FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into as of October 26, 2007, 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 (“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”; BB&B, 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, 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
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:
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Fiscal
Year 2005
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Fiscal
Year 2006
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Fiscal
Year 2007
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Fiscal
Year 2008
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$13,000,000
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$12,000,000
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$18,000,000
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$19,000,000
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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.”
(b) 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 extraordinary gains (net of any
extraordinary losses) and interest income, plus interest expense,
income taxes, depreciation and amortization and non-cash, non-operating
write-offs for such period, in each case, as determined in accordance with
GAAP.”
(c) Schedules
5.2 and 5.3 to the Credit Agreement are hereby amended and restated
as of the date hereof by deleting each such schedule in its entirety and
inserting in lieu thereof the schedules attached hereto.
(d) Exhibit
C-1 to the Credit Agreement is hereby amended and restated as of the date
hereof by deleting such exhibit in its entirety and inserting in lieu thereof
the exhibit attached hereto.
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:
(a) Agent
shall have received this Amendment, duly executed by the parties hereto,
and the
same shall be in full force and effect.
(b) 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).
(c) 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.
(d) 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. 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.
7. 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 Loan
Agreement to “this Agreement,” “hereunder,” “herein,” “hereof” or words of like
import referring to the Credit Agreement, and each reference in the other
Credit
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.
(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.
8. 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]
IN
WITNESS
WHEREOF, the parties have entered into this Amendment as of the date first
above
written.
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B
& B B, INC.,
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a
Nevada corporation
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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CASABLANCA
RESORTS, LLC,
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a
Nevada limited liability company
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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OASIS
INTERVAL MANAGEMENT, LLC,
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a
Nevada limited liability company
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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OASIS
INTERVAL OWNERSHIP, LLC,
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a
Nevada limited liability company
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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OASIS
RECREATIONAL PROPERTIES, INC.,
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a
Nevada corporation
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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RBG,
LLC,
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a
Nevada limited liability company
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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VIRGIN
RIVER CASINO CORPORATION,
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a
Nevada corporation
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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| Title: | ||
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XXXXX
FARGO FOOTHILL, INC.,
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a
California corporation, as Agent and as a Lender
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By:
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/s/
Xxxxx Xxxxx
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| Title: | VP | |
Schedule
5.2
Provide
Agent (and if so requested by
Agent, with copies for each Lender) with each of the documents set forth
below
at the following times in form satisfactory to Agent:
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Monthly
(within 30 days of each month, with a 50 day grace period at quarter
end
and 50 day grace period at fiscal year end)
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(a)
a detailed calculation of the Borrowing Base, including a schedule
of
EBITDA for the preceding twelve (12) month period having ended
on the last
day of such month, accompanied by such reporting detail and documentation
as may be reasonably requested by Agent.
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Quarterly
(within 50 days of quarter end)
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(b)
a detailed report including (i) cage-cash on hand as of the end
of the
reporting period; (ii) “handle revenues” and “win revenues”; (iii)
comparisons of such results for the period covered in such report
with the
corresponding results for such prior periods as Agent may reasonably
request; and (iv) such other information relative to gaming operations
as
Agent may reasonably request, and
(c)
the minimum bankroll requirement worksheet as required by the Nevada
Gaming Authorities of Borrowers.
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Within
5 days after any occurrence
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(d)
copies of each report in respect of any Borrower’s business issued by a
Nevada Gaming Authority (including any ‘Exception Report’ or other audit
finding issued by any Nevada Gaming Authority in respect of any
audit of
any Borrower performed by such Nevada Gaming Authority) or made
by a
Borrower to any Nevada Gaming Authority.
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Upon
request by Agent
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(e)
such other reports as to the Collateral or the financial condition
of the
Borrowers as Agent may reasonably request from time to time.
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Schedule
5.3
Deliver
to Agent, with copies to each
Lender, each of the financial statements, reports, or other items set forth
set
forth below at the following times in form satisfactory to Agent:
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as
soon as available, but in any event within 30 days (50 days in
the case of
a month that is the end of Borrowers’ fiscal quarters) after the end of
each month during each of Borrowers’ fiscal years
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(a) an
unaudited combined balance sheet and an unaudited combined and
combining
income statement covering Borrowers’ operations during such period,
and
(b)
a Compliance Certificate certifying that Borrowers have timely
filed all
tax returns required to be filed by Borrowers, and have timely
paid all
taxes on Borrowers and their respective properties, assets, income,
and franchises (including Real Property taxes, gaming taxes, and
payroll
taxes), other than any such taxes that are the subject of a Permitted
Protest.
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as
soon as available, but in any event within 50 days after the end
of each
fiscal quarter
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(c)
an unaudited combined statement of cash flow covering Borrowers’
operations during such period.
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as
soon as available, but in any event within 95 days after the end
of each
of Borrowers’ fiscal years
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(d)
combined and combining financial statements of Borrowers and their
Subsidiaries for each such fiscal year, audited by independent
certified
public accountants reasonably acceptable to Agent and certified,
without any qualifications, by such accountants to have been prepared
in
accordance with GAAP (such audited financial statements to include
a
balance sheet, income statement, and statement of cash flow and,
if
prepared, such accountants’ letter to management), and
(e)
a Compliance Certificate signed by the chief executive officer
or chief
financial officer of Borrowers reconfirming the completeness
and accuracy of the representations and warranties set forth in
Section 4.
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as
soon as available, but in any event at the start of Borrowers’ fiscal
years,
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(f)
copies of Borrowers’ Projections, in form and substance (including as to
scope and underlying assumptions) satisfactory to Agent, in its
Permitted
Discretion, for forthcoming fiscal year 2008, quarter by quarter,
certified by the chief financial officer as being such officer’s good
faith estimate of the financial performance of Borrowers during the
period covered thereby.
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As
soon as a Borrower has knowledge thereof
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(g)
notice of any proposed legislation or administrative action specifically
affecting Borrowers’ gaming activities introduced before any Governmental
Authority.
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promptly,
but in any event within 5 days after a Borrower has knowledge of
any event
or condition that constitutes a Default or an Event of
Default,
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(h)
notice of such event or condition and a statement of the curative
action
that Borrowers propose to take with respect
thereto.
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promptly
after the commencement thereof, but in any event within 5 days
after the
service of process with respect thereto on any Borrower or any
Subsidiary
of a Borrower,
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(i)
notice of all actions, suits, or proceedings brought by or against
Borrowers or any Subsidiary of Borrowers before any Governmental
Authority
which reasonably could be expected to result in a Material Adverse
Change.
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upon
the request of Agent,
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(j)
any other information reasonably requested relating to the financial
condition of Borrowers or their Subsidiaries, and
(k)
satisfactory evidence of payment of applicable excise taxes in
each
jurisdictions in which (i) such Borrower conducts business or
is required
to pay any such excise tax, (ii) where such Borrower’s failure to
pay any such applicable excise tax would result in a Lien on
the property
or assets of such Borrower, or (iii) where such Borrower’s failure to pay
any such applicable excise tax reasonably could be expected to
result in a
Material Adverse Change
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EXHIBIT
C-1
FORM
OF COMPLIANCE CERTIFICATE
[on
Administrative Borrower’s letterhead]
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To:
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Xxxxx
Fargo Foothill, Inc.
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0000
Xxxxxxxx Xxxxxx
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Xxxxx
0000 Xxxx
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Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
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Attn:
Specialty Finance Manager
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Re: Compliance
Certificate
dated _______________________
Ladies
and
Gentlemen:
Reference
is made to that certain CREDIT AGREEMENT (the “Credit
Agreement”) dated as of December 20, 2004, 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 (“ORC”), RBG, LLC, a Nevada
limited liability company (“RBG”), and VIRGIN RIVER CASINO CORPORATION, a
Nevada corporation (“VRCC”; B&BB, CBR, OIM, OIO, ORC, RBG, and VRCC,
are referred to hereinafter each individually as a “Borrower”, and
individually and collectively, jointly and severally, as the
“Borrowers”). Capitalized terms used in this Compliance
Certificate have the meanings set forth in the Credit Agreement unless
specifically defined herein.
Pursuant
to Schedule 5.3 of the Credit Agreement, the undersigned officer of
Administrative Borrower hereby certifies that:
1. The
financial information of Borrowers and their Subsidiaries furnished in
Schedule 1 attached hereto, has been prepared in accordance with GAAP
(except for year-end adjustments and the lack of footnotes), and fairly presents
in all material respects the financial condition of Borrowers and their
Subsidiaries.
2. Such
officer has reviewed the terms of the Credit Agreement and has made, or caused
to be made under his/her supervision, a review in reasonable detail of the
transactions and condition of Borrowers and their Subsidiaries during the
accounting period covered by the financial statements delivered pursuant
to
Schedule 5.3 of the Credit Agreement.
3. Borrowers
have timely filed all tax returns required to be filed by Borrowers, and
have
timely paid all taxes on Borrowers and their respective properties, assets,
income, and franchises (including Real Property taxes, gaming taxes, and
payroll
taxes), other than any such taxes that are the subject of a Permitted
Protest.
4. Such
review has not disclosed the existence on and as of the date hereof, and
the
undersigned does not have knowledge of the existence as of the date hereof,
of
any event or condition that constitutes a Default or Event of Default, except
for such conditions or events listed on Schedule 2 attached hereto,
specifying the nature and period of existence thereof and what action Borrower
and their Subsidiaries have taken, are taking, or propose to take with respect
thereto.
5. The
representations and warranties of Borrowers and their Subsidiaries set forth
in
the Credit Agreement and the other Loan Documents are true and correct in
all
material respects on and as of the date hereof (except to the extent they
relate
to a specified date), except as set forth on Schedule 3 attached
hereto.
6. Borrowers
and their Subsidiaries are in compliance with the applicable covenants contained
in Section 6.16 of the Credit Agreement as demonstrated on Schedule
4 hereof.
[Signature
Pages Follow.]
IN
WITNESS
WHEREOF, this Compliance Certificate is executed by the undersigned this
_____
day of _______________, ________.
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B
& B B, INC., as Administrative Borrower
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By:
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Name:
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| Title: | ||
SCHEDULE
1
Financial
Information
SCHEDULE
2
Default
or Event of Default
SCHEDULE
3
Representations
and Warranties
SCHEDULE
4
Financial
Covenants
1. Minimum
EBITDA.
Borrowers’
and their Subsidiaries’ EBITDA, measured on a month-end basis, for the month
period ending _________, ________ is $______________, which amount
[is/is not] greater than or equal to the amount set forth in
Section 6.16(a)(i) of the Credit Agreement for the corresponding
period.
2. Capital
Expenditures.
Borrowers’
and their Subsidiaries’ Capital Expenditures from the beginning of Borrowers’
most recent Fiscal Year to the date hereof is ____________, which [is/is
not] greater than or equal to the amount set forth in Section
6.16(b)(i) of the Credit Agreement.
