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EXHIBIT 10.54
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
dated as of the 24th day of June, 1997, by and among XXXX GAMING CORPORATION, a
Nevada corporation ("Xxxx Gaming") and CALIFORNIA HOTEL AND CASINO, a Nevada
corporation ("CH&C"; CH&C and Xxxx Gaming being referred to collectively as the
"Borrowers" and each individually as a "Borrower"), the commercial lending
institutions listed on the signature pages hereof (collectively, the "Lenders"),
XXXXX FARGO BANK, N.A., as Swingline Lender, CANADIAN IMPERIAL BANK OF COMMERCE
("CIBC"), as letter of credit issuer, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION and XXXXX FARGO BANK, N.A., as co-managing agents (herein, in such
capacity, the "Co-Managing Agents"), BANKERS TRUST COMPANY, CREDIT LYONNAIS LOS
ANGELES BRANCH and SOCIETE GENERALE, as co-agent (herein, in such capacity, the
"Co-Agents"), and CIBC, as administrative agent and collateral agent for the
Lenders (herein, in such capacity, called the "Agent").
RECITALS
A. The Borrowers and the Lenders entered into that certain $500,000,000
Credit Agreement dated as of June 19, 1996 (as amended by the First Amendment to
Credit Agreement dated as of March 28, 1997 and the Second Amendment to Credit
Agreement dated as of June 11, 1997, the "Credit Agreement"), pursuant to which
the Lenders agreed to extend credit to the Borrowers on the terms and subject to
the conditions set forth therein.
B. The Borrowers and the Lenders desire to amend certain terms and
conditions of the Credit Agreement pursuant to this Amendment.
NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree to amend the Credit Agreement as
follows:
AGREEMENT
1. The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms in their correct alphabetical order:
"Permitted Subordinated Debt Issuance means an issuance by Xxxx
Gaming of up to $250,000,000 of subordinated unsecured notes, on terms
reasonably acceptable to the Agent and Co-Managing Agents.
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"Supplemental Fee is defined in Section 3.3.5.
"Temporary Availability Reduction" is defined in
Section 2.2.2(f).
(b) The definition of the term "Commitment Fee Amount" in Section 1.1 of
the Credit Agreement is hereby amended by adding "or pursuant to Section
2.2.2(f)" immediately prior to the end of the parenthetical clause therein.
(c) The definition of the term "Permitted Note Issuance" in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Permitted Note Issuance" means an issuance by Xxxx Gaming of
senior or subordinated unsecured notes (other than the Permitted
Subordinated Debt Issuance) on terms reasonably acceptable to the Agent
and the Co-Managing Agents.
(d) The definition of the term "Subordinated Debt" in Section 1.1 of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Subordinated Debt" means the Xxxx Notes, the CH&C Notes, the
Permitted Subordinated Debt Issuance, and all additional unsecured
Indebtedness of the Borrowers for money borrowed which is subordinated,
upon terms satisfactory to the Required Lenders, in right of payment to
the payment in full in cash of all Obligations.
(e) There shall be added to Section 2.2.2 of the Credit Agreement a new
clause (f) reading in its entirety as follows:
(f) To the extent Xxxx Gaming completes a Permitted Subordinated
Debt Issuance, the availability under the Revolving Loan Commitment
Amount shall be reduced (the "Temporary Availability Reduction) by the
lesser of (i) the amount of such Permitted Subordinated Debt Issuance
and (ii) $192,631,250 (the estimated cost to redeem all of the CH&C
Notes), and such Temporary Availability Reduction shall remain in effect
until Xxxx Gaming or any of its Subsidiaries redeems or repurchases all
or a portion of the CH&C Notes, at which time the availability under the
Revolving Loan Commitment Amount shall increase by an amount equal to
the lesser of (i) the amount of such Permitted Subordinated Debt
Issuance or (ii) 104.125% of the principal amount of each CH&C Note
redeemed or repurchased.
(f) The first parenthetical clause of Section 3.3.1 of the Credit
Agreement is hereby amended by adding "or pursuant to Section 2.2.2(f)"
immediately prior to the end of such parenthetical clause.
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(g) There shall be added to the Credit Agreement a new Section 3.3.5
reading in its entirety as follows:
SECTION 3.3.5. Supplemental Fee. In addition to the Unused Fee, the
Borrowers agree to pay to the Agent for the account of each Lender
during the Temporary Availability Reduction, a supplemental fee (the
"Supplemental Fee") at the rate of 1/4 of 1% per annum, calculated on
the average daily outstanding principal amount of the CH&C Notes. Not
later than 10 days prior to the end of each March, June, September and
December, commencing on the first of such dates following the Permitted
Subordinated Debt Issuance and ending with the quarter in which all CH&C
Notes have been purchased or redeemed, the Borrowers will furnish to the
Agent a certificate setting forth the dates and amount of each purchase
or redemption of CH&C Notes completed since the date of the Permitted
Subordinated Debt Issuance, certified by the chief financial officer of
Xxxx Gaming. The Supplemental Fee shall be payable by the Borrowers
quarterly in arrears on the last day of March, June, September and
December in each year (or, if such day is not a Business Day, on the
next succeeding Business Day), commencing with the first such date to
occur after commencement of the Temporary Availability Reduction and on
any expiration or termination of the Revolving Loan Commitment.
(h) The sixth sentence of Section 4.7 of the Credit Agreement is hereby
amended by adding "Supplemental Fees," after "Unused Fees," and before "L/C
Fees".
(i) Clause (ii) of Section 7.2.2 of the Credit Agreement is hereby
amended to read in its entirety as follows;
(ii) the Xxxx Notes and CH&C Notes outstanding on the Effective Date,
any notes issued pursuant to a Permitted Note Issuance and any notes issued
pursuant to a Permitted Subordinated Debt Issuance;
(j) Clause (a) of Section 7.2.6 of the Credit Agreement is hereby
amended to read in its entirety as follows:
(a) Neither Xxxx Gaming nor any of its Subsidiaries shall
purchase or redeem the Xxxx Notes, the CH&C Notes or any other
Subordinated Debt other than (i) the redemption of the Xxxx Notes at any
time after a Permitted Note Issuance in an amount not to exceed the
amount of such Permitted Note Issuance and (ii) the redemption or
repurchase of the CH&C Notes at any time after a Permitted Subordinated
Debt Issuance in an amount not to exceed the amount of such Permitted
Subordinated Debt Issuance.
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(k) Clause (c) of Section 8.1.8 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(c) prior to the redemption or repurchase of all of the CH&C
Notes, a "Change in Control" (as such term is defined in the CH&C
Indenture) in respect of CH&C shall occur or, after a Permitted
Subordinated Debt Issuance, a "Change in Control" (as such term is
defined under the indenture for such Permitted Subordinated Debt
Issuance) shall occur;"
2. Effective Date. This Amendment shall be effective on the date on
which:
(a) This Amendment shall have been executed by the Borrowers and the
Required Lenders; and
(b) The Agent shall have received executed acknowledgment and
reaffirmations, substantially in the form set forth in Exhibit A hereto, duly
executed by each of the Guarantors.
3. Representations and Warranties. The Borrowers hereby represent and
warrant to the Agent and the Lenders as follows:
(a) Each Borrower has the power and authority and the
legal right to execute, deliver and perform this Amendment and has taken all
necessary action to authorize the execution, delivery and performance of this
Amendment. This Amendment has been duly executed and delivered by each Borrower.
The Credit Agreement (as amended by this Amendment) and the other Loan Documents
constitute legal, valid, and binding obligations of each Borrower, enforceable
against such Borrower in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws now or
hereafter in effect relating to creditors, rights generally, and general
principles of equity.
(b) At and as of the date of execution hereof and at and as of the
effective date of this Amendment and after giving effect to this Amendment: (1)
the representations and warranties of each Borrower contained in the Credit
Agreement are true and correct in all respects, and (2) no Default or Event of
Default has occurred and is continuing under the Credit Agreement.
4. Reaffirmation of Credit agreement,. This Amendment shall be deemed to
be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Credit Agreement
as amended hereby.
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5. Reaffirmation of Loan Documents. The Borrowers hereby further
affirm and agree that (a) the execution and delivery by the Borrowers of and the
performance of their obligations under the Credit Agreement, as amended by this
Amendment, shall not in any way amend, impair, invalidate or otherwise affect
any of the obligations of the Borrowers or the rights of the Agent or the
Lenders under any of the Loan Documents or any other document or instrument made
or given by the Borrowers in connection therewith, and (b) the term
"obligations* as used in the Loan Documents includes, without limitation, the
obligations of the Borrowers under the Credit Agreement an amended by this
Amendment.
6. Miscellaneous Provisions.
(a) Survival. The provisions of this Amendment shall survive to the
extent provided in section 10.5 of the Credit Agreement.
(b) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF NEVADA.
(c) Counterparts. This Amendment may be executed in any number of
counterparts, all of which together shall constituted one agreement.
(d) No other Amendment. Except as expressly amended herein, the
Credit Agreement, the other Loan Documents and all documents, instruments and
agreements relating thereto or executed in connection therewith shall remain in
full force and effect as currently written.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXX GAMING CORPORATION
By: /s/ [SIG]
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Title: Executive Vice President
CALIFORNIA HOTEL AND CASINO
By: /s/ [SIG]
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Title: Senior Vice President
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CIBC INC.
By: /s/ [SIG]
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Title: Managing-Director
CIBC Wood Gundy Securities Corp.,
AS AGENT
BANK OF AMERICA NT&SA
By: /s/
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Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/
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Title:
BANKERS TRUST COMPANY
By: /s/
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Title:
CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/
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Title:
SOCIETE GENERALE
By: /s/
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Title:
ABN AMRO BANK N.V.
SAN FRANCISCO INTERNATIONAL BRANCH
By: ABN AMRO North America, Inc.
as agent
By: /s/
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Title:
By: /s/
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Title:
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By: /s/ [SIG]
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Title: Xxxxxxx Xxxxxx - Deputy General Manager
THE SANWA BANK, LIMITED
By:
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Title:
COMMERZBANK AG, LOS ANGELES BRANCH
By:
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Title:
By:
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Title:
FIRST SECURITY BANK, N.A.
By: /s/
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Title:
THE SUMITOMO BANK, LIMITED
By: /s/
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Title:
By: /s/
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Title:
BANKBOSTON, N.A.
By:
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Title:
BANK OF HAWAII
By: /s/
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Title:
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XXX XXXX XX XXX XXXX
By: /s/ [SIG]
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Title:
BANQUE NATIONALE DE PARIS
By: /s/
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Title:
By: /s/
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Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
By: /s/
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Title:
NBD BANK
By: /s/
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Title:
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY
By: /s/
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Title:
US BANK OF NEVADA
By: /s/
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Title:
WHITNEY NATIONAL BANK
By: /s/
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Title:
DEPOSIT GUARANTY NATIONAL BANK
By: /s/
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Title:
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FIRST HAWAIIAN BANK
By: /s/ [SIG]
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Title: Vice President
GIROCREDIT BANK# AG DER SPARKASSEN,
GRAND CAYMAN ISLANDS BRANCH
By: /s/
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Title:
IMPERIAL BANK
By: /s/
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Title:
TRUSTMARK NATIONAL BANK
By: /s/
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Title:
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