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EXHIBIT 10.31
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and dated as of the 21st day of May, 2001, by and among
BOYD GAMING CORPORATION, a Nevada corporation (the "Borrower") and CANADIAN
IMPERIAL BANK OF COMMERCE ("CIBC"), as administrative agent and collateral agent
(herein, in such capacity, called the "Agent"), for the commercial lending
institutions party to the hereinafter-described Credit Agreement (collectively,
the "Lenders").
RECITALS
A. The Borrower and the Lenders entered into that certain First Amended and
Restated Credit Agreement dated as of June 30, 1999, as amended by that certain
First Amendment to First Amended and Restated Credit Agreement dated as of July
26, 2000 (as so amended, the "Credit Agreement"), pursuant to which the Lenders
agreed to extend credit to the Borrower on the terms and subject to the
conditions set forth therein.
B. The Borrower and the Lenders desire to further 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. The following definitions shall be added to Section 1.1 of the Credit
Agreement in appropriate alphabetical sequence:
"Delta Downs" means the horse racing and pari-mutuel business including the
food and beverage, simulcast and related operations in Calcasieu Parish,
Louisiana known as Delta Downs Racetrack and Casino; and the off track betting
business including the food and beverage and related operations in Madison
Parish, Louisiana known as Winner's Circle.
"Delta Downs Acquisition Agreement" means that certain Asset Purchase
Agreement dated as of April 26, 2001 among Delta Downs Racing Association, Inc.,
Delta Downs, Incorporated, Winners Circle #1 of Madison, LLC and Delta Downs
Acquisition Subsidiary, as the same may be amended on terms satisfactory to the
Agent.
"Delta Downs Acquisition Subsidiary" means Boyd Racing, L.L.C., a Louisiana
limited liability company.
"Delta Downs Investment" means the acquisition by Delta Downs Acquisition
Subsidiary of substantially all the assets of Delta Downs pursuant to the Delta
Downs Acquisition Agreement and the subsequent Investment by the Borrower in
Delta Downs Acquisition Subsidiary of up to $35,000,000 for Capital Expenditures
to refurbish the existing facilities of Delta Downs and to build-out and furnish
the casino portion of Delta Downs.
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"Delta Downs Purchase Price" means the amount, up to a maximum of
$125,000,000, payable to the sellers of Delta Downs pursuant to the Delta Downs
Acquisition Agreement.
b. The definition of the term "EBITDA" in Section 1.1 of the Credit
Agreement is hereby amended by adding the following immediately prior to the end
thereof:
For the three Fiscal Quarters, commencing with the Fiscal Quarter ending
December 31, 2001, EBITDA shall be calculated after giving pro forma effect
to the acquisition of Delta Downs. For the Fiscal Quarter ending December
31, 2001, the Delta Downs Acquisition Subsidiary's earnings before
depreciation, amortization, interest expense, pre-opening expenses,
extraordinary items and taxes, all as determined in accordance with GAAP
("Delta Downs EBITDA"), for such Fiscal Quarter shall be multiplied by four
and the resulting product added to EBITDA. For the Fiscal Quarter ending
March 31, 2002, the Delta Downs EBITDA for the two Fiscal Quarters ending
on such date shall be multiplied by two and the resulting product added to
EBITDA. For the Fiscal Quarter ending June 30, 2002, the Delta Downs EBITDA
for the three Fiscal Quarters ending on such date shall be multiplied by
four, divided by three and the resulting figure added to EBITDA.
c. The definition of the term "Restricted Indebtedness" in Section 1.1 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"Restricted Indebtedness" means all Indebtedness incurred pursuant to a
Permitted Senior Note Issuance in excess of (a) $125,000,000 minus (b) the
amount of any increase in the Commitment hereunder accepted by the Borrower
pursuant to Section 2.9 hereof from and after May 1, 2001, and all Indebtedness
incurred pursuant to a Permitted Subordinated Debt Issuance in excess of
$250,000,000, except in either case to the extent otherwise permitted pursuant
to Section 7.2.2(vi).
d. Section 2.9(a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
SECTION 2.9. Increase in Revolving Loan Commitment Amount and/or Term
Loan Commitment Amount.
(a) Provided that no Default or Event of Default then exists, the
Borrower may on any Business Day prior to the Revolving Loan Commitment
Termination Date, request in writing that the then effective Term Loan
Commitment Amount and/or Revolving Loan Commitment Amount be increased in
accordance with the provisions of this Section. On October 24, 2000, the
Borrower increased the then effective Term Loan Commitment Amount by
$100,000,000 pursuant to this Section 2.9. After May 1, 2001, the Borrower
may make only one request under this Section and in no event may the amount
of
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such increase exceed $125,000,000; provided, however, that the amount of
such permitted increase shall be reduced on a dollar for dollar basis (but
in no event to an amount less than $50,000,000) for any Permitted
Subordinated Debt Issuance or Permitted Senior Note Issuance completed
after May 1, 2001 and prior to the date of such increase. Any requested
increase shall be used by the Borrower to fund, or reimburse the Borrower
for Borrowings used to fund, the Delta Downs Investment. Any request under
this Section to increase the Commitment Amount(s) shall be submitted by the
Borrower to the Agent, specify the proposed effective date (which date
shall be not less than 5 days after the date of such request), the amount
of such increase and the Commitment Amount(s) proposed to be increased
(which shall be in integral multiples of $1,000,000) and the Borrower's
uses for such increase. The Agent may, in the exercise of its sole
discretion, approve or disapprove of the Borrower's request. If the Agent
shall approve, no Lender shall have any obligation, express or implied, to
offer to increase its Commitment. Only the consent of the Agent and those
Lenders that have increased their Commitments (the "Increasing Lenders")
shall be required for an increase in the Commitment Amounts pursuant to
this Section.
e. Section 7.1.11 of the Credit Agreement is hereby amended by replacing
the word "and" in the fifth line thereof with a comma, by renumbering clause
(iv) as clause (v), and by inserting the following clause immediately prior to
new clause (v): "(iv) to fund the Delta Downs Investment.".
f. Section 7.2.1 of the Credit Agreement is hereby amended by inserting ",
Delta Downs racetrack" after the word "riverboats" in the fifth line thereof.
g. Section 7.2.2 of the Credit Agreement is hereby amended by deleting the
word "and" at the end of clause (vi) thereof, inserting the word "and" at the
end of clause (vii) thereof and adding the following clause (viii) immediately
thereafter:
"(viii) upon the acquisition by Delta Downs Acquisition Subsidiary of
Delta Downs and until the specified maturity date for such Indebtedness,
the deferred portion of the Delta Downs Purchase Price having terms and
conditions satisfactory to the Agent."
h. Section 7.2.3 of the Credit Agreement is hereby amended by deleting the
word "and" at the end of clause (h) thereof, inserting the word "and" at the end
of clause (i) thereof and adding the following clause (j) immediately
thereafter:
"(j) upon the acquisition by Delta Downs Acquisition Subsidiary of
Delta Downs and until the maturity date for the note issued to the sellers
of Delta Downs, a second-priority mortgage in favor of the sellers of Delta
Downs securing the Indebtedness permitted under Section 7.2.2(viii), which
shall be junior in priority to a mortgage in favor of the Agent on behalf
of the Lenders securing the greater of (x) $60,000,000 or (y) all amounts
theretofore or contemporaneously paid to the sellers of Delta Downs or
deposited in the creditors' escrow fund account contemplated by the Delta
Downs Acquisition Agreement, and which mortgage shall be otherwise in form
and substance satisfactory to the Agent, on the real and personal property
interests that were acquired by Delta Downs Acquisition Subsidiary pursuant
to the Delta Downs Acquisition Agreement;"
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i. Clauses (b) and (c) of Section 7.2.4 of the Credit Agreement are hereby
amended to read in their entirety as follows:
(b) the Total Leverage Ratio at the end of any Fiscal Quarter, for the
period of four consecutive Fiscal Quarters ending on such date, to be
greater than the ratio set forth below opposite such period:
Period Ratio
------ -----------
June 30, 1999 - September 30, 2000 4.50 to 1.0
December 31, 2000 - June 30, 2001 4.75 to 1.0
September 30, 2001 4.90 to 1.0
December 31, 2001 and thereafter 4.75 to 1.0
provided, that until the Borrower shall have made the Delta Downs
Investment, then the foregoing chart shall be replaced with the
following chart:
Period Ratio
------ -----------
June 30, 1999 - September 30, 2000 4.50 to 1.0
December 31, 2000 and thereafter 4.75 to 1.0
(c) the Senior Secured Leverage Ratio at the end of any Fiscal Quarter
for any period of four consecutive Fiscal Quarters ending on or after June
30, 1999 to be greater than 2.75 to 1.00; provided, that if from and after
the Effective Date the Borrower shall have increased the Commitment Amounts
pursuant to Section 2.9 hereof by at least $125,000,000, then commencing
with the period of four consecutive Fiscal Quarters ending on June 30, 2001
and continuing for each period of four consecutive Fiscal Quarters
thereafter, the Senior Leverage Ratio at the end of any Fiscal Quarter
shall not be greater than 3.00 to 1.00.
j. Section 7.2.5 of the Credit Agreement is hereby amended by deleting
"and" at the end of clause (vii) thereof, inserting the word "and" at the end of
clause (viii) thereof and adding the following clause (ix) immediately
thereafter:
"(ix) payment of the Delta Downs Purchase Price and up to $35,000,000
of additional Investments in Delta Downs Acquisition Subsidiary in the form
of Capital Expenditures permitted under Section 7.2.7(d) during the term of
this Agreement."
k. Section 7.2.7 of the Credit Agreement is hereby amended by deleting the
word "and" at the end of clause (b) thereof, replacing the period at the end of
clause (c) thereof with "; and" and by adding the following clause (d)
immediately thereafter:
"(d) payment of the Delta Downs Purchase Price and up to $35,000,000
of additional Capital Expenditures (including Expansion Capital
Expenditures) in connection with the Delta Downs Investment."
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l. Section 7.2.8 of the Credit Agreement is hereby amended by adding the
following clause immediately prior to the end thereof:
"and (iii) the Delta Downs Acquisition Subsidiary may acquire substantially
all of the assets of Delta Downs pursuant to the Delta Downs Acquisition
Agreement."
2. Effective Date. This Amendment shall be effective on the date on which:
a. This Amendment shall have been executed by the Borrower, the Majority
Lenders in the case of the amendments described in subsections a and b of
Section 1 hereof and the Majority Revolving Lenders in the case of all other
amendments;
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;
c. The Agent shall have received a fee on behalf of each Lender (including
the Agent) who has returned an executed consent to this Amendment in the form of
Exhibit B to the Agent or its counsel, Mayer, Brown & Platt, by 12:00 noon, Los
Angeles time, on May 21, 2001, which fee shall be in an amount equal to 0.125%
of such Lender's aggregate Commitment under the Credit Agreement.
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Agent and the Lenders as follows:
a. The 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 the Borrower. The Credit
Agreement (as amended by this Amendment) and the other Loan Documents to which
the Borrower is party constitute legal, valid, and binding obligations of the
Borrower, enforceable against the 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 the 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.
5. Reaffirmation of Loan Documents. The Borrower hereby further affirms and
agrees that (a) the execution and delivery by the Borrower of and the
performance of its 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 Borrower 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 Borrower in connection therewith, and (b) the term "Obligations" as
used in the Loan Documents includes, without limitation, the Obligations of the
Borrower under the Credit Agreement as amended by this Amendment.
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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.
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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.
BOYD GAMING CORPORATION
By:
----------------------------
Title:
--------------------------
CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent
By:
----------------------------
Title:
--------------------------
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EXHIBIT A to Second Amendment to First
Amended and Restated Credit Agreement
May 21, 2001
The parties listed on the
signature pages hereof
c/o Boyd Gaming Corporation
2950 South Industrial Road
Las Vegas, Nevada 89109
Attention: Chief Financial Officer
Re: Boyd Gaming Corporation
Gentlemen:
Please refer to (1) the First Amended and Restated Credit Agreement, dated
as of June 30, 1999, as amended by that certain First Amendment to First Amended
and Restated Credit Agreement dated as of July 26, 2000 (as so amended, the
"Credit Agreement"), by and among Boyd Gaming Corporation, as the Borrower, the
commercial lending institutions party thereto (collectively, the "Lenders"),
Wells Fargo Bank, N.A., as Swingline Lender and Syndication Agent, Canadian
Imperial Bank of Commerce ("CIBC"), as letter of credit issuer, Bank of America,
N.A., as Documentation Agent, and CIBC, as Administrative Agent and collateral
agent for the Lenders (herein, in such capacity, called the "Agent") (the
Lenders and the Agent herein are collectively called the "Beneficiaries") and
(2) the Amended and Restated General Continuing Guaranty, dated as of June 30,
1999 (the "Guaranty") to which each of you is now a party in favor of the Agent
for the Beneficiaries. Pursuant to an amendment dated of even date herewith,
certain terms of the Credit Agreement were amended. We hereby request that you
(i) acknowledge and reaffirm all of your obligations and undertakings under the
Guaranty and (ii) acknowledge and agree that the Guaranty is and shall remain in
full force and effect in accordance with the terms thereof.
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Please indicate your agreement to the foregoing by signing in the space
provided below, and returning the executed copy to the undersigned.
CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent
By:
----------------------------
Title: Managing Director
CIBC World Markets Corp.,
AS AGENT
Acknowledged and Agreed: MARE-BEAR, INC., a Nevada
corporation
By:
----------------------------
Title:
--------------------------
SAM-WILL, INC., a Nevada
corporation
By:
----------------------------
Title:
--------------------------
BOYD TUNICA, INC., a Mississippi
corporation
By:
----------------------------
Title:
--------------------------
CALIFORNIA HOTEL AND CASINO,
a Nevada corporation
By:
----------------------------
Title:
--------------------------
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CALIFORNIA HOTEL FINANCE
CORPORATION,
a Nevada corporation
By:
----------------------------
Title:
--------------------------
BOYD ATLANTIC CITY, INC.,
a New Jersey corporation
By:
----------------------------
Title:
--------------------------
ELDORADO, INC., a Nevada
corporation
By:
----------------------------
Title:
--------------------------
PAR-A-DICE GAMING CORPORATION,
an Illinois corporation
By:
----------------------------
Title:
--------------------------
BOYD MISSISSIPPI, INC., a Nevada
corporation
By:
----------------------------
Title:
--------------------------
BOYD KENNER, INC., a Louisiana
corporation
By:
----------------------------
Title:
--------------------------
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BOYD LOUISIANA L.L.C.,
a Louisiana limited liability
company
By:
----------------------------
Title:
--------------------------
M.S.W., INC., a Nevada
corporation
By:
----------------------------
Title:
--------------------------
TREASURE CHEST CASINO, L.L.C.,
a Louisiana limited liability
company
By: Boyd Kenner, Inc.,
Managing Agent
By:
----------------------------
Title:
--------------------------
BLUE CHIP CASINO LLC, an Indiana
limited liability company
By: Boyd Indiana, Inc.,
an Indiana corporation,
its sole member
By:
----------------------------
Title:
--------------------------
BOYD INDIANA, INC.
By:
----------------------------
Title:
--------------------------
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EXHIBIT B to Second Amendment to First
Amended and Restated Credit Agreement
CONSENT OF LENDER
Reference is hereby made to the First Amended and Restated Credit Agreement
dated as of June 30, 1999 among Boyd Gaming Corporation (the "Borrower"), the
Lenders party thereto and Canadian Imperial Bank of Commerce, as Administrative
Agent.
The undersigned Lender hereby consents to the execution and delivery of the
Second Amendment to the First 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.
Dated: May __, 2001
---------------------------------
[Name of Institution]
By:
-----------------------------
Name:
---------------------------
Title:
---------------------------
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