FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First
Amendment") is made and entered into as of the 9th day of
September, 1998, by and among AMERISTAR CASINOS, INC., a
Nevada corporation ("ACI"), CACTUS PETE'S, INC., a Nevada
corporation ("CPI"), AMERISTAR CASINO VICKSBURG, INC., a
Mississippi corporation ("ACVI"), AMERISTAR CASINO COUNCIL
BLUFFS, INC., an Iowa corporation ("ACCBI") and AMERISTAR
CASINO LAS VEGAS, INC., a Nevada corporation ("ACLVI" and
together with ACI, CPI, ACVI and ACCBI, collectively
referred to as the "Borrowers") and XXXXX FARGO BANK,
National Association, U.S. BANK NATIONAL ASSOCIATION, FIRST
AMERICAN NATIONAL BANK, operating as, and successor in
interest by merger to, DEPOSIT GUARANTY NATIONAL BANK, THE
FIRST NATIONAL BANK OF CHICAGO, BANKERS TRUST COMPANY, FIRST
NATIONAL BANK OF COMMERCE, TRUSTMARK NATIONAL BANK, IMPERIAL
BANK, NORWEST BANK OF NEBRASKA, N.A. and FORT XXXXX NATIONAL
BANK, as Lenders, and XXXXX FARGO BANK, National
Association, as Swingline Lender and as the administrative
and collateral agent for the Lenders and Swingline Lender
(herein in such capacity called the "Agent Bank" and,
together with the Lenders and Swingline Lender, collectively
referred to as the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrowers and Banks (Fort Xxxxx National Bank
having acquired its respective Syndication Interest from
Xxxxx Fargo Bank, National Association by Assignment,
Assumption and Consent Agreement dated as of October 6,
1997) entered into a Credit Agreement dated as of July 8,
1997 (the "Existing Credit Agreement") for the purpose of
establishing a reducing revolving line of credit in favor of
Borrowers, to be funded by Lenders up to the maximum
principal amount of One Hundred Twenty-Five Million Dollars
($125,000,000.00), including a Swingline Facility to be
funded by Swingline Lender up to the maximum amount of Five
Million Dollars ($5,000,000.00) at any time outstanding.
B. For the purpose of this First Amendment, all
capitalized words and terms not otherwise defined herein
shall have the respective meanings and be construed herein
as provided in Section 1.01 of the Existing Credit Agreement
and
shall be deemed to incorporate that provision as a
part hereof, in the same manner and with the same effect as
if the same were fully set forth herein.
C. Borrowers and Banks have agreed to the waiver
and amendments to the Existing Credit Agreement on the terms
and subject to the conditions and provisions set forth in
this First Amendment.
NOW, THEREFORE, in consideration of the foregoing
and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto do agree to the waiver, amendments and modifications
to the Existing Credit Agreement as specifically hereinafter
provided as follows:
1. Definitions. As of the First Amendment
Effective Date, Section 1.01 of the Existing Credit
Agreement entitled "Definitions" shall be and is hereby
amended to include the following definitions. Those terms
which are currently defined by Section 1.01 of the Existing
Credit Agreement and which are also defined below shall be
superseded and restated by the applicable definition set
forth below:
"Applicable Margin" means for any Base Rate Loan
or LIBOR Loan the applicable per annum percentage amount to
be added to the Base Rate or the LIBO Rate, as the case may
be, as set forth in the table below based on the Leverage
Ratio of the Borrower Consolidation as of each Fiscal
Quarter end, commencing with the end of the Fiscal Quarter
ending June 30, 1998, together with the immediately
preceding three (3) Fiscal Quarters on a four (4) Fiscal
Quarter basis, any change in the applicable percentage
amount by reason thereof to be effective as of the 1st day
of the third month immediately following each such Fiscal
Quarter end:
LIBO
Leverage Ratio Base Rate Rate
Margin Margin
Greater than 5.00 to 1.00 2.75% 4.00%
Greater than 4.00 to 1.00 2.25% 3.5%
but less than or equal to
5.00 to 1.00
Greater than 3.00 to 1.00 1.75% 3.00%
but less than or equal
to 4.00 to 1.00
Greater than 2.0 to 1.0 but 1.25% 2.50%
less than or equal to
3.0 to 1.0
Greater than 1.00 to 1.0 but 0.75% 2.00%
less than or equal
to 2.0 to 1.00
Less than or equal 0.25% 1.50%
to 1.00 to 1.00
"Availability Limit" shall mean: (i) for the period
commencing on the Closing Date and until June 30, 1998, three and
onequarter (3.25) times (x) EBITDA of the Borrower Consolidation
determined as of the end of each Fiscal Quarter together with the
immediately preceding three (3) Fiscal Quarters on a four (4) Fiscal
Quarter basis as set forth on an Availability Limit Certificate and
received by Agent Bank on each Availability Determination Date,
and (ii) for the period commencing on July 1, 1998 and
continuing until the Maturity Date, two and three-quarters (2.75)
times (x) EBITDA of the Borrower Consolidation determined as of the
end of each Fiscal Quarter together with the immediately preceding three
(3) Fiscal Quarters on a four (4) Fiscal Quarter basis as
set forth on an Availability Limit Certificate and received by
Agent Bank on each Availability Determination Date.
"Credit Agreement" shall mean the Existing Credit Agreement
as amended by the First Amendment, together with all Schedules,
Exhibits and other attachments thereto, as it may be further
amended, modified, extended, renewed or restated from time to time.
"Existing Credit Agreement" shall have the meaning set forth
in Recital Paragraph A of the Second Amendment.
"First Amendment" shall mean the First Amendment to Credit
Agreement.
"First Amendment Effective Date" shall mean June 30, 1998.
2. Modification of Applicable Margin Matrix. As of the
First Amendment Effective Date, the definition of Applicable Margin
shall be modified as set forth in the definition of Applicable Margin
contained in the First Amendment.
3. Reduction of Availability Limit. As of July 1, 1998,
the Availability Limit shall be reduced from 3.25 times (x) EBITDA
to 2.75 times (x) EBITDA as set forth in the definition of Availability
Limit contained in the First Amendment.
4. Restatement of Capital Expenditures Covenant. As of
the First Amendment Effective Date, Section 6.01 entitled
"Minimum Capital Expenditures", shall be and is hereby fully amended
and restated in its entirety as follows:
"Section 6.01. Capital Expenditures.
During each Fiscal Year, commencing with the
Fiscal Year commencing January 1, 1998,
Borrowers shall make or cause to be made,
Capital Expenditures to the Collateral Properties
in a minimum aggregate amount equal to or greater
than two percent (2%) of net revenues but in no
event greater than a maximum aggregate amount
equal to three percent (3%) of net revenues,
exclusive of all amounts approved by Lenders as
of the First Amendment Effective Date for Capital
Expenditures to be made during the 1998 Fiscal Year,
derived from the Collateral Properties by the
Borrower Consolidation during the immediately
preceding Fiscal Year. Commencing with the 1999
Fiscal Year and continuing until the Maturity Date,
Borrowers shall make or cause to be made,
Capital Expenditures to the Collateral Properties
in a minimum aggregate amount equal to or greater
than two percent (2%) of net revenues, but in no
event greater than a maximum aggregate amount equal
to five percent (5%) of net revenues, derived
from the Collateral Properties by the Borrower
Consolidation during the immediately preceding Fiscal
Year."
5. One-Time Waiver of Minimum Tangible Net Worth
Violation. Banks shall and do hereby waive the violation of the
minimum Tangible Net Worth covenant set forth in Section
6.02 of the Existing Credit Agreement, which violation occurred
as of the Fiscal Quarter ended March 31, 1998. Borrowers acknowledge
that the Banks are entitled to require strict compliance with
Section 6.02 of the Credit Agreement (as well as all other provisions
of the Loan Documents) with respect to all other periods and at all times.
6. Restatement of Minimum Tangible Net Worth Covenant.
As of the First Amendment Effective Date, Section 6.02 of the Existing
Credit Agreement entitled "Minimum Tangible Net Worth" shall be and is
hereby fully amended and restated in its entirety as follows:
"Section 6.02. Minimum Tangible Net Worth. As
of the Fiscal Quarter ended June 30, 1998, and as of each
Fiscal Quarter thereafter occurring until Bank Facility
Termination, the Borrower Consolidation shall maintain
as of the last day of each Fiscal Quarter a Tangible Net Worth
equal to or greater than the sum of (a) Fifty-Six Million
Dollars ($56,000,000.00), plus (b) ninety percent (90%) of
Net Income after taxes realized as of each Fiscal Quarter end
occurring on and after September 30, 1998 (without reduction
for any net losses), plus (c) ninety percent (90%) of the
proceeds received in Cash or Cash Equivalents (net of reasonable
expenses) of any and all additional Equity Offerings made after
the Closing Date, other than proceeds of any Equity Offerings
that are required to be paid to Xxxxxx or Magliarditi pursuant
to the terms of the Gem Merger Agreement."
7. Restatement of Leverage Ratio Covenant. As of
the First Amendment Effective Date, Section 6.03 of the Existing
Credit Agreement entitled "Leverage Ratio" shall be and is hereby fully
amended and restated in its entirety as follows:
"Section 6.03. Leverage Ratio. Commencing as of the
first Fiscal Quarter ending subsequent to the Closing Date
and continuing as of each Fiscal Quarter end until Bank
Facilities Termination, the Borrower Consolidation shall
maintain a Leverage Ratio no greater than the ratios described
hereinbelow to be calculated as of the end of each Fiscal Quarter
in accordance with the following schedule:
Fiscal Quarter End Leverage Ratio
------------------ --------------
As of the Closing Date
through the Fiscal Quarter
ending March 31, 1998 5.00 to 1.00
As of the Fiscal Quarter
ending June 30, 1998 5.25 to 1.00
As of the Fiscal Quarter
ending September 30,1998
through the Fiscal Quarter
ending March 31, 1999 5.50 to 1.00
As of the Fiscal Quarter
ending June 30, 1999
through the Fiscal Quarter
ending September 30, 1999 5.25 to 1.00
As of the Fiscal Quarter
ending December 31, 1999 4.75 to 1.00
As of the Fiscal Quarter
ending March 31, 2000
through the Fiscal Quarter
ending June 30, 2000 4.50 to 1.00
As of the Fiscal Quarter
ending September 30, 2000
through the end of each
Fiscal Quarter until the
occurrence of the Maturity
Date 4.00 to 1.00"
8. Restatement of Gross Fixed Charge Coverage Ratio
Covenant. As of the First Amendment Effective Date, Section 6.04
entitled "Gross Fixed Charge Coverage Ratio" shall be and is hereby
fully amended and restated in its entirety as follows:
"Section 6.04. Gross Fixed Charge Coverage Ratio.
Commencing as of the first Fiscal Quarter ending
subsequent to the Closing Date and continuing as of each
Fiscal Quarter end until Bank Facilities Termination,
the Borrower Consolidation shall maintain a Gross Fixed
Charge Coverage Ratio no less than the ratios described
herein below to be calculated as of the end of each Fiscal
Quarter in accordance with the following schedule:
As of the Closing Date
through the Fiscal Quarter
ending March 31, 1998 1.50 to 1.00
As of the Fiscal Quarter
ending June 30,1998
through the Fiscal Quarter
ending September 30, 1999 1.25 to 1.00
As of the Fiscal Quarter
ending December 31, 1999
through the end of each
Fiscal Quarter until the
occurrence of the Maturity Date 1.50 to 1.00"
9. Addition of Section 6.15 entitled "No Additional
Secured Indebtedness". As of the First Amendment Effective Date,
Section 6.16 shall be added to the Credit Agreement as follows:
"Section 6.16. No Additional Secured Indebtedness.
Notwithstanding herein contained or contained in Section
6.08(c) of the Credit Agreement to the contrary, on and after
the First Amendment Effective Date, Borrower shall not incur
any additional Indebtedness secured by any Lien
encumbering all or any portion of the Collateral, exclusive,
however, of secured purchase money Indebtedness permitted
under Section 6.08(c) of the Credit Agreement which was
incurred and outstanding as of the First Amendment Effective Date."
10. Conditions Precedent to Effectiveness of First
Amendment. The First Amendment shall become effective as of the date hereof
upon receipt by Agent Bank of the following documents and payments,
in each case in a form and substance reasonably satisfactory to Agent Bank,
and the occurrence of each other condition precedent set forth below:
a. Due execution by Borrowers and Banks of twelve (12)
duplicate originals of this First Amendment;
b. Corporate resolutions or other evidence of requisite
authority of Borrowers to execute the First Amendment;
c. Reimbursement to Agent Bank by Borrowers for all
reasonable fees and out-of pocket expenses incurred by Agent Bank in
connection with the First Amendment, including, but not limited to,
reasonable attorneys' fees of Xxxxxxxxx & Xxxxxx, LLC; and
d. Such other documents, instruments or conditions
as may be reasonably required by Lenders.
11. Representations of Borrowers. Borrowers hereby represent
to the Banks that as of the date hereof:
a. the representations and warranties contained in
Article IV of the Existing Credit Agreement and contained in each of the
other Loan Documents (other than representations and warranties which
expressly speak only as of a different date, which shall be true and correct
in all material respects as of such date) are true and correct on and as of
the date hereof in all material respects as though such representations and
warranties had been made on and as of the date hereof, except to the extent
that such representations and warranties are not true and correct as a result
of a change which is permitted by the Credit Agreement or by any other Loan
Document or which has been otherwise consented to by Agent Bank;
b. Since the date of the most recent financial
statements referred to in Section 5.08 of the Existing Credit Agreement,
no Material Adverse Change has occurred and no event or circumstance which
could reasonably be expected to result in a Material Adverse Change or
Material Adverse Effect has occurred;
c. no event has occurred and is continuing which
constitutes a Default or Event of Default under the terms of the Credit
Agreement; and
d. The execution, delivery and performance of this
First Amendment has been duly authorized by all necessary action of
Borrowers and this First Amendment constitutes a valid, binding and
enforceable obligation of Borrowers.
12. Incorporation by Reference. This First Amendment
shall be and is hereby incorporated in and forms a part of the Existing
Credit Agreement.
13. Governing Law. This First Amendment shall be governed by
the internal laws of the State of Nevada without reference to conflicts of
laws principles.
14. Counterparts. This First Amendment may be executed in
any number of separate counterparts with the same effect as if the
signatures hereto and hereby were upon the same instrument. All such
counterparts shall together constitute one and the same document.
15. Continuance of Terms and Provisions. All of the terms
and provisions of the Existing Credit Agreement shall remain unchanged
except as specifically modified herein.
IN WITNESS WHEREOF, the parties hereto have executed
this First Amendment as of the day and year first above written.
BORROWERS:
AMERISTAR CASINOS, INC.,
a Nevada corporation
By /s/Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Senior Vice President
CACTUS PETE'S, INC.,
a Nevada corporation
By /s/Xxxxxx Xxxxxxxxxx,
Xxxxxx Xxxxxxxxxx,
Vice President
AMERISTAR CASINO VICKSBURG,
INC., a Mississippi
corporation
By /s/Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
AMERISTAR CASINO COUNCIL
BLUFFS, INC., an Iowa
Corporation
By /s/Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
AMERISTAR CASINO LAS VEGAS,
INC., a Nevada corporation
By /s/Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
BANKS:
XXXXX FARGO BANK,
National Association,
Agent Bank, Lender and
Swingline Lender
By /s/Xxxxx Xxxxxx
Xxxxx Xxxxxx,
Vice President
U.S. BANK,
Lender
By /s/Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
FIRST AMERICAN NATIONAL BANK,
operating as, and successor in
interest by merger to,
DEPOSIT GUARANTY NATIONAL BANK,
Lender
By /s/Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Senior Vice President
THE FIRST NATIONAL BANK OF
CHICAGO,
Lender
By /s/Xxxx X. Xxxxx
Xxxx X. Xxxxx,
First Vice President
BANKERS TRUST COMPANY, Lender
By /s/Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx,
Principal
FIRST NATIONAL BANK OF COMMERCE,
Lender
By /s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx,
Senior Vice President
TRUSTMARK NATIONAL BANK,
Lender
By /s/Xxxxxx Xxx
Xxxxxx Xxx,
Vice President
IMPERIAL BANK,
Lender
By /s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
Senior Vice President
NORWEST BANK OF NEBRASKA, N.A.,
Lender
By /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx,
Vice President
FORT XXXXX NATIONAL BANK
By /s/Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx,
Senior Vice President
