REVOLVING CREDIT AND TERM LOAN AGREEMENT among JAMUL INDIAN VILLAGE DEVELOPMENT CORPORATION, as the Borrower, JAMUL INDIAN VILLAGE OF CALIFORNIA, as the Tribe, and THE LENDERS PARTY HERETO, as Lenders, CITIZENS BANK, N.A., as Swingline Lender and as...

Exhibit 10.1

Execution Version

$458,000,000

REVOLVING CREDIT AND TERM LOAN AGREEMENT

among

JAMUL INDIAN VILLAGE DEVELOPMENT CORPORATION,
as the Borrower,

JAMUL INDIAN VILLAGE OF CALIFORNIA,
as the Tribe,

and

THE LENDERS PARTY HERETO,
as Lenders,

CITIZENS BANK, N.A.,
as Swingline Lender and as Issuing Bank,

and

CITIZENS BANK, N.A.,
as Administrative Agent

dated as of October 20, 2016

*************************************************

CITIZENS BANK, N.A.,
as Joint Lead Arranger and Joint Bookrunner

FIFTH THIRD BANK,
as Joint Lead Arranger, Joint Bookrunner and Co-Syndication Agent

▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
as Joint Lead Arranger, Joint Bookrunner and Co-Syndication Agent

CONTENTS

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Appendices, Exhibits, Schedules and Annexes

This REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of October 20, 2016 (this “Agreement”), is entered into among the JAMUL INDIAN VILLAGE DEVELOPMENT CORPORATION (the “Borrower”), a body corporate and politic existing as an instrumentality of the Tribe (as defined below) under the laws of the Tribe, the JAMUL INDIAN VILLAGE OF CALIFORNIA, a federally recognized Indian tribe (the “Tribe”), the banks, financial institutions and other entities from time to time party to this Agreement as lenders (each, individually, a “Lender” and collectively, the “Lenders”), CITIZENS BANK, N.A., as swingline lender (in such capacity, the “Swingline Lender”), as the Issuing Bank (as defined below) and as administrative agent (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”).

RECITALS

A.                                    The Borrower is developing a casino (the “Project”) consisting of gaming machines, table games, food and beverage venues, parking structures and other amenities on land held in trust for the Tribe, near Jamul, California.

B.                                    The Borrower has engaged one or more Regulated Banks to act as Joint Lead Arrangers, Joint Bookrunners or Co-Syndication Agents to arrange the financing evidenced by the Facilities; and the Administrative Agent and the Collateral Agent are Regulated Banks.

C.                                    Prior to the Closing Date, the Developer made PNG Advances to Tribe in the aggregate amount (including accrued interest thereon) of $341,864,386.85, which PNG Advances were assigned to the Borrower pursuant to the Borrower Assumption Agreement (as defined below).  On the Closing Date, $371,864,386.85 of Term Loan proceeds will be used to repay such PNG Advances and Golden Indebtedness.

D.                                    The Borrower desires that the Lenders extend the senior secured credit facilities contemplated hereby, the proceeds of which will be used, among other things, to pay project costs in connection with the development, construction and operation of the Project and for working capital, capital expenditure and general corporate purposes of the Loan Parties, all as further specified herein.

AGREEMENT

In consideration of the agreements set forth herein and in the other Loan Documents and in reliance upon the representations and warranties set forth herein and therein, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

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

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“ABR”, when used in reference to any Loan, refers to whether such Loan is bearing interest at a rate determined by reference to the Alternate Base Rate.

“Account Collateral” means, collectively, all of the Borrower’s Accounts and all amounts on deposit therein, “financial assets” and “investment property” (each as defined in the UCC) credited thereto or held therein or related thereto, any interest earned thereon, and any investments of such amounts made pursuant to the Control Agreements and any proceeds of the foregoing.  When the term “Collateral” is used in conjunction with a specified Account, said Account Collateral means the specified account and all amounts on deposit therein, “financial assets” and “investment property” (each as defined in the UCC) credited thereto or held therein or related thereto, any interest earned thereon, and any investments of such amounts made pursuant to the applicable Control Agreement, and any proceeds of the foregoing, except to the extent such proceeds are deposited into another Account pursuant to the terms of the Disbursement Agreement or the applicable Control Agreement.

“Accounting Changes” shall have the meaning given in Section 9.23.

“Accounts” shall have the meaning given to the term “Investment Accounts” in the Security Agreement.

“Action” shall have the meaning given in Section 9.11(a).

“Additional Rent” shall mean amounts payable by the Borrower under the Ground Lease for costs of developing, constructing, opening, operating, maintaining, or improving the Gaming Site, including costs related to insurance, taxes and other items customarily considered to be additional rent under a triple net lease.

“Additional Term C Loan Date” shall have the meaning given in Section 2.26(b).

“Additional Term C Loans” shall have the meaning given in Section 2.26(a).

“Additional Term Loans” shall mean the “Additional Term Loans” under and as defined in the Subordinated Loan Credit Agreement.

“Adjusted LIBO Rate” shall mean, with respect to any LIBOR Loan (or any determination made under clause (c) of the definition of Alternate Base Rate) for any Interest Period, an interest rate per annum equal to (a) with respect to any Revolving Loan, the LIBO Rate in effect for such Interest Period and (b) with respect to any Term Loan, the greater of (i) the LIBO Rate in effect for such Interest Period and (ii) 1.00%.

“Administrative Agent” shall have the meaning given in the preamble to this Agreement.

“Administrative Questionnaire” shall mean an Administrative Questionnaire substantially in the form of Exhibit L or such other form as shall be approved by the Administrative Agent.

“Affected Lender” shall have the meaning given in Section 2.17(b).

“Affected Loan” shall have the meaning given in Section 2.17(b).

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“Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided, however, that, other than when used with respect to a Lender, an Approved Fund, an Agent or a Joint Lead Arranger, the term “Affiliate” shall also include any Person that directly or indirectly owns 10% or more of any class of Capital Stock of the Person specified.  For the avoidance of doubt, (a) each Governmental Component of the Tribe shall be deemed to be an Affiliate of the Tribe and each other Governmental Component of the Tribe and (b) none of PNG, the Manager, the Developer or any of their respective Subsidiaries or affiliates shall be deemed to be an Affiliate of the Borrower or the Tribe or their respective Subsidiaries or Governmental Components.

“Affiliated Lender” shall mean PNG or any of its Subsidiaries.

“Agent Parties” shall have the meaning given in Section 9.01(c)(ii).

“Agents” shall mean the Administrative Agent, the Collateral Agent, the Disbursement Agent and the Co-Syndication Agents.

“Aggregate Amounts Due” shall have the meaning given in Section 2.16.

“Aggregate Exposure” shall mean, with respect to any Lender at any time, an amount equal to the sum of (a) the amount of such Lender’s Term B Loan Exposure, (b) the amount of such Lender’s Term C Loan Exposure, (c) the amount of such Lender’s Delayed Draw Term C Loan Exposure (exclusive of any portion thereof that has been terminated by funding or otherwise), (d) the amount of such Lender’s Incremental Term Loan Exposure, (e) the amount of such Lender’s Revolving Exposure and (f) the amount of such Lender’s Extended Term Loans.

“Agreement” shall have the meaning given in the preamble to this Agreement.

“All-In-Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, an Adjusted LIBO Rate or Alternate Base Rate floor or otherwise, in each case, incurred or payable by the Borrower generally to all lenders of such Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and provided, further, that “All-In-Yield” shall not include arrangement, structuring, commitment, underwriting or other similar fees (regardless of whether paid in whole or in part to any or all lenders) or other fees not paid generally to all lenders of such Indebtedness.

“Alternate Base Rate” shall mean, at any time, a rate per annum equal to the highest of (a) the Prime Rate, (b) the Federal Funds Effective Rate plus 0.50% and (c) except during any period of time during which a notice delivered to the Borrower under Section 2.17 shall remain in effect, Adjusted LIBO Rate for an Interest Period of one month plus 1.00%; provided that each change in the Alternate Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, Federal Funds Effective Rate or Adjusted LIBO Rate; provided, further, that the “Alternate Base Rate” (i) with respect to Term Loans, shall be no less

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than 2.00% per annum, and (ii) with respect to Revolving Loans and Swingline Loans, shall be no less than 1.00% per annum.

“Applicable Fee Rate” shall mean, at any time, in respect of the Revolving Commitments, 0.50% per annum.

“Applicable Margin” shall mean, (a) in the case of LIBOR Loans, a percentage per annum equal to (i) 9.83% with respect to Term B Loans, (ii) 8.50% with respect to Term C Loans and (iii) 9.50% with respect to Revolving Loans, and (b) in the case of ABR Loans, a percentage per annum equal to (i) 8.83% with respect to Term B Loans, (ii) 7.50% with respect to Term C Loans and (iii) 8.50% with respect to Revolving Loans and Swingline Loans.

“Applicable Premium” shall mean, with respect to any Term B Loan, on any date of determination prior to the twenty-one month anniversary of the Closing Date, the aggregate amount of interest which would have accrued on the principal amount of such Term B Loans being so prepaid (including as a result of acceleration of the maturity of the Term B Loans pursuant to Section 7.01) for the period from and including the date of such prepayment to and including the date that is the twenty-one month anniversary of the Closing Date, calculated using the Adjusted LIBO Rate for an Interest Period of three (3) months plus the Applicable Margin as of the date of such prepayment.

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

“Arbitration Ordinance” shall mean the Jamul Indian Village Arbitration Ordinance, Ordinance No. 2015-32, as adopted by the General Council on November 15, 2015.

“Asset Sale” shall mean the sale, lease, sale and leaseback, conveyance, transfer, issuance or other disposition (by way of merger, casualty, condemnation or otherwise) by the Borrower or any Subsidiary to any Person (other than (i) if by a Loan Party, to another Loan Party, (ii) if by any other Subsidiary, to a Loan Party or another Subsidiary or (iii) to a Person that becomes a Loan Party in connection with such transaction) of (a) any Capital Stock of any Subsidiary of the Borrower (other than directors’ qualifying shares) or (b) any other assets of the Borrower or any other Subsidiary, including Capital Stock of any Person that is not a Subsidiary of the Borrower (other than (i) inventory, obsolete, surplus, worn out assets or assets no longer useful in the business, scrap, Cash (including amounts paid out as patron winnings) and Cash Equivalents, in each case, disposed of in the ordinary course of business; (ii) the making of any Investment or Restricted Junior Payment not prohibited by this Agreement; (iii) the disposition of assets as a result of a Recovery Event (to the extent that any net proceeds thereof are characterized as Restoration Proceeds); (iv) a substantially contemporaneous exchange or trade-in of equipment or inventory by the Borrower or any other Subsidiary for other equipment or inventory so long as the Borrower or such other Subsidiary effecting such exchange or trade-in receives at least substantially equivalent value in exchange or as trade-in for the property so disposed of; (v) entry into operating leases or subleases in the ordinary course of business; (vi) inventory leased or licensed to another Person in the ordinary course of business; (vii) the incurrence of Permitted

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Liens; and (viii) any transaction or series of related transactions in which the assets sold, leased, conveyed, transferred or otherwise disposed of have a value of not in excess of $5,000,000).

“Assignee” shall have the meaning given in Section 9.04(c).

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any Person whose consent is required by Section 9.04(c)), and accepted by the Administrative Agent, substantially in the form of Exhibit F-1 (or, in the case of an assignment to an Affiliated Lender, Exhibit F-2), in each case, or such other form as shall be approved by the Administrative Agent and the Borrower (such approval not to be unreasonably withheld).  To the extent approved by the Administrative Agent, an Assignment and Acceptance may be electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent.

“Assignor” shall have the meaning given in Section 9.04(c).

“Authorized Officer” shall mean, (a) as applied to the Tribe, the chairperson of the Executive Committee or clerk of the Tribe or any other authorized representative of the Tribe, (b) as applied to the Borrower, the chairperson of the Board of Directors or any other authorized representative of the Borrower, (c) as applied to any other Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer or treasurer or any other authorized representative of such Person; provided that with respect to any such other authorized representative under clause (a), (b) or (c), the Administrative Agent receives (i) an incumbency certificate which identifies such individual and (ii) a copy of the resolution of the General Council, Board of Directors or other Person, as applicable, specifically identifying such authorized representative.

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy” as now and hereafter in effect, or any successor statute.

“Basic Rent” shall mean rent payable by the Borrower under the Ground Lease, other than Additional Rent.

“Benefit Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Tax Code, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were

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terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America (or any successor).

“Board of Directors” shall mean the Board of Directors of the Borrower referred to in the Corporation Ordinance.

“Borrower” shall have the meaning given in the preamble to this Agreement.

“Borrower Assumption Agreement” shall mean that certain Assignment and Assumption Agreement, effective as of August 15, 2015, by and between the Tribe and the Borrower.

“Borrower Funds Account” shall have the meaning given in the Disbursement Agreement.

“Borrower Materials” shall have the meaning given in Section 9.01(c)(i).

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

“Building Code” shall mean Resolution No. 2015-20, Resolution of the Jamul Indian Village, Building Codes, adopted by the General Council on May 11, 2015.

“Business Day” shall mean any day other than a Saturday, Sunday or day on which commercial banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a LIBOR Loan (including with respect to all notices and determinations in connection therewith and any payments of principal, interest or other amounts thereon), the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

“California State Courts” shall have the meaning given to such term in Section 9.12(a).

“Caltrans Agreement” shall mean the Caltrans Highway Improvement Agreement and Escrow Agreement, dated as of January 24, 2011, between the California Department of Transportation and the Tribe.

“Capital Lease Obligations” shall mean, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP (which capitalized amount, for the avoidance of doubt, shall be the present value of the rent payments pursuant to the capital lease discounted at the implicit interest rate; provided that, for the avoidance of doubt, any lease that is accounted for by any Person as an operating lease as of the Closing Date and any similar lease entered into by any

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Person thereafter shall be treated as an operating lease and not a capital lease, and the obligations thereunder shall not constitute Capital Lease Obligations).

“Capital Replacement Reserve” shall mean amounts held in the Capital Replacement Reserve Account by the Borrower as a reserve intended to fund Consolidated Capital Expenditures.

“Capital Replacement Reserve Account” shall mean a bank account at which the Borrower has deposited Capital Replacement Reserves.

“Capital Stock” shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all classes of membership interests in a limited liability company, any and all classes of partnership interests in a partnership, any and all equivalent ownership interests in a Person and any and all warrants, rights or options to purchase any of the foregoing.  For the avoidance of doubt, the Tribe’s ownership of the Borrower and the Guarantors shall be deemed to be Capital Stock, and convertible debt shall not be deemed to be Capital Stock.

“Carryover Amount” shall have the meaning given in Section 6.18(b).

“Cash” shall mean money, currency or a credit balance in any demand deposit account, in each case in Dollars.

“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Bank or Lenders, as collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect of Letter of Credit Obligations, Cash or deposit account balances or, if the Administrative Agent and the Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Issuing Bank.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” shall mean, for any Person: (a) marketable securities (i) issued by or directly and unconditionally guaranteed as to interest and principal by, the United States of America or (ii) issued by any agency of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America, in each case maturing within one year after the date of acquisition by such Person; (b) marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or public instrumentality thereof or the District of Columbia, in each case maturing within one year after the date of acquisition by such Person and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇’▇; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇’▇; (d) time deposits, certificates of deposit or bankers’ acceptances maturing within one year after acquisition and issued or accepted by a commercial bank or trust company that is (i) a Lender (or bank holding company of a Lender) or (ii) (A) organized under the laws of the United States of America or any state thereof or the District of Columbia or that is the principal

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banking Subsidiary of a bank holding company organized under the laws of the United States of America or any state thereof or the District of Columbia and (B) has combined capital and surplus of at least $250,000,000 (as of the date of acquisition); (e) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) or (b) above entered into with a bank meeting the qualifications described in clause (d) above (determined as of the date of acquisition); and (f) shares of any money market mutual fund that has substantially all of its assets invested continuously in the types of investments referred to above (determined as of the date of acquisition).

“Cash Management Account” shall have the meaning given in the Disbursement Agreement.

“Cash Management Agreement” shall mean any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

“CGCC” shall mean the California Gambling Control Commission.

“Change of Control” shall mean the occurrence of an event or series of events resulting in any of the following:

(a)                                 the Borrower ceasing to be a wholly-owned enterprise, corporation, unit, instrumentality, authority or subdivision of the Tribe, directly or indirectly;

(b)                                 the Borrower ceasing to have the exclusive legal right to operate the Project and all Class II Gaming and Class III Gaming of the Tribe (other than internet gaming with respect to which the customers or patrons are located outside of the Gaming Site); or

(c)                                  (x) the termination of the Management Agreement or (y) the manager of the day to day operations of the Project is no longer PNG or an entity Controlled by PNG; provided, however, that the foregoing shall not be deemed to be a “Change of Control” if (i) within ninety (90) days of the occurrence of the foregoing, the Borrower or the Tribe hires a Qualified Management Team for the management of the Gaming Business and (ii) within one hundred eighty (180) days of the hiring of such Qualified Management Team, the Borrower or the Tribe submits a Qualified Replacement Management Agreement to the NIGC for approval thereof; or

(d)                                 a “change of control” or any comparable term under, and as defined in, the Subordinated Loan Credit Agreement (if then in effect) or any other Indebtedness of the Borrower in excess of $35,000,000 shall have occurred.

“Change in Law” shall mean (a) the adoption or taking into effect of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and

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Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Charges” shall have the meaning given in Section 9.09.

“Class” shall mean (a) with respect to Lenders, each of the following classes of Lenders: (i) Lenders having Term B Loan Exposure, (ii) Lenders having Term C Loan Exposure, (iii) Lenders having Delayed Draw Term C Loan Commitments, (iv) Lenders having Incremental Term Loan Exposure of a particular Series, (v) Lenders having Revolving Exposure and (vi) Lenders having Extended Term Loans of a particular Series; (b) with respect to Loans, each of the following classes of Loans: (i) Term B Loans, (ii) Term C Loans, (iii) each Series of Incremental Term Loans, (iv) each Series of Extended Term Loans, (v) Revolving Loans and (vi) Swingline Loans; (c) with respect to Commitments, each of the following classes of Commitments: (i) Revolving Commitments, (ii) Term B Loan Commitments, (iii) Term C Loan Commitments, (iv) Delayed Draw Term C Loan Commitments and (v) each Series of Incremental Term Loan Commitments; and (d) with respect to Term C Loan Commitments, each of the following classes of Term C Loan Commitments: (i) Closing Date Term C Loan Commitments and (ii) Delayed Draw Term C Loan Commitments.

“Class II Gaming” shall mean class II gaming within the meaning of IGRA.

“Class III Gaming” shall mean class III gaming within the meaning of IGRA.

“Closing Certificate” shall mean a certificate substantially in the form of Exhibit H.

“Closing Date” shall mean the date of this Agreement.

“Closing Date Term C Loan Commitment” shall mean, with respect to any Lender, such Lender’s commitment to make Term C Loans under this Agreement on the Closing Date pursuant to Section 2.01(b), in the amount set forth on Annex II or in any Assignment and Acceptance pursuant to which such Lender assumed any Closing Date Term C Loan Commitments, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate principal amount of the Closing Date Term C Loan Commitments as of the Closing Date is $98,000,000.

“Closing Date Term C Loans” shall mean those Term C Loans funded to the Borrower on the Closing Date under the Closing Date Term C Loan Commitments.

“Co-Syndication Agent” shall mean each of Fifth Third Bank and ▇▇▇▇▇▇▇ Sachs Bank USA, in its capacity as co-syndication agent with respect to the Facilities and its permitted successors and assigns in such capacity.

“Collateral” shall mean all present and future Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created in favor of the Collateral Agent

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by any Security Document (it being understood that the Collateral shall not include any Excluded Assets).

“Collateral Account Control Agreement” shall mean the Collateral Account Control Agreement, substantially in the form of Exhibit C-3, dated as of the date hereof, among the Borrower, the Collateral Agent, the Disbursement Agent and Citizens Bank, N.A., as securities intermediary.

“Collateral Agent” shall mean Citizens Bank, N.A., in its capacity as collateral agent for the benefit of the Secured Parties, together with its permitted successors and assigns.

“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment, Swingline Loan Commitment, Term B Loan Commitment, Term C Loan Commitment and Incremental Term Loan Commitment of any Series, and “Commitments” shall mean such commitments of all Lenders in the aggregate.

“Compact” shall mean the Tribal-State Compact between the Tribe and the State, as executed on October 8, 1999 by the State and October 5, 1999 by the Tribe, considered to have been approved by the Secretary of the Interior of the United States pursuant to 25 U.S.C. § 2710(d)(8)(C), notice of which was published in the Federal Register on May 16, 2000, as the same may be amended or restated or replaced from time to time, including by that tribal-state compact between the State and the Tribe with an execution date of on August 8, 2016, but only if and when approval or deemed approval thereof on behalf of the Secretary of Interior is published in the Federal Register.

“Completion Guaranty” shall mean the completion guaranty agreement, substantially in the form of Exhibit P, dated as of the date hereof, made by PNG in favor of the Administrative Agent for the benefit of the Secured Parties.

“Compliance Certificate” shall mean a compliance certificate substantially in the form of (i) if delivered by the Borrower, Exhibit E-1 and (ii) if delivered by the Manager, any Affiliated Lender, any Term C Lender or Affiliate of the Manager, an Affiliated Lender or a Term C Lender, Exhibit E-2.

“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower, dated November 2015.

“Consent” shall have the meaning given in the Disbursement Agreement.

“Consented Courts” shall have the meaning given in Section 9.12(a).

“Consolidated Adjusted EBITDA” shall mean, for any period, Consolidated Net Income of the Borrower and its Subsidiaries for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii) Consolidated Income Tax Expense of or attributable to the Borrower and its Subsidiaries for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any non-Cash charges (excluding (x) any such non-Cash item to the extent it represents an accrual or reserve for potential Cash items in any future period

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which the Borrower elects not to add back in such period and (y) amortization of a prepaid Cash item that was paid in a prior period) for such period, (v) pre-opening expenses incurred during such period; provided that the amounts added back pursuant to this clause (v) for pre-opening expenses shall not exceed $1,000,000 in the aggregate during the term of this Agreement, (vi) any extraordinary, unusual or nonrecurring charges, losses or expenses incurred during such period (including any operating expenses attributable to the implementation of cost savings initiatives, severance and relocation costs); provided that (A) the amounts added back pursuant to this clause (vi) for litigation fees, costs, settlements, judgments and expenses shall not include any such items with respect to litigation relating to worker’s compensation, wrongful termination claims, personal injury claims or prize claims and with respect to any other litigation, shall not exceed $500,000 per Fiscal Year in the aggregate, (B) the amounts added back pursuant to this clause (vi) for costs, losses or settlements related to force majeure and casualty events shall be without duplication of any insurance proceeds received in connection therewith that are included in Consolidated Net Income and (C) the amounts added back pursuant to this clause (vi) other than for (1) litigation fees, costs, settlements, judgments and expenses, (2) costs, losses, settlements and other expenses related to force majeure and casualty events and (3) non-recurring severance costs for (x) the five (5) most senior level executives and (y) other employees terminated as part of a simultaneous layoff of employees outside of the ordinary course of business, shall not exceed $1,000,000 for any four Fiscal Quarter period, (vii) whether or not otherwise includable as separate items in the statement of such Consolidated Net Income for such period, losses for such period on sales of assets outside of the ordinary course of business, (viii) expenses relating to actual or contemplated asset sales, acquisitions, investments, incurrence and issuances of debt and issuances of equity, (ix) expenses relating to the accrual of obligations for casino reward programs, net of any Cash payments made in respect thereof, (x) the Management Fee for such period, (xi) all transaction fees, charges and other amounts related to the Transactions (including any financing fees, legal fees and expenses, due diligence fees or any other fees and expenses in connection therewith), (xii) the amount of any losses resulting from ▇▇▇▇-to-market accounting treatment under ASC 815 related to any derivative instruments, PNG Advances, Term Loans and Subordinated Loans and (xiii) any amounts, costs, expenses or charges funded from the Capital Replacement Reserve Account during such period to the extent such amounts would constitute Consolidated Capital Expenditures if paid directly by the Borrower or its Subsidiaries rather than with amounts deposited in the Capital Replacement Reserve Account (provided that, to the extent that all or any portion of the income of any Person is excluded from Consolidated Net Income pursuant to the definition thereof for all or any portion of such period, any amounts set forth in the preceding clauses (i) through (xiii) that are attributable to such Person shall not be included for purposes of this definition for such period or portion thereof), and minus (b) without duplication (i) to the extent included in determining such Consolidated Net Income, any interest income for such period (except to the extent deducted in determining Consolidated Interest Expense), (ii) all non-Cash items of income for such period (excluding any such non-Cash item to the extent it represents the reversal of an accrual or reserve for a potential Cash item in any prior period that was not previously added back to Consolidated Adjusted EBITDA pursuant to clause (a)(iv) above and any non-Cash items constituting an accrual), (iii) Cash payments in respect of non-Cash items added to Consolidated Net Income in a prior period representing an accrual or reserve for potential Cash items in a future period, to the extent so added pursuant to clause (a)(iv) above, (iv) to the extent included in Consolidated Net Income, all tax credits accrued during such period, all determined on a consolidated basis in

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accordance with GAAP, (v) to the extent not deducted in determining Consolidated Net Income, all Priority Payments for such period, (vi) the amount of any gains resulting from ▇▇▇▇-to-market accounting treatment under ASC 815 related to any derivative instruments, PNG Advances, Term Loans and Subordinated Loans and (vii) to the extent not deducted in determining Consolidated Net Income, all Services Payments made or reimbursed by the Borrower or its Subsidiaries during such period; provided that, for purposes of calculating Consolidated Adjusted EBITDA for any period, (x) the Consolidated Adjusted EBITDA of any Person or line of business sold or otherwise disposed of by the Borrower or any of its Subsidiaries during such period shall be excluded for such period (assuming the consummation of such sale or other disposition and the repayment or assumption by the buyer of any Indebtedness in connection therewith occurred as of the first day of such period), and (y) except with respect to the determination of Consolidated Adjusted EBITDA used in the calculation of Consolidated Excess Cash Flow, the Consolidated Adjusted EBITDA of any Person or line of business acquired by the Borrower or any of its Subsidiaries  during such period shall be included for such period (as if the consummation of such acquisition had and the repayment or assumption by the buyer of any Indebtedness in connection therewith occurred as of the first day of such period).

“Consolidated Capital Expenditures” shall mean, for any period, the aggregate of all expenditures of the Borrower and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the consolidated statement of cash flows of the Borrower and its Subsidiaries; provided that “Consolidated Capital Expenditures” shall exclude: (i) the amount of any Project Costs, (ii) amounts for replacements, substitutions, restorations, acquisitions or repairs of fixed assets, capital assets or equipment in each case to the extent made with insurance or condemnation proceeds resulting from a Recovery Event or with proceeds of an Asset Sale, (iii) the purchase price of property that is purchased substantially contemporaneously with the trade in of existing property or with insurance proceeds to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such property for the property being traded in at such time or the amount of such insurance proceeds, as the case may be, (iv) expenditures that are accounted for as capital expenditures by the Borrower or any Subsidiary and that actually are paid for, or reimbursed to the Borrower or any Subsidiary thereof in Cash or Cash Equivalents, by a Person other than the Borrower or any Subsidiary thereof, (v) the book value of any asset owned by the Borrower or any Subsidiary prior to or during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period, (vi) expenditures that constitute (x) acquisitions permitted under Section 6.06, including additions to plant, property or equipment acquired as part of a purchase of an ongoing business pursuant to such acquisition or (y) other Investments permitted under Section 6.06 constituting an acquisition of a Person, business unit or division or substantially all of a Person’s assets and (vii) amounts funded from the Capital Replacement Reserve Account.

“Consolidated Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such period net of interest income for such period, to the extent payable in Cash, excluding: (a) any amount not paid in Cash, (b) arrangement, commitment or upfront fees and similar financing fees and expenses, original issue discount and redemption or prepayment premiums payable during or with respect to such period, (c) any Cash costs associated with

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breakage or termination in respect of Hedging Agreements payable during such period and costs and fees associated with obtaining Hedging Agreements and fees payable thereunder and (d) fees and expenses associated with the consummation of the Transactions.

“Consolidated Excess Cash Flow” shall mean, for any period, an amount (if positive) equal to: (a) the sum, without duplication, of the amounts for such period of, (i) Consolidated Adjusted EBITDA and (ii) to the extent received in Cash, any extraordinary income or gains, minus (b) the sum, without duplication, of the amounts for such period of (i) scheduled repayments of Loans and mandatory prepayments of Loans under Section 2.13(a) to the extent the Asset Sale or Recovery Event related to such prepayment increased Consolidated Adjusted EBITDA, (ii) repayments of Indebtedness other than the Loans (excluding repayments made pursuant to Section 6.04 (d) or (h)), (iii) Consolidated Capital Expenditures and deposits in the Capital Replacement Reserve Account (net of any Cash proceeds of capital contributions, Asset Sales or any Recovery Event, in each case, used for such Consolidated Capital Expenditures or deposits in the Capital Replacement Reserve Account and that would not be included in Consolidated Adjusted EBITDA), (iv) Consolidated Cash Interest Expense, (v) the aggregate amount of Project Costs paid by the Loan Parties during such period (excluding any such expenditures paid from (1) amounts on deposit in the Credit Facilities Loan Proceeds Account, the Credit Facilities Interest Reserve Account, the Borrower Funds Account, the Contingency Reserve Account, the Construction Disbursement Account or the Cash Management Account, (2) the proceeds of Indebtedness incurred in connection with such expenditures, (3) the proceeds of capital equity contributions received directly or indirectly from the Tribe or an Affiliate thereof and (4) the Capital Replacement Reserve), (vi) to the extent paid in Cash, any extraordinary, unusual or nonrecurring charges, losses or expenses added to Consolidated Adjusted EBITDA in accordance with clause (a)(vi) of the definition thereof, (vii) amounts paid to fund the Capital Replacement Reserve as required by the Management Agreement, (viii) to the extent paid in Cash, expenses related to actual or contemplated assets sales, acquisitions, investments, incurrence and issuances of debt, and issuances of equity and added to Consolidated Adjusted EBITDA in accordance with clause (viii) of the definition thereof, (ix) to the extent paid in Cash, all transaction fees, charges and other amounts related to the Transactions and added to Consolidated Adjusted EBITDA in accordance with clause (xi) of the definition thereof, (x) the Management Fee to the extent paid in cash during such period and, to the extent not deducted in calculating Consolidated Net Income, amounts paid in cash under Section 6.04(j), (xi) Consolidated Income Tax Expense of or attributable to the Borrower or its Subsidiaries for such period and (xii) all other amounts added to Consolidated Net Income under the definition of “Consolidated Adjusted EBITDA”, to the extent payable in Cash.

“Consolidated Fixed Charge Coverage Ratio” shall mean, as of any date, the ratio of (a) (i) Consolidated Adjusted EBITDA minus (ii) the amount of all Maintenance Capital Expenditures, minus (iii) any federal, state, local and foreign income taxes, minus (iv) any dividends distributed, Indebtedness repaid or other payments made pursuant to Sections 6.04(b), (i) (to the extent not already deducted in arriving at Consolidated Adjusted EBITDA) and (j) (to the extent not deducted in the determination of Consolidated Adjusted EBITDA), in each case for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date for which financial statements have been provided under Section 5.01(b) or (c) (or such shorter period as determined in accordance with Section 6.07(a), in which case such adjustments as specified in Section 6.07(a) shall be applied), taken as one accounting period, to (b) Consolidated

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Fixed Charges for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date for which financial statements have been provided under Section 5.01(b) or (c) (or such shorter period as determined in accordance with Section 6.07(a), in which case such adjustments as specified in Section 6.07(a) shall be applied), taken as one accounting period.  For purposes of determining Consolidated Adjusted EBITDA, Consolidated Fixed Charges, and the items listed in clauses (a)(ii) through (a)(iv) of the definition of “Consolidated Fixed Charge Coverage Ratio”, in each case when determining the Consolidated Fixed Charge Coverage Ratio as of the last day of the first, second and third full Fiscal Quarters following the Opening Date, each such item shall be determined for the period commencing with the first full Fiscal Quarter following the Opening Date through the last day of the Fiscal Quarter then being tested and multiplied by a factor of 4, 2 and 4/3, respectively.

“Consolidated Fixed Charges” shall mean, for any period, an amount equal to the sum of the following determined on a consolidated basis for such period, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated Cash Interest Expense and (b) scheduled principal payments with respect to Consolidated Total Debt (based on the original amortization schedule with respect thereto, as the same may be amended, modified or supplemented from time to time; provided that there shall be no reduction in Consolidated Fixed Charges as a result of a reduction or elimination of a scheduled amortization payment to the extent resulting from a prepayment made during the thirty (30) day period immediately prior to the date such scheduled amortization payment would otherwise have been due).

“Consolidated Funded Debt” shall mean, as at any date of determination, the sum of (a) the aggregate outstanding principal amount of all Indebtedness of the Borrower and its Subsidiaries of the types described in clauses (a), (c), (d) and (f) (in the case of clause (f), to the extent such letter of credit is drawn and not reimbursed) of the definition of Indebtedness (including PNG Advances and Subordinated Loans), plus (b) the aggregate amount of Capital Lease Obligations of the Borrower and its Subsidiaries, plus (c) all Guarantees of the Borrower and its Subsidiaries with respect to outstanding Indebtedness of the types specified in subsection (a) above and of Capital Lease Obligations, in each case under this clause  (c) of Persons other than the Borrower or any Subsidiary.  Consolidated Funded debt shall be determined on a consolidated basis in accordance with GAAP.

“Consolidated Income Tax Expense” shall mean, for any period, the sum of, without duplication, the tax expense (including federal, state, local and foreign income taxes) of the Borrower and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Expense” shall mean, for any period, total interest expense (including that portion attributable to Capital Lease Obligations in accordance with GAAP and capitalized interest) of the Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries, including all commitment fees, commissions, discounts and other fees and charges owed with respect to letters of credit and banker’s acceptance financing and net costs under interest rate Hedging Agreements and amortization of debt issuance costs, debt discount or premium and other financing fees and expenses incurred by such Person for such period.

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“Consolidated Net Income” shall mean, for any period, (a) the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (b) the sum of (i) the income (or loss) of any Person (other than a Subsidiary of the Borrower) in which any other Person (other than the Borrower or any Subsidiary of the Borrower) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid in Cash to the Borrower or any Subsidiary of the Borrower by such Person during such period, (ii) the income (or loss) of any Person accrued prior to the date (x) it becomes a Subsidiary or (y) is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or (z) that Person’s assets are acquired by the Borrower or any Subsidiary of the Borrower (except, with respect to clauses (y) or (z), to the extent such Person was a Subsidiary prior to such merger, consolidation or acquisition), (iii) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, (iv) any after tax gains or losses attributable to Asset Sales or returned surplus assets of any Benefit Plan, (v) the amount of any Permitted Payments made during such period (to the extent not deducted in calculating consolidated net income (loss) for such period) and (vi) (to the extent not included in clauses (i) through (v) above) any extraordinary gains or extraordinary losses.

“Consolidated Net Revenues” shall mean, for any period, the gross revenues less promotional allowances of the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP.

“Consolidated Total Debt” shall mean, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness (including Letter of Credit Usage) of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

“Constitution” shall mean the Constitution of the Jamul Indian Village of San Diego County, Jamul, California, as duly adopted by the members of the Tribe on August 31, 1996, pursuant to an election held on August 31, 1996, authorized by the Deputy Commissioner of Indian Affairs and approved by the Deputy Commissioner of Indian Affairs on December 27, 1996.

“Construction Consultant” shall mean Professional Associates Construction Services, Inc. or any other Person designated from time to time by the Administrative Agent and the Disbursement Agent acting jointly to serve as construction consultant hereunder.

“Construction Disbursement Account” shall have the meaning given in the Disbursement Agreement.

“Contingency Reserve Account” shall have the meaning given in the Disbursement Agreement.

“Contractual Obligation” shall mean, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement (including any Material Contract, Project Document, PNG Document or Related

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Document) or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

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

“Control Agreements” shall mean the Collateral Account Control Agreement and each Deposit Account Control Agreement, each Securities Account Control Agreement or other control agreement entered into in accordance with the Security Agreement from time to time by any Loan Party in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to any Loan Document.

“Conversion/Continuation Date” shall mean the effective date of a conversion or continuation, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

“Conversion/Continuation Notice” shall mean a Conversion/Continuation Notice substantially in the form of Exhibit B-3.

“Converted Delayed Draw Term C Loan Commitments” shall have the meaning given in Section 2.01(f).

“Converted Subordinated Commitments” shall mean the “Delayed Draw Commitments” under and as defined in the Subordinated Loan Credit Agreement.

“Converted Term C Loans” shall have the meaning given in Section 2.01(f).

“Corporation Ordinance” shall mean Ordinance No. 2016-37 of the Tribe entitled “An Amendment and Restatement of the Jamul Indian Village Development Corporation Ordinance”, as adopted by Resolution No. 2016-38 of the General Council on July 17, 2016.

“Credit Date” shall mean the date of a Credit Extension, which date shall in all cases be a Business Day.

“Credit Event” shall have the meaning given in Section 4.02.

“Credit Extension” shall mean the making of a Loan or the issuance, amendment, extension or renewal of a Letter of Credit.

“Credit Facilities Interest Reserve Account” shall mean the “Debt Financing Cost Reserve Account” (as defined in the Disbursement Agreement).

“Credit Facilities Loan Proceeds Account” shall mean the “Loan Proceeds Account” (as defined in the Disbursement Agreement).

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“Debt Financing Cost Reserve Date” shall have the meaning given in the Disbursement Agreement, as such date may be extended from time to time pursuant to the terms of the Disbursement Agreement.

“Debtor Relief Laws” shall mean Title 11 of the United States Code entitled “Bankruptcy,” or any successor statute, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” shall mean any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both (as provided in Section 7.01) would constitute an Event of Default.

“Defaulting Lender” shall mean, subject to Section 2.21(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) has not been and cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be

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conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Bank, the Swingline Lender and each other Lender.

“Delayed Draw Term C Availability Period” shall mean the period beginning on the Closing Date and ending on the earliest to occur of (a) the reduction of the Delayed Draw Term C Loan Commitments to zero as a result of the funding of Term C Loans thereunder, (b) the termination or reduction to zero of the Delayed Draw Term C Loan Commitments pursuant to Section 2.12(b)(ii), (c) the conversion of all unfunded Delayed Draw Term C Loan Commitments into Converted Subordinated Commitments pursuant to Section 2.01(f), and (d) termination of this Agreement.

“Delayed Draw Term C Loan Commitment” shall mean, with respect to any Lender, such Lender’s commitment to make or otherwise fund a Term C Loan pursuant to Section 2.01(c), and “Delayed Draw Term C Loan Commitments” shall mean such commitments of all such Lenders in the aggregate.  The amount of each Lender’s Delayed Draw Term C Loan Commitment is set forth on Annex II or in any Assignment and Acceptance pursuant to which such Lender assumed any Delayed Draw Term C Loan Commitments, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Delayed Draw Term C Loan Commitments as of the Closing Date is $15,000,000.

“Delayed Draw Term C Loan Facility” shall mean the Delayed Draw Term C Loan Commitments.

“Deposit Account Control Agreement” shall have the meaning given in the Security Agreement.

“Developer” shall mean San Diego Gaming Ventures, LLC, a Delaware limited liability company.

“Development Agreement” shall mean the Development Agreement, dated as of April 3, 2013, between the Tribe and the Developer, as assigned to the Borrower by the Tribe pursuant to the Borrower Assumption Agreement, and as amended by the First Amendment to Development Agreement, dated as of June 24, 2016.

“Disbursement” shall have the meaning given in the Disbursement Agreement.

“Disbursement Agent” shall mean Citizens Bank, N.A. and its permitted successors and assigns in the capacity of disbursement agent under the Disbursement Agreement.

“Disbursement Agreement” shall mean the Disbursement Agreement substantially in the form of Exhibit M, dated as of the date hereof, among the Administrative Agent, the Collateral Agent, the Borrower and the Disbursement Agent.

“Disbursement Agreement Event of Default” shall mean an “Event of Default” under (and as defined in) the Disbursement Agreement.

“Disbursement Request” shall have the meaning given in the Disbursement Agreement.

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“Disposition” shall have the meaning given in Section 6.08, and the term “Disposed” shall have the meaning correlative thereto.

“Dispute Resolution Agreement” shall mean the Dispute Resolution Agreement dated as of July 21, 2016, between the Tribe and the State relating to certain licensing requirements under Section 6.4.6 of the Compact.

“Disqualified Capital Stock” shall mean 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, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Capital Stock that is not otherwise Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the 91st day following the latest maturity date with respect to the Loans and Commitments then in effect, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (a) above, in each case at any time on or prior to the date that is the 91st day following the latest maturity date in effect with respect to the Loans and Commitments then in effect, or (c) contains any repurchase obligation which may come into effect prior to the 91st day following the latest maturity date with respect to the Loans and Commitments in effect at the time of the issuance of such Capital Stock; provided, however, that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of a change of control or an asset sale occurring prior to the date that is the 91st day following the then-latest maturity date in effect with respect to the Loans and Commitments shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the repayment in full of the Obligations or to the extent such redemption is not prohibited under this Agreement.

“Disqualified Lender” shall mean, on any date, (a) with respect only to (i) Revolving Loans, Revolving Commitments, Term B Loans, Term B Loan Commitments, Incremental Term Loans and Incremental Term Loan Commitments and (ii) Extended Term Loans resulting from the extension of any Term Loans referred to in clause (a)(i), any Specified Disqualified Term B Lender (it being understood that Specified Disqualified Term B Lenders shall not constitute Disqualified Lenders with respect to any other Class of Loans or Commitments) and (b) with respect only to (i) the Term C Loans, Term C Loan Commitments, Delayed Draw Term C Loan Commitments, Incremental Term Loans and Incremental Term Loan Commitments and (ii) Extended Term Loans resulting from the extension of any Term Loans referred to in clause (b)(i), any Specified Disqualified Term C Lender (it being understood that Specified Disqualified Term C Lenders shall not constitute Disqualified Lenders with respect to any other Class of Loans or Commitments).

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

“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA

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Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Management Agreement” shall have the meaning given in Section 5.19(a).

“Eligible Assignee” shall mean (a) any Licensed Lender, (b) any Person that extends credit or buys loans or other debt securities as part of its business (or is an Affiliate of such a Person) that, in the case of an assignment (but not a participation) meets the requirements to be an assignee under Section 9.04 (subject to such consents, if any, as may be required under Section 9.04), (c) for purposes of Section 9.04(g) and assignments of Term C Loans, any Affiliated Lender and (d) for purposes of Section 9.04(h), the Borrower; provided that “Eligible Assignee” shall not include any Person that is (i) a natural Person, (ii) a Disqualified Lender (with respect to the applicable Class of Loans or Commitments), a Defaulting Lender, a Former Lender, any Subsidiary of a Defaulting Lender or a Former Lender, (iii) any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender, a Former Lender or a Subsidiary of a Defaulting Lender or a Former Lender, (iv) an Affiliated Lender (except for purposes of Section 9.04(g) and assignments of Term C Loans), (v) the Borrower, the Tribe or any of their respective Affiliates (except for purposes of Section 9.04(h)) or (vi) any Person that (A) has been denied an approval or a license, or otherwise found unsuitable, under applicable gaming laws, (B) has failed to obtain or has had suspended or revoked any required approval, license, finding of suitability or other authorization required under applicable gaming laws or by order of any gaming agency having jurisdiction over the Person, (C) has been convicted of a felony, or (D) has been convicted of a misdemeanor involving unlawful gambling or money laundering.  Additionally, no Person shall be an Eligible Assignee with respect to any unfunded Commitment unless such Person is a Regulated Bank, an Exempt Entity or a Licensed Lender.  It is agreed by each of the parties hereto that the Administrative Agent shall be under no duty to monitor or otherwise make any determinations with respect to the foregoing provisions of this definition, and neither the Administrative Agent nor any Lender (including any assigning Lender) shall be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person (including the Loan Parties) in connection with any compliance or non-compliance with the foregoing by any Person other than the Administrative Agent or such Lender, as applicable, and its controlled Affiliates.

“Engagement Letter” shall mean that certain Engagement Letter, dated as of November 4, 2015, by and among the Joint Lead Arrangers, the Borrower and the Tribe.

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“Environment” shall mean any surface or subsurface physical medium or natural resource, including air, land, soil, surface waters, ground waters, stream and river sediments, biota and any indoor area, surface or physical medium.

“Environmental Claim” shall mean any investigation, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive, by any Governmental Authority or any other Person, arising (a) in connection with any actual or alleged violation of any Environmental Law; (b) in connection with the presence of, Release, or threatened Release of, or exposure to, any Hazardous Material; or (c) in connection with any actual or alleged damage, injury, threat or harm to public health or safety (as it relates to environmental matters) or the Environment.

“Environmental Laws” shall mean all applicable Federal, state, local, Tribe and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees and judgments, in each case relating to protection of the Environment, public health and safety (as it relates to environmental matters) or the presence of, Release or threatened Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.

“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Ordinance” shall mean the Jamul Indian Village Environmental Policy Ordinance No. 2000-01 adopted by the General Council on October 21, 2000 as amended by Ordinance No. 2004-01 of the General Council on April 17, 2004 and the Jamul Indian Village Environmental Agency Ordinance No. 2001-01 adopted by the General Council on December 15, 2001.

“Environmental Permit” shall mean any Permit under any Environmental Law.

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

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Tax Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Tax Code, is treated as a single employer under Section 414 of the Tax Code.

“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Benefit Plan (other than an event

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for which the thirty (30)-day notice period is waived by regulation); (b) a Benefit Plan is in “at risk” status under Section 430 of the Tax Code or Section 303 of ERISA; (c) the filing pursuant to Section 412(c) of the Tax Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Benefit Plan; (d) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Benefit Plan or the withdrawal or partial withdrawal of any Loan Party or any of its ERISA Affiliates from any Benefit Plan or Multiemployer Plan; (e) the receipt by any Loan Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Benefit Plan or to appoint a trustee to administer any Benefit Plan; (f) the provision of security pursuant to Section 436(f) of the Tax Code in connection with the adoption of an amendment to a Benefit Plan; (g) the receipt by any Loan Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA or in critical or endangered status under Section 432 of the Tax Code or Section 305 of ERISA; (h) the occurrence of a nonexempt “prohibited transaction” with respect to which any Loan Party is a “disqualified person” (within the meaning of Section 4975 of the Tax Code) and with respect to which such Loan Party is assessed an excise tax under Section 4975 of the Tax Code that could reasonably be expected to result in a material liability; (i) a Lien upon the property of a Loan Party shall arise under Section 430(k) of the Tax Code or Section 303(k) of ERISA in favor of a Benefit Plan; or (j) any other event or condition with respect to a Benefit Plan or Multiemployer Plan that could reasonably be expected to result in a Material Adverse Effect.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“Event of Default” shall have the meaning given in Section 7.01.

“Excluded Assets” shall have the meaning given thereto in the Security Agreement.

“Excluded Financings Regulation” shall mean Amended Regulation GCR-2016003 of the Gaming Commission entitled “Excluded Financings Regulation of the Jamul Gaming Commission”, as adopted by the Gaming Commission on October 18, 2016.

“Excluded Information”  shall have the meaning provided in Section 9.04(i).

“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income and franchise Taxes imposed in lieu of net income Taxes, in each case by the United States of America, or by the jurisdiction under the laws of which such recipient is organized (or any political subdivision thereof), or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or in which such Lender carries on business (other than as a result of such Lender having executed, delivered, become a party to, enforced or performed its obligations or received payments, or perfected a security interest, hereunder or under any Loan Document), (b) any branch profits taxes imposed by the

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United States of America or by any other jurisdiction (or any political subdivision thereof) described in clause (a) above, (c) in the case of any Lender (other than an assignee pursuant to a request by the Borrower under Section 2.20), any withholding tax (i) attributable to such Lender’s failure to comply with Section 2.19(d) or (ii) that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office) except to the extent that at the time of designation of a new lending office (or assignment) any such Lender (or its assignor, if any) was entitled to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.19, and (d) any Taxes imposed under FATCA.

“Exempt Entity” shall mean any Person that is exempt from the licensing requirements under Section 6.4.6 of the Compact.

“Executive Committee” shall mean the Executive Committee of the Tribe referred to in the Constitution.

“Existing Revolving Loans” shall have the meaning provided in Section 2.25(b).

“Existing Revolving Series” shall have the meaning provided in Section 2.25(b).

“Existing Series” shall mean any Existing Term Loan Series or Existing Revolving Series.

“Existing Term Loan Series” shall have the meaning provided in Section 2.25(a).

“Extended Revolving Commitments” shall have the meaning provided in Section 2.25(b).

“Extended Revolving Loans” shall have the meaning provided in Section 2.25(b).

“Extended Term Loans” shall have the meaning provided in Section 2.25(a).

“Extended Term Loan Exposure” shall mean, with respect to any Extending Lender, as of any date of determination, the outstanding principal amount of the Extended Term Loans of such Extending Lender.

“Extending Lender” shall have the meaning provided in Section 2.25(c).

“Extension Amendment” shall have the meaning provided in Section 2.25(d).

“Extension Date” shall mean any date on which any Existing Term Loan Series or Existing Revolving Series is modified to extend the related scheduled maturity date(s) in accordance with Section 2.25 (with respect to the Lenders under such Existing Term Loan Series or Existing Revolving Series which agree to such modification).

“Extension Election” shall have the meaning provided in Section 2.25(c).

“Extension Request” shall mean any Term Loan Extension Request or Revolving Extension Request.

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“Extension Series” shall mean all Extended Term Loans of the same Series or Extended Revolving Commitments of the same Series that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series).

“Facility” shall mean each of (a) the Term B Loan Facility, (b) the Term C Loan Facility, (c) the unfunded portion of the Delayed Draw Term C Loan Commitments, (d) any Incremental Term Loan Facility and (e) the Revolving Credit Facility.

“FATCA” shall mean Sections 1471 through 1474 of the Tax Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any intergovernmental agreement entered into with respect thereof, and any agreement entered into pursuant to Section 1471(b)(1) of the Tax Code.

“Federal Courts” shall have the meaning given in Section 9.12(a).

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

“Fees” shall mean all fees payable by the Borrower or any Affiliate of the Borrower to the Joint Lead Arrangers, the Agents, the Lenders or any other Person under or in connection with the Facilities, including, without limitation, all fees described in Section 2.10 and the Engagement Letter.

“Final Completion” shall have the meaning given in the Disbursement Agreement.

“Final Completion Date” shall have the meaning given in the Disbursement Agreement.

“Financial Officer” of any Person shall mean the chairperson of the board of directors, chief financial officer, principal accounting officer or treasurer of such Person or any other authorized representative of such Person with knowledge of the financial affairs of such Person designated as such by the Borrower to the Administrative Agent.

“Financial Officer Certification” shall mean, with respect to the financial statements for which such certification is required, the certification of a Financial Officer of the Borrower that such financial statements fairly present, in all material respects, the financial condition of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in accordance with GAAP, subject, with respect to financial statements delivered for any month or Fiscal Quarter, to changes resulting from audit and normal year-end adjustments.

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“Financial Plan” shall have the meaning given in Section 5.01(i).

“Fiscal Quarter” shall mean a fiscal quarter of any Fiscal Year.

“Fiscal Year” shall mean a fiscal year of the Loan Parties ending on December 31 of each calendar year.

“Foreign Lender” shall mean any Lender (or, if such Lender is a disregarded entity for United States federal income tax purposes, the Person treated, for United States federal income tax purposes, as the owner of the assets of such Lender) that is not organized under the laws of the United States of America, any State thereof, the District of Columbia or the Tribe.

“Former Lender” shall have the meaning given in Section 9.26(a).

“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations, other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans, other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

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

“Funding Notice” shall mean a notice substantially in the form of Exhibit B-1.

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

“Gaming Agency” shall mean, collectively, (a) the NIGC, (b) the Gaming Commission, (c) the CGCC, (d) the State of California Department of Justice Bureau of Gambling Control and (e) any other Governmental Authority that holds or exercises licensing or permit authority or other jurisdiction over gambling, gaming or casino activities conducted within the Tribe’s jurisdiction.

“Gaming Business” shall mean, collectively, (a) any Class II Gaming and Class III Gaming conducted by or on behalf of the Borrower, any Subsidiary, the Tribe or any Affiliate of any of the foregoing (excluding therefrom any internet gaming with respect to which the customers or patrons are located outside of the Gaming Site) and (b) except to the extent leased by the Borrower to a Person that is not an Affiliate of the Borrower or the Tribe, all dining, food service and preparation, recreation, retail, entertainment, lodging, hospitality, transportation, or

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other trade, business or commercial activities or non-gaming amenities conducted at the Gaming Facilities (but, for the avoidance of doubt, excluding any businesses located in a building or structure that is detached from the Gaming Facilities and that do not conduct, gaming, entertainment, lodging or hospitality activities).

“Gaming Commission” shall mean the Jamul Gaming Commission, an independent governmental subdivision of the Tribe, established by the Gaming Ordinance.

“Gaming Commission Letter” shall mean the letter dated October 18, 2016 from the Gaming Commission to the Borrower, the Joint Lead Arrangers and one Lender, CA Funding Opp III LLC, excluding such Persons (including such Persons or their Affiliates who provide certain cash management services or who act as counterparties to interest rate protection agreements with the Borrower) and Eligible Assignees (other than those holders of Financial Source  licenses (as defined in the Gaming Commission Letter)) from (a) all licensing requirements of the Compact, (b) all licensing and registration requirements of the Gaming Ordinance, and (c) all background review requirements of the Compact and the Gaming Ordinance.

“Gaming Facilities” shall mean, collectively, the Project, as well as any expansion, modification, or addition to the Project, and any other facilities on the Gaming Site where any Gaming Business is conducted.  “Gaming Facilities” shall not include any building located on or near the Gaming Site that is used solely for functions and events of the Tribe.

“Gaming Laws” shall mean IGRA, the Compact, the Gaming Ordinance and all other Laws applicable to the Gaming Business or pursuant to which any Gaming Agency holds or exercises licensing or permit authority or other jurisdiction over gambling, gaming, or casino activities conducted within the Tribe’s jurisdiction.

“Gaming License” shall mean every license, permit, franchise or other authorization from any Gaming Agency required on the date hereof or at any time thereafter to own, lease, operate or otherwise conduct the Class II Gaming or Class III Gaming activities of the Borrower or the Subsidiaries, including all licenses granted under applicable federal, tribal, state, foreign or local laws.  Notwithstanding the foregoing, “Gaming License” shall not include any licenses, permits, franchises or other authorizations required for the furnishment and provision of alcohol by the Gaming Business.

“Gaming Ordinance” shall mean Ordinance No. 2013-05 of the Tribe, entitled the “Jamul Indian Village Gaming Ordinance” adopted by General Council Resolution No. 2013-07 on April 2, 2013, and approved by the Chair of the NIGC on July 1, 2013, as amended by that First Amendment to Jamul Indian Village Amended Gaming Ordinance adopted by the General Council on December 31, 2015, and approved by the Chair of the NIGC on February 11, 2016.

“Gaming Regulatory Fees and Payments” shall mean fees or payments made by the Borrower or any Subsidiary to the Tribe for payment to the Gaming Commission or paid directly by the Borrower or any Subsidiary (or by the Manager or any of its Affiliates on behalf of the Borrower) to the Gaming Commission to compensate the Gaming Commission for its costs and expenses in connection with regulating the gaming conducted by the Borrower or any

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Subsidiary, assessed by the Tribe upon the Borrower or any Subsidiary pursuant to applicable laws of the Tribe; provided that such fees and payments shall not be used by the Tribe or the Gaming Commission for any other purpose.

“Gaming Site” shall mean the approximately six (6) acres of land near Jamul, California held in trust by the United States government for the Tribe.

“General Contract” shall have the meaning given in the Disbursement Agreement.

“General Council” shall mean the General Council of the Tribe referred to in the Constitution, which is the governing body of the Tribe.

“GMP Loans” shall mean the “GMP Loans” under and as defined in the Subordinated Loan Credit Agreement.

“Golden” shall mean Golden Entertainment, Inc., a Minnesota corporation.

“Golden Indebtedness” shall mean Indebtedness of the Tribe owing to Lakes, which Indebtedness is evidenced by that certain Consolidated Restated Promissory Note dated April 24, 2014, made by the Tribe in favor of Lakes, which Indebtedness was assigned to the Developer pursuant to the Note Sale and Purchase Agreement.

“Governing Documents” shall mean, (a) as to any Person, the charter, articles or certificate of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any tribal jurisdiction), any certificate of limited partnership, any shareholders’ agreement, articles of organization or certificate of formation, limited liability company agreement, operating agreement, limited partnership agreement or other partnership agreement or other formation or constituent documents of such Person; (b) as to the Borrower, the documents establishing or setting forth the powers and authorities of the Borrower, including, without limitation, the Corporation Ordinance; and (c) as to the Tribe, the documents establishing or setting forth the powers and authority of the Tribe, including, without limitation, the Constitution.

“Governmental Acts” shall mean any act, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

“Governmental Authority” shall mean the government of the United States of America or any other nation (including any tribal nation), any political subdivision thereof, whether federal, state, tribal or local, and any Governmental Component, agency, authority (including any Gaming Agency), instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, other than the Borrower and its Subsidiaries.

“Governmental Component” shall mean with respect to the Tribe or any other government, any corporation, board, enterprise, authority, division, branch, political subdivision, agency, instrumentality or governmental component directly or indirectly owned or controlled by the Tribe or such other government.  For the avoidance of doubt, the Borrower and its Subsidiaries are Governmental Components of the Tribe.

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“Grantees” shall have the meaning given in Section 9.11(a)(i).

“Ground Lease” shall mean a valid and enforceable lease agreement (a) duly entered into between the Tribe, as lessor, and the Borrower, as lessee; (b) that has been approved by or on behalf of the Secretary of the Interior pursuant to 25 USC § 415(a) and 25 CFR Part 162, Subpart D or has been entered into in compliance with regulations or law of the Tribe approved by or on behalf of the Secretary of the Interior pursuant to 25 USC § 415(h); and (c) which (i) demises to the Borrower the entire area underlying the Gaming Facility, and all then or future existing improvements thereon and appurtenances thereto, (ii) has an initial term of not less than 20 years, (iii) imposes no payment obligations on the Borrower other than to pay Additional Rent and Basic Rent; (iv) requires Basic Rent to be paid in amounts that do not exceed the greater of (A) $1,000 per year and (B) amounts the payments of which do not violate Section 6.04, (iv) expressly allows the Borrower to engage in the Gaming Business on the Gaming Site, and the Borrower’s development, construction, operation, maintenance, improvement and replacement of the Project, all as determined by the Borrower in its sole discretion and (v) provides a covenant of quiet enjoyment in favor of the Borrower and the Project.

“Ground Lease Approval Date” shall mean the date on which the Ground Lease is approved by or on behalf of the Secretary of Interior, or approved by the Tribe in accordance with tribal leasing regulations adopted pursuant to 25 U.S.C. 415(h).

“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor to induce the creation of which the guarantor has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation, contingent or otherwise, of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or maintain solvency or net worth or (d) to otherwise assure or hold harmless the owner of such Indebtedness or other obligation against loss in respect thereof; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any obligation under a Guarantee of a guarantor shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such obligation shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“Guaranteed Obligations” shall have the meaning given in the Guaranty.

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“Guarantor” shall mean each Subsidiary of the Borrower that has executed (whether by counterpart, joinder or otherwise) the Guaranty and the Security Agreement, either on the Closing Date or pursuant to Section 5.11.

“Guaranty” shall mean a Guaranty, substantially in the form of Exhibit C-1.

“Hard Costs” shall have the meaning given in the Disbursement Agreement.

“Hazardous Materials” shall mean any petroleum (including crude oil or fraction thereof) or petroleum products or byproducts, or any pollutant, contaminant, chemical, compound, or hazardous or toxic substances, materials or wastes defined, or regulated as such by, or pursuant to, any Environmental Law, including asbestos, or asbestos containing material, radon or other radioactive material, polychlorinated biphenyls and urea formaldehyde insulation.

“Hedging Agreement” shall mean any agreement with respect to any swap, forward, cap, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, fuel or other commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, however, that no phantom stock or similar plan providing for payments on account of services provided by current or former directors, officers, employees or consultants of any Loan Party shall be a Hedging Agreement.

“IGA Claims” shall mean claims, damages, liabilities and obligations owed to the IGA Parties or any of them in connection with or relating to the matters described in that certain Settlement Agreement, signed on or about March 23, 2000, among the Tribe, certain of the IGA Parties and the other parties thereto, regardless of whether such claims, damages, liabilities and obligations are made or arise under or in connection with the terms of such settlement agreement, any settlement or agreement in respect thereof, a judgment or arbitration award relating thereto or otherwise in connection therewith or in full or partial satisfaction of any claims thereunder.

“IGA Parties” shall mean, collectively,  Indian Gaming of America, Inc., a Nevada corporation, IGA Development Corporation, a Nevada corporation, Fredericks, Pelcyger, Hester, White, LLC, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇. Karlsted, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and their respective related parties and Affiliates.

“IGA Payments” shall mean payments in connection with or relating to the matters described in that certain Settlement Agreement, signed on or about March 23, 2000, among the Tribe, certain of the IGA Parties and the other parties thereto, regardless of whether such payments are made pursuant to the terms thereof, pursuant to any settlement in respect thereof, pursuant to a judgment or arbitration award relating thereto or otherwise in full or partial satisfaction thereof.

“IGRA” shall mean the federal Indian Gaming Regulatory Act of 1988, codified at 25 U.S.C. §§ 2701, et seq.

“In Balance” shall have the meaning given in the Disbursement Agreement.

“Increased Amount Date” shall have the meaning given in Section 2.24(b).

“Increased-Cost Lender” shall have the meaning given in Section 2.22.

“Incremental Facilities” shall have the meaning given in Section 2.24(a).

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“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or outstanding Incremental Term Loan.

“Incremental Term Loan” shall mean the term loans made pursuant to the Incremental Term Loan Commitments.

“Incremental Term Loan Commitments” shall have the meaning given in Section 2.24(a).

“Incremental Term Loan Exposure” shall mean, with respect to any Incremental Term Lender, as of any date of determination, the outstanding principal amount of the Incremental Term Loans and unfunded Incremental Term Loan Commitments of such Incremental Term Lender.

“Incremental Term Loan Facility” shall mean any incremental term loan facility related to a Series of Incremental Term Loans established under Section 2.24(a).

“Incremental Term Loan Maturity Date” shall mean, with respect to any Series of Incremental Term Loans, the date that Incremental Term Loans of such Series shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or otherwise.

“Incremental Term Note” shall mean a promissory note substantially in the form of Exhibit A-4, with such changes as may be necessary or appropriate to evidence an Incremental Term Loan of the applicable Series.

“Indebtedness” shall mean, with respect to any Person, without duplication, (a) all indebtedness for borrowed money; (b) all Capital Lease Obligations; (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA, such obligations with respect to earn-out payments and trade accounts payable incurred in the ordinary course of business and not due more than ninety (90) days after the date on which such trade account was created); (e) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person (provided that if the indebtedness secured thereby has not been assumed or is non-recourse, the amount of such indebtedness included for the purposes of this definition will be the amount equal to the lesser of the fair market value of such property and the amount of the indebtedness secured); (f) the face amount of any acceptance, letter of credit or similar facility issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (g) all obligations of such Person in respect of Disqualified Capital Stock; (h) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession of such Property (provided that if the indebtedness is non-recourse, the amount of such indebtedness included for the purposes of this definition will be the amount equal to the lesser of the fair market value of such Property and the amount of such indebtedness)); (i) all obligations of such Person in respect of any exchange traded or over the

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counter derivative transaction, including, without limitation, any interest rate Hedging Agreement, whether entered into for hedging or speculative purposes; and (j) any Guarantee of such Person in respect of obligations of the kind referred to in clauses (a) through (i) above; provided that the term “Indebtedness” shall not include (x) deferred or prepaid revenue and (y) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller.  The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in, or other relationship with, such other Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  For purposes of calculating Indebtedness hereunder at any time, the amount of Indebtedness of the type referred to in clause (i) above of any Person shall be equal to the payment due thereunder (giving effect to any netting agreements), if any, by such Person if such Indebtedness were terminated on such date.   Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any casino “chips” or gaming winnings of customers constitute Indebtedness.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes and Other Taxes.

“Indemnitee” shall have the meaning given in Section 9.05(b).

“Information” shall have the meaning given in Section 9.21.

“Initial GMP Amount” shall mean the product of (a) $500,000 times (b) a fraction, the numerator of which is the number of days from and including the Project Opening Date to and including the last day of the month in which the Project Opening Date occurs, and the denominator of which is 31.

“Initial Period” shall have the meaning given in Section 6.18(a).

“Initial Priority Payment Amount” shall mean the product of (a) $333,333.34 times (b) a fraction, the numerator of which is the number of days from and including the Project Opening Date to and including the last day of the month in which the Project Opening Date occurs, and the denominator of which is 31.

“Initial Test Date” shall mean the last day of the second full Fiscal Quarter ending after the Opening Date.

“Initial Triggering FS Delivery Date” shall mean the date on which financial statements covering the first full Fiscal Quarter commenced after the Opening Date are delivered pursuant to Section 5.01(b) or (c).

“Installment” shall have the meaning given in Section 2.11(a)(i).

“Installment Date” shall mean, (a) with respect to any Term B Loan, the last Business Day of each March, June, September and December commencing on the first such date to occur that is the last day of the second full Fiscal Quarter commenced following the Opening Date until the Term B Loan Maturity Date, and on the Term B Loan Maturity Date, (b) with respect to any Term C Loan, the last Business Day of each March, June, September and December

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commencing on the first such date to occur that is the last day of the second full Fiscal Quarter commenced following the Opening Date until the Term C Loan Maturity Date, and on the Term C Loan Maturity Date and (c) with respect to any Incremental Term Loan, the last Business Day of each March, June, September and December commencing on the first such date to occur that is the last day of the first Fiscal Quarter commenced following the applicable Increased Amount Date until the Incremental Term Loan Maturity Date of the applicable Series of Incremental Term Loans, and on such Incremental Term Loan Maturity Date.

“Intellectual Property Collateral” shall mean Intellectual Property (as defined in the Security Agreement) constituting Collateral in accordance with the Security Documents.

“Intellectual Property Security Agreements” shall mean each intellectual property security agreement executed from time to time by any Loan Party in favor of the Collateral Agent for the benefit of the Secured Parties in accordance with the Security Agreement in order to grant Liens to the Collateral Agent for the benefit of the Secured Parties over Intellectual Property to secure all or a portion of the Obligations.

“Interest Payment Date” shall mean (a) with respect to any ABR Loan (including any Swingline Loan), the last Business Day of each March, June, September and December and (b) with respect to any LIBOR Loan, the last day of the Interest Period applicable to such Loan and, in the case of a LIBOR Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Loan.

“Interest Period” shall mean, in connection with a LIBOR Loan, an interest period of one, two, three or six months (or, if agreed by all of the relevant Lenders, twelve months or a period shorter than one month) as selected by the Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (x) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (y) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d) of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Term Loans shall extend beyond the Term B Loan Maturity Date, the Term C Loan Maturity Date or the relevant Incremental Term Loan Maturity Date, as applicable; and (d) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.

“Interest Rate Determination Date” shall mean, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

“Interim Tribal Land Assignment” means a valid temporary assignment of the Gaming Site from the Tribe, as assignor, to the Borrower, as assignee, (a) created under the Corporation

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Ordinance; (b) that constitutes a “tribal land assignment” within the meaning of 25 CFR §§ 162.003 and 162.006; and (c) which (i) expressly allows the Borrower to engage in the Gaming Business on the Gaming Site, and the Borrower’s development, construction, operation, maintenance, improvement and replacement of the Project, all as determined by the Borrower in its sole discretion, (ii) is non-assignable and (iii) terminates on the earliest of (A) one year after the date of the Interim Tribal Land Assignment, (B) the thirtieth day after a written notice of termination is delivered by the Tribe to the Borrower and (C) the date on which the Ground Lease becomes effective.

“Investment” shall mean (a) any direct or indirect purchase or other acquisition by the Borrower or any other Loan Party of, or of a beneficial interest in, any of the Securities of any other Person (other than a Guarantor); (b) any direct or indirect purchase or other acquisition for value, by any Loan Party from any Person (other than a Loan Party), of any Capital Stock of such Person; (c) any direct or indirect loan, advance or capital contribution by the Borrower or any other Loan Party to any other Person (other than a Loan Party), including all indebtedness from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business; and (d) any direct or indirect purchase of all or substantially all of the assets constituting the business of a division, branch or other unit of operations from any Person (other than a Loan Party). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, but net of all amounts received with respect to such Investment, whether consisting of principal, interest, dividends, distributions or otherwise.

“Investment Accounts” shall mean the Credit Facilities Loan Proceeds Account, the Borrower Funds Account, the Contingency Reserve Account, the Credit Facilities Interest Reserve Account and each other “Investment Account” as defined in the Security Agreement.

“Investment Property” shall have the meaning given in the UCC.

“ISP98” shall mean the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuance/Amendment Notice” shall mean a notice in the form of Exhibit B-2 or otherwise in a form mutually agreed upon by the Borrower and the Issuing Bank.

“Issuing Bank” shall mean Citizens Bank, N.A. and any of its Affiliates, as Issuing Bank hereunder, or any other Lender appointed by the Borrower to serve as Issuing Bank hereunder with the consent of such Lender (which consent may be withheld in such Lender’s sole discretion) and the Administrative Agent (which consent shall not be unreasonably withheld).

“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit N or such other form as shall be mutually agreed by the Borrower and the Administrative Agent.

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“Joint Lead Arranger” shall mean each of Citizens Bank, N.A., Fifth Third Bank and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, in its capacity as joint lead arranger and joint bookrunner with respect to the Facilities and its permitted successors and assigns in such capacity.

“Joint Venture” shall mean a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.

“Key Construction and Design Contracts” shall have the meaning given in the Disbursement Agreement.

“Lakes” shall mean Lakes Jamul Development, LLC, a Minnesota limited liability company and a wholly owned subsidiary of Golden Entertainment, Inc., a Minnesota corporation.

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

“Legal Requirements” shall mean, as to any Person, the Governing Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Real Property (including Gaming Laws) or personal property or to which such Person or any of its property of any nature is subject by applicable law.

“Lenders” shall have the meaning given in the preamble to this Agreement; provided that, for the avoidance of doubt, the term “Lenders” shall include (a) any Person that delivers a Joinder Agreement or any Person that has become a party hereto pursuant to an Assignment and Acceptance and (b) the Revolving Lenders, the Term B Lenders, the Term C Lenders, the Incremental Term Lenders and the Extending Lenders and, unless the context indicates otherwise, the Issuing Bank and the Swingline Lender (in each case, other than any such Person that has ceased to be a Lender hereunder pursuant to an Assignment and Acceptance).

“Letter of Credit” shall mean a standby letter of credit issued or to be issued by Issuing Bank pursuant to Section 2.04.

“Letter of Credit Non-Reimbursed Drawings” shall mean at any time, the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 2.04(d).

“Letter of Credit Obligations” shall mean as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Letter of Credit Non-Reimbursed Drawings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.05.  For all purposes of this Agreement, if on any date of

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determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP98, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Letter of Credit Sublimit” shall mean the lesser of (a) $2,500,000 and (b) the aggregate unused amount of the Revolving Commitments then in effect.

“Letter of Credit Usage” shall mean, as at any date of determination, the sum of (a) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding and (b) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Bank and not theretofore reimbursed by or on behalf of the Borrower.

“LIBO Rate” shall mean, with respect to any LIBOR Loan for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two (2) Business Days prior to the commencement of such Interest Period by reference to the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars in minimum amounts of at least $5,000,000 are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of such Interest Period; provided, further, that in respect to Revolving Loans and Swingline Loans, in no event shall the LIBO Rate be less than 0.00%.

“LIBOR”, when used in reference to any Loan or Borrowing, refers to whether such Loan or Loans comprising such Borrowing are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“Licensed Lender” shall mean any Lender that is licensed pursuant to the licensing requirements applicable to “Financial Sources” under the Compact and Gaming Ordinance.

“Lien” shall mean any lien, mortgage, pledge, collateral assignment, security interest, charge or encumbrance of any kind or any conditional sale or other title retention agreement (and any lease in the nature thereof).

“Line Item” shall have the meaning given in the Disbursement Agreement.

“Liquidity” shall mean, at any time, the aggregate amount of (1) the sum of (a) unfunded Revolving Commitments then in effect and (b) Unrestricted Cash and Cash Equivalents held by the Borrower (excluding amounts on deposit in the Credit Facilities Loan Proceeds Account, the Credit Facilities Interest Reserve Account, the Contingency Reserve Account, the Borrower Funds Account, the Construction Disbursement Account and the Cash Management Account), minus (2) the greater of (a) the amount of cage cash held by the Borrower and (b) $10,000,000.

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“Loan” shall mean a Term B Loan, a Term C Loan, an Incremental Term Loan, a Revolving Loan or a Swingline Loan, as applicable.

“Loan Documents” shall mean this Agreement, the Disbursement Agreement, the Guaranty (if any), the Security Documents, the Notes, the Engagement Letter, any Extension Amendment, any Joinder Agreement, the Subordinated Intercompany Note, the Letters of Credit, the PNG Subordination Agreement, Subordinated Loan Subordination Agreement, the Completion Guaranty and any other document or certificate executed by any Loan Party or any other provider of credit support in respect of the Obligations, for the benefit of any Agent, any Lender or any other Secured Party in connection with this Agreement or any other Loan Document; provided, that, for the avoidance of doubt, the Loan Documents shall not include the Subordinated Loan Credit Documents (other than the Subordinated Loan Subordination Agreement).

“Loan Parties” shall mean the Borrower and each Guarantor.

“Maintenance Capital Expenditures” shall mean Consolidated Capital Expenditures and expenditures of amounts on deposit in the Capital Replacement Reserve Account for the maintenance, repair, restoration or refurbishment of fixed or capital assets of the Borrower or its Subsidiaries but excluding any Consolidated Capital Expenditures and expenditures of amounts on deposit in the Capital Replacement Reserve Account that add to or further improve (other than additions or improvements consisting of refurbishment and restoration) such property.

“Management Activities” shall have the meaning specified in Section 9.16.

“Management Agreement” shall mean, together, (a) the Management Agreement, dated as of September 26, 2016, by and between the Borrower and the Manager and (b) the Intellectual Property License, Branding and Marketing Agreement, dated as of April 3, 2013, between PNG and the Tribe, as assigned to the Borrower by the Tribe pursuant to the Borrower Assumption Agreement.

“Management Fee” shall mean all amounts to be paid by the Borrower or its Affiliates to the Manager or its Affiliates, including any license fees, pursuant to the Management Agreement other than (a) repayment of (i) the PNG Advances, Term C Loans or Subordinated Loans (and, in each case, interest thereon) and (ii) any other advances, loans or extensions of credit made by the Manager or its Affiliates to the Tribe, the Borrower or their respective Affiliates (and, in each case, interest thereon) and (b) payment of commitment fees in respect of the Delayed Draw Term C Loan Commitments pursuant to Section 2.10(b) and commitment fees in respect of the Converted Subordinated Commitments pursuant to Section 2.10(a) of the Subordinated Loan Credit Agreement.

“Manager” shall mean (a) San Diego Gaming Ventures, LLC, a Delaware limited liability company and a wholly owned Subsidiary of PNG, and (b) PNG or any other entity Controlled by PNG or a Qualified Gaming Company that acts as the manager of the day to day operations of the Project pursuant to the Management Agreement.

“Margin Stock” shall have the meaning given in Regulation U.

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“Material Adverse Effect” shall mean any change, occurrence, event, circumstance or development that has had, or could reasonably be expected to have, a material adverse effect on (a) the business, assets, liabilities, financial condition or results of operations of the Loan Parties, taken as a whole, or the Project, (b) the ability of the applicable Loan Parties to develop, construct or operate the Project in accordance with the Loan Documents, Gaming Licenses and Gaming Laws, (c) the legality, binding effect or enforceability against any Loan Party or the Tribe of the Loan Documents to which it is a party or the material rights and remedies of the Secured Parties under the Loan Documents, or (d) the ability of the Loan Parties (taken as a whole) to perform their payment Obligations under the Loan Documents (it being understood that any delay in construction and/or increase in cost of the Project in and of itself will not be deemed a Material Adverse Effect in the event that the Borrower reasonably expects the Opening Date to occur on or prior to the Scheduled Opening Date (as such date may be extended pursuant to the Disbursement Agreement)).

“Material Contract” shall mean any Key Construction and Design Contract.

“Material Indebtedness” shall mean Indebtedness (other than the Loans, Letters of Credit and Indebtedness permitted pursuant to Section 6.01(b)), or obligations in respect of one or more Hedging Agreements, of any one or more of the Loan Parties or the Tribe in an aggregate principal amount exceeding $25,000,000.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of such Persons in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the applicable Person would be required to pay if such Hedging Agreement were terminated at such time.

“Maximum Rate” shall have the meaning given in Section 9.09.

“Minimum Collateral Amount” shall mean, at any time, (a) with respect to Cash Collateral consisting of Cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount reasonably determined by the Administrative Agent and the Issuing Bank.

“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereof.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate has contributed within the past six years or is currently obligated to make contributions.

“Narrative Report” shall mean, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of the Borrower and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.

“Net Cash Proceeds” shall mean:

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(a)                                 with respect to any Asset Sale, the proceeds thereof in the form of Cash, Cash Equivalents or Investment Property (including any such proceeds subsequently received (as and when received) in respect of deferred payment of principal or otherwise in respect of non-Cash consideration initially received), net of:

(i)                                     selling expenses (including customary broker’s or banker’s fees or commissions, legal, accounting and other professional and transactional fees, transfer and similar taxes incurred by the Borrower or any Subsidiary in connection therewith and the Borrower’s good faith estimate of taxes paid or payable in connection with such sale, after taking into account any available tax credits or deductions and any tax sharing arrangements, in each case to the extent attributable to such sale);

(ii)                                  amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds);

(iii)                               the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (other than the Obligations) which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset);

(iv)                              reserves for withdrawal liability or severance estimated by the Borrower to be payable arising from such Asset Sale; and

(v)                                 amounts required to be paid to any Person (other than the Borrower and the other Loan Parties) owning a beneficial interest in the subject asset;

(b)                                 in the case of any Recovery Event, the aggregate amount of Cash proceeds of insurance, condemnation awards and other compensation (excluding proceeds constituting business interruption insurance or other similar compensation for loss of revenue, but including the proceeds of any disposition of Property pursuant to Section 6.08(i)) received by the Person whose Property was subject to such Recovery Event in respect of such Recovery Event, net of:

(i)                                     fees and expenses incurred by or on behalf of Borrower or any Subsidiary in connection with recovery thereof;

(ii)                                  repayments of Indebtedness (other than the Obligations) to the extent secured by a Lien on such Property that is not prohibited hereunder and that is not junior to the Lien thereon securing the Obligations and that is required to be repaid with such amounts; and

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(iii)                               any taxes incurred in connection therewith and the Borrower’s good faith estimate of taxes paid or payable in respect of the amount so recovered, after taking into account any available tax credits or deductions and any tax sharing arrangements, in each case, to the extent attributable to such Recovery Event; and

(c)                                  with respect to any issuance or incurrence of Indebtedness, the Cash proceeds thereof, net of all taxes and customary fees, commissions, costs and other expenses (including, legal, accounting and banking fees and expenses) incurred by the Borrower or any other Loan Party in connection therewith.

“New York Federal Courts” shall have the meaning given in Section 9.12(a).

“New York State Courts” shall have the meaning given in Section 9.12(a).

“NIGC” shall mean the National Indian Gaming Commission, or any successor agency.

“Non-Consenting Lender” shall have the meaning given in Section 2.22.

“Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Funding Term Lender” shall mean a Term Lender who is not a Regulated Bank, an Exempt Entity or a Licensed Lender and who has no unfunded Commitment or obligation to acquire an unfunded Commitment and who does not (a) make the initial funding, or have any obligation to make the initial funding, of all or any portion of a Loan or (b) acquire or have any obligation to acquire any participation in a Letter of Credit; provided that the term Non-Funding Term Lender may include an Eligible Assignee who is a Lender and purchases by assignment a Term Loan made or held by a Regulated Bank, an Exempt Entity or a Licensed Lender or held by a Non-Funding Term Lender.

“Note” shall mean a Term B Note, a Term C Note, an Incremental Term Note, a Revolving Note or a Swingline Note, as applicable.

“Note Sale and Purchase Agreement” shall mean the Note Sale and Purchase Agreement, entered into and effective as of December 9, 2015, by and between Lakes and the Developer.

“Obligations” shall mean all obligations of every nature of any Loan Party from time to time owed to any Secured Party under any Loan Document, Specified Hedging Agreement or Specified Cash Management Agreement, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to any Loan Party would have accrued on any Obligation, whether or not a claim is allowed against any Loan Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments for early termination of Specified Hedging Agreements and Specified Cash Management Agreements, fees, expenses, indemnification or otherwise; provided, that, for the avoidance of doubt, the “Obligations” shall not include the obligations of any Loan Party under the Subordinated Loan Credit Documents (other than the Subordinated Loan Subordination

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Agreement) or in respect of the Subordinated Loans or Converted Subordinated Commitments thereunder.

“Och-Ziff Entity” shall mean any Person that is an Affiliate of Och-Ziff Real Estate Advisors LP or its affiliated investment advisers.

“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.

“On-Site Cash” shall mean cage cash held on-site at the Project.

“Opening Date” shall have the meaning given in the Disbursement Agreement.

“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including interest, fines, penalties and additions to tax) arising from any payment made or the receipt or perfection of a security interest under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to a request by Borrower under Section 2.20 and other than Taxes imposed upon such assignment by the Tribe or any Affiliate thereof).

“Participant” shall have the meaning given in Section 9.04(b).

“Participant Register” shall have the meaning given in Section 9.04(b).

“Patriot Act” shall have the meaning given in Section 3.28.

“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor entity performing similar functions.

“Permits” shall mean any and all franchises, licenses (including, without limitation, Gaming Licenses), certificates of occupancy, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, easements, rights of way, and other rights, privileges and approvals required under any Legal Requirement.  Notwithstanding the foregoing, “Permits” shall not include any of the foregoing required for the furnishment and provision of alcohol by the Gaming Business.

“Permitted Liens” shall mean each of the Liens permitted pursuant to Section 6.02.

“Permitted Payments” shall mean:

(a)                                 payments of allocated costs actually incurred by the Tribe or an Affiliate of the Tribe for utilities or other governmental services used by the Borrower or its Subsidiaries, including, without limitation, police, fire, road improvements, sewage and other municipal or similar services, such allocation to be determined in good faith by the Borrower;

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(b)                                 payments to the Tribe for actual services, products or benefits rendered, performed or delivered to or for the benefit of the Borrower or its Subsidiaries, which are reasonably necessary or desirable in the operation of the Borrower, not to exceed the amount that would otherwise be paid for such services, products or benefits to a third party in an arm’s length transaction;

(c)                                  payments of any pro rata allocation of the Borrower’s or any of its Subsidiaries’ portion of actual third-party costs paid by the Tribe (or any Governmental Component of the Tribe) for the direct benefit of the Borrower or its Subsidiaries;

(d)                                 payment of allocated costs of employee benefits on market terms for employees of the Borrower or its Subsidiaries paid by the Tribe (or any Governmental Component of the Tribe), including allocated costs of third-party administration;

(e)                                  payments required to be made by the Tribe under the Compact;

(f)                                   payments required to be made by the Tribe to the NIGC under IGRA; and

(g)                                  payments made in respect of Permitted Taxes or Gaming Regulatory Fees and Payments.

If any Permitted Payment becomes due periodically at intervals which are greater than one month and do not exceed one year, the Borrower may elect to pay the amount of the Permitted Payment due during any such interval in installments, so long as the amount paid in any installment period does not exceed the proportionate share of such Permitted Payment allocable to such installment period, as reasonably determined by the Borrower.

“Permitted Refinancing Indebtedness” shall mean Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, renew or replace existing Indebtedness (“Refinanced Indebtedness”); provided that (a) the principal amount of such refinancing, refunding, extending, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness, plus the amount of unutilized commitments thereunder, plus the amount of any make-whole amounts, premiums or penalties and accrued and unpaid interest paid thereon and reasonable fees (including upfront fees and original issue discount) and expenses, in each case associated with such refinancing, refunding, extension, renewal or replacement, (b) such refinancing, refunding, extending, renewing or replacing Indebtedness has a final maturity that is no sooner than, and, other than in the case of revolving Indebtedness, a weighted average life to maturity that is no shorter than, such Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any Guarantees thereof are subordinated to the Obligations, such refinancing, refunding, extending, renewing or replacing Indebtedness and any Guarantees thereof remain so subordinated on terms no less favorable to the Lenders, (d) the obligors in respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending, renewing or replacing are, and/or the Borrower is, the only obligors on such refinancing, refunding extending, renewing or replacing Indebtedness; provided that any Loan Party shall be entitled to guarantee any such Indebtedness of any other Loan Party and (e) if such Refinanced Indebtedness consists of PNG Advances or Subordinated Loan Obligations, then the terms of such Permitted Refinancing

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Indebtedness would be permitted by Section 6.13(e) or (f) if such refinancing were an amendment or modification of such Refinanced Indebtedness.

“Permitted Taxes” shall mean sales, use, room occupancy, leisure and related excise taxes (but in no event income taxes), fees or assessments imposed by the Tribe on the Borrower or the Gaming Facilities, its patrons or operations; provided, however, that the aggregate rate and scope of such taxes, fees or assessments imposed shall not be materially inconsistent with similar taxes, fees or assessments imposed by the State or any county of the State from time to time.

“Person” shall mean any individual, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability company, partnership, Governmental Authority or other entity of whatever nature.

“Plan” shall have the meaning given in Section 9.04(j)(ii).

“Plans and Specifications” shall have the meaning given in the Disbursement Agreement.

“Platform” shall have the meaning given in Section 9.01(c).

“PNG” shall mean Penn National Gaming, Inc., a Pennsylvania corporation.

“PNG Advances” shall mean all loans made to the Borrower by the Developer or any of its Affiliates pursuant to any PNG Note, the Development Agreement or any other PNG Document, including all interest thereon as provided in any PNG Note, the Development Agreement or the relevant PNG Document; provided, that, for the avoidance of doubt, the PNG Advances shall not include the Subordinated Loans, the Converted Subordinated Commitments or any of the “Loans” hereunder.

“PNG Documents” shall mean the Management Agreement, the Development Agreement, the PNG Notes and any instruments or agreements executed pursuant thereto or in connection therewith; provided, that, for the avoidance of doubt, the PNG Documents shall not include the Loan Documents or the Subordinated Loan Credit Documents.

“PNG Notes” shall mean, collectively, (a) the Omnibus Secured Promissory Note, dated as of February 1, 2013, as amended by the First Amendment to Omnibus Secured Promissory Note, dated as of April 1, 2014, the Second Amendment to Omnibus Secured Promissory Note, dated as of November 30, 2014, and the Third Amendment to Omnibus Secured Promissory Note, dated as of June 30, 2015, made by the Tribe in favor of the Developer and (b) any other notes, agreements, instruments or other documents pursuant to which the Manager, Developer or any of their respective Affiliates provide advances, loans or other extensions of credit to the Borrower or its Affiliates; provided, that, for the avoidance of doubt, the PNG Notes shall not include the Loan Documents or the Subordinated Loan Credit Documents.

“PNG Subordination Agreement” shall mean that certain Subordination Agreement, dated as of the date hereof, among the Developer, the Manager, the Borrower and the Collateral Agent.

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“Prime Rate” shall mean, for any day, the prime rate published in The Wall Street Journal for such day as the “U.S. Prime Lending Rate”; provided that if The Wall Street Journal ceases to publish for any reason such rate of interest, “Base Rate” shall mean the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as reasonably determined by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates).

“Principal Office” shall mean, for each of the Administrative Agent and Issuing Bank, such Person’s “Principal Office” as set forth on Appendix A, or such other office as such Person may from time to time designate in writing to the Borrower, the Administrative Agent and each applicable Lender.

“Priority Distributions” shall mean Restricted Junior Payments made to the Tribe which may consist of distributions by the Borrower to the Tribe; provided that Restricted Junior Payments made by the Borrower to the Tribe pursuant to Section 6.04(h) or (i) shall not reduce the amount of Restricted Junior Payments permitted under Section 6.04(f)(i).

“Priority Payments” shall mean Priority Distributions, in an aggregate amount during the term of this Agreement not to exceed at any date of determination the sum of (a) the number of fiscal months ending on or after the Closing Date and on or prior to the earlier of (i) the date of determination and (ii) the last day of the fiscal month preceding the fiscal month in which the Project Opening Date occurs, times $155,000 (provided that in no event shall the aggregate amount under this clause (a) exceed $930,000), plus (b) the Initial Priority Payment Amount, plus (c) the number of fiscal months commencing after the month in which the Project Opening Date occurs and on or prior to the date of determination times $333,333.34.  To the extent that in any month the Borrower does not make such payments, but the Manager makes such payments on behalf of the Borrower, then the Borrower may thereafter make such payments to the Manager to reimburse the Manager for such payments.

“Pro Forma Balance Sheet” shall mean the unaudited pro forma consolidated balance sheet of the Borrower as at September 30, 2016.

“Pro Rata Share” shall mean:

(a)                                 with respect to all payments, computations and other matters relating to a particular Class of Term B Loan Commitment of any Term B Lender, the percentage obtained by dividing (i) the Term B Loan Commitment of such Class held by that Term B Lender by (ii) the aggregate Term B Loan Commitments of such Class;

(b)                                 with respect to all payments, computations and other matters relating to the Term B Loan of any Term B Lender, the percentage obtained by dividing (i) the Term B Loan Exposure of that Term B Lender by (ii) the aggregate Term B Loan Exposure of all Term B Lenders;

(c)                                  with respect to all payments, computations and other matters relating to a particular Class of Term C Loan Commitment of any Term C Lender, the percentage

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obtained by dividing (i) the Term C Loan Commitment of such Class held by that Term C Lender by (ii) the aggregate Term C Loan Commitments of such Class;

(d)                                 with respect to all payments, computations and other matters relating to the Term C Loan of any Term C Lender, the percentage obtained by dividing (i) the Term C Loan Exposure of that Term C Lender by (ii) the aggregate Term C Loan Exposure of all Term C Lenders;

(e)                                  with respect to all payments, computations and other matters relating to the Incremental Term Loan Commitments or Incremental Term Loans of a particular Series of any Incremental Term Lender, the percentage obtained by dividing (i) the Incremental Term Loan Exposure of that Incremental Term Lender with respect to that Series by (ii) the aggregate Incremental Term Loan Exposure of all Incremental Term Lenders with respect to that Series;

(f)                                   with respect to all payments, computations and other matters relating to the Extended Term Loans of a particular Series of any Extending Lender, the percentage obtained by dividing (i) the Extended Term Loan Exposure of that Extending Lender with respect to that Series by (ii) the aggregate Extended Term Loan Exposure of all Extending Lenders with respect to that Series; and

(g)                                  with respect to all payments, computations and other matters relating to the Revolving Commitment of a particular Series of Revolving Commitments or Revolving Loans of a particular Series of Revolving Commitments of any Revolving Lender or any Letters of Credit or Swingline Loans issued or participations purchased therein by any Revolving Lender, the percentage obtained by dividing (i) the Revolving Exposure of that Revolving Lender with respect to such Series by (ii) the aggregate Revolving Exposure of all Revolving Lenders with respect to such Series.

For all other purposes with respect to each Lender, “Pro Rata Share” shall mean the percentage obtained by dividing (A) an amount equal to the Aggregate Exposure of that Lender by (B) an amount equal to the sum of the Aggregate Exposure of all Lenders.

“Proceedings” shall mean any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting any Loan Party or the Tribe or any Property of such Person.

“Project” shall have the meaning given in the recitals to this Agreement.

“Project Budget” shall have the meaning given in Section 4.01(s).

“Project Costs” shall have the meaning given in the Disbursement Agreement.

“Project Documents” shall have the meaning given in the Disbursement Agreement.

“Project Opening Date” shall mean the first date on which the Project is open to the public for any Class II Gaming or Class III Gaming, which date is October 10, 2016.

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“Project Properties” shall mean, collectively, the properties upon which the Gaming Facilities, including the Project, are located.

“Project Schedule” shall have the meaning given in Section 4.01(t).

“Property” shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

“Protected Assets” shall mean (a) any interests in real property or any other assets held in trust by the United States of America for the benefit of the Tribe, or owned by any Tribal Party and are subject to restrictions by the United States of America against recovery to such property, (b) any assets against which it would be a violation of federal law, state law or the Compact to enforce remedies, (c) any assets belonging to or held in trust for individual members of the Tribe, including assets credited to trust accounts for minors or legally incompetent persons, (d) assets credited to any special revenue funds which are subject to restrictions in connection with the Tribe’s administration of any state or federal grants or programs, (e) all assets of the Tribe or its Affiliates used for a ceremonial purpose or all assets of the Tribe and its Affiliates (other than the Borrower) used for performing an essential governmental purpose within the meaning of Tax ▇▇▇▇ § ▇▇▇▇, (▇) the four acres of land owned in fee by the Tribe located near the Project’s location and (g) the proceeds of loans made by the Manager or any of its Affiliates to the Tribal Parties pursuant to Section 6.01(i)(x)(3) and Section 6.01(i)(x)(4).

“Public Lender” shall have the meaning given in Section 9.01(c)(i).

“Purchase Notice” shall mean a Solicited Discounted Purchase Notice, Discount Range Purchase Notice or Specified Discount Purchase Notice, as applicable (each, under, and as defined in, Exhibit O).

“Purchase Price” shall have the meaning given in Section 9.08(i)(iv).

“Qualified Gaming Company” shall mean a Person that (a) (i) together with its Subsidiaries: (A) derived at least $100,000,000 of Consolidated Adjusted EBITDA for its last four fiscal quarters from activities relating to the gaming business, other than Internet gaming; (B) has been licensed by the gaming authorities in at least one state of the United States to operate or manage a gaming business for at least two (2) years; (C) has not had any gaming license or approval in any jurisdiction of the United States terminated, revoked or suspended for more than ninety (90) days and (D) the principals of which have obtained any necessary regulatory approvals from the NIGC and the Gaming Commission or (ii) is a Subsidiary of a Person meeting the requirements of clause (i) above; and (b) becomes a party to a subordination agreement in substantially the same form as the PNG Subordination Agreement (or that is otherwise mutually agreeable to the Borrower, the Qualified Gaming Company and the Administrative Agent and for which the Administrative Agent has received a Subordination Declination Letter) as an assignee or transferee of or successor to the Manager.

“Qualified Management Team” shall mean, collectively, at least three individuals who (a) are employed by the Borrower and have the customary authority and responsibilities associated

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with positions of a chief executive officer, chief financial officer and general manager with respect to the Gaming Business, (b) have each held a comparable position for at least thirty-six (36) months in one or more casinos in the United States that are substantially the same as or exceed in size of gaming floor and amenities those of the Gaming Business and (c) are licensed, qualified and found suitable by all appropriate Gaming Agencies.

“Qualified Replacement Management Agreement” shall mean a replacement management agreement fully executed and delivered by the Borrower or the Tribe and by a Qualified Gaming Company for the management of the Gaming Business having such terms and conditions (including compensation to the manager thereunder), taken as a whole, that are not materially less favorable to the Borrower or the Secured Parties than the Management Agreement attached as Exhibit K hereto.

“Real Property” shall mean all real property owned, used or leased from time to time by any Loan Party.

“Recourse Assets” shall mean (a) all real and personal property in which the Borrower or any Guarantor has any right, title or interest, and (b) to the extent not included in clause (a), (i) all assets of the Tribe or any Affiliate of the Tribe used in a Gaming Business, (ii) all cash, Cash Equivalents, receivables and other assets generated by the businesses or assets referred to in clauses (a) and (b)(i) of this definition or constituting proceeds of the Indebtedness incurred pursuant to the Loan Documents or any other Indebtedness of the Loan Parties, and (iii) all proceeds, income and profits from any of the assets referred to in clauses (a) and (b) of this definition; provided, however, that “Recourse Assets” excludes (A) funds or other assets actually distributed to the Tribe in accordance with Section 6.04, (B) any Capital Stock in the Borrower or any of its Subsidiaries, (C) any surveillance equipment, computers or related equipment owned by the Gaming Commission and used in connection with its regulatory responsibilities and (D) any Protected Assets.

“Recovery Event” shall mean any settlement of or payment in respect of any property or casualty insurance claim (other than a settlement in respect of business interruption insurance) or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of the Borrower or any other Loan Party; provided that any such event or series of related events causing damage or destruction resulting in the payment of proceeds in an amount, or a taking of property having value, not in excess of $5,000,000 shall not be deemed a Recovery Event for purposes of this Agreement.

“Refinanced Indebtedness” shall have the meaning given in the definition of “Permitted Refinancing Indebtedness”.

“Register” shall have the meaning given in Section 2.06(b).

“Regulated Bank” shall mean a bank, savings and loan association, or other lending institution regulated under the laws of the United States or any state thereof.

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

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

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

“Reimbursement Date” shall have the meaning given in Section 2.04(d).

“Related Documents” shall mean, collectively, the Constitution, the Compact, the Gaming Ordinance, the Ground Lease, the Corporation Ordinance and the Resolutions.

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates, successors and assigns and the respective partners, trustees, members, controlling persons, directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates, successors and assigns.

“Release” shall mean any release, spill, seepage, emission, leaking, pumping, injection, pouring, emptying, deposit, disposal, discharge, dispersal, dumping, escaping, leaching or migration into, onto or through the environment or within or upon any building, structure, facility or fixture.

“Replacement Lender” shall have the meaning given in Section 2.22.

“Required Class Lenders” shall have the meaning given in Section 9.08(b)(v).  For the avoidance of doubt, the Incremental Term Loans and Term C Loans, in each case, held by Lenders that are not Affiliated Lenders shall be included in any determination of Required Class Lenders of the applicable Class.

“Required ECF Percentage” shall mean, for any Fiscal Quarter (or Fiscal Year, as applicable), commencing with the first full Fiscal Quarter ending after the Opening Date (or period commencing with the first full Fiscal Quarter ending after the Opening Date through the end of such Fiscal Year, as applicable), (a) 75%, if the Total Net Leverage Ratio as of the last day of such Fiscal Quarter (or Fiscal Year, as applicable) is equal to or greater than 4.50:1.00; (b) 50%, if the Total Net Leverage Ratio is less than 4.50:1.00 but equal to or greater than 3.50:1.00 as of the last day of such Fiscal Quarter (or Fiscal Year, as applicable); (c) 25%, if the Total Net Leverage Ratio is less than 3.50:1.00 but equal to or greater than 2.50:1.00 as of the last day of such Fiscal Quarter (or Fiscal Year, as applicable); and (d) 0%, if the Total Net Leverage Ratio is less than 2.50:1.00 as of the last day of such Fiscal Quarter (or Fiscal Year, as applicable).

“Required Lenders” shall mean, at any time of determination, one or more Lenders (other than Defaulting Lenders) collectively having or holding Aggregate Exposure representing more than 50% of the Aggregate Exposure of all Lenders at such time.  The Aggregate Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.  For the avoidance of doubt, the Incremental Term Loans and Term C Loans, in each case, held by Lenders that are not Affiliated Lenders shall be included in any determination of Required Lenders.

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“Required Revolving Facility Lenders” shall mean, at any time of determination, Lenders (other than Defaulting Lenders) holding more than 50% of the Revolving Exposure of all Lenders.  The Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Facility Lenders at any time.

“Resolutions” shall mean the Resolutions of the General Council authorizing the Loan Documents and the Resolutions of the Borrower authorizing the Loan Documents.

“Responsible Officer” shall mean (a) (i) as applied to the Tribe, the chairperson of the Executive Committee or clerk of the Tribe, (ii) as applied to the Borrower, the chairperson of the Board of Directors and (iii) as applied to any other Person, any executive officer of such Person and (b) any Financial Officer of the Tribe, Borrower or other Person, as applicable, and any other officer or similar official thereof responsible for the administration of the obligations of the Tribe, the Borrower or such other Person, as applicable, in respect of this Agreement.

“Restoration Proceeds” shall have the meaning given in Section 2.13(a)(ii).

“Restricted Junior Payment” shall mean (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of equity (including Capital Stock and preferred equity) of the Borrower, now or hereafter outstanding, except a dividend payable solely in shares of that class of equity to the holders of that class; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of equity (including Capital Stock and preferred equity) of the Borrower, now or hereafter outstanding; (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of equity (including Capital Stock and preferred equity) of the Borrower, now or hereafter outstanding; (d) management, oversight or similar fees payable to PNG or any Affiliate of any Loan Party (in each case other than to a Loan Party), including, for the avoidance of doubt, the Management Fees; (e) any transfer or deposit of funds into the Tribal Restricted Junior Payments Account; (f) any payment or prepayment of principal of, premium, if any, on, or any payment or prepayment of interest (including interest paid in kind) on, or redemption, purchase, retirement, defeasance (including in substance or legal defeasance), sinking fund or similar payment with respect to the PNG Advances, the Subordinated Loans (and any Permitted Refinancing Indebtedness incurred in respect thereof) and any Indebtedness payable to any Affiliate of a Loan Party; and (g) any payment, prepayment, distribution or other transfer of any money or other property to, or deposit of funds for, directly or indirectly to or for the benefit of the IGA Parties (or any of them) on account of the IGA Payments.  The term “Restricted Junior Payment” shall, in any event, also include each of the following:

(a)                                 any payment, assignment, appropriation, allocation or transfer of any asset or property to or for the account or benefit of the Tribe, any Affiliate of the Tribe, any general or other fund of the Tribe, any member of the Tribe, or any relative of any member of the Tribe (other than to the Borrower or a Subsidiary), or any of their respective officers, directors or employees, including payments of dividends, fees, assessments, Taxes, principal, interest or other amounts;

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(b)                                 any Investment (whether by means of loans, advances or otherwise) in or to or for the account or benefit of the Tribe or any of its Affiliates, any members of the Tribe or relatives of members of the Tribe or any of their respective officers, directors or employees (except Investments among any two or more of the Borrower and its Subsidiaries); and

(c)                                  any payment of Basic Rent or Additional Rent.

For the avoidance of doubt, Restricted Junior Payment shall not include any transfer of funds from the Tribal Restricted Junior Payments Account.

“Retained ECF Amount” shall mean, at any time, an amount not less than zero, equal to:

(a)                                 the aggregate amount of Consolidated Excess Cash Flow for all Fiscal Quarters commencing with the first full Fiscal Quarter after the Opening Date (not less than zero) and ended prior to such date and for which financial statements have been delivered pursuant to Section 5.01(b) or (c), minus the portion of such Consolidated Excess Cash Flow that has been (or is, or previously was, required to be) applied to prepay the Loans pursuant to Section 2.13(c), minus, without duplication, any voluntary prepayments or redemptions or repurchases of Loans that previously reduced the amount of the required prepayment pursuant to Section 2.13(c); plus

(b)                                 the aggregate amount of Investments received by the Loan Parties after the Opening Date from capital contributions by, or on behalf of, the Tribe or the issuance of Capital Stock (including upon conversion or exchange of a debt instrument into or for any Capital Stock (other than Disqualified Capital Stock)) received by the Borrower from or in exchange for the issuance of Capital Stock (other than Disqualified Capital Stock) after the Opening Date and on or prior to such date; plus

(c)                                  the aggregate amount of any returns, received since the Closing Date and on or prior to such date (including with respect to contracts related to such Investments and including dividends, interest, distributions, returns of principal, sale proceeds, repayments, income, payments under contracts relating to such Indebtedness and similar amounts) by the Borrower or any Subsidiary in respect of any Investments made by the Borrower or a Subsidiary pursuant to Section 6.06(o) to the extent not included in Consolidated Net Income; minus

(d)                                 the aggregate amount, without duplication, of any (i) Investments made pursuant to Section 6.06(o) or 6.06(p), (ii) Restricted Junior Payments made pursuant to Section 6.04(h), (iii) prepayments of the Term Loans and the Subordinated Loans made pursuant to Section 2.12(d) and (iv) Consolidated Capital Expenditures and deposits to the Capital Replacement Reserve Account funded with the Retained ECF Amount pursuant to Section 6.18(b)(ii)(4) (in each case, in reliance on the then-outstanding Retained ECF Amount) made since the Closing Date and on or prior to such date.

“Revolving Commitment” shall mean the commitment of a Revolving Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and

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Swingline Loans hereunder and “Revolving Commitments” shall mean such commitments of all Revolving Lenders in the aggregate; it being understood that a Revolving Lender’s Revolving Commitment shall include any Extended Revolving Commitments of such Revolving Lender.  The amount of each Revolving Lender’s Revolving Commitment is set forth on Annex III and/or in any Assignment and Acceptance to which such Revolving Lender assumed any Revolving Commitments, subject to any adjustment or reduction pursuant to the terms and conditions hereof.  The aggregate amount of the Revolving Commitments as of the Closing Date is $5,000,000.

“Revolving Commitment Period” shall mean the period from the Closing Date to but excluding the Revolving Commitment Termination Date.

“Revolving Commitment Termination Date” shall mean the earliest to occur of (a) the sixth anniversary of the Closing Date (or, with respect to any Extended Revolving Commitments, the maturity date of such Extended Revolving Commitments set forth in the applicable Extension Amendment), (b) the date the Revolving Commitments are permanently reduced to zero pursuant to Sections 2.12 through 2.14 and (c) the date of the termination of the Revolving Commitments pursuant to Section 7.01.

“Revolving Credit Facility” shall mean the Revolving Commitments and the extensions of credit made thereunder.

“Revolving Exposure” shall mean, with respect to any Revolving Lender as of any date of determination, the sum of (a) the aggregate outstanding principal amount of the Revolving Loans of such Revolving Lender, (b) the aggregate amount of all participations by that Revolving Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (c) the aggregate amount of all participations by such Revolving Lender in any outstanding Swingline Loans and (d) the amount of such Revolving Lender’s Revolving Commitment (excluding any portion thereof that has been terminated or that has been funded and is outstanding as of such date and excluding the aggregate amount of all participations by that Revolving Lender in any outstanding Letters of Credit and Swingline Loans or any unreimbursed drawing under any Letter of Credit).

“Revolving Extension Request” shall have the meaning specified in Section 2.25(b).

“Revolving Lender” shall mean a Lender with a Revolving Commitment, an outstanding Revolving Loan or an outstanding participation in a Letter of Credit or Swingline Loan and shall include, unless the context indicates otherwise, the Issuing Bank and the Swingline Lender.

“Revolving Loan” shall mean a loan made by a Revolving Lender to the Borrower pursuant to Section 2.02.

“Revolving Note” shall mean a promissory note substantially in the form of Exhibit A-2.

“Roadway Improvement” shall have the meaning given in the Disbursement Agreement.

“S&P” shall mean Standard & Poor’s Ratings Group, Inc., a New York corporation, or any successor thereof.

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“Sanctioned Country” shall mean, at any time, a country or territory which is itself the subject or target of a comprehensive sanctions program by the United States government, the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom (at the time of the Closing Date, Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine, and Syria).

“Sanctioned Person” mean (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇-▇▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to time, (b) a Person named on the lists maintained by the United Nations Security Council available at ▇▇▇▇://▇▇▇.▇▇.▇▇▇/▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇_▇▇▇▇▇▇▇.▇▇▇▇▇, or as otherwise published from time to time, (c) a Person named on the lists maintained by the European Union available at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇.▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇-▇▇▇▇_▇▇.▇▇▇, or as otherwise published from time to time, (d) a Person named on the lists maintained by Her Majesty’s Treasury available at ▇▇▇▇://▇▇▇.▇▇-▇▇▇▇▇▇▇▇.▇▇▇.▇▇/▇▇▇_▇▇▇▇▇▇▇▇▇_▇▇▇▇▇.▇▇▇, or as otherwise published from time to time, or (e) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

“Scheduled Opening Date” shall have the meaning given in the Disbursement Agreement.

“Scheduled Maturity Date” shall mean the sixth anniversary of the Closing Date.

“Scheduled Substantial Completion Date” shall have the meaning given in the Disbursement Agreement.

“SEC” shall mean the Securities and Exchange Commission or any successor thereof.

“Secured Obligations” shall have the meaning given in the Security Agreement.

“Secured Parties” shall mean, the Joint Lead Arrangers, Agents, the Lenders, the Swingline Lender, the Issuing Bank, the Specified Hedging Counterparties and Specified Cash Management Counterparties and shall include, without limitation, all former Joint Lead Arrangers, Agents, Lenders, Swingline Lenders, Issuing Banks, Specified Hedging Counterparties and Specified Cash Management Counterparties (including each co-agent, sub-agent and attorney-in-fact appointed by the Agents from time to time pursuant to Article VIII) to the extent that any Obligations owing to such Persons were incurred while such Persons were a Joint Lead Arranger, Agent, Swingline Lender, Lender, Issuing Bank, Specified Hedging Counterparty or Specified Cash Management Counterparty (including co-agents, sub-agents and attorneys-in-fact appointed by the Agents from time to time pursuant to Article VIII) and such Obligations have not been paid or satisfied in full.  For the avoidance of doubt, the lenders under the Subordinated Loan Credit Agreement, in their capacities as such, shall not be Secured Parties hereunder.

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“Secured Transactions Statute” shall mean the Tribe’s law governing secured transactions, enacted as the Jamul Indian Village Amended and Restated Secured Transactions Code, Ordinance No. 2015-31, as adopted by the General Council on November 15, 2015.

“Securities” shall mean any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Account Control Agreement” shall have the meaning given in the Security Agreement.

“Security Agreement” shall mean the Security Agreement, substantially in the form of Exhibit C-2, dated as of the date hereof, among each Loan Party and the Collateral Agent.

“Security Documents” shall mean the Security Agreement, the Control Agreements, the Intellectual Property Security Agreements, the Consents and each of the other security agreements, pledges, consents and other instruments and documents executed and delivered pursuant to any of the foregoing, or pursuant to Section 5.11, 5.13 or 5.14 or that otherwise are intended or purport to grant and/or perfect Liens to or for the benefit of the Collateral Agent for the benefit of the Secured Parties to secure all or a portion of the Obligations.

“Senior Permitted Liens” shall mean each of the following:  Permitted Liens granted or permitted under Section 6.02(b), (c), (d), (e), (f), (g), (h), (i), (j), (l), (m), (n), (o), (q), (r), (t) or (v) as applicable.  Notwithstanding the foregoing, the foregoing Liens shall be deemed Senior Permitted Liens only to the extent given priority over the Lien created under the Loan Documents pursuant to applicable law or pursuant to documentation entered into by the Administrative Agent in accordance with Section 8.09(a).

“Senior Secured Net Leverage Ratio” shall mean, on any date, the ratio of (a) (i) Consolidated Funded Debt that is secured by Liens on property or assets of the Borrower or its Subsidiaries as of such date, minus (ii) the aggregate amount of Unrestricted Cash (other than any such Cash constituting cage cash or other amounts required to be held pursuant to applicable Gaming Laws), not to exceed $10,000,000, to (b) Consolidated Adjusted EBITDA for (1) except in the case of determining the Term C Loan Conversion Amount, the period of four consecutive Fiscal Quarters most recently ended on or prior to such date, or if less, the period commencing on the first day of the first full Fiscal Quarter after the Opening Date and ending on the last day of the Fiscal Quarter ending on such date, in each case, taken as one accounting period; provided that for purposes of determining Consolidated Adjusted EBITDA when determining the Senior Secured Net Leverage Ratio for the first, second and third full Fiscal Quarters following the Opening Date, each such amount shall be determined for the period commencing with the first day of the first full Fiscal Quarter following the Opening Date through the last day of the Fiscal Quarter then being tested and multiplied by a factor of 4, 2 and 4/3, respectively or (2) purposes of determining the Term C Loan Conversion Amount, the period from the Project Opening Date

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through the date that is 365 days after the Project Opening Date, taken as one accounting period.  For purposes of the definition of “Term C Loan Conversion Amount” only, all Delayed Draw Term C Loan Commitments in effect as of the Term C Loan Conversion Date shall be deemed to be fully drawn and outstanding as Consolidated Funded Debt.

“Series” shall mean a separate series of Loans.

“Services Payments” shall mean any annual payments made pursuant to that certain Service Agreement between the County of San Diego and the Tribe, dated January 21, 2016, or that certain Intergovernmental Agreement between the Tribe and the County of San Diego, dated May 17, 2016.

“Shared Immunity Person” shall have the meaning given in Section 9.11(a).

“Solvency Certificate” shall mean a Solvency Certificate of the Borrower substantially in the form of Exhibit D.

“Solvent” shall mean, with respect to any Person, that as of the date of determination, both (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets on a going concern basis (assuming that a third party would be permitted under applicable law to own and operate such assets); (ii) such Person’s capital is not unreasonably small in relation to its business (taking into account, where applicable, that the Borrower’s business prior to the Opening Date is expected to consist primarily of development and construction of the Project); and (iii) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances (subject to the qualifications set forth in the parentheticals to clauses (a)(i) and (a)(ii) above, to the extent applicable).  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Government Accounting Standards Interpretation No. 6).

“Specified Cash Management Agreement” shall mean any Cash Management Agreement entered into by (a) the Borrower or any other Loan Party and (b) any Person that is an Agent, a Joint Lead Arranger, a Lender or an Affiliate of an Agent, a Joint Lead Arranger or a Lender, in each case, at the time of entering into such Cash Management Agreement (even if such Person subsequently ceases to be an Agent, a Joint Lead Arranger, a Lender or an Affiliate of an Agent, a Joint Lead Arranger or a Lender) (each a “Specified Cash Management Counterparty”); provided that (i) the designation of any Cash Management Agreement as a Specified Cash Management Agreement shall not alone create in favor of a Specified Cash Management Counterparty any rights in connection with the management or release of any Collateral or Obligations under the Loan Documents, and (ii) as a condition to any Cash Management Agreement being designated as a Specified Cash Management Agreement, the applicable Specified Cash Management Counterparty(ies) shall have appointed the Administrative Agent

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and the Collateral Agent as its agents under the applicable Loan Documents and agreed to be bound by the provisions of Article VIII in favor of the Agents as if it were a Lender, including Section 8.03 and Section 8.07, and shall have been deemed to have made the representations and warranties set forth in Section 8.06 in favor of the Agents.

“Specified Cash Management Counterparty” shall have the meaning given in the definition of Specified Cash Management Agreement.

“Specified Disqualified Term B Lender” shall mean, on any date, any Person identified on Schedule 1.01(a) on the Closing Date.

“Specified Disqualified Term C Lender” shall mean, on any date, any Person identified on Schedule 1.01(b) on the Closing Date.

“Specified Hedging Agreement” shall mean any Hedging Agreement entered into by (a) the Borrower or any other Loan Party and (b) any Person that is an Agent, a Joint Lead Arranger, a Lender or an Affiliate of an Agent, a Joint Lead Arranger or a Lender, in each case, at the time of entering into such Hedging Agreement (even if such Person subsequently ceases to be an Agent, a Joint Lead Arranger, a Lender or an Affiliate of an Agent, a Joint Lead Arranger or a Lender) (each a “Specified Hedging Counterparty”); provided that (i) the designation of any Hedging Agreement as a Specified Hedging Agreement shall not alone create in favor of a Specified Hedging Counterparty any rights in connection with the management or release of any Collateral or Obligations under the Loan Documents, and (ii) as a condition to any Hedging Agreement being designated as a Specified Hedging Agreement, the applicable Specified Hedging Counterparty(ies) shall have appointed the Administrative Agent and the Collateral Agent as its agents under the applicable Loan Documents and agreed to be bound by the provisions of Article VIII in favor of the Agents as if it were a Lender, including Section 8.03 and Section 8.07, and shall have been deemed to have made the representations and warranties set forth in Section 8.06 in favor of the Agents.

“Specified Hedging Counterparty” shall have the meaning given in the definition of Specified Hedging Agreement.

“Specified Prepayment” shall have the meaning given in Section 2.12(c).

“State” shall mean the State of California.

“Subordinated Intercompany Note” shall mean an Intercompany Subordinated Demand Promissory Note, substantially in the form of Exhibit J, among each of the Loan Parties.

“Subordinated Loan Credit Agreement” shall mean the Subordinated Loan Agreement in substantially the form of Exhibit Q, dated as of the Closing Date, by and among the Tribe, the Borrower, and the lenders from time to time party thereto.

“Subordinated Loan Credit Documents” shall mean the “Loan Documents” under and as defined in the Subordinated Loan Credit Agreement.

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“Subordinated Loan Obligations” shall mean the “Obligations” as defined in the Subordinated Loan Credit Agreement.

“Subordinated Loan Subordination Agreement” shall mean the Subordination Agreement in substantially the form of Exhibit R, to be entered into by and among the Collateral Agent, the Borrower and the administrative agent under the Subordinated Loan Credit Agreement.

“Subordinated Loans” shall mean the “Loans” under and as defined in the Subordinated Loan Credit Agreement (including, for the avoidance of doubt, any Subordinated Term Loans and any GMP Loans), including any interest capitalized or paid in kind with respect to the Subordinated Term Loans.

“Subordinated Term Loans” shall mean the “Term Loans” under and as defined in the Subordinated Loan Credit Agreement, including any interest capitalized or paid in kind with respect to the such “Term Loans”.

“Subordination Agreements” means, together, the PNG Subordination Agreement and the Subordinated Loan Subordination Agreement.

“Subordination Declination Letter” shall mean, with respect to a subordination agreement delivered in accordance with clause (b) of the definition of Qualified Gaming Company, a written opinion from the general counsel of the NIGC to the effect that within the meaning of IGRA such subordination agreement (a) is not a management contract and (b) does not grant a proprietary interest in any gaming conducted by or on behalf of the Borrower or the Tribe.

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person Controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.  Unless otherwise stated, any reference to a “Subsidiary” in this Agreement or any other Loan Document shall mean a Subsidiary of the Borrower.

“Substantial Completion” shall have the meaning given in the Disbursement Agreement.

“Substantial Completion Date” shall have the meaning given in the Disbursement Agreement.

“Substitute Lender” shall have the meaning given in Section 9.26(a).

“Supplemental Payment Amounts” shall mean PNG Advances or GMP Loans to the Borrower or the Tribe in an aggregate principal amount from and after the Project Opening Date not to exceed at any date of determination (a) the Initial GMP Amount, plus (b) the product of (i)

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the number of fiscal months commencing after the month in which the Project Opening Date occurs and on or prior to the date of determination times (ii) $500,000; provided that, for any fiscal month, the Supplemental Payment Amount shall not exceed the positive difference (if any) between $500,000 less the aggregate amount of Restricted Junior Payments made to the Tribe pursuant to Sections 6.04(f)(i) and 6.04(h) in any such fiscal month.

“Swingline Lender” shall have the meaning given in the preamble to this Agreement.

“Swingline Loan” shall mean a Loan made pursuant to Section 2.03.

“Swingline Loan Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans pursuant to Section 2.03.  The Swingline Loan Commitment is part of, and not in addition to, the Revolving Commitments.

“Swingline Note” shall mean a promissory note made by the Borrower to the Swingline Lender, substantially in the form of Exhibit A-3.

“Swingline Sublimit” shall mean the lesser of (a) $2,500,000 and (b) the aggregate unused amount of the Revolving Commitments then in effect.

“Tax” shall mean any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature (including interest, penalties and additions thereto) and whatever called, by any Governmental Authority, on whomsoever and wherever imposed, levied, collected, withheld or assessed.

“Tax Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations issued thereunder.

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

“Term B Loan” shall mean Term B Loans funded to the Borrower on the Closing Date under the Term B Loan Commitments, other than any such Term Loan that is converted to an Extended Term Loan pursuant to Section 2.25.

“Term B Loan Account Proceeds” shall mean, collectively, the Credit Facilities Loan Proceeds Account Collateral, the Contingency Reserve Account Collateral, the Credit Facilities Interest Reserve Account Collateral, the Cash Management Account Collateral and the Construction Disbursement Account Collateral, in each case, to the extent that the amounts therein and “financial assets” and “investment property” (each as defined in the UCC) credited thereto or held therein or related thereto constitute proceeds of the Term B Loans and any interest thereon and investment earnings with respect thereto.

“Term B Loan Commitment” shall mean, with respect to any Lender, such Lender’s commitment to make or otherwise fund a Term B Loan on the Closing Date pursuant to Section 2.01(a), in the amount set forth on Annex I or in any Assignment and Acceptance pursuant to which such Lender assumed any Term B Loan Commitments, subject to any adjustment or

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reduction pursuant to the terms and conditions hereof.  The aggregate principal amount of the Term B Loan Commitments as of the Closing Date is $340,000,000.

“Term B Loan Exposure” shall mean, with respect to any Term B Lender, as of any date of determination, the sum of (a) the outstanding principal amount of the Term B Loans of such Term B Lender plus (b) such Lender’s Term B Loan Commitment (exclusive of any portion thereof that has been terminated by funding or otherwise).

“Term B Loan Facility” shall mean the Term B Loan Commitments and the Term B Loans made thereunder.

“Term B Loan Maturity Date” shall mean the earlier of (a) the Scheduled Maturity Date and (b) the date that all Term B Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

“Term B Note” shall mean a promissory note substantially in the form of Exhibit A-1-1.

“Term C Lender” shall mean a Lender with an outstanding Term C Loan Commitment or an outstanding Term C Loan.

“Term C Loan” shall mean any Closing Date Term C Loan and any term loan funded pursuant to the Delayed Draw Term C Loan Commitments and any Additional Term C Loans, in each case, other than any such Term Loan that is converted to an Extended Term Loan pursuant to Section 2.25 or that is converted to a Subordinated Term Loan pursuant to the Term C Loan Conversion.

“Term C Loan Commitment” shall mean, with respect to any Lender, such Lender’s Closing Date Term C Loan Commitment or such Lender’s Delayed Draw Term C Loan Commitment, and “Term C Loan Commitments” shall mean such commitments of all Lenders.

“Term C Loan Conversion” shall have the meaning given in Section 2.01(f)(i).

“Term C Loan Conversion Amount” shall mean, as of the Term C Loan Conversion Date, (i) if the Senior Secured Net Leverage Ratio on the first anniversary of the Project Opening Date (calculated assuming that the Delayed Draw Term C Loan Commitments had been fully drawn), for the 365-day period ending on such date, is less than or equal to 5.00:1.00, $0 and (ii) if the Senior Secured Net Leverage Ratio on the first anniversary of the Project Opening Date (calculated assuming that the Delayed Draw Term C Loan Commitments had been fully drawn), for the 365-day period ending on such date, is greater than 5.00:1.00, such principal amount of Term C Loans and Delayed Draw Term C Loan Commitments (but no more than the sum of the aggregate principal amount of Term C Loans outstanding at such time and the aggregate principal amount of Delayed Draw Term C Loan Commitments in effect at such time) such that, upon the conversion thereof to Subordinated Term Loans and/or Converted Subordinated Commitments, as applicable, the Senior Secured Net Leverage Ratio, determined on a pro forma basis (after giving effect to such conversion and assuming that the Delayed Draw Term C Loan Commitments had been fully drawn) as of the first anniversary of the Project Opening Date, for the 365-day period ending on such date, would be equal to 5.00:1.00 (or if upon conversion of all Delayed Draw Term C Loan Commitments and Term C Loans to Converted Subordinated

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Commitments and Subordinated Term Loans, as applicable, the Senior Secured Net Leverage Ratio as so determined would be greater than 5.00:1.00, then the Term C Loan Conversion Amount shall be an amount equal to the aggregate principal amount of Delayed Draw Term C Loan Commitments in effect and Term C Loans outstanding at such time), in each case as set forth in the applicable Compliance Certificate.  Notwithstanding the foregoing, if the Borrower fails to deliver a properly completed and executed Compliance Certificate on or before the date that is thirty (30) days after the date required by Section 5.01(s) for the period from the first anniversary of the Project Opening Date through the date that is 365 days following the Project Opening Date, for the 365-day period ending on such date, the Term C Loan Conversion Amount shall be an amount equal to the sum of the full outstanding principal amount of the Term C Loan and the full amount of the Delayed Draw Term C Loan Commitments in effect on the Term C Loan Conversion Date.

“Term C Loan Conversion Date” shall have the meaning given in Section 2.01(f)(i).

“Term C Loan Exposure” shall mean, with respect to any Term C Lender, as of any date of determination, the sum of (a) the outstanding principal amount of the Term C Loans of such Term C Lender plus (b) such Lender’s Closing Date Term C Loan Commitment (exclusive of any portion thereof that has been terminated by funding or otherwise).

“Term C Loan Facility” shall mean the Term C Loan Commitments and the Term C Loans made thereunder.

“Term C Loan Maturity Date” shall mean the earlier of (a) the Scheduled Maturity Date and (b) the date that all Term C Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

“Term C Note” shall mean a promissory note substantially in the form of Exhibit A-1-2.

“Term Lender” shall mean a Term B Lender, a Term C Lender, an Incremental Term Lender or an Extending Lender of an Extended Term Loan.

“Term Loan” shall mean a Term B Loan, a Term C Loan, an Incremental Term Loan or an Extended Term Loan.

“Term Loan Commitment” shall mean the Term B Loan Commitment, the Term C Loan Commitment or the Incremental Term Loan Commitment of a Lender, and “Term Loan Commitments” shall mean such commitments of all Lenders.

“Term Loan Extension Request” shall have the meaning given in Section 2.25(a).

“Terminated Lender” shall have the meaning given in Section 2.22.

“Total Net Leverage Ratio” shall mean, on any date, the ratio of (a) (i) Consolidated Funded Debt on such date, minus (ii) the aggregate amount of Unrestricted Cash (other than any such Cash constituting cage cash or other amounts required to be held pursuant to applicable Gaming Laws), not to exceed $10,000,000, to (b) Consolidated Adjusted EBITDA, in each case, for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date,

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taken as one accounting period or, if less, the period commencing on the first day of the first full Fiscal Quarter after the Opening Date and ending on the last day of the Fiscal Quarter ending on such date; provided that for purposes of determining Consolidated Adjusted EBITDA when determining the Total Net Leverage Ratio for the first, second and third full Fiscal Quarters following the Opening Date, each such amount shall be determined for the period commencing with the first full Fiscal Quarter following the Opening Date through the last day of the Fiscal Quarter then being tested and multiplied by a factor of 4, 2 and 4/3, respectively.

“Total Utilization of Revolving Commitments” shall mean, as at any date of determination, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of reimbursing the Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (b) the aggregate principal amount of all outstanding Swingline Loans and (c) the Letter of Credit Usage; provided that, for purposes of the calculation of commitment fees pursuant to Section 2.10(c)(i), the aggregate principal amount of all outstanding Swingline Loans shall not be included in “Total Utilization of Revolving Commitments”.

“Trade Date” shall have the meaning specified in Section 9.04(j).

“Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties and the Tribe of the Loan Documents, the Subordinated Loan Credit Documents and the Related Documents to which they are a party, (b) the borrowings hereunder and the issuance of Letters of Credit and the borrowings under the Subordinated Loan Credit Documents and the use of proceeds of each of the foregoing, (c) the granting of Liens pursuant to the Security Documents, (d) the transactions described in Section 3.13 and Section 3.13 of the Subordinated Loan Credit Agreement and (e) any other transactions entered into by the Tribe and the Loan Parties in connection with any of the foregoing and contemplated in the Loan Documents and/or the Subordinated Loan Credit Documents.

“Tribal Final Environmental Evaluation” shall mean the Tribal Final Environmental Evaluation, as certified pursuant to Resolution No. 2013-03 adopted by the General Council on January 23, 2013, as supplemented in January, 2015.

“Tribal Officer” shall have the meaning given to such term in Section 9.12(f).

“Tribal Party” shall have the meaning given to such term in Section 9.11(a).

“Tribal Provisions” shall mean the Tribe’s representations, warranties, covenants, obligations, duties, and undertakings in the Loan Documents, including the Tribe’s representations, warranties, covenants, obligations, duties, and undertakings in Section 3.01; Section 3.02; Section 3.03; Section 3.04; Section 3.06; Section 3.07; Section 3.09; Section 3.10; Section 3.14; Section 3.15; Section 3.17 (solely with respect to the Project Properties); Section 3.21; Section 3.25; Section 3.26; Section 3.29; Section 3.30; Section 3.31; Section 3.32; Section 3.33; Section 3.34; Section 3.35; Section 3.36; Section 3.37; Section 3.38; Section 3.39; Section 3.40; Section 3.41; Section 3.42(b); Section 5.01(d); Section 5.01(f)(ii); Section 5.01(g)(ii); Section 5.01(m)(ii); Section 5.01(o); Section 5.01(p); Section 5.09(b); Section 5.09(d); Section 5.15; Section 5.16; Section 5.19; Section 6.15; Section 6.16; Section 6.20;

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Section 9.05(d); Section 9.11; Section 9.12; Section 9.13; Section 9.14; Section 9.15; Section 9.16; Section 9.17 and Section 9.32 (and the corresponding provisions of each other Loan Document).

“Tribal Restricted Junior Payments Account” shall mean such account as may be designated by the Borrower to the Administrative Agent from time to time as the Tribal Restricted Junior Payments Account.

“Tribe” shall have the meaning set forth in the preamble to this Agreement

“Type” shall mean, with respect to either Term Loans, Revolving Loans or Swingline Loans, whether such Loan is an ABR Loan or a LIBOR Loan.

“UCC” shall mean the Uniform Commercial Code, as in effect from time to time in any jurisdiction, including, without limitation the Secured Transactions Statute.

“Unrestricted Cash” shall mean Cash and Cash Equivalents of the Borrower and the other Loan Parties as of such date that is held in an account subject to a Control Agreement in favor of the Collateral Agent and is not restricted from being applied to repay the Obligations (provided that, for the avoidance of doubt, Cash and Cash Equivalents shall not be deemed restricted as a result of (x) being held in such an account subject to a Control Agreement in favor of the Collateral Agent or (y) otherwise being subject to the Lien securing the Obligations).

“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“wholly owned Subsidiary” of any Person shall mean a Subsidiary of such Person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Capital Stock are, at the time any determination is being made, owned, Controlled or held by such Person or one or more wholly owned Subsidiaries of such Person or by such Person and one or more wholly owned Subsidiaries of such Person.

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

“Withdrawal Period” shall have the meaning given in Section 9.26(b).

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

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SECTION 1.02                                      Terms Generally.

The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”, and words of similar import, shall not be limiting and shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require.  The word “or” is not exclusive.  Unless the context otherwise requires, the expressions “payment in full,” “paid in full” and any other similar terms or phrases when used with respect to the Obligations, the Secured Obligations, the Guaranteed Obligations or the Obligations in respect of any Class or Facility, shall mean the termination of all the Commitments (or all of the Commitment in respect of such Class or Facility, as the case may be), payment in full, in Cash, of all of the Obligations (or all of the Obligations in respect of such Class or Facility, as the case may be) (other than any unasserted contingent reimbursement or indemnity obligations and other than Letter of Credit Obligations that have been Cash Collateralized pursuant to the terms of this Agreement or with respect to which the applicable Issuing Bank has received a letter of credit backstopping such Letter of Credit in a manner reasonably acceptable to such Issuing Bank and the Administrative Agent), in the case of all of the Obligations, the Guaranteed Obligations, the Secured Obligations or the Obligations in respect of the Revolving Credit Facility, the cancellation or expiration of all Letters of Credit (other than Letters of Credit that have been Cash Collateralized pursuant to the terms of this Agreement or otherwise backstopped as provided above) and in the case of all of the Obligations, the Guaranteed Obligations or the Secured Obligations, the termination of all Specified Hedging Agreements and Specified Cash Management Agreements (except to the extent otherwise agreed by the parties to such Specified Hedging Agreements and Specified Cash Management Agreements).  All references herein to Articles, Sections, Appendices, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits, Appendices and Schedules to, this Agreement unless the context shall otherwise require.  In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”.  Unless expressly described to the contrary, references to (a) any document, instrument or agreement (i) shall include all exhibits, schedules and other attachments thereto and (ii) shall mean such document, instrument or agreement as amended, amended and restated, supplemented or otherwise modified (or reaffirmed by any reaffirmation or other agreement) from time to time and in effect at the time of determination (subject, in each case, to any restrictions on such amendments, restatements, supplements or modifications set forth herein) and (b) provisions of any statute, rule or regulation or other similar Governmental Act shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such statute, rule, regulation or Governmental Act.  Any defined terms used herein or in any other Loan Document having meanings given to such terms in any other Loan Document or any other agreement shall (a) continue to have the meanings given to such terms in such other Loan Document or other agreement notwithstanding any termination of such other Loan Document or other agreement and (b) mean the defined term as in effect in such other Loan Document or agreement on the Closing Date unless the Administrative Agent or, to the extent required by Section 9.08, the

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Required Lenders or such other percentage of Lenders as is required by Section 9.08, are parties to the amendment of such other Loan Document or agreement.

SECTION 1.03                                      Classification of Loans.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “LIBOR Loan”) or by Class and Type (e.g., a “LIBOR Revolving Loan”).

SECTION 1.04                                      Accounting Terms.  Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.  Financial statements and other information required to be delivered by the Borrower to the Administrative Agent pursuant to Section 5.01 shall be prepared in accordance with GAAP as in effect at the time of such preparation.  Subject to the foregoing and Section 9.23, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the financial statements delivered by the Borrower pursuant to Sections 3.05, 4.01(h) and 5.01.  Notwithstanding anything to the contrary herein, unaudited financial statements, accounting determinations, calculations (including financial ratios) and computations hereunder shall be made without giving effect to “push down” accounting as described in FASB ASC 805.  For purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP as in effect either on the Closing Date or at the time such lease is entered into shall not be treated as a capital lease.  If on any date prior to the date financial statements are delivered for the second full Fiscal Quarter following the Opening Date, the Borrower is required to be in compliance on a pro forma basis with the financial covenants in Section 6.07 in order to take, or omit to take, any action hereunder, such requirement shall be deemed to mean pro forma compliance with the financial covenant levels set forth in Section 6.07 for the second full Fiscal Quarter after the Opening Date.

SECTION 1.05                                      Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any instrument, document or agreement related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

SECTION 1.06                                      Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).

SECTION 1.07                                      Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such

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ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

SECTION 1.08                                      Electronic Execution of Assignments and Certain Other Documents.  The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments or other modifications, Funding Notices, Conversion/Continuation Notices, Letter of Credit Application, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.

ARTICLE II

THE FACILITIES

SECTION 2.01                                      Term B Loans and Term C Loans.

(a)                                 Term B Loan Commitment.  Subject to the terms and conditions hereof, each Term B Lender severally agrees to make to the Borrower, and the Borrower may request, on the Closing Date, term loans in an aggregate principal amount of such Lender’s Term B Loan Commitment.  Notwithstanding any other provision of this Agreement, undrawn Term B Loan Commitments shall automatically terminate on the Closing Date upon the funding of Term B Loans pursuant to this Section 2.01(a).

(b)                                 Closing Date Term C Loan Commitment.  Subject to the terms and conditions hereof, each Term C Lender severally agrees to make to the Borrower, and the Borrower may request, on the Closing Date, term loans in an aggregate principal amount of such Lender’s Closing Date Term C Loan Commitment.  Notwithstanding any other provision of this Agreement, undrawn Closing Date Term C Loan Commitments shall automatically terminate on the Closing Date upon the funding of Term C Loans pursuant to this Section 2.01(b).

(c)                                  Delayed Draw Term C Loan Commitment.

(i)                                     On any Business Day during the Delayed Draw Term C Availability Period, subject to the terms and conditions hereof (including, without limitation, Section 4.02), each Term C Lender with a Delayed Draw Term C Loan Commitment severally agrees to make, on the date requested by the Borrower pursuant to

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a Funding Notice, a Term C Loan to the Borrower in a principal amount up to but not exceeding such Lender’s Delayed Draw Term C Loan Commitment.

(ii)                                  At any time during the Delayed Draw Term C Availability Period, subject to the satisfaction of the terms and conditions set forth herein, the Borrower may make a Borrowing under the Delayed Draw Term C Loan Commitments in the aggregate principal amount not to exceed (x) the amount to be then paid in connection with the Roadway Improvements with respect to which all necessary approvals, consents and Permits that are required by applicable Law are in full force and effect, plus (y) the amount of any payments to be then made to the California Department of Transportation to reimburse it for its costs, fees and expenses in connection with the Roadway Improvements, plus (z) the amount of any payments to be then made to the California Department of Transportation, Bureau of Indian Affairs and County of San Diego otherwise in satisfaction of the Borrower’s and the Tribe’s obligations in respect of the Roadway Improvements.

(iii)                               Notwithstanding any other provision of this Agreement, any outstanding Delayed Draw Term C Loan Commitments shall automatically terminate upon the Delayed Draw Term C Loan Facility being fully funded pursuant to this Section 2.01(c).

(iv)                              The initial Interest Period applicable to any Term C Loan made pursuant to the Delayed Draw Term C Loan Commitments shall begin on the funding date of such Term C Loan and end on the last day of an Interest Period applicable to the then-outstanding Term C Loans (and, if there are multiple Interest Periods applicable to the then-outstanding Term C Loans on such funding date, then such Term C Loan made pursuant to the Delayed Draw Term C Loan Commitments shall have multiple Interest Periods ending on the same days as such Interest Periods and with respect to amounts proportionate to the amounts of the then-outstanding Term C Loans applicable to such Interest Periods).

(v)                                 Once funded, the Loans made pursuant to this Section 2.01(c) shall be treated uniformly as Term C Loans.

(d)                                 Term B Loans and Term C Loans.  Any amount borrowed under this Section 2.01 and subsequently repaid or prepaid may not be reborrowed.  Subject to Sections 2.11 through 2.14 and 2.25, (i) all amounts owed hereunder with respect to the Term B Loans shall be paid in full no later than the Term B Loan Maturity Date and (ii) all amounts owed hereunder with respect to the Closing Date Term C Loans and Delayed Draw Term C Loans shall be paid in full no later than the Term C Loan Maturity Date.

(e)                                  Borrowing Mechanics for Term B Loans and Term C Loans.  The Borrower shall deliver to the Administrative Agent a fully executed Funding Notice no later than 12:00 p.m. (New York City time) at least one (1) Business Day prior to the requested date of any Borrowing under any Term B Loan Commitments or Term C Loan Commitments, in the case of ABR Loans, and at least three (3) Business Days prior to the requested date of any Borrowing under any Term B Loan Commitments or Term C Loan Commitments, in the case of LIBOR

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Loans (in each case, or such later date and/or time as the Administrative Agent may agree), and in any case which requested date shall be a Business Day.  Except as otherwise provided herein, a Funding Notice for a Term B Loan or a Term C Loan shall be irrevocable and the Borrower shall be bound to make a Borrowing in accordance therewith.  Promptly upon receipt by the Administrative Agent of such Funding Notice, the Administrative Agent shall notify each applicable Term B Lender or Term C Lender of the proposed Borrowing.  Each such applicable Term B Lender or Term C Lender shall be a Regulated Bank, an Exempt Entity or a Licensed Lender and shall make its Term B Loan or Term C Loan (as the case may be) available to the Administrative Agent not later than 1:00 p.m. (New York City time) on the Closing Date or requested date of funding, as applicable, by wire transfer of same day funds in Dollars, at the Administrative Agent’s Principal Office.  Upon satisfaction or waiver of the applicable conditions precedent specified herein, the Administrative Agent shall cause an amount of same day funds in Dollars equal to the proceeds of all such Term Loans received by the Administrative Agent from the Term Lenders to be credited as follows:

(i)                                     with respect to the Borrowing of the Term B Loans and Term C Loans on the Closing Date (A) $39,116,361.81 to the Credit Facilities Loan Proceeds Account, (B) $7,815,138.04 to the Credit Facilities Interest Reserve Account, (C) $0.00 to the Contingency Reserve Account, (D) $0.00 to the Cash Management Account, (E) $341,864,386.85 to repay PNG Advances in accordance with Section 6.04(c) and (F) $30,000,000 to repay Golden Indebtedness in accordance with Section 6.04(c); and

(ii)                                  with respect to any Borrowing under the Delayed Draw Term C Loan Commitments, to the account specified in the applicable Funding Notice.

(f)                                   Term C Loan Conversion.

(i)                                     On the fifth Business Day following the Administrative Agent’s receipt of the Compliance Certificate delivered pursuant to Section 5.01(e)(iii), (1) Delayed Draw Term C Loan Commitments in an aggregate principal amount equal to the lesser of (A) the entire unfunded amount of the Delayed Draw Term C Loan Commitments and (B) the Term C Loan Conversion Amount (and no Term C Loans or Delayed Draw Term C Loan Commitments shall be converted if the Term C Loan Conversion Amount is $0) shall be automatically (and without further action by any party) converted into delayed draw commitments under the Subordinated Loan Credit Agreement in respect of Subordinated Term Loans of like principal amount (such converted Delayed Draw Term C Loan Commitments, the “Converted Delayed Draw Term C Loan Commitments”) and (2) if the outstanding principal amount of the Delayed Draw Term C Loan Commitments is less than the Term C Loan Conversion Amount, Term C Loans in an amount equal to such shortfall shall be converted (such converted Term C Loans, the “Converted Term C Loans”) to Subordinated Term Loans of like principal amount (the date of such conversion, the “Term C Loan Conversion Date”; and such conversion transaction the “Term C Loan Conversion”).  The Term C Loan Conversion shall be applied on a pro rata basis, first, to the Delayed Draw Term C Loan Commitments of each Lender and, then, if Term C Loans are being converted, to the Term C Loans of each Term C Lender.  From and after the Term C Loan Conversion Date, the Converted Term C Loans (if any) and Converted Delayed Draw Term C Loan

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Commitments (if any) shall no longer be “Closing Date Term C Loans,” “Delayed Draw Term C Loan Commitments,” “Term C Loans”, “Term Loans” or “Loans” hereunder, shall no longer be secured by the Collateral and shall not constitute part of the “Obligations” hereunder and under the other Loan Documents, but shall instead constitute “Loans” and “Delayed Draw Commitments” under the Converted Subordinated Loan Credit Agreement and “Subordinated Obligations” under the Subordinated Loan Subordination Agreement.  The Borrower shall pay all accrued and unpaid interest on the Converted Term C Loans, all accrued and unpaid commitment fees on the Converted Delayed Draw Term C Loan Commitments, and any amounts due under Section 2.17(c) as a result of the Term C Loan Conversion, and on the Term C Loan Conversion Date.

(ii)                                  [Reserved].

(iii)                               The Loan Parties and Term C Lenders agree to take all steps necessary or reasonably required by the Administrative Agent to effectuate the Term C Loan Conversion (if any).  The Administrative Agent shall be permitted to make such adjustments in the Register as it deems reasonably necessary to reflect the consummation of the Term C Loan Conversion (if any).

(iv)                              Following delivery of the Compliance Certificate pursuant to Section 5.01(e)(iii), the Borrower shall (i) promptly permit the authorized representatives designated by the Administrative Agent or any Term B Lender to inspect, copy and take extracts from the Borrower’s and the other Loan Parties’ financial records, and to discuss the Borrower’s and the other Loan Parties’ financial records and accounts with the Borrower’s and the other Loan Parties’ officers and independent public accountants in accordance with Section 5.07  and (ii) promptly provide additional financial information or financial statements as may be reasonably requested by the Administrative Agent or any Term B Lender, in each case, for the purpose of confirming or contesting the calculations of the Term C Loan Conversion Amount. In the event that the Required Class Lenders for the Term B Loans disagree with the calculation of the Term C Loan Conversion Amount set forth in the Compliance Certificate delivered pursuant to Section 5.01(e)(iii), such Required Class Lenders may, by written notice delivered to the Administrative Agent, the Manager and the Borrower within thirty (30) days after the receipt of such Compliance Certificate by the Administrative Agent require that any or all of the amounts or calculations set forth in such Compliance Certificate or the financial statements attached thereto be audited by a “big-4” accounting firm.  If such Required Class Lenders timely deliver such notice, then, within five (5) business days of delivery of such notice, the Required Class Lenders for the Term B Loans and the Required Class Lenders for the Term C Loans shall each select a “big-4” accounting firm, and, within five (5) business days of such selections, such accounting firms shall select a third “big-4” accounting firm, which shall perform such audit only on the disputed amounts or calculations and shall deliver the results of such audit to the Borrower, the Administrative Agent, the Manager and the Lenders within fifteen (15) Business Days of such selection (it being understood and agreed that the failure of such “big-4” accounting firm to deliver such audit within fifteen (15) Business Days shall not constitute a Default or Event of Default hereunder).  The fees costs and expenses associated with any such inspections

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and/or audit shall be paid (1) by the Borrower, in the event such accounting firm determines that Consolidated Adjusted EBITDA for the period from the Project Opening Date through the date that is 365 days after the Project Opening Date, taken as one accounting period, is less than 98% of Consolidated Adjusted EBITDA for such period as set forth in such Compliance Certificate or (2) otherwise, by the Term B Lenders, allocated to such Lenders based on their Pro Rata Share of the Term B Loans.

(v)                                 In the event that any financial statement attached to, or certification contained in, the Compliance Certificate delivered pursuant to Section 5.01(e)(iii) is shown, whether by an audit pursuant to clause (iv) above or otherwise, to be inaccurate, and such inaccuracy, if corrected, would have led to the conversion of a greater or lesser principal amount of Term C Loans into Subordinated Term Loans and/or Delayed Draw Term C Loan Commitments into Converted Subordinated Commitments, then the Borrower shall promptly deliver to the Administrative Agent a corrected Compliance Certificate for such period that contains a corrected calculation of the Term C Loan Conversion Amount and that attaches corrected financial statements.

(vi)                              Upon the Administrative Agent’s receipt of a corrected Compliance Certificate pursuant to clause (v) above, the principal amount of Term C Loans converted to Subordinated Term Loans and/or Delayed Draw Term C Loan Commitments converted to Converted Subordinated Commitments under Section 2.01(f)(i) shall be automatically and retroactively (to the Term C Loan Conversion Date) increased or decreased (as the case may be) by such amount as may be required to cause the corrected Term C Loan Conversion Amount to have been converted to Subordinated Term Loans and/or Converted Subordinated Commitments, as applicable, on the Term C Loan Conversion Date, and the Borrower shall make any additional payments that may be required in order to give such conversion retroactive effect.  It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Loan Documents.

SECTION 2.02                                      Revolving Loans.

(a)                                 Revolving Commitments.  From time to time during the Revolving Commitment Period and subject to the terms and conditions hereof, each Revolving Lender severally agrees that it is a Regulated Bank and agrees to make Revolving Loans to the Borrower in an aggregate principal amount at any time outstanding up to but not exceeding such Revolving Lender’s Revolving Commitment; provided that after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.02 may be repaid and reborrowed during the Revolving Commitment Period.  Each Revolving Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall, subject to Sections 2.12 through 2.14, be paid in full no later than such date.

(b)                                 Borrowing Mechanics for Revolving Loans.

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(i)                                     Except pursuant to Section 2.04(d), Revolving Loans that are ABR Loans shall be made in an aggregate minimum amount of $250,000 and integral multiples of $50,000 in excess of that amount (or, if the then remaining available Revolving Commitments is less than such thresholds, such available amount), and Revolving Loans that are LIBOR Loans shall be made in an aggregate minimum amount of $250,000 and integral multiples of $50,000 in excess of that amount;

(ii)                                  Whenever the Borrower desires that Revolving Lenders make Revolving Loans, the Borrower shall deliver to the Administrative Agent a fully executed Funding Notice no later than 12:00 p.m. (New York City time) at least three (3) Business Days in advance of the proposed Credit Date in the case of a LIBOR Loan, and at least one (1) Business Day (in each case, or such date and/or time as the Administrative Agent may agree) in advance of the proposed Credit Date in the case of an ABR Loan.  Except as otherwise provided herein, a Funding Notice for a Revolving Loan shall be irrevocable, and the Borrower shall be bound to make a Borrowing in accordance therewith;

(iii)                               Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Revolving Lender’s Pro Rata Share thereof, together with the applicable interest rate (if already determined), shall be promptly provided by the Administrative Agent to each applicable Revolving Lender; and

(iv)                              Each Revolving Lender shall make the amount of its Revolving Loan available to the Administrative Agent not later than 1:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent shall make the proceeds of such Revolving Loans available to the Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by the Administrative Agent from the Revolving Lenders to be credited to an account of the Borrower identified in the applicable Funding Notice.

SECTION 2.03                                      Swingline Loans.

(a)                                 Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Commitment Period (subject to the last sentence of Section 2.02(a)), in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit or (ii) the Total Utilization of Revolving Commitments exceeding the total Revolving Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

(b)                                 Borrowing Mechanics for Swingline Loans.

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(i)                                     Each Swingline Loan shall be an ABR Loan.  Each Swingline Loan shall be not less than $250,000 and if greater than such amount shall be in an amount that is an integral multiple of $50,000;

(ii)                                  Whenever the Borrower desires that the Swingline Lender make Swingline Loans, the Borrower shall deliver to the Administrative Agent a fully executed Funding Notice no later than 2:00 p.m. (New York City time) on the day of the proposed Credit Date.  Except as otherwise provided herein, a Funding Notice for a Swingline Loan shall be irrevocable, and the Borrower shall be bound to make a Borrowing in accordance therewith;

(iii)                               The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by wire transfer of immediately available funds to the account set forth in the applicable Funding Notice by 3:00 p.m. (New York City time), on the requested date of such Swingline Loan; and

(iv)                              The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m. (New York City time), on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Pro Rata Share of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Pro Rata Share of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute, irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to

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the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

SECTION 2.04                                      Issuance of Letters of Credit and Purchase of Participations Therein.

(a)                                 Letters of Credit.  From time to time during the Revolving Commitment Period, and subject to the terms and conditions hereof, the Issuing Bank agrees to issue Letters of Credit for the account of the Borrower and on behalf of the Borrower or any other Loan Party in an aggregate amount at any time outstanding up to but not exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $50,000 or such lesser amount as is acceptable to the Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any Letter of Credit have an expiration date later than the earlier of (1) five (5) Business Days prior to the date set forth in clause (a) of the definition of “Revolving Commitment Termination Date” (except for any Letter of Credit that the Borrower has agreed to Cash Collateralize in an amount equal to the Minimum Collateral Amount or otherwise backstop (with a letter of credit on customary terms) to the Issuing Bank’s and the Administrative Agent’s reasonable satisfaction on or prior to such date) and (2) the date which is one year from the date of issuance of such Letter of Credit, unless, in the case of this clause (2), the Required Revolving Facility Lenders have approved such expiry date in writing (but never beyond the date referred to in clause (1), subject to the ability of the Issuing Bank to agree that a Letter of Credit will be automatically extended pursuant to the following sentence), and (vi) each Letter of Credit shall be subject to ISP98, as set forth in the application for such Letter of Credit or as determined by the Issuing Bank, and, to the extent not inconsistent therewith, with the laws of the State of New York.  Subject to the foregoing, the Issuing Bank may agree that a Letter of Credit will automatically be extended for one or more successive periods, in any event not to exceed one year each or extend beyond the date set forth in clause (v)(1) above, except for any Letter of Credit that the Borrower has agreed to Cash Collateralize in an amount equal to the Minimum Collateral Amount or otherwise backstop (with a letter of credit on customary terms) to the Issuing Bank’s and the Administrative Agent’s reasonable satisfaction, on or prior to the date referred to in clause (v)(1) and unless the Issuing Bank elects not to extend for any such additional period; provided, the Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time the Issuing Bank must elect to allow such extension (unless the Required Revolving Facility Lenders otherwise agree).  Only sight drawings shall be permitted under Letters of Credit.  Notwithstanding anything to the contrary contained herein, the Borrower shall have no right to request, and the Issuing Bank shall not issue, Letters of Credit on the Closing Date.

(b)                                 Notice of Issuance and Amendment.  Whenever the Borrower desires the issuance, amendment, extension or renewal of a Letter of Credit, it shall deliver to the Issuing Bank, with a copy to the Administrative Agent, an Issuance/Amendment Notice no later than 12:00 p.m. (New York City time) at least five (5) Business Days, or in each case such shorter period as may be agreed to by the Issuing Bank in any particular instance, in advance of the

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proposed date of issuance.  Any such delivery may be by facsimile or other electronic image scan transmission (e.g., “pdf”).  Upon satisfaction or waiver of the conditions set forth in Section 4.02, the Issuing Bank shall issue or implement such requested Letter of Credit or such amendment, extension or renewal only in accordance with the Issuing Bank’s standard operating procedures.  Upon the issuance of any Letter of Credit or amendment, extension or renewal to a Letter of Credit, the Issuing Bank shall promptly notify the Administrative Agent and the Borrower thereof, in writing, which notice shall be accompanied by a copy of such Letter of Credit or such amendment, extension or renewal.

(c)                                  Responsibility of the Issuing Bank With Respect to Requests for Drawings and Payments.  In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, the Issuing Bank shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to determine whether they appear on their face to be in accordance with the terms and conditions of such Letter of Credit.  The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Bank (as determined by a court of competent jurisdiction by final and nonappealable judgment), the Issuing Bank shall be deemed to have exercised reasonable care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.  In addition, as between the Borrower and the Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by the Issuing Bank, by the respective beneficiaries or transferees of such Letters of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  In furtherance and not in limitation of the foregoing, none of the Administrative Agent, the Issuing Bank, any of their respective Related Parties nor any corresponding, participant or assignee of the Issuing Bank shall be responsible for: (i) the form, validity, sufficiency, accuracy, due execution, effectiveness, enforceability, genuineness or legal effect of any document related to any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of the Issuing Bank’s rights or powers hereunder.  Without limiting the foregoing and in furtherance thereof, any action taken or

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omitted by the Issuing Bank under or in connection with the Letters of Credit or any documents or certificates delivered thereunder shall not give rise to any liability on the part of the Issuing Bank to the Borrower or any other Loan Party; provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Issuing Bank, and the Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which were caused by the Issuing Bank’s willful misconduct, bad faith or gross negligence or material breach of any Loan Document or the Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit, in each case as determined in a final non-appealable judgment of a court of competent jurisdiction.

(d)                                 Reimbursement by the Borrower of Amounts Drawn or Paid Under Letters of Credit.  In the event the Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately notify the Borrower and the Administrative Agent, and the Borrower shall reimburse the Issuing Bank within one (1) Business Day after the date on which such notice is provided to the Borrower or, if such notice is provided after 1:00 p.m. on a Business Day or on a day that is not a Business Day, two (2) Business Days from when such notice is provided (the “Reimbursement Date”), in an amount in Dollars and in same day funds equal to the amount of such honored drawing; provided, anything contained herein to the contrary notwithstanding, (i) unless the Borrower shall have notified the Administrative Agent and the Issuing Bank prior to 12:00 p.m. (New York City time) on the Reimbursement Date that the Borrower intends to reimburse the Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, the Borrower shall be deemed to have given a timely Funding Notice to the Administrative Agent requesting the Revolving Lenders to make Revolving Loans that are ABR Loans on the Reimbursement Date in an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions specified in Section 4.02, the Revolving Lenders shall, on the Reimbursement Date, make Revolving Loans that are ABR Loans in the amount of such honored drawing, the proceeds of which shall be made available to, and applied directly by, the Administrative Agent to reimburse the Issuing Bank for the amount of such honored drawing; and provided, further, if for any reason proceeds of Revolving Loans are not received by the Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing, the Borrower shall reimburse the Issuing Bank, on demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received.  Nothing in this Section 2.04(d) shall be deemed to relieve any Revolving Lender from its obligation to make Revolving Loans on the terms and conditions set forth herein, and the Borrower shall retain any and all rights it may have against any Revolving Lender resulting from the failure of such Revolving Lender to make such Revolving Loans under this Section 2.04(d).

(e)                                  Revolving Lenders’ Purchase of Participations in Letters of Credit.  Immediately upon the issuance of each Letter of Credit, each Revolving Lender having a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from the Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Revolving Lender’s Pro Rata Share of the maximum amount which is or at any time may become available to be drawn thereunder.  In the event that the Borrower shall fail for any reason to reimburse the Issuing Bank as provided in

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Section 2.04(d), the Issuing Bank shall promptly notify each Revolving Lender of the unreimbursed amount of such honored drawing and of such Revolving Lender’s respective participation therein based on such Revolving Lender’s Pro Rata Share of such unreimbursed amount.  Each Lender shall make available to the Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the Principal Office of the Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first business day (under the laws of the jurisdiction in which such Principal Office of the Issuing Bank is located) after the date notified by the Issuing Bank.  In the event that any Revolving Lender fails to make available to the Issuing Bank on such business day the amount of such Revolving Lender’s participation in such Letter of Credit as provided in this Section 2.04(e), the Issuing Bank shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon for three (3) Business Days at the rate customarily used by the Issuing Bank for the correction of errors among banks and thereafter at the Alternate Base Rate.  Nothing in this Section 2.04(e) shall be deemed to prejudice the right of any Revolving Lender to recover from the Issuing Bank any amounts made available by such Revolving Lender to the Issuing Bank pursuant to this Section 2.04(e) in the event that it is determined that the payment with respect to a Letter of Credit in respect of which payment was made by such Revolving Lender constituted gross negligence or willful misconduct on the part of the Issuing Bank (as determined by a court of competent jurisdiction by final and nonappealable judgment).  In the event the Issuing Bank shall have been reimbursed by other Revolving Lenders pursuant to this Section 2.04(e) for all or any portion of any drawing honored by the Issuing Bank under a Letter of Credit, the Issuing Bank shall distribute to each Revolving Lender which has paid all amounts payable by it under this Section 2.04(e) with respect to such honored drawing such Revolving Lender’s Pro Rata Share of all payments subsequently received by the Issuing Bank from the Borrower in reimbursement of such honored drawing when such payments are received.

(f)                                   Obligations Absolute.  The obligation of the Borrower to reimburse the Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Revolving Lenders pursuant to Section 2.04(d) and the obligations of Revolving Lenders under Section 2.04(e) shall be unconditional and irrevocable and shall be paid and performed strictly in accordance with the terms hereof under all circumstances including any of the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which the Borrower or any Revolving Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the Issuing Bank, any Revolving Lender or any other Person or, in the case of a Revolving Lender, against the Borrower, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or one of the other Loan Parties and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any other Loan Party; (vi) any breach hereof or any other Loan Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an Event of

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Default or a Default shall have occurred and be continuing; provided, in each case, that payment by the Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of the Issuing Bank under the circumstances in question (such gross negligence or willful misconduct to have been as determined by a court of competent jurisdiction by final and nonappealable judgment).

(g)                                  Applicability of ISP98.  Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued, the rules of the ISP98 shall apply to each Letter of Credit.  Notwithstanding the foregoing, the Issuing Bank shall not be responsible to the Borrower for, and the Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the Issuing Bank or the beneficiary is located, the practice stated in the ISP98, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade — International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(h)                                 Conflict with Letter of Credit Documents.  In the event of any conflict between the terms hereof and the terms of any Letter of Credit, Letter of Credit Application or any other document, agreement or instrument entered into by the Issuing Bank and the Borrower (or a Subsidiary of the Borrower) or in favor of the Issuing Bank and relating to a Letter of Credit, the terms hereof shall control.

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

SECTION 2.05                                      Pro Rata Shares; Availability of Funds.

(a)                                 Pro Rata Shares.  All Loans shall be converted and continued or made, as the case may be, and all participations pursuant to Sections 2.03(b)(iv) and 2.04(e) shall be purchased, by the applicable Lenders simultaneously and proportionately to their respective Pro Rata Shares of the applicable Class or Classes, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.  Each Lender agrees that, in computing such Lender’s portion of any Loans or other extensions of credit to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s Pro Rata Share of such Loans or other extensions of credit to the next higher or lower whole Dollar amount.

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(b)                                 Availability of Funds.  Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Credit Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Credit Date.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Alternate Base Rate.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall promptly pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent, at the rate payable hereunder for ABR Loans for such Series of Loans.  Nothing in this Section 2.05(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.  In the event any Loan proceeds received by the Administrative Agent in accordance with this Agreement are not delivered to the Borrower as a result of any condition precedent herein specified not having been met, the Administrative Agent shall return the amounts so received to the Lenders who delivered such Loan proceeds to the Administrative Agent.

SECTION 2.06                                      Evidence of Debt; Register; Lenders’ Books and Records; Notes.

(a)                                 Lenders’ Evidence of Debt.  Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof and interest payable and paid to such Lender from time to time hereunder.  Any such recordation shall be prima facie evidence of the matters so recorded, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or the Borrower’s Obligations in respect of any Loans.

(b)                                 Register.  The Administrative Agent shall, acting solely for purposes of this Section 2.06(b) on behalf of and as agent for the Borrower, maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the Commitments and Loans, including in each case, principal and interest thereof, of each Lender from time to time (the “Register”).  The Register shall be available for inspection by the Borrower or any Lender (but only to the extent of entries in the Register that are applicable to such Lender) at any reasonable time and from time to time upon reasonable prior notice.  The Administrative Agent shall record in the Register the Commitments and the Loans and, with respect to each Loan, the Series of Loan thereof, the Type of Loan thereof and, if applicable, the Interest Period applicable thereto, each repayment or prepayment in respect of the principal amount of the Loans, interest payable and paid from time to time thereon, and each assignment thereof pursuant to Section 9.04(c).  The entries in the Register shall be conclusive absent manifest error, and the

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Borrower, the Administrative Agent and the Lenders hereunder shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Borrower hereby designates the Administrative Agent to serve as the Borrower’s representative and agent solely for purposes of maintaining the Register as provided in this Section 2.06(b).  This Section 2.06(b) shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Tax Code (and any other relevant or successor provisions of the Tax Code).

(c)                                  Notes.  If so requested by any Lender by written notice to the Borrower at least two (2) Business Days prior to the Closing Date, or at any time thereafter, the Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 9.04) on the Closing Date (or, if such notice is delivered less than two (2) Business Days prior to or after the Closing Date, promptly after the Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Term B Loan, Term C Loan, Incremental Term Loan, Revolving Loan or Swingline Loan, as the case may be.

SECTION 2.07                                      Interest on Loans.

(a)                                 Except as otherwise set forth herein, each Series of Loans shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows: (i) in the case of Term B Loans, Term C Loans and Revolving Loans:  (1) if an ABR Loan, at the Alternate Base Rate plus the Applicable Margin, or (2) if a LIBOR Loan, at the Adjusted LIBO Rate plus the Applicable Margin; (ii) in the case of Swingline Loans, at the Alternate Base Rate plus the Applicable Margin; (iii) in the case of Incremental Term Loans, at the rate of interest determined in accordance with Section 2.24; and (iv) in the case of Extended Term Loans, at the rate of interest determined in accordance with Section 2.25.

(b)                                 The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBOR Loan, shall be selected by the Borrower and notified to the Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.  If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to the Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be an ABR Loan.

(c)                                  In connection with LIBOR Loans there shall be no more than six (6) Interest Periods outstanding at any time.  In the event the Borrower fails to specify between an ABR Loan or a LIBOR Loan in the applicable Funding Notice or Conversion/Continuation Notice (or, in the case of the conversion or continuation of a Loan, fails to deliver a Conversion/Continuation Notice with respect thereto), such Loan (if outstanding as a LIBOR Loan) will be automatically converted into a LIBOR Loan with an Interest Period of one month (or if outstanding as an ABR Loan will remain as an ABR Loan).  In the event the Borrower fails to specify an Interest Period for any LIBOR Loan in the applicable Funding Notice or Conversion/Continuation Notice, the Borrower shall be deemed to have selected an Interest

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Period of one month.  As soon as practicable on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBOR Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof to the Borrower and each applicable Lender.

(d)                                 Interest payable pursuant to Section 2.07(a) shall be computed (i) in the case of ABR Loans, the rate of interest on which is calculated on the basis of the Prime Rate, on the basis of a 365/366-day year for the actual number of days elapsed (including the first day but excluding the last day) in the period during which such interest accrues, and (ii) in the case of ABR Loans, the rate of interest on which is calculated on the basis of the Federal Funds Rate or clause (c) of the definition of Alternate Base Rate, and in the case of LIBOR Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed (including the first day but excluding the last day) in the period during which it accrues.  In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to an ABR Loan being converted from a LIBOR Loan, the date of conversion of such LIBOR Loan to such ABR Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to an ABR Loan being converted to a LIBOR Loan, the date of conversion of such ABR Loan to such LIBOR Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.

(e)                                  Except as otherwise set forth herein, interest on each Loan shall be payable, in Cash, in arrears (i) on each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that Loan, other than any prepayment pursuant to Section 2.13(c), whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity; provided, however, with respect to any prepayment of an ABR Revolving Loan that is not accompanied by a termination of all Revolving Commitments, accrued interest shall instead be payable on the applicable Interest Payment Date.

(f)                                   Without limiting Section 2.09, the Borrower agrees to pay to the Issuing Bank, with respect to drawings honored under any Letter of Credit, interest in Cash on the amount paid by the Issuing Bank in respect of each such honored drawing from the date such drawing is honored to (but excluding) the date such amount is reimbursed by or on behalf of the Borrower or the Revolving Lenders at a rate equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin with respect to Revolving Loans that are ABR Loans.

(g)                                  Interest payable pursuant to Section 2.07(f) shall be computed on the basis of a 365/366-day year for the actual number of days elapsed (including the first day but excluding the last day) in the period during which such interest accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by the Issuing Bank of any payment of interest pursuant to Section 2.07(f), the Issuing Bank shall pay to the Administrative Agent for distribution to each Revolving Lender, out of the interest received by the Issuing Bank in respect of the period from the date such drawing is honored to (but excluding) the date on which the Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Revolving Lender would

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have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit.  In the event the Issuing Bank shall have been reimbursed by Revolving Lenders for all or any portion of such honored drawing, the Issuing Bank shall pay to the Administrative Agent for distribution to each Revolving Lender which has paid all amounts payable by it under Section 2.04(e) with respect to such honored drawing such Revolving Lender’s Pro Rata Share of any interest received by the Issuing Bank in respect of that portion of such honored drawing so reimbursed by Revolving Lenders for the period from the date on which the Issuing Bank was so reimbursed by Revolving Lenders to (but excluding) the date on which such portion of such honored drawing is reimbursed by the Borrower.

SECTION 2.08                                      Conversion/Continuation.

(a)                                 Subject to Section 2.17, the Borrower may (provided that, if an Event of Default has occurred and is continuing, the Administrative Agent may (and at the request of the Required Lenders shall) by written notice to the Borrower suspend the Borrower’s right to convert or continue Loans as LIBOR Loans pursuant to this Section 2.08(a)):

(i)                                     convert at any time all or any part of any Loan in a minimum amount equal to $250,000 and integral multiples of $50,000 in excess of that amount from one Type of Loan to another Type of Loan; provided that, a LIBOR Loan may only be converted on the expiration of the Interest Period applicable to such LIBOR Loan unless the Borrower shall pay all amounts due under Section 2.17 in connection with any such conversion; or

(ii)                                  upon the expiration of any Interest Period applicable to any LIBOR Loan, continue all or any portion of such Loan in a minimum amount equal to $250,000 and integral multiples of $50,000 in excess of that amount as a LIBOR Loan.

(b)                                 In order to exercise any conversion option pursuant to Section 2.08(a)(i) or continuation option pursuant to Section 2.08(a)(ii), the Borrower shall deliver a Conversion/Continuation Notice to the Administrative Agent no later than 12:00 p.m. (New York City time) at least one (1) Business Day in advance of the proposed conversion date (in the case of a conversion to an ABR Loan) and at least three (3) Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Loan).  Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR Loans shall be irrevocable, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith.  If the Borrower shall fail to give any required notice as described in this Section 2.08(b) or if such continuation is not permitted pursuant to Section 2.08(a), such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period.

SECTION 2.09                                      Default Interest.  Upon the occurrence and during the continuance of any Event of Default described in Section 7.01(b), (c) (with respect to interest only), (h) or (i), the principal amount of all Loans outstanding and, to the extent not paid when due, any interest payments on the Loans and any Fees or other amounts owed under the Loan Documents shall in each case thereafter bear interest (including post-petition interest in any proceeding under the

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Debtor Relief Laws) payable on demand in Cash at a rate that is equal to the lesser of (a) 5.0% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such Fees and other amounts, at a rate which is 5.0% per annum in excess of the interest rate otherwise payable hereunder for ABR Revolving Loans) and (b) the maximum rate of interest permitted under applicable law; provided, in the case of LIBOR Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such LIBOR Loans shall thereupon become ABR Loans and shall thereafter bear interest payable upon demand at a rate which is equal to the lesser of (i) 5.0% per annum in excess of the interest rate otherwise payable hereunder for ABR Loans and (ii) the maximum rate of interest permitted under applicable law.  Payment or acceptance of the increased rates of interest provided for in this Section 2.09 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.

SECTION 2.10                                      Fees.

(a)                                 The Borrower agrees to pay each Term B Lender, on the Closing Date, upfront fees equal to such Term B Lender’s Term B Loan Commitment multiplied by 3.2%.

(b)                                 The Borrower agrees to pay commitment fees to each Term C Lender holding a Delayed Draw Term C Loan Commitment for each day during the Delayed Draw Term C Availability Period equal to (i) the undrawn amount of such Term C Lender’s Delayed Draw Term C Loan Commitment as of such day, multiplied by (ii) a rate equal to 2.25% per annum.

(c)                                  The Borrower agrees to pay to each Revolving Lender:

(i)                                     commitment fees for each day during the period from and including the Closing Date to the last day of the Revolving Commitment Period equal to (A) the daily difference between (x) such Revolving Lender’s Revolving Commitment, and (y) such Revolving Lender’s Pro Rata Share of the Total Utilization of Revolving Commitments, multiplied by (B) the Applicable Fee Rate for the Revolving Credit Facility; and

(ii)                                  letter of credit fees for each day during the period from and including the Closing Date to the last day of the Revolving Commitment Period equal to (A) the Applicable Margin for LIBOR Revolving Loans multiplied by (B) such Revolving Lender’s Pro Rata Share of the aggregate face amount of all Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).

(d)                                 The Borrower agrees to pay to the Issuing Bank, the following fees:

(i)                                     a fronting fee for each day during the period from and including the Closing Date to the last day of the Revolving Commitment Period equal to 0.125% per annum, times the aggregate face amount of all outstanding Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination); and

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(ii)                                  such documentary and processing charges for any issuance, amendment, extension, renewal, transfer or payment of a Letter of Credit as are in accordance with the Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, extension, renewal, transfer or payment, as the case may be.

(e)                                  All fees referred to in Section 2.10(a), Section 2.10(b) and Section 2.10(c) shall be paid to the Administrative Agent in Cash at its Principal Office, and upon receipt, the Administrative Agent shall promptly distribute the same to each applicable Lender.  All fees referred to in Section 2.10(d) shall be paid to the Issuing Bank in Cash at its Principal Office for its own account.

(f)                                   All fees referred to in Sections 2.10(b), 2.10(c)(i), 2.10(c)(ii) and 2.10(d)(i) shall be calculated on the basis of a 360-day year and the actual number of days elapsed (including the first day but excluding the last day) and shall be payable quarterly in arrears on the last Business Day of each March, June, September and December of each year commencing on the first such date of the first full Fiscal Quarter to occur after the Closing Date and until the last day of the Revolving Commitment Period in the case of Sections 2.10(c)(i), 2.10(c)(ii) and 2.10(d)(i) and until the last day of the Delayed Draw Term C Availability Period in the case of Section 2.10(b). Such fees shall also be payable on the Revolving Commitment Termination Date in the case of Sections 2.10(c)(i), 2.10(c)(ii) and 2.10(d)(i) and on the date on which any Term C Loans are funded pursuant to the Delayed Draw Term C Loan Commitments and on the last day of the Delayed Draw Term C Availability Period in the case of Section 2.10(b).  Additionally, on the date of each termination or reduction of Commitments (whether voluntary or mandatory), the Borrower shall pay the applicable fees set forth in Section 2.10(b) or Section 2.10(c)(i), as the case may be, with respect to the amount of the Commitments so terminated or reduced accrued to, but excluding, the date of such termination or reduction.

(g)                                  In addition to any of the foregoing fees, the Borrower agrees to pay to the Administrative Agent and the Joint Lead Arrangers such other fees in the amounts and at the times separately agreed upon (including in the Engagement Letter).  Once paid, none of the fees referred to in this Section 2.10 shall be refundable under any circumstances absent manifest error in the calculation of such fees.

SECTION 2.11                                      Scheduled Payments of Term Loans.

(a)                                 Term B Loans.

(i)                                     The principal amount of the Term B Loans shall be repaid in installments (each, an “Installment”) on each Installment Date.  Subject to the provisions of Section 2.11(a)(ii)(x), the amount of each Installment payable on each Installment Date prior to the Term B Loan Maturity Date shall be equal to 0.25% of the initial aggregate amount of the Term B Loans on the Closing Date, and the remainder of the outstanding principal amount of the Term B Loans shall be payable on the Term B Loan Maturity Date.

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(ii)                                  Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term B Loans after the Closing Date in accordance with Sections 2.12 through 2.14; and (y) the Term B Loans, together with all other amounts owed hereunder and under the other Loan Documents with respect thereto, shall, in any event, be paid in full on the Term B Loan Maturity Date.

(b)                                 Term C Loans.

(i)                                     The principal amount of the Term C Loans shall be repaid in Installments on each Installment Date.  Subject to the provisions of Section 2.11(b)(ii)(x), the amount of each Installment payable on each Installment Date prior to the Term C Loan Maturity Date shall be equal to the sum of (i) as of any date of determination, 0.25% of an amount equal to (x) the initial aggregate amount of the Term C Loans on the Closing Date minus (y) the aggregate principal amount of all Term C Loans that have been converted to Subordinated Term Loans on or prior to such date of determination, plus (ii) 0.25% (adjusted in accordance with customary market practice to provide for the “fungibility” of such Term C Loans) of the initial aggregate principal amount of any Term C Loans made to the Borrower pursuant to the Delayed Draw Term C Loan Commitments, plus (iii) 0.25% (adjusted in accordance with customary market practice to provide for the “fungibility” of such Term C Loans) of the initial aggregate principal amount of any Additional Term C Loans made pursuant to Section 2.26, and the remainder of the outstanding principal amount of the Term C Loans shall be payable on the Term C Loan Maturity Date.

(ii)                                  Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term C Loans after the Closing Date in accordance with Sections 2.12 through 2.14; and (y) the Term C Loans, together with all other amounts owed hereunder and under the other Loan Documents with respect thereto, shall, in any event, be paid in full on the Term C Loan Maturity Date.

(c)                                  In the event any Incremental Term Loans or Extended Term Loans are made, such Incremental Term Loans or Extended Term Loans shall, subject to Section 2.24(d) and Section 2.25, as applicable, be repaid on each Installment Date occurring on or after the applicable Increased Amount Date or Extension Date, as applicable, in an amount equal to the scheduled installment in respect thereof, which installments are to be determined at the time of the borrowing of any such Incremental Term Loans or Extended Term Loans.

SECTION 2.12                                      Voluntary Prepayments/Commitment Reductions/Prepayment Premiums.

(a)                                 Voluntary Prepayments.

(i)                                     Any time and from time to time:

(1)                                 with respect to ABR Loans, the Borrower may prepay any such Loans on any Business Day in whole or in part; provided that each

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partial prepayment shall be in an aggregate minimum amount of $500,000 and integral multiples of $50,000 in excess of that amount; and

(2)                                 with respect to LIBOR Loans, the Borrower may prepay any such Loans on any Business Day in whole or in part; provided that each partial prepayment shall be in an aggregate minimum amount of $500,000 and integral multiples of $50,000 in excess of that amount;

provided that, prior to the Opening Date, the Borrower may make such prepayments only so long as it will continue to be In Balance after giving effect to such prepayment.

(ii)                                  All such prepayments shall be made:

(1)                                 upon not less than one (1) Business Day’s prior written notice (or such shorter time as the Administrative Agent in its reasonable discretion may agree to) in the case of ABR Loans; and

(2)                                 upon not less than three (3) Business Days’ prior written notice (or such shorter time as the Administrative Agent in its reasonable discretion may agree to) in the case of LIBOR Loans;

in each case given to the Administrative Agent by 12:00 p.m. (New York City time) on the date required (and the Administrative Agent will promptly notify each applicable Lender) and specifying the principal amount of the Loans to be prepaid and the applicable prepayment date.  Upon the giving of any such notice, the principal amount of the Loans specified in such notice (without premium or penalty except as set forth in Section 2.12(c), but together with any amounts required to be paid in connection therewith under Section 2.07(e) or Section 2.17(c)) shall become due and payable on the prepayment date specified therein; provided that a notice of prepayment delivered by the Borrower may state that such notice is conditioned upon the incurrence of Indebtedness, receipt of a capital contribution or issuance of Capital Stock or an Investment, acquisition or sale, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied, and if such notice is so revoked, such principal amount and other amounts will not be due and payable.  Any such voluntary prepayment shall be applied as specified in Sections 2.14(a) and (c).

(b)                                 Voluntary Commitment Reductions.

(i)                                     The Borrower may, upon not less than three (3) Business Days’ prior written notice to the Administrative Agent (or such shorter time as the Administrative Agent, in its reasonable discretion, may agree to), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided, any such partial reduction of

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the Revolving Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $500,000 in excess of that amount.

(ii)                                  The Borrower may, upon not less than three (3) Business Days’ prior written notice to the Administrative Agent (or such shorter time as the Administrative Agent, in its reasonable discretion, may agree to), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Delayed Draw Term C Loan Commitments; provided that (1) any such partial reduction of the Delayed Draw Term C Loan Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $500,000 in excess of that amount and (2) the Borrower’s and the Tribe’s obligations in respect of the Roadway Improvements have been satisfied (which, without limitation, may be accomplished through making payment to the California Department of Transportation to reimburse it for its costs, fees and expenses in connection with the Roadway Improvements or making other payments to the California Department of Transportation, Bureau of Indian Affairs or County of San Diego in satisfaction of such obligations), as certified by a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent (including backup documentation).

(iii)                               The Borrower’s notice to the Administrative Agent with respect to any such Commitment reduction shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments or Delayed Draw Term C Loan Commitments shall be effective on the date specified in the Borrower’s notice and shall reduce the Revolving Commitment or Delayed Draw Term C Loan Commitments, as applicable, of each Lender proportionately to its Pro Rata Share thereof; provided that a notice of termination of all Commitments delivered by the Borrower to the Administrative Agent may state that such notice is conditioned upon the incurrence of Indebtedness, receipt of a capital contribution or issuance of Capital Stock or an Investment, acquisition or sale, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified termination date) if such condition is not satisfied, and if such notice is revoked, such termination or reduction will not become effective.

(c)                                  Repayment Premium.  Without prejudice to the limitations on the ability of the Borrower to prepay the Loans as set forth herein, in the event that the Term B Loans are prepaid or repaid in whole or in part, whether pursuant to this Section 2.12 or otherwise (including following an acceleration of the maturity of the Term B Loans) but (x) excluding repayments made pursuant to Section 2.11, 2.12(d) or 2.13 (other than Section 2.13(b)) and Sections 4.5, 4.6, 4.7 or 4.8 of the Disbursement Agreement and (y) for the avoidance of doubt, excluding any purchase or prepayment of Term B Loans pursuant to Section 9.04(h), in each case, on or prior to the forty-five month anniversary of the Closing Date, such prepayment or repayment following acceleration shall be accompanied by a premium equal to:

(i)                                     at any time on or prior to the twenty-one month anniversary of the Closing Date, then the Borrower shall pay a fee in an amount equal to the sum of (x) the

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Applicable Premium as of such date plus (y) 4.0% of the aggregate principal amount of such prepayment or repayment following acceleration of Term B Loans;

(ii)                                  at any time after the twenty-one month anniversary of the Closing Date but on or prior to the thirty-three month anniversary of the Closing Date, then the Borrower shall pay a fee in an amount equal to 4.0% of the aggregate principal amount of such prepayment or repayment following acceleration of Term B Loans;

(iii)                               at any time after the thirty-three month anniversary of the Closing Date but on or prior to the forty-five month anniversary of the Closing Date, then the Borrower shall pay a fee in an amount equal to 1.0% of the aggregate principal amount of such prepayment or repayment following acceleration of Term B Loans; and

(iv)                              at any time after the forty-five month anniversary of the Closing Date, then no fee shall be required.

Notwithstanding the foregoing, in the event that the Borrower prepays Term Loans (any such prepayment, a “Specified Prepayment”) pursuant to Sections 4.5, 4.6, 4.7 or 4.8 of the Disbursement Agreement, then the Borrower shall not be required to pay any such fees referred to in this Section 2.12(c) in connection with such prepayment.

The fees referred to in this Section 2.12(c) shall be paid to the Administrative Agent in Cash at its Principal Office upon any applicable prepayment or acceleration and upon receipt, the Administrative Agent shall promptly distribute the same to the Term B Lenders.

(d)                                 Prepayments of Term B Loans, Term C Loans with Retained ECF.  From time to time prior to the forty-five month anniversary of the Closing Date the Borrower may offer to prepay the Term B Loans and Term C Loans (pro rata to each such Class of Term Loans then outstanding) at par plus accrued interest thereon together with any amounts required to be paid under Section 2.07(e) or 2.17(c) in an amount not to exceed the Retained ECF Amount at such time.  The Borrower shall provide notice of any such offer to the Administrative Agent, who shall promptly, and in any event within one (1) Business Day of receipt, provide such notice to the holders of the Term B Loans and Term C Loans.  Any such notice shall specify the aggregate amount offered to prepay the Term B Loans and Term C Loans.  Each holder of a Term B Loan may elect, in its sole discretion, to reject such prepayment offer with respect to an amount equal to or less than an amount equal to the aggregate amount so offered to prepay the Term B Loans times a fraction, the numerator of which is the principal amount of Term B Loans owed to such holder and the denominator of which is the principal amount of Term B Loans outstanding.  Each holder of a Term C Loan shall be deemed to automatically accept such prepayment offer in respect of the Term C Loans held by such holder, and shall not have the right to reject such prepayment offer.  Any rejection of such offer by a Term B Lender must be evidenced by written notice delivered to the Administrative Agent within seven (7) Business Days of receipt of the offer for prepayment, specifying an amount of such prepayment offer rejected by such holder, if any.  The failure by any Term B Lender to give such notice will constitute an election by such Term B Lender to accept such offer.  Any portion of such prepayment offer so accepted (or deemed accepted) shall be applied to prepay the Term B Loans and Term C Loans held by the applicable holders on the date that is ten (10) Business Days after

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the date of the Borrower’s delivery of notice of the offer to prepay.  The Administrative Agent shall provide notice of the amount of such rejected payments by Term B Lenders to all Lenders and holders of Subordinated Loans no later than the date eight (8) Business Days following notice of such prepayment offer.  Any portion of such prepayment offer rejected by the Term B Lenders shall be used by the Borrower to prepay Term C Loans and/or Subordinated Loans (as directed in writing by the Manager or, if the Manager is no longer San Diego Gaming Ventures, LLC or one of its Affiliates, as directed in writing by the holders of a majority of the outstanding Term C Loans and Subordinated Loans delivered no later than the date that is nine (9) Business Days after the date of the Borrower’s delivery of notice of the offer to prepay) on the date that is ten (10) Business Days after the date of the Borrower’s delivery of the notice to prepay.  Any prepayment under this Section 2.12(d) of a Class of Term Loans shall be applied to the remaining principal installments thereof on a pro rata basis and in accordance with Section 2.14(c).

SECTION 2.13                                      Mandatory Prepayments / Commitment Reductions and Terminations.

(a)                                 Not later than (i) five (5) Business Days following the receipt of Net Cash Proceeds of any Asset Sale or (ii) the later of (x) thirty (30) Business Days after the occurrence of any Recovery Event and (y) five (5) Business Days following the receipt of Net Cash Proceeds therefrom, the Borrower shall (or shall cause the applicable Subsidiary to) apply an amount equal to such Net Cash Proceeds received with respect thereto in accordance with Section 2.14(b); provided that, so long as no Default shall then exist or would arise therefrom;

(i)                                     in the case of Net Cash Proceeds of any Asset Sale, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent on or prior to the date such prepayment would otherwise be required stating that such Net Cash Proceeds are intended to be reinvested in assets useful in, or used to repair or restore assets used or useable in, the business of the Borrower or any other Loan Party (or if such Net Cash Proceeds arise from an Asset Sale of, a Subsidiary that is not a Loan Party, the business of the Borrower and its Subsidiaries) within 12 months following the date such Net Cash Proceeds are received by the Borrower or one of its Subsidiaries; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such twelve (12) month period, such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.13(a) (it being understood that, if within such twelve (12) month period the Borrower (or one of its Subsidiaries) has contractually committed to so reinvest Net Cash Proceeds, then any Net Cash Proceeds so committed will be exempt from the prepayment required pursuant to this Section 2.13(a), so long as such funds are in fact reinvested as provided above within the later of (1) one hundred and eighty (180) days following the date of such legally binding commitment and (2) twelve (12) months following receipt of such Net Cash Proceeds); and

(ii)                                  in the case of Net Cash Proceeds of any Recovery Event, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent on or prior to the date such prepayment would otherwise be required stating (x)

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that such Recovery Event involved damage, destruction or taking which does not constitute the destruction or taking of all or substantially all of the man-made portion of the Project, and that the Net Cash Proceeds with respect to such Recovery Event (or series of related Recovery Events) do not exceed $100,000,000 in the aggregate, (y) the Borrower intends to apply such proceeds (the “Restoration Proceeds”) to the repair or restoration of, or remedy of such breach with respect to, the property subject to such Recovery Event within four hundred fifty (450) days of receipt of such Restoration Proceeds (or, if such Restoration Proceeds relate to an event prior to the Opening Date and the application of such proceeds to Project Costs is required to achieve the Opening Date, that such funds will be applied prior to the Opening Date in accordance with the terms of the Disbursement Agreement) and (z) that (1) if such Restoration Proceeds relate to an event after the Opening Date (or, if prior to the Opening Date, the application of such proceeds to Project Costs is not required to achieve the Opening Date), the repair or restoration of, or remedy of such breach with respect to, the property subject to such Recovery Event to a condition substantially similar to the condition of such property immediately prior to the event or events to which such Recovery Event relates is technically and economically feasible within such four hundred fifty (450)-day period and that a sufficient amount of funds is or will be available to the relevant Loan Party to make such repairs and restorations, or to remedy such breach, and (2) if such Restoration Proceeds relate to an event prior to the Opening Date and the application of such proceeds to Project Costs is required to achieve the Opening Date, that the Opening Date is reasonably likely to occur on or prior to the Scheduled Opening Date (as such date may be extended pursuant to the Disbursement Agreement) and that a sufficient amount of funds is or will be available to the relevant Loan Party to achieve the Opening Date, in each case as confirmed by the Construction Consultant, then such Restoration Proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such four hundred fifty (450)-day period (or, if the Recovery Event occurs with respect to an event prior to the Final Completion Date and the application of such proceeds to Project Costs is required to achieve Final Completion, then to the extent not used prior to the Final Completion Date) at which time, subject to the terms of the Disbursement Agreement, such Restoration Proceeds shall be deemed to be Net Cash Proceeds.

(b)                                 In the event that the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of such Person (other than Indebtedness permitted pursuant to Section 6.01), the Borrower shall (or shall cause such applicable Subsidiary to), within five (5) Business Days of the receipt of such Net Cash Proceeds by the Borrower or such Subsidiary, apply an amount equal to such Net Cash Proceeds in accordance with Section 2.14(b).

(c)                                  No later than five (5) Business Days after the date on which the financial statements with respect to (x) the first three Fiscal Quarters of each Fiscal Year of the Borrower and (y) each Fiscal Year of the Borrower (commencing with the first full Fiscal Quarter following the Opening Date, or if the first full Fiscal Quarter following the Opening Date is the fourth Fiscal Quarter of the Borrower’s Fiscal Year, then commencing with the Fiscal Year in which the Opening Date occurs) are delivered pursuant to Section 5.01(b) or (c), the Borrower shall prepay the Obligations in accordance with Section 2.14(b), in an amount equal to:

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(i)                                     in the case of each Fiscal Quarter ending on March 31, June 30 or September 30, the Required ECF Percentage of Consolidated Excess Cash Flow for the Fiscal Quarter then ended minus (A) any voluntary prepayments of Term Loans made pursuant to Section 2.12 (other than (x) Specified Prepayments, (y) prepayments pursuant to Section 2.12(d) and (z) prepayments funded with the proceeds of Indebtedness of the Borrower and its Subsidiaries) during such Fiscal Quarter, (B) repayments of Revolving Loans and/or Swingline Loans during such Fiscal Quarter to the extent accompanied by a permanent reduction in or termination of the Revolving Commitments and (C) any amounts applied pursuant to the proviso to clause (ii) in reduction of payments under this clause (i); and

(ii)                                  in the case of each Fiscal Year, the positive difference, if any, of (A) the Required ECF Percentage of Consolidated Excess Cash Flow for (I) in the case of the first prepayment under this Section 2.13(c)(ii), the period commencing on the first full day of the first full Fiscal Quarter occurring after the Opening Date through the last day of the Fiscal Year then ended and (II) in the case of each subsequent prepayment under this Section 2.13(c)(ii), the Fiscal Year then ended, minus (B) (x) any voluntary prepayments of Term Loans made pursuant to Section 2.12 (other than (1) Specified Prepayments, (2) prepayments pursuant to Section 2.12(d) and (3) prepayments funded with the proceeds of Indebtedness of the Borrower and its Subsidiaries) during such Fiscal Year and (y) repayments of Revolving Loans and/or Swingline Loans during such Fiscal Year to the extent accompanied by a permanent reduction in or termination of the Revolving Commitments, minus (C) the aggregate amounts previously paid in respect of the Fiscal Quarters of such Fiscal Year pursuant to this Section 2.13(c); provided that if the sum of the amounts in clause (B) and clause (C) is greater than the amount in clause (A), the Borrower may elect to apply such excess in satisfaction of payments required under clause (i) in the subsequent Fiscal Year, in which case any such application shall reduce any payments due in the subsequent Fiscal Year pursuant to clause (i).

(d)                                 The Borrower shall deliver to the Administrative Agent, (i) at the time of each prepayment required under this Section 2.13, a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three (3) days prior written notice of any such pre-payment.  In the event that the Borrower shall subsequently determine that the actual amount required to be applied to prepay the Loans exceeded the amount set forth in such certificate, the Borrower shall promptly apply such excess amount in accordance with Section 2.14(b), and the Borrower shall concurrently therewith deliver to the Administrative Agent a certificate of a Financial Officer demonstrating the derivation of the excess.

(e)                                  If at any time the Total Utilization of Revolving Commitments exceeds the Revolving Commitments then in effect, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving Lenders, an amount equal to such excess with each such repayment applied first, to the principal amount of outstanding Swingline Loans, second, to the principal amount of outstanding Revolving Loans and third, with respect to any Letters of Credit then outstanding, a payment of Cash Collateral into a Cash Collateral account opened by the Administrative Agent, for the benefit of the Revolving Lenders, including the Issuing Bank, in an amount equal to such

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excess (such Cash Collateral to be applied to the payments of drafts under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, to be applied to repay the other Obligations on a pro rata basis).

SECTION 2.14                                      Application of Prepayments/Reductions.

(a)                                 Application of Voluntary Prepayments of Term Loans.  Any prepayment of any Term Loan pursuant to Section 2.12(a) shall be applied to prepay the Term Loans pro rata to each Class of Term Loans then outstanding, or if the holders of any Class of Incremental Term Loans or Extended Term Loans have agreed to participate in such prepayments on a less than pro rata basis, then ratably to each Class of Term Loans then outstanding giving effect to such agreements to the full extent thereof (such payment to be applied within each Class pro rata to the remaining scheduled Installments of principal thereof (or in the case of any Class of Incremental Term Loans or Extended Term Loans, as otherwise provided by the amendment establishing such Class of Term Loans)).

(b)                                 Application of Mandatory Prepayments by Type of Loans.  Any amount required to be paid pursuant to Sections 2.13(a) through 2.13(c) shall be applied as follows:

first, to prepay the Term Loans pro rata to each Class of Term Loans then outstanding, or if the holders of any Class of Incremental Term Loans or Extended Term Loans have agreed to participate in such prepayments on a less than pro rata basis, then ratably to each Class of Term Loans then outstanding giving effect to such agreements to the full extent thereof (such payment to be applied within each Class pro rata to the remaining scheduled Installments of principal thereof including the remaining principal amount payable on the applicable final maturity date thereof (or in the case of any Class of Incremental Term Loans or Extended Term Loans, as otherwise provided by the amendment establishing such Class of Term Loans)) in full;

second, to prepay outstanding Letter of Credit Non-Reimbursed Drawings;

third, to prepay the Swingline Loans to the full extent thereof;

fourth, to prepay Revolving Loans to the full extent thereof; and

fifth, to Cash Collateralize Letters of Credit.

(c)                                  Application of Prepayments of Loans to Base Rate Loans and LIBOR Loans.  Except to the extent a prepayment is rejected by a Term B Lender pursuant to Section 2.12(d), considering each Series of Loans being prepaid separately, any prepayment of the Loans pursuant to Section 2.12 or Section 2.13 shall be applied (i) to such Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and (ii) first to ABR Loans to the full extent thereof before application to LIBOR Loans, in each case in a manner which minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.17(c).

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SECTION 2.15                                      General Provisions Regarding Payments.

(a)                                 All payments by or on behalf of the Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to the Administrative Agent not later than 1:00 p.m. (New York City time) on the date due at the Administrative Agent’s Principal Office for the account of the Lenders.  Any payment received after such time may, at the election of the Administrative Agent, be applied on the following Business Day.  Each payment to the Administrative Agent of the Issuing Bank’s fees shall be made in like manner, but for the account of the Issuing Bank.

(b)                                 All payments in respect of the principal amount of any Loan (other than voluntary prepayments of ABR Revolving Loans that are not accompanied by a termination of all Revolving Commitments and mandatory prepayments pursuant to Section 2.13(c) but otherwise including all payments, distributions or other transfers in respect of the principal amount of any Loan (whether or not upon maturity, whether mandatory or optional, whether voluntary or involuntary, including following any default or any acceleration (whether automatic or following notice), following any asset sale, or following the filing by or against any Loan Party of any petition under any Debtor Relief Law (whether or not such payment, distribution, or transfer is under a Plan or ordered by any court of competent jurisdiction) or otherwise)) shall be accompanied by payment, in Cash, of accrued interest on the principal amount being repaid or prepaid.

(c)                                  The Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including, without limitation, all fees payable with respect thereto (or, to the extent any such amounts are paid with respect to any such Lender’s interests individually, the Administrative Agent shall promptly distribute to such Lender such amounts), to the extent received by the Administrative Agent.

(d)                                 Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes ABR Loans in lieu of its Pro Rata Share of any LIBOR Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(e)                                  Except as otherwise provided herein and subject to the provisos set forth in the definition of “Interest Period”, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder and of the commitment fees hereunder.

(f)                                   Any payment by or on behalf of the Borrower hereunder that is not made in same day funds prior to 1:00 p.m. (New York City time) on the date due may be designated by the Administrative Agent as a non-conforming payment.  Unless otherwise consented to by the Administrative Agent, any such payment shall not be deemed to have been received by the Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day.  The Administrative Agent shall give prompt telephonic notice to the Borrower and each applicable Lender (confirmed in writing) if any payment is non-

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conforming.  Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 7.01.  Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.09.

(g)                                  If the maturity of the Obligations shall have been accelerated pursuant to Section 7.01, all payments or proceeds received by the Agents hereunder in respect of any of the Obligations shall be applied in accordance with the application arrangements described in Section 7.02 (until such acceleration has been rescinded).

SECTION 2.16                                      Ratable Sharing.  Except to the extent that this Agreement or any other Loan Document provides for payments to be allocated to a particular Lender or Lenders (including Sections 2.12(d), 9.26(b) and 7.02), the Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under any Debtor Relief Law, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each such other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to such other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all applicable Lenders in proportion to the Aggregate Amounts Due to them; provided, (i) if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of a Loan Party or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest, and (ii) the provisions of this Section 2.16 shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including (A) the application of funds arising from the existence of a Defaulting Lender, Disqualified Lender, Non-Consenting Lender or a Former Lender and (B) any assignment of Term Loans to the Borrower pursuant to Section 9.04), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in disbursements with respect to Letters of Credit or participations in Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.16 shall apply).  The Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by any Loan Party to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.

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SECTION 2.17                                      Making or Maintaining LIBOR Loans.

(a)                                 Inability to Determine Applicable Interest Rate.  In the event that (x) the Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Loans or any ABR Loans as to which the interest rate is determined with reference to the Adjusted LIBO Rate that, by reason of circumstances affecting the London interbank market, adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted LIBO Rate, or (y) prior to the commencement of any Interest Period with respect to LIBOR Loans or ABR Loans as to which the interest rate is determined with reference to the Adjusted LIBO Rate, the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining such LIBOR Loans for ABR Loans for such Interest Period, the Administrative Agent shall on such date give notice (by facsimile or other electronic image scan transmission (e.g., “pdf”) or by telephone confirmed in writing) to the Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR Loans (and with respect to ABR Loans, the interest rate applicable thereto shall be determined without reference to the Adjusted LIBO Rate) until such time as the Administrative Agent notifies the Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by the Borrower with respect to the LIBOR Loans in respect of which such determination was made shall be deemed to be rescinded by the Borrower; provided that, in lieu of such rescission, the Borrower may notify the Administrative Agent (which may be given via telephone) that such notice shall be deemed to be a request for ABR Loans in the same principal amount to be funded on the Credit Extension Date specified in the applicable Funding Notice.

(b)                                 Illegality of LIBOR Loans.  Notwithstanding any other provision of this Agreement, if any Lender shall notify the Borrower and the Administrative Agent that any Change in Law makes it unlawful, or any Governmental Authority, central bank or comparable agency asserts that it is unlawful, for such Lender to perform its obligations to make or maintain its Loans hereunder as LIBOR Loans, or to convert any Loans of any Type into LIBOR Loans or issue Letters of Credit (subject to Section 2.20) (such Lender, an “Affected Lender”), then such Affected Lender shall promptly notify the Administrative Agent and the Borrower in writing, and the obligation of such Affected Lender to make such Loans and/or to issue Letters of Credit, as applicable, (each such Loan, an “Affected Loan”) shall be terminated and such Affected Lender’s LIBOR Loans shall automatically be converted to ABR Loans either on the last day of the then current Interest Period, if such Affected Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Affected Lender may not lawfully continue to maintain such Loans to such day and, unless and until such Affected Lender gives notice to the Borrower that the circumstances specified in this clause (b) that gave rise to such conversion no longer exist, (i) to the extent that such Affected Lender’s LIBOR Loans have been so converted, all payments and prepayments of principal which would otherwise be applied to such Affected Lender’s LIBOR Loans shall be applied instead to its ABR Loans and (ii) all Loans which would otherwise be made or continued by such Affected Lender as LIBOR Loans shall be made or continued instead as ABR Loans and all ABR Loans of such Affected Lender which would otherwise be converted into LIBOR Loans shall remain as ABR Loans.  If such Affected Lender

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gives notice to the Borrower with a copy to the Administrative Agent that the circumstances that gave rise to the conversion of such Lender’s LIBOR Loans pursuant to this Section 2.17(b) no longer exist (which each Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans are outstanding, such Lender’s ABR Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in accordance with their respective Commitments, and such Lender shall cease to be an Affected Lender.

(c)                                  Indemnity for Breakage or Non-Commencement of Interest Periods.  The Borrower shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of (i) default by the Borrower in payment when due of the principal amount of or interest on any LIBOR Loan, (ii) default by the Borrower in making a borrowing of, conversion into or continuation of LIBOR Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (iii) the Borrower making any prepayment other than on the date specified in the relevant prepayment notice, or (iv) the conversion or the making of a payment or a prepayment (including any repayments or prepayments made pursuant to Section 2.12 or 2.13 or as a result of an acceleration of Loans pursuant to Section 7.01 or as a result of the replacement of a Lender pursuant to Section 2.22, 9.04(j) or 9.26) of LIBOR Loans on a day which is not the last day of an Interest Period with respect thereto, including in each case, any such loss (excluding any loss of profits or margin) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained.  For the purpose of calculation of all amounts payable to a Lender under this Section 2.17(c) each Lender shall be deemed to have actually funded its relevant LIBOR Loan through the purchase of a deposit bearing interest at the Adjusted LIBO Rate in an amount equal to the amount of the LIBOR Loan and having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the foregoing assumption shall be utilized only for the calculation of amounts payable under this subsection.  Any Lender requesting compensation pursuant to this Section 2.17(c) will furnish to Administrative Agent and the Borrower a certificate setting forth the basis and amount of such request and such certificate, absent manifest error, shall be conclusive.  Without limiting the survival of any other covenant hereunder, this covenant shall survive the termination of this Agreement and the payment of the  Obligations and all other amounts payable hereunder.

SECTION 2.18                                      Reserve Requirements; Change in Circumstances.

(a)                                 Notwithstanding any other provision of this Agreement, if any Change in Law shall:

(i)                                     impose, modify or deem applicable any reserve (including liquidity and capital adequacy reserves), special deposit or similar requirement (including any marginal, special, emergency or supplemental reserves) against assets of, deposits with or for the account of, or credit extended by, any Lender or the Administrative Agent;

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(ii)                                  subject any Lender or the Administrative Agent to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender or the Administrative Agent in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.19 and the imposition of, or any change in the rate of, any Excluded Taxes payable by such Lender or the Administrative Agent); or

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

and the result of any of the foregoing shall be to increase the cost to such Lender or the Administrative Agent of making or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any Lender or the Administrative Agent of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Administrative Agent hereunder (whether of principal, interest or otherwise) by an amount reasonably deemed by such Lender or the Administrative Agent to be material, then upon written request of such Lender or the Administrative Agent, as applicable, the Borrower will pay to such Lender or the Administrative Agent, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Administrative Agent, as the case may be, for such additional costs incurred or reduction suffered; provided that a Lender shall only request compensation from the Borrower pursuant to this Section 2.18(a) to the extent such Lender makes the same request under comparable credit agreements with other borrowers similarly situated to the Borrower.

(b)                                 If any Lender in its sole and absolute discretion or the Administrative Agent shall have reasonably determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender’s or the Administrative Agent’s capital or on the capital of such Lender’s or the Administrative Agent’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by, such Lender or the Administrative Agent or the Letters of Credit issued by the Issuing Bank to a level below that which such Lender, the Administrative Agent or such Lender’s or the Administrative Agent’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Administrative Agent’s policies and the policies of such Lender’s or the Administrative Agent’s holding company with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent or such Lender’s or the Administrative Agent’s holding company for any such reduction suffered; provided that a Lender shall only request compensation from the Borrower pursuant to this Section 2.18(b) to the extent such Lender makes the same request under comparable credit agreements with other borrowers similarly situated to the Borrower.

(c)                                  A certificate of a Lender or the Administrative Agent setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or the

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Administrative Agent or its holding company, as applicable, as specified in clause (a) or (b) of this Section 2.18 shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Administrative Agent, as the case may be, the amount or amounts shown as due on any such certificate within ten (10) days after its receipt of the same.

(d)                                 Failure or delay on the part of any Lender or the Administrative Agent to demand compensation pursuant to this Section 2.18 shall not constitute a waiver of such Lender’s or the Administrative Agent’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or the Administrative Agent under clause (a) or (b) of this Section 2.18 for increased costs or reductions with respect to any period prior to the date that is two hundred seventy (270) days prior to such request if such Lender or the Administrative Agent knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided, further, that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 270-day period.  The protection of this Section 2.18 shall be available to each Lender and the Administrative Agent regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

SECTION 2.19                                      Taxes.

(a)                                 Except as required by applicable law, any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for Taxes; provided that if any Taxes are required to be withheld or deducted from such payments, then (i) if any such Taxes are Indemnified Taxes or Other Taxes, the sum payable by the Borrower or such other Loan Party shall be increased as necessary so that after making all required deductions or withholding (including deductions or withholdings applicable to additional sums payable under this Section 2.19) the Administrative Agent, the applicable Lender or any other recipient (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such other Loan Party shall make (or cause to be made) such deductions and (iii) the Borrower or such other Loan Party shall timely pay (or cause to be timely paid) the full amount deducted to the relevant Governmental Authority in accordance with applicable law.  In addition, without limiting the foregoing provisions, the Borrower or any other Loan Party hereunder or under any other Loan Document shall timely pay (or cause to be timely paid) any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(b)                                 The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, or any of their respective Affiliates, on or with respect to any payment by or on account of any obligation of the Borrower or any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19) and any penalties, interest and reasonable expenses arising therefrom or

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with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(c)                                  As soon as practicable (and in any event within thirty (30) days) after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section 2.19, the Borrower shall deliver (or cause to be delivered) to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d)

(i)                                     Each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon request of the Borrower or the Administrative Agent or upon the obsolescence, expiration or invalidity of any forms previously delivered by such Foreign Lender), whichever of the following is applicable: (i) two accurate and complete copies of originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E (or successor form) claiming an exemption from or reduction in the rate of withholding under an applicable income tax treaty, (ii) two accurate and complete copies of original executed U.S. Internal Revenue Service Forms W-8ECI (or successor form), (iii) two accurate and complete copies of originally executed U.S. Internal Revenue Service Forms W-8IMY (or successor form), accompanied by copies of the applicable exemption certificates from the relevant beneficial owners (and required attachments), or (iv) in the case of any Foreign Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Tax Code, and is relying on the “portfolio interest exemption,” a “Non-Bank Certificate” in the form of Exhibit G, together with two accurate and complete copies of the applicable originally executed U.S. Internal Revenue Service Form W-8 (or successor form) certifying, in each case, to such Foreign Lender’s legal entitlement to an exemption from or reduction in the rate of U.S. federal withholding tax with respect to all interest payments hereunder.

(ii)                                  Any Lender that is a United States person, as defined in Section 7701(a)(30) of the Tax Code, and is not an exempt recipient within the meaning of Treasury Regulations Section 1.6049-4(c) shall deliver to the Borrower (with a copy to the Administrative Agent), on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as reasonably requested by the Borrower or the Administrative Agent), two accurate and complete original signed copies of U.S. Internal Revenue Service Form W-9 (or any successor form) certifying that such person is exempt from United States back-up withholding.

(iii)                               Each Person required to deliver forms or documents pursuant to this Section 2.19 shall promptly notify the Borrower and the Administrative Agent at any

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time that it determines it is no longer in a position to provide any previously delivered certificate or form.

(e)                                  If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.19, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.19 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  This clause (e) shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

(f)                                   If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Tax Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Tax Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the Closing Date.

(g)                                  Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(h)                                 Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses

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arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (h).

(i)                                     Without prejudice to the survival of any other agreement of the parties hereunder, the agreements and obligations of the parties contained in this Section 2.19 shall survive the payment in full of the Obligations.

(j)                                    For purposes of this Section 2.19, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.

SECTION 2.20              Obligation to Mitigate.  Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts (at the request of the Borrower so long as the Borrower has received notice of such occurrence or existence) to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of its Commitments, Loans or Letters of Credit through such other office or in accordance with such other measures, as the case may be, would not subject such Lender to any unreimbursed cost or expense and would not be otherwise disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with such measures.  A certificate as to the amount of any such expenses payable by the Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive absent manifest error.

SECTION 2.21                                      Defaulting Lenders.

(a)                                 Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)                                     Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of Required Revolving Facility Lenders, Required Class Lenders and Required Lenders.

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(ii)                                  Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the Issuing Bank’s and the Swingline Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.23; fourth, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement and the Swingline Lender’s Fronting Exposure with respect to the Swingline Loans, in accordance with Section 2.23; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or disbursements with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and disbursements with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or disbursements with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swingline Loans are held by the Lenders pro rata in accordance with their Revolving Exposure without giving effect to Section 2.21(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)                               Certain Fees. (A) No Defaulting Lender shall be entitled to receive the commitment fees described in Section 2.10(b) and Section 2.10(c)(i) for any period

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during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B)                               Each Defaulting Lender shall be entitled to receive the letter of credit fees described in Section 2.10(c)(ii) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.23.

(C)                               With respect to any letter of credit fees not required to be paid to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in the Letter of Credit that have been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s Fronting Exposure to such Defaulting Lender which has not been Cash Collateralized, and (z) not be required to pay the remaining amount of any such fee.

(iv)                              Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  Subject to Section 9.33, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)                                 Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’ Fronting Exposure, and (y) second, Cash Collateralize the Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.23.

(b)                                 Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Swingline Lender and the Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions

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as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to Section 2.21(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c)                                  New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

(d)                                 Termination of a Defaulting Lender.  The Borrower may terminate the unused amount of the Commitment of any Revolving Lender that is a Defaulting Lender upon not less than five (5) Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender may have against such Defaulting Lender.

SECTION 2.22                                      Removal or Replacement of a Lender.  Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give notice to the Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.17, 2.18 or 2.19, (ii) the circumstances which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after the Borrower’s request for such withdrawal; (b) any Lender is a Defaulting Lender; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions of this Agreement that requires the consent of 100% of the Lenders or 100% of the Lenders of a particular Class or Series or the Lenders directly affected thereby as contemplated by Section 9.08(b), the consent of the Lenders collectively having Aggregate Exposure representing more than 50.0% of the Aggregate Exposure of all Lenders required to consent to such matter shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”), the Borrower may, by giving written notice to the Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 9.04 (provided that in the event such Terminated

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Lender does not execute an Assignment and Acceptance, such Terminated Lender shall be deemed to have consented to such Assignment and Acceptance, and such Assignment and Acceptance shall be effective notwithstanding the failure of such Terminated Lender to execute the same) and the Borrower shall pay any reasonable fees payable thereunder in connection with such assignment; provided, (1) on the date of such assignment, the Replacement Lender shall pay to the Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings under Letters of Credit and participations in Swingline Loans that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such assignment, the Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.17(c), 2.18 or 2.19 or otherwise as if it were a prepayment, (3) in the case of a Non-Consenting Lender that is a Term Lender, the Borrower shall pay to such Non-Consenting Lender the repayment premiums specified in Section 2.12(c) on the principal amount of Term Loans of such Non-Consenting Lender outstanding immediately prior to such assignment and (4) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender; provided, the Borrower may not make such election with respect to the Revolving Commitments (and the related Revolving Loans) of any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, the Borrower shall have caused each outstanding Letter of Credit issued by such Terminated Lender to be cancelled or converted or Cash Collateralized or a back-to-back Letter of Credit reasonably satisfactory to such Terminated Lender and the Administrative Agent shall have been issued to such Terminated Lender.  Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s undrawn Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.

SECTION 2.23                                      Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent or the Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.21(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.