SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
June 20, 2008, by and among the lenders identified on the signature pages hereof (such lenders,
together with their respective successors and permitted assigns, are referred to hereinafter each
individually as a “Lender” and collectively as the “Lenders”), XXXXX FARGO
FOOTHILL, INC., a California corporation, as the arranger and administrative agent for the Lenders
(in such capacity, together with its successors and assigns in such capacity, “Agent”), B &
B B, INC., a Nevada corporation (“B&BB”), CASABLANCA RESORTS, LLC, a Nevada limited
liability company (“CBR”), OASIS INTERVAL MANAGEMENT, LLC, a Nevada limited liability
company(“OIM”), OASIS INTERVAL OWNERSHIP, LLC, a Nevada limited liability company
(“OIO”), OASIS RECREATIONAL PROPERTIES, INC., a Nevada corporation (“ORP”), RBG,
LLC, a Nevada limited liability company (“RBG”), and VIRGIN RIVER CASINO CORPORATION, a
Nevada corporation (“VRCC”; B&BB, CBR, OIM, OIO, ORP, RBG and VRCC are referred to
hereinafter each individually as a “Borrower” and collectively, jointly and severally, as
the “Borrowers”), with reference to the following:
WHEREAS, Borrowers, Lenders, and Agent are parties to that certain Credit Agreement entered
into as of December 20, 2004, as amended by that Joinder Agreement and Amendment dated as of
December 31, 2006 and that First Amendment to Credit Agreement entered into as of October 26, 2007
(as may be further amended, restated, supplemented, or otherwise modified from time to time, the
“Credit Agreement”);
WHEREAS, Borrowers have requested that Lenders make certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions set forth herein, Lenders are willing to make the
amendments requested by Borrowers.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1) Defined Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
2) Amendments to Credit Agreement.
(a) Section 3.4 of the Credit Agreement, Term, is hereby amended and modified by deleting such
clause in its entirety and inserting the following in lieu thereof:
“3.4 Term. This Agreement shall continue in full force and effect
for a term ending on June 30, 2011 (the “Maturity Date”). The
foregoing notwithstanding, the Lender Group, upon the election of the
Required Lenders, shall have the right to terminate its obligations under
this Agreement immediately and without notice upon the occurrence and during
the continuation of an Event of Default.”
(b) Section 6.16(b)(i) of the Credit Agreement, Capital Expenditures, is hereby amended and
modified by deleting such clause in its entirety and inserting the following in lieu thereof:
“(i) Capital Expenditures. Capital Expenditures in any fiscal year in excess of the amount
set forth in the following table for the applicable period:
| Applicable Period | Amount | |
| Fiscal Year 2005 | $13,000,000 | |
| Fiscal Year 2006 | $12,000,000 | |
| Fiscal Year 2007 | $18,000,000 | |
| Fiscal Year 2008 | $8,000,000 | |
| Fiscal Year 2009 | $8,000,000 | |
| Fiscal Year 2010 | $8,000,000 | |
| Fiscal Year 2011 | $8,000,000 |
provided, however, that if during any fiscal year the amount
of all Capital Expenditures permitted to be made is not so made (the
“Unused Amount”), such Unused Amount may be used in the immediately
succeeding fiscal year in an amount equal to the Unused Amount (such amount,
the “Carry-Over Amount”); provided further that (A) in such
succeeding fiscal year, Capital Expenditures shall be deemed to have been
made first from the amount permitted to be made for such fiscal year and,
second, from the Carry-Over Amount, and (B) no Carry-Over Amount may be
carried forward to any fiscal year other than the immediately succeeding
fiscal year.”
(c) Schedule 1.1 of the Credit Agreement, Definitions, is hereby amended and modified by
adding the following definition in proper alphabetical order:
““Second Amendment Closing Date” means June 20, 2008.”
(d) Schedule 1.1 of the Credit Agreement, Definitions, is hereby amended and modified by
restating the following definition in its entirety:
““EBITDA” means, with respect to any fiscal period, Borrowers’
and their Subsidiaries’ combined net earnings (or loss), minus, interest
income, extraordinary gains (net of any extraordinary losses), non-cash
gains taken in accordance with GAAP (excluding any non-cash gain to the
extent that it represents an accrual or reserve for potential cash items in
any future period), and other non-recurring gains or income as determined by
Agent, plus, interest expense, income taxes, depreciation and amortization,
other non-cash charges taken in accordance with GAAP (excluding any non-cash
charge to the extent that it represents an accrual or reserve for potential
cash items in any future period), and other non-recurring losses or expenses
as determined by Agent.”
3) Conditions Precedent to Amendment. The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this Amendment and each and every provision
hereof:
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(a) Agent shall have received this Amendment, duly executed by the parties hereto, and the
same shall be in full force and effect.
(b) Agent shall have received a reaffirmation and consent substantially in the form attached
hereto as Exhibit A, duly executed and delivered by each Guarantor whose name appears on the
signature pages thereof.
(c) Agent shall have received an amendment fee from Borrowers in the amount of $150,000, which
shall be fully earned when due, and non-refundable when paid.
(d) The representations and warranties herein and in the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of the date hereof, as
though made on such date (except to the extent that such representations and warranties relate
solely to an earlier date).
(e) No Default or Event of Default shall have occurred and be continuing on the date hereof,
nor shall result from the consummation of the transactions contemplated herein.
(f) No Material Adverse Change shall have occurred, nor shall result from the consummation of
the transactions contemplated herein.
(g) No injunction, writ, restraining order, or other order of any nature prohibiting, directly
or indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against Borrowers, any Guarantor, Agent or any
Lender.
4) Representations and Warranties. Each Borrower represents and warrants to Lenders
and Agent that (a) the execution, delivery, and performance of this Amendment and of the Credit
Agreement, (i) are within its powers, (ii) have been duly authorized by all necessary action, and
(iii) are not in contravention of any law, rule, or regulation applicable to it, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or Governmental Authority,
or of the terms of its Governing Documents, or of any contract or undertaking to which it is a
party or by which any of its properties may be bound or affected; and (b) this Amendment and the
Credit Agreement are legal, valid and binding obligations of each Borrower, enforceable against
such Borrower in accordance with their respective terms.
5) Choice of Law. The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and
construed in accordance with the laws of the State of New York.
6) Release.
(a) Each Borrower hereby waives, releases, remises and forever discharges Agent and each
Lender, each of their respective Affiliates, and each of the officers, directors, employees, and
agents of each Lender, Agent and their respective Affiliates (collectively, the “Releasees”), from
any and all claims, demands, obligations, liabilities, causes of action, damages, losses, costs and
expenses of any kind or character, known or unknown, past or present, liquidated or unliquidated,
suspected or unsuspected, matured or unmatured, fixed or contingent, which any Borrower now has or
ever had from the beginning of the world, to the date hereof against any such Releasee which
relates, directly or indirectly to the Credit Agreement, any other Loan Document or to any acts or
omissions of any such Releasee in each case to the extent and only to the extent the same may be
based on or related to actions or inactions, omissions, events, conditions, circumstances or
occurrences, occurring from the beginning of the world to the date hereof. As to each and every
claim released hereunder, any Borrower hereby represents that it has received the advice of legal
counsel with regard to the releases contained herein, and having been so advised, each of them
specifically waives the benefit of the provisions of Section 1542 of the Civil Code of
California which provides as follows:
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“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
As to each and every claim released hereunder, each Borrower also waives the benefit of each other
similar provision of applicable federal or state law (including without limitation the laws of the
state of New York), if any, pertaining to general releases after having been advised by their legal
counsel with respect thereto.
(b) Each Borrower, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and
in favor of each Releasee above that it will not xxx (at law, in equity, in any regulatory
proceeding or otherwise) any Releasee on the basis of any claim released, remised and discharged by
such Borrower pursuant to the above release. Each Borrower further agrees that it shall not
dispute the validity or enforceability of the Credit Agreement or any of the other Loan Documents
or any of its obligations thereunder, or the validity, priority, enforceability or the extent of
Agent’s Lien on any item of Collateral under the Credit Agreement or the other Loan Documents. If
any Borrower, or any of its successors, assigns or other legal representations violates the
foregoing covenant, such Borrower, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a
result of such violation, all attorneys fees and costs incurred by such Releasee as a result of
such violation
7) Counterpart Execution. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of
an executed counterpart of this Amendment by telefacsimile or electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Amendment. Any party delivering
an executed counterpart of this Amendment by telefacsimile or electronic mail also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.
8) Effect on Loan Documents.
(a) The Credit Agreement and each of the other Loan Documents shall be and remain in full
force and effect in accordance with their respective terms and hereby are ratified and confirmed in
all respects. The execution, delivery, and performance of this Amendment shall not operate, except
as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent
and Lenders under the Credit Agreement or any other Loan Document. The waivers, consents, and
modifications herein are limited to the specifics hereof, shall not apply with respect to any facts
or occurrences other than those on which the same are based, shall not excuse future non-compliance
with the Loan Documents, and shall not operate as a consent to any further or other matter under
the Loan Documents.
(b) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement
to “this Agreement,” “hereunder,” “herein,” “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement,”
“thereunder,” “therein,” “thereof” or words of like import referring to the Credit Agreement, shall
mean and be a reference to the Credit Agreement, as modified or amended hereby.
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(c) To the extent that any terms and conditions in any of the Loan Documents shall contradict
or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect
the terms and conditions of the Credit Agreement as modified or amended hereby.
(d) This Amendment is a Loan Document.
9) Entire Agreement. This Amendment embodies the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and supersedes any and all
prior or contemporaneous agreements or understandings with respect to the subject matter hereof,
whether express or implied, oral or written.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| B & B B, INC., a Nevada corporation |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| CASABLANCA RESORTS, LLC, a Nevada limited liability company |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| OASIS INTERVAL MANAGEMENT, LLC, a Nevada limited liability company |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| OASIS INTERVAL OWNERSHIP, LLC, a Nevada limited liability company |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| OASIS RECREATIONAL PROPERTIES, INC., a Nevada corporation |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
Second Amendment to Credit Agreement
| RBG, LLC, a Nevada limited liability company |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| VIRGIN RIVER CASINO CORPORATION, a Nevada corporation |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
Second Amendment to Credit Agreement
| XXXXX FARGO FOOTHILL, INC., a California corporation, as Agent and as a Lender |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | VP | |||
Second Amendment to Credit Agreement
Exhibit A
REAFFIRMATION AND CONSENT
Dated as of June 20, 2008
Reference hereby is made to that certain Second Amendment to Credit Agreement, dated as of the
date hereof (the “Amendment”), by and among the lenders identified on the signature pages
thereof (such lenders, together with their respective successors and permitted assigns, are
referred to hereinafter each individually as a “Lender” and collectively as the
“Lenders”), XXXXX FARGO FOOTHILL, INC., a California corporation, as the arranger and
administrative agent for the Lenders (in such capacity, together with its successors and assigns in
such capacity, “Agent”), B & B B, INC., a Nevada corporation (“B&BB”), CASABLANCA
RESORTS, LLC, a Nevada limited liability company (“CBR”), OASIS INTERVAL MANAGEMENT, LLC, a
Nevada limited liability company(“OIM”), OASIS INTERVAL OWNERSHIP, LLC, a Nevada limited
liability company (“OIO”), OASIS RECREATIONAL PROPERTIES, INC., a Nevada corporation
(“ORP”), RBG, LLC, a Nevada limited liability company (“RBG”), and VIRGIN RIVER
CASINO CORPORATION, a Nevada corporation (“VRCC”; B&BB, CBR, OIM, OIO, ORP, RBG and VRCC
are referred to hereinafter each individually as a “Borrower” and collectively, jointly and
severally, as the “Borrowers”). Capitalized terms used herein shall have the meanings
ascribed to them in that certain Credit Agreement entered into as of December 20, 2004, as amended
by that Joinder Agreement and Amendment dated as of December 31, 2006 and that First Amendment to
Credit Agreement entered into as of October 26, 2007 (as may be further amended, restated,
supplemented, or otherwise modified from time to time, the “Credit Agreement”), between
Borrower and Lender. The undersigned hereby (a) represents and warrants that the execution and
delivery of this Reaffirmation and Consent are within its powers, have been duly authorized by all
necessary action, and are not in contravention of any law, rule, or regulation applicable to it, or
any order, judgment, decree, writ, injunction, or award of any arbitrator, court, or Governmental
Authority, or of the terms of its Governing Documents, or of any contract or undertaking to which
it is a party or by which any of its properties may be bound or affected, (b) consents to the
amendment of the Credit Agreement set forth in the Amendment and any waivers granted therein; (c)
acknowledges and reaffirms all obligations owing by it to Lender under any Loan Document to which
it is a party; (d) agrees that each Loan Document to which it is a party is and shall remain in
full force and effect, and (e) ratifies and confirms its consent to any previous amendments of the
Credit Agreement and any previous waivers granted with respect to the Credit Agreement. Although
the undersigned has been informed of the matters set forth herein and has acknowledged and agreed
to same, the undersigned understands that Lender shall have no obligation to inform the undersigned
of such matters in the future or to seek the undersigned’s acknowledgement or agreement to future
amendments, waivers, or modifications, and nothing herein shall create such a duty.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this Reaffirmation and Consent as of the date
first set forth above.
| BLACK GAMING, LLC,
a Nevada limited liability company |
||||
| By: | : /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
| R. BLACK, INC., a Nevada corporation |
||||
| By: | /s/ Xxxx X. XxXxx | |||
| Name: | Xxxx X. XxXxx | |||
| Title: | Chief Accounting Officer | |||
