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EXHIBIT 4.6
FIFTH AMENDMENT
FIFTH AMENDMENT (this "Amendment"), dated as of April 24, 2000, among
ALLIANCE GAMING CORPORATION, a Nevada corporation (the "U.S. Borrower"), BALLY
XXXXX VERTRIEBS GMBH, a company with limited liability organized under the laws
of the Federal Republic of Germany ("Bally Xxxxx Vertriebs"), BALLY XXXXX
AUTOMATEN GMBH, a company with limited liability organized under the laws of the
Federal Republic of Germany ("Bally Xxxxx Automaten" and, together with Bally
Xxxxx Vertriebs, the "German Borrowers," and each a "German Borrower", and the
German Borrowers, together with the U.S. Borrower, the "Borrowers," and each a
"Borrower"), the financial institutions party to the Credit Agreement referred
to below (the "Lenders") and CREDIT SUISSE FIRST BOSTON, as Administrative
Agent. Unless otherwise defined herein, all capitalized terms used herein and
defined in the Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to a Credit Agreement, dated as of August 8, 1997 (as amended, modified
or supplemented through, but not including, the date hereof, the "Credit
Agreement");
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to a Third Amendment and Consent, dated as of October 28, 1999 (the
"Third Amendment");
WHEREAS, the parties hereto wish to (i) amend the Third Amendment and (ii)
further amend the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments, Modifications and Waivers Relating to the Credit Agreement:
1. Section 4.02(d) of the Credit Agreement is hereby amended by
deleting the text "Effective Date" contained in the first parenthetical
contained in such Section 4.02(d) and inserting the text "Fifth Amendment
Effective Date" in lieu thereof.
2. Section 4.02(e) of the Credit Agreement is hereby amended by
deleting the text "and (x)" appearing after the text "by the German Parent or
other entity described in said clause (ix))" appearing in such Section 4.02(e)
and inserting the text ", (x) and (xv)" in lieu thereof.
3. Section 9.01 of the Credit Agreement is hereby amended by
deleting the word "and" appearing at the end of clause (xvii) thereof, (ii)
redesignating existing clause (xviii) as clause (xix) and (iii) inserting the
following new clause (xviii) immediately following existing clause (xvii) of
such Section 9.01:
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"(xviii) Liens arising in connection with Gaming Equipment
Transactions permitted under Section 9.02(xv) so long as such Liens only
relate to the assets subject to the respective Gaming Equipment
Transaction permitted pursuant to such Section 9.02(xv); and".
4. Section 9.02 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xiii) of such Section
9.02, (ii) deleting the period appearing at the end of clause (xiv) of such
Section 9.02 and inserting the text "; and" in lieu thereof and (iii) inserting
the following new clause (xv) at the end of such Section 9.02:
"(xv) Bally Gaming, Inc. or any special purpose Wholly-Owned
Subsidiary of the Borrower formed solely to enter into Gaming Equipment
Transactions (any such special purpose subsidiary, a "Special Purpose
Gaming Subsidiary") may enter into Gaming Equipment Transactions in
respect of gaming equipment owned by Bally Gaming, Inc. or such Special
Purpose Gaming Subsidiary, so long as (i) any such Special Purpose Gaming
Subsidiary has no other business activities other than entering into such
Gaming Equipment Transactions and has no assets other than gaming
equipment the subject of such Gaming Equipment Transactions, (ii) no
Default or Event of Default then exists or would exist immediately after
giving effect to any such Gaming Equipment Transaction, (iii) each such
Gaming Equipment Transaction is an arm's-length transaction and, to the
extent such Gaming Equipment Transaction is structured as a Sale and
Leaseback Transaction, Bally Gaming, Inc. or such Special Purpose Gaming
Subsidiary receives at least fair market value (as determined in good
faith by Bally Gaming, Inc. or such Special Purpose Gaming Subsidiary) for
such assets the subject of such Gaming Equipment Transaction, (iv) to the
extent such Gaming Equipment Transaction is structured as a Sale and
Leaseback Transaction, the total consideration received by Bally Gaming,
Inc. or such Special Purpose Gaming Subsidiary is cash and is paid at the
time of the closing of such sale, (v) the aggregate amount of proceeds
received from all Gaming Equipment Transactions pursuant to this clause
(xv) structured as Sale and Leaseback Transactions, when added to the
aggregate principal amount of Indebtedness incurred under Section 9.04(xv)
(other than Capitalized Lease Obligations arising in connection with
Gaming Equipment Transactions structured as Sale and Leaseback
Transactions), shall not exceed (x) during the period from the Fifth
Amendment Effective Date to September 29, 2000, $5,000,000, (y) during the
period from September 30, 2000 to, but not including, the date upon which
the Nevada Route Operations Sale is consummated, $10,000,000 less the
aggregate amount of proceeds received from all Gaming Equipment
Transactions consummated pursuant to preceding clause (x), and (z) from
and after the consummation of the Nevada Route Operations Sale,
$15,000,000 less the aggregate amount of proceeds received from all Gaming
Equipment Transactions consummated pursuant to preceding clauses (x) and
(y), and (vi) to the extent that any such Gaming Equipment Transaction
results in a Capitalized Lease Obligation, such Capitalized Lease
Obligation is permitted under Section 9.04(xv).
5. Section 9.04 of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (xiii) of such Section
9.04, (ii) deleting the period
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appearing at the end of clause (xiv) of such Section 9.04 and inserting the text
"; and" in lieu thereof and (iii) inserting the following clause (xv) at the end
of such Section 9.04:
"(xv) Indebtedness (including any Capitalized Lease Obligations)
incurred by Bally Gaming, Inc. or a Special Purpose Gaming Subsidiary in
connection with any Gaming Equipment Transaction permitted under Section
9.02(xv) so long as (i) no Default or Event of Default then exists or
would exist immediately after giving effect to the incurrence of any such
Indebtedness, (ii) the principal amount of any such Indebtedness is at
least 75% and no greater than 90% of the fair market value (as determined
by Bally Gaming, Inc. or such Special Purpose Gaming Subsidiary in good
faith) of the assets securing such Indebtedness, (iii) such Indebtedness
shall be unsecured except as otherwise permitted under Section
9.01(xviii), (iv) such Indebtedness is non-recourse to Bally Gaming, Inc.
or such Special Purpose Gaming Subsidiary (with recourse being limited to
the respective assets the subject of such Gaming Equipment Transaction,
except with respect to fraud, misrepresentation, and other similar
circumstances), (iv) neither the U.S. Borrower nor any of its Subsidiaries
shall have guaranteed any such Indebtedness or otherwise provided any
credit support (other than pursuant to Section 9.01(xviii)) in respect
thereof and (v) the aggregate principal amount of all such Indebtedness
incurred as permitted under this clause (xv) shall not exceed at any time
outstanding an amount equal to (x) during the period from the Fifth
Amendment Effective Date to September 29, 2000, $5,000,000 less the
aggregate amount of proceeds received from all Gaming Equipment
Transactions structured as Sale and Leaseback Transactions and having an
operating lease, rather than a capital lease, component, (y) during the
period from September 30, 2000 to, but not including, the date upon which
the Nevada Route Operations Sale is consummated, $10,000,000 less the
aggregate amount of proceeds received from all Gaming Equipment
Transactions structured as Sale and Leaseback Transactions and having an
operating lease, rather than a capital lease component, and (z) from and
after the consummation of the Nevada Route Operations Sale, $15,000,000
less the aggregate amount of proceeds received from all Gaming Equipment
Transactions structured as Sale and Leaseback Transactions and having an
operating lease, rather than a capital lease, component.
6. The definition of "Consolidated EBITDA" appearing in Section
11.01 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing immediately after the text "amortization and depreciation" appearing
in the first sentence of such definition and inserting a comma in lieu thereof,
(ii) inserting the following text immediately following the text "similar tax
expense" appearing in the first sentence of said definition:
"and, for the purposes of calculating "Consolidated EBITDA" for the
purposes of determining compliance with Sections 9.08 through 9.11,
inclusive, only (but not for purposes of determining the Applicable
Commitment Commission Percentage or the Applicable Margins), all operating
lease expense attributable to the leasing of assets pursuant to any Gaming
Equipment Transactions permitted pursuant to Section 9.02(xv)",
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and (iii) inserting the following new sentence at the end of said definition:
"In addition, for the purposes of determining compliance with
Sections 9.08 through 9.11, inclusive, only (but not for the purposes of
determining the Applicable Commitment Commission Percentage or the
Applicable Margins), there shall be added to Consolidated EBITDA, to the
extent Consolidated EBITDA was reduced during the period for which
Consolidated EBITDA is then being determined as a result of such charge,
the amount of the non-cash impairment charge relating to the write-off of
goodwill attributable to the U.S. Borrower's acquisition of Bally Gaming
International, Inc. (up to an amount not to exceed $55,000,000) and taken
by the U.S. Borrower during the U.S. Borrower's fiscal quarter ended March
31, 2000 or June 30, 2000."
7. The definition of "Consolidated Indebtedness" appearing in
Section 11.01 of the Credit Agreement is hereby amended by inserting the
following sentence at the end of said definition:
"For the purposes of Section 9.10 only (but not for purposes of
determining the Applicable Commitment Commission Percentage or the
Applicable Margins), any Indebtedness arising from any Capitalized Lease
Obligations incurred pursuant to Section 9.04(xv) in connection with the
entering into of Gaming Equipment Transactions structured as Sale and
Leaseback Transactions shall be excluded from the calculation of
Consolidated Indebtedness".
8. The definition of "Consolidated Interest Expense" appearing in
Section 11.01 of the Credit Agreement is hereby amended by inserting the text
"but excluding, for the purposes of calculating "Consolidated Interest Expense"
for the purposes of determining compliance with Sections 9.08 and 9.09 only, any
interest expense attributable to any Capitalized Lease Obligations or other
Indebtedness arising in connection with any Gaming Equipment Transactions and
permitted to be outstanding under 9.04(xv)" at the end of the first
parenthetical appearing in clause (i) of such definition.
9. Section 11.01 of the Credit Agreement is hereby further
amended by inserting the following new definitions in proper alphabetical order:
"Fifth Amendment Effective Date" shall mean April 24, 2000.
"Gaming Equipment Transaction" shall mean any transaction whereby
Bally Gaming, Inc. or a Special Purpose Gaming Subsidiary shall either (i)
sell gaming equipment owned by it and, in turn, lease such equipment from
the purchaser thereof (either pursuant to an operating lease or a capital
lease) or (ii) obtain financing from a third Person which may be secured
by specific items of equipment of Bally Gaming, Inc. or such Special
Purpose Gaming Subsidiary as contemplated in Sections 9.01(xviii) and
9.04(xv).
"Special Purpose Gaming Subsidiary" shall have the meaning provided
in Section 9.02(xv).
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10. The Lenders and Borrowers hereby acknowledge that Delayed Draw
Term Loans were made on the Initial Delayed Draw Term Loan Borrowing Date
notwithstanding the fact that RCVP did not execute or deliver counterparts of
the U.S. Subsidiaries Guaranty, the U.S. Security Agreement or the U.S. Pledge
Agreement as required on or prior to such date pursuant to Section 5B of the
Credit Agreement, and the Lenders hereby waive any Event of Default that may
have arisen as a result of such event. In addition, the Lenders hereby agree
that RCVP shall not be required to execute or deliver such U.S. Subsidiaries
Guaranty or any such Security Documents so long as the U.S. Borrower in good
faith determines that such action would require the consent of one or more
partners of RCVP (other than the U.S. Borrower or any of its Subsidiaries), and
that the U.S. Borrower is unable to obtain such consent or consents.
11. The Lenders hereby waive any Default and any Event of Default
that may have arisen under the Credit Agreement solely as a result of the
failure of the Borrowers to comply with (i) Sections 9.08, 9.09 and 9.11 of the
Credit Agreement in respect of the Test Period ended on March 31, 2000 and (ii)
Section 9.10 of the Credit Agreement in respect of the period from March 31,
2000 to but excluding the Fifth Amendment Effective Date (as defined below).
12. On the Fifth Amendment Effective Date, the Total Revolving
Loan Commitment shall be reduced to $80,000,000. Such reduction shall be applied
to reduce the Revolving Loan Commitment of each Lender with such a Commitment
pro rata based on the relative Revolving Loan Commitments of such Lenders, with
each such reduction to each such Revolving Loan Commitment to be applied (i)
first, to the Non-German Revolving Loan Commitment of such Lender and (ii)
second, to the extent the Non-German Revolving Loan Sub-Commitment of such
Lender has been reduced to zero, to the German Revolving Loan Sub-Commitment of
such Lender. If after giving effect to the reductions to any Lender's German
Revolving Loan Sub-Commitment as described in the immediately preceding
sentence, the sum of the principal amount of such Lender's outstanding Deutsche
Xxxx Revolving Loans plus such Lender's German RL Percentage of German Letter of
Credit Outstandings (expressed Deutsche Marks (and taking the Deutsche Xxxx
Equivalent of the Stated Amount of any German Letters of Credit denominated in a
currency other than Deutsche Marks)) exceeds the German Revolving Loan
Sub-Commitment of such Lender, the German Borrowers shall repay Deutsche Xxxx
Revolving Loans of such Lender in an amount equal to such excess. If after
giving effect to the reductions to any Lender's Revolving Loan Commitment as
described in the second preceding sentence and any repayment of Deutsche Xxxx
Revolving Loans pursuant to the immediately preceding sentence, the sum of the
principal amount of such Lender's outstanding Revolving Loans plus such Lender's
RL Percentage of the aggregate of all Letter of Credit Outstandings and
outstanding Swingline Loans exceeds the Revolving Loan Commitment of such
Lender, the Revolving Loan Borrowers shall repay Dollar Revolving Loans of such
Lender in an amount equal to such excess.
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II. Amendments to the Third Amendment:
1. Article II, Section 8 of the Third Amendment is hereby amended
by deleting the text "for any Test Period ending on or prior to December 31,
2000 of at least 1.00:1" and inserting the following text in lieu thereof:
"of a least (I) 0.80:1 for any Test Period ending on or prior to
September 30, 2000 and (II) 1.00:1 for the Test Period ending on
December 31, 2000".
2. Article II, Section 9 of the Third Amendment is hereby amended
by deleting the text "for any Test Period ending on or prior to December 31,
2000 of at least 1.35:1.00" and inserting the following text in lieu thereof:
"of at least (I) 1.15:1 for any Test Period ending on or prior to
September 30, 2000 and (II) 1.35:1 for the Test Period ending on
December 31, 2000".
3. Article II, Section 10 of the Third Amendment is hereby
amended by deleting the text "for the period from December 31, 1999 to December
31, 2000 of no greater than 6.25:1" and inserting the following text in lieu
thereof:
"no greater than (I) 8.00:1 during the period from April 1, 2000
through and including September 30, 2000 and (II) 6.25:1 during the
period from October 1, 2000 through and including December 31,
2000".
4. Article II, Section 11 of the Third Amendment is hereby
amended by deleting the text "for any Test Period ending on or prior to December
31, 2000 of at least $44,000,000" and inserting the following text in lieu
thereof:
"of at least (I) $40,000,000 for any Test Period ending on or prior
to September 30, 2000 and (II) $44,000,000 for the Test Period
ending on December 31, 2000".
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III. Miscellaneous:
1. This Amendment shall become effective on the date (the "Fifth
Amendment Effective Date") when (i) each Borrower and the Required Lenders shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Administrative Agent at the Notice Office and (ii) the Borrowers shall
have paid to the Administrative Agent for the account of each Lender that has
executed a counterpart of this Amendment and delivered same to the
Administrative Agent at the Notice Office on or prior to 5:00 p.m. (New York
time) on the later of (x) April 24, 2000 or (y) date when the requirements of
preceding clause (i) are satisfied, an amendment fee equal to 0.250% of the sum
of such Lender's (x) outstanding Term Loans (using the Dollar Equivalent thereof
in the case of any Term Loans denominated in a currency other than Dollars) on
the Fifth Amendment Effective Date and (y) Revolving Loan Commitment on the
Fifth Amendment Effective Date (before giving effect to the reduction to the
Total Revolving Loan Commitment pursuant to Article I, Section 12 of this
Amendment).
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the U.S. Borrower and the Administrative
Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. From and after the Fifth Amendment Effective Date, all
references in the Credit Agreement and in the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
ALLIANCE GAMING CORPORATION
By___________________________________
Name:
Title:
BALLY XXXXX VERTRIEBS GMBH
By___________________________________
Name:
Title:
BALLY XXXXX AUTOMATEN GMBH
By___________________________________
Name:
Title:
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CREDIT SUISSE FIRST BOSTON,
Individually and as Administrative
Agent
By___________________________________
Name:
Title:
By___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By___________________________________
Name:
Title:
KZH ING-1 LLC
By___________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORP.
By___________________________________
Name:
Title:
00
XXXXXXXX XXXXXXX XXXX
By___________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By___________________________________
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By___________________________________
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as
Collateral Manager
By___________________________________
Name:
Title:
ML CLO XII PILGRIM AMERICA (Cayman)
LTD.
By: Pilgrim Investments, Inc., as its
Investment Manager
By___________________________________
Name:
Title:
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XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By___________________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By___________________________________
Name:
Title:
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio
Manager
By___________________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC, as
Collateral Manager
By___________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By___________________________________
Name:
Title:
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ELF FUNDING TRUST I
By: Highland Capital Management L.P.
as Collateral Manager
By___________________________________
Name:
Title:
XXX CAPITAL FUNDING LP
By: Highland Capital Management L.P.
as Collateral Manager
By___________________________________
Name:
Title:
GLENEAGLES TRADING LLC
By___________________________________
Name:
Title:
SRV HIGHLAND, INC.
By___________________________________
Name:
Title:
13
MASSMUTUAL HIGH YIELD PARTNERS II, LLC
By: HYP Management, Inc., as
Managing Member
By___________________________________
Name:
Title:
CALIFORNIA BANK & TRUST
By___________________________________
Name:
Title:
