COMMITMENT INCREASE AGREEMENT
Exhibit 10.1
This COMMITMENT INCREASE AGREEMENT (this “Agreement”), dated as of December 17, 2010,
is entered into by and among (1) FULL HOUSE RESORTS, INC., a Delaware corporation (the
“Borrower”) and (2) the New Lender identified in Section 2 below, with respect to
the following:
A. The Borrower, the lenders from time to time party thereto (the “Lenders”) and Xxxxx
Fargo Bank, National Association as administrative agent for the Lenders (the “Administrative
Agent”) have previously entered into that certain Credit Agreement, dated as of October 29,
2010 (as the same may be amended, restated, supplemented or otherwise modified and in effect from
time to time, the “Credit Agreement”). Capitalized terms are used in this Agreement as
defined in the Credit Agreement, unless otherwise defined herein.
B. The Borrower has elected to exercise the increase option to increase the Total Term Loan
Commitment and Total Revolving Loan Commitment under Section 2.01(h) of the Credit Agreement.
C. On the terms and subject to the conditions set forth in this Agreement, the New Lender
identified in Section 2 below is willing to provide such increase as set forth in
Section 2 below.
D. Substantially concurrently herewith, the New Lender is entering into (i) an Assignment
Agreement with Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”) pursuant to which the
New Lender is obtaining by assignment from Xxxxx Fargo a Term Loan Commitment in the amount of
$1,302,631.57 and a Revolving Loan Commitment in the amount of $197,368.43 and (ii) an Assignment
Agreement with Capital One, N.A. (“Capital One”) pursuant to which the New Lender is
obtaining by assignment from Capital One a Term Loan Commitment in the amount of $1,302,631.58 and
a Revolving Loan Commitment in the amount of $197,368.42 (collectively, the “Assignment
Agreements”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Effectiveness. The effectiveness of the provisions of Section 2 of this
Agreement is subject to the satisfaction of the conditions further described in Section 3
of this Agreement.
2. Increase Option.
(a) The Borrower hereby requests that the Total Term Loan Commitment be increased in the
amount of $1,736,842.11 and Total Revolving Loan Commitment be increased in the amount of
$263,157.89 pursuant to Section 2.01(h) of the Credit Agreement (collectively, the “Greenshoe
Increase”) and the Borrower proposes that the Increase Effective Date for the Greenshoe
Increase be December 17, 2010, but in any event the Borrower understands and agrees that the
Increase Effective Date for the Greenshoe Increase shall be the Agreement Effective Date (as
defined in Section 3 below). In connection with the foregoing request, the certificate of
the Borrower certifying that no Default or Event of Default exists or will occur as a result of
such increase in the Total Term Loan Commitment and Total Revolving Loan Commitment as contemplated
in Section 3(c) below shall be deemed to satisfy the requirement for such certificate under
Section 2.01(h) of the Credit Agreement.
(b) On the terms and subject to the conditions of this Agreement, in furtherance of the
Borrower’s request for the Greenshoe Increase, as of the Agreement Effective Date, the New Lender
agrees to provide a Term Loan Commitment in the amount of $1,736,842.11 and a Revolving Loan
Commitment in the amount of $263,157.89 on the Increase Effective Date.
(c) After giving effect the Greenshoe Increase and the Assignment Agreements, the New Lender
shall have the Term Loan Commitment, Revolving Loan Commitment, Term Proportionate Share and
Revolving Proportionate Share set forth opposite such New Lender’s name on Attachment 1
attached hereto.
(d) As a matter of convenience, Schedule I attached hereto reflects the Term Loan
Commitment, Revolving Loan Commitment, Term Proportionate Share and Revolving Proportionate Share
of each of the Lenders (including the New Lender) after giving effect to the Assignment Agreements
and the Greenshoe Increase.
Bank of Nevada is the “New Lender” for purposes of the Credit Agreement and this Agreement.
3. Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of
the provisions of Section 2 of this Agreement is conditioned upon, and such provisions
shall not be effective until, satisfaction of the following conditions (the first date on which all
of the following conditions have been satisfied being referred to herein as the “Agreement
Effective Date”):
(a) The Administrative Agent shall have received, on behalf of the New Lender, this Agreement,
duly executed and delivered by the Borrower and the New Lender.
(b) The Administrative Agent shall have received the Assignment Agreements, duly executed and
delivered by the parties thereto.
(c) The Administrative Agent shall have received a certificate of a Responsible Officer
of the Borrower, dated as of the Agreement Effective Date, certifying (i) that attached thereto are
true and correct copies of resolutions duly adopted by the governing body of the Borrower and
continuing in effect, which authorize the execution, delivery and performance by the Borrower of
this Agreement and the consummation of the transactions contemplated hereby and thereby, (ii) the
incumbency, signatures and authority of the officers of the Borrower authorized to execute, deliver
and perform this Agreement and (iii) the conditions set forth in Sections 3(e), (f) and (g) of this
Agreement are satisfied as of the Agreement Effective Date.
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(d) The Administrative Agent shall have received (i) the fee described in Section 2 of the Fee
Letter in respect of the New Lender and (ii) the arrangement fee described in Section 1 of the Fee
Letter with respect to the Greenshoe Increase, in each case due and payable in full on the
Agreement Effective Date.
(e) The representations and warranties set forth in this Agreement shall be true and correct
in all material respects as of the Agreement Effective Date.
(f) All required third party consents and approvals required in connection with this Agreement
have been obtained.
(g) No Event of Default has occurred and is continuing or shall occur as a result of the
Greenshoe Increase.
4. Representations and Warranties. In order to induce the New Lender to enter into
this Agreement and to provide its Term Loan Commitment and Revolving Loan Commitment, the Borrower
represents and warrants to the Administrative Agent and each other Lender as follows:
(a) Authorization of Agreements. The execution and delivery of this Agreement by the
Borrower and the performance by the Borrower of the Credit Agreement (with the increase in the
Total Term Loan Commitment and Total Revolving Loan Commitment as set forth in this Agreement)
(hereafter referred to as the “Increased Credit Agreement”) (i) are within the power of the
Borrower and (ii) have been duly authorized by all necessary actions on the part of the Borrower.
(b) Enforceability. Each of this Agreement and the Increased Credit Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except
as limited by bankruptcy, insolvency or other laws of general application relating to or affecting
the enforcement of creditors’ rights generally and general principles of equity.
(c) Non-Contravention. The execution and delivery by the Borrower of this Agreement
and the performance by the Borrower of each of this Agreement and the Increased Credit Agreement do
not (i) violate any Requirement of Law applicable to the Borrower; (ii) violate any provision of,
or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether
after the giving of notice or lapse of time or both), any Contractual Obligation of the Borrower;
(iii) result in the creation or imposition of any Lien (or the obligation to create or impose any
Lien) upon any property, asset or revenue of the Borrower or (iv) violate any provision of any
existing law, rule, regulation, order, writ, injunction or decree of any court or Governmental
Authority to which it is subject.
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(a) Governmental Consents. Except as provided in Nevada Gaming Commission Regulation
8.130 with respect to Xxxxxxxx’x Casino, no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or other Person (including
without limitation, the equity holders of any Person) is required for the due execution, delivery
and performance by the Borrower of this Agreement, except for those which have been made or
obtained and are in full force and effect.
(d) Representations and Warranties in the Credit Agreement. The Borrower confirms
that as of the Agreement Effective Date and after giving effect to this Agreement, (i) the
representations and warranties contained in Article IV of the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (except for such
representations and warranties made as of a specified date, which shall be true as of such date)
and (ii) no Default or Event of Default has occurred and is continuing.
5. New Lender Agreements, Representations and Warranties.
(a) Effective on the Agreement Effective Date, New Lender hereby (i) accepts and assumes all
rights and obligations under the Credit Documents of a Lender with the principal amount of
Commitments for such New Lender set forth in the Increase Agreement, (ii) agrees to be bound by the
Credit Agreement as it would have been if it had been an original Lender party thereto, and (iii)
agrees to perform in accordance with their terms all of the obligations which are required under
the Credit Documents to be performed by it as a Lender. New Lender appoints and authorizes the
Administrative Agent, the Collateral Agent and the Security Trustee to take such actions as agent
on its behalf and to exercise such powers under the Credit Documents as are delegated to
Administrative Agent by the terms thereof, together with such powers as are reasonably incidental
thereto.
(b) New Lender confirms that it has received a copy of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Agreement.
(c) New Lender will, independently and without reliance upon the Administrative Agent or any
Lender and based upon 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
and the other Credit Documents.
(d) Set forth on New Lender’s signature page to this Agreement is certain administrative
information with respect to New Lender.
(e) On or before the Agreement Effective Date, New Lender shall comply with the provisions of
Section 2.12(e) of the Credit Agreement.
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6. Miscellaneous.
(a) Reference to and Effect on the Credit Agreement and the other Credit Documents.
(i) Except as specifically set forth in this Agreement, the Credit Agreement and the other
Credit Documents shall remain in full force and effect and are hereby ratified and confirmed by the
Borrower in all respects.
(ii) The execution and delivery of this Agreement and performance of the Increased Credit
Agreement 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 the Administrative Agent or the Lenders
under, the Credit Agreement or any of the other Credit Documents.
(b) Expenses. The Borrower acknowledges that all reasonable costs and expenses of the
Administrative Agent incurred in connection with this Agreement will be paid by the Borrower in
accordance with Section 8.02 of the Credit Agreement.
(c) Headings. Section and subsection headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
(d) Counterparts. This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes. Transmission by telecopier (or by email of a PDF or
similar electronic image file) of an executed counterpart of this Agreement shall be deemed to
constitute due and sufficient delivery of such counterpart.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to conflicts of law rules other than
Section 5-1401 of the General Obligations Law of the State of New York.
7. Credit Documents. This Agreement is a Credit Document as defined in the Credit
Agreement, and the provisions of the Credit Agreement generally applicable to Credit Documents are
applicable hereto and incorporated herein by this reference.
[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
| FULL HOUSE RESORTS, INC., a Delaware corporation |
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| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
[Signature Page to Commitment Increase Agreement — Full House]
| BANK OF NEVADA, as the New Lender |
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By: |
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| Name: | ||||||
| Title: | ||||||
| Notices: | ||||||
| Bank of Nevada 0000 X. Xxxxxx Xxxxxx Xxx Xxxxx, Xxxxxx 00000 Attention: Xxxxx X. Xxxxxxxxx Tel. No. (000) 000-0000 Fax No. (000) 000-0000 E-mail: xxxxxxxxxx@xxxxxxxxxxxx.xxx |
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| Domestic and Euro-Dollar Lending Office: | ||||||
| Bank of Nevada 0000 X. Xxxxxx Xxxxxx Xxx Xxxxx, Xxxxxx 00000 Attention: Xxxxx Xxxxx Tel. No. (000) 000-0000 Fax No. (000) 000-0000 E-mail: xxxxxx@xxxxxxxxxxxx.xxx |
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[Signature Page to Commitment Increase Agreement — Full House]
ACKNOWLEDGED AND AGREED (INCLUDING THAT THE NEW LENDER IS ACCEPTABLE):
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent |
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By: |
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| Name: | ||||||
| Title: | ||||||
[Signature Page to Commitment Increase Agreement — Full House]
ATTACHMENT 1
NEW LENDER
| Revolving | Term | |||||||||||||||
| Name of New | Revolving Loan | Proportionate | Term Loan | Proportionate | ||||||||||||
| Lender | Commitment | Share | Commitment | Share | ||||||||||||
Bank of Nevada |
$ | 657,894.74 | 13.15789480 | % | $ | 4,342,105.26 | 13.15789473 | % | ||||||||
SCHEDULE I
THE LENDERS
| Revolving | Term | |||||||||||||||
| Revolving Loan | Proportionate | Term Loan | Proportionate | |||||||||||||
| Name of Lender | Commitment | Share | Commitment | Share | ||||||||||||
Xxxxx Fargo Bank,
National
Association |
$ | 1,973,684.20 | 39.47368400 | % | $ | 13,026,315.80 | 39.47368424 | % | ||||||||
Capital One, N.A. |
$ | 1,710,526.32 | 34.21052640 | % | $ | 11,289,473.68 | 34.21052630 | % | ||||||||
Nevada State Bank |
$ | 657,894.74 | 13.15789480 | % | $ | 4,342,105.26 | 13.15789473 | % | ||||||||
Bank of Nevada |
$ | 657,894.74 | 13.15789480 | % | $ | 4,342,105.26 | 13.15789473 | % | ||||||||
Total |
$ | 5,000,000 | 100.00 | % | $ | 33,000,000.00 | 100.00 | % | ||||||||
[Signature Page to Commitment Increase Agreement — Full House]
