Exhibit 10.1
WAIVER AND AMENDMENT NO. 1
AGREEMENT
WAIVER AND AMENDMENT NO. 1
AGREEMENT , dated as of
October 23, 2006 (this “ Amendment ”), to the
Amended and Restated Loan and Facilities Agreement, dated as of
August 31, 2004 (as the same may be amended, supplemented or
modified from time to time in accordance with its terms, the
“ Loan Agreement ”), by and among the lenders
party thereto (the “ Lenders ”), The Bank of New
York, as administrative agent and collateral agent (the “
Agent ”), and Opbiz, L.L.C., a Nevada limited
liability company, as borrower (the “ Borrower
”).
WHEREAS, the Borrower, the Lenders
and the Agent are parties to the Loan Agreement;
WHEREAS, the Borrower has requested
that the Lenders and Agent waive certain alleged Events of Default
and amend the Loan Agreement as set forth herein;
WHEREAS, pursuant to Section
11.14(a) of the Loan Agreement (Modification), the consent of the
Required Lenders is required to effect the waivers and amendments
set forth herein;
WHEREAS, subject to the terms and
conditions set forth herein, the Agent and each of the Lenders
party to a Lender’s Consent (as defined below) constituting
Required Lenders (such Lenders, the “ Consenting
Lenders ”) are willing to waive the alleged Events of
Default and amend the Loan Agreement as set forth
herein;
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, and subject to the fulfillment of the conditions set
forth below, the parties hereto agree as follows:
SECTION
1.
Definitions . Unless otherwise defined herein, or the
context otherwise requires, capitalized terms used in this
Amendment shall have the meanings ascribed to such terms in the
Loan Agreement.
SECTION
2.
Amendments to Loan Agreement . Subject to the terms
and conditions set forth herein, the Loan Agreement is hereby
amended as follows:
(a)
The following new defined term is hereby added to Section 1.1 of
the Loan Agreement (Specific Definitions):
“ “
Waiver Effective Date ” means October 23, 2006, the
date that the Waiver and Amendment No. 1 to the Loan Agreement
became effective .”
(b)
The definition of “Loan Documents” set forth in Section
1.1 of the Loan Agreement (Specific Definitions) is hereby amended
by deleting such definition in its entirety and replacing it with
the following new definition:
“ “ Loan
Documents ” means, collectively, this Agreement, the Term
Loan Notes, the Financing Statements, any Security Document, the
Environmental Indemnity (if any), the Subordination Agreements, the
Borrower Certificate, the Representation and Warranty Certificate,
any Hedging Agreement, the Holdings Guarantee, the Mezzanine
Intercreditor Agreement, the Warrants, and such other documents,
agreements and instruments evidencing, securing or pertaining to
the Obligations, or any part thereof executed by the Borrower, any
Manager or any other Person or, as shall, from time to time
thereafter be executed and delivered
by the Borrower, any Manager or any
other Person, in each case pursuant to or in connection with the
Loan or any other Loan Document. “Loan Documents”
shall expressly exclude any and all of the Pre-Petition
Credit Agreement, the GECC Facilities Agreement and any documents
and agreements executed in connection therewith or contemplated
thereby, except to the extent any of the foregoing agreements or
instruments have been amended and restated and signed by the
Borrower pursuant to this Agreement or any other Loan
Document.”
(c)
The definition of “Letter of Credit” set forth in
Section 1.1 of the Loan Agreement (Specific Definitions) is hereby
amended by deleting such definition in its entirety.
(d)
The definition of “Renovation Capital Expenditure
Account” set forth in Section 1.1 of the Loan Agreement
(Specific Definitions) is hereby amended by deleting such
definition in its entirety and replacing it with the following new
definition:
“ “
Renovation Capital Expenditure Account ” means an
account of the Borrower held at The Bank of New York and subject to
a deposit account control agreement (in form and substance
reasonably satisfactory to the Agent) designated for Renovation
Capital Expenditures (it being understood that the Borrower may
withdraw funds from such account solely in order to satisfy its
obligations to spend $90,000,000 on and for Renovation Capital
Expenditures as provided herein).”
(e)
The definition of “Theater Renovation Account” set
forth in Section 1.1 of the Loan Agreement (Specific Definitions)
is hereby amended by deleting such definition in its entirety and
replacing it with the following new definition:
“ “
Theater Renovation Account ” means the Theater Escrow
Account (as defined in the Mezzanine Loan Agreement) (it being
understood that the Borrower may withdraw funds from such account
solely to be used in order to satisfy the Borrower’s
obligations to spend $90,000,000 on and for Renovation Capital
Expenditures as provided herein).”
(f)
Section 2.7 of the Loan Agreement (Term Loan Account) is hereby
amended by deleting such clause in its entirety and replacing it
with the following new Section 2.7:
“Section
2.7
Term Loan Account . The Agent will establish a loan
account for the Borrower with each Lender. Unless the Agent
otherwise elects, the principal amount of each Term Loan A and each
Term Loan B, the amount of each required principal repayment, all
accrued interest, all fees, all payments due to the Agent or a
Lender from the Borrower under Sections 3.8 (Requirements of Law),
3.9 (Capital Adequacy Costs), and 3.11 (Indemnity), and all costs
and expenses described in Section 11.10 (Fees and Expenses) will be
charged to the Borrower’s account with the Agent or Affiliate
thereof, and upon an Event of Default, the Agent may direct or
cause the Borrower to direct payment from the Theater Renovation
Account or from such other account of the Borrower subject to a
deposit account control agreement in favor of the Agent (and in
form and substance reasonably satisfactory to the Agent) as of the
date made, or the date such other amount is due from the Borrower
or is paid or incurred by the Agent or a Lender, or the date such
amount becomes chargeable to the Borrower’s loan account
pursuant to Section 11.10 (Fees and Expenses), as the case may
be.”
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(g)
Section 4.3(b) of the Loan Agreement (Mandatory
Prepayments—Renovation Capital Expenditures) is hereby
amended by deleting such clause in its entirety and replacing it
with “Intentionally Omitted.”
(h)
Section 7.13 of the Loan Agreement (Use of Additional Capital for
Renovation Capital Expenditures) is hereby amended by deleting such
Section in its entirety and replacing it with the following new
Section 7.13:
“Section
7.13 Use of
Additional Capital for Renovation Capital Expenditures and Related
Matters . The Borrower shall spend and pay not less
than $90,000,000 on and for Renovation Capital Expenditures as
described in the next sentence and the last sentence of this
Section 7.13. The Borrower shall spend and pay (i) not less than
$81,000,000 on and for Renovation Capital Expenditures for works of
improvement in place or for work actually performed on or in the
Premises, and for the purchase of fixtures or materials which are
or which will be stored on the Premises so long as the Agent has at
all times a duly perfected first priority security interest in such
fixtures or materials, payment of labor or professionals for work
actually performed and other costs actually incurred, in each case
as of the date of payment (all of which shall be made pursuant to
bona fide, commercially reasonable, arms length, fully executed
agreements with third parties delivered to the Agent pursuant to
Section 7.2(e)(ii) and Section 7.33), by no later than April 30,
2007 and (ii) an additional $9,000,000 for a total of $90,000,000
on and for Renovation Capital Expenditures for works of improvement
in place or for work actually performed on or in the Premises, and
for the purchase of fixtures or materials which are or which will
be stored on the Premises so long as the Agent has at all times a
duly perfected first priority security interest in such fixtures or
materials stored on the Premises, the payment of labor or
professionals for work actually performed and other costs actually
incurred, in each case as of the date of payment (all of which
shall be made pursuant to bona fide, commercially reasonable, arms
length, fully executed agreements with third parties delivered to
the Agent pursuant to Section 7.2(e)(ii) and Section 7.33), on or
before August 31, 2007. The Borrower hereby acknowledges and
agrees that the $14,000,000 payment described in Section 5.1(x),
shall not reduce the total $90,000,000 of Renovation Capital
Expenditures required to be made pursuant to this Section
7.13. In addition, the Borrower shall use commercially
reasonable efforts to substantially complete all of the items set
forth on Exhibit L by no later than August 31, 2007. The Borrower
hereby agrees that in no event shall it prepay for materials,
fixtures, labor, fabrication, services or other items that
constitute Renovation Capital Expenditures in exchange for future
discounts, consideration or otherwise other than up to $5,000,000
outstanding at any one time (which $5,000,000 limitation shall be
in addition to the $5,000,000 outstanding prior to the Waiver
Effective Date) which may be spent for prepaid fabricated items or
deposits for the purchase of fixtures or materials, and the
Borrower shall specify in any request for funds to be disbursed
whether it intends to prepay in accordance with this last sentence
of Section 7.13 and the amount of any such
prepayment.”
(i)
Section 7.14 of the Loan Agreement (Letter of Credit) is hereby
amended by deleting such Section in its entirety and replacing it
with “Intentionally Omitted.”
(j)
Section 7.18(b) of the Loan Agreement (Repairs) is hereby amended
by deleting the last sentence of such Section and replacing it with
the following new sentence: “The Borrower shall not undertake
to construct (i) any Renovation Capital Expenditures and any other
Significant Repair or Improvement except in compliance with this
Section 7.18(b) hereof, and (ii) with respect to any Renovation
Capital Expenditures, also in compliance with Section 7.13 and
Section 7.33.”
(k)
A new Section 7.33 is hereby added to the Loan Agreement as
follows:
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“Section
7.33 Certain
Requirements Relating to Disbursement of Funds in the Renovation
Capital Expenditure Account . Notwithstanding anything to the
contrary in this Agreement or any other Loan Document (including,
without limitation, the control agreement governing the Renovation
Capital Expenditure Account), at least three Business Days prior to
the Borrower requesting that any amounts in the Renovation Capital
Expenditure Account be disbursed, the Borrower shall deliver to the
Agent a construction draw request substantially in the form
attached hereto as Exhibit B which shall in any event
include the following, (i) an explanation of the proposed uses of
the funds, including without limitation, the name of all entities
to receive payment, (ii) a comparison between expenses incurred to
date and (x) expenses budgeted in the Borrower’s phasing
plans delivered to the Agent on or about September 20, 2006 and (y)
expenses budgeted in the Borrower’s overall budget, (iii) the
amount and nature of any Renovation Capital Expenditures made since
the last request for disbursement of funds with, to the extent not
previously delivered to the Agent, attached copies of any contracts
entered into, invoices received and evidence of payment made with
respect to any such expenditure, and (iv) copies of any
construction draw requests, invoices and other disbursement
requests received by the Borrower or any Affiliate which the
Borrower intends to pay with the funds that it is currently
requesting to be disbursed. Upon the Agent’s receipt of a
duly completed construction draw request that conforms to the
requirements of this Section 7.33 and provided that the Borrower
shall utilize the funds as required by this Agreement (including,
without limitation, by Section 7.13) and provided, further that no
Event of Default exists at such time or would result therefrom, the
Agent shall use commercially reasonable efforts to cause the funds
to be disbursed within 7 Business Days following receipt of such
construction draw request.”
(l)
Section 9.1(c)(ii) of the Loan Agreement (Events of Default) is
hereby amended by adding, “7.33” after
“7.30” and before “or Article 8” in such
clause.
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SECTION
3.
Waivers . The Agent and the Required Lenders have
alleged that certain Events of Default exist under the Loan
Agreement. Without any admission of liability on the part of the
Borrower, the Agent and the Required Lenders each hereby waives the
Events of Default resulting from the Borrower’s violation of
(i) Section 7.2(a) of the Loan Agreement, (ii) Section 7.2(b) of
the Loan Agreement, (iii) Section 7.2(c)(i) of the Loan Agreement,
(iv) Section 7.2(d) of the Loan Agreement, (iv) Section 7.2(e) of
the Loan Agreement, (v) Section 7.2(l) of the Loan Agreement, (vi)
Section 7.2(p) of the Loan Agreement solely relating to the
Borrower’s failure to deliver to the Agent prior to the
Waiver Effective Date copies of the monthly reports on the progress
of the renovations that were required to be delivered to the
Mezzanine Lenders, (vii) Section 7.13 of the Loan Agreement (and
related Section 4.3 of the Loan Agreement) relating to
Borrower’s failure, in each case, to spend and pay at least
$72,000,000 on and for Renovation Capital Expenditures by the First
Renovation Capital Expenditure Date, (viii) Section 7.18(b) of the
Loan Agreement solely with respect to requirements or conditions
that relate to Renovation Capital Expenditures, and (ix) Section
7.24 of the Loan Agreement solely with respect to any Material
Operating Agreement that relates directly to Renovation Capital
Expenditures. The waivers set forth in this Section 3 are
effective as of the Waiver Effective Date and only for the
instances and to the extent set forth above (such Events of Default
being so waived, being collectively, the “ Specified
Defaults ”), and such limited waivers shall not
constitute a course of dealing between Borrower, on the one hand,
and the Ag
