Exhibit 4.1
HORSESHOE GAMING HOLDING CORP.
FIFTH AMENDMENT TO
CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of September 1, 2001 and entered into by and among HORSESHOE GAMING
HOLDING CORP., a Delaware corporation ("Company"), the financial institutions
listed on the signature pages hereof ("Lenders"), CREDIT SUISSE FIRST BOSTON as
successor to DLJ Capital Funding, Inc., as Syndication Agent ("Syndication
Agent") and CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent
("Administrative Agent" and together with the Syndication Agent, "Agents"), and
is made with reference to that certain Credit Agreement dated as of June 30,
1999 (as amended by the First Amendment, Second Amendment, Third Amendment and
the Fourth Amendment described below, the "Credit Agreement"), by and among
Company, Lenders, Syndication Agent and Administrative Agent, as amended by that
certain First Amendment to Credit Agreement dated as of November 18, 1999, that
certain Second Amendment to Credit Agreement dated as of November 30, 1999, that
certain Third Amendment to Credit Agreement dated as of January 20, 2000 and
that certain Fourth Amendment to Credit Agreement and Consent dated as of July
20, 2001 (the "Fourth Amendment"). Capitalized terms used herein without
definition shall have the same meanings as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company has consummated the sale (the "Joliet Sale") of
all of the Capital Stock of its former wholly-owned subsidiary, Empress Joliet,
and all conditions to the effectiveness to the Fourth Amendment have been
satisfied.
WHEREAS, Company has requested that Lenders consent to the
payment by Company of Restricted Junior Payments of up to $60,000,000 and to
make certain modifications of relevant provisions to permit and to accommodate
such Restricted Junior Payments and further Restricted Junior Payments.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 DEFINITIONS
A. ADDITIONAL DEFINITION. Section 1.1 of the Credit Agreement is
amended by inserting the following definitions in alphabetical order:
"EXCLUDED DISTRIBUTIONS" means Restricted Junior Payments in
the form of dividends or similar distributions on the capital stock of Company
made after the Fifth Amendment Effective Date in an aggregate amount not
exceeding $60,000,000."
"FIFTH AMENDMENT EFFECTIVE DATE" means the date on which the
Fifth Amendment to Credit Agreement dated as of September 1, 2001 becomes
effective in accordance with its terms."
B. MODIFIED DEFINITIONS. Section 1.1 of the Credit Agreement is
amended to modify the definitions of "Consolidated Fixed Charges" and "Permitted
Distribution Amount" as follows:
"CONSOLIDATED FIXED CHARGES" means the sum (without duplication)
of the amounts applicable to such period (without regard to when cash payment of
such amounts is made) of (i) Consolidated Interest Expense, (ii) provisions for
taxes based on income and, without duplication, Permitted Tax Distributions,
(iii) scheduled principal payments in respect of Consolidated Total Debt and
(iv) all dividends and distributions paid on any shares of capital stock of
Company and all cash repurchases or redemptions of capital stock of Company
other than Excluded Distributions, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP."
"PERMITTED DISTRIBUTION AMOUNT" means, for any date of
determination after the Fifth Amendment Effective Date, the amount permitted for
permitted dividend and similar distributions, purchases of equity and junior
indebtedness and for the making of restricted investments under the most
restrictive of the New Sub Debt Indenture and the Existing Subordinated
Horseshoe Indenture as in effect as at such date of determination."
1.2 MINIMUM CONSOLIDATED NET WORTH. Subsection 7.6C is amended by
adding a new subtraction from the calculation made therein by adding the
following at the end of the existing subsection:
"and then subtracting from such sum (d) Excluded Distributions."
SECTION 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Agents to enter into this Amendment and
to amend the Credit Agreement in the manner provided herein, Company represents
and warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Each of Company and Subsidiary
Guarantors that are parties hereto have all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company.
C. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by Company, and Subsidiary Guarantors
party thereto, and are the legally valid and binding obligations of Company, and
Subsidiary Guarantors party thereto, enforceable against Company and Subsidiary
Guarantors party thereto, in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
D. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
E. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or Potential Event of
Default.
F. NO CONFLICT. The execution and delivery by Company and
Subsidiary Guarantors of this Amendment and the performance by Company of its
obligations under the Amended Agreement, do not and will not (i) violate any
provision of any law or governmental rule or regulation applicable to Company or
any of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws
of Company or any of its Subsidiaries or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Material Contract of Company or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of Company or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Material
Contract of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Fifth Amendment Effective Date
and disclosed in writing to Agents.
G. GOVERNMENTAL CONSENTS. The execution and delivery by Company
and Subsidiary Guarantors of this Amendment and the performance by Company of
its obligations under the Amended Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body (other than security filings or recordings required by the transactions
contemplated hereunder), except for such registrations, consents, approvals,
notices or other actions which will be obtained or made on or before the Fifth
Amendment Effective Date and disclosed in writing to Agents.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Sections 1 of this Amendment shall become effective only upon satisfaction
of all of the following conditions precedent (the date of satisfaction of such
conditions, which shall be specified in a written notice from Administrative
Agent to Company and Lenders, being referred to herein as the "Fifth Amendment
Effective Date"):
A. EFFECTIVENESS OF FOURTH AMENDMENT. All conditions to the
effectiveness of the Fourth Amendment have been satisfied.
B. EXECUTION OF AMENDMENT. On or before the Fifth Amendment Effective
Date, Company, Subsidiary Guarantors and Revolving Lenders with an aggregate of
$76,500,000 in Revolving Loan Commitments (which constitute Requisite Lenders)
shall have executed and delivered copies of this Amendment to Administrative
Agent.
C. OTHER PROCEEDINGS. On or before the Fifth Amendment Effective Date,
all corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Agents, acting on behalf of Lenders, shall be
reasonably satisfactory in form and substance to Agents, and Agents shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Fifth Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of either Agent or any
Lender under, the Credit Agreement or any of the other Loan Documents.
B. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed and original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
HORSESHOE GAMING HOLDING CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Financial Officer
By its execution of a counterpart of this Amendment, each of the
undersigned, as party to the Subsidiary Guaranty and/or the Collateral
Documents, hereby acknowledges that it has read this Amendment to the terms
thereof and further hereby confirms and agrees that, notwithstanding the
effectiveness of this Amendment, any and all obligations of the undersigned
under the Subsidiary Guaranty and the Collateral Documents shall not be impaired
or affected and the Subsidiary Guaranty and the Collateral Documents are, and
shall continue to be, in full force and effect and are hereby confirmed and
ratified in all respects.
GUARANTORS
BOSSIER CITY LAND CORPORATION
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
HORSESHOE ▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
HORSESHOE ENTERTAINMENT
By: New Gaming Capital Partnership,
its General Partner
By: Horseshoe GP, Inc., its General
Partner
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
HORSESHOE GP, INC.
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
NEW GAMING CAPITAL PARTNERSHIP
By: Horseshoe GP, Inc., its
General Partner
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ PROPERTY GROUP, LIMITED
PARTNERSHIP
By: Horseshoe GP, Inc., its General
Partner
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
LENDERS:
CREDIT SUISSE FIRST BOSTON, as
successor to DLJ Capital Funding,
individually and as Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as Administrative
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CIBC INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CIBC World Markets Corp., as
Agent