AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
This Amendment No. 1 to Amended and Restated Loan Agreement (this
"Amendment"), dated as of June 7, 2005, is entered into by and among Wheeling
Island Gaming, Inc., a Delaware corporation (the "Borrower") and Bank of
America, N.A., as Administrative Agent, acting with the consent of the Lenders
party to the Loan Agreement referred to below ("Administrative Agent").
Capitalized terms used herein and not otherwise defined are used with the
meanings set forth for those terms in the Loan Agreement.
RECITALS
A. Pursuant to that certain Amended and Restated Loan Agreement
dated as of December 14, 2001 (as amended, the "Loan Agreement"), by and among
the Borrower, the lenders from time to time party thereto (each a "Lender, and
collectively, the "Lenders"), and Administrative Agent, the Lenders have agreed
to provide certain credit facilities to the Borrower.
B. The parties hereto wish to amend the Loan Agreement as provided
for herein.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the parties hereto hereby agree to amend the
Loan Agreement as follows:
AGREEMENT
1. AMENDMENT TO LEVERAGE RATIO. Section 6.13 of the Loan Agreement is
amended to read in full as follows:
6.13 LEVERAGE RATIO. Permit the Leverage Ratio as of the last day of any
Fiscal Quarter described in the matrix set forth below, to exceed the
ratio set forth opposite that Fiscal Quarter:
FISCAL QUARTERS ENDING MAXIMUM RATIO
July 3, 2005 through and
including December 31, 2005 3.10:1.00
April 3, 2006 and thereafter 2.75:1.00
2. AMENDMENT TO MAXIMUM CAPITAL EXPENDITURES. Section 6.15(d) of the Loan
Agreement is amended, and a new clause (e) is added thereto, to read in full as
follows:
(d) other Capital Expenditures made on or prior to July 3, 2005, provided
that the aggregate amount of the other Capital Expenditures made during
the Fiscal Quarter ended July 3, 2005 shall not exceed $2,000,000; and
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(e) other Capital Expenditures made after July 3, 2005 in an aggregate
amount not to exceed $10,000,000.
3. CONDITIONS PRECEDENT. The effectiveness of this Amendment shall be
conditioned upon the Administrative Agent's receipt of the following:
(a) an original of this Amendment, duly executed by the Borrower;
(b) a Consent of Guarantor, in the form attached hereto as Exhibit A,
duly executed by each of the parties thereto;
(c) a Consent of Lender, in the form attached hereto as Exhibit B,
duly executed by each of the Requisite Lenders; and
(d) such other documents and assurances as the Administrative Agent
may require.
4. REPRESENTATION AND WARRANTY. Borrower represents and warrants to the
Administrative Agent and the Lenders that no Default or Event of Default has
occurred and remains continuing, and that each of the representations and
warranties of Borrower set forth in the Loan Agreement is true and correct as of
the date hereof (other than those which relate by their terms solely to another
date).
5. CONFIRMATION. In all other respects, the terms of the Loan Agreement and
the other Loan Documents are hereby confirmed.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
WHEELING ISLAND GAMING, INC.,
a Delaware corporation
By: /S/XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: V.P. - Finance
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /S/XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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EXHIBIT A
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FORM OF GUARANTOR CONSENT
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CONSENT OF GUARANTORS
This Consent of Guarantors is delivered with reference to the
Amended and Restated Loan Agreement dated as of December 14, 2001 (as amended,
the "Loan Agreement"), by and among the Wheeling Island Gaming, Inc., a Delaware
corporation (the "Borrower"), the lenders from time to time party thereto (each
a "Lender, and collectively, the "Lenders"), and Bank of America, N.A., as
Administrative Agent ("Administrative Agent"). Capitalized terms used but not
defined in this Consent of Guarantors have the meanings given to them in the
Loan Agreement.
Each of the undersigned hereby consents to the execution, delivery
and performance of the proposed Amendment No. 1 to the Amended and Restated Loan
Agreement (the "Amendment") by the Borrower, substantially in the form presented
to the undersigned as a draft, and agrees that nothing contained therein shall
diminish, alter, amend or otherwise affect any of the undersigned's obligations
to the Administrative Agent, for the benefit of Lenders, under the Amended and
Restated Guaranty dated December 14, 2001 (as amended, the "Guaranty"). Each of
the undersigned further confirms that the Guaranty shall continue in full force
and effect and agrees that the undersigned shall continue to be liable under
such Guaranty in accordance with the terms thereof. Each of the undersigned
further confirms that it has no defense, counterclaim or offset right whatsoever
with respect to its obligations under the Guaranty.
WDRA FOOD SERVICE, INC., WHEELING LAND DEVELOPMENT CORP,
a West Virginia corporation a West Virginia corporation
By: ______________________________ By: ________________________________
Name: Name:
Title: Title:
Dated as of: May __, 2005
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EXHIBIT B
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FORM OF LENDER CONSENT
----------------------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Amended
and Restated Loan Agreement dated as of December 14, 2001 (as amended, the "Loan
Agreement"), by and among the Wheeling Island Gaming, Inc., a Delaware
corporation, the lenders from time to time party thereto (each a "Lender, and
collectively, the "Lenders"), and Bank of America, N.A., as Administrative Agent
("Administrative Agent"). Capitalized terms used but not defined in this Consent
of Lender have the meanings given to them in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery
and performance of the proposed Amendment No. 1 to the Amended and Restated Loan
Agreement (the "Amendment") by the Administrative Agent on behalf of the
Lenders, substantially in the form presented to the undersigned as a draft.
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[Typed/Printed Name of Lender]
By: ----------------------------------
Name:
Title:
Dated as of: May __, 2005
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