Exhibit 10.23
AMENDMENT NO.1 TO LOAN AGREEMENT
THIS AMENDMENT NO.1 TO LOAN AGREEMENT (this "Amendment") is entered
into as of March 24, 2000 with reference to the Loan Agreement (the "Loan
Agreement") dated as of June 29, 1999 among Anchor Gaming, a Nevada
corporation (the "Borrower"), the Lenders party thereto, Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings
Association; the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
RECITALS
A. Anchor Pala Development, LLC, a Delaware limited liability company
and a wholly-owned Subsidiary of Borrower ("Anchor Development"), has
entered into a Development Services and Financing Agreement (as amended,
supplemented or otherwise modified, the "Development Agreement") dated as
of September 23, 1999 with The Pala Band of Mission Indians, a federally
recognized Indian tribe (the "Tribe"), pursuant to which Anchor Development
has agreed to assist the Tribe in the development and construction of certain
proposed casino, hotel and resort facilities to be located on the Tribe's
reservation in San Diego County, California (the "Pala Casmo").
B. Anchor Pala Management LLC, A Delaware limited liability company and
a wholly-owned Subsidiary of Borrower ("Anchor Management", and together
with Anchor Development and Borrower, the "Anchor Entities"), has entered
into a Management Agreement (as amended, supplemented or otherwise modified,
the "Management Agreement") dated as of September 23, 1999 with the Tribe
pursuant to which Anchor Management has agreed to provide certain management
services to the Tribe in connection with the Pala Casino.
C. The gaming operations of the Tribe are to be owned and operated by
The Pala Gaming Authority, a wholly-owned instrumentality of the Tribe (the
"Pala Gaming Authority"). The Tribe, Anchor Development and Anchor propose
to arrange for secured financing (the "Pala Casino Financing") for
construction and development of the Pala Casino through Bank of America and
certain other lenders arranged by Banc of America Securities LLC. The
proposed Pala Casino Financing will initially be in the amount of
$100,000,000, but will be subject to possible increases to an amount not to
exceed $150,000,000.
D. It is anticipated that Borrower will enter into an unconditional
guaranty of the Pala Casino Financing (as amended, supplemented or otherwise
modified, the "Anchor Guaranty"), and that the reimbursement obligations of
the Pala Gaming Authority for any payments under the Anchor Guaranty will be
evidenced by a Reimbursement Agreement between Borrower and the Pala Gaming
Authority (the "Reimbursement Agreement").
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E. It is further anticipated that the Pala Casino Financing and the
Anchor Guaranty will permit the Anchor Entities to make Investments in
Indebtedness issued by the Pala Gaming Authority which will be subordinated to
the the obligations of the Pala Gaming Authority to the Pala Lenders (the
"Anchor Sub Debt"), either to provide for capital needs of the Pala Gaming
Authority or to cure defaults under the Pala Casino Financing.
F. It is expected that the availability of the Pala Casino Financing will
be conditioned upon the execution of a subordination agreement by the Anchor
Entities of their interests under the Management Agreement, the Development
Agreement, the Reimbursement Agreement and all other reimbursement and similar
claims under the Anchor Guaranty in favor of the lenders under the Pala Casino
Financing (as amended, supplemented or otherwise modified, the "Anchor
Subordination Agreement").
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Borrower and the Agent, acting
with the consent of the Requisite Lenders, hereby agree as follows
1. DEFINITIONS. Section 1.1 of the Loan Agreement is hereby amended so
that the definition of Total Funded Debt reads in full as follows [with the
added text indicated as bold and underscored in this Amendment]:
"Total Funded Debt" means, as of any date of determination, the sum
(without duplication) of (a) the outstanding principal Indebtedness of
Borrower and its Subsidiaries for borrowed money (including debt securities
issued by Borrower or any of its Subsidiaries) on that date, plus (b) the
aggregate amount of all Capital Lease Obligations of Borrower and its
Subsidiaries on that date, plus (c) all obligations in respect of letters
of credit or other similar instruments for which Borrower or any of its
Subsidiaries are account parties or are otherwise obligated, plus (d) the
aggregate amount of all Contingent Obligations and other similar contingent
obligations of Borrower and its Subsidiaries with respect to any of the
foregoing TO THE EXTENT CLASSIFIED AS A LIABILITY ON THEIR RESPECTIVE
BALANCE SHEETS UNDER GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, and plus (e)
any obligations of Borrower or any of its Subsidiaries to the extent that
the same are secured by a Lien on any of the assets of Borrower or its
Subsidiaries, other than Permitted Encumbrances.
2. CONFORMING CROSS REFERENCE AMENDMENT TO SECTION 6.8 (h). Section 6.8
(h) is hereby amended to read in full as follows:
"(h) Liens on Property having an aggregate value not in excess of
$40,000,0000 securing Indebtedness of the type described in
Section 6.9 (l)."
3. AMENDMENT TO SECTION 6.9. Section 6.9 of the Loan Agreement is
hereby amended to amend and restate clause (j) in its entirety, and to add
new clauses (k) and (l) thereto, to read in full as follows:
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"(j) Contingent Obligations consisting of a guaranty by Borrower of the
obligations of the Pala Gaming Authority with respect to senior secured
Indebtedness to a syndicate of banks for which Bank of America, N.A. is
the administrative agent, in an aggregated principal amount not to
exceed $150,000,000, and refinancings thereof which do not increase the
aggregate principal outstanding balance of such Indebtedness.
"(k) Contingent Obligations consisting of guaranties by Borrower or any
of its Subsidiaries of the obligations of the Dry Creek Rancheria Band
of Pomo Indians or an instrumentality thereof with respect to senior
secured Indebtedness in an aggregate principal amount not to exceed
$30,000,000, and refinancings thereof which do not increase the
aggregate principal outstanding balance of such indebtedness; and
(l) other Indebtedness in an aggregate principal amount not to exceed
$40,000,000 at any time."
4. AMENDMENT TO SECTION 6.14. Section 6.14 of the Loan Agreement is
hereby amended to add new clauses (1), (m) and (n) thereto, to read in full
as follows:
"(l) Investments under the Pala Reimbursement Agreement which are or
may be subordinated to Indebtedness and Contingent Obligations owed to
senior lenders to the Pala Gaming Authority.
"(m) Investments in Indebtedness of the Pala Gaming Authority in an
aggregate principal amount not to exceed $25,000,000 which are or may be
subordinated the obligations of the Pala Gaming Authority to its senior
lenders; and
"(n) other Investments in an aggregate net outstanding amount not to
exceed $60,000,000 at any time."
5. SECTION 6.15. Section 6.15 of the Loan Agreement is hereby amended to
add a new clause (h) thereto, to read in full as follows:
"(h) Contingent Obligations of Subsidiaries contemplated by Section
6.9(k)."
6. Representations of Warranties. Borrower represents and warrants to
the Agent and the Lenders that:
(a) Borrower has all necessary power and has taken all corporate
action necessary to enter into this Amendment and to make this Amendment
and all other agreements and instruments to which it is a party executed in
connection herewith, the valid and enforceable obligations they purport
to be.
(b) No Event of Default under the Loan Agreement has occurred and
remains continuing.
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7. CONDITIONS: EFFECTIVENESS. The effectiveness of this Amendment shall
be subject to the conditions preccedent that:
(a) Borrower shall have delivered to the Agent a copy of a resolution
or resolutions passed by the Board of Directors of Borrower, certified by the
Secretary or an Assistnat Secretary of Borrower as being in full force and
effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment;
(b) The Agent shall have received written consents hereto from the
Requisite Lenders substantially in the form of Exhibit A hereto; and
(c) Borrower shall have paid to the Administrative Agent, for the
account of each Lender which has executed consents hereto substantially in
the form of Exhibit A hereto prior to March 24, 2000, a fee equal to 5 basis
points TIMES the Pro Rata Share of the Commitment held by that Lender.
8. NO WAIVER. This Amendment is specific in time and in intent and does
not constitute, nor should it be construed as, a waiver of any other right,
power or privilege under the Loan Documents, or under any agreement,
contract, indenture, document or instrument mentioned in the Loan Documents;
nor does it preclude any exercise thereof or the exercise of any other right,
power or privilege, nor shall any future waiver of any right, power or
privilege or default hereunder, or under any agreement, contract, indenture,
document or instrument mentioned in the Loan Docments, constitute a waiver of
any other defalt of the same or of any other term or provision.
9. EFFECTIVENESS OF THE LOAN AGREEMENT. Except as hereby expressly
amended, the Loan Agreement remains in full force and effect, and is hereby
ratified and confirmed in all respects.
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10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Amendment shall not become
effective until Borrower, the Lenders and the Agent shall have signed a copy
hereof, whether the same instrument or counterparts, and the same shall have
been delivered to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
ANCHOR GAMING,
a Nevada corporation
By: Xxxxxxxx X. Xxxx
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Title: CFO/Treasurer
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BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and
Savings Association), as Agent
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
Title: Vice President
Agency Specialist
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
BANK OF AMERICA
-----------------------------------------
[Name of Lender]
By: /s/ XXX XXXXXXX
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Xxx Xxxxxxx, Managing Director
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Bank of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to the Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
THE BANK OF NOVA SCOTIA
-------------------------------
[Name of Lender]
By: /s/ XXX XXXXXXXXXX
--------------------------------------
Xxx Xxxxxxxxxx
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Bank of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to the Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
BANKERS TRUST COMPANY
-----------------------------------------
[Name of Lender]
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Director
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Bank of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to the Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
U.S. BANK NATIONAL ASSOCIATION
-----------------------------------------
[Name of Lender]
By: /s/ XXXX XXXXXXXXX
--------------------------------------
Xxxx Xxxxxxxxx, Assistant Vice
President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date: 3/22/00
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Bank of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to the Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
LA SALLE BANK NATIONAL ASSOCIATION
-----------------------------------------
[Name of Lender]
By: /s/ [ILLEGIBLE]
--------------------------------------
[ILLEGIBLE], Assistant Vice
President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
PNC BANK NATIONAL ASSOCIATION
-----------------------------------------
[Name of Lender]
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx X. Vessels
Vice President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
KEYBANK NATIONAL ASSOCIATION
-----------------------------------------
[Name of Lender]
By: /s/ XXXX X. XXXXX
--------------------------------------
Xxxx X. Xxxxx
Assistant Vice President
-----------------------------------------
[Printed Name and Title]
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
FIRST SECURITY BANK, N.A.
-----------------------------------------
[Name of Lender]
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date: March 13, 2000
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
FIRST HAWAIIAN BANK
-----------------------------------------
[Name of Lender]
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Xxxxxx X. Xxxxx, Senior Vice President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
FLEET BANK, N.A.
-----------------------------------------
[Name of Lender]
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Xxxx X. Xxxxxxxx
Senior Vice President
-----------------------------------------
[Printed Name and Title]
By:
--------------------------------------
-----------------------------------------
[Printed Name and Title]
Date:
----------------------------------
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[LETTERHEAD]
[Exhibit A to Amendment No. 1]
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
(the "Loan Agreement") dated as of June 29, 1999 among Anchor Gaming, a
Nevada corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association) (the "Agent"), as Administrative Agent for the Lenders, and
Banc of America Securities, LLC, as Lead Arranger and Sole Book Manager.
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 1 to Loan Agreement,
substantially in the form provided to the undersigned as a draft, and without
limitation on the foregoing, specifically to Borrower and the other Anchor
Equities (as defined therein) entering into the Anchor Guaranty, the
Reimbursement Agreement and the Anchor Subordination Agreement as each is
defined therein and set forth therein.
-----------------------------------------
Comercia West Incorporated
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Assistant Vice President
Date: 3/21/00
------------------------------------
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