Exhibit 10.1
SECOND AMENDMENT TO FORBEARANCE, CONSENT AND
THIRD
AMENDMENT TO CREDIT AGREEMENT
This
Second Amendment to Forbearance, Consent and Third Amendment to
Credit Agreement (this “ Agreement ”) is dated
as of February 2, 2009, 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 ”), WELLS
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 ”), 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 ”), BLACK GAMING, LLC , a Nevada
limited liability company (“ Black Gaming ”) and
R. BLACK, INC. , a Nevada corporation (together with Black
Gaming, collectively, jointly and severally, the “
Guarantors ”) 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, that certain First Amendment to Credit
Agreement entered into as of October 26, 2007, that certain
Second Amendment to Credit Agreement entered into as of
June 20, 2008, that certain Forbearance, Consent and Third
Amendment to Credit Agreement dated as of November 3, 2008,
(as amended by that certain First Amendment to Forbearance, Consent
and Third Amendment to Credit Agreement dated as of
January 15, 2009 and as may be further amended, restated,
supplemented, or otherwise modified from time to time the “
Forbearance Agreement ”), and as may be further
amended, restated, supplemented, or otherwise modified from time to
time, the “ Credit Agreement ”);
WHEREAS , Borrowers have requested that Agent and
Lenders make certain amendments to the Forbearance
Agreement;
WHEREAS , subject to the terms and conditions set forth
herein, Lenders are willing to make the amendments requested by
Borrowers.
NOW
THEREFORE , for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms . All capitalized
terms used herein (including, without limitation, in the preamble
and recitals hereof) without definition shall have the meanings
ascribed thereto in the Credit Agreement, or as applicable, the
Forbearance Agreement.
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2. Amendments to Forbearance
Agreement.
2.1
Section 2.1 of the Forbearance Agreement, Forbearance ,
is hereby amended and modified by deleting the date
“February 2, 2009” in clause (iii) of
Section 2.1 of the Forbearance Agreement and replacing such
date with “February 12, 2009”.
2.2
Section 3 of the Forbearance Agreement, Consent , is
hereby amended and modified by deleting such Section in its
entirety and substituting the following in lieu thereof:
“ Consent .
Notwithstanding anything to the contrary contained in
Section 6.3(d) of the Credit Agreement, the Lenders hereby
consent to the Borrowers suspending casino operations at the
Suspended Location at any time during the period beginning on the
Forbearance Effective Date (as defined below) and ending on the
Forbearance Termination Date (the “ Forbearance Period
”), so long as the Borrowers do not sell, transfer or remove
any Collateral or other personal property (including any Gaming
Equipment) from the Suspended Location or make any material
alterations to the Suspended Location; provided, however, that
during the Forbearance period Borrowers may transfer the slot
machines and video poker machines identified on
Schedule 1 hereto from the Suspended Location to one of
the Borrowers’ operating casino locations.”
2.3
Schedule 1 attached hereto is hereby added as
Schedule 1 to the Forbearance Agreement, Transferred
Gaming Equipment.
3. Acknowledgment of Borrowers and
Guarantors . As a material inducement to the execution by Agent
and the undersigned Lenders of this Agreement, each Borrower and
Guarantor hereby acknowledge, confirm and agree as
follows:
(a) As of February 2, 2009, the total
aggregate outstanding principal amount of the Obligations under the
Credit Agreement with respect to the Advances is $14,963,713.56,
and all Obligations owing by Borrowers, together with interest
accrued and accruing thereon, and all fees, costs, expenses and
other charges now or hereafter payable by such Borrower to Agent
and each Lender, are unconditionally owing by Borrowers to Agent
and each Lender, without offset, defense, withholding, counterclaim
or deduction of any kind, nature or description
whatsoever.
(b) Agent, for the benefit of the Lender
Group, has and shall continue to have valid, enforceable and
perfected first-priority liens upon and security interests in the
Collateral granted to Agent, for the benefit of the Lender Group,
pursuant to the Loan Documents or otherwise granted to or held by
Agent, for the benefit of the Lender Group.
(c) Upon the occurrence of the Designated
Events of Default, no member of the Lender Group will have any
obligation to make any Advances or other extensions of credit to
any Borrower.
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4. Binding Effect of Documents .
Each Borrower and Guarantor hereby acknowledge, confirm and agree
that: (i) each of the Loan Documents to which it is a party
has been duly executed and delivered to Agent and Lenders thereto
by such Borrower or Guarantor, and each is in full force and effect
as of the date hereof, (ii) the agreements and obligations of
such Borrower or Guarantor contained in the Loan Documents and in
this Agreement constitute the legal, valid and binding obligations
of such Borrower or Guarantor, enforceable against such Borrower or
Guarantor in accordance with their respective terms, and such
Borrower or Guarantor has no valid defense to the enforcement of
the obligations under the Credit Agreement, and (iii) Agent
and each Lender are and shall be entitled to the rights, remedies
and benefits provided for in the Loan Documents and under
applicable law or at equity.
5. Amendment Fee . In connection
with this Agreement and in consideration for, among other things,
the extension of the forbearance provided under Forbearance
Agreement as amended hereby, Borrowers hereby agree to pay to Agent
an amendment fee by wire transfer of immediately available funds in
an amount equal to $5,000 (the “ Amendment Fee
”), which Amendment Fee shall be fully earned, due and
payable on the date hereof.
6. Conditions Precedent to
Effectiveness . This Agreement shall become effective as of the
date when, and only when, the following conditions have been
satisfied as determined in Agent’s sole and absolute
discretion:
(a) Agent shall have received duly executed
counterparts of this Agreement duly executed by Borrowers,
Guarantors and the Lenders;
(b) Borrowers shall have paid all fees,
costs and expenses incurred in connection with this Agreement and
any other Loan Documents (including, without limitation, legal fees
and expenses);
(c) The representations and warranties made
or deemed made by Borrowers and Guarantors under this Agreement
shall be true and correct;
(d) The Agent shall have received the
Amendment Fee; and
(e) The Agent shall have received such
other documents as the Agent may request with respect to any of the
foregoing .
7. Representations and Warranties .
Each Borrower and Guarantor represents and warrants as
follows:
(a) The execution, delivery and performance
of this Agreement are within such Borrower’s or
Guarantor’s, as applicable, powers, have been duly authorized
by all necessary action and do not (i) violate any provision
of federal, state, or local law or regulation applicable to such
Borrower or Guarantor, as applicable, the Governing Documents of
such Borrower or Guarantor, as applicable, or any order, judgment,
or decree of any court or other Governmental Authority binding on
such Borrower or Guarantor, as applicable, or (ii) conflict
with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any material contractual
obligation of such Borrower or Guarantor, as applicable.
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