Exhibit 10.19
AMENDMENT NO. 3
This Amendment No. 3 dated as of March 25, 2003 (this "Amendment") is
executed with reference to the Loan Agreement dated as of December 19, 2000,
among The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort Development
Enterprise (the "Borrower"), an unincorporated business enterprise of The
Mississippi Band of Choctaw Indians, a federally recognized Indian Tribe and
Native American sovereign nation (the "Tribe"), Bank of America, N.A. (the
"Administrative Agent"), and each other lender whose name is set forth on the
signature pages thereof or which may have executed and delivered an Assignment
Agreement (as amended and as the same may be amended, supplemented or otherwise
modified from time to time, the "Loan Agreement").
RECITALS
A. The Borrower has requested that the Lenders amend the Loan Agreement as
set forth below.
B. The Lenders are willing to amend the Loan Agreement subject to the
conditions and in accordance with the terms and provisions of this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Loan
Agreement, unless the context shall otherwise require.
Section 2. Amendments. The Loan Agreement is hereby amended as follows:
2.1 Definitions.
Section 1.1 of the Loan Agreement is amended by deleting the definition of
"Annualized Gaming EBITDA".
Section 1.1 of the Loan Agreement is further amended by amending the
definitions of "Base Rate Margin", "Commitment Fee Rate" and LIBOR Margin"
to read in their entireties as follows:
"Base Rate Margin" means, (a) during the Initial Pricing Period, 0.50% per
annum, and (b) during each subsequent Pricing Period, the interest rate margin
per annum set forth below opposite the Total Leverage Ratio as of the last day
of the Fiscal Quarter ending two months prior to the first day of that Pricing
Period:
Total Leverage Ratio Base Rate Margin
-------------------- ----------------
Less than 0.50:1.00 0.50%
Greater than or equal to 0.50:1.00
but less than 1.00:1:00 0.75%
Greater than or equal to 1.00:1.00
but less than 1.50:1.00 1.00%
Greater than or equal to 1.50:1.00
but less than 2.00:1:00 1.25%
Greater than or equal to 2.00:1.00
but less than 2.50:1.00 1.50%
Greater than or equal to 2.50:1.00
but less than 3.00:1.00 1.875%
Greater than or equal to 3.00:1.00 2.25%
"Commitment Fee Rate" means (a) during the Initial Pricing Period, 0.40%
per annum, and (b) during each subsequent Pricing Period, the rate per annum set
forth below opposite the Total Leverage Ratio as of the last day of the Fiscal
Quarter ending two months prior to the first day of that Pricing Period:
Total Leverage Ratio Commitment Fee Rate
-------------------- -------------------
Less than 0.50:1.00 0.40%
Greater than or equal to 0.50:1.00
but less than 2.00:1.00 0.50%
Greater than or equal to 2.00:1.00
but less than 2.50:1.00 0.60%
Greater than or equal to 2.50:1.00 0.625%
"LIBOR Margin" means, (a) during the Initial Pricing Period, 1.75% per
annum, and (b) during each subsequent Pricing Period, the interest rate margin
per annum set forth below opposite the Total Leverage Ratio as of the last day
of the Fiscal Quarter ending two months prior to the first day of that Pricing
Period:
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Total Leverage Ratio LIBOR Margin
-------------------- ------------
Less than 0.50:1.00 1.75%
Greater than or equal to 0.50:1.00
but less than 1.00:1:00 2.00%
Greater than or equal to 1.00:1.00
but less than 1.50:1.00 2.25%
Greater than or equal to 1.50:1.00
but less than 2.00:1:00 2.50%
Greater than or equal to 2.00:1.00
but less than 2.50:1.00 2.75%
Greater than or equal to 2.50:1.00
but less than 3.00:1.00 3.125%
Greater than or equal to 3.00:1.00 3.50%
Section 1.1 of the Loan Agreement is further amended by deleting the word
"Annualized" from clause (a) of the definition of "Fixed Charge Coverage Ratio".
Section 1.1 of the Loan Agreement is further amended by deleting the word
"Annualized" in clause (b) of the definition of "Total Leverage Ratio".
2.2 Fixed Charge Coverage Ratio. Section 7.13 of the Loan Agreement is
amended by deleting the word "Annualized" in clause (a).
2.3 Total Leverage Ratio. Section 7.12 of the Loan Agreement is amended in
its entirety to read as follows:
7.12 Total Leverage Ratio. Permit the Total Leverage Ratio, as of the
last day of any Fiscal Quarter ending (a) during the period occurring
between March 31, 2003 and December 31, 2003, to exceed 3.20:1.00, (b)
March 31, 2004, to exceed 3.00:1.00, (c) June 30, 2004 and September 30,
2004, to exceed 2.75:1.00, or (d) thereafter, to exceed 2.50:1.00.
2.4 Financial and Business Information. Section 9.1(a) of the Loan
Agreement is amended by deleting the word "including" in the second line thereof
and substituting the words "other than" therefore.
2.5 Compliance Certificates. Section 9.2 of the Loan Agreement is amended
by deleting the number "9.1(b)" from the fifth line thereof and substituting the
words "within 45 days after the end of the fourth Fiscal Quarter" therefore.
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Section 3. Effectiveness of Amendments. The amendments contained in this
Amendment shall become effective upon delivery by the Borrower of, and
compliance by the Borrower with, the following:
3.1 This Amendment duly executed by the Borrower.
3.2 Written consent of the Requisite Lenders as required under Section
13.2 of the Loan Agreement in the form of Exhibit A (the "Consent") to this
Amendment.
3.3 The Borrower shall have satisfied the Administrative Agent that
the Borrower and the Tribe have duly authorized the execution and delivery
of the Amendment.
3.4 The Borrower shall have paid to each Lender executing a Consent an
amendment fee of 20 basis points of such Lender's Commitment.
3.5 The Borrower shall have satisfied such other conditions as
specified by the Administrative Agent, including payment of all unpaid
legal fees and expenses incurred by the Administrative Agent through the
date of this Amendment in connection with the Loan Agreement and this
Amendment.
Section 4. Representations, Warranties, Authority, No Adverse
Claim.
4.1 Reassertion of Representations and Warranties, No Default. The
Borrower hereby represents that on and as of the date hereof and after
giving effect to this Amendment (a) all of the representations and
warranties contained in the Loan Agreement are true, correct and complete
in all respects as of the date hereof as though made on and as of such
date, except for changes permitted by the terms of the Loan Agreement, and
(b) there will exist no Default or Event of Default under the Loan
Agreement as amended by this Amendment on such date which has not been
waived by the Lenders.
4.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that the Borrower has the power and legal right and
authority to enter into the Amendment and has duly authorized as
appropriate the execution and delivery of the Amendment and other
agreements and documents executed and delivered by the Borrower in
connection herewith or therewith by proper organizational action, and
neither of the Amendment nor the agreements contained herein contravenes or
constitutes a default under any agreement, instrument or indenture to which
the Borrower is a party or a signatory or a provision of the Borrower's
organizational documents or any other agreement or requirement of law, or
result in the imposition of any Lien on any of its property under any
agreement binding on or applicable to the Borrower or any of its property
except, if any, in favor of the Administrative Agent. The Borrower
represents and warrants that no consent, approval or authorization of or
registration or declaration with any Person, including but not limited to
any governmental authority, is required in connection with the execution
and delivery by the Borrower of the Amendment or other agreements and
documents executed and delivered by the Borrower in connection therewith or
the performance of obligations of the Borrower herein.
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4.3 No Adverse Claim. The Borrower warrants, acknowledges and agrees
that no events have been taken place and no circumstances exist at the date
hereof which would give the Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Administrative Agent of any Lender with
respect to the Obligations.
Section 5. Affirmation of Loan Agreement, Further References,
Affirmation of Security Interest. The Administrative Agent, the
Lenders and the Borrower each acknowledge and affirm that the Loan
Agreement, as hereby amended, is hereby ratified and confirmed in all
respects and all terms, conditions and provisions of the Loan
Agreement, except as amended by this Amendment, shall remain
unmodified and in full force and effect. All references in any
document or instrument to the Loan Agreement are hereby amended and
shall refer to the Loan Agreement as amended by this Amendment. The
Borrower confirms to the Administrative Agent and the Lenders that the
Obligations are and continue to be secured by the security interest
granted by the Borrower in favor of the Administrative Agent for the
benefit of the Lenders under the Security Agreement, and all of the
terms, conditions, provisions, agreements, requirements, promises,
obligations, duties, covenants and representations of the Borrower
under such documents and any and all other documents and agreements
entered into with respect to the obligations under the Loan Agreement
are incorporated herein by reference and are hereby ratified and
affirmed in all respects by the Borrower.
Section 6. Successors. The Amendment shall be binding upon the
Borrower, the Administrative Agent and the Lenders and their
respective successors and assigns, and shall inure to the benefit of
the Borrower, the Administrative Agent and the Lenders and the
successors and assigns of the Administrative Agent and the Lenders.
Section 7. Legal Expenses. The Borrower agrees to reimburse the
Administrative Agent upon execution of this Amendment, for all
reasonable out-of-pocket expenses (including attorney's fees and legal
expenses of Xxxxxx & Xxxxxxx LLP, counsel for Administrative Agent)
incurred in connection with the negotiation, preparation and execution
of the Amendment and all other documents negotiated, prepared and
executed in connection with the Amendment, and in enforcing the
obligations of the Borrower under the Amendment, and to pay and save
the Administrative Agent and the Lenders harmless from all liability
for, any stamp or other taxes which may be payable with respect to the
execution or delivery of the Amendment, which obligations of the
Borrower shall survive any termination of the Loan Agreement.
Section 8. Counterparts. The Amendment may be executed in several
counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such
counterparts shall be regarded as one and the same document, and any
party to the Amendment may execute any such agreement by executing a
counterpart of such agreement.
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Section 9. Governing Law. THE AMENDMENT SHALL BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF MISSISSIPPI, WITHOUT GIVING EFFECT TO
CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR
AFFILIATES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date and year first above written.
THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT
DEVELOPMENT ENTERPRISE
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Title: Chairman of the Board
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxxxxx
---------------------
Title: Vice President
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EXHIBIT A TO AMENDMENT NO. 3
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
__________________________________
[Name Of Lender]
By: ______________________________
_________________________________
[Print Name and Title]
Dated: ________________ , 2003
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CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
Bank of America, N.A.
-----------------------------
[Name Of Lender]
By: /s/ Xxx Xxxxxxx
-----------------------------
Xxx Xxxxxxx, Managing Director
-------------------------------
[Print Name and Title]
Dated: April 17 , 2003
------------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
THE CIT GROUP/EQUIPMENT FINANCING, INC.
----------------------------------------
[Name Of Lender]
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx, Senior Credit Analyst
----------------------------------------
[Print Name and Title]
Dated: April 14 , 2003
-------------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
HIBERNIA NATIONAL BANK
----------------------
[Name Of Lender]
By: /S/ Xxxxx Xxxxxx
---------------------
Xxxxx Xxxxxx, Vice President
----------------------------
[Print Name and Title]
Dated: 4/15 , 2003
--------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
NATIONAL CITY BANK OF MICHIGAN/
ILLINOIS
---------------------------------
[Name Of Lender]
By: /S/ Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx. Senior Vice President
------------------------------------------------
[Print Name and Title]
Dated: 4/17 , 2003
----------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
TRUSTMARK NATIONAL BANK
------------------------
[Name Of Lender]
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
XXXXX X. XXXXXXX, VICE PRESIDENT
--------------------------------
[Print Name and Title]
Dated: April 9 , 2003
-------------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
UNION PLANTERS BANK, NATIONAL ASSOCIATION
----------------------------------------
[Name Of Lender]
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Xxxxx Xxxxxxxx, Senior Vice President
-------------------------------------
[Print Name and Title]
Dated: April 16, 2003
-------------
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of December 19, 2000 among The Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise, an unincorporated business
enterprise of The Mississippi Band of Choctaw Indians, a federally recognized
Indian Tribe and Native American sovereign nation, the Lenders referred to
therein, and Bank of America, N.A., as Administrative Agent. Terms defined in
the Loan Agreement are used herein with the same meanings.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent thereunder on behalf of the Lenders thereunder,
substantially in the form presented to the undersigned as a draft.
XXXXX FARGO BANK
-----------------
[Name Of Lender]
By: /S/ Xxxx Xxxxx
--------------------
Xxxx Xxxxx Vice President
--------------------------------
[Print Name and Title]
Dated: April 10 , 2003
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