SECOND AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO REVOLVING CREDIT NOTE
Exhibit
10.01
SECOND AMENDMENT
TO
CREDIT AGREEMENT
AND
AMENDMENT TO REVOLVING
CREDIT NOTE
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO REVOLVING CREDIT NOTE
("Second Amendment") is made and entered into as of the 14th day of April, 2008,
by and among GOLDEN ROAD MOTOR INN, INC., a Nevada corporation (the "Borrower")
and MONARCH CASINO & RESORT, INC., a Nevada corporation ("Guarantor"), XXXXX
FARGO BANK, National Association, as the lender (the "Lender"), XXXXX FARGO
BANK, National Association, as the swingline lender (herein in such capacity,
together with its successors and assigns, the "Swingline Lender"), XXXXX FARGO
BANK, National Association, as the issuer of letters of credit (in such
capacity, together with its successors and assigns, the "L/C Issuer"), and XXXXX
FARGO BANK, National Association, as administrative and collateral agent for the
Lenders, Swingline Lender and L/C Issuer (herein, in such capacity, called the
"Agent Bank" and, together with the Lenders, Swingline Lender and L/C Issuer,
collectively referred to as the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrower,
Guarantor and the Banks therein named entered into a Credit Agreement dated as
of February 20, 2004 (the "Original Credit Agreement") for the purpose of
establishing a revolving line of credit in the initial principal amount of Fifty
Million Dollars ($50,000,000.00), including a subfacility for the funding of
swingline advances up to the maximum aggregate amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00) at any time outstanding and a
subfacility for the issuance of letters of credit up to the maximum aggregate
amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00). Concurrently with the execution of the Original
Credit Agreement, Borrower executed and delivered the Revolving Credit Note in
the original principal sum of Fifty Million Dollars ($50,000,000.00) payable to
the order of Agent Bank on behalf of the Lenders (the "Existing Revolving Credit
Note").
B. Borrower,
Guarantor and the Banks therein named entered into a First Amendment to Credit
Agreement dated as of February 8, 2007 (the "First Amendment" and together
with the Original Credit Agreement, collectively, the "Existing Credit
Agreement") for the purpose of, amongst other modifications, decreasing the
Aggregate Commitment from Fifty Million Dollars ($50,000,000.00) to Five Million
Dollars ($5,000,000.00).
C. For
the purpose of this Second Amendment, all capitalized words and terms not
otherwise defined herein shall have the respective meanings and be construed
herein as provided in Section 1.01 of the Existing Credit Agreement and any
reference to a provision of the Existing Credit Agreement shall be deemed to
incorporate that provision as a part hereof, in the same manner and with the
same effect as if the same were fully set forth herein.
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D. Borrower
desires to: (i) amend the Existing Credit Agreement for the purpose of
increasing the Aggregate Commitment from its present level of Five Million
Dollars ($5,000,000.00) to Fifty Million Dollars ($50,000,000.00), and (ii)
amend the Existing Credit Agreement and Existing Revolving Credit Note for the
purpose of extending the Maturity Date from February 23, 2009 to
April 18, 2009.
E. Subject
to the terms, provisions and conditions hereinafter set forth, Lender has agreed
to the amendments, revisions and modifications set forth in this Second
Amendment.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree to the amendments and modifications to the Existing
Credit Agreement as specifically hereinafter provided as follows:
1. Definitions. As
of the Second Amendment Effective Date, Section 1.01 of the Existing Credit
Agreement entitled "Definitions" shall be and is hereby amended to include the
following definitions. Those terms which are currently defined by
Section 1.01 of the Existing Credit Agreement and which are also defined
below shall be superseded and restated by the applicable definition set
forth below:
"Aggregate
Commitment" shall mean, as of the Second Amendment Effective Date, reference to
the aggregate amount committed by Lender for advance to or on behalf of the
Borrower as Borrowings under the Credit Facility up to the maximum principal
amount of Fifty Million Dollars ($50,000,000.00), as may be reduced from time to
time by (i) Voluntary Permanent Reductions and/or (ii) Mandatory
Commitment Reductions.
"Aggregate
Commitment Reduction Schedule" shall mean the Aggregate Commitment Reduction
Schedule marked "Schedule 2.01(c)", affixed to the Second Amendment and by this
reference incorporated herein and made a part hereof, which revised
Schedule 2.01(c) shall fully supersede and restate Schedule 2.01(c)
attached to the Existing Credit Agreement.
"Credit
Agreement" shall mean the Existing Credit Agreement as amended by the Second
Amendment, together with all Schedules, Exhibits and other attachments thereto,
as it may be further amended, modified, extended, renewed or restated from time
to time.
"Existing
Credit Agreement" shall have the meaning set forth in Recital Paragraph A
of the Second Amendment.
"Existing
Revolving Credit Note" shall have the meaning set forth in Recital
Paragraph A of the Second Amendment.
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"Maturity
Date" shall mean April 18, 2009.
"Revolving
Credit Note" shall mean the Existing Revolving Credit Note as amended by this
Second Amendment.
"Schedule
of Lenders' Proportions in Credit Facility" shall mean, as of the Second
Amendment Effective Date, the Schedule of Lenders' Proportions in Credit
Facility, a copy of which is marked "Schedule 2.01(a)", affixed to the
Second Amendment and by this reference incorporated herein and made a part
hereof, setting forth the respective Syndication Interest and maximum amount to
be funded under the Credit Facility by Lender, as the same may be amended,
modified or restated from time to time in connection with an Assignment and
Assumption Agreement, which revised Schedule 2.01(a) shall fully restate
and supersede Schedule 2.01(a) attached to the Existing Credit
Agreement.
"Second
Amendment" shall have the meaning set forth in the Preamble of the Second
Amendment to Credit Agreement.
"Second
Amendment Effective Date" shall mean the date upon which each of the conditions
precedent set forth in Paragraph 6 of the Second Amendment has been fully
satisfied.
2. Extension of Maturity
Date. As of the Second Amendment Effective Date, the
definition of "Maturity Date", as set forth in the Existing Credit Agreement and
Existing Revolving Credit Note, shall be and is hereby modified as set forth in
the definition of Maturity Date contained in the Second Amendment.
3. Commitment
Increase. From and after the Second Amendment Effective Date,
the Aggregate Commitment shall be and is hereby increased to Fifty Million
Dollars ($50,000,000.00).
4. Restatement of
Section 2.01(a). As of the Second Amendment Effective
Date, Section 2.01(a) of the Existing Credit Agreement shall be and is
hereby fully amended and restated in its entirety as follows:
"a. Subject
to the conditions and upon the terms hereinafter set forth and in accordance
with the terms and provisions of the Revolving Credit Note, on and after the
Second Amendment Effective Date Lenders severally agree in the proportions set
forth on the Schedule of Lenders' Proportions in Credit Facility to lend and
advance Borrowings to Borrower, up to the Aggregate Commitment in the amount of
Fifty Million Dollars ($50,000,000.00), in such amounts as Borrower may request
by Notice of Borrowing duly executed by an Authorized Officer and delivered to
Agent Bank from time to time as provided in Section 2.03. All
outstanding principal and accrued and unpaid interest shall be fully paid on the
Maturity Date."
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5. On
and after the Second Amendment Effective Date the definitions of "Aggregate
Commitment", "Aggregate Commitment Reduction Schedule", "Maturity Date",
"Revolving Credit Note", and "Schedule of Lenders' Proportions in Credit
Facility" shall be deemed fully amended and restated by the definitions set
forth in the Second Amendment.
6. Conditions Precedent to
Second Amendment Effective Date. The occurrence of the Second
Amendment Effective Date is subject to Agent Bank having received the following
documents and payments, in each case in a form and substance reasonably
satisfactory to Agent Bank, and the occurrence of each other condition precedent
set forth below on or before April 18, 2008:
Due
execution by Borrower and Banks of two (2) duplicate originals of this Second
Amendment;
1.1.1. Payment by
Borrower to Agent Bank for the account of the Lender of a non-refundable fee
(the "Amendment Fee") in the amount of Fifty Thousand Dollars
($50,000.00);
1.1.2. Reimbursement
to Agent Bank by Borrower for all reasonable fees and out-of-pocket expenses
incurred by Agent Bank in connection with the Second Amendment, but not limited
to, reasonable attorneys' fees of Xxxxxxxxx & Xxxxxx, LLC and all other like
expenses remaining unpaid as of the Second Amendment Effective Date;
and
1.1.3. Such other
documents, instruments or conditions as may be reasonably required by Agent
Bank.
7. Representations of
Borrower. Borrower hereby represents to the Banks, which
representations shall survive the Second Amendment Effective Date and be deemed
incorporated into Article IV of the Credit Agreement, that:
The
representations and warranties contained in Article IV of the Existing Credit
Agreement and contained in each of the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date, which shall be true and correct in all material respects as of such date)
are true and correct on and as of the Second Amendment Effective Date in all
material respects as though such representations and warranties had been made on
and as of the Second Amendment Effective Date, except to the extent that such
representations and warranties are not true and correct as a result of a change
which is permitted by the Credit Agreement or by any other Loan Document or
which has been otherwise consented to by Agent Bank or, where applicable, the
Requisite Lenders;
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1.1.4. Since the
date of the most recent financial statements referred to in Section 5.08 of the
Existing Credit Agreement, no Material Adverse Change has occurred and no event
or circumstance which could reasonably be expected to result in a Material
Adverse Change has occurred;
1.1.5. No event has
occurred and is continuing which constitutes a Default or Event of Default under
the terms of the Credit Agreement; and
1.1.6. The
execution, delivery and performance of this Second Amendment has been duly
authorized by all necessary action of Borrower and this Second Amendment
constitutes the valid, binding and enforceable obligation of
Borrower.
8. Consent to Second Amendment
and Affirmation and Ratification of Guaranty. Guarantor joins
in the execution of this Second Amendment for the purpose of evidencing its
consent to the terms, covenants, provisions and conditions herein contained for
the purpose of ratifying and affirming its obligations under the Guaranty for
the guaranty of the full and prompt payment and performance of all Indebtedness
and Obligations under the Credit Facility, as modified and amended under this
Second Amendment.
9. Incorporation by
Reference. This Second Amendment shall be and is hereby
incorporated in and forms a part of the Existing Credit Agreement.
10. Governing
Law. This Second Amendment to Credit Agreement shall be
governed by the internal laws of the State of Nevada without reference to
conflicts of laws principles.
11. Counterparts. This
Second Amendment may be executed in any number of separate counterparts with the
same effect as if the signatures hereto and hereby were upon the same
instrument. All such counterparts shall together constitute one and
the same document.
12. Continuance of Terms and
Provisions. All of the terms and provisions of the Credit
Agreement shall remain unchanged except as specifically modified
herein.
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13. Replacement Schedules
Attached. The following replacement Schedules are attached
hereto and incorporated herein and made a part of the Credit Agreement as
follows:
Schedule
2.01(a) - Schedule of Lenders'
Proportions in Credit Facility as of Second Amendment Effective
Date
Schedule
2.01(c) - Aggregate Commitment
Reduction Schedule
Schedule
2.01(a)
SCHEDULE OF LENDERS'
PROPORTIONS IN CREDIT FACILITY
AS OF SECOND AMENDMENT
EFFECTIVE DATE
|
NAME
OF LENDER
|
MAXIMUM
AMOUNT OF PRINCIPAL
|
PROPORTIONATE
SYNDICATION INTEREST IN CREDIT FACILITY
|
|
Xxxxx
Fargo Bank, National Association
|
$50,000,000.00
|
100.0%
|
Schedule
2.01(c)
AGGREGATE COMMITMENT
REDUCTION SCHEDULE
AS OF SECOND AMENEMDN
EFFECTIVE DATE
|
REDUCTION
DATE
|
SCHEDULED
REDUCTION
|
|
Second
Amendment Effective Date
|
-0-
|
|
April
18, 2009
(Maturity
Date)
|
Entire
unpaid principal balance
|
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IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Credit
Agreement to be executed as of the day and year first above
written.
|
BORROWER:
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||
|
GOLDEN
ROAD MOTOR INN, INC.,
|
||
|
a
Nevada corporation
|
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By
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/s/ Xxxx
Xxxxxx
|
|
|
Xxxx
Xxxxxx,
|
||
|
Chief
Executive Officer
|
||
|
MCRI:
|
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MONARCH
CASINO & RESORT, INC.,
|
||
|
a
Nevada corporation
|
||
|
By
|
/s/ Xxxx
Xxxxxx
|
|
|
Xxxx
Xxxxxx,
|
||
|
Chief
Executive Officer
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||
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BANKS:
|
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XXXXX
FARGO BANK,
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|
National
Association,
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Agent
Bank, Lender, Swingline Lender
|
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and
L/C Issuer
|
||
|
By
|
/s/ Xxxxxxx
Xxxxxx
|
|
|
Xxxxxxx
Xxxxxx,
|
||
|
Senior
Vice President
|
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