ISLE OF CAPRI BLACK HAWK, L.L.C. SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.29
ISLE
OF CAPRI BLACK HAWK, L.L.C.
SECOND
AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this
“Amendment”)
is
dated as of July 26, 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 First Amended and Restated Credit
Agreement dated as of April 22, 2003 (as amended to date, 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 to amend the maximum
Consolidated Total Leverage ratio and the minimum Consolidated EBITDA covenant,
modify the definition of Applicable LIBOR Margin and make certain other
amendments, all as set forth below;
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:
“Second
Amendment”
means
that certain Second Amendment to First Amended and Restated Credit Agreement
dated as of July 26, 2004.
“Second
Amendment Effective Date”
has the
meaning assigned to that term in the Second Amendment.
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 but less than 4.25:1:00
|
3.50%
|
3.00%
|
|
Greater
than 4.25:1.00
|
3.50%
|
3.25%
|
1.2 Amendments
to Section 7: Borrower’s Negative Covenants
A. 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:
|
Period
|
Maximum
Total Leverage Ratio
|
|
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
4.00
: 1.00
4.90
: 1.00
5.00
: 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
|
4.90
: 1.00
4.75
: 1.00
4.50
: 1.00
4.25
: 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
3.00
: 1.00
3.00
: 1.00
3.00
: 1.00
|
|
1st
Fiscal Quarter, Fiscal Year 2008 and each Fiscal Quarter
thereafter
|
2.50:1.00
|
B. 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.
|
Period
|
Minimum
Consolidated EBITDA
|
|
1st
Fiscal Quarter, Fiscal Year 2005
2nd
Fiscal Quarter, Fiscal Year 2005
3rd
Fiscal Quarter, Fiscal Year 2005
4th
Fiscal Quarter, Fiscal Year 2005
|
$45,000,000
$40,000,000
$36,000,000
$36,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2006
2nd
Fiscal Quarter, Fiscal Year 2006
3rd
Fiscal Quarter, Fiscal Year 2006
4th
Fiscal Quarter, Fiscal Year 2006
|
$37,500,000
$40,000,000
$42,500,000
$45,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2007
2nd
Fiscal Quarter, Fiscal Year 2007
3rd
Fiscal Quarter, Fiscal Year 2007
4th
Fiscal Quarter, Fiscal Year 2007
|
$45,000,000
$45,000,000
$45,000,000
$45,000,000
|
|
1st
Fiscal Quarter, Fiscal Year 2008 and each Fiscal Quarter
thereafter
|
$45,000,000
|
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 (“Second
Amendment Effective Date”)):
A. Deliveries.
On or
before the Second Amendment Effective Date, Borrower shall deliver to
Administrative Agent the following, each, unless otherwise noted, dated the
Second 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 Second Amendment Effective Date, certifying
that 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. Amendment.
From
(i) the Requisite Lenders, and (ii) Borrower and the other Credit Support
Parties, (1) a counterpart of this Amendment signed on behalf of such party,
or
(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.
B. Proceedings.
On
or
before the Second 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.
C. Fees.
Administrative
Agent shall have received for the ratable benefit of the consenting Lenders
an
amendment fee equal to 0.125% of the aggregate Commitments of such consenting
Lenders.
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 and the other Credit Support Parties have all requisite power and
authority to enter into this Amendment and all other documents to be delivered
by Borrower and the other Credit Support Parties pursuant to the Amendment
(collectively, the “Amendment
Documents”)
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 to which they are a party.
B. Authorization
of Agreements.
The
execution and delivery of this Amendment the performance of the Amended
Agreement 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 performance by Borrower and the other Credit Support Parties
of the Amendment and the Amended Agreement 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 performance by Borrower and the Credit Support Parties of
the
Amendment and Amended Agreement 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 Amended Agreement or the other Loan
Documents.
E. Binding
Obligation.
This
Amendment has been duly executed and delivered by Borrower and the Credit
Support Parties and this Amendment and the Amended Agreement are the legally
valid and binding obligations of Borrower, enforceable against Borrower and
the
other Credit Support Parties 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 Second 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 Second 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.
Section
5. MISCELLANEOUS
A. Reference
to and Effect on the Credit Agreement and the Other Loan Documents.
1. On
and
after the Second 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]
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
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
By
signing below, the undersigned Lender hereby (i) authorizes Canadian Imperial
Bank of Commerce, in its capacity as Administrative Agent pursuant to that
certain First 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 Second
Amendment to First Amended and Restated Credit Agreement dated as of July
26,
2004 on such Lender’s behalf, (ii) approves such Second Amendment to First
Amended and Restated Credit Agreement and (iii) agrees that such Second
Amendment to First Amended and Restated Credit Agreement shall be binding
upon
such Lender.
______________________________________,
as
a
Lender
By: ________________________________
Name:
Title:
