EXHIBIT 4.2(g)
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of February 27, 2004, among AMERISTAR CASINOS, INC., a Nevada corporation
(the "Borrower"), the various lenders party to the Credit Agreement referred to
below (the "Lenders") and DEUTSCHE BANK TRUST COMPANY AMERICAS (f/k/a Bankers
Trust Company), as Administrative Agent (all capitalized terms used herein and
not otherwise defined herein shall have the respective meanings provided such
terms in the Credit Agreement as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Administrative Agent
and the other agents party thereto are party to a Credit Agreement, dated as of
December 20, 2000, as subsequently amended, modified or supplemented by the
First Amendment thereto dated as of January 30, 2001, the Second Amendment
thereto dated as of May 31, 2002, the Third Amendment thereto dated as of
November 22, 2002 and the Fourth Amendment thereto dated as of December 19, 2003
(the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders agree to
certain amendments to the Credit Agreement; and
WHEREAS, the Borrower and the Lenders wish to amend the Credit
Agreement as provided herein;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
1. Section 1.01 of the Credit Agreement is hereby
amended by inserting the following new text at the end of said Section:
"(i) (A) On the Fifth Amendment Effective
Date, all outstanding B Term Loans of each Lender that has theretofore executed
and delivered a counterpart of the Fifth Amendment to the Administrative Agent
in accordance with the terms thereof (each such Lender, a "Consenting Lender"
and, collectively, the "Consenting Lenders") shall be automatically converted
(the "B Term Loan Conversion") into new term loans hereunder (each such term
loan, a "Converted B-1 Term Loan" and, collectively, the "Converted B-1 Term
Loans"). On or after the Fifth Amendment Effective Date, each Consenting Lender
which holds a B Term Note shall be entitled to surrender such B Term Note to the
Borrower against delivery of a B-1 Term Note completed in conformity with
Section 1.05; provided that if any such B Term Note is not so surrendered then
from and after the Fifth Amendment Effective Date, such B Term Note shall be
deemed to evidence the Converted B-1 Term Loans into which the B Term Loans
theretofore evidenced by such B Term Note have been converted. Subject to and
upon the terms and conditions set forth herein, each Lender with a B-1 Term Loan
Commitment severally agrees to make a term loan or term loans (each, an
"Additional B-1 Term Loan" and, collectively, the "Additional B-1 Term Loans",
and, together with the Converted B-1
Term Loans, the "B-1 Term Loans") to the Borrower, which Additional B-1
Term Loans shall be incurred pursuant to a single drawing on the Fifth
Amendment Effective Date. All B-1 Term Loans (i) shall be denominated
in Dollars, (ii) except as hereinafter provided, shall, at the option
of the Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Eurodollar Loans, provided that except as otherwise
specifically provided in Section 1.10(b), all B-1 Term Loans comprising
the same Borrowing shall at all times be of the same Type, and (iii)
shall be made by each such Lender in that aggregate principal amount
which equals the B-1 Term Loan Commitment of such Lender on the Fifth
Amendment Effective Date. Once repaid, B-1 Term Loans may not be
reborrowed. Notwithstanding anything to the contrary contained in this
Agreement (including, without limitation, in Section 4.02), the
proceeds of the Additional B-1 Term Loans shall be immediately applied
by the Borrower to repay all outstanding B Term Loans of Non-Consenting
Lenders (if any) and all outstanding A Term Loans and RTL Loans on the
Fifth Amendment Effective Date.
(B)(i) Each Borrowing of B Term Loans existing on the Fifth
Amendment Effective Date immediately prior to the B Term Loan
Conversion and maintained as Eurodollar Loans (each, an "Existing B
Term Loan Borrowing") shall, upon the occurrence of the B Term Loan
Conversion, be deemed to be a new Borrowing of B-1 Term Loans for all
purposes of this Agreement, (ii) each such newly-deemed Borrowing of
B-1 Term Loans shall be subject to the same Interest Period (and
Eurodollar Rate) as the Existing B Term Loan Borrowing to which it
relates, (iii) Additional B-1 Term Loans shall be initially incurred
pursuant to a single Borrowing of Eurodollar Loans which shall be added
to (and thereafter be deemed to constitute a part of) each such
newly-deemed Borrowing of B-1 Term Loans on a pro rata basis (based on
the relative sizes of the various such newly-deemed Borrowings of B-1
Term Loans) and (iv) in connection with the B Term Loan Conversion and
the incurrence of Additional B-1 Term Loans pursuant to Section
1.01(i), the Administrative Agent shall (and is hereby authorized to)
take all appropriate actions to ensure that all Lenders with
outstanding B-1 Term Loans (after giving effect to the B Term Loan
Conversion and the incurrence of Additional B-1 Term Loans pursuant to
Section 1.01(i)(A)) participate in each newly-deemed Borrowing of B-1
Term Loans on a pro rata basis.
(C) In connection with the B Term Loan Conversion and the
incurrence of Additional B-1 Term Loans pursuant to Section 1.01(i)(A),
the Lenders and the Borrower hereby agree that, notwithstanding
anything to the contrary contained in this Agreement, (i) if requested
by any Lender making Additional B-1 Term Loans which "match funds", the
Borrower shall pay to such Lender such amounts necessary, as reasonably
determined by such Lender, to compensate such Lender for making such
Additional B-1 Term Loans in the middle of an existing Interest Period
(rather than at the beginning of the respective Interest Period, based
upon the rates then applicable thereto) and (ii) the Borrower shall be
obligated to pay to the respective Lenders breakage or other costs of
the type referred to in Section 1.11 (if any) incurred in connection
with the B Term Loan Conversion and/or the actions taken pursuant to
preceding clause (B) of this Section 1.01(i)."
2. Section 1.05(a) of the Credit Agreement is hereby
amended by (i) deleting the text "and, together with the A Term Notes and the B
Term Notes, the "Term Notes" appearing in the parenthetical appearing in clause
(iii) of said Section, (ii) deleting the word
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"and" appearing at the end of clause (v) of said Section and inserting a comma
in lieu thereof and (iii) inserting the following text immediately before the
period appearing at the end of said Section:
"and (vii) if B-1 Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form
of Exhibit B-8, with blanks appropriately completed in conformity
herewith (each, a "B-1 Term Note" and collectively, the "B-1 Term
Notes" and, together with the A Term Notes, the B Term Notes and the C
Term Notes, the "Term Notes")".
3. Section 1.05 of the Credit Agreement is hereby
further amended by (i) redesignating clauses (h), (i) and (j) as clauses (i),
(j) and (k), respectively, of said Section and (ii) inserting the following new
clause (h) immediately following clause (g) of said Section:
"(h) The B-1 Term Note issued to each Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of
such Lender and be dated the Fifth Amendment Effective Date (or, in the
case of B-1 Term Notes issued after the Fifth Amendment Effective Date,
be dated the date of issuance thereof), (iii) be in a stated principal
amount equal to the respective B-1 Term Loan made by such Lender on the
Fifth Amendment Effective Date (or, in the case of any B-1 Term Note
issued after the Fifth Amendment Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the B-1
Term Loans of such Lender on the date of the issuance thereof) and be
payable in the principal amount of B-1 Term Loans evidenced thereby,
(iv) mature on the B-1 Term Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to mandatory repayment as provided in Section
4.02(A) and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.".
4. Section 1.05 (j) of the Credit Agreement is hereby
amended by deleting the text "preceding clause (h)" appearing at the end of the
third sentence of said Section and inserting the text "preceding clause (i)" in
lieu thereof.
5. Section 3.03 of the Credit Agreement is hereby
amended by (i) redesignating clauses (g), (h), (i), (j) and (k) as clauses (h),
(i), (j), (k) and (l), respectively, (ii) inserting the following new clause (g)
immediately after clause (f) of said Section:
"(g) In addition to any other mandatory
commitment reductions pursuant to this Section 3.03, the Total B-1 Term
Loan Commitment (and the B-1 Term Loan Commitment of each Lender with
such a Commitment) shall terminate in its entirety on the Fifth
Amendment Effective Date (after giving effect to the incurrence of B-1
Term Loans on such date).",
(iii) deleting the text "the Total Commitment (and the
Commitment of each Lender under each Tranche)" appearing in clause (h) of said
Section and inserting the text "each of the Total A Term Loan Commitment, the
Total B Term Loan Commitment, the Total C Term Loan Commitment, the Total RTL
Commitment and the Total Revolving Loan Commitment (and the Commitment of each
Lender under each such Tranche)" in lieu thereof, (iv) deleting the
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text "clause (j) of this Section 3.03" appearing in clause (l) of said Section
and inserting the text "clause (k) of this Section 3.03" in lieu thereof and (v)
deleting the text "Section 3.03 (j)" appearing at the end of clause (l) of said
Section and inserting the text " Section 3.03 (k)" in lieu thereof.
6. Section 4.01 of the Credit Agreement is hereby
amended by inserting the text "B-1 Term Loans" immediately after the text "B
Term Loans," appearing in the parenthetical appearing in clause (vi) of said
Section.
7. Section 4.02 (A)(c) of the Credit Agreement is hereby
amended by (i) inserting the text "(i)" immediately before the text "In
addition" appearing at the beginning of said Section, (ii) inserting the text
"(i)" immediately before the text ", a "B Term Loan Scheduled Repayment""
appearing in said Section, (iii) deleting the period appearing at the end of
clause (i) of said Section and inserting the text "; and" in lieu thereof and
(iv) inserting the following new text at the end of said Section:
"(ii) In addition to any other mandatory
repayments or commitment reductions pursuant to this Section 4.02(A),
on each date set forth below, the Borrower shall be required to repay
B-1 Term Loans, to the extent then outstanding, in an amount equal to
the amount set forth opposite such date below (each such repayment, as
the same may be reduced as provided in Section 4.01 and 4.02(A)(k) or
increase pursuant to the proviso to this clause (c)(ii), a "B-1 Term
Loan Scheduled Repayment"):
Scheduled Repayment Date Amount
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Quarterly Payment Date in March, 2004 $ 835,003
Quarterly Payment Date in June 2004 $ 835,003
Quarterly Payment Date in September, 2004 $ 835,003
Quarterly Payment Date in December, 2004 $ 835,003
Quarterly Payment Date in March, 2005 $ 835,003
Quarterly Payment Date in June, 2005 $ 835,003
Quarterly Payment Date in September, 2005 $ 835,003
Quarterly Payment in December, 2005 $ 835,003
Quarterly Payment in March, 2006 $ 81,830,249
Quarterly Payment in June, 2006 $ 81,830,249
Quarterly Payment in September, 2006 $ 81,830,249
B-1 Term Maturity Date $ 81,830,249
; provided that (x) B-1 Term Loans and all other amounts owed hereunder
with respect to the B-1 Term Loans shall be paid in full no later than
B-1 Term Maturity Date, and the final installment payable by the
Borrower in respect of the B-1 Term Loans on such date shall be in an
amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by the Borrower under this
Agreement with respect to the B-1
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Term Loans and (y) if the aggregate principal amount of the B-1 Term
Loans is increased pursuant to Section 1.14, then each B-1 Term Loan
Scheduled Repayment to be made after such increase becomes effective
shall be increased by an amount equal to (a) the aggregate principal
amount of the increase in the B-1 Term Loans pursuant to Section 1.14
multiplied by (b) an amount equal to (x) such Scheduled Repayment
divided by (y) the aggregate outstanding principal amount of the B-1
Term Loans, in each case, immediately prior to giving effect to the
increase in the B-1 Term Loans made pursuant to Section 1.14.".
8. Section 4.02(A)(e) of the Credit Agreement is hereby
amended by inserting the text ", B-1 Term Loan Scheduled Repayment" immediately
after the text "B Term Loan Scheduled Repayment" appearing in said Section.
9. Section 4.02(A)(k) of the Credit Agreement is hereby
amended by inserting the text ", B-1 Term Loans" immediately after the first
appearance of the text "B Term Loans" appearing in said Section.
10. Section 7.08(a) of the Credit Agreement is hereby
amended by (i) inserting the text "drawn on the Initial Borrowing Date"
immediately after the text "Term Loans" appearing in said Section and (ii)
inserting the following new sentence at the end of said Section:
"All proceeds of the Additional B-1 Term Loans will be used to repay
outstanding B Term Loans of Non-Consenting Lenders (if any) and all
outstanding A Term Loans and RTL Loans on the Fifth Amendment Effective
Date.".
11. Section 8 of the Credit Agreement is hereby amended
by inserting the following new text at the end of said Section:
"Section 8.16 Fifth Amendment Mortgage Amendments. (a) Within
60 days following the Fifth Amendment Effective Date, if and
to the extent requested by the Collateral Agent, the Borrower
shall have delivered to the Collateral Agent, or caused to be
delivered to the Collateral Agent, fully executed counterparts
of amendments (the "Fifth Amendment Mortgage Amendments"), in
form and substance reasonably satisfactory to the
Administrative Agent, to each of the Mortgages covering the
Mortgaged Properties, together with evidence that counterparts
of each of the Fifth Amendment Mortgage Amendments have been
delivered to the title company insuring the Lien on the
Mortgages for recording in all places to the extent necessary
or desirable, in the judgment of the Collateral Agent,
effectively to maintain a valid and enforceable perfected
mortgage lien superior to and prior to the rights of all third
parties and subject to no other Liens except as are permitted
by Section 9.01 on the Mortgaged Properties in favor of the
Collateral Agent for the benefit of the Secured Parties
securing all of the Obligations (including the B-1 Term
Loans).
(b) Within 60 days following the Fifth Amendment
Effective Date, if and to the extent requested by the
Collateral Agent, the Borrower shall have delivered to the
Collateral Agent, or caused to be delivered to the Collateral
Agent, fully executed counterparts of amendments (the "Fifth
Amendment Ship
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Mortgage Amendments"), in form and substance reasonably
satisfactory to the Administrative Agent, to each of the Ship
Mortgages covering the Mortgaged Ship Properties, together
with evidence that counterparts of each of the Fifth Amendment
Ship Mortgage Amendments have been recorded or filed in all
places to the extent necessary or, in the reasonable opinion
of the Collateral Agent, desirable to effectively maintain a
valid and enforceable perfected mortgage lien superior to and
prior to the rights of all third parties and subject to no
other Liens except as are permitted by Section 9.01 on each
Mortgaged Ship Property in favor of the Collateral Agent (or
such other trustee as may be required or desired under local
law) for the benefit of the Secured Creditors securing all of
the Obligations (including the B-1 Term Loans).
12. Section 9.03(iii) of the Credit Agreement is hereby
amended by deleting said Section in its entirety and inserting the following
text in lieu thereof:
"(iii) the Borrower may authorize, declare or pay
cash Dividends or repurchase, redeem or otherwise acquire for value of
any capital stock or options to acquire capital stock of the Borrower
so long as (x) the aggregate amount paid in respect of all such
payments, repurchases, redemptions and acquisitions shall not exceed
the lesser of (I) $25,000,000 and (II) $100,000,000 less the aggregate
amount paid to repurchase or redeem High Yield Securities pursuant to
Section 9.13(iii) and (y) at the time of any such payment, repurchase,
redemption or acquisition (A) no Default or Event of Default exists or
results therefrom, (B) the Borrower is in compliance with the Adjusted
Leverage Ratio on a Pro Forma Basis as if such respective payment,
repurchase, redemption or other acquisition had occurred on the first
day of the Calculation Period and (C) the Total Unutilized Revolving
Loan Commitment is not less than $25,000,000 after giving effect to
such payment, repurchase, redemption or other acquisition.".
13. Section 9.12 of the Credit Agreement is hereby
amended by inserting the text "pay cash Dividends or" immediately before the
text "repurchase" appearing in clause (z) of said Section.
14. Section 9.13 of the Credit Agreement is hereby
amended by inserting the text "pay cash Dividends or" immediately before the
text "repurchase" appearing in clause (x) of the proviso appearing in said
Section.
15. The definition of "Applicable Margin" appearing in
Section 11 of the Credit Agreement is hereby amended by (i) deleting the word
"and" appearing at the end of clause (b) of said definition, (ii) redesignating
clause (c) of said definition as clause (d) thereof and (iii) inserting the
following new clause (c) immediately after clause (b) of said definition:
"(c) with respect to B-1 Term Loans maintained as (i)
Base Rate Loans, a percentage per annum equal to 1.00% and (ii)
Eurodollar Loans, a percentage per annum equal to 2.00%; and".
16. The definition of "Maturity Date" appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the text "the
B-1 Term Maturity Date," immediately before the text "the C Term Maturity Date"
appearing in said definition.
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17. The definition of "Term Loan" appearing in Section 11
of the Credit Agreement is hereby amended by inserting the text ", B-1 Term
Loans" immediately after the text "B Term Loans" appearing in said definition.
18. The definition of "Term Loan Commitment" appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the text ",
B-1 Term Loan Commitment" immediately after the text "B Term Loan Commitment"
appearing in said definition.
19. The definition of "Term Loan Tranche" appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the text ",
the B-1 Term Loan Tranche" immediately after the text "the B Term Loan Tranche"
appearing in said definition.
20. The definition of "Total Term Loan Commitment"
appearing in Section 11 of the Credit Agreement is hereby amended by inserting
the text ", the B-1 Term Loan Commitments" immediately after the text "the B
Term Loan Commitments" appearing in said definition.
21. The definition of "Tranche" appearing in Section 11
of the Credit Agreement is hereby amended by (i) deleting the word "six"
appearing in said definition and inserting the text "seven" in lieu thereof and
(ii) inserting the text ", B-1 Term Loans" immediately after the text "B Term
Loans" appearing in said definition.
22. Section 11 of the Credit Agreement is hereby further
amended by inserting in the appropriate alphabetical order the following new
definitions:
"Additional B-1 Term Loans" shall have the meaning provided in
Section 1.01(i).
"B-1 Term Loan" shall have the meaning provided in Section
1.01(i).
"B-1 Term Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "B-1 Term Loan Commitment," as the same may be (x) reduced
pursuant to Section 3.03, 4.02(A) and/or 10 or (y) adjusted from time to time as
a result of assignments to or from such Lender pursuant to Section 1.13 or
13.04(b).
"B-1 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(c)(ii).
"B-1 Term Maturity Date" shall mean December 20, 2006.
"B-1 Term Notes" shall have the meaning provided in Section
1.05(a).
"B Term Loan Conversion" shall have the meaning provided in
Section 1.01(i).
"Consenting Lenders" shall have the meaning provided in
Section 1.01(i).
"Converted B-1 Term Loans" shall have the meaning provided in
Section 1.01(i).
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"Existing B Term Loan Borrowing" shall have the meaning
provided in Section 1.01(i).
"Fifth Amendment" shall mean the Fifth Amendment to this
Agreement, dated as of February ___, 2004.
"Fifth Amendment Effective Date" shall have the meaning
provided in the Fifth Amendment.
"Fifth Amendment Mortgage Amendments" shall have the meaning
provided in Section 8.16(a).
"Fifth Amendment Ship Mortgage Amendments" shall have the
meaning provided in Section 8.16(b).
"Non-Consenting Lender" shall mean each Lender that is not a
Consenting Lender.
"Total B-1 Term Loan Commitment" shall mean, at any time, the
sum of the B-1 Term Loan Commitments of each of the Lenders at such time.
23. Schedule I to the Credit Agreement is hereby amended
by adding thereto the information set forth on Schedule I attached hereto.
24. Exhibit A to the Credit Agreement is hereby amended
by inserting the text "[B-1 Term Loans]" immediately after each appearance of
the text "[B Term Loans]" in said Exhibit.
25. The Credit Agreement is hereby further amended by
adding Exhibit B-8 thereto in the form of Exhibit B-8 attached hereto.
26. Exhibit K to the Credit Agreement is hereby amended
by deleting same in its entirety and inserting in lieu thereof a new Exhibit K
in the form of Exhibit K attached thereto.
II. Miscellaneous Provisions.
1. The Borrower hereby represents and warrants that (i)
no Default or Event of Default exists as of the Fifth Amendment Effective Date
(as defined below) both before and after giving effect to this Amendment and
(ii) on the Fifth Amendment Effective Date, both before and after giving effect
to this Amendment, all representations and warranties (other than those
representations made as of a specified date) contained in the Credit Agreement
and in the other Credit Documents are true and correct in all material respects.
2. This Amendment shall become effective on the date
(the "Fifth Amendment Effective Date") when each of the following conditions
have been satisfied:
(i) the Borrower, each other Credit Party, the Required
Lenders, each Consenting Lender and each Lender with a B-1 Term Loan
Commitment shall have
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signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at White & Case LLP,
1155 Avenue of the Americas, New York, NY 10036, Attention: Aditi
Chawla (facsimile number 212-354-8113);
(ii) there shall have been delivered to the Administrative
Agent for the account of each of the Lenders that have requested same
an appropriate B-1 Term Note executed by the Borrower in each case in
the amount, maturity and otherwise as provided in the Credit Agreement;
(iii) all accrued and unpaid interest on all A Term Loans,
B Term Loans and RTL Loans shall have been paid in full;
(iv) the aggregate amount of B-1 Term Loan Commitments set
forth on Schedule I hereto shall equal an amount sufficient to repay
all outstanding A Term Loans and RTL Loans and the outstanding B Term
Loans of Non-Consenting Lenders; and
(v) the Administrative Agent shall have received from
counsel to the Credit Parties satisfactory to the Administrative Agent,
an opinion addressed to the Administrative Agent and each of the
Lenders and dated the Fifth Amendment Effective Date, which opinion
shall cover such matters incident hereto and the other transactions
contemplated in connection herewith as the Administrative Agent may
reasonably request.
Unless the Administrative Agent has received actual notice
from any Lender that the conditions contained above have not been met with
satisfaction, upon the satisfaction of the condition described in clause (i) of
the immediately preceding sentence and upon the Administrative Agent's good
faith determination that the other conditions described above have been met, the
Fifth Amendment Effective Date shall be deemed to have occurred, regardless of
any subsequent determination that one or more of the conditions thereto had not
been met (although the occurrence of the Fifth Amendment Effective Date shall
not release the Borrower from any liability for failure to satisfy one or more
of the applicable conditions specified above).
3. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
4. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
5. By executing and delivering a copy hereof, each
Credit Party hereby agrees that all Loans (including, without limitation, the
B-1 Term Loans) shall be fully guaranteed pursuant to the Subsidiary Guaranty in
accordance with the terms and provisions thereof and shall be fully secured
pursuant to the Security Documents.
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6. From and after the Fifth Amendment Effective Date,
all references in the Credit Agreement and each of the other Credit Documents to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
AMERISTAR CASINOS, INC.
By: /s/ Peter C. Walsh
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Title: Senior Vice President & General Counsel
AMERISTAR CASINO VICKSBURG, INC.,
AMERISTAR CASINO COUNCIL BLUFFS, INC.,
CACTUS PETE'S INC.,
A.C. FOOD SERVICES, INC.,
AMERISTAR CASINO ST. LOUIS, INC.,
AMERISTAR CASINO KANSAS CITY, INC.,
AMERISTAR CASINO ST. CHARLES, INC.,
By: /s/ Peter C. Walsh
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Title: Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a Bankers Trust Company),
Individually and as Administrative Agent
By: /s/ Stephen P. Lamham
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Title: Managing Director
SIGNATURE PAGE TO THE FIFTH AMENDMENT DATED
AS OF FEBRUARY 27, 2004, TO THE CREDIT
AGREEMENT DATED AS OF DECEMBER 20, 2000,
AMONG AMERISTAR CASINOS, INC., A NEVADA
CORPORATION, THE VARIOUS LENDERS PARTY
TO THE CREDIT AGREEMENT REFERRED TO
ABOVE, WELLS FARGO BANK, N.A., AS
CO-ARRANGER AND SYNDICATION AGENT, BEAR
STEARNS CORPORATE LENDING INC., AS
DOCUMENTATION AGENT, DEUTSCHE BANK
SECURITIES INC., AS LEAD ARRANGER AND
SOLE BOOK MANAGER AND DEUTSCHE BANK
TRUST COMPANY AMERICAS (F.K.A BANKERS
TRUST COMPANY), AS ADMINISTRATIVE AGENT
HELLER FINANCIAL, INC.
By: /s/ Joseph Badini
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Title: Duly Authorized Signatory
WACHOVIA, N.A.
By: /s/ Stephen R. Kramer
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Title: Assistant Vice President
SIERRA CLO I
By: /s/ John M. Casparian
----------------------------------------
Title: Chief Operating Officer
Centre Pacific LLC, Manager
WELLS FARGO BANK, N.A.
By: /s/ Felis Gallues
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Title: Relationship Manager
BANK OF SCOTLAND
By: /s/ Joseph Fratus
----------------------------------------
Title: First Vice President
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CENTURION CDO II, LTD
By: American Express Asset Management
Group Inc.
as Collateral Manager
By: /s/ Leanne Stavrakis
----------------------------------------
Title: Director - Operations
CENTURION CDO VI, LTD
By: American Express Asset Management
Group Inc.
as Collateral Manager
By: /s/ Leanne Stavrakis
----------------------------------------
Title: Director - Operations
AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management Group,
Inc.
as Collateral Manager
By: /s/ Yvonne Stevens
----------------------------------------
Title: Senior Managing Director
IDS LIFE INSURANCE COMPANY
By: American Express Asset Management Group,
Inc.
as Collateral Manager
By: /s/ Yvonne Stevens
----------------------------------------
Title: Senior Managing Director
SEQUILS - Centurion V, LTD.
By: American Express Asset Management Group
Inc.
as Collateral Manager
By: /s/ Leanne Stavrakis
----------------------------------------
Title: Director - Operations
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CENTURION CDO II, LTD
By: American Express Asset Management Group
Inc.
as Collateral Manager
By: /s/ Leanne Stavrakis
----------------------------------------
Title: Director - Operations
TPS 1 LLC
By: /s/ Deborah O'Keeffe
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Title: Vice President
SPIRET IV LOAN TRUST 2003-B
By: Wilmington Trust Company
not in its individual capacity but
solely as trustee
By: /s/ Rachel L. Simpson
----------------------------------------
Title: Financial Services Officer
STANWICH LOAN FUNDING LLC
By: /s/ Ann E. Morris
----------------------------------------
Title: Asst Vice President
MUIRFIELD TRADING LLC
By: /s/ Ann E. Morris
----------------------------------------
Title: Asst Vice President
GLENEAGLES TRADING LLC
By: /s/ Ann E. Morris
----------------------------------------
Title: Asst Vice President
HARBOURVIEW CLO V, LTD.
By: /s/ Lisa Chaffee
----------------------------------------
Title: Manager
HARBOURVIEW CLO IV, LTD.
By: /s/ Lisa Chaffee
----------------------------------------
Title: Manager
-14-
OPPENHEIMER SENIOR FLOATING RATE FUND
By: /s/ Lisa Chaffee
----------------------------------------
Title: Manager
PPM SHADOW CREEK FUNDING LLC
By: /s/ Ann E. Morris
----------------------------------------
Title: Asst Vice President
PPM SPYGLASS FUNDING TRUST
By: /s/ Ann E. Morris
----------------------------------------
Title: Authorized Agent
HIBERNIA NATIONAL BANK
By: /s/ Chris Haskew
----------------------------------------
Title: Vice President
LANDMARK CDO LIMITED
By: Aladdin Capital Management LLC
as manager
By: /s/ Joseph Moroney, CFA
----------------------------------------
Title: Director
LONG LANE MASTER TRUST IV
By: Fleet National Bank as Trust
Administrator
By: /s/ Michael J. Sullivan
----------------------------------------
Title: Director
EATON VANCE
VT FLOATING-RATE INCOME FUND
By: Eaton Vance Management
as Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
-15-
BALLYROCK CLO II LIMITED
By: Ballyrock Investment Advisors LLC,
as Collateral Manager
By: /s/ Lisa Rymut
----------------------------------------
Title: Assistant Treasurer
FIDELITY ADVISOR SERIES II:
FIDELITY ADVISOR FLOATING RATE
HIGH INCOME FUND
By: /s/ John H. Costello
----------------------------------------
Title: Assistant Treasurer
BLUE SQUARE FUNDING LIMITED
SERIES 3
By: /s/ Deborah O'Keeffe
----------------------------------------
Title: Vice President
ARCHIMEDES FUNDING IV, LLC
By: ING Capital Advisors, LLC
as Collateral Manager
By: /s/ Jane Musser Nelson
----------------------------------------
Title: Managing Director
ENDURANCE CLO I, LTD.
C/O ING CAPITAL ADVISORS, LLC
as Investment Advisor
By: /s/ Jane Musser Nelson
----------------------------------------
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD
By: ING Capital Advisors, LLC,
as Collateral Manager
By: /s/ Jane Musser Nelson
----------------------------------------
Title: Managing Director
NEMEAN
By: /s/ Jane Musser Nelson
----------------------------------------
Title: Managing Director
-16-
ORYX
By: /s/ Jane Musser Nelson
----------------------------------------
Title: Managing Director
LONGHORN CDO (CAYMAN) LTD
By: Merrill Lynch Investment Managers,
L.P.
as Investment Advisor
By: /s/ Jaimin Patel
----------------------------------------
Title: Authorized Signatory
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Jaimin Patel
----------------------------------------
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC
By: /s/ Dorian Herrera
----------------------------------------
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Dorian Herrera
----------------------------------------
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Dorian Herrera
----------------------------------------
Title: Authorized Agent
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Jaimin Patel
----------------------------------------
Title: Authorized Signatory
COLUMBIA FLOATING RATE LIMITED
LIABILITY COMPANY
(f/k/a Stein Roe Floating Rate Limited
Liability Company)
By: Columbia Management Advisors, Inc.,
as Advisor
By: /s/ James R. Fellows
----------------------------------------
Title: Senior Vice President & Portfolio
Manager
-17-
COLUMBIA FLOATING RATE ADVANTAGE FUND
(f/k/a Liberty Floating Rate Advantage
Fund)
By: Columbia Management Advisors, Inc.,
as Advisor
By: /s/ James R. Fellows
----------------------------------------
Title: Senior Vice President & Portfolio
Manager
ADDISON CDO, LIMITED
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
----------------------------------------
Title: Managing Director
ATHENA CDO, LIMITED
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
----------------------------------------
Title: Managing Director
CAPTIVA III FINANCE LTD.,
as advised by Pacific Investment
Management Company LLC
By: /s/ David Dyer
----------------------------------------
Title: Director
CAPTIVA IV FINANCE LTD.,
as advised by Pacific Investment
Management Company LLC
By: /s/ David Dyer
----------------------------------------
Title: Director
DELANO COMPANY
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
-18-
JISSEKIKUN FUNDING, LTD.
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
ROYALTON COMPANY
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
SAN JOAQUIN CDO I LIMITED
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
SEQUILS-MAGNUM, LTD.
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
WRIGLEY CDO, LTD.
By: Pacific Investment Management
Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalker
----------------------------------------
Title: Managing Director
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Investment Advisory Corp
As Collateral Manager
By: /s/ William Lenga
----------------------------------------
Title: Executive Director
-19-
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Investment Advisory Corp
As Collateral Manager
By: /s/ William Lenga
----------------------------------------
Title: Executive Director
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp
By: /s/ Brad Langs
----------------------------------------
Title: Executive Director
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Stacey Malek
----------------------------------------
Title: Vice President
TRUMBULL THC, LTD.
By: /s/ Heather McNally
----------------------------------------
Title: Trust Officer
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
EMERALD ORCHARD LIMITED
By: /s/ Stacey Malek
----------------------------------------
Title: Attorney in Fact
HCM US LOANS MAC 43, LTD.
By: Highland Capital Management, L.P.
As Attorney-in-Fact
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
LOAN FUNDING IV, LLC
By: Highland Capital Management, L.P.
As Portfolio Manager
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
-20-
HIGHLAND LOAN FUNDING V, LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
RESTORATION FUNDING CLO, LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
HIGHLAND OFFSHORE PARTNERS, L.P.
By: Highland Capital Management, L.P.
As General Partner
By: /s/ Todd Travers
----------------------------------------
Title: Senior Portfolio Manager
BILL & MELINDA GATES FOUNDATION
By: David L. Babson & Company Inc.
As Investment Advisor
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
MAPLEWOOD (CAYMAN) LIMITED
By: David L. Babson & Company Inc. under
delegated authority from
Massachusetts Mutual Life Insurance
Company
As Investment Manager
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
SIMSBURY CLO, LIMITED
By: David L. Babson & Company Inc. under
delegated authority from
Massachusetts Mutual Life Insurance
Company
As Collateral Manager
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
-21-
SUFFIELD CLO, LIMITED
By: David L. Babson & Company Inc.
As Collateral Manager
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: David L. Babson & Company Inc.
As Investment Advisor
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
SEABOARD CLO 2000 LTD.
By: David L. Babson & Company
As Collateral manager
By: /s/ John W. Stelwagon
----------------------------------------
Title: Managing Director
STANFIELD CLO LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD/RMF TRANSATLANTIC CDO LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD CLO LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
-22-
STANFIELD CLO LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
WINDSOR LOAN FUNDING, LIMITED
By: Stanfield Capital Partners LLC
As its Investment Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD CLO LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD ARBITRAGE CDO, LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD CARRERA CLO, LTD.
By: Stanfield Capital Partners LLC
As its Asset Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
STANFIELD QUATTRO CLO, LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
-23-
HAMILTON CDO, LTD.
By: Stanfield Capital Partners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
----------------------------------------
Title: Managing Partner
BEAR STEARNS CORPORATE LENDING INC.
By: /s/ Victor Bulzacchelli
----------------------------------------
Title: Vice President
US BANK
By: /s/ J. Andrew Backstrom
----------------------------------------
Title: Vice President
NATIONAL CITY BANK OF INDIANA
By: /s/ Mark A. Minnick
----------------------------------------
Title: Senior Vice President
AMMC CDO I, LIMITED
By: American Money Management Corp.,
As Collateral Manager
By: /s/ David P. Meyer
----------------------------------------
Title: Vice President
MAGNETITE IV CLO, LIMITED
By: /s/ Mark J. Williams
----------------------------------------
Title: Authorized Signatory
MAGNETITE ASSET INVESTORS III, LLC
By: /s/ Mark J. Williams
----------------------------------------
Title: Authorized Signatory
MAGNETITE ASSET INVESTORS LLC
By: /s/ Mark J. Williams
----------------------------------------
Title: Authorized Signatory
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ Linda Pace
----------------------------------------
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Linda Pace
----------------------------------------
Title: Managing Director
-24-
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Linda Pace
----------------------------------------
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: /s/ Linda Pace
----------------------------------------
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS IV, LTD.
By: /s/ Linda Pace
----------------------------------------
Title: Managing Director
SIERRA CLO I
By: /s/ John M. Casparian
----------------------------------------
Title: Chief Operating officer
LCM I LIMITED PARTNERSHIP
By: Lyon Capital Management LLC
As Collateral Manager
By: /s/ Farboud Tavangar
----------------------------------------
Title: Senior Portfolio Manager
BIG SKY SENIOR LOAN FUND, LTD.
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
TOLLI & CO.
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
-25-
EATON VANCE CDO III, LTD.
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
EATON VANCE CDO IV, LTD.
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael Botthof
----------------------------------------
Title: Vice President
COSTANTINUS EATON VANCE CDO V, LTD.
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael Botthof
----------------------------------------
Title: Vice President
GRAYSON & CO
By: Boston Management and Research
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
EATON VANCE LIMITED DURATION INCOME FUND
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
-26-
OXFORD STRATEGIC INCOME FUND
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management
As Investment Advisor
By: /s/ Michael B. Botthof
----------------------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
As Investment Advisor
By: /s/ Michael Botthof
----------------------------------------
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Joseph Badini
----------------------------------------
Title: Duly Authorized Signatory
PILGRIM CLO 1999 -1 LTD.
By: ING Investments, LLC
As its Investment Manager
By: /s/ Jason Groom
----------------------------------------
Title: Vice President
PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD,
By: ING Investments, LLC
As its Investment Manager
By: /s/ Jason Groom
----------------------------------------
Title: Vice President
-27-
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC
As its Investment Manager
By: /s/ Jason Groom
----------------------------------------
Title: Vice President
ING PRIME RATE TRUST
By: ING Investment Management, Inc.
As its Investment Manager
By: /s/ Jason Groom
----------------------------------------
Title: Vice President
ING SENIOR INCOME FUND
By: Aeltus Investment Management, Inc.
As its Investment Manager
By: /s/ Jason Groom
----------------------------------------
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: Prudential Investment Management,
Inc.
As its Collateral Manager
By: /s/ George W. Edwards
----------------------------------------
Title: Principal
CITICORP INSURANCE AND INVESTMENT TRUST
By: Travelers Asset Management
International Company, LLC
By: /s/ Matthew McInerny
----------------------------------------
Title: Investment Officer
CITICORP INVESTMENTS CORPORATE LOAN FUND
By: Travelers Asset Management
International Company LLC
By: /s/ Melanie Hanlon
----------------------------------------
Title: Vice Presiden
-28-
COLUMBUS LOAN FUNDING LTD
By: Travelers Asset Management
International Company LLC
By: /s/ Melanie Hanlon
----------------------------------------
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Matthew McInerny
----------------------------------------
Title: Investment Officer
LANDMARK CDO LIMITED
By: Aladdin Capital Management LLC
As Manager
By: /s/ Joseph Moroney, CFA
----------------------------------------
Title: Director
FRANKLIN FLOATING RATE TRUST
By: /s/ Richard D'Addario
----------------------------------------
Title: Assistant Vice President
FRANKLIN CLO II, LIMITED
By: /s/ Richard D'Addario
----------------------------------------
Title: Vice President
-29-
SCHEDULE I
Lender B-1 Term Loan Commitment
[Name of Lender] $[_______________________]
TOTAL $[_______________________]
-30-
EXHIBIT B-8
FORM OF B-1 TERM NOTE
$________________ New York, New York
_____________,____
FOR VALUE RECEIVED, AMERISTAR CASINOS, INC., a Nevada
corporation (the "Borrower"), hereby promises to pay the order of _________
_______________ (the "Lender"), in lawful money of the United States in
immediately available funds, at the office of Deutsche Bank Trust Company
Americas (f/k/a Bankers Trust Company) (the "Administrative Agent") located at
90 Hudson Street, Jersey City, New Jersey 07302 on the B-1 Term Maturity Date
(as defined in the Agreement referred to below) the principal sum of
__________________ ($_____________) or, if less, the then unpaid principal
amount of all B-1 Term Loans (as defined in the Agreement) made by the Lender
pursuant to the Agreement.
The Borrower also promises to pay interest on the unpaid
principal amount hereof in like money at said office form the date hereof until
paid at the rates and the times provided in Section 1.08 of the Agreement.
This Note is one of the B-1 Term Notes referred to the Credit
Agreement, dated as of December 20, 2000, among the Borrower, the Lenders party
thereto from time to time (including the Lender), Wells Fargo Bank, N.A., as
Co-Arranger and Syndication Agent, Bear Stearns Corporate Lending Inc., as
Documentation Agent, Deutsche Bank Securities Inc., as Lead Arranger and sole
Book Manager, and the Administrative Agent (as from time to time in effect, the
"Agreement"). This Note is secured by the Security Documents (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the B-1 Term Maturity Date, in whole
or in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
AMERISTAR CASINOS, INC.
By ________________________________
Name:
Title:
EXHIBIT K
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT(1)
This Assignment and Assumption Agreement (this "Assignment"),
is dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item [1][2] below ([the] [each, an]
"Assignor") and [the] [each] Assignee identified in item 2 below ([the] [each,
an] "Assignee"). [It is understood and agreed that the rights and obligations of
such [Assignees][and Assignors] hereunder are several and not joint.]
Capitalized terms used herein but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, restated,
supplemented and/or otherwise modified from time to time, the "Credit
Agreement"). The Standard Terms and Conditions for Assignment and Assumption
Agreement set forth in Annex 1 hereto (the "Standard Terms and Conditions") are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby
irrevocably sells and assigns to [the] [each] Assignee, and [the] [each]
Assignee hereby irrevocably purchases and assumes from [the][each] Assignor,
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent
as contemplated below, the interest in and to all of [the][each] Assignor's
rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage
interest identified below of all of the [respective] Assignor's outstanding
rights and obligations under the respective Tranches identified below
(including, to the extent included in any such Tranches, Letters of Credit and
Swingline Loans) ([the] [each, an] "Assigned Interest"). [Each] [Such] sale and
assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment, without representation or warranty by [the][any]
Assignor.
[1. Assignor: __________________________
2. Assignee: ________________________] (2)
[1][3]. Credit Agreement: Credit Agreement, dated as of December 20,
2000, among Ameristar Casinos, Inc., the
lenders from time to time party thereto,
Deutsche Bank Trust Company Americas, as
Administrative Agent, Wells Fargo, N.A., as
Co-Arranger and Syndication Agent, Bear
Stearns Corporate Lending, Inc., as
Documentation Agent and Deutsche Bank
Securities Inc., as Lead Arranger and Sole
Book Manager.
- --------------------
(1) This Form of Assignment and Assumption Agreement should be used by
Lenders for an assignment to a single Assignee or to funds managed by
the same or related investment managers.
(2) If the form is used for a single Assignor and Assignee, items 1 and 2
should list the Assignor and the Assignee, respectively. In the case of
an assignment to funds managed by the same or related investment
managers, or an assignment by multiple Assignors, the Assignors and the
Assignee(s) should be listed in the table under bracketed item 2 below.
EXHIBIT K
page 2
[2. Assigned Interest:(3)
Aggregate Amount of Percentage of
Commitment/Loans Amount of Assigned
under Relevant Commitment/Loans Commitment/Loans
Tranche Tranche for all under Relevant under Relevant
Assignor Assignee Assigned(4) Lenders Tranche Assigned Tranche(5)
- -------------------------------------------------------------------------------------------------------------
[Name of [Name of B-1 Term Loans __________ __________ ________%
Assignor] Assignee]
- -------------------------------------------------------------------------------------------------------------
[Name of [Name of Revolving Loans __________ __________ ________%]
Assignor] Assignee]
- -------------------------------------------------------------------------------------------------------------
- ---------------------
(3) Insert this chart if this Form of Assignment and Assumption Agreement
is being used for assignments to funds managed by the same or related
investment managers or for an assignment by multiple Assignors. Insert
additional rows as needed.
(4) For complex multi-tranche assignments a separate chart for each tranche
should be used for ease of reference.
(5) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder for the respective Tranche.
EXHIBIT K
Page 3
[4. Assigned Interest:(6)
Percentage of
Assigned
Aggregate Amount of Amount of Commitment/Loans
Commitment/Loans under Commitment/Loans under under Relevant
Tranche Assigned Relevant Tranche for all Lenders Relevant Tranche Assigned Tranche(7)
- --------------------------------------------------------------------------------------------------------
B-1 Term Loans $______________ $______________ ______________%
- --------------------------------------------------------------------------------------------------------
Revolving Loans $______________ $______________ ______________%]
- --------------------------------------------------------------------------------------------------------
Effective Date ___________, ____, 200__.
ASSIGNOR[S] INFORMATION ASSIGNEE[S] INFORMATION
- ----------------------- -----------------------
Payment Instructions: Payment Instructions:
_______________ __________________
_______________ __________________
_______________ __________________
_______________ __________________
Reference:_____ Reference:________
Notice Instructions: Notice Instructions:
_______________ __________________
_______________ __________________
_______________ __________________
_______________ __________________
Reference:_____ Reference:________
- ------------------
(6) Insert this chart if this Form of Assignment and Assumption Agreement
is being used by a single Assignor for an assignment to a single
Assignee.
(7) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
Exhibit K
Page 4
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE](8)
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
- -----------------
(8) Add additional signature blocks, as needed, if this Form of Assignment
and Assumption Agreement is being used by funds managed by the same or
related investment managers.
Exhibit K
Page 5
Acknowledged and Agreed:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: ____________________________
Name:
Title:
ANNEX 1
To
EXHIBIT K
AMERISTAR CASINOS, INC.
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. [The] [Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the] [its] Assigned
Interest, (ii) [the] [its] Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with any Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Credit Document or any other instrument or document
delivered pursuant thereto (other than this Assignment) or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its respective
Subsidiaries or affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its respective Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Credit Document.
1.2. Assignee. [The] [Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) confirms that it is (A) a Lender, (B) a parent company and/or an
affiliate of the Assignor which is at least 50% owned by the Assignor or its
parent company, (C) in the event the Assignor is a fund that invests in bank
loans, a fund that invests in bank loans and is managed by the same investment
advisor of the Assignor or by an affiliate of such investment advisor or (D) a
Qualified Peron under Section 13.04(b) of the Credit Agreement; (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 8.01(a), (b) or (c) thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and to purchase
the Assigned Interest on the basis of which it has made such analysis and
decision and (v) if it is organized under the laws of a jurisdiction outside the
United States, attached to this Assignment is any tax documentation required to
be delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by [the] [each such] Assignee; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, [the][each]
Assignor, or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) appoints and
authorizes each of the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Collateral Agent to take such action as agent on its
behalf and to exercise such powers
Annex 1
Page 2
under the Credit Agreement and the other Credit Documents as are delegated to or
otherwise conferred upon the Administrative Agent, the Syndication Agent, the
Documentation Agent or the Collateral Agent, as the case may be, by the terms
thereof, together with such powers as are reasonably incidental thereto; and (d)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.
2. Payment. From and after the Effective Date, the
Administrative Agent shall make all payments in respect [the] [each] Assigned
Interest (including payments of principal, interest, fees, commissions and other
amounts) to [the][each] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the] [each] Assignee for amounts which have accrued
from and after the Effective Date.
3. Upon the delivery of a fully executed original hereof
to the Administrative Agent, as of the Effective Date, (i) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Assumption Agreement, have the rights and obligations of a Lender thereunder
and under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
4. General Provisions. This Assignment shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of the Assignment. THIS
ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401
OF THE GENERAL OBLIGATIONS LAW).
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