FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.2
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (this "Amendment") dated as of July 17, 2006, is entered into with reference to the Amended and Restated Credit Agreement dated as of July 22, 2004, (as amended, the "Credit Agreement"), among Aztar Corporation ("Borrower"), the Lenders party thereto and Bank of America, N.A., as Administrative Agent. Capitalized terms used but not defined herein are used with the meanings set forth for those terms in the Credit Agreement.
RECITALS
A. On or about May 19, 2006, Borrower terminated its merger agreement
with Pinnacle Entertainment, Inc. ("Pinnacle"). In connection with such termination, Borrower paid Pinnacle termination fees and expenses in the aggregate amount of $78,000,000 (the "Pinnacle Termination Payments").
B. Substantially concurrently with the making of the Pinnacle Termination Payments, Borrower entered into a merger agreement with an affiliate of Columbia Sussex Corporation ("Columbia") and, in connection therewith, Columbia caused the making of a payment to Borrower in the amount of $78,000,000 as a reimbursement of the Pinnacle Termination Payments (the "Columbia Payment").
C. Borrower has determined that (i) the payment of the Pinnacle Termination Payments should be deducted as an expense in determining Borrower's net income, and (ii) the receipt of the Columbia Payment should not be included in determining Borrower's net income.
D. Borrower has requested that the payment of the Pinnacle Termination Payments and the receipt of the Columbia Payment be excluded from the calculation of Adjusted EBITDA under the Credit Agreement.
AGREEMENT
NOW, THEREFORE, Borrower and the Administrative Agent, acting with the
written consent of the Required Lenders pursuant to Section 10.01 of the Credit Agreement, hereby agree to amend the Credit Agreement as follows:
1. Exclusion of Payments from Determination of Adjusted EBITDA.
Borrower and Administrative Agent hereby agree that the Pinnacle Termination Payments and the Columbia Payment shall both be disregarded in calculating Adjusted EBITDA. The amendment contained in this Section shall have retroactive effect to June 30, 2006.
2. Conditions Precedent. The effectiveness of this Amendment shall be subject to the prior satisfaction of the following conditions precedent:
(i) Administrative Agent shall have received counterparts of this
Amendment executed by a Responsible Officer of the Borrower;
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(ii) Administrative Agent shall have received the written consent of
the Required Lenders as required under Section 10.01 of the Credit Agreement in the form
of Exhibit A to this Amendment; and
(iii) Borrower shall have paid to the Administrative Agent, for the
benefit of each Lender which has executed and delivered a Consent to this Amendment
prior to 5:00 p.m., Los Angeles local time on July 17, 2006, a work fee of $5000.
3. Representations and Warranties. The Borrower represents and warrants to the Administrative Agent and the Lenders as of the date hereof that:
(i) The 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.
(ii) Giving effect to this Amendment, each of the representations and
warranties which are required to be accurate as of the date of any Credit Extension
pursuant to Section 4.02(a) of the Credit Agreement are true and correct as of the date of
the Amendment, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such earlier date, and
except that for purposes of this clause, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer
to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 of the Credit Agreement.
(iii) Giving effect to this Amendment, no Default or Event of Default
under the Credit Agreement has occurred and remains continuing.
4. Counterparts. This Amendment may be executed in counterparts in accordance with Section 10.10 of the Credit Agreement.
5. Confirmation. In all other respects, the terms of the Credit Agreement and the other Loan Documents are hereby confirmed.
[Signature Page Follows]
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IN WITNESS WHEREOF, Borrower and the Administrative Agent have executed this Amendment as of the date first written above by their duly authorized representatives.
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AZTAR CORPORATION |
BANK OF AMERICA, N.A., as Administrative Agent By: XXXXX X. XXXXXX |
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Exhibit A to Amendment
CONSENT OF LENDER
Reference is hereby made to that certain Amended and Restated Credit Agreement dated as of July 22, 2004 (as amended, the "Credit Agreement"), among Aztar Corporation ("Borrower"), the Lenders party thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Lender hereby consents to the execution and delivery of the Fourth Amendment to Amended and Restated Credit Agreement by the Administrative Agent on its behalf, substantially in the form of the most recent draft thereof presented to the undersigned Lender.
Date: July 17, 2006
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AIB Debt Management, Limited |
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By: XXXXXXX XXXXX |
Date: July 17, 2006
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Allied Irish Banks, P.L.C. |
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By: XXXXXXX XXXXX |
Date: July 12, 2006
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Bank of America, N.A. |
Date: July 17, 0000
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Xxx Xxxx xx Xxxx Xxxxxx |
Date: July 14, 2006
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Bank of Scotland |
Date: July 14, 0000
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Xxxxxx Xxx Xxxx Branch |
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Date: July 17, 2006
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Capital One, N.A. |
Date: July 17, 2006
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The Cit Group/Equipment Financing, Inc. |
Date: July 12, 0000
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Xxxxxxxx Xxxxx Xxxxxxx, Inc. |
Date: July 17, 0000
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Xxxxxxxxxxx XX, Xxx Xxxx and Grand Cayman Branches |
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Date: July 13, 2006
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Deutsche Bank Trust Company Americas |
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Date: July 17, 2006
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E.Sun Commercial Bank, Ltd., Los Angeles Branch |
Date: July 17, 2006
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Xxxxx Xxxxx Institutional Senior Loan Fund |
Date: July 13, 2006
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General Electric Capital Corporation |
Date: July 17, 2006
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Xxxxxxx & Co. |
Date: July 17, 2006
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National City Bank of Indiana |
Date: July 17, 0000
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Xxx Xxxxxxxxxxx Xxxx, Xxx Xxxx Branch |
Date: July 17, 2006
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Societe Generale |
Date: July 17, 2006
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Sovereign Bank |
Date: July 14, 2006
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U.S. Bank National Association |
