WAIVER TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
WAIVER TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
AND RESTATED CREDIT AGREEMENT
This WAIVER TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Waiver”), dated as
of November 1, 2011, is made by and among PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the
“Borrower”), BARCLAYS BANK PLC, as the administrative agent (the “Administrative
Agent”), and the Required Lenders (as defined below).
Recitals
A. The Borrower, the Lenders, and the Administrative Agent have entered into that certain
Fourth Amended and Restated Credit Agreement, dated as of August 2, 2011 (the “Credit
Agreement”), among the Borrower, the several banks and other financial institutions or entities
from time to time parties to thereto, as Lenders, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and X.X. Xxxxxx Securities LLC, as joint lead arrangers and joint book runners (in
such capacities, the “Arrangers”), Bank of America, N.A., JPMorgan Chase Bank, N.A., Credit
Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc. and Xxxxx Fargo Bank, N.A.,
as Syndication Agents, UBS Securities LLC and Capital One National Association, as Senior Managing
Agents, and the Administrative Agent. Unless otherwise noted herein, any terms defined in the
Credit Agreement and not defined in this Waiver are used herein as defined in the Credit Agreement
after giving effect to this Waiver.
B. The Borrower has informed the Administrative Agent and the Lenders that (i) the Borrower’s
previously issued financial statements for the three and six month periods ended June 30, 2011,
respectively (the “Financials”), incorrectly accounted for certain awards associated with
the Borrower’s mychoice customer loyalty program; and (ii) (a) as described in that certain letter
dated October 26, 2011 from the Borrower to the Administrative Agent, as a result of the
inaccuracies in the Financials and the effect of such inaccuracies with respect to Sections 4.1(c),
4.7, 4.18 and 6.1(b) of the Credit Agreement one or more Events of Default now exist and are
continuing and (b) additional Defaults or Events of Default may have arisen under the Credit
Agreement and the other Loan Documents as a result of the giving of representations and warranties
which may have been misleading as a result of such inaccuracies, or under cross-default clauses
triggered by the defaults described in clause (ii)(a) above (such Defaults and Events of Default
described in this clause (ii) shall be referred to as the “Existing Defaults”).
C. The Borrower has requested that the Administrative Agent and the Lenders waive the Existing
Defaults.
D. Subject to the terms and conditions set forth herein, the Required Lenders are willing to
waive the Existing Defaults as hereinafter set forth.
Now Therefore, in consideration of the premises and the mutual agreements set forth herein,
the Borrower, the Administrative Agent and the Required Lenders agree as follows:
Section 1. Waiver of Existing Defaults. Subject to the terms and conditions herein,
upon the effectiveness of this Waiver, the Administrative Agent and the Lenders signatory hereto
hereby waive the Existing Defaults provided however that such waiver shall in no way constitute a
waiver of any other Default or Event of Default which may have occurred but which is not
specifically referenced as the “Existing Defaults,” nor shall this waiver obligate the
Administrative Agent and the Lenders to provide any further waiver of any other Default or Event of
Default under the Credit Agreement. Other than in respect of the Existing Defaults, this waiver
shall not preclude the future exercise of any right, power, or
privilege available to the Administrative Agent or the Lenders whether under the Credit
Agreement, the other Loan Documents or otherwise.
Section 2. Representations and Warranties of the Borrower. In order to induce the Required
Lenders to enter into this Waiver, the Borrower represents and warrants to the Lenders that:
2.1 Organizational Power; Authorization; Enforceable Obligations. The Borrower
has the organizational power and authority, and the legal right, to make, deliver and
perform this Waiver and each Subsidiary Guarantor has the organizational power and
authority, and the legal right, to make, deliver and perform the Consent of Guarantors in
the form of Exhibit A attached hereto (the “Consent”). Each Loan Party has
taken all necessary corporate or other action to authorize the execution, delivery, and
performance of this Waiver and the Consent, as applicable, and the performance of the Loan
Documents to which it is a party as modified by this Waiver. This Waiver and the Consent
have each been duly executed and delivered on behalf of each Loan Party that is a party
hereto. This Waiver, the Consent, and the Loan Documents, as amended by this Waiver,
constitute a legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in equity or at
law).
2.2 No Legal Bar. The execution, delivery and performance of this Waiver, the
Consent and the Loan Documents, as modified by this Waiver, will not violate in any material
respect any Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition of any Lien on
any of their respective properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security Documents or
permitted thereunder). No Requirement of Law or Contractual Obligation applicable to the
Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
2.3 No Default. After giving effect to this Waiver, no event has occurred, is
continuing, or will result from the execution and delivery of this Waiver or the Consent,
that would constitute a Default or an Event of Default.
2.4 Representations and Warranties. After giving effect to this Waiver, each
of the representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects as if made on and as of the
Waiver Effective Date (except for those representations and warranties that speak as of a
specific date, in which case such representation or warranty shall be true and correct in
all material respects as of such specific date).
Section 3. Conditions to Effectiveness of this Waiver. This Waiver, and the waivers contained
herein, shall be effective on the date (such date, the “Waiver Effective Date”) when each
of the following conditions has been satisfied:
3.1 Execution of Waiver. The Borrower and the Required Lenders shall have
executed and delivered this Waiver.
3.2 Execution of Subsidiary Guarantor Consent. Each of the Guarantors shall
have executed and delivered the Consent of Guarantors in the form of Exhibit A
attached hereto.
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3.3 Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the Waiver Effective Date as if made on and as of such date
after giving effect to this Waiver.
3.4 No Default. After giving effect to this Waiver and the extension of credit
to be made on such date, if any, and the application of the proceeds of such extension of
credit, no Default or Event of Default shall have occurred and be continuing on the Waiver
Effective Date.
3.5 Approvals. All governmental and third party approvals necessary or
advisable in connection with the transactions contemplated by this Waiver shall have been
obtained and be in full force and effect or otherwise applied for or requested (and the
Borrower has no reason to believe that they will not be obtained in due course), and all
applicable waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose adverse
conditions on the amendments contemplated hereby.
3.6 Revised Financial Statements. The Borrower shall have delivered the
following to the Lenders:
(a) Revised financial statements for the three and six month periods ended June
30, 2011, required to be delivered pursuant to Section 6.1(b) of the Credit
Agreement, along with the deliveries required pursuant to Section 6.2(b) of
the Credit Agreement concurrently with the delivery of such revised financial
statements; and
(b) A copy of any filings made with the SEC with respect to such revised
financial statements on or prior to the Waiver Effective Date.
Section 4. Effect Of Waiver; Ratification. This Waiver is a Loan Document. From and after
the date on which this Waiver becomes effective, all references in the Loan Documents to the
“Credit Agreement” shall mean the Credit Agreement as modified hereby. Except as expressly waived
herein, the Credit Agreement and the other Loan Documents, including the Liens granted thereunder,
shall remain in full force and effect, and all terms and provisions thereof are hereby ratified and
confirmed.
Section 5. Borrower Confirmation. The Borrower confirms that as modified hereby, each of the
Loan Documents is in full force and effect, and that none of the Loan Parties has any defenses,
setoffs or counterclaims to its Obligations.
Section 6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
Section 7. No Waiver. Except as expressly set forth herein, the execution, delivery and
effectiveness of this Waiver does not constitute a waiver of any Default or Event of Default, amend
or modify any provision of any Loan Document or constitute a course of dealing or any other basis
for altering the Obligations of any Loan Party.
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Section 8. Integration. The Credit Agreement and the other Loan Documents (as modified by
this Waiver) represents the entire agreement of the parties with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by the Administrative
Agent, the Lead Arranger or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein.
Section 9. Captions. The catchlines and captions herein are intended solely for convenience
of reference and shall not be used to interpret or construe the provisions hereof.
Section 10. Counterparts. This Waiver may be executed by one or more of the parties to this
Waiver on any number of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed signature page of this
Waiver shall be effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Waiver signed by all the parties shall be lodged with the Administrative Agent.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the undersigned as duly executed this Waiver as of the date set
forth above.
| BORROWER: | PINNACLE ENTERTAINMENT, INC., a Delaware corporation |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
ADMINISTRATIVE AGENT:
| BARCLAYS BANK PLC |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director | |||
Waiver Signature Page
| LENDER: BANK OF AMERICA, N.A. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
Waiver Signature Page
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| LENDER: JPMorgan Chase Bank, N.A. |
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| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | Executive Director | |||
Waiver Signature Page
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| LENDER: Barclays Bank PLC |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director | |||
Waiver Signature Page
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| LENDER: | ||||||
| Credit Agricole Corporate and Investment Bank | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||
| Title: | Managing Director | |||||
Waiver Signature Page
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| LENDER: DEUTSCHE BANK TRUST COMPANY AMERICAS |
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| By: | /s/ Xxxx Xxx Xxxxx | |||
| Name: | Xxxx Xxx Xxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Director | |||
Waiver Signature Page
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| LENDER: | ||||||||
| Xxxxx Fargo Bank | ||||||||
| By: | /s/ Xxxx Xxxxx | |||||||
| Name: | Xxxx Xxxxx | |||||||
| Title: | Managing Director | |||||||
Waiver Signature Page
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| LENDER: | ||||||||
| Capital One, N.A. | ||||||||
| By: | /s/ Xxxx Wales | |||||||
| Name: | Xxxx Wales | |||||||
| Title: | Senior Vice President | |||||||
Waiver Signature Page
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| LENDER: | ||||||
| UBS LOAN FINANCE LLC | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Associate Director | |||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Associate Director | |||||
Waiver Signature Page
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Exhibit A
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Borrower under the Credit
Agreement and hereby (a) consents to the foregoing Waiver, (b) acknowledges that notwithstanding
the execution and delivery of the foregoing Waiver, the obligations of each of the undersigned
Guarantors are not impaired or affected and the Guaranties continue in full force and effect and
(c) ratifies its Guaranty and each of the Loan Documents to which it is a party.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this CONSENT OF
GUARANTORS as of the date set forth above.
| BILOXI CASINO CORP., a Mississippi corporation CASINO MAGIC CORP., a Minnesota corporation ST. LOUIS CASINO CORP., a Missouri corporation |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Chief Financial Officer | |||||||||||
| CASINO ONE CORPORATION, a Mississippi corporation PNK (BOSSIER CITY), INC., a Louisiana corporation |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Treasurer | |||||||||||
| BELTERRA RESORT INDIANA, LLC, a Nevada limited liability company |
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| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| BOOMTOWN, LLC, a Delaware limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
| PNK (ES), LLC, a Delaware limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (ST. LOUIS RE), LLC, a Delaware limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (CHILE 1), LLC, a Delaware limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc, its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (CHILE 2), LLC, a Delaware limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc, its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
| XXXX HAUS, LLC, an Indiana limited liability company | ||||||||||||
| By: | Belterra Resort Indiana, LLC, its sole member | |||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (LAKE XXXXXXX), L.L.C., a Louisiana limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member and manager | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (RENO), LLC, a Nevada limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| LOUISIANA-I GAMING, a Louisiana partnership in Commendam | ||||||||||||
| By: | Boomtown, LLC, its general partner | |||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: Xxxxxx X. Xxxxxxxxxx | ||||||||||||
| Title: Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
| PNK (BATON ROUGE) PARTNERSHIP, a Louisiana partnership | ||||||||||||||
| By: | PNK Development 8, LLC, its Managing Partner | |||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK Development 7, LLC, a Delaware limited liability company | ||||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK Development 8, LLC, a Delaware limited liability company | ||||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK Development 9, LLC, a Delaware limited liability company | ||||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
| PNK (OHIO), LLC, an Ohio limited liability company | ||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (OHIO) II, LLC, an Ohio limited liability company | ||||||||||||
| By: | PNK (Ohio), LLC, its sole member | |||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (OHIO) III, LLC, an Ohio limited liability company | ||||||||||||
| By: | PNK (Ohio), LLC, its sole member | |||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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Waiver to Fourth Amended and Restated Credit Agreement
| PNK (SCB), L.L.C., a Louisiana limited liability company | ||||||||||||||
| By: | PNK Development 7, LLC, its sole member | |||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| PNK (STLH), LLC, a Delaware limited liability company | ||||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| President Riverboat Casino-Missouri, Inc., a Missouri corporation | ||||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Chief Financial Officer and Treasurer | |||||||||||||
| PNK (River City), LLC, a Missouri limited liability company | ||||||||||||||
| By: | Pinnacle Entertainment, Inc., its sole member | |||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer |
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| YANKTON INVESTMENTS, LLC, a Nevada limited liability company | ||||||||||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||||||||||
| Name: | Xxxx X. Xxxxxxx | |||||||||||||
| Title: | Manager | |||||||||||||
Waiver to Fourth Amended and Restated Credit Agreement
