ISLE OF CAPRI BLACK HAWK, L.L.C. FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.28
ISLE
OF CAPRI BLACK HAWK, L.L.C.
FIRST
AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This
FIRST
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this
“Amendment”)
is
dated as of February 6, 2004 and entered into by and among ISLE
OF CAPRI BLACK HAWK, L.L.C.,
a
Colorado limited liability company (“Borrower”),
the
Credit Support Parties (as hereafter defined) solely for purposes of
Section
4
hereof,
the financial institutions party to the Credit Agreement (“Lenders”)
and
CANADIAN
IMPERIAL BANK OF COMMERCE,
as
administrative agent for Lenders (“Administrative
Agent”),
and
is made with reference to that certain Amended and Restated Credit Agreement
dated as of April 22, 2003 (the “Credit
Agreement”),
by
and among Borrower, Lenders, the other agents named therein and Administrative
Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS,
Borrower
and Lenders desire to amend the Credit Agreement on the terms and conditions
contained herein to (i) to create a new class of Tranche C Term Loans (the
“Tranche
C Term Loans”),
and
(ii) make certain other amendments as set forth below;
WHEREAS,
on the
First Amendment Effective Date (as hereinafter defined), the outstanding Tranche
A Term Loans and Tranche B Term Loans will be converted into, or repaid in
full
with the proceeds of, the Tranche C Term Loans;
WHEREAS,
(a)
each Lender having a Tranche C Term Loan Commitment (as hereinafter defined)
in
excess of its outstanding Tranche A Term Loans and Tranche B Term Loans on
the
First Amendment Effective Date (each such Lender, an “Increasing
Lender”)
shall
make a Tranche C Term Loan to the Borrower on the First Amendment Effective
Date
in the amount of the excess of such Increasing Lender’s Tranche C Term Loan
Commitment over such Increasing Lender’s aggregate Tranche A Term Loans and
Tranche B Term Loans, and (b) each new Lender having a Tranche C Term Loan
Commitment (each, a “New
Lender”)
that
executes and delivers this Amendment shall make a Tranche C Term Loan to
Borrower on the First Amendment Effective Date in an amount equal to such New
Lender’s Tranche C Term Loan Commitment, the proceeds of which, together with
other funds of Borrower, shall be used by Borrower to repay in full the
outstanding principal amount of the Tranche A Term Loans and Tranche B Term
Loans of certain existing Lenders (the “Exiting
Lenders”);
and
1
WHEREAS,
each
Lender having a Tranche A Term Loan and/or a Tranche B Term Loan outstanding
as
of the date hereof that executes and delivers this Amendment shall be deemed,
upon the First Amendment Effective Date, to have converted its Tranche A Term
Loan and its Tranche B Term Loan into a Tranche C Term Loan in the same
aggregate principal amount as such Lender’s Tranche C Term Loan Commitment
(less, in the case of any Increasing Lender, the amount of Tranche C Term Loans
made to repay Exiting Lenders’ Tranche A Term Loans and Tranche B Term Loans);
and
NOW,
THEREFORE, in
consideration of the foregoing recitals and the agreements, provisions and
covenants herein contained, the parties hereto agree as follows:
Section
1. AMENDMENTS
AND WAIVERS TO THE CREDIT AGREEMENT
1.1 Amendments
to Section 1: Definitions
A. Subsection 1.1
of the Credit Agreement is hereby amended by adding thereto the following
definitions, which shall be inserted in proper alphabetical order:
“First
Amendment”
means
that certain First Amendment to First Amended and Restated Credit Agreement
dated as of February 6, 2004.
“First
Amendment Effective Date”
has the
meaning assigned to that term in the First Amendment.
“Public
Improvement Capital Expenditures”
means
those Consolidated Capital Expenditures (which are not otherwise classified
as
Maintenance Capital Expenditures or Expansion Capital Expenditures) attributable
to constructing the Public Improvements associated with the Expansion
Project.
“Public
Improvements”
means
the
following improvements to be constructed by
Borrower and dedicated to the City
of
Black
Hawk, or
other governmental or quasi-governmental entity designated by the City of Black
Hawk, in
connection with the Expansion Project: The extension of Main Street South to
intersect with Highway 119,
utilities, public
areas of pedestrian overpass connections
and
other improvements identified in the Subdivision Agreement, dated August 13,
2003, between the City of Black Hawk and Borrower, as amended on January 14,
2004.
“Tranche
C Term Loan Commitment”
means
the commitment of a Lender to make (and/or convert from a Tranche A Term Loan
and/or a Tranche B Term Loan) on the First Amendment Effective Date a Tranche
C
Term Loan pursuant to subsection 2.1A(iv) and “Tranche
C Term Loan Commitments”
means
such commitments of all Lenders in the aggregate.
“Tranche
C Term Loan Exposure”
means,
with respect to any Lender as of any date of determination, the outstanding
principal amount of the Tranche C Term Loans of that Lender.
“Tranche
C Term Loan Maturity Date”
means
December 31, 2007.
2
“Tranche
C Term Loans”
means
the Loans made as Tranche C Term Loans (and/or converted into Tranche C Term
Loans from Tranche A Term Loans and/or Tranche B Term Loans) on the First
Amendment Effective Date by Lenders to Borrower pursuant to subsection
2.1A(iv).
“Tranche
C Term Notes”
means
any promissory notes of Borrower issued pursuant to subsection 2.1E to evidence
the Tranche C Term Loans of any Lender, substantially in the form of Exhibit
V
annexed hereto.
B. Subsection 1.1
of the Credit Agreement is further amended by amending and restating the
following definitions to read in their entirety as follows:
“Applicable
LIBOR Margin”
means
with respect to Revolving Loans and Tranche C Term Loans that are LIBOR Loans,
a
percentage per annum as set forth below opposite the applicable Consolidated
Total Leverage Ratio:
|
Consolidated
Total Leverage Ratio
|
Applicable
LIBOR Margin
|
|
|
Revolving
Loans
|
Tranche
C Term Loans
|
|
|
Less
than 1.00:1.00
|
2.75%
|
3.00%
|
|
Greater
than or equal to 1.00:1.00 but less than 1.50:1.00
|
3.00%
|
3.00%
|
|
Greater
than or equal to 1.50:1.00 but less than 2.00:1.00
|
3.25%
|
3.00%
|
|
Greater
than or equal to 2.00:1.00 but less than 2.50:1.00
|
3.50%
|
3.00%
|
|
Greater
than or equal to 2.50:1.00 but less than 3.00:1.00
|
3.50%
|
3.00%
|
|
Greater
than or equal to 3.00:1.00
|
3.50%
|
3.00%
|
“Consolidated
Total Debt”
means,
as at any date of determination, an aggregate amount equal to (a) the aggregate
principal amount of all Indebtedness of Borrower and its Subsidiaries plus
(b)
the aggregate amount of Contingent Obligations of Borrower and its Subsidiaries
where the primary obligation of such Contingent Obligation constitutes
Indebtedness or a makewell, keepwell or other similar agreement (but excluding
Contingent Obligations under Hedge Agreements) plus (c) the face amount of
any
outstanding letters of credit (including Letters of Credit) less (d) the
aggregate amount of Cash and Cash Equivalents of Borrower and its Subsidiaries
(including funds escrowed by Borrower or one of its Subsidiaries to pay the
costs of constructing the Public Improvements) in excess of $10,000,000
(provided, however, that upon consummation of the Grande Sale, such amount
shall
be reduced by $2,500,000 to $7,500,000) and less (e) the aggregate principal
amount of Indebtedness incurred pursuant to subsection 7.1(vii), in each case
determined on a consolidated basis in accordance with GAAP.
3
“Grande
Sale”means
the
sale of the Grande Gaming Facilities for a sales price of not less than
$7,500,000 in cash or on terms and conditions reasonably acceptable to
Administrative Agent.
“Revolving
Loan Commitment Termination Date”
means
the earlier of December 31, 2006 or such date as the Tranche C Term Loans are
repaid in full.
“Tranche
B Term Loan Commitment”
means
(a) prior to the First Amendment Effective Date, the commitment of a Lender
to
make a Tranche B Term Loan to Borrower pursuant to subsection 2.1A(ii), and
“Tranche B Term Loan Commitments” means such commitments of all Lenders in the
aggregate, and (b) from and after the First Amendment Effective Date, the
commitment of a Lender to make a Tranche C Term Loan to Borrower pursuant to
subsection 2.1A(iv), and “Tranche B Term Loan Commitments” means such
commitments of all Lenders in the aggregate.
“Tranche
B Term Loan Exposure”,
with
respect to any Lender, means, (a) prior to the First Amendment Effective Date,
as of any date of determination, the outstanding principal amount of the Tranche
B Term Loans of that Lender and (b) from and after the First Amendment Effective
Date, as of any date of determination, the outstanding principal amount of
the
Tranche C Term Loans of that Lender.
“Tranche
B Term Loans”
means
(a) prior to the First Amendment Effective Date, the Loans made by Lenders
to
Borrower pursuant to subsection 2.1A(ii), and (b) from and after the First
Amendment Effective Date, the Tranche C Term Loans.
“Tranche
B Term Loan Maturity Date”
means
(a) prior to the First Amendment Effective Date, November 16, 2006, and (b)
from
and after the First Amendment Effective Date, the Tranche C Term Loan Maturity
Date.
C. From
and
after the First Amendment Effective Date, each reference in the Credit Agreement
to “Tranche A Term Loan Commitment”, “Tranche A Term Loan Commitments”, “Tranche
A Term Loan Exposure”, Trance A Term Loan Maturity Date”, “Tranche A Term Loan”,
Tranche A Term Loans”, “Tranche A Term Note” and “Tranche A Term Notes” shall be
disregarded.
1.2 Amendments
to Section 2: Amounts and Terms of Commitments and
Loans
A. Commitments.
Subsection 2.1A of the Credit Agreement is hereby amended by adding
at the
end thereof the following as a new subsection 2.1A(iv) reading in its entirety
as follows:
4
“(iv) Tranche
C Term Loans.
The
aggregate amount of the Tranche C Term Loan Commitment is $165,000,000. Each
Lender that has a Tranche C Term Loan Commitment severally agrees (a) to convert
on the First Amendment Effective Date each “Tranche A Term Loan” and “Tranche B
Term Loan” (if any) made by such Lender under (and as defined in) this Agreement
and outstanding immediately prior to giving effect to the First Amendment to
a
Tranche C Term Loan hereunder (and Borrower hereby agrees to such conversion)
and (b) to make to Borrower on the First Amendment Effective Date a Tranche
C
Term Loan hereunder in an amount equal to the excess (if any) of such Lender’s
Tranche C Term Loan Commitment over the aggregate principal amount of such
Lender’s Tranche A Term Loan and/or Tranche B Term Loan (if any) being converted
on the First Amendment Effective Date to Tranche C Term Loans, so that, after
giving effect to the conversion of the Tranche A Term Loans and Tranche B Term
Loans into Tranche C Term Loans pursuant to clause (a) above and the making
of
all such Tranche C Term Loans pursuant to clause (b) above, each Lender that
has
a Tranche C Term Loan Commitment will have made or deemed made, as the case
may
be, a Tranche C Term Loan to Borrower in an amount equal to its Pro Rata Share
of the aggregate amount of the Tranche C Term Loan Commitments, to be used
for
the purposes identified in subsection 2.5A. Each Tranche C Term Loan shall
be
deemed to have the same Interest Period as the Tranche A Term Loan or Tranche
B
Term Loan it replaces, and no making of or conversion into a Tranche C Term
Loan
hereunder shall result in the commencement of a new Interest Period; provided,
however, that each Lender’s Term C Loans will be reallocated among the LIBOR
Loans for each outstanding Interest Period and the outstanding Base Rate Loans
such that the Lenders having Term C Loan Commitments shall own their respective
Pro Rata Shares of such LIBOR Loans for each Interest Period and Base Rate
Loans. Borrower shall deliver to Administrative Agent a Notice of Borrowing
no
later than 12:00 Noon (New York City time) at least one Business Day prior
to
the First Amendment Effective Date, requesting a borrowing of the Tranche C
Term
Loans. The Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of the borrowing, and (iii)
that such Loans (other than converted Loans) shall be Base Rate Loans. Each
Lender’s unfunded Tranche C Term Loan Commitment shall expire immediately and
without further action at the close of business on the First Amendment Effective
Date if the Tranche C Term Loans have not been made on such date. Borrower
may
make only one borrowing (on the First Amendment Effective Date) under the
Tranche C Term Loan Commitment. Amounts borrowed under this subsection 2.1A(iv)
and subsequently repaid or prepaid may not be reborrowed.”
B. Scheduled
Payments of Term Loans. Subsection
2.4A of the Credit Agreement is amended (1) by replacing the text of subsections
2.4A(i) and (ii) thereof with “[RESERVED]” and (2) to add at the end thereof a
new subsection 2.4A(iii) reading in its entirety as follows:
“(iii) Scheduled
Payments of Tranche C Term Loans.
Borrower shall make principal payments on the Tranche C Term Loans in
installments on the last Business Day of each of the months and in the amounts
set forth below:
5
|
Date
|
Scheduled
Repayment
|
|
June,
2004
|
$
412,500
|
|
September,
2004
|
$
412,500
|
|
December,
2004
|
$
412,500
|
|
March,
2005
|
$
412,500
|
|
June,
2005
|
$
412,500
|
|
September,
2005
|
$
412,500
|
|
December,
2005
|
$
412,500
|
|
March,
2006
|
$
412,500
|
|
June,
2006
|
$
412,500
|
|
September,
2006
|
$
412,500
|
|
December,
2006
|
$
412,500
|
|
March,
2007
|
$
412,500
|
|
June,
2007
|
$
412,500
|
|
September,
2007
|
$
412,500
|
|
Tranche
C Term Loan Maturity Date
|
$159,225,000
|
;
provided that the scheduled installments of principal of the Tranche C Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche C Term Loans in accordance with subsection
2.4B(iv); and provided, further that the Tranche C Term Loans and all other
amounts owed hereunder with respect to the Tranche C Term Loans shall be paid
in
full no later than the Tranche C Term Loan Maturity Date, and the final
installment payable by Borrower in respect of the Tranche C Term Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Borrower under this Agreement
with respect to the Tranche C Term Loans.”
C. Use
of Proceeds.
Subsection 2.5A is amended and restated to read in its entirety as
follows:
“A. Tranche
C Term Loans.
The
proceeds of the Tranche C Term Loans shall be applied by Borrower to repay
in
full the principal amount of all “Tranche A Term Loans” and “Tranche B Term
Loans” under this Agreement outstanding immediately prior to giving effect to
the First Amendment that are not converted into Tranche C Term Loans pursuant
to
the terms of this Agreement as amended by the First Amendment.”
1.3 Amendments
to Section 3: Letters of Credit
A. Letter
of Credit.
Subsection 3.1A(ii) of the Credit Agreement is amended and restated to read
in
its entirety as follows:
“(ii) any
Letter of Credit if, after giving effect to such issuance, the Letter of Credit
Usage would exceed $15,000,000;”
1.4 Amendments
to Section 6: Borrower’s Affirmative Covenants
A. Isle-Riviera
Agreement.
Subsection 6.12 of the Credit Agreement is amended and restated to read in
its
entirety as follows:
6
“Borrower
shall provide Administrative Agent with a copy of the Isle-Riviera Agreement
within 60 days after execution of such agreement, to the extent it is
executed.”
1.5 Amendments
to Section 7: Borrower’s Negative Covenants
A. Indebtedness.
Subsection 7.1 of the Credit Agreement is amended by adding at the end thereof
the following as a new clause (vii) reading in its entirety as
follows:
“(vii)
Borrower and its Subsidiaries may incur and remain liable with respect to
Indebtedness arising from obligations to fund the repayment of public
improvement bonds issued by the Black Hawk Business Improvement District with
respect to the Public Improvements provided that (a) the terms of such issuance
are acceptable to Administrative Agent, (b) Borrower or one of its Subsidiaries
is the owner of such bonds on terms acceptable to Administrative Agent, and
(c)
the aggregate principal amount of such Indebtedness does not exceed the result
of $20,000,000 less the amount incurred as Public Improvement Capital
Expenditures pursuant to subsection 7.8(D).”
B. Liens
and Related Matters.
Subsection 7.2A is amended by adding at the end thereof the following as a
new
clause (vi) reading in its entirety as follows:
“(vi) Liens
in
favor of the City of Black-Hawk and the Black Hawk Business Improvement District
on funds escrowed by Borrower or one of its Subsidiaries to pay the costs of
constructing the Public Improvements provided that such escrowed funds do not
exceed $20,000,000 less the aggregate principal amount of Indebtedness incurred
pursuant to subsection 7.1(vii).”
C. Investments;
Acquisitions. Subsection
7.3 of the Credit Agreement is amended by adding at the end thereof a new clause
(vii) reading in its entirety as follows:
“(vii) Borrower
and its Subsidiaries may make Investments to acquire public improvement bonds
issued by the Black Hawk Business Improvement District with respect to the
Public Improvements, provided that (a) Borrower or one of its Subsidiaries
is
the owner of such bonds, and (b) the aggregate amount of such Investments does
not exceed the result of $20,000,000 less the amount incurred as Public
Improvement Capital Expenditures pursuant to subsection 7.8(D).”
D. Consolidated
Total Leverage Ratio. Subsection
7.6B of the Credit Agreement is amended and restated to read in its entirety
as
follows:
“B.
Maximum
Consolidated Total Leverage Ratio.
Borrower shall not permit the Consolidated Total Leverage Ratio as of the last
day of the most recently ended Fiscal Quarter ending during any of the periods
set forth below to exceed the correlative ratio indicated:
7
|
Period
|
Maximum
Total Leverage Ratio
|
|
3rd
Fiscal Quarter, Fiscal Year 2004
4th
Fiscal Quarter, Fiscal Year 2004
|
3.25
: 1.00
3.25
: 1.00
|
|
1st
Fiscal Quarter, Fiscal Year 2005
2nd
Fiscal Quarter, Fiscal Year 2005
3rd
Fiscal Quarter, Fiscal Year 2005
4th
Fiscal Quarter, Fiscal Year 2005
|
3.50
: 1.00
3.50
: 1.00
3.75
: 1.00
3.75
: 1.00
|
|
1st
Fiscal Quarter, Fiscal Year 2006
2nd
Fiscal Quarter, Fiscal Year 2006
3rd
Fiscal Quarter, Fiscal Year 2006
4th
Fiscal Quarter, Fiscal Year 2006
|
3.75
: 1.00
3.75
: 1.00
3.50
: 1.00
3.25
: 1.00
|
|
1st
Fiscal Quarter, Fiscal Year 2007
2nd
Fiscal Quarter, Fiscal Year 2007
3rd
Fiscal Quarter, Fiscal Year 2007
4th
Fiscal Quarter, Fiscal Year 2007
|
3.00
: 1.00
2.75
: 1.00
2.75
: 1.00
2.75
: 1.00
|
|
1st
Fiscal Quarter, Fiscal Year 2008 and each Fiscal Quarter
thereafter
|
2.50
: 1.00 ”
|
E. Minimum
Consolidated EBITDA.
Subsection 7.6C of the Credit Agreement is hereby amended and restated
to
read in its entirety as follows:
“C.
Minimum
Consolidated EBITDA.
Borrower shall not permit Consolidated EBITDA for any four-Fiscal Quarter period
to be less than the amounts set forth below; provided, however, that upon the
consummation of the Grande Sale, Borrower shall not permit Consolidated EBITDA
for any four-Fiscal Quarter period to be less than the amounts set forth below
less the amount of Grande’s Consolidated EBITDA for the four-Fiscal Quarter
period most recently ending prior to the Grande Sale.
8
|
Period
|
Minimum
Consolidated EBITDA
|
|
3rd
Fiscal Quarter, Fiscal Year 2004
4th
Fiscal Quarter, Fiscal Year 2004
|
$48,000,000
$48,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2005
2nd
Fiscal Quarter, Fiscal Year 2005
3rd
Fiscal Quarter, Fiscal Year 2005
4th
Fiscal Quarter, Fiscal Year 2005
|
$48,000,000
$48,000,000
$48,000,000
$48,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2006
2nd
Fiscal Quarter, Fiscal Year 2006
3rd
Fiscal Quarter, Fiscal Year 2006
4th
Fiscal Quarter, Fiscal Year 2006
|
$48,000,000
$48,000,000
$50,000,000
$54,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2007
2nd
Fiscal Quarter, Fiscal Year 2007
3rd
Fiscal Quarter, Fiscal Year 2007 and each Fiscal Quarter
thereafter
|
$56,000,000
$58,000,000
$60,000,000
”
|
F. Capital
Expenditures.
Subsection 7.8C of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
“C. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Expansion
Capital Expenditures in connection with the Expansion Project in an aggregate
amount in excess of (a) $75,000,000 plus (b) the amount of Capital Expenditures
permitted to be made or incurred pursuant to subsection 7.8D (without giving
effect to clause (b) of subsection 7.8D), but not so made or incurred; provided,
however, Borrower may, and may permit its Subsidiaries to, make or incur
Expansion Capital Expenditures in excess of the sum of clauses (a) and (b)
above
to pay for cost overruns incurred in connection with the Expansion Project
to
the extent of the net proceeds received by Borrower in connection with
incurrence of the Subordinated PIK Indebtedness.”
G. Public
Improvement Capital Expenditures.
Subsection 7.8 of the Credit Agreement is amended by adding at the end thereof
a
new clause (D) reading in its entirety as follows:
“D. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Public
Improvement Capital Expenditures in connection with the Expansion Project in
an
aggregate amount in excess of (a) $20,000,000 plus (b) the amount of Capital
Expenditures permitted to be made or incurred pursuant to subsection 7.8C
(without giving effect to clause (b) of subsection 7.8C) but not so made or
incurred, less (c) the aggregate principal amount of Indebtedness incurred
pursuant to subsection 7.1(vii) ; provided, however, Borrower may, and may
permit its Subsidiaries to, make or incur Public Improvement Capital
Expenditures in excess of the result of clauses (a), (b) and (c) above to pay
for cost overruns incurred in connection with the Expansion Project to the
extent of the net proceeds received by Borrower in connection with incurrence
of
the Subordinated PIK Indebtedness.”
9
1.6 Substitution
of Exhibits
A. Exhibit V:
Form of Tranche
C Term Note.
Exhibit V
to the
Credit Agreement is hereby amended by deleting said Exhibit V
in its
entirety and substituting in place thereof a new Exhibit V
in the
form of Exhibit V
to this
Amendment.
1.7 Waiver
of Prepayment Notice
Lenders
hereby waive any notice of prepayment required pursuant to subsection 2.4 of
the
Credit Agreement in connection with the repayment of the Tranche A Term Loans
and Tranche B Term Loans on the First Amendment Effective Date (as hereinafter
defined).
Section
2. CONDITIONS
TO EFFECTIVENESS
This
Amendment shall become effective only upon the satisfaction of all of the
following conditions precedent (the date of satisfaction of such conditions
being referred to herein as the (“First Amendment
Effective Date”):
A. Deliveries.
On or
before the First Amendment Effective Date, Borrower shall deliver to
Administrative Agent the following, each, unless otherwise noted, dated the
First Amendment Effective Date:
1. Borrower
and Credit Support Party Documents.
With
respect to Borrower and each other Credit Support Party, as the case may be,
a
Secretary’s Certificate, in form and substance reasonably satisfactory to
Administrative Agent and dated the First Amendment Effective Date, certifying
that (1) the Organizational Documents of Borrower and each other Credit Support
Party and the signature and incumbency certificate of Borrower and each other
Credit Support Party, in each case, as delivered to Administrative Agent on
the
Effective Date, are in full force and effect and have not been amended or
modified in any respect since the Effective Date, and (2) the resolutions of
the
Board of Directors (or similar governing body) of Borrower and each other Credit
Support Party authorizing the transactions contemplated by this Amendment;
and
2. Amendment.
From
(i) the Requisite Lenders and all of the Revolving Lenders, (ii) the Increasing
Lenders and/or New Lenders providing Tranche C Term Loan Commitments in an
amount sufficient to repay all of the outstanding principal amount (as of the
First Amendment Effective Date) of the Tranche A Term Loans and Tranche B Term
Loans owed to the Exiting Lenders, and (iii) Borrower and the other Credit
Support Parties, (1) a counterpart of this Amendment signed on behalf of such
party, (2) written evidence satisfactory to Administrative Agent (which may
include telecopy transmission of a signed signature page of this Amendment)
that
such party has signed a counterpart of this Amendment, and (3) executed copies
of the Tranche C Term Notes, substantially in the form of Exhibit V to this
Amendment, drawn to the order of each Lender requesting a Tranche C Term Note
and with appropriate insertions.
10
3. Opinions.
Copies
of one or more favorable written opinions of (i) Xxxxx X. Xxxxxxx, general
counsel to the Loan Parties, (ii) Mayer, Brown, Xxxx & Maw LLP, special
counsel to the Loan Parties, and (iii) Xxxxxxxxxx Xxxxx & Xxxxxx, P.C.,
local counsel for the Loan Parties, each, in form and substance reasonably
satisfactory to Administrative Agent and its counsel, dated as of the First
Amendment Effective Date, with respect to the enforceability of the Amended
Agreement (as hereinafter defined) and as to such other matters as
Administrative Agent acting on behalf of Lenders may reasonably
request.
4. Notice
of Borrowing.
A
Notice of Borrowing meeting the requirements of subsection 2.1B of the Credit
Agreement. Such Notice of Borrowing shall be deemed (i) to the extent of any
conversion of Tranche A Term Loans and Tranche B Term Loans to Tranche C Term
Loans, to request such conversion, and (ii) to the extent of the aggregate
principal amount of any Exiting Lenders’ Tranche A Term Loans and Tranche B Term
Loans, to request the funding of Tranche C Term Loans from any Increasing Lender
and/or any New Lender in accordance with subsection 2.1A(iv), and to direct
the
voluntary prepayment of all Exiting Lenders’ Tranche A Term Loans and Tranche B
Term Loans in accordance with subsection 2.4B(iv) of the Credit
Agreement.
5. Amendment
to Mortgages and Title Reports.
From
Borrower and the other Credit Support Parties, as applicable, a First Amendment
to Mortgage (the “First
Amendment to Mortgage”)
in
form and substance reasonably acceptable to Administrative Agent, together
with
an irrevocable commitment of the Title Company to issue a 110.5 endorsement
to
the Title Policies, insuring the continued priority of the Mortgages as amended
by the First Amendment to Mortgage, subject to only those additional title
exceptions approved by Administrative Agent in its reasonable
discretion.
B. Proceedings.
On
or
before the First Amendment Effective Date, all corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby
and
all documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and such counsel,
and
Administrative Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative Agent may
reasonably request.
11
C. Fees.
Administrative
Agent shall have received for the ratable benefit of the Revolving Lenders
an
amendment fee equal to 0.25% of the aggregate Revolving Loan
Commitments.
Section
3. BORROWER’S
REPRESENTATIONS AND WARRANTIES
In
order
to induce Lenders to enter into this Amendment and to amend the Credit Agreement
in the manner provided herein, Borrower represents and warrants to each Lender
that the following statements are true, correct and complete:
A. Power
and Authority.
Borrower has all requisite power and authority to enter into this Amendment,
the
Tranche C Term Notes, the First Amendment to Mortgage and all other documents
to
be delivered by Borrower and the other Credit Support Parties pursuant to the
Amendment (collectively, the “Amendment
Documents”),
to
issue the Tranche C Term Notes and to carry out the transactions contemplated
by, and perform its obligations under, the Credit Agreement as amended by this
Amendment (the “Amended
Agreement”)
and
the other Loan Documents as amended by the other Amendment
Documents.
B. Authorization
of Agreements.
The
execution and delivery of this Amendment and the other Amendment Documents
the
performance of the Amended Agreement and the issuance, delivery and payment
of
the Tranche C Term Notes have been duly authorized by all necessary action
on
the part of the Loan Parties.
C. No
Conflict.
The
execution and delivery by Borrower and the Credit Support Parties of this
Amendment and the other Amendment Documents and the Tranche C Term Notes and
the
performance by Borrower and the other Credit Support Parties of the Amended
Agreement and other Loan Documents as amended by the other Amendment Documents
and the issuance, delivery and payment of the Tranche C Term Notes do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Borrower or any of its Subsidiaries, the Organizational
Documents of Borrower or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on Borrower or any
of
its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Contractual Obligation
of Borrower or any of its Subsidiaries (other than any such conflict, breach
or
default which could not reasonably be expected to result in a Material Adverse
Effect), (iii) result in or require the creation or imposition of any
Lien
upon any of the properties or assets of Borrower or any of its Subsidiaries
(other than any Lien created under any of the Loan Documents in favor of the
Administrative Agent), or (iv) require any approval of stockholders
or any
approval or consent of any Person under any Contractual Obligation of Borrower
or any of its Subsidiaries.
D. Governmental
Consents.
The
execution and delivery by Borrower and the Credit Support Parties of this
Amendment and the other Amendment Documents and the Tranche C Term Notes and
the
performance by Borrower and the Credit Support Parties of the Amended Agreement
and the other Loan Documents as amended by the other Amendment Documents and
the
issuance, delivery and payment of the Tranche C Term Notes by Borrower do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body,
except
for notice to the Colorado Gaming Authorities and the right of the Colorado
Gaming Authorities to require subsequent approval of, or changes to, or
termination of, this Amendment, the other Amendment Documents, the Credit
Facility or the other Loan Document.
12
E. Binding
Obligation.
This
Amendment and other Amendment Documents have been duly executed and delivered
by
Borrower and this Amendment and the Amended Agreement are, and the Tranche
C
Term Notes, when executed and delivered, will be and, upon execution and
delivery by Borrower of Tranche C Term Notes will be the legally valid and
binding obligations of Borrower, enforceable against Borrower in accordance
with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to
enforceability.
F. Incorporation
of Representations and Warranties From Credit Agreement.
The
representations and warranties contained in Section 5 of the Credit Agreement
are and will be true, correct and complete in all material respects on and
as of
the First Amendment Effective Date to the same extent as though made on and
as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. Absence
of Default.
No
event has occurred and is continuing or will result from the consummation of
the
transactions contemplated by this Amendment that would constitute an Event
of
Default or a Potential Event of Default.
Section
4. ACKNOWLEDGEMENT
AND CONSENT
Each
Subsidiary Guarantor listed on the signatures pages hereof (each, a
“Credit
Support Party”)
hereby
acknowledges and agrees that each of the Subsidiary, Guaranty and each
Collateral Document (each, a “Credit
Support Document”)
to
which it is a party or otherwise bound shall continue in full force and effect
and that all of its obligations thereunder shall be valid and enforceable and
shall not be impaired or limited by the execution or effectiveness of this
Amendment. Each Subsidiary Guarantor represents and warrants that all
representations and warranties applicable to such Subsidiary Guarantor contained
in the Amended Agreement and the Credit Support Documents to which it is a
party
or otherwise bound are true, correct and complete in all material respects
on
and as of the First Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier
date.
Each
Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding
the
conditions to effectiveness set forth in this Amendment, such Subsidiary
Guarantor is not required by the terms of the Credit Agreement or any other
Loan
Document to consent to the amendments to the Credit Agreement effected pursuant
to this Amendment and (ii) nothing in the Credit Agreement, this Amendment
or any other Loan Document shall be deemed to require the consent of such
Subsidiary Guarantor to any future amendments to the Credit
Agreement.
13
Section
5. MISCELLANEOUS
A. Reference
to and Effect on the Credit Agreement and the Other Loan Documents.
1. On
and
after the First Amendment Effective Date, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
2. Except
as
specifically amended by this Amendment, the Credit Agreement and the other
Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
3. The
execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate
as a waiver of any right, power or remedy of Administrative Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents.
B. Fees
and Expenses.
Borrower acknowledges that all costs, fees and expenses as described in
subsection 10.2 of the Credit Agreement incurred by Administrative Agent
and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of
Borrower.
C. Headings.
Section and subsection headings in this Amendment are included
herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
D. Applicable
Law.
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts;
Effectiveness.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
[Remainder
of page intentionally left blank]
14
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and delivered
by
their respective officers thereunto duly authorized as of the date first written
above.
ISLE
OF CAPRI BLACK HAWK, L.L.C.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
THE
CREDIT SUPPORT PARTIES:
ISLE
OF CAPRI BLACK HAWK CAPITAL CORP.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
IOC-
BLACK HAWK DISTRIBUTION COMPANY, LLC
By:
Isle
of
Capri Black Hawk, L.L.C., its sole member
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
IC
HOLDINGS COLORADO, INC.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
CCSC/BLACKHAWK,
INC.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
S-1
COLORADO
GRANDE ENTERPRISES, INC.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X. Xxxxxxx
Senior
Vice President and Chief Financial Officer
CANADIAN
IMPERIAL BANK OF COMMERCE,
as
Administrative Agent
By:
/s/
XXXX X. XXXXXX
Xxxx
X.
Xxxxxx
Managing
Director
CIBC
World Markets Corp., AS AGENT
CIBC
INC.,
as a
Lender
By:
/s/
XXXX X. XXXXXX
Xxxx
X.
Xxxxxx
Managing
Director
CIBC
World Markets Corp., AS AGENT
S-2
By
signing below, the undersigned Lender hereby (i) authorizes Canadian Imperial
Bank of Commerce, in its capacity as Administrative Agent pursuant to that
certain Amended and Restated Credit Agreement dated as of April 22, 2003, among
Isle of Capri Black Hawk, L.L.C., Canadian Imperial Bank of Commerce, as
administrative agent for the financial institutions listed therein (in such
capacity, “Administrative
Agent”)
and
the other parties named therein to execute and deliver that certain First
Amendment to Amended and Restated Credit Agreement dated as of February 6,
2004
on such Lender’s behalf, (ii) approves such First Amendment to Amended and
Restated Credit Agreement and (iii) agrees that such First Amendment to Amended
and Restated Credit Agreement shall be binding upon such Lender.
______________________________________,
as
a
Lender
By: ________________________________
Name:
Title:
S-3
Exhibit
V
FORM
OF TRANCHE C TERM NOTE
Annex
A-
