or the Deeds of Trust. Section 9.09. No Construction Disbursements Required in Event of Default. Lenders shall not be required to make any Construction Disbursements hereunder if, at the time when a Construction Disbursement Request is made, there exists an Event of Default hereunder or under any of the other Loan Documents; provided, however, Lenders may, in their sole discretion upon the approval of Requisite Lenders, make Construction Disbursements notwithstanding the existence of an Event of Default and any Construction Disbursements so made shall be deemed to have been made pursuant to this Credit Agreement. Section 9.10. No Construction Disbursements Required if Cloud on Title Exists. Lenders shall not be obligated to make any Construction Disbursements while there is any lien or encumbrance upon the Collateral Properties, other than the Permitted Encumbrances or as provided in Sections 5.03 and 5.10 hereof, which, in the reasonable opinion of counsel for Lenders, may invalidate or have priority over the encumbrance, liens and security interests granted pursuant to the Deeds of Trust. Section 9.11. Indorsement from Title Insurance Company. Title Insurance Company shall update the Title Insurance Policy issued as of the Closing Date in favor of Lenders concurrently with each Construction Disbursement at Borrowers' expense insuring Agent Bank on behalf of Lenders against any further liens, encumbrances or exceptions to the state of title to the ACLVI Real Property as of the date of each advance. Each such update shall be in the form of a written 122 Indorsement (except for the final indorsements as provided in Section 9.15) to the ACLVI Title Insurance Policy together with any other indorsements which Lenders reasonably require. Additionally, Borrowers shall cause Title Insurance Company to issue its 102.5 Foundation Indorsement to the ACLVI Title Insurance Policy upon completion of the foundations for the ACLVI Project as set forth in the Plans and Specifications and shall deliver or cause to be delivered an "as built" survey of the ACLVI Project within ninety (90) days following the Completion Date. Section 9.12. Ownership of all Materials Used on the ACLVI Project. All materials incorporated into the construction of the ACLVI Project, other than ACLVI FF&E leased by Borrowers in accordance with this Credit Agreement, shall have been purchased and paid for in a timely manner so that the absolute ownership thereof shall have vested in Borrowers, subject to any purchase money security or leasehold interest allowed under Section 6.08 herein, and Borrowers shall have furnished to Agent Bank, if required by Agent Bank, copies of the contracts, bills of sale, lease or other agreements under which title or possession thereto is claimed. Section 9.13. Accuracy of Representations and Warranties. Lenders shall not be required to make any Construction Disbursements unless and until the representations and warranties contained in Article IV of this Credit Agreement are true and correct in all material respects on and as of the date of such Construction Disbursement, as though made on and as of such date. Section 9.14. Waiver of Requirements by Requisite Lenders. Lenders reserve the right, in their sole discretion upon the approval of Requisite Lenders, from time to time to make any Construction Disbursements without regard to any condition herein. The Lenders further reserve the right to withhold any payment of any statements or invoices, payment of which is requested, if, in the opinion of the Agent Bank or Lenders' Consultant, the percentage of completion is less than indicated by such statement or invoice. Section 9.15. Disbursement of Retainage During Construction Period. Lenders shall retain (collectively the "Retainage") from the gross amount approved for each Construction Disbursement for Hard Costs made from the proceeds of the Construction Loan Subfacility, ten percent (10%) of the amount of each such Construction Disbursement for Hard Costs until fifty percent (50%) of the Hard Cost component of the Project Development Budget has been expended for work performed and has been verified by the Lenders' Consultant. Thereafter, so long as no Event of Default shall have occurred and be continuing no further Retainage shall be retained from Construction Disbursements thereafter made unless Lenders are otherwise instructed by Borrowers. Retainage withheld by Lenders from the proceeds of the Construction Loan Subfacility shall not bear interest and shall be deemed not disbursed under the Construction Loan Subfacility until released as provided hereinbelow. Notwithstanding the foregoing, Lenders agree to release all Retainage for construction costs relating to excavation, footings and structural steel at such time as the respective work is 100% complete and upon such additional conditions and requirements as may be required by Agent Bank, to Agent Bank's reasonable satisfaction including, without limitation, final lien releases and other evidence that such work will be, with the release of such retention, fully paid. All remaining funds held for Retainage by Lenders shall be released at such time as: a. The ACLVI Project has been substantially completed with only "Punch List" items remaining to be completed which do not materially impair the ability of Borrowers to occupy and operate the ACLVI Project for its intended purpose, no single item exceeding a completion cost in excess of One Hundred Thousand Dollars ($100,000.00) and the aggregate of such "Punch List" items not exceeding One Million Dollars ($1,000,000.00) in substantial compliance with the Plans and Specifications and the terms and requirements of all Governmental Authorities, including, without limitation, compliance with the Americans with Disabilities Act, compliance with which shall be certified to the best knowledge of the Architect, after due inquiry and investigation; b. The ACLVI Project has been accepted by Borrowers as substantially complete and certified substantially completed and the "Punch List" shall be prepared by the Architect, the General Contractor, Interior Designer and Lenders' Consultant after an inspection which shall be made within ten (10) days of the filing of the notice of completion; c. The General Contractor has made a satisfactory account that all Hard Costs covered by the General Contractor's Agreement and Borrowers have made a satisfactory account that all other Hard Costs shown on the Borrower Construction Budget and all Soft Costs have been paid in full, with the exception of the unreleased Retainage, including, but not by way of limitation, all material and labor costs and have delivered copies of all lien releases to Agent Bank and have certified that no claims with respect to the ACLVI Project remain outstanding, including any claims which might give rise to a lien or liens against the ACLVI Project, except for work described in the "Punch List" or as to which Borrowers are contesting the validity or amount; d. The Occupancy Date shall have occurred and a copy of the temporary or final Certificate of Occupancy (if temporary, ACLVI agrees to promptly deliver a copy of the final Certificate of Occupancy to Agent Bank when received by ACLVI) has been issued to ACLVI by the appropriate Governmental Authority and a copy thereof delivered to Agent Bank and ACLVI has taken beneficial occupancy of the entire ACLVI Project, including, without limitation, all public areas which shall be open for the use and occupancy by the public; and e. Borrowers have delivered an "as-built" survey of the ACLVI Project and an "as-built" set of plans and specifications of the ACLVI Project to Agent Bank. From the amounts released as provided hereinabove, one hundred fifty percent (150%) of the Architect, Interior Designer and Lender's Consultants' reasonable estimate of the cost of completing the "Punch List" shall be withheld. Such amounts shall be released monthly upon Construction Disbursement Request submitted by Borrowers. Within forty-five (45) days following final completion of the ACLVI Project, Borrowers shall cause (i) Lender's Consultant to certify completion of the "Punch List"; (ii) a notice of completion to be posted on the ACLVI Real Property and recorded in the Office of the County Recorder of Clark County at final completion, and (iii) Title Insurance Company to issue its final 100, 101.2, 102.5 and 103.1 indorsements to the title policy showing no liens, claims or encumbrances on the ACLVI Real Property except those approved by Requisite Lenders. Section 9.16. Construction Disbursements if a Lender Fails to Provide Funds. Borrowers acknowledge and agree that each of the Lenders shall only be responsible for its respective Pro Rata Share of any Construction Disbursement. In the event any of the Lenders fail to provide its Pro Rata Share of any Construction Disbursement, then the remaining Lenders' obligations to provide their respective Pro Rata Share shall not terminate nor shall Borrowers' obligation to comply with the terms of this Credit Agreement and each of the Loan Documents terminate. If any Lender defaults in providing its Pro Rata Share of any Construction Disbursement, then Agent Bank and Borrowers shall use their best efforts to find a replacement lender. Section 9.17. Possession and Completion of Construction. Upon the occurrence of any Event of Default, Borrowers agree, upon the request of Agent Bank at the direction of Requisite Lenders, to vacate the ACLVI Real Property and permit Lenders: a. To enter directly, or through a receiver or other designated representative, into possession of the ACLVI Project; b. To perform or cause to be performed any and all work and labor necessary, in the discretion of Agent Bank, to complete the ACLVI Project in accordance with the Plans and Specifications; c. To employ security watchmen to protect the ACLVI Project; and d. To advance any portion of the Construction Loan Subfacility not previously advanced (including any retainage and any reserved funds) to the extent necessary or desirable, in the sole discretion of Agent Bank, to complete construction of the ACLVI Project without substantial departure from the Plans and Specifications, and if the completion requires a larger sum than the unadvanced portion of the Construction Loan Subfacility, to advance such additional funds, all of which funds so advanced by Lenders shall be deemed to have been advanced to Borrowers and shall be part of the Indebtedness evidenced by the Revolving Credit Note and secured by the Security Documentation. For this purpose, Borrowers constitute and appoint Agent Bank the true and lawful attorney-in-fact for Borrowers, with full power of substitution, to complete the construction of the ACLVI Project in the name of Borrowers, and hereby empower Agent Bank as such attorney to take all actions that Agent Bank considers necessary or desirable in connection therewith, including but not limited to the following: (i) to use any funds of Borrowers, including any balance that may be held in escrow and any funds that may remain unadvanced under this agreement, for the purpose of completing the ACLVI Project in substantially the manner called for by the Plans and Specifications; (ii) to make such additions, changes and corrections in the Plans and Specifications as Agent Bank may consider necessary or desirable to complete the ACLVI Project in substantially the manner contemplated by the Plans and Specifications; (iii) to employ such contractors, subcontractors, agents, engineers, architects, inspectors, attorneys and other Persons as Agent Bank may consider necessary or desirable for such purposes; (iv) to pay, settle or compromise all existing or future bills and claims that are or may be or become liens against the ACLVI Real Property, or may be necessary or desirable for the completion of the ACLVI Project or the clearance of title to the ACLVI Real Property; (v) to execute in the name of Borrowers all applications and certificates that may be required by any construction contract; and (vi) to do any act with respect to the construction of the ACLVI Project that Borrowers or ACLVI could do on their own behalf. This power of attorney is a power coupled with an interest and cannot be revoked by death or otherwise. Such attorney-in-fact shall also have power to prosecute and defend all actions or proceedings in connection with the construction of the ACLVI Project and to take such action and require such performance as Agent Bank considers necessary. ARTICLE X AGENCY PROVISIONS Section 10.01. Appointment. a. Each Lender hereby (i) designates and appoints WFB as the Agent Bank of such Lender under this Credit Agreement and the Loan Documents, (ii) authorizes and directs Agent Bank to enter into the Loan Documents other than this Credit Agreement for the benefit of Lenders, and (iii) authorizes Agent Bank to take such action on its behalf under the provisions of this Credit Agreement and the Loan Documents and to exercise such powers as are set forth herein or therein, together with such other powers as are reasonably incidental thereto, subject to the limitations referred to in Sections 10.10(a) and 10.10(b). Agent Bank agrees to act as such on the express conditions contained in this Article X. b. The provisions of this Article X are solely for the benefit of Agent Bank and Lenders, and Borrowers shall not have any rights to rely on or enforce any of the provisions hereof (other than as set forth in the provisions of Sections 10.03, 10.09 and 11.10), provided, however, that the foregoing shall in no way limit Borrowers' obligations under this Article X. In performing its functions and duties under this Credit Agreement, Agent Bank shall act solely as Agent Bank of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for Borrowers or any other Person. Section 10.02. Nature of Duties. Agent Bank shall not have any duties or responsibilities except those expressly set forth in this Credit Agreement or in the Loan Documents. The duties of Agent Bank shall be administrative in nature. Subject to the provisions of Sections 10.05 and 10.07, Agent Bank shall administer the Bank Facilities in the same manner as it administers its own loans. Promptly following the effectiveness of this Credit Agreement, Agent Bank shall send to each Lender a duplicate executed original, to the extent the same are available in sufficient numbers, of the Credit Agreement and a copy of each other Loan Document in favor of Lenders and a copy of the filed or recorded Security Documentation, with the originals of the latter to be held and retained by Agent Bank for the benefit of all Lenders. Agent Bank shall not have by reason of this Credit Agreement a fiduciary relationship in respect of any Lender. Nothing in this Credit Agreement or any of the Loan Documents, expressed or implied, is intended or shall be construed to impose upon Agent Bank any obligation in respect of this Credit Agreement or any of the Loan Documents except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Borrowers and the Collateral in connection with the making and the continuance of the Credit Facility hereunder and shall make its own appraisal of the creditworthiness of the Borrowers and the Collateral, and, except as specifically provided herein, Agent Bank shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the Closing Date or at any time or times thereafter. Section 10.03. Disbursement of Borrowings. a. Not later than the next Banking Business Day following receipt of a Notice of Borrowing, Agent Bank shall send a copy thereof by facsimile to each other Lender and shall otherwise notify each Lender of the proposed Borrowing and the Funding Date. Each Lender shall make available to Agent Bank (or the funding bank or entity designated by Agent Bank), the amount of such Lender's Pro Rata Share of such Borrowing in immediately available funds not later than the times designated in Section 10.03(b). Unless Agent Bank shall have been notified by any Lender not later than the close of business (San Francisco time) on the Banking Business Day immediately preceding the Funding Date in respect of any Borrowing that such Lender does not intend to make available to Agent Bank such Lender's Pro Rata Share of such Borrowing, Agent Bank may assume that such Lender shall make such amount available to Agent Bank. If any Lender does not notify Agent Bank of its intention not to make available its Pro Rata Share of such Borrowing as described above, but does not for any reason make available to Agent Bank such Lender's Pro Rata Share of such Borrowing, such Lender shall pay to Agent Bank forthwith on demand such amount, together with interest thereon at the Federal Funds Rate. In any case where a Lender does not for any reason make available to Agent Bank such Lender's Pro Rata Share of such Borrowing, Agent Bank, in its sole discretion, may, but shall not be obligated to, fund to Borrowers such Lender's Pro Rata Share of such Borrowing. If Agent Bank funds to Borrowers such Lender's Pro Rata Share of such Borrowing and if such Lender subsequently pays to Agent Bank such corresponding amount, such amount so paid shall constitute such Lender's Pro Rata Share of such Borrowing. Nothing in this Section 10.03(a) shall alter the respective rights and obligations of the parties hereunder in respect of a Defaulting Lender or a Non- Pro Rata Borrowing. b. Requests by Agent Bank for funding by Lenders of Borrowings will be made by telecopy. Each Lender shall make the amount of its Pro Rata Share of such Borrowing available to Agent Bank in Dollars and in immediately available funds, to such bank and account, in San Francisco, California as Agent Bank may designate, not later than 9:00 A.M. (San Francisco time) on the Funding Date designated in the Notice of Borrowing with respect to such Borrowing. c. Nothing in this Section 10.03 shall be deemed to relieve any Lender of its obligation hereunder to make its Pro Rata Share of Borrowings on any Funding Date, nor shall any Lender be responsible for the failure of any other Lender to perform its obligations to advance its Pro Rata Share of any Borrowing hereunder, and the Pro Rata Share of the Aggregate Commitment of any Lender shall not be increased or decreased as a result of the failure by any other Lender to perform its obligation to advance its Pro Rata Share of any Borrowing. Section 10.04. Distribution and Apportionment of Payments. a. Subject to Section 10.04(b), payments actually received by Agent Bank for the account of Lenders shall be paid to them promptly after receipt thereof by Agent Bank, but in any event within one (1) Banking Business Day, provided that Agent Bank shall pay to Lenders interest thereon, at the Federal Funds Rate from the Banking Business Day following receipt of such funds by Agent Bank until such funds are paid in immediately available funds to Lenders. Subject to Section 10.04(b), all payments of principal and interest in respect of Funded Outstandings, all payments of the fees described in this Credit Agreement, and all payments in respect of any other Obligations shall be allocated among such other Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein. Agent Bank shall promptly distribute, but in any event within one (1) Banking Business Day, to each Lender at its primary address set forth on the appropriate signature page hereof or on the applicable Assignment and Assumption Agreement, or at such other address as a Lender may request in writing, such funds as it may be entitled to receive, provided that Agent Bank shall in any event not be bound to inquire into or determine the validity, scope or priority of any interest or entitlement of any Lender and may suspend all payments and seek appropriate relief (including, without limitation, instructions from Requisite Lenders or all Lenders, as applicable, or an action in the nature of interpleader) in the event of any doubt or dispute as to any apportionment or distribution contemplated hereby. The order of priority herein is set forth solely to determine the rights and priorities of Lenders as among themselves and may at any time or from time to time be changed by Lenders as they may elect, in writing in accordance with Section 11.01, without necessity of notice to or consent of or approval by Borrowers or any other Person. All payments or other sums received by Agent Bank for the account of Lenders (including, without limitation, principal and interest payments, the proceeds of any and all insurance maintained with respect to any of the Collateral, and any and all condemnation proceeds with respect to any of the Collateral) shall not constitute property or assets of the Agent Bank and shall be held by Agent Bank, solely in its capacity as administrative and collateral agent for itself and the other Lenders, subject to the Loan Documents. b. Notwithstanding any provision hereof to the contrary, until such time as a Defaulting Lender has funded its Pro Rata Share of Borrowing which was previously a Non Pro Rata Borrowing, or all other Lenders have received payment in full (whether by repayment or prepayment) of the principal due in respect of such Non Pro Rata Borrowing, all principal sums owing to such Defaulting Lender hereunder shall be subordinated in right of payment to the prior payment in full of all principal, in respect of all Non Pro Rata Borrowing in which the Defaulting Lender has not funded its Pro Rata Share. This provision governs only the relationship among Agent Bank, each Defaulting Lender, and the other Lenders; nothing hereunder shall limit the obligation of Borrowers to repay all Borrowings in accordance with the terms of this Credit Agreement. The provisions of this section shall apply and be effective regardless of whether an Event of Default occurs and is then continuing, and notwithstanding (i) any other provision of this Credit Agreement to the contrary, (ii) any instruction of Borrowers as to their desired application of payments or (iii) the suspension of such Defaulting Lender's right to vote on matters which are subject to the consent or approval of Requisite Lenders or all Lenders. No Nonusage Fee shall accrue in favor of, or be payable to, such Defaulting Lender from the date of any failure to fund Borrowings or reimburse Agent Bank for any Liabilities and Costs as herein provided until such failure has been cured, and Agent Bank shall be entitled to (A) withhold or setoff, and to apply to the payment of the defaulted amount and any related interest, any amounts to be paid to such Defaulting Lender under this Credit Agreement, and (B) bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. In addition, the Defaulting Lender shall indemnify, defend and hold Agent Bank and each of the other Lenders harmless from and against any and all Liabilities and Costs, plus interest thereon at the Default Rate, which they may sustain or incur by reason of or as a direct consequence of the Defaulting Lender's failure or refusal to abide by its obligations under this Credit Agreement. Section 10.05. Rights, Exculpation, Etc. Neither Agent Bank, any Affiliate of Agent Bank, nor any of their respective officers, directors, employees, agents, attorneys or consultants, shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the Loan Documents, or in connection herewith or therewith, except that Agent Bank shall be liable for its gross negligence or willful misconduct. In the absence of gross negligence or willful misconduct, Agent Bank shall not be liable for any apportionment or distribution of payments made by it in good faith pursuant to Section 10.04, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Person to whom payment was due, but not made, shall be to recover from the recipients of such payments any payment in excess of the amount to which they are determined to have been entitled. Agent Bank shall not be responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Credit Agreement, any of the Security Documentation or any of the other Loan Documents, or any of the transactions contemplated hereby and thereby; or for the financial condition of the Borrowers or any of their Affiliates. Agent Bank shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Credit Agreement or any of the Loan Documents or the financial condition of the Borrowers or any of their Affiliates, or the existence or possible existence of any Default or Event of Default. Section 10.06. Reliance. Agent Bank shall be entitled to rely upon any written notices, statements, certificates, orders or other documents, telecopies or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Credit Agreement or any of the Loan Documents and its duties hereunder or thereunder, upon advice of legal counsel (including counsel for Borrowers), independent public accountant and other experts selected by it. Section 10.07. Indemnification. To the extent that Agent Bank is not reimbursed and indemnified by Borrowers, Lenders will reimburse, within ten (10) Banking Business Days after notice from Agent Bank, and indemnify and defend Agent Bank for and against any and all Liabilities and Costs which may be imposed on, incurred by, or asserted against it in any way relating to or arising out of this Credit Agreement, the Security Documentation or any of the other Loan Documents or any action taken or omitted by Agent Bank or under this Credit Agreement, the Security Documentation or any of the other Loan Documents, in proportion to each Lender's Pro Rata Share; provided that no Lender shall be liable for any portion of such Liabilities and Costs resulting from Agent Bank's gross negligence or willful misconduct. The obligations of Lenders under this Section 10.07 shall survive the payment in full of all Obligations and the termination of this Credit Agreement. In the event that after payment and distribution of any amount by Agent Bank to Lenders, any Lender or third party, including Borrowers, any creditor of Borrowers or a trustee in bankruptcy, recovers from Agent Bank any amount found to have been wrongfully paid to Agent Bank or disbursed by Agent Bank to Lenders, then Lenders, in proportion to their respective Pro Rata Shares, shall reimburse Agent Bank for all such amounts. Notwithstanding the foregoing, Agent Bank shall not be obligated to advance Liabilities and Costs and may require the deposit by each Lender of its Pro Rata Share of any material Liabilities and Costs anticipated by Agent Bank before they are incurred or made payable. Section 10.08. Agent Individually. With respect to its Pro Rata Share of the Aggregate Commitment hereunder and the Borrowings made by it, Agent Bank shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender. The terms "Lenders", "Requisite Lenders" or any similar terms may include Agent Bank in its individual capacity as a Lender or one of the Requisite Lenders, but Requisite Lenders shall not include Agent Bank solely in its capacity as Agent Bank and need not necessarily include Agent Bank in its capacity as a Lender. Agent Bank and any Lender and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with Borrowers or any of their Affiliates as if it were not acting as Agent Bank or Lender pursuant hereto. Section 10.09. Successor Agent Bank; Resignation of Agent Bank; Removal of Agent Bank. a. Agent Bank may resign from the performance of all its functions and duties hereunder at any time by giving at least thirty (30) Banking Business Days' prior written notice to Lenders and Borrowers, and shall automatically cease to be Agent Bank hereunder in the event a petition in bankruptcy shall be filed by or against Agent Bank or the Federal Deposit Insurance Corporation or any other Governmental Authority shall assume control of Agent Bank or Agent Bank's interests under the Bank Facilities. Further, Lenders (other than Agent Bank) may unanimously remove Agent Bank at any time upon the occurrence of gross negligence or wilful misconduct by Agent Bank by giving at least thirty (30) Banking Business Days' prior written notice to Agent Bank, Borrowers and all other Lenders. Such resignation or removal shall take effect upon the acceptance by a successor Agent Bank of appointment pursuant to clause (b) or (c). b. Upon any such notice of resignation by or removal of Agent Bank, Requisite Lenders shall appoint a successor Agent Bank which appointment shall be subject to Borrowers' consent (other than upon the occurrence and during the continuance of any Event of Default), which shall not be unreasonably withheld or delayed. Any successor Agent Bank must be a bank (i) the senior debt obligations of which (or such bank's parent's senior unsecured debt obligations) are rated not less than Baa-2 by Moody's Investors Services, Inc. or a comparable rating by a rating agency acceptable to Requisite Lenders and (ii) which has total assets in excess of Ten Billion Dollars ($10,000,000,000.00). c. If a successor Agent Bank shall not have been so appointed within said thirty (30) Banking Business Day period, the retiring or removed Agent Bank, with the consent of Borrowers (other than upon the occurrence and during the continuance of any Event of Default) (which may not be unreasonably withheld or delayed), shall then appoint a successor Agent Bank who shall meet the requirements described in subsection (b) above and who shall serve as Agent Bank until such time, if any, as Requisite Lenders, with the consent of Borrowers (other than upon the occurrence and during the continuance of any Event of Default), appoint a successor Agent Bank as provided above. Section 10.10. Consent and Approvals. a. Each consent, approval, amendment, modification or waiver specifically enumerated in this Section 10.10(a) shall require the consent of Requisite Lenders: (i) Approval of Borrowings with less than full compliance with requirements of Article IIIB and C or Article IX (Section 2.04); (ii) Consent to modification to financial reporting requirements or production of additional financial or other information (Section 5.08); (iii) Approval of Investments (Section 6.07); (iv) Approval of a change in the method of calculation of any financial covenants, standards or terms as a result of a change in accounting principle (Section 6.14); (v) Direct Agent Bank to declare the unpaid balance of the Credit Facility fully due and payable (Section 7.02); (vi) Direct the disposition of insurance proceeds or condemnation awards under certain circumstances (Section 8.02); (vii) Approval of change orders to the General Contractor's Agreement and Major Subcontracts and re-allocations of line items on the Project Development Budget after the Contingency Reserve has been reduced by more than Three Million Dollars ($3,000,000.00) or a line item of the Project Development Budget increases by more than ten percent (10%) of the amount of such line item (Section 9.06); (viii) Approval of Construction Disbursements notwithstanding the existence of an Event of Default (Section 9.09); (ix) Approval of Construction Disbursement without regard to any condition (Section 9.14); (x) Approve possession of the ACLVI Project and Completion of Construction upon the occurrence of an Event of Default (Section 9.17); (xi) Approval of appointment of successor Agent Bank (Section 10.09); (xii) Approval of certain Protective Advances (Section 10.11(a)); (xiii) Approval of a Post-Foreclosure Plan and related matters (Section 10.11(e)); (xiv) Consent to action or proceeding against Borrowers or the Collateral by any Lender (Section 10.12); (xv) Except as referred to in subsection (b) below, approval of any amendment, modification or termination of this Credit Agreement, or waiver of any provision herein (Section 11.01). b. Each consent, approval, amendment, modification or waiver specifically enumerated in Section 11.01 shall require the consent of all Lenders. c. In addition to the required consents or approvals referred to in subsection (a) above, Agent Bank may at any time request instructions from Requisite Lenders with respect to any actions or approvals which, by the terms of this Credit Agreement or of any of the Loan Documents, Agent Bank is permitted or required to take or to grant without instructions from any Lenders, and if such instructions are promptly requested, Agent Bank shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from taking any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Requisite Lenders. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent Bank as a result of Agent Bank acting or refraining from acting under this Credit Agreement, the Security Documentation or any of the other Loan Documents in accordance with the instructions of Requisite Lenders or, where applicable, all Lenders. Agent Bank shall promptly notify each Lender at any time that the Requisite Lenders have instructed Agent Bank to act or refrain from acting pursuant hereto. d. Each Lender agrees that any action taken by Agent Bank at the direction or with the consent of Requisite Lenders in accordance with the provisions of this Credit Agreement or any Loan Document, and the exercise by Agent Bank at the direction or with the consent of Requisite Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders, except for actions specifically requiring the approval of all Lenders. All communications from Agent Bank to Lenders requesting Lenders' determination, consent, approval or disapproval (i) shall be given in the form of a written notice to each Lender, (ii) shall be accompanied by a description of the matter or thing as to which such determination, approval, consent or disapproval is requested, or shall advise each Lender where such matter or thing may be inspected, or shall otherwise describe the matter or issue to be resolved, (iii) shall include, if reasonably requested by a Lender and to the extent not previously provided to such Lender, written materials and a summary of all oral information provided to Agent Bank by Borrowers in respect of the matter or issue to be resolved, and (iv) shall include Agent Bank's recommended course of action or determination in respect thereof. Each Lender shall reply promptly, but in any event within ten (10) Banking Business Days (the "Lender Reply Period"). Unless a Lender shall give written notice to Agent Bank that it objects to the recommendation or determination of Agent Bank (together with a written explanation of the reasons behind such objection) within the Lender Reply Period, such Lender shall be deemed to have approved of or consented to such recommendation or determination. With respect to decisions requiring the approval of Requisite Lenders or all Lenders, Agent Bank shall submit its recommendation or determination for approval of or consent to such recommendation or determination to all Lenders and upon receiving the required approval or consent shall follow the course of action or determination recommended to Lenders by Agent Bank or such other course of action recommended by Requisite Lenders, and each non-responding Lender shall be deemed to have concurred with such recommended course of action. Section 10.11. Agency Provisions Relating to Collateral. a. Agent Bank is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Loan Document which may be necessary to perfect and maintain Liens of the Security Documentation upon the Collateral granted pursuant to the Loan Documents. Agent Bank may make, and shall be reimbursed by Lenders (in accordance with their Pro Rata Shares), to the extent not reimbursed by Borrowers, for, Protective Advance(s) during any one (1) calendar year with respect to the Collateral up to the sum of (i) amounts expended to pay real estate taxes, assessments and governmental charges or levies imposed upon such Collateral, (ii) amounts expended to pay insurance premiums for policies of insurance related to such Collateral, and (iii) One Hundred Thousand Dollars ($100,000.00). Protective Advances in excess of said sum during any calendar year for any Collateral shall require the consent of Requisite Lenders. In addition, Agent Bank is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender, to waive the imposition of the late fees provided for in Section 2.09(a) up to a maximum of two (2) times per calendar year, including any extensions. b. Lenders hereby irrevocably authorize Agent Bank, at its option and in its discretion, to release any Security Documentation granted to or held by Agent Bank upon any Collateral (i) upon Bank Facilities Termination and repayment and satisfaction of all Borrowings, and all other Obligations and the termination of this Credit Agreement, or (ii) if approved, authorized or ratified in writing by Agent Bank at the direction of all Lenders. Agent Bank shall not be required to execute any document to evidence the release of the Security Documentation granted to Agent Bank for the benefit of Lenders herein or pursuant hereto upon any Collateral if, in Agent Bank's opinion, such document would expose Agent Bank to liability or create any obligation or entail any consequence other than the release of such Security Documentation without recourse or warranty, and such release shall not in any manner discharge, affect or impair the Obligations or any Security Documentation upon (or obligations of Borrowers in respect of) any property which shall continue to constitute part of the Collateral. c. Except as provided in this Credit Agreement, Agent Bank shall have no obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists or is owned by Borrowers or is cared for, protected or insured or has been encumbered or that the Security Documentation granted to Agent Bank herein or in any of the other Loan Documents or pursuant hereto or thereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority. d. Should Agent Bank (i) employ counsel for advice or other representation (whether or not any suit has been or shall be filed) with respect to any Collateral or any part thereof, or any of the Loan Documents, or the attempt to enforce any security interest or Security Documentation on any of the Collateral, or (ii) commence any proceeding or in any way seek to enforce its rights or remedies under the Loan Documents, irrespective of whether as a result thereof Agent Bank shall acquire title to any Collateral, either through foreclosure, deed in lieu of foreclosure or otherwise, each Lender, upon demand therefor from time to time, shall contribute its share (based on its Pro Rata Share) of the reasonable costs and/or expenses of any such advice or other representation, enforcement or acquisition, including, but not limited to, fees of receivers or trustees, court costs, title company charges, filing and recording fees, appraisers' fees and fees and expenses of attorneys to the extent not otherwise reimbursed by Borrowers; provided that Agent Bank shall not be entitled to reimbursement of its attorneys' fees and expenses incurred in connection with the resolution of disputes between Agent Bank and other Lenders unless Agent Bank shall be the prevailing party in any such dispute. Any loss of principal and interest resulting from any Event of Default shall be shared by Lenders in accordance with their respective Pro Rata Shares. It is understood and agreed that in the event Agent Bank determines it is necessary to engage counsel for Lenders from and after the occurrence of an Event of Default, said counsel shall be selected by Agent Bank. e. In the event that all or any portion of the Collateral is acquired by Agent Bank as the result of a foreclosure or the acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of Borrowers' obligations, title to any such Collateral or any portion thereof shall be held in the name of Agent Bank or a nominee or subsidiary of Agent Bank, as agent, for the ratable benefit of Agent Bank and Lenders. Agent Bank shall prepare a recommended course of action for such Collateral (the "Post-Foreclosure Plan"), which shall be subject to the approval of the Requisite Lenders. Unless a Lender shall give written notice to Agent Bank that it objects to the recommended Post-Foreclosure Plan or any alternative Post-Foreclosure Plan as set forth below, within the Lender Reply Period, such Lender shall be deemed to have approved such Post-Foreclosure Plan. In the event that Requisite Lenders do not approve such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post- Foreclosure Plan to Agent Bank, and Agent Bank shall submit any and all such additional Post-Foreclosure Plans to the Lenders for evaluation and the approval of Requisite Lenders. In accordance with the approved Post-Foreclosure Plan, Agent Bank shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Collateral acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents of the sale of such Collateral, and the collecting of rents and other sums from such Collateral and paying the expenses of such Collateral; actions taken by Agent Bank with respect to the Collateral, which are not provided for in the approved Post- Foreclosure Plan or reasonably incidental thereto, shall require the consent of Requisite Lenders by way of supplement to such Post-Foreclosure Plan. Upon demand therefor from time to time, each Lender will contribute its share (based on its Pro Rata Share) of all reasonable costs and expenses incurred by Agent Bank pursuant to the Post- Foreclosure Plan in connection with the construction, operation, management, maintenance, leasing and sale of such Collateral. In addition, Agent Bank shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral, and each of the Lenders shall promptly contribute its Pro Rata Share of any operating loss for such Collateral, and such other expenses and operating reserves as Agent Bank shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Collateral, Agent Bank shall, in accordance with all applicable Gaming Laws and the Post-Foreclosure Plan, determine the amount and timing of distributions to Lenders. All such distributions shall be made to Lenders in accordance with their respective Pro Rata Shares. Lenders acknowledge that if title to any Collateral is obtained by Agent Bank or its nominee, such Collateral will not be held as a permanent investment but will be liquidated as soon as practicable. Agent Bank shall undertake to sell such Collateral, at such price and upon such terms and conditions as the Requisite Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Collateral in accordance with the immediately preceding sentence shall name Agent Bank, as agent for Lenders, as the beneficiary or mortgagee. In such case, Agent Bank and Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of Lenders in the same Pro Rata Shares as provided hereunder, which agreement shall be in all material respects similar to this Article X insofar as the same is appropriate or applicable. Section 10.12. Lender Actions Against Collateral. Each Lender agrees that it will not take any action, nor institute any actions or proceedings, against Borrowers or any other obligor hereunder, under the Security Documentation or under any other Loan Documents with respect to exercising claims against or rights in any Collateral without the consent of Requisite Lenders. Section 10.13. Ratable Sharing. Subject to Section 10.03 and 10.04, Lenders agree among themselves that (i) with respect to all amounts received by them which are applicable to the payment of the Obligations, equitable adjustment will be made so that, in effect, all such amounts will be shared among them ratably in accordance with their Pro Rata Shares, whether received by voluntary payment, by counterclaim or cross action or by the enforcement of any or all of the Obligations, or the Collateral, (ii) if any of them shall by voluntary payment or by the exercise of any right of counterclaim or otherwise, receive payment of a proportion of the aggregate amount of the Obligations held by it which is greater than its Pro Rata Share of the payments on account of the Obligations, the one receiving such excess payment shall purchase, without recourse or warranty, an undivided interest and participation (which it shall be deemed to have done simultaneously upon the receipt of such payment) in such Obligations owed to the others so that all such recoveries with respect to such Obligations shall be applied ratably in accordance with their Pro Rata Shares; provided, that if all or part of such excess payment received by the purchasing party is thereafter recovered from it, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to that party to the extent necessary to adjust for such recovery, but without interest except to the extent the purchasing party is required to pay interest in connection with such recovery. Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 10.13 may, to the fullest extent permitted by law, exercise all its rights of payment with respect to such participation as fully as if such Lender were the direct creditor of Borrowers in the amount of such participation. No Lender shall exercise any setoff, banker's lien or other similar right in respect to any Obligations without the prior written approval by Agent Bank. Section 10.14. Delivery of Documents. Agent Bank shall as soon as reasonably practicable distribute to each Lender at its primary address set forth on the appropriate counterpart signature page hereof, or at such other address as a Lender may request in writing, (i)copies of all documents to which such Lender is a party or of which is executed or held by Agent Bank on behalf of such Lender, (ii) all documents of which Agent Bank receives copies from Borrowers pursuant to Article VI and Section 11.03, (iii) all other documents or information which Agent Bank is required to send to Lenders pursuant to the terms of this Credit Agreement, (iv) other information or documents received by Agent Bank at the request of any Lender, and (v) all notices received by Agent Bank pursuant to Section 5.20. In addition, within fifteen (15) Banking Business Days after receipt of a request in writing from a Lender for written information or documents provided by or prepared by Borrowers, Agent Bank shall deliver such written information or documents to such requesting Lender if Agent Bank has possession of such written information or documents in its capacity as Agent Bank or as a Lender. Section 10.15. Notice of Events of Default. Agent Bank shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default (other than nonpayment of principal of or interest on the Credit Facility) unless Agent Bank has received notice in writing from a Lender or Borrowers referring to this Credit Agreement or the other Loan Documents, describing such event or condition and expressly stating that such notice is a notice of a Default or Event of Default. Should Agent Bank receive such notice of the occurrence of a Default or Event of Default, or should Agent Bank send Borrowers a notice of Default or Event of Default, Agent Bank shall promptly give notice thereof to each Lender. Section 10.16. Servicing Compensation. As compensation for collecting the payments and otherwise providing services to Lenders under the Loan Documents, Agent Bank shall retain for itself from all payments of interest on the Credit Facility and the Revolving Credit Note hereunder an amount (the "Servicing Fee") equal to one- eighth of one percent (0.125%) per annum of the principal amount of the Credit Facility and the Revolving Credit Note to which such interest payments relate. The Servicing Fee shall be deducted from the interest actually paid by Borrowers in each payment, so that the effective rates of interest to the respective Lenders shall be: a. with respect to Base Rate Loans, the Base Rate plus the Applicable Base Rate Margin, less one- eighth of one percent (0.125%) with the deducted one-eighth of one percent (0.125%) to be retained by Agent Bank as a Servicing Fee; and b. with respect to LIBOR Loans, the LIBO Rate plus the Applicable LIBO Rate Margin, less one-eighth of one percent (0.125%) with the deducted one-eighth of one percent (0.125%) to be retained by Agent Bank as a Servicing Fee. In the event Agent Bank receives less than the full amount of interest due with respect to any installment of interest, the amount of the applicable Servicing Fee shall be proportionately reduced. ARTICLE XI GENERAL TERMS AND CONDITIONS The following terms and conditions shall be applicable throughout the term of this Credit Agreement: Section 11.01. Amendments and Waivers. (a) No amendment or modification of any provision of this Credit Agreement shall be effective without the written agreement of Requisite Lenders (after notice to all Lenders) and Borrowers (except for rights and priorities of Lenders as amongst themselves as provided in Section 10.04(a) which do not require the consent of Borrowers), and (b) no termination or waiver of any provision of this Credit Agreement, or consent to any departure by Borrowers therefrom (except as expressly provided in Section 10.11(a) with respect to waivers of late fees), shall in any event be effective without the written concurrence of Requisite Lenders (after notice to all Lenders), which Requisite Lenders shall have the right to grant or withhold at their sole discretion, except that the following amendments, modifications or waivers shall require the consent of all Lenders: (i) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Requisite Lenders, modify this Section 11.01 or change the definition of "Requisite Lenders", or remove Agent Bank under Section 10.09(a), shall be effective unless consented to by all of the Lenders, without regard to the vote of Agent Bank as a Lender; (ii) increase the Aggregate Commitment or the Syndication Interest of any Lender, release any Collateral except as specifically provided in the Credit Agreement, extend the Maturity Date or change any provision expressly requiring the consent of all Lenders shall be made without the consent of each Lender; or (iii) reduce any fees described in Section 2.10 or extend the due date for, or reduce or postpone the amount of, any Scheduled Reductions on the Credit Facility, or reduce the rate of interest or postpone the payment of interest on the Credit Facility, shall be made without the consent of all of the Lenders. No amendment, modification, termination or waiver of any provision of Article X or any other provision referring to Agent Bank shall be effective without the written concurrence of Agent Bank, but only if such amendment, modification, termination or waiver alters the obligations or rights of Agent Bank. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Borrowers in any case shall entitle Borrowers to any other further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 11.01 shall be binding on each assignee, transferee or recipient of Agent Bank's or any Lender's Syndication Interest under this Credit Agreement or the Credit Facility at the time outstanding. No modification of Section 2.08 or the Swingline Note shall be made without the consent of the Swingline Lender. Section 11.02. Failure to Exercise Rights. Nothing herein contained shall impose upon Banks or Borrowers any obligation to enforce any terms, covenants or conditions contained herein. Failure of Banks or Borrowers, in any one or more instances, to insist upon strict performance by Borrowers or Banks of any terms, covenants or conditions of this Credit Agreement or the other Loan Documents, shall not be considered or taken as a waiver or relinquishment by Banks or Borrowers of their right to insist upon and to enforce in the future, by injunction or other appropriate legal or equitable remedy, strict compliance by Borrowers or Banks with all the terms, covenants and conditions of this Credit Agreement and the other Loan Documents. The consent of Banks or Borrowers to any act or omission by Borrowers or Banks shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for Banks' or Borrowers' consent to be obtained in any future or other instance. Section 11.03. Notices and Delivery. Unless otherwise specifically provided herein, any consent, notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied or sent by courier service or United States mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy (or on the next Banking Business Day if such telecopy is received on a non-Banking Business Day or after 5:00 p.m. on a Banking Business Day) or four (4) Banking Business Days after deposit in the United States mail (registered or certified, with postage prepaid and properly addressed). Notices to Agent Bank pursuant to Articles II and IX shall not be effective until received by Agent Bank. For the purposes hereof, the addresses of the parties hereto (until notice of a change thereof is delivered as provided in this Section 11.03) shall be as set forth below each party's name on the signature pages hereof, or, as to each party, at such other address as may be designated by such party in an Assignment and Assumption Agreement or in a written notice to all of the other parties. All deliveries to be made to Agent Bank for distribution to the Lenders shall be made to Agent Bank at the addresses specified for notice on the signature page hereto and in addition, a sufficient number of copies of each such delivery shall be delivered to Agent Bank for delivery to each Lender at the address specified for deliveries on the signature page hereto or such other address as may be designated by Agent Bank in a written notice. Section 11.04. Modification in Writing. This Credit Agreement and the other Loan Documents constitute the entire agreement between the parties and supersede all prior agreements whether written or oral with respect to the subject matter hereof, including, but not limited to, any term sheets furnished by any of the Banks to Borrowers. Neither this Credit Agreement, nor any other Loan Documents, nor any provision herein, or therein, may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. Section 11.05. Other Agreements. If the terms of any documents, certificates or agreements delivered in connection with this Credit Agreement are inconsistent with the terms of the Loan Documents, Borrowers shall use their best efforts to amend such document, certificate or agreement to the satisfaction of Agent Bank to remove such inconsistency. Section 11.06. Counterparts. This Credit Agreement may be executed by the parties hereto in any number of separate counterparts with the same effect as if the signatures hereto and hereby were upon the same instrument. All such counterparts shall together constitute but one and the same document. Section 11.07. Rights, Powers and Remedies are Cumulative. None of the rights, powers and remedies conferred upon or reserved to Agent Bank, Banks or Borrowers in this Credit Agreement are intended to be exclusive of any other available right, power or remedy, but each and every such right, power and remedy shall be cumulative and not alternative, and shall be in addition to every right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute. Any forbearance, delay or omission by Agent Bank, Banks or Borrowers in the exercise of any right, power or remedy shall not impair any such right, power or remedy or be considered or taken as a waiver or relinquishment of the right to insist upon and to enforce in the future, by injunction or other appropriate legal or equitable remedy, any of said rights, powers and remedies given to Agent Bank, Banks or Borrowers herein. The exercise of any right or partial exercise thereof by Agent Bank, Banks or Borrowers shall not preclude the further exercise thereof and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Agent Bank or Banks, as the case may be. Section 11.08. Continuing Representations. All agreements, representations and warranties made herein shall survive the execution and delivery of this Credit Agreement, the making of the Credit Facility hereunder and the execution and delivery of each other Loan Document until and final payment of all sums owing under the Bank Facilities and each of the Bank Facilities have been irrevocably terminated. Section 11.09. Successors and Assigns. All of the terms, covenants, warranties and conditions contained in this Credit Agreement shall be binding upon and inure to the sole and exclusive benefit of the parties hereto and their respective successors and assigns. Section 11.10. Assignment of Loan Documents by Borrowers or Syndication Interests by Lenders. a. This Credit Agreement and the other Loan Documents to which Borrowers are a party will be binding upon and inure to the benefit of Borrowers, the Agent Bank, each of the Banks, and their respective successors and assigns, except that, Borrowers may not assign their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any attempted assignment or delegation in contravention of the foregoing shall be null and void. Any Lender may at any time pledge its Syndication Interest in the Credit Facility, the Credit Agreement and the Loan Documents to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. b. Each Lender may assign all or any part of its Syndication Interest in the Credit Facility to any Affiliate of such Lender which is an Eligible Assignee or to any other Lender without consent and to one or more financial institutions that are Eligible Assignees with the prior consent of the Agent Bank and Borrowers (so long as no Event of Default has occurred and remains continuing), which consents shall not be unreasonably withheld or delayed; provided, however, that the minimum amount of each such assignment shall be Ten Million Dollars ($10,000,000.00), or such lesser amount as constitutes the remaining amount of a Lender's Syndication Interest in the Credit Facility (except that there shall be no minimum assignment among the Lenders or to their Affiliates), and each assignee Lender (or assignor if so agreed between the assignee Lender and such assignor) shall pay to the Agent Bank an assignment fee of Two Thousand Five Hundred Dollars ($2,500.00) with respect to each such assignment. Each such assignment shall be evidenced by an assignment substantially in the form of the Assignment and Assumption Agreement. Upon any such assignment, the assignee financial institution shall become a Lender for all purposes under the Credit Agreement and each of the Loan Documents and the assigning Lender shall be released from its further obligations hereunder to the extent of such assignment. Agent Bank agrees to give prompt notice to Borrowers of each assignment made under this Section 11.10(b) and to deliver to Borrowers each revision to the Schedule of Lenders' Proportions in Credit Facility made as a consequence of each such assignment. c. Each Lender may sell participations for all or any part of its Syndication Interest in the Credit Facility; provided, however, that (i) such Lender shall remain responsible for its total obligations under the Credit Agreement and each of the Loan Documents, (ii) the Borrowers and the Agent Bank shall continue to deal solely with such Lender in connection with such Lender's rights and obligations under the Credit Agreement and each of the Loan Documents, and (iii) such Lender shall not sell any participation under which the participant would have rights to approve any amendment or waiver relating to the Credit Agreement or any Loan Document except to the extent any such amendment or waiver would (w) extend the final Maturity Date or the date for the payment or any installments of fees, principal or interest due in respect of the Credit Facility, (x) reduce the amount of any Scheduled Reduction in respect to the Credit Facility, (y) reduce the interest rates or fees applicable to the Credit Facility or (z) release any material portion of the Collateral. Notwithstanding the foregoing, the rights of the Lenders to make assignments and to grant participations shall be subject to the approval by the Gaming Authorities of the assignee or participant, to the extent required by applicable Gaming Laws, and to applicable securities laws. Section 11.11. Action by Lenders. Whenever Banks shall have the right to make an election, or to exercise any right, or their consent shall be required for any action under this Credit Agreement or the Loan Documents, then such election, exercise or consent shall be given or made for all Banks by Agent Bank in accordance with the provisions of Section 11.01. Notices, reports and other documents required to be given by Borrowers to Banks hereunder may be given by Borrowers to Agent Bank on behalf of Banks, with sufficient copies for distribution to each of the Banks, and the delivery to Agent Bank shall constitute delivery to Banks. In the event any payment or payments are received by a Lender other than Agent Bank, Borrowers consent to such payments being shared and distributed as provided herein. Section 11.12. Time of Essence. Time shall be of the essence of this Credit Agreement. Section 11.13. Choice of Law and Forum. This Credit Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without regard to principles of conflicts of law, except as otherwise required by mandatory provisions of applicable Gaming Laws and except to the extent that the perfection of any security interests or remedies hereunder in respect of any particular Collateral are governed by the laws of a jurisdiction other than the State of Nevada. Borrowers further agree that the full and exclusive forum for the determination of any action relating to this Credit Agreement, the Loan Documents, or any other document or instrument delivered in favor of Banks pursuant to the terms hereof shall be either an appropriate Court of the State of Nevada or the United States District Court or United States Bankruptcy Court for the District of Nevada, except that (a) an action to foreclose the Mississippi Deed of Trust or other ACVI Security Documents, may be brought in any state or federal court in Warren County, Mississippi, and the Borrowers hereby irrevocably submit to the jurisdiction thereof, and (b) an action to foreclose the Iowa Mortgage or other ACCBI Security Documents may be brought in any state or federal court in Pottawattamie County, Iowa, and the Borrowers hereby irrevocably submit to the jurisdiction thereof. Section 11.14. Arbitration. a. Upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable) ("Dispute") now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with the Credit Agreement, Loan Documents or any related agreements, documents, or instruments (collectively the "Documents"), may, by summary proceedings (e.g., a plea in abatement or motion to stay further proceedings), bring an action in court to compel arbitration of any Dispute. b. All Disputes between the parties shall be resolved by binding arbitration governed by the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. c. No provision of, nor the exercise of any rights under this arbitration clause shall limit the rights of any party, and the parties shall have the right during any Dispute, to seek, use and employ ancillary or preliminary remedies, judicial or otherwise, for the purposes of realizing upon, preserving, protecting or foreclosing upon any property, real or personal, which is involved in a Dispute, or which is subject to, or described in, the Documents, including, without limitation, rights and remedies relating to: (i) foreclosing against any real or personal property collateral or other security by the exercise of a power of sale under the Security Documentation or other security agreement or instrument, or applicable law, (ii) exercising self-help remedies (including setoff rights) or (iii) obtaining provisional or ancillary remedies such as injunctive relief, sequestration, attachment, garnishment or the appointment of a receiver from a court having jurisdiction before, during or after the pendency of any arbitration. The institution and maintenance of an action for judicial relief or pursuit of provisional or ancillary remedies or exercise of self-help remedies shall not constitute a waiver of the right of any party, including the plaintiff, to submit the Dispute to arbitration nor render inapplicable the compulsory arbitration provision hereof. Section 11.15. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS EACH MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF BORROWERS AND BANKS WITH RESPECT TO THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS EACH MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT THE DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. Section 11.16. Scope of Approval and Review. Any inspection of the Casino Operations or other documents shall be deemed to be made solely for Banks' internal purposes and shall not be relied upon by the Borrowers or any third party. In no event shall Lenders be deemed or construed to be joint venturers or partners of Borrowers. Section 11.17. Severability of Provisions. In the event any one or more of the provisions contained in this Credit Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Section 11.18. Cumulative Nature of Covenants. All covenants contained herein are cumulative and not exclusive of each other covenant. Any action allowed by any covenant shall be allowed only if such action is not prohibited by any other covenant. Section 11.19. Costs to Prevailing Party. If any action or arbitration proceeding is brought by any party against any other party under this Credit Agreement or any of the Loan Documents, the prevailing party shall be entitled to recover such costs and attorney's fees as the court in such action or proceeding may adjudge reasonable. Section 11.20. Expenses. a. Generally. Borrowers agree upon demand to pay, or reimburse Agent Bank for, all of Agent Bank's documented reasonable out-of-pocket costs and expenses of every type and nature (including travel expenses incurred by Agent Bank both before and after the Closing Date in connection with the sale of Syndication Interests in the Credit Facility) incurred by Agent Bank at any time (whether prior to, on or after the date of this Credit Agreement) in connection with (i) any requests for consent, waiver or other modification of any Loan Document made by Borrowers; (ii) the negotiation, preparation and execution of this Credit Agreement (including, without limitation, the satisfaction or attempted satisfaction of any of the conditions set forth in Article III), the Security Documentation and the other Loan Documents and the advance of Borrowings; (iii) the subordination of any Collateral, including title charges, recording fees and reasonable attorneys' fees and costs incurred in connection therewith; (iv) any appraisals performed after the occurrence of an Event of Default; (v) the creation, perfection or protection of the Security Documentation on the Collateral (including, without limitation, any fees and expenses for title and lien searches, local counsel in various jurisdictions, filing and recording fees and taxes, duplication costs and corporate search fees); (vi) all reasonable costs and expenses incurred by Agent Bank in connection with the sale of Syndication Interests in the Credit Facility; and (vii) the protection, collection or enforcement of any of the Obligations or the Collateral, including Protective Advances. b. After Event of Default. Borrowers further agree to pay, or reimburse Agent Bank and Lenders, for all reasonable out-of-pocket costs and expenses, including without limitation reasonable attorneys' fees and disbursements incurred by Agent Bank or Lenders after the occurrence of an Event of Default (i) in enforcing any Obligation or in foreclosing against the Collateral or exercising or enforcing any other right or remedy available by reason of such Event of Default; (ii) in connection with any refinancing or restructuring of the credit arrangements provided under this Credit Agreement in the nature of a "work-out" or in any insolvency or bankruptcy proceeding; (iii) in commencing, defending or intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to Borrowers and related to or arising out of the transactions contemplated hereby; (iv) in taking any other action in or with respect to any suit or proceeding (whether in bankruptcy or otherwise); (v) in protecting, preserving, collecting, leasing, selling, taking possession of, or liquidating any of the Collateral; or (vi) in attempting to enforce or enforcing any lien in any of the Collateral or any other rights under the Security Documentation. Section 11.21. Setoff. In addition to any rights and remedies of the Agent Bank provided by law, if any Event of Default exists, Agent Bank is authorized at any time and from time to time, without prior notice to any Borrower, any such notice being waived by the Borrowers to the fullest extent permitted by law, to set-off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by Agent Bank to or for the credit or the account of Borrowers against any and all obligations of Borrowers under the Credit Facilities, now or hereafter existing, irrespective of whether or not the Agent Bank shall have made demand under this Credit Agreement or any Loan Document and although such amounts owed may be contingent or unmatured. Agent Bank agrees promptly to notify the Borrowers (and Agent Bank shall promptly notify each other Lender) after any such setoff and application made by Agent Bank; provided, however, that the failure to give such notice shall not affect the validity of such set- off and application. The rights of Agent Bank under this Section 11.21 are in addition to the other rights and remedies which Agent Bank may have. Section 11.22. Borrower Waivers and Consents. a. Each Borrower shall be jointly and severally liable for the repayment of all sums owing under the terms of this Credit Agreement and each the Loan Documents. b. Each Borrower agrees that neither the Agent Bank nor any Bank shall have any responsibility to inquire into the apportionment, allocation or disposition of any Borrowings, Construction Disbursements or Swingline Advance as among the Borrowers or within the Borrower Consolidation. c. For the purpose of implementing the joint borrower provisions of this Credit Agreement and each of the Loan Documents, each Borrower and the Collateral Affiliate hereby irrevocably appoints each Authorized Officer as its agent and attorney-in-fact for all purposes of this Credit Agreement and each of the Loan Documents, including without limitation the giving and receiving of notices and other communications, the making of requests for, or conversions or continuations of, Borrowings, the execution and delivery of certificates and the receipt and allocation of disbursements from the Banks. d. Each Borrower acknowledges that the handling of the Bank Facilities on a joint borrowing basis as set forth in this Credit Agreement is solely an accommodation to Borrowers and is done at their request. Each Borrower agrees that neither the Agent Bank, nor any Lender, shall incur any liability to any Borrower as a result thereof. To induce the Agent Bank and the Lenders to enter into this Credit Agreement, and in consideration thereof, in accordance with the provisions set forth in Section 5.14 of this Credit Agreement, each Borrower hereby agrees to indemnify the Agent Bank and each Lender and hold each such entity harmless from and against any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against such entity by any Borrower or by any other Person arising from or incurred by reason of the structuring of the Bank Facilities as herein provided, reliance by the Agent Bank or the Lenders on any requests or instructions from any Borrower or any Authorized Officer, or any other action taken by the Agent Bank or a Lender under the terms of this Credit Agreement or any of the Loan Documents at the request of any Borrower or Authorized Officer. This Section 11.22(d) shall survive termination of this Credit Agreement. e. Each Borrower represents and warrants to the Agent Bank and the Lenders that (i) it has established adequate means of obtaining from each Borrower on a continuing basis financial and other information pertaining to the business, operations and condition (financial and otherwise) of each of the Borrowers and its respective property, and (ii) each Borrower now is and hereafter will be completely familiar with the business, operations and condition (financial and otherwise) of each Borrower, and its property. Each Borrower hereby waives and relinquishes any duty on the part of the Agent Bank or any Lender to disclose to such Borrower any matter, fact or thing relating to the business, operations or condition (financial or otherwise) of any Borrower, or the property of any Borrower, whether now or hereafter known by the Agent Bank or any Lender at any time through Bank Facilities Termination. f. Each Borrower acknowledges that the Aggregate Outstandings, or portions thereof, may derive from value provided directly to another Borrower and, in full recognition of that fact, each Borrower consents and agrees that the Agent Bank and any Lender may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security of the Loan Documents: (i) accept partial payments on the Bank Facilities; (ii) receive and hold additional security or guaranties for the Bank Facilities or any part thereof; (iii) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof, as the Agent Bank or Requisite Lenders in their sole and absolute discretion may determine; (iv) release any party or any guarantor from any personal liability with respect to the Bank Facilities or any part thereof; (v) settle, release on terms satisfactory to the Agent Bank or Requisite Lenders or by operation of applicable laws or otherwise liquidate or enforce the Bank Facilities and any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (vi) consent to the merger, change or any other restructuring or termination of the corporate existence of any other Borrower or any other Person, and correspondingly restructure the Bank Facilities, continuing existence of any lien or encumbrance under any other Loan Document to which any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Bank Facilities. Each Borrower expressly waives any right to require the Agent Bank or any Lender to marshal assets in favor of any Borrower, any other party or any other Person or to proceed against any other Borrower or any other party or any Collateral provided by any Borrower or any other party, and agrees that the Agent Bank and Lenders may proceed against Borrowers and/or the Collateral in such order as they shall determine in their sole and absolute discretion. The Agent Bank and Lenders may file a separate action or actions against any Borrower, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that the Agent Bank or Lenders and any other Borrower may deal with each other in connection with the Bank Facilities or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the obligations of such Borrower under the Loan Documents or the perfection of the Security Documentation. Each Borrower expressly waives any and all defenses now or hereafter arising or asserted by reason of: (a) any disability or other defense of any Borrower or any other party with respect to any Bank Facilities, (b) the unenforceability or invalidity as to any Borrower, or any other party of the Bank Facilities, (c) the unenforceability or invalidity of any security or guaranty for the Bank Facilities or the lack of perfection or continuing perfection or failure of priority of any security for the Bank Facilities, (d) the cessation for any cause whatsoever of the liability of any Borrower or any other party (other than by reason of the full payment and performance of all Bank Facilities and the occurrence of Bank Facility Termination), (e) any failure of the Agent Bank or any Lender to give notice of sale or other disposition to any Borrower or any defect in any notice that may be given in connection with any sale or disposition, (f) any act or omission of the Agent Bank or any Lender or others that directly or indirectly results in or aids the discharge or release of any Borrower or any other Person or the Bank Facilities or any other security or guaranty therefor by operation of law or otherwise, (g) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (h) any failure of the Agent Bank or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (i) the election by the Agent Bank or any Lender, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (j) any extension of credit or the grant of any lien or encumbrance under Section 364 of the United States Bankruptcy Code, (k) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (l) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (m) the avoidance of any lien or encumbrance in favor of the Agent Bank or any Lender for any reason, (n) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the obligations (or any interest thereon) in or as a result of any such proceeding, or (o) any election of remedies by the Agent Bank or any Lender, even if the effect thereof is to destroy or impair any Borrower's right to subrogation, reimbursement, exoneration, indemnification or contribution. g. Each Borrower authorizes the Agent Bank and any Lender, upon the occurrence of any Default Notice Recording and the acceleration of the Indebtedness then owing under the Bank Facilities, at their sole option, without any other notice or demand and without affecting any of the Bank Facilities or the validity or enforceability of any liens or encumbrance in favor of the Agent Bank or any Lender on any Collateral, to foreclose any or all of the Deeds of Trust by judicial or nonjudicial sale. To the extent permitted by applicable law, each Borrower expressly waives any defenses to the enforcement of the Loan Documents or any liens or encumbrances created or granted under the Loan Documents or to the recovery by the Agent Bank or any Lender against any other Borrower or any guarantor or any other Person liable therefor of any deficiency after a judicial or nonjudicial foreclosure or sale, even though such a foreclosure or sale may impair the subrogation rights of a Borrower and may preclude a Borrower from obtaining reimbursement or contribution from any other Borrower. h. Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which any Borrower is a party, each Borrower hereby expressly agrees with respect to the Borrowers and their successors and assigns (including any surety) and any other Person which is directly or indirectly a creditor of the other Borrowers or any surety for any other Borrower, not to exercise, until Bank Facility Termination has irrevocably occurred, any rights at law or in equity to subrogation, to reimbursement, to exoneration, to contribution, to setoff or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker, and which such Borrower may have or hereafter acquire against any of the Borrowers or any other such Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Credit Agreement or any other Loan Document to which such Borrower is a party. Section 11.23. Agreement to Subordinate Liens on ACVI Hotel Property and ACCBI Riverboat. Each of the Banks hereby agree that upon receipt of written request from Borrowers Agent Bank shall subordinate, without further consent or authorization of the Banks, the ACVI Hotel Deed of Trust and applicable ACVI Financing Statements to the ACVI Hotel Construction Security Documents so long as Borrowers are in compliance with Section 6.08(d) in all material respects. Section 11.24. Designation of Revolving Credit Note and Credit Agreement as Senior Indebtedness Under Gem Notes. The undersigned Borrowers hereby designate, with respect to the Gem Settlement Agreement and each of the Gem Settlement Notes, all Indebtedness evidenced by the Revolving Credit Note and this Credit Agreement as Senior Indebtedness, as such term is defined in the Gem Settlement Agreement and Gem Settlement Notes. Section 11.25. Schedules Attached. Schedules are attached hereto and incorporated herein and made a part hereof as follows: Schedule 2.01(a) - Schedule of Lenders' Proportions in Credit Facility Schedule 2.01(c) - Aggregate Commitment Reduction Schedule Schedule 3.11(a) - Schedule of Existing Bank Loan Security Documents Schedule 3.11(b) - Schedule of Intercompany Security Documents Schedule 3.18 - Schedule of Significant Litigation Schedule 4.15 - Schedules of Spaceleases (A) ACCBI Schedule of Spaceleases (B) ACVI Schedule of Spaceleases (C) CPI Schedule of Spaceleases (D) ACLVI Schedule of Spaceleases Schedule 4.16 - Schedules of Equipment Leases and Contracts (A) ACCBI Schedule of Equipment Leases and Contracts (B) ACVI Schedule of Equipment Leases and Contracts (C) CPI Schedule of Equipment Leases and Contracts (D) ACLVI Schedule of Equipment Leases and Contracts Schedule 4.24 - Schedule of Trademarks, Patents, Licenses, Franchises, Formulas and Copyrights Schedule 4.25 - Schedule of Contingent Liabilities Schedule 5.09(o) - Schedule of General Contractor Minimum Insurance Requirements Schedule 6.08 - Schedule of Liens Schedule A-1 - ACCBI Fee Property -Description Schedule A-2 - IDNR Parcel - Description Schedule B-1 - ACVI Fee Property - Description Schedule B-2 - Magnolia Parcel - Description Schedule B-3 - Brady/Lum Parcel - Description Schedule B-4 - Morrison Parcel - Description Schedule B-5 - ACVI Hotel Property -Description Schedule C-1 - CPI Real Property - Description Schedule D-1 - ACLVI Real Property -Description Schedule D-2 - Option Property - Description Section 11.26. Exhibits Attached. Exhibits are attached hereto and incorporated herein and made a part hereof as follows: Exhibit A - Revolving Credit Note Exhibit B - Swingline Note Exhibit C - Notice of Borrowing - Form Exhibit D - Continuation/Conversion Notice - Form Exhibit E - Notice of Swingline Advance - Form Exhibit F - Compliance Certificate - Form Exhibit G - Pricing Certificate - Form Exhibit H - Availability Limit Certificate -Form Exhibit I - Authorized Officer Certificate -Form Exhibit J - Closing Certificate Exhibit K - Construction Disbursement Request - Form Exhibit L - Assignment and Assumption Agreement - Form Exhibit M - Legal Opinion - Form Exhibit N - Project Development Budget IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be executed as of the day and year first above written. BORROWERS: AMERISTAR CASINOS, INC., a Nevada corporation By /s/ Thomas Steinbauer Thomas Steinbauer, Senior Vice President Address: 3773 Howard Hughes Parkway Suite 490S Las Vegas, Nevada 89109 Telephone: (702) 567-7000 Facsimile: (702) 369-8860 CACTUS PETE'S, INC., a Nevada corporation By /s/ Thomas Steinbauer Thomas Steinbauer, Vice President Address: 3773 Howard Hughes Parkway Suite 490S Las Vegas, Nevada 89109 Telephone: (702) 567-7000 Facsimile: (702) 369-8860 AMERISTAR CASINO VICKSBURG, INC., a Mississippi corporation By /s/ Thomas Steinbauer Thomas Steinbauer, Vice President Address: 3773 Howard Hughes Parkway Suite 490S Las Vegas, Nevada 89109 Telephone: (702) 567-7000 Facsimile: (702) 369-8860 AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation By /s/ Thomas Steinbauer Thomas Steinbauer, Vice President Address: 3773 Howard Hughes Parkway Suite 490S Las Vegas, Nevada 89109 Telephone: (702) 567-7000 Facsimile: (702) 369-8860 AMERISTAR CASINO LAS VEGAS, INC., a Nevada corporation By /s/ Thomas Steinbauer Thomas Steinbauer, Vice President Address: 3773 Howard Hughes Parkway Suite 490S Las Vegas, Nevada 89109 Telephone: (702) 567-7000 Facsimile: (702) 369-8860 BANKS: WELLS FARGO BANK, National Association, Agent Bank, Lender and Swingline Lender By /s/ Casey Potter Casey Potter, Vice President Address: One East First Street Reno, NV 89501 Telephone: (702) 334-5631 Facsimile: (702) 334-5637 U.S. BANK, Lender By /s/ Kurt Imerman Name Kurt Imerman Title Senior Vice President Address: One East Liberty Reno, NV 89501 Attn: Kurt Imerman, S.V.P. Telephone: (702) 688-6589 Facsimile: (702) 688-6597 DEPOSIT GUARANTY NATIONAL BANK, Lender By /s/ Larry C. Ratzlaff Name Larry C. Ratzlaff Title Senior Vice President Address: 210 East Capitol Street Jackson, MS 39215-1200 Attn: Larry Ratzlaff, V.P. Telephone: (601) 968-4749 Facsimile: (601) 354-8315 FIRST NATIONAL BANK OF CHICAGO, Lender By /s/ Mark Isley Name Mark Isley Title Vice President Address: 777 S. Figueroa Street 4th Floor Los Angeles, CA 90017-5800 Attn: James Junker, V.P. Telephone: (213) 683-4948 Facsimile: (213) 683-4999 BANKERS TRUST COMPANY, Lender By /s/ Gregory P. Shefrin Name Gregory P. Shefrin Title Vice President Address: One Bankers Trust Plaza New York, NY 10006 Attn: Gregory Shefrin, V.P. Telephone: (212) 250-1724 Facsimile: (212) 250-7218 FIRST NATIONAL BANK OF COMMERCE, Lender By /s/ Steven M. Valdes Name Steven M. Valdes Title Vice President Address: 210 Baronne Street New Orleans, LA 70112 Attn: Steve Valdez, V.P. Telephone: (504) 561-1645 Facsimile: (504) 561-1738 TRUSTMARK NATIONAL BANK, Lender By /s/ David A. Guyton Name David A. Guyton Title Vice President Address: 248 E. Capitol Street, Ste. 610 Jackson, MS 39205-0291 Attn: David Guyton, V.P. Telephone: (601) 961-6434 Facsimile: (601) 949-6250 IMPERIAL BANK, Lender By /s/ Steven K. Johnson Name Steven K. Johnson Title Senior Vice President Address: 999 S. La Cienega Boulveard Suite 1015 Inglewood, CA 90301 Attn: Steven Johnson, S.V.P. Telephone: (310) 417-5657 Facsimile: (310) 338-2611 NORWEST BANK OF NEBRASKA, N.A., Lender By /s/ Michael V. Hinrichs Name Michael V. Hinrichs Title Vice President Address: 1919 Douglas Omaha, NE 68102 Attn: Deanne Winger Telephone: (402) 536-2827 Facsimile: (402) 536-2251 EX-4 3 _________________________________________________________________ AMERISTAR CASINOS, INC., SERIES A AND SERIES B 10 1/2% SENIOR SUBORDINATED NOTES DUE 2004 ________________________________________ INDENTURE Dated as of July 15, 1997 ________________________________________ ________________________________________ FIRST TRUST NATIONAL ASSOCIATION, as Trustee ________________________________________ CROSS-REFERENCE TABLE TIA Section Indenture Section 310(a)(1) 7.10 (a)(2) 7.10 (a)(3) N.A. (a)(4) N.A. (a)(5) 7.08; 7.10 (b) 7.08; 7.10; 12.02 (c) N.A. 311(a) 7.11 (b) 7.11 (c) N.A. 312(a) 2.05 (b) 12.03 (c) 12.03 313(a) 7.06 (b)(1) N.A. (b)(2) 7.06 (c) 7.06; 12.02 (d) 7.06 314(a) 4.07; 4.08; 12.02 (b) N.A. (c)(1) 12.04 (c)(2) 12.04 (c)(3) N.A. (d) N.A. (e) 12.05 (f) N.A. 315(a) 7.01(b) (b) 7.05; 12.02 (c) 7.01(a) (d) 7.01(c) (e) 6.10 316(a) (last sentence) 2.09 (a)(1)(A) 6.05 (a)(1)(B) 6.04 (a)(2) N.A. (b) 6.06 (c) 9.05 317(a)(1) 6.07 (a)(2) 6.08 (b) 2.04 318(a) 12.01 (c) 12.01 ____________________ N.A. means Not Applicable Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture. TABLE OF CONTENTS ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE 7 SECTION 1.01. Definitions. 7 SECTION 1.02. Incorporation by Reference of TIA. 28 SECTION 1.03. Rules of Construction. 28 ARTICLE TWO THE NOTES 29 SECTION 2.01. Form and Dating. 29 SECTION 2.02. Execution and Authentication; Aggregate Principal Amount. 30 SECTION 2.03. Registrar and Paying Agent. 31 SECTION 2.04. Paying Agent To Hold Assets in Trust. 31 SECTION 2.05. Noteholder Lists. 32 SECTION 2.06. Transfer and Exchange. 32 SECTION 2.07. Replacement Notes. 33 SECTION 2.08. Outstanding Notes. 33 SECTION 2.09. Treasury Notes. 33 SECTION 2.10. Temporary Notes. 34 SECTION 2.11. Cancellation. 34 SECTION 2.12. Defaulted Interest. 34 SECTION 2.13. CUSIP Number. 34 SECTION 2.14. Deposit of Money. 35 SECTION 2.15. Restrictive Legends. 35 SECTION 2.16. Book-Entry Provisions for Global Security. 36 SECTION 2.17. Special Transfer Provisions. 38 ARTICLE THREE REDEMPTION 40 SECTION 3.01. Notices to Trustee. 40 SECTION 3.02. Selection of Notes To Be Redeemed. 40 SECTION 3.03. Notice of Redemption. 40 SECTION 3.04. Effect of Notice of Redemption. 41 SECTION 3.05. Deposit of Redemption Price. 41 SECTION 3.06. Notes Redeemed in Part. 41 SECTION 3.07. Redemption. 42 SECTION 3.08. Mandatory Disposition or Redemption Pursuant to Gaming Laws. 42 ARTICLE FOUR COVENANTS 43 SECTION 4.01. Payment of Notes. 43 SECTION 4.02. Maintenance of Office or Agency. 44 SECTION 4.03. Corporate Existence. 44 SECTION 4.04. Payment of Taxes and Other Claims. 44 SECTION 4.05. Maintenance of Properties and Insurance. 45 SECTION 4.06. Compliance Certificate; Notice of Default. 45 SECTION 4.07. Compliance with Laws. 46 SECTION 4.08. SEC Reports. 46 SECTION 4.09. Waiver of Stay, Extension or Usury Laws. 47 SECTION 4.10. Limitation on Restricted Payments. 47 SECTION 4.11. Limitation on Transactions with Affiliates. 49 SECTION 4.12. Limitation on Indebtedness. 49 SECTION 4.13. Limitation on Restrictions on Distributions from Subsidiaries. 51 SECTION 4.14. Change of Control. 51 SECTION 4.15. Limitation on Sales of Assets and Restricted Subsidiary Stock. 52 SECTION 4.16. Limitation on Issuance and Sale of Capital Stock of Restricted Subsidiaries. 54 SECTION 4.17. Limitation on Liens. 54 SECTION 4.18. Limitation of Layered Indebtedness. 54 SECTION 4.19. Limitation on Designations of Restricted Subsidiaries and Unrestricted Subsidiaries. 55 SECTION 4.20. Repurchase of Notes on Loss of Material Gaming License. 56 SECTION 4.21. Limitation on Other Business Activities. 57 SECTION 4.22. Additional Subsidiary Guarantees. 57 SECTION 4.23. Payment for Consents. 57 SECTION 4.24. General Procedures for Purchase of Notes. 57 ARTICLE FIVE SUCCESSOR CORPORATION 59 SECTION 5.01. Merger, Consolidation and Sale of Assets. 59 ARTICLE SIX DEFAULT AND REMEDIES 60 SECTION 6.01. Events of Default. 60 SECTION 6.02. Acceleration. 62 SECTION 6.03. Other Remedies. 63 SECTION 6.04. Waiver of Past Defaults. 63 SECTION 6.05. Control by Majority. 63 SECTION 6.06. Rights of Holders To Receive Payment. 63 SECTION 6.07. Collection Suit by Trustee. 64 SECTION 6.08. Trustee May File Proofs of Claim. 64 SECTION 6.09. Priorities. 64 SECTION 6.10. Undertaking for Costs. 65 SECTION 6.11. Restoration of Rights and Remedies. 65 SECTION 6.12. Limitation on Suits. 65 ARTICLE SEVEN TRUSTEE 66 SECTION 7.01. Duties of Trustee. 66 SECTION 7.02. Rights of Trustee. 67 SECTION 7.03. Individual Rights of Trustee. 68 SECTION 7.04. Trustee's Disclaimer. 68 SECTION 7.05. Notice of Default. 68 SECTION 7.06. Reports by Trustee to Holders. 68 SECTION 7.07. Compensation and Indemnity. 68 SECTION 7.08. Replacement of Trustee. 69 SECTION 7.09. Successor Trustee by Merger, Etc. 70 SECTION 7.10. Eligibility; Disqualification. 70 SECTION 7.11. Preferential Collection of Claims Against Company. 71 ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE 71 SECTION 8.01. Termination of the Company's Obligations. 71 SECTION 8.02. Legal Defeasance and Covenant Defeasance. 72 SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance. 73 SECTION 8.04. Application of Trust Money. 75 SECTION 8.05. Repayment to the Company. 75 SECTION 8.06. Reinstatement. 75 ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS 76 SECTION 9.01. Without Consent of Holders. 76 SECTION 9.02. With Consent of Holders. 77 SECTION 9.03. Effect on Senior Indebtedness. 78 SECTION 9.04. Compliance with TIA. 78 SECTION 9.05. Revocation and Effect of Consents. 78 SECTION 9.06. Notation on or Exchange of Notes. 79 SECTION 9.07. Trustee To Sign Amendments, Etc. 79 ARTICLE TEN SUBORDINATION 79 SECTION 10.01.Agreement to Subordinate. 79 SECTION 10.02.Payment to Noteholders. 80 SECTION 10.03.Subrogation of Notes. 81 SECTION 10.04.Authorization by Securityholders. 82 SECTION 10.05.Notice to Trustee. 82 SECTION 10.06.Trustee's Relation to Senior Debt Holders. 83 SECTION 10.07.No Impairment of Subordination. 84 ARTICLE ELEVEN SUBSIDIARY GUARANTEES 84 SECTION 11.01.Subsidiary Guarantees. 84 SECTION 11.02.Release Following Disposition of Capital Stock or Designation as an Unrestricted Subsidiary. 86 SECTION 11.03.Rights of Contribution. 86 SECTION 11.04.Limitation on Liability. 87 ARTICLE TWELVEMISCELLANEOUS 88 SECTION 12.01.TIA Controls. 88 SECTION 12.02.Notices. 88 SECTION 12.03.Communications by Holders with Other Holders. 89 SECTION 12.04.Certificate and Opinion as to Conditions Precedent. 89 SECTION 12.05.Statements Required in Certificate or Opinion. 89 SECTION 12.06.Rules by Trustee, Paying Agent, Registrar. 89 SECTION 12.07.Legal Holidays. 90 SECTION 12.08.Governing Law. 90 SECTION 12.09.No Adverse Interpretation of Other Agreements. 90 SECTION 12.10.No Recourse Against Others. 90 SECTION 12.11.Successors. 90 SECTION 12.12.Duplicate Originals. 90 SECTION 12.13.Severability. 90 SECTION 12.14.Designation of Notes as Senior Indebtedness Under Gem Notes. 91 SECTION 12.15.Liability of ACCBI. 91 Exhibit A - Form of Note A-1 Exhibit B - Form of Certificate To Be Delivered in Connection with Transfers to Non-U.S Persons Pursuant to Regulation S B-1 Exhibit C - Form of Certificate To Be Delivered in Connection with Transfers to QIBs C-1 Exhibit D - Portions of Final Offering Memorandum D-1 Exhibit E - Form of Supplemental Indenture E-1 Exhibit F - Form of Subsidiary Guarantee F-1 Note: This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture. THIS INDENTURE, dated as of July 15, 1997 is entered into by and among AMERISTAR CASINOS, INC., a Nevada corporation (the "Company"), AMERISTAR CASINO LAS VEGAS, INC., a Nevada corporation, AMERISTAR CASINO VICKSBURG, INC., a Mississippi corporation, A.C. FOOD SERVICES, INC., a Nevada corporation, AC HOTEL CORP., a Mississippi corporation, AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation (collectively, the "Initial Guarantors"), and FIRST TRUST NATIONAL ASSOCIATION, a national banking corporation (the "Trustee"). The Company has duly authorized the creation of an issue of 10 1/2% Senior Subordinated Notes due 2004 Series A (the "Initial Notes") and 10 1/2% Senior Subordinated Notes due 2004 Series B (the "Exchange Notes," and together with the Initial Notes, the "Notes"; all references to the Initial Notes, the Exchange Notes and the Notes include the Subsidiary Guarantees endorsed thereon) and, to provide therefor, the Company has duly authorized the execution and delivery of this Indenture. All things necessary to make the Notes, when duly issued and executed by the Company, and authenticated and delivered hereunder, the valid obligations of the Company, and to make this Indenture a valid and binding agreement of the Company, have been done. Except for the receipt by ACCBI of all requisite approvals under Gaming Laws of this Indenture and the Subsidiary Guarantee made by ACCBI (as those terms are defined herein), all things necessary to make each of the Subsidiary Guarantees, when duly issued and executed by the Initial Guarantor party thereto, and authenticated and delivered hereunder, the valid obligations of such Initial Guarantor, and to make this Indenture a valid and binding agreement of each Initial Guarantor, have been done. Each party hereto agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Notes. ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01.Definitions. "ACCBI" means Ameristar Casino Council Bluffs, Inc., an Iowa corporation, and its successors. "ACFSI" means A.C. Food Services, Inc., a Nevada corporation, and its successors. "ACHC" means AC Hotel Corp., a Mississippi corporation, and its successors. "ACLVI" means Ameristar Casino Las Vegas, Inc., a Nevada corporation, and its successors. "ACVI" means Ameristar Casino Vicksburg, Inc., a Mississippi corporation, and its successors. "Additional Assets" means (i) any long-term property or assets (other than Indebtedness and Capital Stock) in a Related Business; (ii) Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (iii) Capital Stock, not held by the Company or a Restricted Subsidiary, constituting a minority interest in any Person that at such time is a Restricted Subsidiary; provided, however, that, in the case of clauses (ii) and (iii), such Restricted Subsidiary is primarily engaged in a Related Business. "Affiliate" of any specified Person means (i) any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person or (ii) any other Person who is a director or officer (a) of such specified Person, (b) of any subsidiary of such specified Person or (c) of any Person described in clause (i) above. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. For purposes of Section 4.11 only, "Affiliate" shall also mean any beneficial owner of shares representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Company or of rights or warrants to purchase such Voting Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof. "Affiliate Transaction" is defined in Section 4.11. "Agent" means any Registrar, Paying Agent, or co-Registrar. "Agent Members" is defined in Section 2.16. "Asset Disposition" means (i) the direct or indirect sale, lease, conveyance or other disposition (each referred to for the purposes of this definition as a "disposition") of any assets (including, without limitation, by way of a Sale/Leaseback Transaction) of the Company or any Restricted Subsidiary, and (ii) the issue or sale by the Company or any of its Restricted Subsidiaries of Capital Stock of any of the Company's Restricted Subsidiaries, provided that Asset Disposition shall not include (a) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Specified Subsidiary or a Guarantor, (b) a single disposition, or a series of related dispositions of assets with an aggregate Fair Market Value and a sale price of less than $2 million, (c) dispositions of inventory or equipment (including gaming equipment) in the ordinary course of business or pursuant to an established program for the maintenance and upgrading of such equipment, (d) for purposes of Section 4.15 only, a disposition subject to and in accordance with the limitations set forth under Section 4.10, (e) a sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, which disposition will be governed by Section 4.14 and Article Five, (f) any Event of Loss, or (g) any foreclosure sale of FF&E pursuant to a Non-Recourse FF&E Financing. "Attributable Indebtedness" means Indebtedness deemed to be incurred in respect of a Sale/Leaseback Transaction and shall be, at the date of determination, the greater of (i) the Fair Market Value of the property subject to such Sale/Leaseback Transaction (as determined in good faith by the Board of Directors) or (ii) the present value (discounted at the actual rate of interest implicit in such transaction, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended). "Authenticating Agent" is defined in Section 2.02. "Average Life" means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment by (ii) the sum of all such payments. "Bank Indebtedness" means any and all amounts payable from time to time under or in respect of the Revolving Credit Facility, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees, indemnities and all other amounts and other liabilities payable thereunder or in respect thereof. "Bankruptcy Law" means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. All references to any Section of the Bankruptcy Law are to Title 11, United States Code. "Benefited Party" is defined in Section 11.01(d). "Blockage Notice" is defined in Section 10.02(b). "Board of Directors" means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board. "Board Resolution" means a duly adopted resolution of the Board of Directors in full force and effect at the time of determination and certified as such by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee. "Business Day" means each day that is not a Legal Holiday. "Capitalized Lease Obligations" means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. "Capital Stock" of any Person means any and all stock, partnership interests, limited liability company interests, shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible or exchangeable into such equity. "Cede" is defined in Section 2.01. "CEDEL" is defined in Section 2.01. "Change of Control" means the occurrence of any of the following events: (i) any "person" or "group" (as each such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than the Permitted Holders or an underwriter engaged in a firm commitment underwriting in connection with a public offering of the Voting Stock of the Company, is or becomes the "beneficial owner" (as that term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that, for purposes of this definition, a person shall be deemed to have "beneficial ownership" of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35% of the total voting power of the Voting Stock of the Company, and at such time the Permitted Holders together shall fail to "beneficially own," directly or indirectly, a greater percentage of the total voting power of the Voting Stock of the Company than is "beneficially owned" by such "person" or "group"; (ii) during any period of 12 consecutive months after the Issue Date, individuals who at the beginning of such period constituted the Board of Directors of the Company (together with any new directors whose election or appointment by such Board of Directors or whose nomination for election by the stockholders of the Company was approved by an affirmative vote of not less than a majority of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office; (iii) the Company consolidates with or merges into another Person or any Person consolidates with or merges into the Company in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged for cash, securities or other property, other than any such transaction where (a) the outstanding Voting Stock of the Company is reclassified into or exchanged for Voting Stock of the surviving corporation that is Capital Stock and (b) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction in substantially the same proportion as before the transaction; (iv) the Company sells, leases or otherwise transfers, directly or indirectly, all or substantially all of its consolidated assets (including by way of sales of assets of Subsidiaries) to any Person other than a Restricted Subsidiary; or (v) the stockholders of the Company shall have approved any plan of liquidation or dissolution of the Company. "Code" means the Internal Revenue Code of 1986, as amended. "Company" is defined in the preamble, and includes its successors. "Consolidated Cash Flow" for any period means the Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income: (i) income tax expense, (ii) Consolidated Fixed Charges, (iii) depreciation expense and (iv) amortization expense, and (v) preopening costs that are required by GAAP to be charged as an expense prior to or upon opening, in each case for such period and, in the case of clauses (i), (iii), (iv) and (v), determined in accordance with GAAP. "Consolidated Coverage Ratio" on any date of determination (a "Transaction Date") means the ratio, on a pro forma basis, of (a) Consolidated Cash Flow attributable to continuing operations and businesses (exclusive of amounts attributable to assets disposed of in Asset Dispositions and operations and businesses discontinued or disposed of or subject to a License Loss) for the period of the most recent four consecutive fiscal quarters ended prior to the date of such determination for which internal financial statements are available (the "Reference Period"), to (b) Consolidated Fixed Charges for the Reference Period; provided, that for purposes of such calculation, (i) Investments in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets, which constitute all or substantially all assets of an operating unit of a business, and which acquisition occurred during the Reference Period or subsequent to the Reference Period and on or prior to the Transaction Date, shall be assumed to have occurred on the first day of the Reference Period, (ii) transactions (including, without limitation, the designation of an Unrestricted Subsidiary or a Restricted Subsidiary) giving rise to the need to calculate the Consolidated Coverage Ratio shall be assumed to have occurred on the first day of the Reference Period, (iii) the incurrence of any Indebtedness or issuance of any Disqualified Stock during the Reference Period or subsequent to the Reference Period and on or prior to the Transaction Date (and the application of the proceeds therefrom to the extent used to refinance or retire other Indebtedness) shall be assumed to have occurred on the first day of such Reference Period, (iv) Indebtedness of any Person that becomes a Restricted Subsidiary shall be deemed to have been Incurred on the first day of such Reference Period, and (v) Consolidated Fixed Charges attributable to interest on any Indebtedness or dividends on any Disqualified Capital Stock bearing a floating interest (or dividend) rate shall be computed as if the rate in effect on the Transaction Date had been the applicable rate for the entire period, unless the Company or any of its Restricted Subsidiaries is a party to an Interest Rate Protection Agreement (which shall remain in effect for the 12-month period immediately following the Transaction Date) that has the effect of fixing the interest rate on the date of computation, in which case such rate (whether higher or lower) shall be used. "Consolidated Fixed Charges" means, for any period, the total interest expense of the Company and its Restricted Subsidiaries determined in accordance with GAAP, plus, to the extent not included in such interest expense, (i) interest expense attributable to capital leases, (ii) amortization of debt discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash interest expense, (v) accrued interest, (vi) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, (vii) interest attributable to the Indebtedness of any other Person for which the Company or any Restricted Subsidiary is responsible or liable as obligor, guarantor or otherwise (including Indebtedness Guaranteed pursuant to Guarantees) or secured by a Lien on assets of the Company or one of its Restricted Subsidiaries (whether or not such Indebtedness or Lien is called upon), (viii) net costs associated with Interest Rate Protection Agreements (including amortization of fees), (ix) the interest portion of any deferred obligation, (x) Preferred Stock dividends in respect of all Preferred Stock of the Company or its Restricted Subsidiaries and Redeemable Stock of the Company held by Persons other than the Company or a Restricted Subsidiary multiplied by a fraction, (i) the numerator of which is one and (ii) the denominator of which is one minus the then current combined federal, state and local statutory tax rate of the Company and its Restricted Subsidiaries, (xi) fees payable in connection with financings to the extent not included in (ii) above, including commitment, availability and similar fees and (xii) the cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Company) in connection with Indebtedness Incurred by such plan or trust; provided, however, that there shall be excluded therefrom any such interest expense of any Unrestricted Subsidiary to the extent related to Indebtedness that is not Guaranteed or paid by the Company or any Restricted Subsidiary and is not secured by a Lien on assets of the Company or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called upon). "Consolidated Net Income" means, for any period, the net income (loss) of the Company and its Subsidiaries determined in accordance with GAAP; provided, however, that there shall not be included in such Consolidated Net Income (i) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that (a) subject to the limitations contained in (iv) below, the Company's equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (iii) below) and (b) the Company's equity in a net loss of any such Person (other than an Unrestricted Subsidiary) for such period shall be included in determining such Consolidated Net Income, (ii) any net income (loss) of any Person acquired by the Company or a Subsidiary in a pooling of interests transaction for any period prior to the date of such acquisition, (iii) any net income (loss) of any Restricted Subsidiary if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that (a) subject to the limitations contained in (iv) below, the Company's equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause) and (b) the Company's equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income, (iv) any gain (but not loss) realized upon the sale or other disposition of any property, plant or equipment of the Company or its consolidated Subsidiaries (including pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain (but not loss) realized upon the sale or other disposition of any Capital Stock of any Person, (v) any extraordinary gain or loss, (vi) write-offs or charges not to exceed $700,000 attributable to the demolition of the 54 room hotel owned by ACVI in Vicksburg, and (vii) the cumulative effect of a change in accounting principles. "Consolidated Net Worth" means the total of the amounts shown on the balance sheet of the Company and its consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the end of the most recent fiscal quarter of the Company for which internal financial statements are then available, prior to the taking of any action for the purpose of which the determination is being made, as (i) the par or stated value of all outstanding Capital Stock of the Company plus (ii) paid-in capital or capital surplus relating to such Capital Stock plus (iii) any retained earnings or earned surplus less (a) any accumulated deficit and (b) any amounts attributable to Disqualified Stock. "Corporate Trust Office" means the office of the Trustee located at the address specified in Section 12.02 or such other office as to which the Trustee may give notice to the Company. "Covenant Defeasance" is defined in Section 8.02(c). "CPI" means Cactus Pete's, Inc., a Nevada corporation, and its successors. "Custodian" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Depository" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depository with respect to the Notes, until a successor shall have been appointed and become such pursuant to the terms hereof, and, thereafter, "Depository" shall mean or include such successor. "Designated Senior Indebtedness" means (i) the Bank Indebtedness and (ii) any other Senior Indebtedness that (a) has an outstanding principal amount of at least $25 million (including the amount of all unpaid reimbursement obligations pursuant to letters of credit and the maximum principal amount available to be drawn under letters of credit, assuming that all conditions precedent to such drawing could be satisfied), and (b) has been designated as "Designated Senior Indebtedness" for purposes hereof in an Officers' Certificate received by the Trustee. "Disqualified Stock" of a Person means Redeemable Stock of such Person as to which the maturity, mandatory redemption, conversion or exchange or redemption at the option of the holder thereof occurs, or may occur, on or prior to the first anniversary of the Stated Maturity of the Notes. "Euroclear" is defined in Section 2.01. "Event of Default" is defined in Section 6.01. "Event of Loss" means, with respect to any property or asset of the Company or any Restricted Subsidiary, any (i) loss, destruction or damage of such property or asset; or (ii) any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property or asset, or confiscation or requisition of the use of such property or asset. "Excess Proceeds Offer" is defined in Section 4.15. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time. "Exchange Notes" is defined in the preamble and include the Subsidiary Guarantees endorsed thereon. "Fair Market Value" means, with respect to any asset or property, the price which would be negotiated in an arms' length free market transaction, for cash, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction. "FF&E" means furniture, fixtures or equipment used directly in the operation of any Gaming Establishment owned or leased by the Company or its Restricted Subsidiaries. "Funding Guarantor" is defined in Section 11.03(a). "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. "Gaming Authority" means any of the Nevada Gaming Commission, the Nevada State Gaming Control Board, the Mississippi Gaming Commission, the Mississippi State Tax Commission, the Iowa Racing and Gaming Commission or any agency (including, without limitation, any agency established by a federally-recognized Indian tribe to regulate gaming on such tribe's reservation) which has, or may at any time after the Issue Date have, jurisdiction over the gaming activities of the Company or any of its Subsidiaries or any successor to such authority. "Gaming Establishment" means any gaming establishment and all other property, assets or operations directly ancillary thereto or used in connection therewith, including any building, restaurant, lounge, hotel, vessel, barge, ship, theater, parking facilities, retail shops, land, child care centers, retail/wholesale food and beverage distribution facilities, gas stations, transportation services, swimming pools, tennis courts, personal care services, golf courses and other leisure, recreation and entertainment facilities and equipment. "Gaming Laws" means the Legal Requirements of a jurisdiction or jurisdictions to which the Company or any of its Subsidiaries is, or may at any time after the Issue Date, be subject as a result of the conduct or proposed conduct of gaming operations. "Gaming License" means any license, qualification, permit, franchise or other authorization from any Governmental Authority required on the date hereof or at any time thereafter to own, lease, operate or otherwise conduct the gaming business of the Company and its Subsidiaries, including all licenses, findings of suitability and registrations granted under Gaming Laws. "Gem Notes" means those certain subordinated promissory notes referred to herein as the "Gem Notes," made by the Company in favor of certain Persons, as in effect on the Issue Date, and any Refinancing Indebtedness with respect thereto; provided that (i) the aggregate outstanding principal amount of such notes, together with the principal amount of any such Refinancing Indebtedness, does not exceed the sum of (a) the aggregate initial principal amount thereof described under "Description of Existing Indebtedness" in the Offering Memorandum plus (b) any accrued and unpaid interest accrued at the rate set forth in such notes on the Issue Date that is added to principal, (ii) the other material terms and conditions of such notes or any such Refinancing Indebtedness (including the subordination and enforcement provisions) remain in full force and effect and conform in all material respects to the description of the "Gem Notes" under "Description of Existing Indebtedness" in the Offering Memorandum and (iii) any such note and any such Refinancing Indebtedness shall cease to constitute a "Gem Note" at any time when the aggregate amount of "Senior Indebtedness" (as defined in the Gem Notes) of the Company exceeds $250 million or such higher amount of "Senior Indebtedness" as is then permitted under all of the Gem Notes. "Global Note" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Guarantor" means (i) any Initial Guarantor and (ii) any other Subsidiary that, pursuant to Section 4.22, has executed and delivered an indenture supplemental hereto guaranteeing the Obligations of the Company under the Notes, and their respective successors, in each case unless and until such Person is released from its Subsidiary Guarantee in accordance with the applicable provisions hereof. Notwithstanding the foregoing, for purposes of Section 4.12, neither CPI nor ACCBI shall be considered a Guarantor, unless it becomes a Guarantor, or its previously-executed Guarantee is approved under applicable Gaming Laws, as the case may be, within 9 months after the Issue Date. "Holder" or "Noteholder" means a Person in whose name a Note is registered on the Registrar's books. "Incur" means issue, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be incurred by such Subsidiary at the time it becomes a Subsidiary. The terms "Incurred," "Incurrence" and "Incurring" shall each have a correlative meaning. "Indebtedness" means, with respect to any Person on any date of determination (without duplication), (i) the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money; (ii) the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) all Capitalized Lease Obligations and Attributable Indebtedness of such Person; (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except Trade Payables), which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services; (v) all obligations of such Person in respect of letters of credit, bankers' acceptances or other similar instruments or credit transactions (including reimbursement obligations with respect thereto); (vi) the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock and, with respect to the Company, any Disqualified Stock or Preferred Stock of any Restricted Subsidiary (excluding, in each case, any accrued dividends); (vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness shall be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness of such other Persons; (viii) all Indebtedness of other Persons to the extent Guaranteed by such Person; and (ix) to the extent not otherwise included in this definition, obligations in respect of Interest Rate Protection Agreements. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date. "Indenture" means this Indenture, as amended or supplemented from time to time. "Independent Director" means a director of the Company other than a director who is a party, or who is a director, officer, employee or Affiliate (or is related by blood or marriage to any such person) of a party, to the transaction in question, and who is, in fact, independent in respect of such transaction. "Initial Guarantors" is defined in the preamble and includes their respective successors. "Initial Notes" is defined in the preamble and includes the Subsidiary Guarantees endorsed thereon. "Interest Payment Date" means February 1 and August 1 of each year, commencing February 1, 1998. "Interest Rate Protection Agreement" means, in respect of a Person, any interest rate swap agreement, interest rate option agreement, interest rate cap agreement, interest rate collar agreement, interest rate floor agreement or other similar agreement or arrangement. "Investment" in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the Person making such advances) or other extension of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. Upon a redesignation of any Subsidiary previously designated as an Unrestricted Subsidiary as a Restricted Subsidiary, the Company shall be deemed to have a continuing Investment in an Unrestricted Subsidiary in an amount equal to the excess, if any, of (i) the net book value of all outstanding Investments of the Company and any of its Restricted Subsidiaries in such redesignated Subsidiary at the time of such redesignation over (ii) the Fair Market Value of such Investments at the time of such redesignation. "Issue Date" means the date of original issuance of the Initial Notes pursuant hereto. "Legal Defeasance" is defined in Section 8.02(b). "Legal Holiday" is defined in Section 12.07. "Legal Requirements" means all laws, statutes and ordinances and all rules, orders, rulings, regulations, directives, decrees, injunctions and requirements of all governmental authorities, that are now or may hereafter be in existence, and that may be applicable to the Company or any Subsidiary or Affiliate thereof or the Trustee (including building codes, zoning and environmental laws, regulations and ordinances), as modified by any variances, special use permits, waivers, exceptions or other exemptions which may from time to time be applicable. "License Loss" is defined in Section 4.20. "License Loss Amount" is defined in Section 4.20. "License Loss Offer" is defined in Section 4.20. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof) or any Sale/Leaseback Transaction. "Liquidated Damages" means all liquidated damages owing pursuant to Section 4 of the Registration Rights Agreement. "Maturity Date" means August 1, 2004. "Maximum Net Worth" is defined in Section 11.03(b). "Net Available Cash" from an Asset Disposition or Event of Loss means payments of cash or cash equivalents received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any consideration received in the form of assumption by the acquiring person of Senior Indebtedness of the Company or Indebtedness of any Restricted Subsidiary) therefrom, in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP (after taking into account any available tax credits or deductions and any tax sharing arrangements), as a consequence of such Asset Disposition or Event of Loss, (ii) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets permitted hereunder, or any Indebtedness (other than Subordinated Obligations) which must by applicable law be repaid out of the proceeds from such Asset Disposition, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition or Event of Loss and (iv) the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition. "Net Cash Proceeds," with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys' fees, accountants' fees, underwriters or placement agents' fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof. "Net Worth" is defined in Section 11.03(b). "Non-Payment Default" is defined in Section 10.02(b). "Non-Recourse FF&E Financing" means Indebtedness of the Company or any Restricted Subsidiary (i) that is Incurred to finance the acquisition or lease after the Issue Date of newly acquired or leased FF&E used in the operation of any Gaming Establishment owned or leased by the Company or its Restricted Subsidiaries, (ii) the amount of which, together with any Refinancing Indebtedness with respect thereto, does not exceed 100% of the lesser of the cost or Fair Market Value of the FF&E so purchased or leased at the time such Indebtedness is incurred, and (iii) that is secured by a Permitted Lien on such FF&E but no other assets; (iv) that provides that no personal recourse shall be had against the Company or any Restricted Subsidiary for the payment of such Indebtedness, enforcement being limited to such FF&E, (v) as to which neither the Company nor any of its Restricted Subsidiaries (other than the party obligated with respect thereto) provides any credit support or is liable, under a Guarantee or otherwise, or constitutes the lender; (vi) as to which no default on such Indebtedness (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; provided, however, that any event that results in any such Indebtedness ceasing to meet any of the foregoing conditions shall be deemed to constitute the Incurrence of Indebtedness by the party obligated with respect thereto. "Non-Recourse Indebtedness" means Indebtedness of a Person to the extent that under the terms thereof or pursuant to applicable law (i) neither the Company nor any of its Restricted Subsidiaries provides any credit support or is liable thereon, under a Guarantee or otherwise, or constitutes the lender; (ii) no default with respect to such Indebtedness (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (iii) the lenders thereunder will not have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries and have been notified in writing to that effect. "Non-U.S. Person" means a Person who is not a U.S. Person, as defined in Rule 902 of Regulation S. "Notes" is defined in the preamble and includes the Subsidiary Guarantees endorsed thereon. "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Obligor" means any of the Company and the Guarantors. "Offering Memorandum" means the Company's Offering Memorandum with respect to the Notes, dated July 10, 1997, certain portions of which are attached hereto as Exhibit D. "Officer" means the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the relevant Obligor. "Officers' Certificate" means a certificate, in compliance with Sections 12.04 and 12.05, signed by two Officers at least one of whom shall be the principal executive officer, principal accounting officer or principal financial officer of the relevant Obligor. "Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee, in compliance with Sections 12.04 and 12.05. The counsel may be an employee of or counsel to the Company or the Trustee. "pari passu," as applied to the ranking of any Indebtedness of a Person in relation to other Indebtedness of such Person, means that each such Indebtedness either (i) is not subordinate in right of payment to any Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness as is the other, and is so subordinate to the same extent, and is not subordinate in right of payment to each other or to any Indebtedness as to which the other is not so subordinate. "pay the Notes" and "payment of the Notes" are defined in Section 10.02(a). "Paying Agent" is defined in Section 2.03. "Payment Blockage Notice" is defined in Section 10.02(b). "Permitted Holders" means Craig H. Neilsen, his estate, spouse, ancestors and their spouses and lineal descendants and their spouses, the executors, administrators, and legal representatives of any of the foregoing and the trustee of any bona fide trust of which any of the foregoing are the sole beneficiaries, or any Person of which the foregoing "beneficially owns" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) Voting Stock representing at least a majority of the total voting power of all classes of Capital Stock of such Person. "Permitted Investment" means an Investment by the Company or any Restricted Subsidiary in (i) a Guarantor or a Person which will, upon the making of such Investment, become a Guarantor; provided, however, that the primary business of such Subsidiary is a Related Business; (ii) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all of its assets to, the Company or a Guarantor; provided, however, that such Person's primary business is a Related Business; (iii) Temporary Cash Investments; (iv) receivables owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances; (v) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (vi) loans or advances to employees made in the ordinary course of business consistent with past practices of the Company or such Restricted Subsidiary, as the case may be (other than loans or advances to finance the purchase by such employees of Capital Stock of the Company or any Subsidiary); (vii) stock, obligations or securities received in settlement of (or pursuant to any bankruptcy proceeding involving the obligor under) debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments; and (viii) Investments received as permitted by clause (ii) of the first paragraph of Section 4.15. "Permitted Junior Securities" means Capital Stock or any debt securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes. "Permitted Liens" means, with respect to any Person, (a) pledges or deposits by such Person under workmen's compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business; (b) Liens imposed by law, such as carriers', warehousemen's and mechanics' Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings, or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be prosecuting an appeal or other proceedings for review; (c) Liens for property taxes not yet due or payable or subject to penalties for non-payment and which are being contested in good faith by appropriate proceedings; (d) Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business; (e) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of- way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person; (f) Liens existing on the Issue Date; (g) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that any such Lien may not extend to any other property owned by the Company or any Restricted Subsidiary; provided further, however, that such Lien was not incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of the Company or any Restricted Subsidiary; (h) Liens on property at the time the Company or a Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property owned by the Company or any Restricted Subsidiary; (i) Liens securing an Interest Rate Protection Agreement so long as the related Indebtedness is permitted to be Incurred hereunder, (j) Liens securing Non-Recourse FF&E Financings or Recourse FF&E Financings, in each case on the FF&E financed thereby, and Liens securing the Vicksburg Note, meeting the conditions of the definition of the Vicksburg Note; (k) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (f), (g), (h) and (j); provided, however, that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under the foregoing clauses (f), (g), (h) or (j) at the time the original Lien became a Permitted Lien hereunder and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; (l) leases or subleases to third parties that do not materially interfere with the operation of a Related Business by the Company and its Restricted Subsidiaries; (m) Liens arising by reason of a judgment or decree for the payment of money to the extent not otherwise resulting in an Event of Default; (n) Liens in favor of the Company or any Guarantor; (o) Liens securing Senior Indebtedness; and (p) Liens incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with respect to obligations that do not exceed $2 million in the aggregate at any one time outstanding and that (a) are not incurred in connection with the borrowing of money or the obtaining of advances or credit (other than Trade Payables) and (b) do not in the aggregate materially detract from the value of the property or materially impair the use thereof in the operation of a Related Business by the Company or such Restricted Subsidiary. "Person" means any individual, corporation, partnership, joint venture, association, Joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Physical Note" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Preferred Stock," as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation. "principal" of a Note means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time. "Private Placement Legend" is defined in Section 2.15(a). "pro forma" means, with respect to any calculation made or required to be made pursuant to the terms hereof, a calculation in accordance with Article 11 of Regulation S-X promulgated under the Securities Act (to the extent applicable), or any succeeding provision, as interpreted in good faith by the Board of Directors after consultation with the independent certified public accountants of the Company, or otherwise a calculation made in good faith by the Board of Directors after consultation with the independent certified public accountants of the Company, as the case may be. "Public Equity Offering" means an underwritten public offering of common stock of the Company meeting the registration requirements of the Securities Act (other than a public offering registered on Form S-8 under the Securities Act or under any successor form) that results in Net Cash Proceeds of at least $20 million to the Company. "Purchase Date", when used with respect to any Note to be purchased pursuant to Sections 4.14, 4.15 or 4.20, means the date on which such Note is required to be purchased pursuant to such Section. "Purchase Price", when used with respect to any Note to be purchased pursuant to Sections 4.14, 4.15 or 4.20, means the price fixed for such purchase pursuant to such Section. "Qualified Institutional Buyer" or "QIB" has the meaning specified in Rule 144A under the Securities Act. "Record Date" means a record date set forth in the Notes. "Recourse FF&E Financing" means Indebtedness of the Company or any of its Restricted Subsidiaries (other than Non-Recourse FF&E Financing) that is Incurred to finance the acquisition or lease after the Issue Date of newly acquired or leased FF&E used in the operation of any Gaming Establishment owned or leased by the Company or its Restricted Subsidiaries and secured by a Lien on such FF&E, provided that such Indebtedness does not exceed the lesser of cost or Fair Market Value of such FF&E at the time of the acquisition or lease of such FF&E. "Redeemable Stock" means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness (other than Preferred Stock) or Disqualified Stock or (iii) is redeemable at the option of the holder thereof, in whole or in part. "Redemption Date" when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and the Notes. "Redemption Price" when used with respect to any Note to be redeemed, means the price fixed for such redemption pursuant to this Indenture and the Notes. "Refinancing Indebtedness" means Indebtedness that refunds, refinances, replaces, renews, restates, repays or extends (including pursuant to any defeasance or discharge mechanism) (collectively, "refinances," and "refinanced" shall have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance herewith (including, subject to the proviso below, Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, however, that (i) the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced, (ii) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced, (iii) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced, (iv) if the Indebtedness of the Company or a Restricted Subsidiary being refinanced is subordinated to other Indebtedness of the Company or a Restricted Subsidiary in any respect, such Refinancing Indebtedness is subordinated at least to the same extent (except that up to $22 million, less the aggregate amount of principal payments made on the Gem Notes, of Indebtedness Incurred to refinance the Gem Notes may rank pari passu with the Notes, if (a) the terms of such Indebtedness (except for the interest rate) are substantially similar to those of the Notes and (b) after giving pro forma effect to the Incurrence of such Indebtedness, the Consolidated Coverage Ratio of the Company is at least 2.25:1 and no Default or Event of Default shall exist) and (v) if the Indebtedness of the Company or a Restricted Subsidiary being refinanced is a Non- Recourse FF&E Financing or the Vicksburg Note, such Refinancing Indebtedness shall meet the conditions set forth in the definition of "Non-Recourse FF&E Financing" (other than clause (i) thereof) or "Vicksburg Note," as applicable; provided further, however, that Refinancing Indebtedness shall not include (a) Indebtedness of a Subsidiary that refinances Indebtedness of the Company, (b) Indebtedness of a Restricted Subsidiary that is not a Guarantor that refinances Indebtedness of a Guarantor, or (c) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary. "Registrar" is defined in Section 2.03. "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of July 15, 1997, by and among the Company and the other parties named on the signature pages thereto, as amended from time to time. "Regulation S Global Notes" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Regulation S Permanent Global Notes" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Regulation S Temporary Global Notes" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Related Business" means the business conducted (or proposed to be conducted) as of the Issue Date by the Company and its Subsidiaries in connection with any Gaming Establishment and any and all reasonably related businesses necessary for, in support or anticipation of and ancillary to or in preparation for, such business including, without limitation, the development, expansion or operation of any Gaming Establishment (including any land-based, dockside, riverboat or other type of casino), owned, or to be owned, leased or managed by the Company or one of its Restricted Subsidiaries. "Remaining Guarantor" is defined in Section 11.03(a). "Representative" means the trustee, agent or representative (if any) for an issue of Senior Indebtedness. "Repurchase Offer" is defined in Section 4.24. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Global Notes" is defined in Section 2.01 and includes the Subsidiary Guarantees endorsed thereon. "Restricted Payment" has the meaning set forth in Section 4.10. "Restricted Period" is defined in Section 2.01. "Restricted Security" has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any Note constitutes a Restricted Security. "Restricted Subsidiary" means (i) any Specified Subsidiary and (ii) any other Subsidiary of the Company that is not an Unrestricted Subsidiary. "Revolving Credit Facility" means the $125 million Revolving Credit Facility pursuant to a Credit Agreement dated as of July 8, 1997, as amended from time to time, among the Company, certain of the Company's Subsidiaries, the Lenders named therein and Wells Fargo Bank N.A., as agent, arranger and swingline lender, and any related documents or instruments and any extensions, revisions, refinancings or replacements thereof by a bank or a syndicate of institutional lenders (including any increase in the commitments thereunder to the extent otherwise permissible under this Indenture). "Sale/Leaseback Transaction" means an arrangement relating to property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or a Restricted Subsidiary leases it from such Person. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Senior Indebtedness" means, with respect to the Company or any Guarantor, (i) the Bank Indebtedness of such Person and (ii) all other Indebtedness of such Person (other than Disqualified Stock), including interest thereon, whether outstanding on the date of the Indenture or thereafter issued, unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such obligations are not superior in right of payment to the Notes or the Subsidiary Guarantee of such Guarantor, as applicable; provided, however, that Senior Indebtedness shall not include (a) any obligation of the Company to any Subsidiary or any Affiliate, (b) any liability for Federal, state, local or other taxes owed or owing by the Company or any Guarantor, (c) any Trade Payables or other liability to trade creditors arising in the ordinary course of business (including Guarantees thereof or instruments evidencing such liabilities), (d) any Indebtedness, Guarantee or obligation of the Company or any Guarantor that is subordinate or junior in any respect to any other Indebtedness, Guarantee or obligation of such Person, including any Senior Subordinated Indebtedness and any Subordinated Obligations, (e) any obligations with respect to any Capital Stock, (f) any Indebtedness Incurred in violation of the Indenture, or (g) any Indebtedness Incurred after the Issue Date in excess of the $250 million limit (or such higher limit as then in effect under all Gem Notes) on "Senior Indebtedness" under, and as defined in, the Gem Notes. "Senior Subordinated Indebtedness" means the Notes and any other Indebtedness of the Company that specifically provides that such Indebtedness is to rank pari passu with the Notes and is not subordinated by its terms to any Indebtedness or other obligation of the Company that is not Senior Indebtedness. "Specified Subsidiary" means CPI, ACCBI, ACLVI, ACVI, ACHC and any other existing or future Subsidiary of the Company that owns, leases, operates or manages any of the assets of CPI, ACCBI, ACLVI, ACVI or ACHC on the Issue Date, or any additions, extensions or replacements of any such assets, or holds any Gaming License relating to any such assets, additions, extensions or replacements. "Stated Maturity" means, with respect to any security or Indebtedness, the date specified in such security or Indebtedness as the fixed date on which the payment of principal of such security or Indebtedness is due and payable, including pursuant to any mandatory redemption or prepayment provision (but excluding any provision providing for the repurchase or prepayment of such security or Indebtedness at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer or borrower unless such contingency has occurred). "Subordinated Obligation" means any Indebtedness of the Company (whether outstanding on the date hereof or thereafter Incurred) which is subordinate or junior in right of payment to the Notes in any respect and, in any event, includes the Gem Notes (except for Refinancing Indebtedness relating to the Gem Notes that satisfies the criteria of the parenthetical provisions to clause (iv) of the definition of "Refinancing Indebtedness"). "Subsidiary" of any Person means any corporation, association, limited liability company, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including limited liability company or partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person. "Subsidiary Guarantee" is defined in Section 11.01(a). "Temporary Cash Investments" means any of the following: (i) investments in U.S. Government Obligations maturing within 90 days of the date of acquisition thereof, (ii) investments in time deposit accounts, certificates of deposit and money market deposits maturing within 90 days of the date of acquisition thereof issued by a bank or trust company organized under the laws of the United States or any state thereof having capital, surplus and undivided profits aggregating in excess of $500,000,000 and (a) whose long-term debt is rated "A-3" or "A-" or higher according to Moody's Investors Service, Inc. or Standard and Poor's Ratings Group (or such similar equivalent rating by at least one "nationally recognized statistical rating organization" (as defined in Rule 436 under the Securities Act) or (b) which has a Keefe Bank Watch Rating of "B" or better, (iii) repurchase obligations with a term of not more than 7 days for underlying securities of the types described in clause (i) above entered into with a bank meeting the qualifications described in clause (ii) above, and (iv) investments in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Company) organized and in existence under the laws of the United States of America with a rating at the time as of which any investment therein is made of "P-1 " (or higher) according to Moody's Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's Corporation. "TIA" means the Trust Indenture Act of 1939, as amended from time to time. "Trade Payables" means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in the ordinary course of business of such Person in connection with the acquisition of goods or services. "Trustee" means the party named in the preamble until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. "U.S. Legal Tender" means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. "Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided under Section 4.19(b), and (ii) any Subsidiary of an Unrestricted Subsidiary, but, in each case, only to the extent that such Subsidiary or a Subsidiary of such Subsidiary (a) does not own any Capital Stock or Indebtedness of, or own or hold any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of such Unrestricted Subsidiary, (b) has no Indebtedness other than Non-Recourse Indebtedness, (c) is not a party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company the terms of which are less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company, (d) is not a Person with respect to which the Company or any of its Restricted Subsidiaries has any direct or indirect obligation (unless the payment or fulfillment of such obligation is expressly conditioned upon compliance with Section 4.10) (1) to subscribe for additional Capital Stock, or (2) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results, and (e) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements set forth in the preceding sentence, it shall thereafter cease to be an Unrestricted Subsidiary for purposes hereof and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.12, the Company shall be in default of such Section). "U. S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer's option. "Vicksburg Hotel" means the hotel being constructed across the street from the main entrance to the Vicksburg Casino and the underlying real estate. "Vicksburg Note" means the promissory note made or to be made by ACHC in favor of certain lenders (and any related loan or collateral security agreements) the proceeds of which are used to fund the construction costs of the Vicksburg Hotel, as described under "Description of Existing Indebtedness," in the Offering Memorandum provided that (i) the aggregate outstanding principal amount thereof, together with any Refinancing Indebtedness with respect thereto, shall not exceed $7.5 million at any time, (ii) the Indebtedness evidenced thereby is secured by a Lien on the Vicksburg Hotel and any other related assets, but no other collateral, (iii) such note provides that no personal recourse shall be had against the Company or any Restricted Subsidiary for the payment of Indebtedness evidenced by such note, enforcement being limited to the Vicksburg Hotel and such other related assets, (iv) neither the Company nor any of the Restricted Subsidiaries (other than ACHC) shall provide any credit support or be liable with respect to such note, under a Guarantee or otherwise, or constitute the lender with respect to such note, and (v) any event that results in any such Indebtedness ceasing to meet any of the foregoing conditions shall be deemed to constitute the Incurrence of Indebtedness by the obligor thereof. The prohibition set forth in clause (iv) above shall not restrict ACVI and ACHC from entering into a management agreement, an operating agreement and/or related contractual arrangements, provided that ACVI does not Incur any liability on the Vicksburg Note. "Voting Stock" of a corporation means all classes of Capital Stock of such corporation then outstanding and normally entitled to vote in the election of directors. "Wholly Owned Subsidiary" means a Restricted Subsidiary of the Company all the Capital Stock of which (other than directors' qualifying shares) is owned by the Company or another Wholly Owned Subsidiary. SECTION 1.02.Incorporation by Reference of TIA. Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in, and made a part of, this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes, including the Subsidiary Guarantees with respect thereto. "indenture security holder" means a Holder or a Noteholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means any Obligor or any other obligor on the Notes. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule and not otherwise defined herein have the meanings assigned to them therein. SECTION 1.03.Rules of Construction. Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP, and unless otherwise provided herein, all accounting determinations shall be made in accordance with GAAP consistently applied; (iii) "or" is not exclusive and "including" is not limiting; (iv) words in the singular include the plural, and words in the plural include the singular; (v) references in this Indenture to any agreement, other document or law "as amended" or "as amended from time to time," or to "amendments" of any document or law, shall include any amendments, supplements, replacements, renewals or other modifications from time to time, provided in the case of modifications to documents, such modifications are permissible hereunder; (vi) references in this Indenture to any law include regulations promulgated thereunder from time to time; and (vii) The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. These and any other references to any subdivision in this Indenture are to this Indenture, and the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. ARTICLE TWO THE NOTES SECTION 2.01.Form and Dating. The Notes, and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto (including in the case of Initial Notes the bracketed text referred to in footnotes 1, 3, 4, 6, 7, 9, 12, 13 and 14). The Notes may have notations, legends or endorsements required by law, stock exchange rule or depository rule or usage. The Company and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its authentication. The terms and provisions contained in the Notes, annexed hereto as Exhibit A, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Obligors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of one or more global Notes in registered form, substantially in the form set forth in Exhibit A (including the bracketed text referred to in footnotes 2, 5, 10, 11 and 15) (the "Restricted Global Note"). Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more global Notes in registered form, substantially in the form set forth in Exhibit A (including the bracketed text referred to in footnotes 2, 5, 10, 11 and 15) (the "Regulation S Temporary Global Note"). Beneficial interests in a Regulation S Temporary Global Note will be exchanged for beneficial interests in a single Note in permanent global form (the "Regulation S Permanent Global Note", and, together with the Regulation S Temporary Note, the "Regulation S Global Notes") after the Restricted Period (as defined below) upon certification that the beneficial interests in such global securities are owned by either Non-U.S. Persons or QIBs. Regulation S Global Notes and Restricted Global Notes are collectively referred to herein as the "Global Notes." A beneficial interest in a Global Note may be exchanged for certificated notes ("Physical Notes") in accordance with the rules of the Depository, Section 2.16 and Section 2.17. The Global Notes shall be deposited with the Trustee, as custodian for the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Global Notes shall be registered in the name of Cede & Co. ("Cede"), as the Depository's nominee, for credit to an account of a direct or indirect participant in the Depository. With respect to any beneficial interest in a Regulation S Global Note acquired from the Company, a distributor (as such term is defined in Regulation S under the Securities Act) or any of their respective affiliates, through and including August 24, 1997 (such period through and including August 24, 1997, the "Restricted Period"), beneficial interests in the Regulation S Global Notes may be held only through the Euroclear System ("Euroclear") and Cedel, S.A. ("CEDEL") (as indirect participants in the Depository), unless transferred to a person that takes delivery through the Restricted Global Notes in accordance with the requirements of Section 2.17. The aggregate principal amount of a Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository, and by corresponding adjustment to Schedule A of such Notes, as hereinafter provided. SECTION 2.02.Execution and Authentication; Aggregate Principal Amount. Two Officers, or an Officer and an Assistant Secretary, shall sign, or one Officer shall sign and one Officer or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, the Notes for the Obligors by manual or facsimile signature. The Company's seal shall also be reproduced on the Notes. If an Officer or Assistant Secretary whose signature is on a Note was an Officer or Assistant Secretary at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall nevertheless be valid. A Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall authenticate (i) Initial Notes for original issue in the aggregate principal amount not to exceed $100,000,000, and (ii) Exchange Notes from time to time for issue only in exchange for a like principal amount of Initial Notes, in each case upon written orders of the Obligors in the form of an Officers' Certificate. The Officers' Certificate shall specify the amount of Notes to be authenticated, the date on which the Notes are to be authenticated and the aggregate principal amount of Notes outstanding on the date of authentication, whether the Notes are to be Initial Notes or Exchange Notes. The aggregate principal amount of Notes outstanding at any time may not exceed $100,000,000, except as provided in Section 2.07. The Trustee may appoint an authenticating agent (the "Authenticating Agent") reasonably acceptable to the Company to authenticate Notes. Unless otherwise provided in the appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Company and Affiliates of the Company. The Notes shall be issuable in fully registered form only, without coupons, in denominations of $1,000 and any integral multiple thereof. SECTION 2.03.Registrar and Paying Agent. The Company shall maintain an office or agency (which shall be located in the Borough of Manhattan in The City of New York, State of New York) where (a) Notes may be presented or surrendered for registration of transfer or for exchange (the "Registrar"), (b) Notes may be presented or surrendered for payment (the "Paying Agent") and (c) notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company, upon prior written notice to the Trustee, may have one or more co-Registrars and one or more additional paying agents reasonably acceptable to the Trustee. The term "Paying Agent" includes any additional Paying Agent. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which agreement shall incorporate the provisions of the TIA and implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee, in advance, of the name and address of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such. The Company initially appoints the Trustee as Registrar, Paying Agent and agent for service of demands and notices in connection with the Notes, until such time as the Trustee has resigned or a successor has been appointed. The Company initially appoints The Depository Trust Company ("DTC") to act as Depository with respect to the Global Notes. SECTION 2.04.Paying Agent To Hold Assets in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all assets held by the Paying Agent for the payment of principal of, or premium or interest on, the Notes (whether such assets have been distributed to it by the Company or any other obligor on the Notes), and the Company and the Paying Agent shall notify the Trustee of any Default by the Company (or any other obligor on the Notes) in making any such payment. The Company at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed and the Trustee may at any time during the continuance of any payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the Paying Agent shall have no further liability for such assets. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. SECTION 2.05.Noteholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Holders. If the Trustee is not the Registrar, the Company shall furnish or cause the Registrar to furnish to the Trustee promptly following each Record Date and at such other times as the Trustee may request in writing a list as of such date and in such form as the Trustee may reasonably require of the names and addresses of the Holders, which list may be conclusively relied upon by the Trustee. SECTION 2.06.Transfer and Exchange. Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided, however, that the Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Obligors and the Registrar or co- Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registrations of transfer and exchanges, the Obligors shall execute and the Trustee shall authenticate Notes at the Registrar's or co-Registrar's request. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchanges or transfers pursuant to Sections 2.10, 3.06, 4.14, 4.15, 4.20 or 9.06, in which event the Company shall be responsible for the payment of such taxes). The Registrar or co-Registrar shall not be required to register the transfer of or exchange of any Note (i) during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of Notes and ending at the close of business on the day of such mailing, (ii) selected for redemption in whole or in part pursuant to Article Three, except the unredeemed portion of any Note being redeemed in part, and (iii) during a period beginning at the opening of business 15 days before an Interest Payment Date and ending at the close of business on such Interest Payment Date. Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Notes may be effected only through a book entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Note shall be required to be reflected in a book entry. SECTION 2.07.Replacement Notes. If a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Obligors shall issue and the Trustee shall authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Obligors, such Holder must provide an affidavit of lost certificate and an indemnity bond or other indemnity, sufficient in the judgment of both the Obligors and the Trustee, to protect the Obligors, the Trustee or any Agent from any loss which any of them may suffer if a Note is replaced. The Obligor may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note shall constitute an additional obligation of the Obligors. SECTION 2.08.Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those canceled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. Subject to Section 2.09, a Note does not cease to be outstanding because the Company or any of its respective Affiliates holds the Note. If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives an Opinion of Counsel that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.07. If on a Redemption Date, any Purchase Date or the Maturity Date, the Paying Agent holds U.S. Legal Tender sufficient to pay all of the principal and interest and Liquidated Damages, if any, due on the Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest and Liquidated Damages, if any, on them ceases to accrue. SECTION 2.09.Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver, consent or notice, Notes owned by any Obligor, or any of its Affiliates shall be considered as though they are not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Trust Officer of the Trustee actually knows are so owned shall be so considered. The Company shall notify the Trustee, in writing, when it or any of its Affiliates repurchases or otherwise acquires Notes, of the aggregate principal amount of such Notes so repurchased or otherwise acquired. SECTION 2.10.Temporary Notes. Until definitive Notes are ready for delivery, the Obligors may prepare and the Trustee shall authenticate temporary Notes upon receipt of a written order of the Obligors in the form of one or more Officers' Certificates. Each Officers' Certificate shall specify the amount of temporary Notes to be authenticated and the date on which the temporary Notes are to be authenticated. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Obligors shall prepare and the Trustee shall authenticate upon receipt of a written order of the Obligors pursuant to Section 2.02 definitive Notes in exchange for temporary Notes. SECTION 2.11.Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and shall dispose of all Notes surrendered for registration of transfer, exchange, payment or cancellation. Subject to Section 2.07, the Company may not issue new Notes to replace Notes that it has paid or delivered to the Trustee for cancellation. If the Company shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.11. The Trustee shall destroy all canceled Notes in accordance with its usual procedures unless the Company by written directions shall otherwise direct. SECTION 2.12.Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record date, which date shall be the fifteenth day next preceding the date fixed by the Company for the payment of defaulted interest or the next succeeding Business Day if such date is not a Business Day. At least 15 days before the subsequent special record date, the Company shall mail to each Holder, as of a recent date selected by the Company, with a copy to the Trustee, a notice that states the subsequent special record date, the payment date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. SECTION 2.13.CUSIP Number. The Company in issuing the Notes may use one or more "CUSIP" numbers, and if so, the Trustee shall use the appropriate CUSIP number in notices of redemption or exchange as a convenience to Holders; provided that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of any CUSIP number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee of any change in any CUSIP number. SECTION 2.14.Deposit of Money. Subject to Section 4.01(b), prior to 11:00 a.m. New York City time on each Interest Payment Date and Maturity Date, the Company shall deposit with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date or Maturity Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be. SECTION 2.15.Restrictive Legends. (a) Each Global Note that constitutes a Restricted Security shall bear the following legend (the "Private Placement Legend") on the face thereof until July 15, 1999, unless otherwise agreed by the Company and the Holder thereof: "THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IN THE CASE OF (b), (c), OR (d), UPON DELIVERY OF AN OPINION OF COUNSEL IF THE ISSUER OR TRUSTEE, REGISTRAR OR TRANSFER AGENT FOR THE NOTES SO REQUESTS), (2) TO THE ISSUER, (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE." (b) Each Global Note shall also bear the following legend on the face thereof: "UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE." SECTION 2.16.Book-Entry Provisions for Global Security. (a) The Global Notes initially shall (i) be registered in the name of the Depository or the nominee of such Depository, for credit to an account of a direct or indirect participant in the Depository, including Euroclear or CEDEL, and (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear legends as set forth in Section 2.15. Members of, or participants in, the Depository, including CEDEL and Euroclear ("Agent Members"), shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depository, or the Trustee as its custodian, or under any Global Note, and the Depository may be treated by the Obligors, the Trustee and any agent of the Obligors or the Trustee as the absolute owner of each Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Obligors, the Trustee or any agent of the Obligors or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note. (b) Transfers of a Global Note shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and procedures of the Depository. In addition, if (i) the Company notifies the Trustee in writing that the Depository is no longer willing or able to act as a Depository with respect to any Global Note and the Company is unable to locate a qualified successor within 90 days, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Notes in the form of Physical Notes under this Indenture, or (iii) if a Default or Event of Default occurs and any owner of a beneficial interest in a Global Note so requests, then, upon surrender by the Depository or its nominee of a Global Note, Physical Notes will be issued to each person that the Depository or its nominee identifies as being the beneficial owner of the related Notes. (c) In connection with any transfer or exchange of a portion of the beneficial interest in a Global Note to beneficial owners pursuant to Section 2.16(b), the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the applicable Global Note in an amount equal to the principal amount of the beneficial interest in the applicable Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount. (d) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.16(b), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations. (e) Any Physical Note constituting a Restricted Security delivered in exchange for an interest in a Global Note pursuant to paragraph (b) or (c) shall, except as otherwise provided by Section 2.17(a)(i)(x) and Section 2.17(c), bear the legend regarding transfer restrictions applicable to the Physical Notes set forth in Section 2.15. (f) The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes. (g) Whenever, as a result of optional redemption by the Company pursuant to Section 3.07, an offer to purchase as a result of a Change of Control pursuant to Section 4.14, an Excess Proceeds Offer pursuant to Section 4.15, a License Loss Offer pursuant to Section 4.20, an Exchange Offer (as defined in the Registration Rights Agreement) or an exchange for Physical Notes, a Global Note is redeemed, repurchased or exchanged in part, such Global Note shall be surrendered by the Holder hereof to the Trustee who shall cause an adjustment to be made to Schedule A of such Global Note so that the principal amount of such Global Note will be equal to the portion not redeemed, repurchased or exchanged and shall thereafter return such Global Note to such Holder, provided that such Global Note shall be in a principal amount of $1,000 or an integral multiple of $1,000. SECTION 2.17.Special Transfer Provisions. (a) Transfers to Non-U.S. Persons. With respect to any proposed transfer of a Physical Note constituting a Restricted Security or any proposed transfer of a beneficial interest in the Restricted Global Note to any Non-U.S. Person (which Non-U.S. Person would, in the case of a transfer of a beneficial interest in the Restricted Global Note, take an interest in the Regulation S Global Note): (i) the Registrar shall register the transfer of such Physical Note constituting a Restricted Security, whether or not such Note bears the Private Placement Legend, (x) if the requested transfer is after July 15, 1999, or (y) the proposed transferor has delivered to the Registrar a certificate substantially in the form of Exhibit B hereto; and (ii) in the case of any transfer of any beneficial interest in the Restricted Global Note, there shall be delivered to the Registrar (x) the certificate, if any, required by paragraph (i) above and (y) instructions in accordance with the Depository's and the Registrar's procedures. With respect to all such transfers, (A) the Registrar shall reflect on its books and records the date of such transfer, (B) Schedule A to the applicable Global Note or Notes shall be updated if and as appropriate to reflect such transfer, and (C) if the transfer is of a Physical Note, the transferred Physical Note shall be cancelled and, if the entire amount of such Physical Note was not transferred, a new Physical Note, in the amount of the untransferred portion of the original Physical Note, shall be executed by the Company, authenticated by the Trustee, and delivered to such transferor. (b) Transfers to QIBs. With respect to any proposed transfer of a Physical Note constituting a Restricted Security or any proposed transfer of a beneficial interest in the Regulation S Global Note to a QIB (excluding transfers to Non-U.S. Persons) (which QIB would, in the case of a transfer of a beneficial interest in the Regulation S Global Notes, take an interest in the Restricted Global Note): (i) in the case of a transfer of a Physical Note, the Registrar shall register the transfer only if the transferor has delivered to the Registrar a certificate substantially in the form of Exhibit C hereto; and (ii) in the case of a transfer of any beneficial interest in the Regulation S Global Note, there shall be delivered to the Registrar (x) the certificate, if any, required by paragraph (i) above and (y) instructions in accordance with the Depository's and the Registrar's procedures. With respect to all such transfers, (A) the Registrar shall reflect on its books and records the date of such transfer, (B) Schedule A to the applicable Global Note or Notes shall be updated if and as appropriate to reflect such transfer, and (C) if the transfer is of a Physical Note, the transferred Physical Note shall be cancelled and, if the entire amount of such Physical Note was not transferred, a new Physical Note, in the amount of the untransferred portion of the original Physical Note, shall be executed by the Company, authenticated by the Trustee, and delivered to such transferor. (c) Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes that bear the Private Placement Legend unless (i) the circumstances contemplated by Section 2.17(a)(i)(x) exist or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. (d) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture. The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.16 or this Section 2.17 in accordance with its usual procedures. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar. ARTICLE THREE REDEMPTION SECTION 3.01.Notices to Trustee. If the Company elects to redeem Notes pursuant to Section 3.07 or 3.08, it shall notify the Trustee and the Paying Agent in writing of the Redemption Date and the principal amount of the Notes to be redeemed. The Company shall give each notice provided for in this Section 3.01 at least 60 days before the Redemption Date (unless a shorter notice period shall be satisfactory to the Trustee, as evidenced in a writing signed on behalf of the Trustee), together with an Officers' Certificate stating that such redemption shall comply with the conditions contained herein and in the Notes. SECTION 3.02.Selection of Notes To Be Redeemed. If fewer than all the Notes are to be redeemed pursuant to Section 3.07, selection of Notes for redemption will be made by the Trustee, pro rata or by lot or by any other means the Trustee determines to be fair and appropriate and which complies with applicable legal and securities exchange requirements. SECTION 3.03.Notice of Redemption. At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption by first class mail, postage prepaid, to each Holder whose Notes are to be redeemed, with a copy to the Trustee and any Paying Agent. At the Company's written request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. Each notice for redemption shall identify the Notes to be redeemed and shall state: (i) the Redemption Date; (ii) the Redemption Price and the amount of accrued interest and Liquidated Damages, if any, to be paid; (iii) the name and address of the Paying Agent; (iv) the Section of this Article Three pursuant to which such redemption is being made; (v) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest and Liquidated Damages, if any; (vi) that, unless the Company defaults in making the redemption payment, interest on Notes called for redemption and Liquidated Damages, if any, will cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price plus accrued interest and Liquidated Damages, if any, upon surrender to the Paying Agent of the Notes redeemed; (vii) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, and upon surrender of such Note, a new Note or Notes in the aggregate principal amount equal to the unredeemed portion thereof will be issued; and (viii) if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption. SECTION 3.04.Effect of Notice of Redemption. Once notice of redemption is mailed in accordance with Section 3.03, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued interest and Liquidated Damages, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (which shall include accrued interest thereon and Liquidated Damages, if any, to the Redemption Date), but installments of interest or Liquidated Damages, if any, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant record dates referred to in the Notes. SECTION 3.05.Deposit of Redemption Price. Subject to Section 4.01(b), prior to 11:00 A.M., New York City time, on the Redemption Date, the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued interest and Liquidated Damages, if any, of all Notes to be redeemed on that date. The Paying Agent shall promptly return to the Company any U.S. Legal Tender so deposited which is not required for that purpose, except with respect to amounts owed as obligations to the Trustee pursuant to Article Seven. If the Company complies with the preceding paragraph, then, unless the Company defaults in the payment of such Redemption Price plus accrued interest and Liquidated Damages, if any, interest and Liquidated Damages, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. SECTION 3.06.Notes Redeemed in Part. Upon surrender of a Note that is to be redeemed in part, the Trustee shall authenticate for the Holder a new Note or Notes equal in principal amount to the unredeemed portion of the Note surrendered. SECTION 3.07. Redemption. (a) Except as set forth in Section 3.07(b), the Notes will not be redeemable at the option of the Company prior to August 1, 2001. On or after that date, the Notes will be redeemable at the option of the Company, in whole at any time or in part from time to time, at the Redemption Prices (expressed in percentages of principal amount) specified below plus accrued and unpaid interest and Liquidated Damages, if any, to the Redemption Date, if redeemed during the 12-month period beginning August 1 of the years indicated below: Year Percentage 2001 105.25% 2002 103.50% 2003 and thereafter 101.75% (b) Notwithstanding the foregoing, but subject to the terms of any Designated Senior Indebtedness, on or prior to August 1, 2000, the Company may redeem up to 25% in aggregate principal amount of the Notes originally issued hereunder at a Redemption Price of 110.50% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the Redemption Date with the net proceeds of one or more Public Equity Offerings; provided that at least $75.0 million in aggregate principal amount of Notes remain outstanding immediately after the occurrence of each such redemption; and provided, further, that notice of each such redemption shall have been given pursuant to Section 3.03 within 30 days after the date of the closing of each such Public Equity Offering. (c) If an Event of Default occurs prior to August 1, 2001, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Notes prior to August 1, 2001, then the premium (expressed in percentages of principal amount) specified below shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes during the 12-month period beginning August 1 of the years indicated below: Year Percentage 1997 (and including the period from 10.50% July 15, 1997 to July 31, 1997) 1998 9.188% 1999 7.875% 2000 6.563% SECTION 3.08.Mandatory Disposition or Redemption Pursuant to Gaming Laws. If a Holder or beneficial owner of a Note is required to be licensed, qualified or found suitable under applicable Gaming Laws and is not so licensed, qualified or found suitable, or if a Holder or a beneficial owner of a Note fails to take the steps necessary to seek such license, qualification or finding of suitability, the Holder or beneficial owner of a Note shall be obliged, at the request of the Company, to dispose of such Holder's or beneficial owner's Notes within 30 days after receipt of notice of failure to be licensed, qualified or found suitable or such earlier date prescribed by any Gaming Authority (in which event the Company's obligation to pay any interest and Liquidated Damages, if any, after the receipt of such notice shall be limited as provided in such Gaming Laws), and thereafter, the Company shall have the right to redeem, on the date fixed by the Company for the redemption of such Notes, such Holder's or beneficial owner's Notes at a Redemption Price equal to the lowest of (i) the price at which such Holder or beneficial owner acquired such Notes without accrued interest or Liquidated Damages, if any, unless the payment of such interest or Liquidated Damages, if any, is permitted by the applicable Gaming Authority, in which case such interest and Liquidated Damages, if any, shall be paid through the Redemption Date, (ii) the fair market value of such Notes on such Redemption Date and (iii) the principal amount of such Notes without accrued interest or Liquidated Damages, if any, thereon, unless the payment of such interest or Liquidated Damages, if any, is permitted by the applicable Gaming Authority, in which case such interest and Liquidated Damages, if any, shall be paid through the Redemption Date. The Company is not required to pay or reimburse any Holder or beneficial owner of a Note for the costs of licensure or investigation for such licensure, qualification, or finding of suitability. Any Holder or beneficial owner of a Note required to be licensed, qualified or found suitable under applicable Gaming Laws must pay all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, suitability or application therefor. ARTICLE FOUR COVENANTS SECTION 4.01.Payment of Notes. (a) The Company shall pay the principal of and interest and Liquidated Damages, if any, on the Notes on the dates and in the manner provided in the Notes, this Indenture and the Registration Rights Agreement. Subject to Section 4.01(b), an installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Company or an Affiliate of the Company) holds, prior to 11:00 A.M. New York City time, on that date U.S. Legal Tender designated for and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture. (b) Principal and interest and Liquidated Damages, if any, will initially be payable at the offices of the Paying Agent but, at the option of the Company, interest and Liquidated Damages, if any, may be paid by check mailed to the persons who are registered Noteholders at their registered addresses provided that (i) all payments with respect to Global Notes are required to be made in same day funds in accordance with the policies of the Depository and (ii) all payments with respect to Notes, the Holders or beneficial owners of which have given wire transfer instructions to the Company, will be required to be made by wire transfer of immediately available funds to the accounts specified by such Persons, in each case on the due date therefor. (c) The Company shall pay, to the extent such payments are lawful, interest on overdue principal and on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the rate borne by the Notes plus 2% per annum. (d) Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. (e) Notwithstanding anything herein to the contrary contained in this Indenture, each of the Obligors may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder. SECTION 4.02.Maintenance of Office or Agency. The Company shall maintain the office or agency required under Section 2.03. The Company shall give prior written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 12.02. SECTION 4.03.Corporate Existence. Except as otherwise permitted by Article Five and Section 4.15, the Company shall do or cause to be done, at its own cost and expense, all things necessary to preserve and keep in full force and effect its corporate existence and the corporate existence of each of its Restricted Subsidiaries in accordance with the respective organizational documents of each such Restricted Subsidiary and the material rights (charter and statutory) and franchises of the Company and each such Restricted Subsidiary; provided, however, that the Company shall not be required to preserve, with respect to itself, any material right or franchise and, with respect to any of its Restricted Subsidiaries, any such existence, material right or franchise, if the Board of Directors of the Company shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the Company and the Restricted Subsidiaries, taken as a whole. SECTION 4.04.Payment of Taxes and Other Claims. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes, assessments and governmental charges (including withholding taxes and any penalties, interest and additions to taxes) levied or imposed upon it or any of its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of it or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings properly instituted and diligently conducted for which adequate reserves, to the extent required under GAAP, have been taken. SECTION 4.05.Maintenance of Properties and Insurance. (a) The Company shall, and shall cause each of its Restricted Subsidiaries to, maintain its material properties in good working order and condition (subject to ordinary wear and tear) and make all necessary repairs, renewals, replacements, additions, betterments and improvements thereto and actively conduct and carry on its business; provided, however, that nothing in this Section 4.05 shall prevent the Company or any of its Restricted Subsidiaries from discontinuing the operation and maintenance of any of its properties, if such discontinuance is, in the good faith judgment of the Board of Directors of the Company or the Restricted Subsidiary, as the case may be, desirable in the conduct of their respective businesses and is not disadvantageous in any material respect to the Holders. (b) The Company shall provide or cause to be provided, for itself and each of its Restricted Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the good faith judgment of the Board of Directors of the Company, are adequate and appropriate for the conduct of the business of the Company and such Restricted Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States of America or an agency or instrumentality thereof, in such amounts, with such deductibles, and by such methods as shall be, in the good faith judgment of the Board of Directors of the Company, adequate and appropriate for the conduct of the business of the Company and such Restricted Subsidiaries. SECTION 4.06.Compliance Certificate; Notice of Default. (a) The Company shall deliver to the Trustee, within 90 days after the end of the Company's fiscal year, an Officers' Certificate signed by the chief executive officer or the chief operating officer and the chief financial officer or the chief accounting officer of the Company stating that a review of its activities and the activities of its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether each of the Company and its Subsidiaries has kept, observed, performed and fulfilled its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that to the best of such Officer's knowledge each of the Company and its Subsidiaries during such preceding fiscal year has kept, observed, performed and fulfilled each and every such covenant and no Default or Event of Default occurred during such year and at the date of such certificate there is no Default or Event of Default that has occurred and is continuing or, if such signers do know of such Default or Event of Default, the certificate shall describe the Default or Event of Default and its status with particularity and shall also describe what action the Company is taking or proposes to take with respect thereto. The Officers' Certificate shall also notify the Trustee should the Company elect to change the manner in which it fixes its fiscal year end. (b) The annual financial statements delivered pursuant to Section 4.08 shall be accompanied by a written report of the Company's independent accountants (who shall be a firm of established national reputation) that in conducting their audit of such financial statements nothing has come to their attention that would lead them to believe that the Company has violated any of Article Four, Five or Six of this Indenture insofar as they relate to accounting matters or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation. (c) (i) If any Default or Event of Default has occurred and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with respect to a claimed Default under this Indenture or the Notes, the Company shall deliver to the Trustee, at its address set forth in Section 12.02, by registered or certified mail or by telegram, telex or facsimile transmission followed by hard copy by registered or certified mail an Officers' Certificate specifying such event, notice or other action within five Business Days of its becoming aware of such occurrence. SECTION 4.07.Compliance with Laws. The Company shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as are not in the aggregate reasonably likely to have a material adverse effect on the financial condition or results of operations of the Company and its Restricted Subsidiaries, taken as a whole. SECTION 4.08.SEC Reports. Notwithstanding that the Company may not be, or may not be required to remain, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the Commission (unless the Commission will not accept such filing) and provide the Trustee and Holders of the Notes with such annual reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and other reports to be so filed and provided at the times specified for the filing of such information, documents and reports under such Sections. In addition, for so long as any Notes remain outstanding, the Company shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Notwithstanding anything herein to the contrary, the Trustee shall have no duty to review such documents for purposes of determining their compliance with any provision of this Indenture. SECTION 4.09. Waiver of Stay, Extension or Usury Laws. Each Obligor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive any Obligor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) each Obligor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. SECTION 4.10.Limitation on Restricted Payments. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, (i) declare or pay any dividend or make any distribution or other payment on or in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving the Company or a Restricted Subsidiary) except dividends or distributions or payments payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and except dividends or distributions payable to the Company or a Guarantor, (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company or any Restricted Subsidiary held by Persons other than the Company or a Guarantor (including any payment in connection with any merger or consolidation involving the Company or a Restricted Subsidiary), (iii) make any payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Obligations, except a payment of any interest or any principal installment at its stated maturity or due date (and except for the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition); provided after giving effect to such payment with respect to a Gem Note, no Default or Event of Default would then exist; or (iv) make any Restricted Investment in any Person (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a "Restricted Payment"), unless, at the time of and after giving effect to such Restricted Payment: (A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (B) the Company would, at the time of such Restricted Payment and after giving pro forma effect to such Restricted Payment, have been permitted to incur at least $1.00 of additional Indebtedness under the Consolidated Coverage Ratio test set forth in Section 4.12(a); and (C) such Restricted Payment, together with the aggregate of all other Restricted Payments made by the Company and its Restricted Subsidiaries after March 31, 1997 (excluding the Restricted Payments permitted by the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from March 31, 1997 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from capital contributions or the issue or sale after the Issue Date of Capital Stock of the Company or of debt securities of the Company that have been converted into such Capital Stock (other than Capital Stock (or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment, plus (iv) 50% of any dividends or distributions received by the Company or a Restricted Subsidiary after the Issue Date with respect to a Restricted Investment, to the extent that such dividends or distributions were not otherwise included in Consolidated Net Income of the Company for such period or in the immediately preceding clause (iii), provided that clause (iii) and (iv) of this paragraph (C) shall not include cash proceeds received from Restricted Investments and applied pursuant to clause (iv) of Section 4.10(b). (b) Notwithstanding the foregoing, Section 4.10(a) will not prohibit any of (i) the payment of any dividend or other distribution within 60 days after the date of declaration thereof, if at said date of declaration no Default or Event of Default exists and such payment would have complied with the provisions of the Indenture; (ii) the making of any Restricted Investment, or the redemption, repurchase, retirement or other acquisition of any Capital Stock of the Company, in either case in exchange for, or out of the proceeds of, a substantially concurrent capital contribution or sale (other than by or to a Subsidiary of the Company) of Capital Stock of the Company (other than any Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (C)(ii) of Section 4.10(a); (iii) the defeasance, redemption, prepayment or repurchase of Subordinated Obligations with the net cash proceeds from (a) an incurrence of Refinancing Indebtedness or (b) a substantially concurrent capital contribution or sale (other than by or to a Subsidiary of the Company) of Capital Stock of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds referred to in clause (b) that are utilized for any such redemption, repurchase, prepayment, retirement or other acquisition shall be excluded from clause (C)(ii) of Section 4.10(a); (iv) Restricted Investments in any Person or Persons primarily engaged in a Related Business in an aggregate amount outstanding at any time, net of any net cash proceeds received by the Company or a Guarantor therefrom (but only to the extent not otherwise included in the Consolidated Net Income of the Company), not to exceed $10.0 million; and (v) any redemption required pursuant to Section 3.08. (c) The Company may designate any Restricted Subsidiary, other than a Specified Subsidiary, to be an Unrestricted Subsidiary if such designation would not cause a Default and the other conditions set forth in Section 4.19 are satisfied. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greatest of (i) the net book value of such Investments at the time of such designation, (ii) the Fair Market Value of such Investments at the time of such designation and (iii) the original Fair Market Value of such Investments at the time they were made. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the conditions set forth in Section 4.19. SECTION 4.11.Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business, enter into or permit to exist any transaction or series of transactions (including the purchase, conveyance, disposition, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an "Affiliate Transaction") unless: (i) the terms of such Affiliate Transaction are (x) set forth in writing, (y) in the best interest of the Company or such Restricted Subsidiary, as the case may be, (z) as favorable to the Company or such Restricted Subsidiary, as the case may be, as those that could be obtained at the time of such transaction for a similar transaction in arms' length dealings with a Person who is not such an Affiliate and (ii) (x) with respect to an Affiliate Transaction involving aggregate payments or value of $1 million or greater, the Board of Directors of the Company (including a majority of the Independent Directors) have determined in their good faith judgment that the criteria set forth in clauses (i) (y) and (z) are satisfied and have approved the relevant Affiliate Transaction, such approval to be evidenced by a Board Resolution and an Officers' Certificate and (y) with respect to an Affiliate Transaction involving aggregate payments or value of $5 million or greater, the Company obtains from an independent nationally recognized accounting, appraisal or investment banking firm experienced in the review of similar types of transactions a written opinion addressed to the Trustee that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. (b) Section 4.11(a) shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to Section 4.10 above, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership and/or employee benefit plans entered into in the ordinary course of business, approved by the Board of Directors and consistent with past practices of the Company, (iii) loans or advances to employees in the ordinary course of business in accordance with past practices of the Company, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries, or (v) any transaction between the Company and a Guarantor that is a Wholly-Owned Subsidiary or between Guarantors that are Wholly-Owned Subsidiaries. SECTION 4.12.Limitation on Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the Company or any Guarantor may Incur Indebtedness if on the date thereof, and giving pro forma effect to the Incurrence thereof, the Consolidated Coverage Ratio would be greater than 2:1. (b) Notwithstanding Section 4.12(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness: (i) Indebtedness under the Revolving Credit Facility in an aggregate amount outstanding at any time not to exceed $140 million (less the amount of any permanent reductions in the amount of available borrowings under the Revolving Credit Facility as a result of repayments made thereunder pursuant to Section 4.15; (ii) Indebtedness outstanding under any Non- Recourse FF&E Financing or the Vicksburg Note; (iii) Indebtedness under one or more Recourse FF&E Financings, that, when added to all Indebtedness then outstanding under other Recourse FF&E Financings, and all refinancing Indebtedness with respect thereto, does not exceed $15 million in the aggregate; (iv) Indebtedness outstanding on the Issue Date immediately after issuance of the Notes and application of the proceeds therefrom (other than Indebtedness described in clause (i), (ii), (iii), (v), (vi) or (viii) of this Section 4.12(b)), provided that the amount thereof, together with any Refinancing Indebtedness with respect thereto, does not exceed the amount outstanding on the Issue Date; (v) Indebtedness evidenced by the Notes, the New Notes and the Subsidiary Guarantees; (vi) Indebtedness of the Company owing to and held by any Guarantor or Indebtedness of a Restricted Subsidiary owing to and held by the Company; provided, however, that any subsequent issuance or transfer of any Capital Stock or other event which results in any such Guarantor ceasing to be a Guarantor or any subsequent transfer of any such Indebtedness (except to the Company or a Guarantor) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the issuer; (vii) Indebtedness under Interest Rate Protection Agreements related to Indebtedness permitted under the Indenture; provided, however, such Interest Rate Protection Agreements do not increase the consolidated Indebtedness of the Company outstanding at any time other than as a result of fluctuations in the exchange rates or interest rates or by reason of customary fees, indemnities and compensation payable thereunder; (viii) Indebtedness under the Gem Notes; provided, however, that any event that results in any Gem Note ceasing to meet the conditions of the definition thereof shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereof; (ix) Indebtedness Incurred solely in respect of performance bonds or completion guarantees, to the extent that such Incurrence does not result in the Incurrence of any obligation for the payment of borrowed money to others; (x) Refinancing Indebtedness Incurred in respect of Indebtedness Incurred pursuant to Section 4.12(a) or the foregoing clauses (ii), (iii) and (iv); (xi) Indebtedness arising out of standby letters of credit covering workers compensation, performance or similar non-Indebtedness obligations in an aggregate amount not to exceed $500,000 at any time outstanding; and (xii) Indebtedness (other than Indebtedness permitted by Section 4.12(a) or elsewhere in this Section 4.12(b)) in an aggregate principal amount outstanding at any time not to exceed $5 million. (c) For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.12, (i) Indebtedness permitted by this section need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this provision permitting such Indebtedness and (ii) in the event that Indebtedness or any portion thereof meets the criteria of more than one of the types of Indebtedness described in this section, the Company, in its sole discretion, shall classify such Indebtedness and only be required to include the amount of such Indebtedness in one of such clauses. SECTION 4.13.Limitation on Restrictions on Distributions from Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (ii) make any loans or advances to the Company or any other Restricted Subsidiary, or (iii) transfer any of its property or assets to the Company or any other Restricted Subsidiary, except: (a) any encumbrance or restriction in effect at the Issue Date pursuant to an agreement disclosed herein; (b) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by the Company or another Restricted Subsidiary (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or another Restricted Subsidiary) and outstanding on such date; (c) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (a) or (b) of this provision or contained in any amendment to an agreement referred to in clause (a) or (b) of this provision; provided however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are no less favorable to the Noteholders than encumbrances and restrictions contained in such agreements; (d) in the case of any encumbrance or restriction referred to in clause (iii), any such encumbrance or restriction (1) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (2) arising by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited hereby, or (3) any encumbrance or restriction pursuant to an agreement relating to an acquisition of property, so long as such encumbrance or restriction relates solely to the property so acquired; (e) any encumbrance or restriction imposed by any Gaming Authority; and (f) any encumbrance or restriction imposed by Legal Requirements. SECTION 4.14.Change of Control. (a) Upon a Change of Control, each Holder shall have the right to require that the Company repurchase all or a part of such Holder's Notes at a Purchase Price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. (b) Within 30 calendar days following any Change of Control, the Company shall send, by first-class mail, a notice to each Holder with a copy to the Trustee stating: (i) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder's Notes at a Purchase Price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date; (ii) the circumstances and relevant facts regarding such Change of Control which the Company in good faith believes will enable Holders to make an informed decision (which at a minimum will include information, if relevant, with respect to pro forma historical income, cash flow and capitalization, each after giving effect to such Change of Control, events causing such Change of Control and the date such Change of Control is deemed to have occurred); (iii) the Purchase Date (which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed); and (iv) the instructions and relevant information determined by the Company, consistent with this provision, that a Holder must follow or consider in order to have its Notes purchased, which in each case shall include a summary of the procedures, set forth in Section 4.24, to be followed with respect to such repurchase. (c) In making such an offer to repurchase Notes upon a Change of Control, the Company shall comply with the procedures set forth in Section 4.24. SECTION 4.15.Limitation on Sales of Assets and Restricted Subsidiary Stock. The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Disposition unless (i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the Fair Market Value, as determined in good faith by the Board of Directors, the determination of which shall be evidenced by a Board Resolution (including as to the value of all non-cash consideration), of the shares and assets subject to such Asset Disposition; (ii) at least 85% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; and (iii) the Company delivers an Officers' Certificate to the Trustee certifying that such Asset Disposition complies with clauses (i) and (ii) (if applicable), provided, however, that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or other agreement that releases the Company or such Restricted Subsidiary from further liability and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 20 Business Days after receipt, shall be deemed to be cash for purposes of this provision. Net Available Cash (or any portion thereof) from any permitted Asset Disposition or from any Event of Loss shall be applied by the Company (or such Restricted Subsidiary, as the case may be) within 270 days from receipt of such Net Available Cash (a) to prepay, repay or purchase Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than any Disqualified Stock, Preferred Stock or Subordinated Obligations or any Indebtedness owed to the Company or any Subsidiary) or Senior Indebtedness; and/or (b) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Guarantor with Net Available Cash received by the Company or another Restricted Subsidiary); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (a) above, the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided further, that the entering into of a binding commitment to reinvest Net Available Cash within such 270 day period shall be deemed to constitute reinvestment pursuant to the foregoing clause (b) so long as such reinvestment definitively occurs within 330 days from receipt of such Net Available Cash, after which time such Net Available Cash shall become and be added to any then-existing "Excess Proceeds" if such reinvestment has not definitively occurred. Any Net Available Cash that is not applied by the Company or its Restricted Subsidiaries in the manner and in the relevant time periods described in the preceding sentence shall, immediately upon expiration of such time periods, become and be added to any then-existing "Excess Proceeds." When the aggregate amount of Excess Proceeds (together with income earned thereon) exceeds $5 million, the Company shall make an offer (an "Excess Proceeds Offer") to purchase Notes pursuant to and subject to the conditions of the following paragraph. Pending application of Net Available Cash pursuant to this provision, such Net Available Cash shall be invested in Temporary Cash Investments. In the event the Company is required to make an Excess Proceeds Offer, it shall make an offer to purchase from all Holders on a pro rata basis the Notes at a Purchase Price of 100% of their principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date and shall purchase from Holders accepting such offer, the maximum principal amount of Notes that may be purchased from funds in an amount equal to all then-existing Excess Proceeds. Upon completion of an Excess Proceeds Offer (including payment of the Purchase Price for Notes duly tendered) the Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds and the Company or the Restricted Subsidiary that engaged in the Asset Disposition, as applicable, may use the remaining Excess Proceeds for general corporate purposes. Within 10 calendar days after the date on which the Company is required to make an Excess Proceeds Offer, the Company shall send, by first-class mail, a notice to each Holder with a copy to the Trustee stating: (i) that one or more Asset Dispositions or Events of Loss have occurred and that such Holder has the right to require the Company to purchase such Holder's Notes at a Purchase Price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date; (ii) the circumstances and relevant facts regarding such Asset Disposition(s) or Event(s) of Loss which the Company in good faith believes will enable Holders to make an informed decision (which at a minimum will include information, if relevant, with respect to pro forma historical income, cash flow and capitalization, each after giving effect to such Asset Disposition(s) or Event(s) of Loss, events causing such Asset Disposition(s) or Event(s) of Loss and the date such Asset Disposition(s) or Event(s) of Loss occurred); (iii) the Purchase Date (which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed); and (iv) the instructions and relevant information determined by the Company, consistent with this provision and this Indenture, that a Holder must follow or consider in order to have its Notes purchased, which in each case shall include a summary of the procedures set forth in Section 4.24, to be followed with respect to such Excess Proceeds Offer. In making such an Excess Proceeds Offer, the Company shall comply with the procedures set forth in Section 4.24. SECTION 4.16.Limitation on Issuance and Sale of Capital Stock of Restricted Subsidiaries. The Company shall not permit any Restricted Subsidiary to, directly or indirectly, issue or otherwise Incur any Preferred Stock, except for any Preferred Stock issued to and held by the Company. The Company shall not sell or otherwise transfer any Capital Stock of any Specified Subsidiary, and shall not permit any Specified Subsidiary to, directly or indirectly, issue or otherwise Incur any Capital Stock, except for (a) the sale or other transfer of 100% of the Capital Stock of a Specified Subsidiary in accordance with Section 4.15 or (b) the issuance or other Incurrence of Capital Stock to or held by the Company or another Specified Subsidiary (but only so long as such Specified Subsidiary is a Specified Subsidiary). SECTION 4.17.Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien on any of its property or assets (including Capital Stock), whether owned on the date hereof or thereafter acquired, or any interest therein or income or profits therefrom, securing any obligation other than Permitted Liens. SECTION 4.18.Limitation of Layered Indebtedness. The Company shall not, directly or indirectly, Incur any Indebtedness, and shall not permit any Guarantor to Incur any Indebtedness, that is subordinate in right of payment to any other Indebtedness of the Company or such Guarantor, as applicable, unless such Indebtedness is subordinate in right of payment to, or ranks pari passu with, the Notes or the Subsidiary Guarantee of such Guarantor in all respects. SECTION 4.19.Limitation on Designations of Restricted Subsidiaries and Unrestricted Subsidiaries. (a) Designation of a Subsidiary as a Restricted Subsidiary. Unless the Capital Stock of any such Subsidiary is disposed of in compliance with Section 4.15, all Specified Subsidiaries will be Restricted Subsidiaries at all times. Any newly acquired or newly formed Subsidiary of the Company must be designated by the Board of Directors as a Restricted Subsidiary unless (i) it may be, and is, designated as an Unrestricted Subsidiary by the Board of Directors in the manner provided below or (ii) it is a Subsidiary of an Unrestricted Subsidiary. Any Unrestricted Subsidiary may be designated by the Company as a Restricted Subsidiary; provided that (i) at the time of such designation after giving pro forma effect thereto, the Company would be permitted to incur $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test contained in Section 4.12(a); and (ii) no Default or Event of Default has occurred and is continuing immediately preceding such designation and after giving pro forma effect thereto. (b) Designation of a Subsidiary as an Unrestricted Subsidiary. Any newly-organized Subsidiary may be designated by the Company as an Unrestricted Subsidiary at the time of its formation, provided that such Subsidiary has total assets of $1,000 or less at the time of such designation and the conditions set forth in the definition of "Unrestricted Subsidiary" are satisfied. Any Restricted Subsidiary (other than a Specified Subsidiary) may be designated by the Company as an Unrestricted Subsidiary (at which time the Subsidiary Guarantee of such Restricted Subsidiary will terminate); provided that: (i) at the time of such designation and after giving pro forma effect thereto, (A) the Company would be permitted to incur $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test contained in Section 4.12(a) and (B) the Consolidated Coverage Ratio is not less than 80% of the Consolidated Coverage Ratio without giving pro forma effect to such designation; (ii) no Default or Event of Default has occurred and is continuing immediately preceding such designation and after giving pro forma effect thereto, including the requirement set forth in Section 4.10(c) that any Investment in such Restricted Subsidiary be deemed to be a Restricted Payment made on the date of such designation; and (iii) the conditions set forth in the definition of "Unrestricted Subsidiary" are satisfied. (c) Any designation by the Board of Directors pursuant to the foregoing provisions shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complies with the foregoing provisions. SECTION 4.20.Repurchase of Notes on Loss of Material Gaming License. If (i) a Gaming License of the Company or any Restricted Subsidiary is revoked or terminated, or if any such Gaming License is suspended or otherwise ceases to be effective, in any case resulting in the cessation or suspension of operation for a period of more than 90 days of the gaming business of any Gaming Establishment owned, leased or operated directly or indirectly by the Company or any of its Restricted Subsidiaries (each a "License Loss"), and (ii) the Gaming Establishment subject to such License Loss, during the period of four consecutive fiscal quarters of the Company then most recently ended for which internal financial statements are available, accounted for more than 10% of the Consolidated Cash Flow of the Company, the Company shall apply an amount equal to four times the contribution of such Gaming Establishment to such Consolidated Cash Flow (the "License Loss Amount"), within 40 days after such License Loss occurs, to the prepayment, repayment or purchase of Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than any Disqualified Stock, Preferred Stock or Subordinated Obligations or any Indebtedness owed to the Company or any Subsidiary) or Senior Indebtedness; provided, however, that the related loan commitment (if any) shall be permanently reduced by an amount equal to the principal amount so prepaid, repaid or purchased. If any part of the License Loss Amount is not applied by the Company or its Restricted Subsidiaries in the manner and in the 40-day period described in the preceding sentence, the Company shall, immediately upon expiration of such period, make an offer to purchase from all Holders (a "License Loss Offer"), and shall purchase from Holders accepting such offer on a pro rata basis, the maximum principal amount of Notes that may be purchased with such unapplied portion of the License Loss Amount, at a Purchase Price of 101% of their principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. Notwithstanding the foregoing, the Company will not be required to make any such application or a License Loss Offer if, giving effect to the License Loss on a pro forma basis, the Company's Consolidated Coverage Ratio at the time such License Loss occurs would be at least 2.25 to 1. Prior to or upon the date on which the Company is required to make a License Loss Offer, the Company shall send, by first- class mail, a notice to each Holder with a copy to the Trustee stating: (i) that one or more License Losses have occurred and that such Holder has the right to require the Company to purchase such Holder's Notes at a Purchase Price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date; (ii) the circumstances and relevant facts regarding such License Loss which the Company in good faith believes will enable Holders to make an informed decision (which at a minimum will include information, if relevant, with respect to pro forma historical income, cash flow and capitalization, each after giving effect to such License Loss, events causing such License Loss(es) and the date such License Loss(es) occurred); (iii) the Purchase Date (which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed); and (iv) the instructions and relevant information determined by the Company, consistent with this Indenture, that a Holder must follow or consider in order to have its Notes purchased which, in each case shall include a summary of the procedures set forth in Section 4.24, to be followed with respect to such License Loss Offer. In making such a License Loss Offer, the Company shall comply with the procedures set forth in Section 4.24. SECTION 4.21. Limitation on Other Business Activities. The Company shall not, and shall not permit any Restricted Subsidiary to, engage, directly or indirectly, in any business other than a Related Business. SECTION 4.22.Additional Subsidiary Guarantees. If (i) CPI shall have received all requisite approvals by the relevant Gaming Authorities, or (ii) (A) the Company or any of its Restricted Subsidiaries shall acquire, create or designate another Restricted Subsidiary after the date hereof and (B) all requisite approvals by the relevant Gaming Authorities shall have been received, the Company shall cause CPI or such other Restricted Subsidiary to execute a supplement to this Indenture substantially in the form of Exhibit E hereto and providing for the issuance of a Subsidiary Guarantee. ACCBI shall be a Guarantor at all times after the approvals contemplated by Section 12.15 have been obtained, and the Company shall notify the Trustee and each Noteholder of the receipt of such approvals. The Company agrees to use its best efforts to obtain all such approvals from Gaming Authorities. Upon execution of any such supplement providing for a Subsidiary Guarantee, the relevant Subsidiary will deliver to the Trustee an Opinion of Counsel (including opinions of local counsel in the relevant jurisdictions) relating to such Subsidiary, the authorization and enforceability of such Subsidiary Guarantee in accordance with the terms hereof, subject to the effect of applicable bankruptcy, insolvency or similar laws affecting creditors rights generally and equitable principles of general applicability, and the other matters covered by the opinions rendered with respect to the Initial Guarantors and their respective Subsidiary Guarantees on the Issue Date, in each case substantially similar in scope and form to such opinions rendered on the Issue Date. SECTION 4.23.Payment for Consents. Neither the Company nor any of its Subsidiaries will, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions hereof or the Notes unless such consideration is offered to be paid or is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. SECTION 4.24.General Procedures for Purchase of Notes. The following procedures shall apply to (i) any offer to repurchase Notes upon a Change of Control pursuant to Section 4.14, (ii) any Excess Proceeds Offer pursuant to Section 4.15, or (iii) any License Loss Offer pursuant to Section 4.20 (each a "Repurchase Offer"): (a) The Holders electing to have a Note purchased will be required to surrender such Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least five Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than three Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. (b) On the Purchase Date, (i) all Notes or portions thereof purchased by the Company pursuant to a Repurchase Offer shall be delivered by the Trustee for cancellation, (ii) the Company shall pay the Purchase Price plus accrued and unpaid interest and Liquidated Damages, if any, to the Holders entitled thereto, (ii) the Company shall promptly issue a new Note, and (iv) the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered, provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. (c) The Company shall publicly announce the results of the applicable Repurchase Offer on or as soon as practicable after the Purchase Date, but in no case more than five Business Days after such Purchase Date. (d) If the Company complies with this Section 4.24 and the other requirements related to a Repurchase Offer, on and after the Purchase Date, interest shall cease to accrue on the Notes or the portions of Notes called for repurchase. If a Note is repurchased after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for repurchase shall not be so paid upon surrender for repurchase because of the failure of the Company to comply with this Section 4.24, interest shall be paid on the unpaid principal, from the Purchase Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in Section 4.01(c). (e) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the Repurchase Offers described herein. To the extent that the provisions of any securities laws or regulations conflict with this provision, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this provision by virtue thereof. (f) Other than as specifically provided in this Section 4.24, any Repurchase Offer pursuant to this Section 4.24 shall be made pursuant to the provisions of Sections 4.14, 4.15 or 4.20, as the case may be. ARTICLE FIVE SUCCESSOR CORPORATION SECTION 5.01.Merger, Consolidation and Sale of Assets. The Company shall not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any Person, and shall not permit one or more Restricted Subsidiaries representing all or substantially all of the assets of the Company to consolidate with or merge with or into or convey, lease or otherwise transfer all or substantially all of its assets to, any Person other than the Company, unless: (i) the resulting, surviving or transferee Person shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such Person (if not the Company) shall expressly assume, by an indenture supplemental to this Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture; (ii) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction or series of transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), such Person would be able to incur an additional $1.00 of Indebtedness under Section 4.12(a), (iv) immediately after giving effect to such transaction or series of transactions, on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction or series of transactions), such Person shall have Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction; (v) any such transaction would not require any Holder of Notes to obtain a Gaming License or be qualified under the laws of any applicable gaming jurisdiction in the absence of such transaction, provided that a transaction involving a jurisdiction that does not require the licensing or qualification of all of the holders of the Notes, but reserves the discretionary right to require the licensing or qualification of any holder of Notes, shall not be prohibited pursuant to the terms of this clause (v); (vi) any such transaction would not result in the loss of any qualification or any material Gaming License of the Company or its Subsidiaries; and (vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply herewith. No Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person whether or not affiliated with such Guarantor, unless (i) the resulting, surviving or transferee Person shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such Person (if not the Company) shall expressly assume, by an indenture supplemental to this Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of such Guarantor under its Subsidiary Guarantee and this Indenture; (ii) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction or series of transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), the Company would be able to incur an additional $1.00 of Indebtedness under the Section 4.12(a); (iv) immediately after giving effect to such transaction or series of transactions, on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction or series of transactions), such Person shall have consolidated net worth in an amount which is not less than the consolidated net worth of such Guarantor immediately prior to such transaction; (v) any such transaction would not result in the loss of any qualification or any material Gaming License of the Company or its Subsidiaries; and (vi) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture; provided that this paragraph shall not apply to an Asset Disposition subject to and complying with Section 4.15. The resulting, surviving or transferee Person in any such transaction involving the Company or any Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor under this Indenture, but the Company in the case of a lease shall not be released from the obligation to pay the principal of and interest on the Notes. ARTICLE SIX DEFAULT AND REMEDIES SECTION 6.01.Events of Default. (a) An "Event of Default" occurs if: (i) the Company defaults in any payment of interest on, or Liquidated Damages, if any, with respect to, any Note when the same becomes due and payable (whether or not prohibited by Article Ten), and such default continues for a period of 30 days; (ii) the Company defaults in the payment of the principal of any Note when the same becomes due and payable at its Stated Maturity, on a Redemption Date, Purchase Date, upon acceleration or otherwise (whether or not prohibited by Article Ten); (iii) the Company or any Guarantor fails to comply with Sections 4.10, 4.12, 4.14, 4.15 or 4.20 or Article Five; (iv) the Company or any Guarantor fails to comply with any of its agreements in the Notes or the Indenture (other than those referred to in (i), (ii) or (iii) above) and such failure continues for 30 days after the notice to the Company from the Trustee or Holders of at least 25% in principal amount of the Notes specified below or, if the Company fails to timely give the notice to the Trustee specified below, such failure continues for 30 days after the date such notice should have been given by the Company; (v) any installment of principal of, or any premium or accrued and unpaid interest on, any Indebtedness of the Company or any Restricted Subsidiary is not paid within any applicable grace period after its maturity or any such Indebtedness is accelerated by the holders thereof because of a default, or any such Indebtedness is required to be repurchased or prepaid, and the total amount of interest, premium, principal or other amount with respect to such Indebtedness that is unpaid, accelerated or required to be repurchased or prepaid exceeds $5 million at the time, provided that this clause (v) shall not apply to any failure to make any scheduled payment of principal of, or interest on, any Gem Note, but only if the consequence of such failure is limited to an increase of the interest rate, and/or the compounding of interest, applicable thereto and, without limitation, does not include a right under such Gem Note or under applicable law to accelerate the due date of, or in any way enforce, such Gem Note; (vi) the Company or any Restricted Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (a) commences a voluntary case; (b) consents to the entry of an order for relief against it in an involuntary case; (c) consents to the appointment of a Custodian of it or for any substantial part of its property; (d) makes a general assignment for the benefit of its creditors; or (e) takes any comparable action under any foreign laws relating to insolvency; (vii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against the Company or any Restricted Subsidiary in an involuntary case; (b) appoints a Custodian of the Company or any Restricted Subsidiary or for any substantial part of its property; or (c) orders the winding up or liquidation of the Company or any Restricted Subsidiary; or any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days; (viii) any judgment or decree for the payment of money in excess of $5 million at the time is entered against the Company or any Restricted Subsidiary and is not discharged and either (a) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (b) there is a period of 60 days following the entry of such judgment or decree during which such judgment or decree is not discharged, waived or the execution thereof stayed; or (ix) except as permitted by Section 11.02, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee. (b) The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. (c) A Default under clause (iv) of Section 6.01(a) is not an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the Notes notify the Company of the Default and the Company does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a "Notice of Default." (d) The Company shall deliver to the Trustee, promptly upon becoming aware of the occurrence thereof, written notice in the form of an Officers' Certificate of any Event of Default or Default under clause (iii), (iv), (v), (vi), (vii), (viii) or (ix) of Section 6.01(a), its status and what action the Company is taking or proposes to take with respect thereto. SECTION 6.02.Acceleration. (a) If an Event of Default (other than an Event of Default specified in clauses (vi) or (vii) of Section 6.01(a) with respect to the Company) occurs and is continuing and has not been waived pursuant to Section 6.04, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the Notes by notice to the Company and the Trustee, may declare the principal of and accrued interest and Liquidated Damages, if any, on all the Notes to be due and payable. Upon such a declaration, such principal, interest and Liquidated Damages, if any, shall be due and payable immediately. (b) If an Event of Default specified in clause (vi) or (vii) of Section 6.01(a) with respect to the Company occurs, the principal of and interest and Liquidated Damages, if any, on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Noteholders. (c) In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to Section 3.07(a), an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes. If an Event of Default occurs prior to August 1, 2001, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Notes prior to August 1, 2001, then the premium specified in Section 3.07(c) shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes. (d) The Holders of a majority in principal amount of the Notes by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto. SECTION 6.03.Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law. SECTION 6.04.Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the Notes then outstanding may, by notice to the Trustee, on behalf of the Holders of all of the Notes, waive any existing Default or Event of Default and its consequences hereunder except (i) a continuing Default or Event of Default in the payment of principal of, or premium, interest or Liquidated Damages, if any, on, the Notes, or (ii) any Default or Event of Default in respect of a provision that under Article Nine hereof cannot be waived without the consent of each Noteholder affected thereby. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 6.05.Control by Majority. The Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it, including, without limitation, any remedies provided for in Section 6.03. Subject to Section 7.01, however, the Trustee may refuse to follow any direction that the Trustee reasonably believes conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Noteholder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder. SECTION 6.06.Rights of Holders To Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest and Liquidated Damages, if any, on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. SECTION 6.07.Collection Suit by Trustee. If an Event of Default in payment of principal or interest specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or any other Obligor on the Notes for the whole amount of principal and accrued interest, and Liquidated Damages, if any, remaining unpaid, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest at the rate set forth in Section 4.01 and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. SECTION 6.08.Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agents and counsel) and the Noteholders allowed in any judicial proceedings relating to the Company or any other obligor upon the Notes, any of their respective creditors or any of their respective property and shall be entitled and empowered to collect and receive any funds or other property payable or deliverable on any such claims and to distribute the same, and any Custodian in any such judicial proceedings is hereby authorized by each Noteholder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under Section 7.07. The Company's payment obligations under this Section 6.08 shall be secured in accordance with Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such proceeding. SECTION 6.09.Priorities. If the Trustee collects any funds or property pursuant to this Article Six, it shall pay out the funds in the following order: First: to the Trustee for amounts due under Section 7.07; Second: if the Holders are forced to proceed against the Company directly without the Trustee, to Holders for their collection costs; Third: to Holders for amounts due and unpaid on the Notes for principal and interest and Liquidated Damages, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and Fourth: to Obligors or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct. The Trustee, upon prior notice to the Company, may fix a record date and payment date for any payment to Noteholders pursuant to this Section 6.09. SECTION 6.10.Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.10 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes. SECTION 6.11.Restoration of Rights and Remedies. If the Trustee or any Holder of Notes has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 6.12.Limitation on Suits. A Noteholder may not pursue any remedy with respect hereto or the Notes unless: (i) the Holder gives to the Trustee written notice stating that an Event of Default is continuing; (ii) the Holders of at least 25% in principal amount of the Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer to the Trustee reasonable security or indemnity against any loss, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and (v) the Holders of a majority in principal amount of the Notes do not give the Trustee a direction inconsistent with the request during such 60-day period. ARTICLE SEVEN TRUSTEE SECTION 7.01.Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (1) The Trustee need perform only those duties as are specifically set forth in this Indenture and no covenants or obligations shall be implied in this Indenture against the Trustee. (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and confirming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (c) Notwithstanding anything to the contrary herein contained, the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) This paragraph does not limit the effect of Section 7.01(b). (2) The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (3) The Trustee shall not liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02, 6.04 or 6.05. (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Every provision of this Indenture that in any way relates to the Trustee is subject to this Article Seven. (f) The Trustee shall not be liable for interest on any money or assets received by it except as the Trustee may agree in writing with the Company. Assets held in trust by the Trustee need not be segregated from other assets except to the extent required by law. SECTION 7.02.Rights of Trustee. Subject to Section 7.01: (a) The Trustee may rely and shall be fully protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may consult with counsel and may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Sections 12.04 and 12.05. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action that it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers. (e) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to the Company, to examine the books, records, and premises of the Company, personally or by agent or attorney and to consult with the officers and representatives of the Company, including the Company's accountants and attorneys. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it in compliance with such request, order or direction. (g) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. (h) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the performance by the Company with respect to the covenants contained in Article Four. In addition, the Trustee shall not be deemed to have knowledge of a Default or Event of Default except (i) any Default or Event of Default occurring pursuant to Section 6.01(a)(i), 6.01(a)(ii) or 4.01 or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge. SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, any Subsidiary of the Company, or their respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. SECTION 7.04.Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Notes, and it shall not be accountable for the Company's use of the proceeds from the Notes, and it shall not be responsible for any statement of the Company in this Indenture or the Notes other than the Trustee's certificate of authentication. SECTION 7.05.Notice of Default. If a Default or Event of Default occurs and is continuing and if the Trustee has actual knowledge of such Default or Event of Default, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, interest or Liquidated Damages, if any) if it determines that withholding notice is in the best interest of the Holders. SECTION 7.06.Reports by Trustee to Holders. Within 60 days after each May 15, the Trustee shall, to the extent that any of the events described in TIA Section 313(a) occurred within the previous twelve months, but not otherwise, mail to each Noteholder a brief report dated as of such date that complies with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b), (c) and (d). A copy of each report at the time of its mailing to Noteholders shall be mailed to the Company and filed with the SEC and each stock exchange, if any, on which the Notes are listed. The Company shall promptly notify the Trustee if the Notes become listed on any stock exchange and the Trustee shall comply with TIA Section 313(d). SECTION 7.07.Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it in connection with the performance of its duties under this Indenture. Such expenses shall include the reasonable fees and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee and its agents, employees, stockholders and directors and officers for, and hold them harmless against, any loss, liability or expense incurred by them except for such actions to the extent caused by any negligence, bad faith or willful misconduct on their part, arising out of or in connection with the administration of this trust including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their rights, powers or duties hereunder. The Trustee shall notify the Company promptly of any claim asserted against the Trustee for which it may seek indemnity. At the Trustee's sole discretion, the Company shall defend the claim and the Trustee shall cooperate and may participate in the defense; provided that any settlement of a claim shall be approved in writing by the Trustee. Alternatively, the Trustee may at its option have separate counsel of its own choosing and the Company shall pay the reasonable fees and expenses of such counsel; provided that the Company will not be required to pay such fees and expenses if it assumes the Trustee's defense and there is no conflict of interest between the Company and the Trustee in connection with such defense as reasonably determined by the Trustee. The Company need not pay for any settlement made without its written consent. The Company need not reimburse any expense or indemnify against any loss or liability to the extent incurred by the Trustee through its negligence, bad faith or willful misconduct. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Notes on all assets or money held or collected by the Trustee, in its capacity as Trustee, except assets or money held in trust to pay principal of or interest on particular Notes. The Trustee's right to receive payment of any amounts due under this Section 7.07 shall not be subordinate to any other liability or indebtedness of the Company (even though the Notes may be subordinate to such other liability or indebtedness). When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Law. This Section 7.07 shall survive the resignation or removal of the Trustee and the discharge or other termination of this Indenture. SECTION 7.08.Replacement of Trustee. The Trustee may resign by so notifying the Company. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the Company and the Trustee and may appoint a successor Trustee. The Company may remove the Trustee if: (1) the Trustee fails to comply with Section 7.10; (2) the Trustee is adjudged bankrupt or insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; or (4) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall notify each Holder of such event and shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided in Section 7.07, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each Noteholder. If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10, any Noteholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 shall continue for the benefit of the retiring Trustee. SECTION 7.09.Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee; provided that such corporation shall be otherwise qualified and eligible under this Article Seven. SECTION 7.10.Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirement of TIA Sections 310(a)(l), (2) and (5). The Trustee (or, in the case of a corporation included in a bank holding company system, the related bank holding company) shall have a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition. In addition, if the Trustee is a corporation included in a bank holding company system, the Trustee, independently of such bank holding company, shall meet the capital requirements of TIA Section 310(a)(2). The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA Section 310 shall apply to the Company, as obligor of the Notes. SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. The provisions of TIA Section 311 shall apply to the Company, as obligor on the Notes. ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE SECTION 8.01.Termination of the Company's Obligations. The Obligors may terminate their respective obligations under the Notes and this Indenture, except those obligations referred to in the penultimate paragraph of this Section 8.01, if all Notes previously authenticated and delivered (other than destroyed, lost or stolen Notes which have been replaced or paid or Notes for whose payment U.S. Legal Tender have theretofore been deposited with the Trustee or the Paying Agent or a trustee satisfactory to the Trustee in trust or segregated and held in trust by the Company and thereafter repaid to the Company, as provided in Section 8.05) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder, or if: (a) either (i) pursuant to Article Three, the Company shall have given notice to the Trustee and mailed a notice of redemption to each Holder of the redemption of all of the Notes under arrangements satisfactory to the Trustee for the giving of such notice or (ii) all Notes have otherwise become due and payable hereunder; (b) the Company shall have irrevocably deposited or caused to be deposited with the Trustee, the Paying Agent or a trustee satisfactory to the Trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders for that purpose, U.S. Legal Tender in such amount as is sufficient without consideration of reinvestment of such interest, to pay principal of, premium and Liquidated Damages, if any, and interest on the outstanding Notes to maturity or redemption; provided that the Trustee shall have been irrevocably instructed to apply such U.S. Legal Tender to the payment of said principal, premium and Liquidated Damages, if any, and interest with respect to the Notes and, provided, further, that from and after the time of deposit, the money deposited shall not be subject to the rights of holders of Senior Indebtedness pursuant to Article Ten; (c) no Default or Event of Default with respect to this Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party or by which it is bound; (d) the Company shall have paid all other sums payable by it hereunder; and (e) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent providing for the termination of the Company's obligations under the Notes and this Indenture have been complied with. Such Opinion of Counsel shall also state that such satisfaction and discharge does not result in a default under any agreement or instrument then known to such counsel that binds or affects the Company. Notwithstanding the foregoing paragraph, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 4.01, 4.02, 7.07, 8.05 and 8.06 shall survive until the Notes are no longer outstanding pursuant to the last paragraph of Section 2.08. After the Notes are no longer outstanding, the Company's rights and obligations in Sections 7.07, 8.05 and 8.06 shall survive. After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Obligors' obligations under the Notes and this Indenture except for those surviving obligations specified above. SECTION 8.02.Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either Section 8.02(b) or Section 8.02(c) be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03. (b) Upon the Company's exercise under Section 8.02(a) of the option applicable to this Section 8.02(b), the Obligors shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from their respective obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), and Holders of the Notes and any amounts deposited under Section 8.03 shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness under Article Ten or otherwise, except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04, and as more fully set forth in Section 8.04, payments in respect of the principal of and interest and Liquidated Damages, if any, on such Notes when such payments are due, (ii) the Company's obligations with respect to such Notes under Sections 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 4.01, 4.02, 7.07, 8.05 and 8.06 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this Section 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c). (c) Upon the Company's exercise under Section 8.02(a) of the option applicable to this Section 8.02(c), the Obligors shall, subject to the satisfaction of the conditions set forth in Section 8.03, be released from their respective obligations under the covenants contained in Sections 4.05 through 4.23, inclusive, any covenant added to this Indenture subsequent to the date hereof and Article Five with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes) and Holders of the Notes and any amounts deposited under Section 8.03 shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness under Article Ten or otherwise. For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Obligors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under Section 6.01(a)(iii) or (iv), but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.02(a) of the option applicable to this Section 8.02(c), subject to the satisfaction of the conditions set forth in Section 8.03, Section 6.01(a)(v), 6.01(a)(viii) and 6.01(a)(ix) shall not constitute Events of Default. SECTION 8.03.Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02(b) or 8.02(c) to the outstanding Notes: In order to exercise either Legal Defeasance or Covenant Defeasance: (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, unencumbered U.S. Legal Tender or U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of and interest and Liquidated Damages, if any, on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be, of such principal or installment of principal of or interest on the Notes; provided that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes; (b) in the case of an election under Section 8.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) in the case of an election under Section 8.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (d) no Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Notes pursuant to this Article Eight concurrently with such incurrence) or insofar as Sections 6.01(vi) and 6.01(vii) are concerned, at any time in the period ending on the 91st day after the date of such deposit (and any such Legal Defeasance or Covenant Defeasance shall not take effect until such day); (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of or constitute a default under this Indenture or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (f) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; (g) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and (h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the trust funds will not be subject to any rights of any holders of Indebtedness of the Company other than the Notes, and (ii) assuming no intervening bankruptcy or insolvency of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law. SECTION 8.04. Application of Trust Money. The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to Article Eight, and shall apply the deposited U.S. Legal Tender and the money from U.S. Government Obligations in accordance with this Indenture to the payment of principal of and interest and Liquidated Damages, if any, on the Notes. The Trustee shall be under no obligation to invest said U.S. Legal Tender or U.S. Government Obligations except as it may agree in writing with the Company. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Legal Tender or U.S. Government Obligations deposited pursuant to Section 8.03 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the Company's request any U.S. Legal Tender or U.S. Government Obligations held by it as provided in Section 8.03 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. SECTION 8.05.Repayment to the Company. Subject to the other provisions of this Article Eight, any U.S. Legal Tender or U.S. Government Obligations deposited with the Trustee, the Paying Agent or another trustee for payment of the principal of, premium and Liquidated Damages, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium and Liquidated Damages, if any, or interest has become due and payable, shall be promptly paid to the Company upon its written request and the Trustee and the Paying Agent thereupon shall be relieved from all liability with respect to such funds; provided that the Trustee or such Paying Agent, before being required to make any payment, may at the expense of the Company cause to be published once in a newspaper of general circulation in The City of New York or mail to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified therein which shall be at least 30 days from the date of such publication or mailing any unclaimed balance of such funds then remaining will be repaid to the Company. After payment to the Company Noteholders entitled to such funds must look to the Company for payment as general creditors unless an applicable law designates another Person. SECTION 8.06.Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article Eight by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Obligors' obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Article Eight until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with Article Eight; provided that if the Company has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.01.Without Consent of Holders. The Obligors, when authorized by Board Resolutions, and the Trustee, together, may amend or supplement this Indenture or the Notes without notice to or consent of any Noteholder: (1) to cure any ambiguity, defect or inconsistency; provided that such amendment or supplement does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect; (2) to provide for uncertificated Notes in addition to or in place of certificated Notes; (3) to comply with any requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; (4) to make any change that would provide any additional benefit or rights to the Noteholders or that does not adversely affect the rights of any Noteholder; (5) to provide for issuance of the Exchange Notes, which will have terms substantially identical in all material respects to the Initial Notes (except that the transfer restrictions and the reference to the Registration Rights Agreement with respect to Liquidated Damages and registration rights contained in the Initial Notes will be modified or eliminated, as appropriate), and which will be treated together with any outstanding Initial Notes, as a single issue of securities; (6) to provide for the assumption of the Company's or any Guarantor's obligations to Noteholders by a successor company or guarantor; (7) to release any Subsidiary Guarantee in accordance with the provisions of this Indenture; (8) to provide for additional Guarantors; or (9) to make any other change that does not, in the opinion of the Trustee, adversely affect the rights of any Noteholders hereunder; provided that the Company has delivered to the Trustee, in addition to the documents required by Section 12.04, an Opinion of Counsel stating that such amendment or supplement complies with the provisions of this Section 9.01. Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Section 7.02(b), if any, the Trustee shall join with the Obligors in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise. SECTION 9.02.With Consent of Holders. (a) Subject to Section 6.06 and the exceptions noted below, the Obligors, when authorized by Board Resolutions, and the Trustee, together, with the written consent of the Holder or Holders of at least a majority in aggregate principal amount of then outstanding Notes, may amend or supplement this Indenture or the Notes, without notice to any other Noteholders. Subject to Section 6.06 and the exceptions noted below, the Holder or Holders of a majority in aggregate principal amount of then outstanding Notes may waive compliance by the Company with any provision of this Indenture or the Notes without notice to any other Noteholder. No amendment, supplement or waiver, including a waiver pursuant to Section 6.04, shall, without the consent of each Holder of each Note affected thereby: (i) reduce the principal amount of Notes the Holders of which must consent to any such amendment, supplement or waiver; (ii) reduce the rate or extend the time for payment of interest on or Liquidated Damages, if any, with respect to any Note; (iii) reduce the principal of or extend the fixed maturity of any Note; (iv) reduce the price payable upon the redemption of any Note or change the time at which any Note may or shall be redeemed; (v) reduce the price payable upon the repurchase of any Note upon a Change of Control, upon an Excess Proceeds Offer or License Loss Offer or change the time at which any Note shall be repurchased; (vi) waive a Default or Event of Default in the payment of principal of, or premium, interest or Liquidated Damages (if any) on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration); (vii) make any Note payable in money other than that stated in the Note; (viii) make any change in the provisions concerning waiver of Defaults or Events of Default by Holders of the Notes or rights of Holders to receive payment of principal, interest or Liquidated Damages, if any; (ix) make any change in the subordination provisions herein that affects the right of any Holder; or (x) release the Company or any Guarantor from its obligations under the Notes or the Subsidiary Guarantee (except pursuant to Section 4.19 or 11.02). (b) It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. (c) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 9.03.Effect on Senior Indebtedness. No amendment of this Indenture shall adversely affect the rights of any holder of Senior Indebtedness under Article Ten of this Indenture, without the consent of such holder. SECTION 9.04.Compliance with TIA. Every amendment, waiver or supplement of this Indenture or the Notes shall comply with the TIA as then in effect. SECTION 9.05.Revocation and Effect of Consents. Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. Subject to the following paragraph, any such Holder or subsequent Holder may revoke the consent as to such Holder's Note or portion of such Note by notice to the Trustee or the Company received before the date on which the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. After an amendment, supplement or waiver becomes effective, it shall bind every Noteholder, unless it makes a change described in any of clauses (i) through (x) of Section 9.02(a), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note; provided that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of and interest on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder. SECTION 9.06.Notation on or Exchange of Notes. If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Any such notation or exchange shall be made at the sole cost and expense of the Company. SECTION 9.07.Trustee To Sign Amendments, Etc. The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article Nine; provided that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee's own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 12.04, an Opinion of Counsel and an Officers' Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted by this Indenture. Such Opinion of Counsel shall not be an expense of the Trustee. ARTICLE TEN SUBORDINATION SECTION 10.01. Agreement to Subordinate. The Company, each Guarantor and the Trustee agree, and each Holder by its acceptance thereof likewise acknowledges and agrees, that all Notes, Subsidiary Guarantees and the Registration Rights Agreement shall be issued subject to this Article Ten; and each Person holding any Note or entitled to the benefit of any Subsidiary Guarantee, whether upon original issue or upon transfer, assignment or exchange thereof accepts and agrees that the payment of principal of, premium, if any, and interest on the Notes and the Subsidiary Guarantees and Liquidated Damages, if any, will be subordinated to the prior payment in full of all Obligations with respect to Senior Indebtedness of the Company and any Guarantor (whether outstanding on the date of this Indenture or thereafter incurred), to the extent set forth in this Article Ten. SECTION 10.02. Payment to Noteholders. (a) In the event that (i) any Designated Senior Indebtedness is not paid when due or (ii) any other default on Designated Senior Indebtedness occurs and the maturity of such Designated Senior Indebtedness is accelerated in accordance with its terms, no Obligor may pay the principal of or interest on the Notes or make any deposit for the purpose of the discharge of its liabilities under the Indenture or may repurchase, redeem or otherwise retire any Notes or make any payment under any Subsidiary Guarantee or may pay any Liquidated Damages (collectively, "pay the Notes"; "payment of the Notes" shall have a correlative meaning), except in Permitted Junior Securities, unless, in either case, (a) the default has been cured or waived and any such acceleration has been rescinded or (b) such Designated Senior Indebtedness has been paid in full. (b) During the continuance of any default (other than a default described in clause (i) or (ii) of Section 10.02(a), a "Non-Payment Default") with respect to any Designated Senior Indebtedness as a result of which the maturity thereof may then be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, no Obligor may pay the Notes, except in Permitted Junior Securities, for a period (a "Payment Blockage Period") commencing upon the receipt by any Obligor and the Trustee of written notice of such default from the Representative of any Designated Senior Indebtedness specifying an election to effect a Payment Blockage Period (a "Blockage Notice") and ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated (i) by written notice to the Trustee and the Company from the Person or Persons who gave such Blockage Notice, (ii) by repayment in full of such Designated Senior Indebtedness or (iii) because the default giving rise to such Blockage Notice is no longer continuing or is waived). Notwithstanding the immediately preceding sentence (but subject to the next preceding sentence), unless the holders of such Designated Senior Indebtedness or the Representative of such holders shall have accelerated the maturity of such Designated Senior Indebtedness, the Obligors may resume payments on the Notes after such Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to Designated Senior Indebtedness during such period. No Non-Payment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage Notice. (c) Upon any payment or distribution of the assets of any Obligor to creditors upon a total or partial liquidation or a total or partial dissolution of any Obligor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to any Obligor or its property or an assignment for the benefit of creditors or any marshaling of any Obligor's assets and liabilities: (i) holders of Senior Indebtedness shall be entitled to receive payment in full of all Obligations due in respect of the Senior Indebtedness before Noteholders shall be entitled to receive any payment of the Notes; and (ii) until the Senior Indebtedness is paid in full, any distribution to which Noteholders would be entitled but for this provision shall be made to holders of the Senior Indebtedness as their interests may appear, except that Noteholders may receive Permitted Junior Securities. (d) Section 10.02(a), (b) and (c) shall not prevent or delay (i) the Company from redeeming any Notes if required by any Gaming Authority as set forth in Section 3.08 or from otherwise purchasing any Notes pursuant to any Legal Requirement relating to the gaming business of the Company and its Subsidiaries or (ii) the receipt by the Noteholders of payments of principal and interest on the Notes, as set forth in Article Eight, from the application of any money or U.S. Government Obligations held in trust by the Trustee. (e) If payment of the Notes is accelerated because of a Default or Event of Default, the Company shall promptly notify each Representative of holders of Designated Senior Indebtedness. (f) In the event that, notwithstanding subsection (a), (b) or (c) of this Section 10.02, any payment or distribution of assets of any Obligor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee under this Indenture or the Holders before all Senior Indebtedness is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. (g) The consolidation of the Company or any Guarantor with, or the merger of the Company or any Guarantor into, another corporation or the liquidation or dissolution of the Company or any Guarantor following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided in Article Five shall not be deemed a dissolution, winding up, liquidation or reorganization for the purposes of this Section 10.02 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five. Nothing in this Section shall apply to claims of, or payments to, the Trustee under or pursuant to Article Seven, except as provided therein. This Section shall be subject to Section 10.05. SECTION 10.03. Subrogation of Notes. (a) Subject to the payment in full of all Senior Indebtedness, Holders shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company or any Guarantor applicable to the Senior Indebtedness until the principal of and interest on the Notes shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Indebtedness of any cash, property or securities to which the Holders or any Guarantor or the Trustee on their behalf would be entitled except for this Article Ten, and no payment over pursuant to this Article Ten to the holders of such Senior Indebtedness by Holders or the Trustee on their behalf shall, as between the Company or any Guarantor, as the case may be, its creditors other than holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company or such Guarantor to or on account of such Senior Indebtedness; and no payments or distributions of cash, property or securities to or for the benefit of the Securityholders pursuant to the subrogation provision of this Article Ten, which would otherwise have been paid to the holders of Senior Indebtedness shall be deemed to be a payment by the Company or any Guarantor to or for the account of the Notes. It is understood that this Article Ten is and is intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand. (b) Nothing contained in this Article Ten or elsewhere in this Indenture or in the Notes is intended to or shall impair, as between the Company or a Guarantor, on the one hand, and their creditors (other than the holders of Senior Indebtedness), and the Holders, the obligation of the Company or such Guarantors, which is absolute and unconditional, on the other, to pay to the Holders the principal of and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company or such Guarantors, as the case may be, other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent a Holder or the Trustee on his behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Ten of the holders of Senior Indebtedness in respect of cash, property or securities of the Company or any Guarantor received upon the exercise of any such remedy. (c) Upon any payment or distribution of assets of any Obligor referred to in this Article Ten, the Trustee, subject to Sections 7.01 and 7.02, and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such bankruptcy, dissolution, winding up, liquidation, arrangement or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of such Obligor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Ten. SECTION 10.04. Authorization by Securityholders. Each Holder by his acceptance thereof authorizes the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Ten and appoints the Trustee his attorney in fact for any and all such purposes. SECTION 10.05. Notice to Trustee. (a) The Company and each Guarantor, as the case may be, shall give prompt written notice to the Trustee and to any Paying Agent of any fact known to the Company or such Guarantor which would prohibit the making of any payment of moneys to or by the Trustee or any Paying Agent in respect of the Notes pursuant to this Article Ten. Regardless of anything to the contrary contained in this Article Ten or elsewhere in this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Indebtedness or of any default or event of default with respect to any Senior Indebtedness or of any other facts which would prohibit the making of any payment of moneys to or by the Trustee, unless and until the Trustee shall have received notice in writing at its Corporate Trust Office to that effect signed by an officer of the Company or Guarantor, as the case may be, or by a holder of Senior Indebtedness or Representative, who shall have been certified by the Company or such Guarantor, or otherwise established to the reasonable satisfaction of the Trustee to be such holder or Representative, and, prior to the receipt of any such written notice, the Trustee shall, subject to Sections 7.01 and 7.02, be entitled to assume that no such facts exist; provided that if on a date at least three Business Days prior to the date upon which by the terms hereof any such moneys shall become payable for any purpose (including, without limitation, the payment of the principal of, or interest on any Note) the Trustee shall not have received with respect to such moneys the notice provided for in this Section, then, regardless of anything herein to the contrary, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. (b) Notwithstanding anything to the contrary herein, nothing shall prevent (a) any payment by the Company or any Guarantor or the Trustee to the Noteholders of amounts in connection with a redemption of Notes if (i) notice of such redemption has been given pursuant to Article Three prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption date, or (b) any payment by the Trustee to the Noteholders of amounts deposited with it pursuant to Article Eight. (c) The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a Representative) to establish that such notice has been given by a holder of Senior Indebtedness or a Representative on behalf of such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Ten, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Ten, and, if such evidence is not furnished the Trustee, may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 10.06. Trustee's Relation to Senior Debt Holders. (a) The Trustee, or any agent of the Company, or a Guarantor or the Trustee shall be entitled to all the rights set forth in this Article Ten with respect to any Senior Indebtedness which may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall deprive the Trustee or any such agent, of any of its rights as such holder. Nothing in this Article Ten shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07. (b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article Ten, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Company or any Guarantor shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to Holders, the Company, any Guarantor any other Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Ten or otherwise. SECTION 10.07. No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any Guarantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company or such Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with. ARTICLE ELEVEN SUBSIDIARY GUARANTEES SECTION 11.01. Subsidiary Guarantees. (a) Each Guarantor hereby jointly and severally unconditionally guarantees (each such guarantee together with the guarantee endorsement to the Notes by such Guarantor, substantially in the form of Exhibit F hereto, being a "Subsidiary Guarantee") to each Holder authenticated and delivered by the Trustee irrespective of the validity or enforceability of this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, that: (i) the principal of, interest, premium, if any, and Liquidated Damages, if any, on the Notes will be paid in full when due, whether at the Maturity Date, any Interest Payment Date, any Redemption Date or Purchase Date, by acceleration, call for redemption, offer to purchase or otherwise, and interest on the overdue principal of and interest and Liquidated Damages, if any, on the Notes and all other Obligations of the Company to the Holders or the Trustee under this Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due (including any applicable grace periods) of any amount so guaranteed for whatever reason, each Guarantor will be obligated to pay the same pursuant to the preceding sentence whether or not such failure to pay has become an Event of Default that could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) For purposes of this Article Eleven, "Obligations" means, with respect to the Company, any and all present and future obligations and liabilities of the Company of every type and description to the Holders under the Notes, this Indenture and the Registration Rights Agreement, whether for principal, premium (if any), interest, Liquidated Damages, if any, expenses, indemnities or other amounts, in each case whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, now or hereafter existing, renewed or restructured, whether or not from time to time decreased or extinguished and later increased, created or incurred, whether or not arising after the commencement of a proceeding under any Bankruptcy Law (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding. (c) Each Guarantor's Obligations with regard to this Subsidiary Guarantee shall be (i) joint and several, unconditional, irrespective of the validity or enforceability of the Notes or the Obligations of the Company under this Indenture or the Notes, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other Obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor and (ii) subordinated to the prior payment in full of all Obligations with respect to Senior Indebtedness of such Guarantor (whether outstanding on the date of this Indenture or thereafter incurred) in accordance with Article Ten. (d) Each Guarantor, to the extent permitted by law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require the Trustee or the Holders (each, a "Benefited Party") to proceed against the Company, any other Obligor or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any Benefited Party's power before proceeding against such Guarantor; (ii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person; (iii) demand, protest and notice of any kind including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or obligation or of any action or non-action on the part of such Guarantor, the Company, any other Obligor, any Benefited Party, any creditor of such Guarantor, the Company, any other Obligor or on the part of any other Person whomsoever in connection with any Indebtedness or Obligations hereby guaranteed; (iv) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against such Guarantor for reimbursement; (v) any defense based upon any statute or rule or law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (vi) any defense arising because of a Benefited Party's election, in any proceeding instituted under the Bankruptcy Law or the application of Section 1111(b)(2) of the Bankruptcy Law; or (vii) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Law. Except as provided in Section 11.02, a Subsidiary Guarantee will not be discharged except by discharge of this Indenture pursuant to Article Eight hereof or by complete performance of the Obligations contained in such Subsidiary Guarantee and this Indenture. (e) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any custodian acting in relation to either the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, the applicable Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. No Guarantor shall be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed until payment in full of all Obligations guaranteed pursuant to such Subsidiary Guarantee. (f) As between each Guarantor, on the one hand, and the Holders and the Trustee, on the other, (i) the maturity of the Obligations guaranteed pursuant to a Subsidiary Guarantee may be accelerated pursuant to Section 6.02, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company or any other Obligor on the Notes of the Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those Obligations as provided in Section 6.02, those Obligations (whether or not due and payable) will forthwith become due and payable by such Guarantor for the purpose of the Subsidiary Guarantee. SECTION 11.02. Release Following Disposition of Capital Stock or Designation as an Unrestricted Subsidiary. The Trustee shall release any Guarantor from its Subsidiary Guarantee, and such Subsidiary Guarantee shall cease to be valid and to have any force and effect if (i) there shall occur a sale or other disposition (other than to the Company or any Restricted Subsidiary) of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition (other than to the Company or any Restricted Subsidiary) of all of the Capital Stock of any Guarantor; provided that such sale or other disposition is an Asset Disposition subject to and complying with Section 4.15, and the Net Available Cash resulting therefrom are applied in accordance with such Section 4.15, or (ii) such Restricted Subsidiary is designated as an Unrestricted Subsidiary in accordance with Section 4.19. In such event, each of the Company, the Trustee and the remaining Guarantors shall, in accordance with Article Nine hereof, execute an Indenture Supplemental hereto that reflects the release of such Subsidiary Guarantee. Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal and interest on the Notes and for the other Obligations of the Company as provided in this Article Eleven. SECTION 11.03. Rights of Contribution. (a) In order to provide for just and equitable contribution among the Guarantors in connection with their respective Subsidiary Guarantees, the Guarantors have agreed among themselves that if any Guarantor satisfies some or all of the Obligations of the Company guaranteed by it hereunder (a "Funding Guarantor"), the Funding Guarantor shall be entitled to contribution from the other Guarantors that have positive Maximum Net Worth (as defined below) for all payments made by the Funding Guarantor in satisfying such Obligations, so that each Guarantor that remains obligated under its Subsidiary Guarantee at the time that a Funding Guarantor makes such payment (a "Remaining Guarantor") and has a positive Maximum Net Worth shall bear a portion of such payment equal to the percentage that such Remaining Guarantor's Maximum Net Worth bears to the aggregate Maximum Net Worth of all Remaining Guarantors that have positive Maximum Net Worth. (b) For purposes of this Section 11.03, the following terms are defined as set forth below: "Net Worth" means, with respect to any Guarantor, the amount, as of any date of calculation, by which the sum of such Person's assets (including subrogation, indemnity, contribution, reimbursement and similar rights that such Guarantor may have), determined on the basis of a "fair valuation" or their "fair salable value" (whichever is the applicable test under Section 548 and other relevant provisions of Bankruptcy Law, and the relevant state fraudulent conveyance or transfer laws) is greater than the amount that will be required to pay all of such Person's debts, in each case matured or unmatured, contingent or otherwise, as of the date of calculation, but excluding liabilities arising under its Subsidiary Guarantee and excluding, to the maximum extent permitted by applicable law with the objective of avoiding rendering such Person insolvent, liabilities subordinated to the Obligations under such Subsidiary Guarantees arising out of loans or advances made to such Person by any other Person. "Maximum Net Worth" means, with respect to any Guarantor, the greatest of the Net Worths calculated as of the following dates: (A) the date on which the Guarantor becomes a Guarantor hereunder, (B) the date on which such Guarantor expressly reaffirms its Subsidiary Guarantee, (C) the date on which demand for payment is made on such Guarantor hereunder, (D) the date on which payment is made by such Guarantor hereunder or (E) the date on which any judgment, order or decree is entered requiring such Guarantor to make payment hereunder or in respect hereof. The meaning of the terms "fair valuation" and "fair salable value" and the calculation of assets and liabilities shall be determined and made in accordance with the relevant provisions of any Bankruptcy Law and applicable state fraudulent conveyance or transfer laws. SECTION 11.04. Limitation on Liability. If the obligations of any Guarantor hereunder otherwise would be subject to avoidance under Section 548 of the Bankruptcy Law or any applicable state law relating to fraudulent conveyances or fraudulent transfers, taking into consideration such Guarantor's (i) rights of reimbursement and indemnity from the Company with respect to amounts paid by such Guarantor and (ii) rights of contribution from other Guarantors pursuant to Section 11.03, then such obligations hereby are reduced to the largest amount that would make them not subject to such avoidance. Any Person asserting that such Guarantor's obligations are so avoidable shall have the burden (including the burden of production and of persuasion) of proving (a) that, without giving effect to this paragraph, such Guarantor's obligations hereunder would be avoidable and (b) the extent to which such obligations are reduced by operation of this paragraph. ARTICLE TWELVE MISCELLANEOUS SECTION 12.01. TIA Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. SECTION 12.02. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows: if to the Company or any Guarantor: Ameristar Casinos, Inc. 3773 Howard Hughes Parkway Suite 490 South Las Vegas, Nevada 89109 Attention: Senior Vice President and Chief Financial Officer Telecopy: (702) 369-8860 if to the Trustee: First Trust National Association 180 East Fifth Street St. Paul, Minnesota 55101 Attention: Corporate Trust Administration Telecopy: (612) 244-0711 Each of the Company and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Company or the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if faxed; and five calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail or other equivalent means at his address as it appears on the registration books of the Registrar and shall be sufficiently given to him if so mailed within the time prescribed. Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. SECTION 12.03. Communications by Holders with Other Holders. Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and any other Person shall have the protection of TIA Section 312(c). SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officers' Certificate, in form and substance satisfactory to the Trustee, stating that, in the opinion of the signers, all conditions precedent to be performed by the Company, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) an Opinion of Counsel, in form and substance satisfactory to the Trustee, stating that, in the opinion of such counsel, all such conditions precedent to be performed by the Company, if any, provided for in this Indenture relating to the proposed action have been complied with. SECTION 12.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture, other than the Officers' Certificate required by Section 4.06, shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with. SECTION 12.06. Rules by Trustee, Paying Agent, Registrar. The Trustee may make reasonable rules in accordance with the Trustee's customary practices for action by or at a meeting of Noteholders. The Paying Agent or Registrar may make reasonable rules for its functions. SECTION 12.07. Legal Holidays. A "Legal Holiday" used with respect to a particular place of payment is a Saturday, a Sunday or a day on which banking institutions in New York, New York or at such place of payment are not required to be open. If a payment date is a Legal Holiday at such place, payment may be made at such place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. SECTION 12.08. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE. SECTION 12.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 12.10. No Recourse Against Others. A director, officer, employee, stockholder or incorporator, as such, of any Obligor or of the Trustee shall not have any liability for any obligations of any Obligor under the Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creations. Each Noteholder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. SECTION 12.11. Successors. All agreements of the Obligors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors. SECTION 12.12. Duplicate Originals. All parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. SECTION 12.13. Severability. In case any one or more of the provisions in this Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law. SECTION 12.14. Designation of Notes as Senior Indebtedness Under Gem Notes. The Company hereby designates, with respect to each Gem Note, all Indebtedness evidenced by the Notes and this Indenture, including, without limitation, all Liquidated Damages, if any, as Senior Indebtedness, as such term is defined in such Gem Note. SECTION 12.15Liability of ACCBI. Notwithstanding anything herein to the contrary, ACCBI shall have no obligation or liability hereunder prior to the time, if at all, that this Indenture, and the Subsidiary Guarantee of ACCBI provided for herein, shall have been approved by the Iowa Racing and Gaming Commission. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above. Company: AMERISTAR CASINOS, INC., a Nevada corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Senior Vice President Guarantors: AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AMERISTAR CASINO LAS VEGAS, INC., a Nevada corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AMERISTAR CASINO VICKSBURG, INC., a Mississippi corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President A.C. FOOD SERVICES, INC., a Nevada corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AC HOTEL CORP., a Mississippi corporation By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President Trustee: FIRST TRUST NATIONAL ASSOCIATION as Trustee By: /s/ Richard H. Prokosch Name: Richard H. Prokosch Title: Trust Officer EXHIBIT A FORM OF NOTE AMERISTAR CASINOS, INC. No. _____________________ $_______________ CUSIP No. ______________ 10 1/2% SENIOR SUBORDINATED NOTES DUE 2004 [SERIES A] [SERIES B]1 AMERISTAR CASINOS, Inc., a Nevada corporation (the "Company"), for value received, hereby promises to pay to __________, or its registered assigns, the principal sum of ________ Dollars [as reduced or increased from time to time as indicated on Schedule A hereto],2 on August 1, 2004. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been duly executed by the Trustee (as defined on the reverse hereof) referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purposes. IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate seal. AMERISTAR CASINOS, INC. By: Name: Title: [Corporate Seal] Attest: By: Name: Title: Dated: TRUSTEE'S CERTIFICATE OF AUTHENTICATION FIRST TRUST NATIONAL ASSOCIATION, as Trustee, certifies that this is one of the Notes referred to in the Indenture. By: Authorized Signatory FORM OF REVERSE SIDE OF NOTE AMERISTAR CASINOS, INC. 10 1/2% Senior Subordinated NOTES DUE 2004 [SERIES A] [SERIES B]3 [THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IN THE CASE OF (b), (c) OR (d), UPON DELIVERY OF AN OPINION OF COUNSEL IF THE ISSUER OR TRUSTEE, REGISTRAR OR TRANSFER AGENT FOR THE NOTES SO REQUESTS), (2) TO THE ISSUER, (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]4 [UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.]5 1. Indenture. This Note is one of a duly authorized issue of debt securities of the Company designated as its "10 1/2% Senior Subordinated Notes due 2004 [Series A] [Series B]"6 (herein called the "Notes") limited in aggregate principal amount to $100,000,000, issued under an indenture dated as of July 15, 1997 (as amended or supplemented from time to time, the "Indenture") between the Company, as Issuer, Ameristar Casino Council Bluffs, Inc., an Iowa corporation, Ameristar Casino Las Vegas, Inc., a Nevada corporation, Ameristar Casino Vicksburg, Inc., a Mississippi corporation, A.C. Food Services, Inc., a Nevada corporation and AC Hotel Corp., a Mississippi corporation, as Guarantors (together with certain other current and future subsidiaries of the Company that may become guarantors, collectively, the "Guarantors") and First Trust National Association, as trustee (the "Trustee," which term includes any successor Trustee under the Indenture), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and each Holder and of the terms upon which the Notes are, and are to be, authenticated and delivered. The summary of the terms of the Indenture contained herein does not purport to be complete and is qualified by reference to the Indenture. All terms used in this Note which are not defined herein shall have the meanings assigned to them in the Indenture. The Indenture restricts, among other things, the Company's ability to incur additional indebtedness, incur liens, pay dividends or make certain other restricted payments, sell assets, apply net proceeds from certain asset sales, enter into certain transactions with affiliates, merge or consolidate with any other person, sell stock of Subsidiaries or sell, assign, transfer, lease, convey or otherwise dispose of substantially all of the assets of the Company. The Indenture also imposes similar restrictions on Restricted Subsidiaries, but permits, under certain circumstances, Subsidiaries to be deemed Unrestricted Subsidiaries and thus not be subject to the restrictions of the Indenture. 2. Interest. The Company shall pay interest on this Note at a rate of 10 1/2% per annum, semiannually in arrears on February 1 and August 1 of each year, commencing on February 1, 1998, to the Holder hereof until the principal amount hereof is paid or duly provided for. The Record Dates for such Interest Payment Dates shall be January 15 and July 15, respectively (each, a "Record Date"). Interest shall accrue from July 15, 1997 or from the most recent Interest Payment Date thereafter to which interest has been paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions provided in the Indenture, be paid to the Person in whose name this Note (or the Note in exchange or substitution for which this Note was issued) is registered at the close of business on the Record Date for interest payable on such Interest Payment Date. Any such interest not so punctually paid or duly provided for ("Defaulted Interest") shall forthwith cease to be payable to the Holder on such Record Date and shall be paid as provided in Section 2.12 of the Indenture. Interest will be computed on the basis of a 360- day year of twelve 30-day months. Each payment of interest in respect of an Interest Payment Date will include interest accrued through the day before such Interest Payment Date. If an Interest Payment Date falls on a day that is a Legal Holiday, the interest payment to be made on such Interest Payment Date will be made on the next succeeding business day with the same force and effect as if made on such Interest Payment Date, and no additional interest will accrue as a result of such delayed payment. [If this Note is exchanged pursuant to an Exchange Offer Registration Statement (as defined in the Registration Rights Agreement) prior to the Record Date for the first Interest Payment Date following such exchange, accrued and unpaid interest, if any, on this Note, up to but not including the date of issuance of the Exchange Note or Exchange Notes issued in exchange for this Note, shall be paid on the first Interest Payment Date for such Exchange Note or Exchange Notes to the Holder or Holders of such Exchange Note or Exchange Notes on the first Record Date with respect to such Exchange Note or Exchange Notes. If this Note is exchanged pursuant to an Exchange Offer Registration Statement subsequent to the Record Date for the first Interest Payment Date following such exchange but on or prior to such Interest Payment Date, then any such accrued and unpaid interest with respect to this Note and any accrued and unpaid interest on the Exchange Note or Exchange Notes issued in exchange for this Note, through the day before such Interest Payment Date, shall be paid on such Interest Payment Date to the Holder of the Initial Note on such Record Date.]7 [If this Note has been issued in exchange for an Initial Note pursuant to an Exchange Offer Registration Statement (as defined in the Registration Rights Agreement) prior to the Record Date for such Initial Note with respect to the first Interest Payment Date following such exchange, accrued and unpaid interest, if any, on such Initial Note, up to but not including the date of issuance of this Note, shall be paid on the first Interest Payment Date for this Note to the Holder hereof on the first Record Date with respect hereto. If this Note has been issued in exchange for an Initial Note pursuant to an Exchange Offer Registration Statement subsequent to the Record Date for such Initial Note with respect to the first Interest Payment Date following such exchange but on or prior to such Interest Payment Date, then any such accrued and unpaid interest with respect to the Initial Note and any accrued and unpaid interest on this Note, through the day before such Interest Payment Date, shall be paid on such Interest Payment Date to the Holder of this Note on such Record Date.]8 To the extent lawful, the Company shall pay interest on overdue principal, overdue premium, defaulted interest and overdue Liquidated Damages (without regard to any applicable grace period), at the interest rate borne on the Notes plus 2% per annum. The Company's obligation pursuant to the previous sentence shall apply whether such overdue amount is due at its Stated Maturity, as a result of the Company's obligations pursuant to the Indenture, or otherwise. [3. Registration Rights; Liquidated Damages. The Holder of this Note is entitled to the benefits of the Registration Rights Agreement. Such benefits include the right of the Holder to receive Liquidated Damages in the event of a failure on the part of the Company to comply with certain registration covenants, as provided in Section 4 of the Registration Rights Agreement.]9 [4]. Method of Payment. The Company, through the Paying Agent, shall pay interest on this Note to the registered Holder of this Note, as provided above. The Holder must surrender this Note to a Paying Agent to collect principal payments. The Company will pay principal, premium, if any, and interest and Liquidated Damages, if any, in money of the United States of America that at the time of payment is legal tender for payment of all debts public and private. Principal, premium, if any, and interest and Liquidated Damages, if any, will be payable at the office of the Paying Agent but, at the option of the Company, interest and Liquidated Damages may be paid by check mailed to the registered Holders at their registered addresses; provided that all payments with respect to Notes the Holders of which have given wire transfer instructions to the Company will be required to be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof. [Payments with respect to this Global Note are required to be made in same day funds in accordance with the policies of the Depository.]10 [5]. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar under the Indenture. The Company may, upon written notice to the Trustee, appoint and change any Paying Agent or Registrar. The Company or any of its subsidiaries may act as Paying Agent or Registrar. [6]. Notice of Redemption; Selection of Notes to be Redeemed. At least 30 calendar days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption by first class mail, postage prepaid, to each Holder whose Notes are to be redeemed at the addresses of such Holders as they appear in the Register. If fewer than all the Notes are to be redeemed, selection of Notes for redemption will be made by the Trustee, pro rata or by lot or by any other means the Trustee determines to be fair and appropriate and which complies with applicable legal and securities exchange requirements. [7]. Optional Redemption. Except as described below, the Notes will not be redeemable at the option of the Company prior to August 1, 2001. On or after that date, the Notes will be redeemable at the option of the Company, in whole at any time or in part from time to time, on at least 30 but not more than 60 days' prior notice, mailed by first-class mail to the Noteholders' registered addresses, at the Redemption Prices (expressed in percentages of principal amount) specified below plus accrued and unpaid interest and Liquidated Damages, if any, to the applicable Redemption Date, if redeemed during the 12-month period beginning August 1 of the years indicated below: Year Percentage 2001 105.25% 2002 103.50% 2003 and 101.75% thereafter Notwithstanding the foregoing, but subject to the terms of any Designated Senior Indebtedness, on or prior to August 1, 2000, the Company may redeem up to 25% in aggregate principal amount of the Notes originally issued under the Indenture at a Redemption Price of 110.50% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the Redemption Date with the net proceeds of one or more Public Equity Offerings; provided that at least $75.0 million in aggregate principal amount of Notes remain outstanding immediately after the occurrence of each such redemption; and provided, further, that notice of each such redemption shall have been given within 30 days after the date of the closing of such Public Equity Offering. If an Event of Default occurs prior to August 1, 2001, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Notes prior to August 1, 2001, then the premium (expressed in percentages of principal amount) specified below shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes during the 12-month period beginning August 1 of the years indicated below: Year Percentage 1997 (and including the period from 10.50% July 15, 1997 to July 31, 1997) 1998 9.188% 1999 7.875% 2000 6.563% The Notes are not subject to any mandatory sinking fund payments. [8]. Effect of Notice of Redemption. Once notice of redemption is mailed as described above, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued interest and Liquidated Damages, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption shall be paid at the Redemption Price (together with accrued interest, and Liquidated Damages, if any, thereon to the Redemption Date), but installments of interest and Liquidated Damages, if any, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Record Dates referred to in the Notes. Prior to 11:00 A.M., New York City time, on the Redemption Date, the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued interest and Liquidated Damages, if any, on, of all Notes to be redeemed on that date. If the Company complies with such deposit requirements, then, unless the Company defaults in the payment of such Redemption Price plus accrued interest and Liquidated Damages, if any, interest and Liquidated Damages, if any, on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment. [9]. Mandatory Disposition or Redemption Pursuant to Gaming Law. If a Holder or beneficial owner of this Note is required to be licensed, qualified or found suitable under applicable Gaming Laws and is not so licensed, qualified or found suitable, or if a Holder or a beneficial owner of this Note fails to take the steps necessary to seek such license, qualification or finding of suitability, the Holder or beneficial owner of this Note shall be obliged, at the request of the Company, to dispose of such Holder's or beneficial owner's Notes within 30 days after receipt of notice of failure to be licensed, qualified or found suitable or such earlier date prescribed by any Gaming Authority (in which event the Company's obligation to pay any interest and Liquidated Damages, if any, after the receipt of such notice shall be limited as provided in such Gaming Laws), and thereafter, the Company shall have the right to redeem, on the date fixed by the Company for the redemption of such Notes, such Holder's or beneficial owner's Notes at a redemption price equal to the lowest of (i) the price at which such Holder or beneficial owner acquired such Notes without accrued interest or Liquidated Damages, if any, unless the payment of such interest or Liquidated Damages, if any, is permitted by the applicable Gaming Authority, in which case such interest and Liquidated Damages, if any, shall be paid through the Redemption Date, (ii) the fair market value of such Notes on such Redemption Date and (iii) the principal amount of such Notes without accrued interest or Liquidated Damages, if any, thereon, unless the payment of such interest or Liquidated Damages, if any, is permitted by the applicable Gaming Authority, in which case such interest and Liquidated Damages, if any, shall be paid through the Redemption Date. The Company is not required to pay or reimburse any Holder or beneficial owner of this Note for the costs of licensure or investigation for such licensure, qualification, or finding of suitability. Any Holder or beneficial owner of this Note required to be licensed, qualified or found suitable under applicable Gaming Laws must pay all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, suitability or application therefor. [10]. Repurchase at the Option of Holders upon Change of Control. Upon a Change of Control, each Holder shall have the right to require that the Company repurchase all or a part of such Holder's Notes at a Purchase Price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. Within 30 calendar days following any Change of Control, the Company shall send, by first class mail to each Holder, a notice respecting such Change of Control. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by completing the form entitled "Option of Holder to Elect Purchase" appearing below and tendering this Note to the Company at the address specified in the notice at least five Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than three Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing its election to have such Note purchased. On the Purchase Date, all Notes purchased by the Company under this provision shall be delivered by the Trustee for cancellation, and the Company shall pay the Purchase Price plus accrued and unpaid interest and Liquidated Damages, if any, to the Holders entitled thereto. [11]. Repurchase at the Option of Holders upon Sale of Assets. If at any time the Company or any Restricted Subsidiary engages in any Asset Disposition, as a result of which the aggregate amount of Excess Proceeds (together with interest thereon) exceeds $5 million, the Company shall make an offer to purchase from all Holders on a pro rata basis the Notes at a Purchase Price of 100% of their principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date and shall purchase from Holders accepting such offer, the maximum principal amount of Notes that may be purchased from funds in an amount equal to the then-existing Excess Proceeds. Upon completion of such an Excess Proceeds Offer (including payment of the Purchase Price for Notes duly tendered), the Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds and the Company or the Restricted Subsidiary that engaged in the Asset Disposition, as applicable, may use the remaining Excess Proceeds for general corporate purposes. Within 10 calendar days of the date on which the Company is required to make an Excess Proceeds Offer, the Company shall send, by first-class mail, a notice to each Holder respecting the Excess Proceeds Offer. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by completing the form entitled "Option of Holder to Elect Purchase" appearing below and tendering this Note to the Company at the address specified in the notice at least five Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than three Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. On the Purchase Date, all Notes purchased by the Company under this provision shall be delivered by the Trustee for cancellation, and the Company shall pay the Purchase Price plus accrued and unpaid interest and Liquidated Damages, if any, to the Holders entitled thereto. [12]. Repurchase of Notes on Loss of Material Gaming License. If at any time a License Loss occurs with respect to the Company or a Restricted Subsidiary, and if any part of the License Loss Amount is not applied by the Company or its Restricted Subsidiaries in the manner and in the 40-day period set forth in Section 4.20 of the Indenture, subject to certain exceptions and conditions contained in the Indenture, the Company shall, immediately upon expiration of such period, make a License Loss Offer to all Holders in accordance with the procedures set forth in the Indenture, and shall purchase from Holders accepting such offer on a pro rata basis, the maximum principal amount of Notes that may be purchased with such unapplied portion of the License Loss Amount, at a Purchase Price of 101% of their principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. Prior to or upon the date on which the Company is required to make a License Loss Offer, the Company shall send, by first- class mail, a notice to each Holder respecting the License Loss Offer. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by completing the form entitled "Option of Holder to Elect Purchase" appearing below and tendering this Note to the Company at the address specified in the notice at least five Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than three Business Days prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. On the Purchase Date, all Notes purchased by the Company under this provision shall be delivered by the Trustee for cancellation, and the Company shall pay the Purchase Price plus accrued and unpaid interest and Liquidated Damages, if any, to the Holders entitled thereto. [13. The Global Note. So long as this Global Note is registered in the name of the Depositary or its nominee, members of, or participants in, the Depositary ("Agent Members") shall have no rights under the Indenture with respect to this Global Note held on their behalf by the Depositary, or the Trustee as its custodian, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of this Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of Notes. The Holder of this Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or this Note. Whenever, as a result of optional redemption by the Company, a Change of Control offer, an Excess Proceeds Offer, a License Loss Offer, an Exchange Offer (as defined in the Registration Rights Agreement) or an exchange for Physical Notes, this Global Note is redeemed, repurchased or exchanged in part, this Global Note shall be surrendered by the Holder hereof to the Trustee who shall cause an adjustment to be made to Schedule A hereof so that the principal amount of this Global Note will be equal to the portion not redeemed, repurchased or exchanged and shall thereafter return this Global Note to such Holder, provided that this Global Note shall be in a principal amount of $1,000 or an integral multiple of $1,000.]11 [14. The Exchange Offer. If this Note is presented to the Registrar for exchange pursuant to the Exchange Offer (as defined in the Registration Rights Agreement), it shall be exchanged for an Exchange Note of equal principal amount in accordance with the terms of the Exchange Offer and the Indenture.]12 [15]. Denomination, [Transfer and Exchange]13. The Notes shall be issuable in fully registered form only, without coupons, in denominations of $1,000 and any integral multiple thereof. [By its acceptance of any Note bearing the Private Placement Legend set forth above, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in the Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in the Indenture.] 14 [16]. Repayment to the Company. Subject to Article Eight of the Indenture, any U.S. Legal Tender or U.S. Government Obligations deposited with the Trustee or the Paying Agent or another trustee for payment of the principal of, premium and Liquidated Damages, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium and Liquidated Damages, if any, or interest has become due and payable, shall be promptly paid to the Company upon its written request and the Trustee and the Paying Agent thereupon shall be relieved from all liability with respect to such funds; provided that the Trustee or such Paying Agent, before being required to make any payment, may at the expense of the Company cause to be published once in a newspaper of general circulation in The City of New York or mail to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified therein which shall be at least 30 days from the date of such publication or mailing any unclaimed balance of such funds then remaining will be repaid to the Company. After payment to the Company Noteholders entitled to such funds must look to the Company for payment as general creditors unless an applicable law designates another Person. [17]. Discharge and Defeasance. Subject to certain conditions contained in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company irrevocably deposits with the Trustee, the Paying Agent or a trustee satisfactory to the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Notes to maturity or redemption, as the case may be. [18]. Amendment, Waiver. Subject to conditions set forth in the Indenture, the Company and the Guarantors, when authorized by Board Resolutions, and the Trustee, together, may amend or supplement the Indenture or the Notes without notice to or consent of any Noteholder (i) to cure any ambiguity, defect or inconsistency; provided that such amendment or supplement does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect; (ii) to provide for uncertificated Notes in addition to or in place of certificated Notes; (iii) to comply with any requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; (iv) to make any change that would provide any additional benefit or rights to the Noteholders or that does not adversely affect the rights of any Noteholder; (v) to provide for issuance of the Exchange Notes, which will have terms substantially identical in all material respects to the Initial Notes (except that the transfer restrictions and the reference to the Registration Rights Agreement with respect to Liquidated Damages and registration rights contained in the Initial Notes will be modified or eliminated, as appropriate), and which will be treated together with any outstanding Initial Notes, as a single issue of securities; (vi) to provide for the assumption of the Company's or any Guarantor's obligations to Noteholders by a successor company or guarantor; (vii) to release any Subsidiary Guarantee in accordance with the provisions of the Indenture; (viii) to provide for additional Guarantors; or (ix) to make any other change that does not, in the opinion of the Trustee, adversely affect in any material respect the rights of any Noteholders under the Indenture. Subject to certain exceptions and conditions set forth in the Indenture, the Company and the Guarantors, when authorized by a Board Resolution, and the Trustee, together, with the written consent of the Holder or Holders of at least a majority in aggregate principal amount of then outstanding Notes, may amend or supplement the Indenture or the Notes, without notice to any other Noteholders. Subject to certain exceptions set forth in the Indenture, the Holder or Holders of a majority in aggregate principal amount of then outstanding Notes may waive compliance by any Obligor with any provision of the Indenture or the Notes without notice to any other Noteholder. After an amendment, supplement or waiver pursuant to the Indenture becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. [19]. Defaults and Remedies. If an Event of Default occurs and is continuing and has not been waived pursuant to the Indenture, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the Notes by notice to the Company and the Trustee, subject to certain limitations, may declare the principal of and accrued interest and Liquidated Damages, if any, on all the Notes to be immediately due and payable. Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes being immediately due and payable upon the occurrence of such Events of Default without any declaration or other act on the part of the Trustee or any Noteholders. In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to the optional redemption provisions hereof, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes. If an Event of Default occurs prior to August 1, 2001, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Notes prior to August 1, 2001, then the premium specified in the third paragraph of Section [7] of this Note shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes. Subject to certain conditions contained in the Indenture, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it, including, without limitation, any remedies provided for in Section 6.03 of the Indenture. Subject to Section 7.01 of the Indenture, however, the Trustee may refuse to follow any direction that the Trustee reasonably believes conflicts with any law or the Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Noteholder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. A Noteholder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives to the Trustee written notice stating that an Event of Default is continuing; (ii) the Holders of at least 25% in principal amount of the Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer to the Trustee reasonable security or indemnity against any loss, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and (v) the Holders of a majority in principal amount of the Notes do not give the Trustee a direction inconsistent with the request during such 60-day period. The Holders of a majority in principal amount of the Notes by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto. [20]. Subordination; Senior Indebtedness Under Gem Notes. The payment of principal of, premium, if any, and interest on the Notes is subordinated to the prior payment in full of all Obligations with respect to Senior Indebtedness of the Company and any Guarantor (whether outstanding on the date of this Indenture or thereafter incurred), as set forth in Article Ten of the Indenture. The Company hereby designates, with respect to each Gem Note, the Indebtedness evidenced by this Note and the Indenture as Senior Indebtedness, as such term is defined in such Gem Notes. [21]. Individual Rights of Trustee. Subject to certain limitations contained in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, any Subsidiary of the Company, or their respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. [22]. Trustee's Disclaimer The Trustee makes no representation as to the validity or adequacy of the Indenture or the Notes, and it shall not be accountable for the Company's use of the proceeds from the Notes, and it shall not be responsible for any statement of the Company in the Indenture or the Notes other than the Trustee's certificate of authentication. [23]. No Recourse Against Certain Others. A director, officer, employee, stockholder or incorporator, as such, of any Obligor or of the Trustee shall not have any liability for any obligations of any Obligor under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creations. Each Noteholder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. [24]. Governing Law. THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE. [25]. Liability of ACCBI. Notwithstanding anything herein to the contrary, ACCBI shall have no obligation or liability hereunder prior to the time, if at all, the Indenture and the Subsidiary Guarantee of ACCBI provided for therein shall have been approved by the Iowa Racing and Gaming Commission. The Company will furnish to any Holder of Notes upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note. Requests may be made to: Ameristar Casinos, Inc. 3773 Howard Hughes Parkway Suite 490 South Las Vegas, Nevada 89109 Attention: Chief Financial Officer [SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT The initial principal amount at maturity of this Note shall be $___________. The following decreases/increase in the principal amount at maturity of this Note have been made: Total Principal Amount at Date of Decrease in Increase in Maturity Notation Decrease/ Principal Principal Following Made by or Increase Amount at Amount at such on Behalf Maturity Maturity Decrease/ of Trustee]15 Increase ASSIGNMENT (To be executed by the registered Holder if such Holder desires to transfer this Note) FOR VALUE RECEIVED ______________________________ hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE _________________________________________________________________ _____________ (Please print name and address of transferee) _________________________________________________________________ _____________ this Note, together with all right, title and interest herein, and does hereby irrevocably constitute and appoint _______________________ Attorney to transfer this Note on the Register, with full power of substitution. Dated: __________________________ __________________________________ ________________________________ Signature of Holder Signature Guaranteed: (Signature must be guaranteed by a bank or trust company having an office or correspondent in the United States or by a member firm of a registered securities exchange or the National Association of Securities Dealers, Inc. The guarantor of signature must be a participant in the Medallion Stamp Program.) NOTICE: The signature to the foregoing Assignment must correspond to the Name as written upon the face of this Note in every particular, without alteration or any change whatsoever. OPTION OF HOLDER TO ELECT PURCHASE (check as appropriate) In connection with the offer made upon a Change of Control pursuant to Section 4.14 of the Indenture, the undersigned hereby elects to have the entire principal amount $ __________________($1,000 in principal amount or an integral multiple thereof) of this Note repurchased by the Company. The undersigned hereby directs the Trustee or Paying Agent to pay it or ___________________ an amount in cash equal to 101% of the principal amount indicated in the preceding sentence, plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. In connection with the Excess Proceeds Offer made pursuant to Section 4.15 of the Indenture, the undersigned hereby elects to have the entire principal amount (or the maximum amount thereof after selection of Notes for repurchase on a pro rata basis) $ __________________($1,000 in principal amount or an integral multiple thereof) of this Note repurchased by the Company. The undersigned hereby directs the Trustee or Paying Agent to pay it or _____________________ an amount in cash equal to 100% of the principal amount indicated in the preceding sentence, plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. In connection with the License Loss Offer made pursuant to Section 4.20 of the Indenture, the undersigned hereby elects to have the entire principal amount (or the maximum amount thereof after selection of Notes for repurchase on a pro rata basis) $ __________________($1,000 in principal amount or an integral multiple thereof) of this Note repurchased by the Company. The undersigned hereby directs the Trustee or Paying Agent to pay it or _____________________ an amount in cash equal to 100% of the principal amount indicated in the preceding sentence, plus accrued and unpaid interest and Liquidated Damages, if any, to the Purchase Date. Dated: ______________________ __________________________________ ________________________________ Signature of Holder Signature Guaranteed: (Signature must be guaranteed by a bank or trust company having an office or correspondent in the United States or by a member firm of a registered securities exchange or the National Association of Securities Dealers, Inc. The guarantor of signature must be a participant in the Medallion Stamp Program.) NOTICE: The signature to the foregoing must correspond to the Name as written upon the face of this Note in every particular, without alteration or any change whatsoever. EXHIBIT B Form of Certificate To Be Delivered in Connection with Transfers to Non-U.S. Persons Pursuant to Regulation S _______________________, ____ First Trust National Association 180 East Fifth Street St. Paul, Minnesota 55101 Attention: Corporate Trust Administration Re:Ameristar Casinos, Inc. (the "Company") 10 1/2% Senior Subordinated Notes due 2004 Series A (the "Notes") Ladies and Gentlemen: In connection with our proposed transfer of $___________ aggregate principal amount of the Notes (the "Transfer"), we confirm that (i) we are familiar with the transfer provisions of the Indenture, dated as of July 15, 1997, by and among the Company, the Guarantors named therein and you, as Trustee (the "Indenture"), and (ii) such Transfer has been effected in compliance with Regulation S under the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent that: (1) the offer of the Notes was not made to a person in the United States; (2) either (a) at the time the buy offer or order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States, or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; (3) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; (4) the Transfer is not part of a plan or scheme to evade the registration requirements of the Securities Act; (5) we have advised the transferee of the transfer restrictions applicable to the Notes; and (6) if the Transfer will occur prior to the expiration of the Restricted Period (as defined in the Indenture), the interest transferred will be held immediately hereafter through Euroclear or CEDEL (as defined in the Indenture). You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By:__________________________ Authorized Signature EXHIBIT C Form of Certificate To Be Delivered in Connection with Transfers to QIBs _______________________, ____ First Trust National Association 180 East Fifth Street St. Paul, Minnesota 55101 Attention: Corporate Trust Administration Re:Ameristar Casinos, Inc. (the "Company") 10 1/2% Senior Subordinated Notes due 2004 Series A (the "Notes") Ladies and Gentlemen: In connection with our proposed transfer of $___________ aggregate principal amount of the Notes (the "Transfer"), we confirm that (i) we are familiar with the transfer provisions of the Indenture, dated as of July 15, 1997, by and among the Company, the Guarantors named therein and you, as Trustee (the "Indenture"), and (ii) such Transfer has been effected in compliance with Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent that: (1) the Transfer is being made to a person whom we reasonably believe is purchasing for its own account or accounts as to which it exercises sole investment discretion and that such person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act; and (2) the Transfer otherwise complies with the requirements of Rule 144A. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Rule 144A. Very truly yours, [Name of Transferor] By:__________________________ Authorized Signature EXHIBIT D EXHIBIT D - PORTIONS OF FINAL OFFERING MEMORANDUM Gem Notes Upon the effectiveness of the Gem Settlement Agreement on June 20, 1997, Ameristar issued the Gem Notes in the aggregate amount of $28.7 million. See "Business - The Gem Merger." The per annum interest rate on the Gem Notes is 8%, subject to increase by 3.4 or 3.3 percentage points, up to a maximum of 18% per annum, following one or more failures to make payments under the Gem Notes by scheduled dates. Interest is scheduled to be paid initially on a quarterly basis and on a monthly basis after October 1998. Any interest not paid when scheduled will thereafter accrue interest as principal. A principal reduction payment of $2.0 million is scheduled for November 1998, followed by semiannual principal reduction payments of $1.0 million commencing in July 1999 until January 2002, when the semiannual principal reduction payments will increase to $1.5 million. The Gem Notes mature on December 31, 2004. The Gem Notes are not be subject to acceleration or other collection efforts upon failure to make a scheduled payment prior to maturity, and the only remedy for such a failure to make a scheduled payment is the increase in interest rate described above. The failure to make a scheduled payment under the Gem Notes will not constitute an event of default under the Revolving Credit Facility or the Indenture. The Gem Notes may be prepaid in whole or in part at any time without penalty. The Gem Notes are subordinate to the Revolving Credit Facility, the Notes and other long-term indebtedness of Ameristar specified by Ameristar up to a maximum of $250 million, plus additional indebtedness incurred in connection with certain interest rate protection or similar agreements related to senior indebtedness. The Gem Notes are unsecured and do not bind the Company to any affirmative or negative covenants other than the payment obligations and a covenant prohibiting Ameristar from incurring more than $250 million in senior indebtedness. A portion of the Gem Notes ($15 million) expressly provide that Ameristar may set off any liabilities of the Gem Stockholders to the Company. Ameristar will be permitted to effect such a setoff even if such Gem Notes have been transferred to a third party holder. The release of the Gem Stockholders provided for in the Gem Settlement Agreement excludes certain claims that the Company may have against the Gem Stockholders. See "Business - The Gem Merger." Vicksburg Hotel Loan The Company intends that AC Hotel Corp., a newly formed wholly owned subsidiary of ACVI, will enter into a loan agreement in July 1997 providing for borrowings of up to $7.5 million for the purpose of funding a portion of the construction costs of a 148-room hotel at Ameristar Vicksburg. The Company is currently negotiating with a private lender for a nonrecourse loan that would be secured by a deed of trust on the hotel and the underlying land senior in priority to the liens securing the Revolving Credit Facility. The Company anticipates that this loan will have a maturity date of not earner than June 1, 1998 and require monthly or quarterly interest payments. However, no assurance can be given that this or any other loan will be obtained on these terms or other terms acceptable to the Company. EXHIBIT E FORM OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of , ____, among (the "Additional Guarantor"), Ameristar Casinos, Inc., a Nevada corporation (the "Company"), the other Guarantors listed on the signature pages hereto (the "Existing Guarantors") and First Trust National Association, as trustee under the indenture referred to below (the "Trustee"). RECITALS A. The Company, as Issuer, and Ameristar Casino Las Vegas, Inc., a Nevada corporation, Ameristar Casino Council Bluffs, Inc., an Iowa corporation, Ameristar Casino Vicksburg, Inc., a Mississippi corporation, A.C. Food Services, Inc., a Nevada corporation and AC Hotel Corp., a Mississippi corporation, have heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of July 15, 1997, providing for the issuance of an aggregate principal amount at maturity of $100,000,000 of 10 1/2 Senior Subordinated Notes due 2004 (the "Notes"); B. Section 4.22 of the Indenture provides that under certain circumstances the Company is required to cause the Additional Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the Additional Guarantor shall unconditionally guarantee all of the Company's obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth in Article Eleven of the Indenture; and C. Pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. Agreement to Guarantee. The Additional Guarantor hereby agrees, jointly and severally with all other Guarantors, to guarantee the Company's Obligations on the terms and subject to the conditions set forth in Article Eleven of the Indenture and to be bound by all other provisions of the Indenture applicable to Guarantors, subject to the terms and conditions of the Indenture. 3. No Recourse Against Others. A director, officer, employee, stockholder or incorporator, as such, of any Obligor or of the Trustee shall not have any liability for any obligations of any Obligor under the Notes, this Supplemental Indenture or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creations. Each Noteholder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. 4. Governing Law. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE. 5. Counterparts. This Supplemental Indenture may be executed in any number of counterparts and by the 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. 6. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. 7. Consent of Existing Guarantors; Status of Existing Guarantees. By its execution hereof, each Existing Guarantor confirms that it is a Guarantor of the Company's Obligations pursuant to a Subsidiary Guarantee on the terms and conditions set forth in Article Eleven of the Indenture and hereby (i) consents to the execution of this Supplemental Indenture by the Company and the Additional Guarantor and to the addition to the Indenture of the Additional Guarantor, and (ii) confirms that the Subsidiary Guarantee to which it is a party is and shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. ADDITIONAL GUARANTOR [ ] By: Name: Title: [Corporate Seal] Attest: By: Name: Title: Dated: AMERISTAR CASINOS, INC. By: Name: Title: [Corporate Seal] Attest: By: Name: Title: Dated: [EXISTING GUARANTORS] By: Name: Title: [Corporate Seal] Attest: By: Name: Title: Dated: FIRST TRUST NATIONAL ASSOCIATION, as Trustee By:_____________________________ Name: Title: EXHIBIT F FORM OF SUBSIDIARY GUARANTEE Each Guarantor listed below (hereinafter referred to as the "Guarantors") hereby jointly and severally and unconditionally guarantees to each Holder of a _% Senior Subordinated Note due 2004 (the "Notes") of Ameristar Casinos, Inc., a Nevada corporation (the "Company") authenticated and delivered by the Trustee, irrespective of the validity or enforceability of that certain Indenture, by and among the Company, the Guarantors named therein, and First Trust National Association, as Trustee, dated as of July 15, 1997, as amended or supplemented (the "Indenture"), the Notes or the Obligations of the Company under the Indenture or the Notes, that: (i) the principal of, interest, premium, if any, and Liquidated Damages, if any, on the Notes will be paid in full when due, whether at the Maturity Date, any Interest Payment Date, any Redemption Date or Purchase Date, by acceleration, call for redemption, offer to purchase or otherwise, and interest on the overdue principal of and interest and Liquidated Damages, if any, on the Notes and all other Obligations of the Company to the Holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due (including any applicable grace periods) of any amount so guaranteed for whatever reason, each Guarantor will be obligated to pay the same pursuant to the preceding sentence whether or not such failure to pay has become an Event of Default that could cause acceleration pursuant to Section 6.02 of the Indenture. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The obligations of each Guarantor to the Holders of Notes and to the Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth in Article Eleven of the Indenture and reference is hereby made to such Indenture for the precise terms of this Subsidiary Guarantee. THE TERMS OF ARTICLE ELEVEN OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE. In the case of any discrepancy between this writing and Article Eleven of the Indenture, Article Eleven of the Indenture shall control. This is a continuing Subsidiary Guarantee and shall remain in full force and effect and shall be binding upon each Guarantor and its successors and assigns until full, final and indefeasible payment of all of the Company's Obligations under the Notes and the Indenture (subject to Section 11.02 of the Indenture) and shall inure to the benefit of the successors and assigns of the Trustee and the Holders of Notes and, in the event of any transfer or assignment of rights by any Holder of Notes or the Trustee, the rights and privileges herein conferred upon the party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. If the obligations of any Guarantor hereunder otherwise would be subject to avoidance under Section 548 of the Bankruptcy Law or any applicable state law relating to fraudulent conveyances or fraudulent transfers, taking into consideration such Guarantor's (i) rights of reimbursement and indemnity from the Company with respect to amounts paid by such Guarantor and (ii) rights of contribution from other Guarantors pursuant to Section 11.03 of the Indenture, then such obligations hereby are reduced to the largest amount that would make them not subject to such avoidance. Any Person asserting that such Guarantor's obligations are so avoidable shall have the burden (including the burden of production and of persuasion) of proving (a) that, without giving effect to this paragraph, such Guarantor's obligations hereunder would be avoidable and (b) the extent to which such obligations are reduced by operation of this paragraph. This Subsidiary Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Subsidiary Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated. GUARANTORS By:_____________________________ Name: Title: _______________________________ 1 The Initial Notes shall be marked as Series A and the Exchange Notes shall be marked as Series B. 2 Appears only on Global Notes. 3 The Initial Notes shall be marked as Series A and the Exchange Notes shall be marked as Series B. 4 Appears only on the Initial Notes. 5 Appears only on the Global Notes. 6 The Initial Notes shall be marked as Series A and the Exchange Notes shall be marked as Series B. 7 Appears only on Initial Notes. 8 Appears only on Exchange Notes. 9 Appears only on Initial Notes. 10 Appears only on Global Notes. 11 Appears only on Global Note. 12 Appears only on Initial Notes. 13 Appears only on Initial Notes. 14 Appears only on Initial Notes. 15 Schedule appears only on Global Notes. EX-4 4 REGISTRATION RIGHTS AGREEMENT Dated as of July 15, 1997 by and among AMERISTAR CASINOS, INC. as Issuer and AMERISTAR CASINO COUNCIL BLUFFS, INC., A.C. FOOD SERVICES, INC., AC HOTEL CORP., AMERISTAR CASINO LAS VEGAS, INC., AMERISTAR CASINO VICKSBURG, INC. and CACTUS PETE'S, INC. as Guarantors and BEAR, STEARNS & CO. INC., BT SECURITIES CORPORATION and FIRST CHICAGO CAPITAL MARKETS, INC. as Initial Purchasers REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made and entered into as of July 15, 1997, among AMERISTAR CASINOS, INC., a Nevada corporation (the "Issuer"), and AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation ("ACCBI"), A.C. FOOD SERVICES, INC., a Nevada corporation, AC HOTEL CORP., a Mississippi corporation, AMERISTAR CASINO LAS VEGAS, INC., a Nevada corporation, AMERISTAR CASINO VICKSBURG, INC., a Mississippi corporation, and CACTUS PETE'S, INC., a Nevada corporation ("CPI"), (together, the "Guarantors") and BEAR, STEARNS & CO. INC., BT SECURITIES CORPORATION and FIRST CHICAGO CAPITAL MARKETS, INC. (together, the "Initial Purchasers"). This Agreement is made pursuant to the Purchase Agreement, dated July 10, 1997, among the Issuer, the Guarantors and the Initial Purchasers (the "Purchase Agreement"), which provides for the sale by the Issuer to the Initial Purchasers of $100,000,000 aggregate principal amount of 10 1/2% Senior Subordinated Notes due 2004 Series A (the "Initial Notes"). The Issuer's obligation's under, among other things, the Initial Notes, are guaranteed by the Guarantors (or, in the case of CPI and ACCBI, will be so guaranteed upon the receipt of all requisite approvals under Gaming Laws (as defined in the Purchase Agreement) (as in effect from time to time, the "Subsidiary Guarantees"). In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuer has agreed to provide to the Initial Purchasers and their respective direct and indirect transferees, among other things, the registration rights for the Initial Notes set forth in this Agreement. The execution of this Agreement is a condition to the closing of the transactions contemplated by the Purchase Agreement. The parties hereby agree as follows: 1. Definitions As used in this Agreement, the following terms shall have the following meanings (and, unless otherwise indicated, capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Purchase Agreement): Applicable Period: See Section 2(f) hereof. Business Day: Any day except a Saturday, Sunday or other day in the City of New York, or in the city of the corporate trust office of the Trustee, on which banks are authorized to close. Closing Date: The Closing Date as defined in the Purchase Agreement. Direct Broker - Dealer Buyer: See Section 2(b) hereof. Effectiveness Period: See Section 3(a) hereof. Effectiveness Target Date: The 180th day following the Closing Date. Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, and any succeeding provisions thereto. Exchange Notes: See Section 2(a) hereof. Exchange Offer: See Section 2(a) hereof. Exchange Offer Registration Statement: See Section 2(a) hereof. Filing Date: The 60th day after the Closing Date. Holder: Any holder of Transfer Restricted Securities. Indemnified Party: See Section 7 hereof. Indemnifying Party: See Section 7 hereof. Indenture: The Indenture, dated as of July 15, 1997, by and among the Issuer, the Initial Guarantors, and First Trust National Association, as Trustee, pursuant to which the Initial Notes are being issued, as amended or supplemented from time to time in accordance with the terms thereof. Initial Guarantors: Each of the Guarantors except for CPI. Initial Notes: See the introductory paragraphs to this Agreement. Initial Purchasers: See the introductory paragraph to this Agreement. Inspectors: See Section 5(m) hereof. Issuer: See the introductory paragraph of this Agreement. Issuer Affiliate: See Section 2(b) hereof. Liquidated Damages: See Section 4(a) hereof. Participating Broker-Dealer: Any broker-dealer (as defined in the Exchange Act), other than a Direct Broker-Dealer Buyer, that is a Holder or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Initial Notes acquired for its own account as a result of market-making activities or other trading activities that are tendered for exchange in the Exchange Offer and that thereafter holds Exchange Notes issued in exchange therefor. Person or person: An individual, trustee, corporation, partnership, joint stock company, trust, unincorporated association, union, business association, limited liability company, limited liability partnership, firm or other legal entity. Prospectus: The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Exchange Notes and/or the Transfer Restricted Securities (as applicable), covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. Purchaser Indemnitee: See Section 7 hereof. Records: See Section 5(m) hereof. Registration Default: See Section 4(a) hereof. Registration Statement: Any registration statement of the Issuer and the Guarantors, including, but not limited to, the Exchange Offer Registration Statement, the Shelf Registration Statement or a registration statement of the Issuer that otherwise covers any of the Transfer Restricted Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. Rule 144: Rule 144 promulgated pursuant to the Securities Act, as currently in effect, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as currently in effect, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. Rule 415: Rule 415 promulgated pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. SEC: The Securities and Exchange Commission. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, and any succeeding provisions thereto. Shelf Notice: See Section 2(g) hereof. Shelf Registration Statement: See Section 3(a) hereof. TIA: The Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder. Transfer Restricted Securities: The Initial Notes upon original issuance thereof and at all times subsequent thereto, until (i) a Registration Statement covering such Initial Notes has been declared effective by the SEC and such Initial Notes have been disposed of in accordance with such effective Registration Statement, (ii) such Initial Notes are sold in compliance with Rule 144 or (iii) such Initial Notes cease to be outstanding. Trustee: The trustee under the Indenture and, if existent, the trustee under any indenture governing the Exchange Notes. Underwritten registration or underwritten offering: A registration in which securities of the Issuer are sold to an underwriter for reoffering to the public. 2. Exchange Offer (a) The Issuer and the Guarantors agree to file with the SEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, an offer to exchange (the "Exchange Offer"), any and all of the Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Issuer as guaranteed by Subsidiary Guarantees in effect from time to time (subject to, in the case of CPI and ACCBI, the receipt of all requisite approvals under Gaming Laws) (the "Exchange Notes"), which Exchange Notes will be (i) substantially identical in all material respects to the Initial Notes, except that such Exchange Notes will not contain terms with respect to transfer restrictions, registration rights or the obligation to pay any Liquidated Damages, (ii) entitled to the benefits of the Indenture or a trust indenture which is identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC or to effect or maintain the qualification thereof under the TIA), and which, in either case, has been qualified under the TIA, and (iii) registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer will be registered pursuant to the Securities Act on an appropriate form of Registration Statement (the "Exchange Offer Registration Statement"), and will comply with all applicable tender offer rules and regulations promulgated pursuant to the Exchange Act and shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law, policy or interpretation of the staff of the SEC. No securities shall be included in the Exchange Offer Registration Statement other than the Exchange Notes. The Issuer and the Guarantors agree to (x) use their best efforts to cause the Exchange Offer Registration Statement to be declared effective and to cause the Exchange Offer to be consummated on or prior to the Effectiveness Target Date and (y) keep the Exchange Offer open for not less than 20 Business Days (or such longer period required by applicable law), after the date that the notice of the Exchange Offer referred to below is mailed to Holders. (b) Each Holder who participates in the Exchange Offer will be required to represent (which representation may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) that (i) any Exchange Notes received by it will be acquired in the ordinary course of its business, (ii) at the time of the consummation of the Exchange Offer such Holder is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, the distribution of the Exchange Notes, and (iii) such Holder is not (1) an "affiliate" of the Issuer or any Guarantor (an "Issuer Affiliate") or, (2) an Initial Purchaser or any other broker- dealer that acquired such Transfer Restricted Securities directly from the Issuer or any Guarantor or any Issuer Affiliate for resale pursuant to Rule 144A, Regulation S or another available exemption from the registration requirements of the Securities Act (a "Direct Broker-Dealer Buyer"). As used herein, "affiliate" shall be as defined in Rule 405 under the Securities Act. Each Holder hereby acknowledges and agrees that any Issuer Affiliate, any Direct Broker-Dealer Buyer, and any such Holder intending to use the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (i) could not under SEC policy as in effect on the date of this Agreement participate in the Exchange Offer, and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction of such Holder's Initial Notes should be covered by an effective registration statement containing the selling security holder and other information required by Item 507 and 508, as applicable, of Regulation S-K under the Securities Act. (c) Prior to the effectiveness of the Exchange Offer Registration Statement, the Issuer and the Guarantors shall provide a supplemental letter to the SEC (a) stating that the Issuer and the Guarantors are seeking to register the Exchange Offer on the basis of the position of the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), and Shearman & Sterling (available July 2, 1993), and similar no- action letters and (B) including a representation that none of the Issuer or the Guarantors has entered into any arrangement or understanding with any person to distribute the Exchange Notes to be received in the Exchange Offer and that, to the best of each of the Issuer's and the Guarantors' knowledge, each Holder intending to participate in the Exchange Offer is acquiring the Exchange Notes in its ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the Exchange Notes received in the Exchange Offer. (d) The Issuer and the Guarantors hereby agree for a period of at least 180 days after consummation of the Exchange Offer to make available, upon written request therefor, a prospectus meeting the requirements of the Securities Act to any Participating Broker-Dealer for use in connection with resales of Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Agreement, the Issuer and the Guarantors shall have no further obligation to register Transfer Restricted Securities pursuant to Section 3 of this Agreement, unless the Issuer and the Guarantors are otherwise obligated to file a Shelf Registration Statement pursuant to Section 3 hereof. (e) The Issuer and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any Participating Broker-Dealer with respect to the Exchange Notes. Such "Plan of Distribution" section shall also allow the use of the Prospectus by all persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker- Dealers may resell the Exchange Notes. (f) The Issuer and the Guarantors shall use their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein, in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that such period shall not exceed 180 days after consummation of the Exchange Offer (or such longer period if extended pursuant to Section 5(j) hereof) (the "Applicable Period"). In connection with the Exchange Offer, the Issuer and the Guarantors shall: (i) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; and (iii) permit Holders to withdraw tendered Initial Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Transfer Restricted Securities delivered for exchange and a statement that such Holder is withdrawing his or her election to have such Transfer Restricted Securities exchanged. As soon as practicable after the close of the Exchange Offer, the Issuer and the Guarantors shall: (i) accept for exchange all Initial Notes validly tendered and not validly withdrawn in accordance with the Exchange Offer; (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Initial Notes so accepted for exchange; and (iii) cause the Trustee to authenticate and deliver promptly to each Holder of Initial Notes, Exchange Notes equal in principal amount to the Initial Notes of such Holder so accepted for exchange. (g) If (1) prior to the consummation of the Exchange Offer, applicable interpretations of the staff of the SEC do not permit the Issuer and the Guarantors to effect the Exchange Offer, (2) for any other reason the Exchange Offer is not consummated on or prior to the Effectiveness Target Date, or (3) any Holder of Transfer Restricted Securities shall notify the Issuer within 20 Business Days of the consummation of the Exchange Offer (and confirm such notice in writing within five Business Days thereafter) that such Holder is a Direct Broker-Dealer Buyer, then the Issuer and the Guarantors shall promptly deliver to the Holders of any Transfer Restricted Securities and the Trustee written notice thereof (the "Shelf Notice"), and the Issuer and the Guarantors shall file a Registration Statement pursuant to Section 3 hereof. Following the delivery to the Holders of Transfer Restricted Securities of a Shelf Notice, the Issuer and the Guarantors shall not have any further obligation to conduct the Exchange Offer pursuant to this Section 2(g), provided, that the Issuer and the Guarantors shall have the right, nonetheless, to proceed to consummate the Exchange Offer notwithstanding their obligation pursuant to this Section 2(g) (and, upon such consummation, any obligation to file a Shelf Registration Statement arising from clause (1) or (2) (but not clause (3)) of this Section 2(g) shall terminate) and provided that any Shelf Notice delivered to the Holders of Transfer Restricted Securities pursuant to clause (3) of this Section 2(g) shall result in the termination of the obligations of the Issuer and the Guarantors to conduct the Exchange Offer only with respect to the Holders described in clause (3) of this Section 2(g). 3. Shelf Registration Statement If the Issuer and the Guarantors are required to deliver a Shelf Notice as contemplated by Section 2(g) hereof, then: (a) Shelf Registration Statement. The Issuer and the Guarantors shall prepare and file with the SEC, as promptly as practicable following the Shelf Notice, a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Transfer Restricted Securities, which registration statement, if the Shelf Notice is given pursuant to Section 2(g)(1) or (2), may be an amendment to the Exchange Offer Registration Statement (the "Shelf Registration Statement"). The Shelf Registration Statement shall be on Form S-1 or another appropriate form permitting registration of the Transfer Restricted Securities for resale by the Holders in the manner or manners reasonably designated by them (including, without limitation, one or more underwritten offerings). The Issuer and the Guarantors shall not permit any securities other than the Transfer Restricted Securities to be included in the Shelf Registration Statement. The Issuer and the Guarantors shall use their best efforts, as described in Section 5(b) hereof, to cause the Shelf Registration Statement to be declared effective pursuant to the Securities Act as promptly as practicable after the filing of such Shelf Registration Statement, but in no event later than the Effectiveness Target Date (or in the case of a Shelf Registration Statement filed pursuant to Section 2(g)(3) hereof, by the later of the Effectiveness Target Date or 60 days of receipt by the Issuer of the notice contemplated by Section 2g)(3)), and to keep the Shelf Registration Statement continuously effective under the Securities Act until the earlier of (i) the date which is 24 months after the Closing Date, (ii) the date that all Transfer Restricted Securities covered by the Shelf Registration Statement have been sold in the manner set forth and as contemplated in the Shelf Registration Statement or (iii) the date that there ceases to be securities outstanding that constitute Transfer Restricted Securities (the "Effectiveness Period"). (b) Supplements and Amendments. The Issuer and the Guarantors shall use their best efforts to keep the Shelf Registration Statement continuously effective by supplementing and amending the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration Statement, if required by the Securities Act, or if reasonably requested by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities covered by such Registration Statement or by any underwriter of such Transfer Restricted Securities. 4. Liquidated Damages (a) The Issuer, the Guarantors and the Initial Purchasers agree that the Holders of Transfer Restricted Securities will suffer damages if the Issuer and the Guarantors fail to fulfill their obligations pursuant to Section 2 or Section 3 hereof and that it would not be possible to ascertain the extent of such damages. Accordingly, in the event of such failure by the Issuer and the Guarantors to fulfill such obligations, the Issuer agrees to pay liquidated damages ("Liquidated Damages") to each Holder of Transfer Restricted Securities under the circumstances and to the extent set forth below: (i) if neither the Exchange Offer Registration Statement nor the Shelf Registration Statement has been filed with the SEC on or prior to the Filing Date; or (ii) if neither the Exchange Offer Registration Statement nor the Shelf Registration Statement is declared effective by the SEC on or prior to the Effectiveness Target Date; or (iii) if an Exchange Offer Registration Statement is declared effective by the SEC, and on or prior to the earlier of (A) 45 days following the effectiveness thereof or (B) the Effectiveness Target Date, the Issuer and the Guarantors have not exchanged Exchange Notes for all Initial Notes validly tendered in accordance with the terms of the Exchange Offer; or (iv) the Shelf Registration Statement has been declared effective by the SEC and such Shelf Registration Statement ceases to be effective or usable at any time during the Effectiveness Period; (any of the foregoing, a "Registration Default"), then, during the first 90-day period following such Registration Default, the Issuer shall pay to each Holder of Transfer Restricted Securities, accruing from the date of the first such Registration Default (or if such Registration Default has been cured, from the date of the next Registration Default), Liquidated Damages in an amount equal to one-half of one percent (0.5%) per annum of the principal amount of Transfer Restricted Securities held by such Holder during the first 90-day period immediately following the occurrence of such Registration Default. The amount of such Liquidated Damages will increase by an additional one-half of one percent (0.5%) per annum of the principal amount of Transfer Restricted Securities during each subsequent 90-day period until all Registration Defaults have been cured; provided, however, that Liquidated Damages shall not at any time exceed two percent (2.0%) per annum of the principal amount of Transfer Restricted Securities (regardless of whether one or more than one Registration Defaults has occurred and is continuing). Following the cure of all Registration Defaults relating to any Transfer Restricted Securities, the accrual of Liquidated Damages with respect to such Transfer Restricted Securities will cease. A Registration Default under clause (i) above shall be cured on the date that either the Exchange Offer Registration Statement or the Shelf Registration Statement is filed with the SEC; a Registration Default under clause (ii) above shall be cured on the date that either the Exchange Offer Registration Statement or the Shelf Registration Statement is declared effective by the SEC; a Registration Default under clause (iii) above shall be cured on the earlier of the date (A) the Exchange Offer is consummated or (B) a Shelf Registration Statement is declared effective; and a Registration Default under clause (iv) above shall be cured on the earlier of (A) the date that the post- effective amendment curing the deficiency in the Shelf Registration Statement is declared effective or (B) the Effectiveness Period expires. (b) The Issuer and the Guarantors shall notify the Trustee within one Business Day after each and every date on which a Registration Default first occurs. Payment of Liquidated Damages, if any, will initially be due at the offices of the Paying Agent (as defined in the Indenture), provided that, at the option of the Issuer and the Guarantors, Liquidated Damages may be paid by check mailed to Holders at their registered addresses, provided further that (i) all payments with respect to Global Notes (as defined in the Indenture) are required to be made in same day funds in accordance with the policies of the Depository (as defined in the Indenture) and (ii) all payments with respect to Notes, the Holders of which have given wire transfer instructions to the Issuers and the Guarantors, will be required to be made by wire transfer of immediately available funds to the accounts specified by such Holders. Liquidated Damages shall be paid on or before the semi-annual interest payment date provided in the Indenture and on each payment date provided in the Indenture including, without limitation, whether upon redemption, maturity (by acceleration or otherwise) or purchase upon a Change of Control. Each obligation to pay Liquidated Damages shall be deemed to commence accruing on the date of the applicable Registration Default and to cease accruing when all Registration Defaults have been cured. In no event shall the Issuer pay Liquidated Damages in excess of the applicable maximum amount set forth above, regardless of whether one or multiple Registration Defaults exist. (c) The parties hereto agree that the Liquidated Damages provided for in this Section 4 constitute a reasonable estimate of the damages that will be suffered by Holders by reason of the failure to file the Exchange Offer Registration Statement or the Shelf Registration Statement, the failure of the Exchange Offer Registration Statement or the Shelf Registration Statement to be declared effective, the failure to consummate the Exchange Offer or the failure of the Shelf Registration Statement to remain effective, as the case may be, in accordance with this Agreement. (d) The Issuer hereby designates, with respect to each Gem Note (as defined in the Indenture), all Liquidated Damages, if any, payable hereunder as "Senior Indebtedness," as such term is defined in such Gem Note. 5. Registration Procedures In connection with the registration of any Exchange Notes or Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the Issuer and the Guarantors shall effect such registration to permit the exchange of such Exchange Notes for Initial Notes or the sale of such Transfer Restricted Securities (as applicable), in accordance with the intended method or methods of exchange or disposition thereof, and pursuant thereto the Issuer and the Guarantors shall: (a) prepare and file with the SEC a Registration Statement or Registration Statements as prescribed by Section 2 or Section 3 hereof, and use their best efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuer and the Guarantors shall furnish to and afford the Holders of the Transfer Restricted Securities and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto), proposed to be filed (at least 5 Business Days prior to such filing, or such later date as is reasonable under the circumstances). The Issuer and the Guarantors shall not file any Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders, pursuant to this Agreement, must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities covered by such Registration Statement, or such Participating Broker-Dealer, as the case may be, their counsel, or the managing underwriters, if any, shall reasonably object on a timely basis (except that documents filed as exhibits that are incorporated by reference or deemed to be incorporated by reference shall not be subject to such objections); (b) prepare and file with the SEC such amendments and post- effective amendments to each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force), under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder with respect to the disposition of all securities covered by such Registration Statement, as so amended, or in such Prospectus, as so supplemented, and with respect to the subsequent resale of any Initial Notes being sold by a Participating Broker-Dealer covered by any such Prospectus; the Issuer and the Guarantors shall be deemed not to have used their best efforts to keep a Registration Statement effective during the Applicable Period or the Effectiveness Period or otherwise when required to use their best efforts under Sections 2, 3 and 5 hereof if any of the Issuer or any of the Guarantors voluntarily takes any action that would result in selling Holders of the Transfer Restricted Securities covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Transfer Restricted Securities or such Exchange Notes during that period, unless (i) such action is required by applicable law, or (ii) such action is taken by it in good faith and for valid business reasons (not including avoidance of its obligations hereunder), including the acquisition or divestiture of assets or the preservation of the confidentiality of information the disclosure of which may have a material adverse effect on the assets, business, financial condition or prospects of the Issuer, the Guarantors and any other direct or indirect subsidiary of the Issuer, taken as a whole; (c) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, notify the selling Holders of Transfer Restricted Securities, or each known Participating Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, promptly and confirm such notice in writing, (i) when a Prospectus, any prospectus supplement or post- effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post- effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Transfer Restricted Securities the representations and warranties of the Issuer and the Guarantors contained in any agreement (including any underwriting agreement) contemplated by Section 5(l) hereof cease to be true and correct in any material respect, (iv) of the receipt by the Issuer or the Guarantors of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Transfer Restricted Securities or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose, (v) of the happening of any event or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the reasonable determination of the Issuer or any Guarantor that a post-effective amendment to a Registration Statement would be appropriate; (d) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification), of any of the Transfer Restricted Securities or the Exchange Notes (as applicable), to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use their best efforts to obtain the withdrawal of any such order at the earliest possible moment; (e) if a Shelf Registration Statement is filed pursuant to Section 3 hereof and if requested by the managing underwriters, if any, or the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities being sold in connection with an underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information relating to underwriters, if any, any Holder of Transfer Restricted Securities or the plan of distribution of the Transfer Restricted Securities as the managing underwriter, if any, or such Holders may reasonably request to be included therein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after any of the Issuer and the Guarantors has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment pursuant to clause (i), and (iii) supplement or make amendments to such Registration Statement with such information as is required in connection with any request made pursuant to clause (i); (f) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, furnish to each selling Holder of Transfer Restricted Securities and to each such Participating Broker-Dealer who so requests and to counsel and each managing underwriter, if any, without charge, one conformed copy of the Registration Statement or Registration Statements and each post- effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits; (g) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each selling Holder of Transfer Restricted Securities, or each such Participating Broker- Dealer, as the case may be, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary Prospectus), and each amendment or supplement thereto and any documents incorporated by reference therein, as such Persons may reasonably request; and, subject to the last paragraph of this Section 5 hereof, the Issuer and the Guarantors hereby consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Transfer Restricted Securities or each such Participating Broker-Dealer, as the case may be, and their underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Transfer Restricted Securities covered by or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to such Prospectus and any amendment or supplement thereto; (h) prior to any public offering of Transfer Restricted Securities or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any Participating Broker- Dealer who seeks to sell Exchange Notes during the Applicable Period, to use their reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Transfer Restricted Securities or each such Participating Broker-Dealer, as the case may be, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification), of such Transfer Restricted Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as any selling Holder, Participating Broker-Dealer, or the managing underwriters reasonably request in writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the Transfer Restricted Securities covered by the applicable Registration Statement; provided that none of the Issuer or the Guarantors shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject it to taxation in any such jurisdiction where it is not so subject; (i) if a Shelf Registration Statement is filed pursuant to Section 3 hereof, cooperate with the selling Holders of Transfer Restricted Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold, which certificates shall not bear any restrictive legends with respect to transfer and shall be in a form eligible for deposit with The Depository Trust Company, ("DTC"), and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of the Transfer Restricted Securities; (j) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at the expense of the Issuer and the Guarantors, a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Transfer Restricted Securities being sold thereunder or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by a Participating Broker- Dealer, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that: (A) the Issuer and the Guarantors may delay such preparation and filing of such supplement or post- effective amendment pursuant to this Section 5(j) if (i) such action is required by applicable law, or (ii) such action is taken by them in good faith and for valid business reasons (not including avoidance of their obligations hereunder), including the acquisition or divestiture of assets or the preservation of the confidentiality of information the disclosure of which may have a material adverse effect on the assets, business, financial condition or prospects of the Issuer, the Guarantors and any other direct or indirect subsidiaries of the Issuer, taken as a whole (in any such case, an "Amendment Delay"); (B) the Issuer and the Guarantors may effect, in the aggregate, no more than one Amendment Delay during the Applicable Period and such Amendment Delay shall be for no longer than 45 Business Days; (C) the Issuer and the Guarantors may effect, in the aggregate, no more than two Amendment Delays during the Effectiveness Period, provided that no more than one Amendment Delay shall be effected during any twelve- month period, and each such Amendment Delay shall be for no longer than 45 Business Days; and (D) to the extent that the Issuer and the Guarantors effect one or more Amendment Delays, the duration of the Effectiveness Period (if such duration is determined pursuant to clause (i) of the definition thereof) or the maximum duration of the Applicable Period, as the case may be, shall be extended for the aggregate amount of time that any such Amendment Delays were in effect; (k) prior to the effective date of the first Registration Statement relating to the Transfer Restricted Securities, (i) provide the Trustee with certificates for the Transfer Restricted Securities in a form eligible for deposit with DTC and (ii) use their best efforts to provide a CUSIP number for the Transfer Restricted Securities; (1) in connection with an underwritten offering of Transfer Restricted Securities pursuant to a Shelf Registration Statement, enter into an underwriting agreement as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Transfer Restricted Securities, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Issuer and the Guarantors, the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain opinions of counsel to the Issuer and the Guarantors and updates thereof in form and substance reasonably satisfactory to the managing underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the Independent certified public accountants of the Issuer and the Guarantors (and, if necessary, any other independent certified public accountants with respect to any business for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as are reasonably requested by underwriters as permitted by Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of outstanding Transfer Restricted Securities covered by such Registration Statement and the managing underwriters or agents), with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder; (m) if (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make available for inspection by any selling Holder of such Transfer Restricted Securities being sold, or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Transfer Restricted Securities, if any, and any attorney, accountant or other agent retained by any such selling Holder or each such Participating Broker-Dealer, as the case may be, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Issuer and the Guarantors (collectively, the "Records"), solely as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Issuer and the Guarantors and any of their respective subsidiaries to supply all information in each case reasonably requested by any such Inspector in connection with such Registration Statement, subject to such reasonable confidentiality requirements as the Issuer, the Guarantors or any of their respective subsidiaries may impose with respect thereto; (n) provide an indenture trustee for the Transfer Restricted Securities or the Exchange Notes, as the case may be, and cause the Indenture to be qualified under the TIA not later than the effective date of the Exchange Offer or the first Registration Statement relating to the Transfer Restricted Securities; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Transfer Restricted Securities, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use their best efforts to cause such trustee to execute, all customary documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner; (o) comply with all applicable rules and regulations of the SEC and, as soon as reasonably practicable, make generally available to the holders of Exchange Notes and the Holders, if any, consolidated earning statements of the Issuer that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (p) If an Exchange Offer is to be consummated, upon delivery of the Transfer Restricted Securities by Holders to the Issuer or the Guarantors (or to such other Person as directed by the Issuer and the Guarantors), in exchange for the Exchange Notes, the Issuer or the Guarantors shall mark, or cause to be marked, on such Transfer Restricted Securities that such Transfer Restricted Securities are being cancelled in exchange for the Exchange Notes; in no event shall such Transfer Restricted Securities be marked as paid or otherwise satisfied. (q) reasonably cooperate with each seller of Transfer Restricted Securities covered by any Registration Statement and each underwriter, if any, participating in the disposition of such Transfer Restricted Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"); (r) use their best efforts to take all other steps necessary to effect the registration of the Transfer Restricted Securities or the Exchange Notes covered by a Registration Statement contemplated hereby; and (s) use their best efforts to cause the Transfer Restricted Securities or the Exchange Notes, as applicable, covered by an effective registration statement required by Section 2 or Section 3 hereof to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Transfer Restricted Securities relating to such registration statement or the managing underwriters in connection therewith, if any. The Issuer and the Guarantors may require each seller of Transfer Restricted Securities or Participating Broker-Dealer as to which any registration is being effected to furnish to the Issuer and the Guarantors such information regarding such seller or Participating Broker-Dealer and the distribution of such Transfer Restricted Securities or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, as required to be included in a Registration Statement prepared in accordance with the Securities Act or as the Issuer and the Guarantors may, from time to time, reasonably request. The Issuer and the Guarantors may exclude from such registration the Transfer Restricted Securities or Exchange Notes of any seller or Participating Broker-Dealer, as the case may be, who fails to furnish such information within a reasonable time after receiving such request. Each Holder of Transfer Restricted Securities and each Participating Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, that, upon receipt of' any notice from the Issuer of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder shall forthwith discontinue disposition of such Transfer Restricted Securities covered by such Registration Statement or Prospectus or such Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(j) hereof, or until it is advised in writing by the Issuer that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. 6. Registration Expenses (a) All fees and expenses incident to the performance of or compliance with this Agreement by the Issuer and the Guarantors shall be borne by the Issuer and the Guarantors, whether or not the Exchange Offer or a Shelf Registration Statement is filed or becomes effective, including, without limitation, (i) all registration and filing fees (including, without limitation, (a) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (b) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Transfer Restricted Securities or Exchange Notes (x) where the Holders of Transfer Restricted Securities are located, in the case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the case of Transfer Restricted Securities or Exchange Notes to be sold by a Participating Broker- Dealer during the Applicable Period)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Transfer Restricted Securities or Exchange Notes in a form eligible for deposit with DTC and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any, or, in respect of Transfer Restricted Securities or Exchange Notes to be sold by any Participating Broker-Dealer during the Applicable Period, by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in any Registration Statement or of such Exchange Notes, as the case may be), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Issuer and the Guarantors, (v) fees and disbursements of all independent certified public accountants referred to in Section 5(l)(iii) hereof (including, without limitation, the expenses of any special audit and "cold comfort" letters required by or incident to such performance), (vi) rating agency fees, (vii) Securities Act liability insurance, if the Issuer or any of the Guarantors desires such insurance, (viii) fees and expenses of all other Persons retained by the Issuer and the Guarantors, (ix) internal expenses of the Issuer and the Guarantors (including, without limitation, all salaries and expenses of officers and employees of the Issuer and the Guarantors performing legal or accounting duties), (x) the expense of any annual audit and (xi) the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange. Nothing contained in this Section 6 shall create an obligation on the part of the Issuer or any Guarantor to pay or reimburse any Holder for any underwriting commission or discount or accountable or non-accountable expense reimbursement attributable to any such Holder's Transfer Restricted Securities included in an underwritten offering pursuant to a Registration Statement filed in accordance with the terms of this Agreement, or to guarantee such Holder any profit or proceeds from the sale of such Notes. (b) In connection with any Shelf Registration Statement hereunder, the Issuer and the Guarantors shall reimburse the Holders of the Transfer Restricted Securities being registered in such registration for the reasonable fees and disbursements of not more than one counsel (in addition to appropriate local counsel), chosen by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities to be included in such Registration Statement. 7. Indemnification The Issuer and the Guarantors agree to indemnify and hold harmless (i) each Initial Purchaser or each Holder of Transfer Restricted Securities, each initial Holder of Exchange Notes and each Participating Broker-Dealer, (ii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), any such Person (any of the persons referred to in this clause (ii) being hereinafter referred to as a "controlling person"), and (iii) the respective officers, directors, partners, employees, representatives and agents of any of such Person or any controlling person (any person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an "Purchaser Indemnitee"), to the fullest extent lawful, from and against any and all losses, claims, damages, judgments, actions, out-of-pocket expenses, and other liabilities (the "Liabilities"), including without limitation and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any Purchaser Indemnitee, joint or several, directly or indirectly related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (as amended or supplemented if the Issuer and the Guarantors shall have furnished to such Purchaser Indemnitee any amendments or supplements thereto), or any preliminary prospectus, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as such Liabilities arise out of or are based upon (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Purchaser Indemnitee furnished to the Issuer and the Guarantors or any underwriter in writing by such Purchaser Indemnitee expressly for use therein, or (h) any untrue statement contained in or omission from a preliminary prospectus if a copy of the Prospectus (as then amended or supplemented, if the Issuer and the Guarantors shall have furnished to or on behalf of the Holder participating in the distribution relating to the relevant Registration Statement any amendments or supplements thereto) was not sent or given by or on behalf of such Holder to the person asserting any such Liabilities who purchased Initial Notes, if such Prospectus (or Prospectus as amended or supplemented) is required by law to be sent or given at or prior to the written confirmation of the sale of such Initial Notes to such person and the untrue statement contained in or omission from such preliminary prospectus was completely corrected in the Prospectus (or the Prospectus as amended or supplemented). The Issuer and the Guarantors shall notify the Holders promptly of the institution, threat or assertion of any claim, proceeding (including any governmental investigation), or litigation of which it shall have become aware in connection with the matters addressed by this Agreement which involves the Issuer, the Guarantors or an Purchaser Indemnitee. In connection with any Registration Statement in which a Holder of Transfer Restricted Securities or a Participating Broker-Dealer is participating, such Holder of Transfer Restricted Securities or Participating Broker-Dealer agrees, severally and not jointly, to indemnify and hold harmless the Issuer, the Guarantors, each person who controls the Issuer or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and the respective partners, directors, officers, members, representatives, employees and agents of such person or controlling person to the same extent as the foregoing indemnity from the Issuer and the Guarantors to each Purchaser Indemnitee, but only with reference to information relating to such Purchaser Indemnitee furnished to the Issuer or any Guarantor in writing by such Purchaser Indemnitee expressly for use in any Registration Statement or Prospectus, any amendment or supplement thereto, or any preliminary Prospectus. The liability of any Purchaser Indemnitee pursuant to this paragraph shall in no event exceed the net proceeds received by such Purchaser Indemnitee from sales of Transfer Restricted Securities giving rise to such obligations. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "Indemnified Party"), shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party"), in writing of the commencement thereof (but the failure to so notify an Indemnifying Party shall not relieve it from any liability which it may have under this Section 7), and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may reasonably designate in such proceeding and shall pay the reasonable fees and expenses actually incurred by such counsel related to such proceeding. Notwithstanding the foregoing, in any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the contrary, (h) the Indemnifying Party failed within a reasonable time after notice of commencement of the action to assume the defense and employ counsel reasonably satisfactory to the Indemnified Party or (iii) the named parties to any such action (including any impleaded parties), include both such Indemnified Party and the Indemnifying Party, or any affiliate of the Indemnifying Party, and such Indemnified Party shall have been reasonably advised by counsel that, either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party or such affiliate of the Indemnifying Party or (y) a conflict may exist between such Indemnified Party and the Indemnifying Party or such affiliate of the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel), for all such indemnified parties, which firm shall be designated in writing by those indemnified parties who sold a majority in outstanding aggregate principal amount of Transfer Restricted Securities sold by all such indemnified parties and any such separate firm for the Issuer and the Guarantors, the directors, the officers and such control persons of the Issuer and the Guarantors as shall be designated in writing by the Issuer and the Guarantors. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding. If the indemnification provided for in the first and second paragraphs of this Section 7 is for any reason held to be unavailable to an Indemnified Party in respect of any Liabilities referred to therein (other than by reason of the exceptions provided therein) or is insufficient to hold harmless a party indemnified thereunder, then each Indemnifying Party under such paragraphs, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Liabilities (i) in such proportion as is appropriate to reflect the relative benefits of the Indemnified Party on the one hand and the Indemnifying Party(ies) on the other in connection with the statements or omissions that resulted in such Liabilities, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Indemnifying Party(ies) and the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the Issuer and the Guarantors on the one hand and any Purchaser Indemnitees on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer and the Guarantors or by such Purchaser Indemnitees and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if such indemnified parties were treated as one entity for such purpose), or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of any Liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses actually incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall a Purchaser Indemnitee be required to contribute any amount in excess of the amount by which proceeds received by such Purchaser Indemnitee from sales of Transfer Restricted Securities or Exchange Notes exceeds the amount of any damages that such Purchaser Indemnitee has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this Section 7, each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) an Initial Purchaser, a Holder of Transfer Restricted Securities, an initial Holder of Exchange Notes or a Participating Broker-Dealer shall have the same rights to contribution as such Initial Purchaser, such Holder of Transfer Restricted Securities, such initial Holder of Exchange Notes or such Participating Broker-Dealer, as the case may be, and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) the Issuer, any Guarantor, and each officer, director, partner, employee, representative, agent or manager of each of the Issuer and the Guarantors shall have the same rights to contribution as the Issuer and the Guarantors. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 7 or otherwise. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act), shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution agreements contained in this Section 7 will be in addition to any liability which the indemnifying parties may otherwise have to the indemnified parties referred to above. The Purchaser Indemnitee's obligations to contribute pursuant to this Section 7 are several in proportion to the respective principal amount of Initial Notes sold by each of the Purchaser Indemnitees hereunder and not joint. 8. Rules 144 and 144A Each of the Issuer and the Guarantors covenants that it will file the reports, if any, required to be filed by it pursuant to the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner and, if at any time the Issuer or any Guarantor is not required to file such reports, it will, upon the request of any Holder of Transfer Restricted Securities, make available information with respect to it required by Rule 144 and Rule 144A under the Securities Act in order to permit sales pursuant to Rule 144 and Rule 144A. The Issuer and the Guarantors further covenant that they will take such further action as any Holder of Transfer Restricted Securities may reasonably request, all to the extent required from time to time to enable such Holder to sell Transfer Restricted Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 and Rule 144A or (b) any similar rule or regulation hereafter adopted by the SEC. The Issuer agrees to cause each Guarantor to comply with its obligations, if any, hereunder. 9. Underwritten Registrations (a) If any of the Transfer Restricted Securities covered by any Shelf Registration Statement are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities included in such offering and shall be reasonably acceptable to the Issuer and the Guarantors. No Holder of Transfer Restricted Securities may participate in any underwritten registration hereunder, unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. (b) Each Holder of Transfer Restricted Securities agrees, if requested (pursuant to a timely written notice), by the managing underwriters in an underwritten offering or by a placement agent in a private offering of the Issuer's debt securities, not to effect any private sale or distribution (including a sale pursuant to Rule 144(k) or Rule 144A under the Securities Act, but excluding non-public sales to any of its affiliates, officers, directors, employees and controlling persons) of any of the Initial Notes except pursuant to an Exchange Offer, other than in compliance with applicable securities laws and in no event during the period beginning 10 days prior to, and ending 90 days after, the closing date of the underwritten offering. The foregoing provisions shall not apply to any Holder of Transfer Restricted Securities if such Holder is prevented by applicable statute or regulation from entering into any such agreement. 10. Miscellaneous (a) Remedies. In the event of a breach by the Issuer and the Guarantors of any of their obligations under this Agreement, each Holder of Transfer Restricted Securities and each Participating Broker-Dealer holding Exchange Notes, in addition to being entitled to exercise all rights provided herein, in the Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement, or granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. Subject to Section 4, the Issuer and the Guarantors agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by any of them of any of the provisions of this Agreement and hereby further agree that, in the event of any action for specific performance in respect of such breach, they shall waive the defense that a remedy at law would be adequate. (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Issuer and the Guarantors have obtained the written consent of holders of at least a majority of the then outstanding aggregate principal amount of Transfer Restricted Securities and Exchange Notes held by Participating Broker-Dealers taken as one class. Notwithstanding the foregoing, a waiver or consent to or departure from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders and Participating Broker-Dealers holding Exchange Notes whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders and Participating Broker- Dealers holding Exchange Notes may be given by holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities and Exchange Notes held by Participating Broker-Dealers being sold by such Holders and Participating Broker-Dealers pursuant to such Registration Statement; provided that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. (c) Notices. All notices and other communications (including, without limitation, any notices or other communications to the Trustee), provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day air courier or telecopier: (i) if to a Holder of Transfer Restricted Securities, at the most current address given by the Trustee to the Issuer; and (ii) if to the Issuer or any Guarantor, c/o Ameristar Casinos, Inc., 3773 Howard Hughes Parkway, Suite 490 South, Las Vegas, Nevada 89109, Attention: Thomas M. Steinbauer, Senior Vice President and Chief Financial Officer, and Brian E. Katz, Senior Vice President, telecopier: 702-369-8860. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; one Business Day after being timely delivered to a nationally recognized next-day air courier, if made by next-day air courier; and when receipt is acknowledged by the addressee, if telecopied on a Business Day on such Business Day, if not on a Business Day, on the first Business Day thereafter. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee under the Indenture at the address specified in such Indenture. (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, including, without limitation and without the need for an express assignment or assumption, subsequent Holders of Transfer Restricted Securities. The Issuer and the Guarantors agree that the Holders of Transfer Restricted Securities and Participating Broker-Dealers holding Exchange Notes shall be third party beneficiaries to the agreements made hereunder by the Initial Purchasers and the Issuer and the Guarantors, and each Holder and Participating Broker-Dealer shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder; provided, however, that such Holder or Participating Broker-Dealer fulfills all of its obligations hereunder. (e) Counterparts. This Agreement may be executed in any number of counterparts and by the 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. (f) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. (h) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties hereto that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. (i) Entire Agreement. This Agreement, together with the Purchase Agreement, is intended by the parties hereto as a final expression of their agreement, and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. (j) Transfer Restricted Securities Held by the Issuer or its Affiliates. Whenever the consent or approval of Holders of a specified percentage of Transfer Restricted Securities is required hereunder, Transfer Restricted Securities held by the Issuer or its affiliates (as such term is defined in Rule 405 under the Securities Act), shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. (k) Survival. This Agreement is intended to survive the consummation of the transactions contemplated by the Purchase Agreement. The indemnification and contribution obligations under Section 7 of this Agreement shall survive the termination of the Issuer's obligations under Sections 2 and 3 of this Agreement. (l) Liability of ACCBI. Notwithstanding any other provision herein to the contrary, ACCBI shall have no obligation or liability hereunder prior to the time, if at all, that this Agreement shall have been approved by the Iowa Racing and Gaming Commission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ISSUER AMERISTAR CASINOS, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Senior Vice President GUARANTORS AMERISTAR CASINO COUNCIL BLUFFS, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President A.C. FOOD SERVICES, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AC HOTEL CORP. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AMERISTAR CASINO LAS VEGAS, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President AMERISTAR CASINO VICKSBURG, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President CACTUS PETE'S, INC. By: /s/ Thomas M. Steinbauer Name: Thomas M. Steinbauer Title: Vice President INITIAL PURCHASERS BEAR, STEARNS & CO. INC. By: /s/ J. Andrew Bugas Name: J. Andrew Bugas Title:Senior Managing Director BT SECURITIES CORPORATION By: /s/ Michael Apfel Name: Michael Apfel Title: Vice President FIRST CHICAGO CAPITAL MARKETS, INC. By: /s/ C. Victor Manny Name: C. Victor Manny Title: Managing Director EX-20 5 FOR IMMEDIATE RELEASE: CONTACT: TOM STEINBAUER, SENIOR VICE PRESIDENT OF FINANCE -- (702) 567-7000 DATE: JULY 24, 1997 AMERISTAR CASINOS COMPLETES NEW $125 MILLION BANK CREDIT FACILITY AND SALE OF $100 MILLION SENIOR SUBORDINATED NOTES DUE 2004 LAS VEGAS -- Ameristar Casinos, Inc. announced today the July 15th completion of the refinancing of its long-term credit facilities through a new $125 million revolving bank credit facility with a syndicate of banks led by Wells Fargo Bank, N. A. and the sale of $100 million of 10 1/2% Senior Subordinated Notes due 2004 in a private placement to qualified institutional buyers. The initial bank draw and the net proceeds from the sale of the Senior Subordinated Notes are being used to reduce existing bank debt and other long-term debt. Future borrowings under the new bank credit facility will be used to fund a substantial portion of the costs of completing the Company's latest casino-hotel project, The Reserve Hotel & Casino in the Henderson-Green Valley suburb of Las Vegas. The Senior Subordinated Notes have not been registered under the Securities Act of 1933, are subject to restrictions on transfer and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. The initial purchasers of the Senior Subordinated Notes are relying on the exemption under Rule 144A in connection with resales of the Notes. Ameristar Casinos, Inc., a publicly traded company (Nasdaq- NMS ticker symbol: ASCA) with a strong background in the gaming and hospitality industry dating back to 1954, owns and operates Cactus Petes Resort Casino and The Horseshu Hotel & Casino in Jackpot, Nev., Ameristar Casino Vicksburg in Vicksburg, Miss., and Ameristar Casino Hotel Council Bluffs in Council Bluffs, Iowa, across the Missouri River from Omaha, Neb. Ameristar also owns The Reserve Hotel & Casino, under development in Henderson, Nev. in metropolitan Las Vegas. -- AMERISTAR CASINOS, INC. -- EX-99 6 EXHIBIT 99.1 SUPPLEMENTAL AGREEEMENT OF AMERISTAR CASINOS, INC. Ameristar Casinos, Inc. ("ACI" hereby agrees to furnish supplementally to the Securities and Exchange Commission a copy of any of the exhibits and schedules to Exhibit 4.1 to ACI's Current Report on Form 8-K dated July 15, 1997, relating to the refinancing of ACI's long-term debt. Such Exhibit 4.1 includes a list setting forth a description of the omitted exhibits and schedules. -----END PRIVACY-ENHANCED MESSAGE-----