FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") is made and
entered into as of the 9th day of January, 1998, by and among GOLDEN ROAD
MOTOR INN, INC., a Nevada corporation (the "Borrower"), MONARCH CASINO &
RESORT, INC., a Nevada corporation ("MCRI"), ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (collectively "Farahi" and together with MCRI, collectively the
"Guarantors") and ▇▇▇▇▇ FARGO BANK, National Association, as Lender, Swingline
Lender and L/C Issuer and as the administrative and collateral agent for the
Lender, Swingline Lender and L/C Issuer (herein in such capacity called the
"Agent Bank" and, together with the Lender, Swingline Lender and L/C Issuer
collectively referred to as the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrower, Guarantors, Agent Bank, Swingline Lender and Lender
entered into a Credit Agreement dated as of December 29, 1997 (the "Existing
Credit Agreement") for the purpose of establishing a reducing revolving line
of credit in favor of Borrower, up to the maximum principal amount of Eighty
Million Dollars ($80,000,000.00), including a Swingline Facility in the
maximum amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) at
any time outstanding.
B. For the purpose of this First 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.
C. Borrower and Guarantors desire to amend the Existing Credit
Agreement for the purpose of establishing an additional subfacility for the
issuance of standby and commercial letters of credit up to the maximum
aggregate amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00)
at any time outstanding.
▇. ▇▇▇▇▇ have agreed to establish an additional subfacility for the
issuance of standby and documentary letters of credit to be issued by L/C
Issuer at the request of Borrower up to the maximum aggregate amount of Two
Million Five Hundred Thousand Dollars ($2,500,000.00) at any time outstanding,
subject to the terms, conditions and provisions set forth in this First
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 do agree to the amendments and modifications
to the Existing Credit Agreement as specifically hereinafter provided as
follows:
1. Definitions. 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:
"Agent Bank" shall mean WFB in its capacity as administrative and
collateral agent for Lenders, Swingline Lender and L/C Issuer.
"Aggregate Outstandings" shall mean collective reference to the sum of
the Funded Outstandings, Swingline Outstandings and L/C Exposure as of any
given date of determination.
"Available Borrowings" shall mean, at any time, and from time to time,
the aggregate amount available to Borrower for a Borrowing, a Construction
Disbursement, a Swingline Advance or issuance of a Letter of Credit not
exceeding the amount of the Maximum Availability, as of each date of
determination.
"Bank Facilities" shall mean collective reference to the Credit Facility,
Swingline Facility and L/C Facility.
"Bank Facility Termination" shall mean indefeasible payment in full of
all sums owing under the Bank Facilities and each of the other Loan Documents,
the occurrence of the Stated Expiry Date or other termination of all
outstanding Letters of Credit, and the irrevocable termination of: (i) the
obligation of Lenders to advance Borrowings and Construction Disbursements
under the Credit Facility, (ii) the obligation of Swingline Lender to advance
Swingline Advances under the Swingline Facility, and (iii) the obligation of
L/C Issuer to issue Letters of Credit under the L/C Facility.
"Borrowing(s)" shall mean such amounts as Borrower may request from Agent
Bank from time to time to be advanced under the Credit Facility by Notice of
Borrowing in the manner provided in Section 2.03 and/or Construction
Disbursement Request in the manner provided in Section 2.09 or at the request
of Agent Bank pursuant to Section 2.08 or Section 2.16.
"Cash Collateral Account" shall mean the restricted depository savings
account to be established by Borrower or Agent Bank on behalf of Borrower with
L/C Issuer at its offices located at One East First Street, Reno, Nevada, or
at such other office located in the United States as may be designated from
time to time by L/C Issuer, for the purpose of depositing Cash collateral for
the aggregate L/C Exposure upon the occurrence of any Event of Default.
"Cash Collateral Pledge Agreement" shall mean the Pledge and Assignment
of Savings Account Agreement to be executed by Borrower in favor of L/C
Issuer as of the First Amendment Effective Date as the same may be amended or
modified from time to time under the terms of which all sums held from time to
time in the Cash Collateral Account are pledged in favor of L/C Issuer to
secure repayment of any funding required under any outstanding Letters of
Credit, a copy of the form of which Cash Collateral Pledge Agreement is marked
"Exhibit O", affixed to the First Amendment and by this reference incorporated
herein and made a part hereof.
"Commercial Letter(s) of Credit" shall mean a letter or letters of credit
issued by L/C Issuer pursuant to Section 2.16 of the Credit Agreement for the
purpose of assuring payment for goods, equipment or materials supplied to
Borrower.
"Credit Agreement" shall mean the Existing Credit Agreement as amended by
the First 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 First Amendment.
"First Amendment" shall mean the First Amendment to Credit Agreement.
"First Amendment Effective Date" shall mean the date upon which each of
the conditions precedent set forth in Paragraph 11 of the First Amendment
shall have occurred to the satisfaction of Agent Bank.
"Funded Outstandings" shall mean the unpaid principal amount outstanding
on the Credit Facility as of any given date of determination for Borrowings
and Construction Disbursements made thereunder, not including Swingline
Outstandings or the amount of any L/C Exposure.
"Funding Date" shall mean each date upon which Lenders fund Borrowings or
Construction Disbursements requested by Borrower in accordance with the
provisions of Section 2.03 or 2.09 or at the request of Agent Bank pursuant to
Section 2.08 or 2.16.
"Indebtedness" of any Person includes all obliga-tions, contingent or
otherwise, which in accordance with GAAP should be classified upon such
Person's balance sheet as liabilities, but in any event including liabilities
for borrowed money or other liabilities secured by any lien existing on
property owned or acquired by such Person, Affiliate or a Subsidiary thereof
(whether or not the liability secured thereby shall have been assumed),
obligations which have been or under GAAP should be capitalized for financial
reporting purposes, the face amount of all Letters of Credit issued for the
account of such Person and all guaranties, endorse-ments, and other contingent
obligations with respect to Indebtedness of others, including, but not limited
to, any obligations to acquire any of such Indebtedness, to purchase, sell, or
furnish property or services primarily for the purpose of enabling such other
Person to make payment of any of such Indebtedness, or otherwise to assure the
owner of any of such Indebtedness against loss with respect thereto.
"L/C Agreement(s)" shall mean collective reference to the Application and
Agreement for Standby Letter of Credit and Application for Commercial Letter
of Credit and addendum(s) thereto executed by an Authorized Officer of
Borrower in favor of L/C Issuer in L/C Issuer's standard form, setting forth
the terms and conditions upon which L/C Issuer shall issue a Letter(s) of
Credit, as the same may be amended or modified from time to time.
"L/C Exposure" shall mean the aggregate amount which L/C Issuer may be
required to fund or is contingently liable for disbursement under all issued
and outstanding Letter(s) of Credit, which amount shall be determined by
subtracting from the aggregate of the Stated Amount of each such Letter(s) of
Credit (to the extent such Letter of Credit is not secured by Cash deposited
into the Cash Collateral Account and subject to the Cash Collateral Pledge
Agreement), the principal amount of all L/C Reimbursement Obligations which
have accrued and have been fully satisfied as of each date of determination.
"L/C Facility" shall mean the agreement of L/C Issuer to issue Letters of
Credit subject to the terms and conditions and up to the maximum amounts and
duration as set forth in Section 2.16 of the Credit Agreement.
"L/C Fee" shall have the meaning set forth in Section 2.10(c) of the
Credit Agreement.
"L/C Issuer" shall mean WFB in its capacity as the issuer of Letters of
Credit under the L/C Facility.
"L/C Reimbursement Obligation(s)" shall mean the obligation of Borrower
to reimburse L/C Issuer for amounts funded or disbursed under a Letter(s) of
Credit, together with accrued interest thereon.
"Letter(s) of Credit" shall mean collective reference to the Standby
Letter(s) of Credit and/or Commercial Letter(s) of Credit, as the case may be,
issued by L/C Issuer on behalf of Borrower, as the same may be extended,
renewed or reissued from time to time.
"Loan Documents" shall mean collective reference to the Credit Agreement,
the Revolving Credit Note, the Swingline Note, the Security Documentation,
Cash Collateral Pledge Agreement, the Environmental Certificate and all other
documents and instruments which may hereafter be executed and delivered by or
on behalf of Borrower or any other Person in connection with the Bank
Facilities for the benefit of Banks or Agent Bank on behalf of the Lenders,
the Swingline Lender and/or the L/C Issuer.
"Standby Letter(s) of Credit" shall mean a letter or letters of credit
issued by L/C Issuer pursuant to Section 2.16 of the Credit Agreement for the
purpose of securing payment or performance of a financial obligation of
Borrower, other than in connection with the payment for goods, equipment or
materials.
"Stated Amount" shall mean the maximum amount which L/C Issuer may be
required to disburse to the beneficiary(ies) of a Letter(s) of Credit under
the terms thereof.
"Stated Expiry Date(s)" shall mean the date set forth on the face of a
Letter(s) of Credit as the date when all obligations of L/C Issuer to advance
funds thereunder will terminate, as the same may be extended from time to
time.
2. Amendment of Section 2.03(a). As of the First Amendment Effective
Date, the last sentence of Section 2.03(a) of the Existing Credit Agreement
shall be and is hereby deleted and the following is substituted as a full
restatement thereof:
"Borrower shall be entitled to no more than one (1) Construction
Disbursement during each month during the Construction Period and no more than
three (3) Borrowings during each calendar month during the Preconstruction
Period and the Revolving Credit Period, exclusive of Borrowings or
Construction Disbursements made for the sole purpose of funding repayment of a
Swingline Advance or L/C Reimbursement Obligation."
3. Amendment of Section 2.04. As of the First Amendment Effective
Date, the first sentence of Section 2.04 of the Existing Credit Agreement
shall be and is hereby deleted and the following is substituted as a full
restatement thereof:
"During the Revolving Credit Period, Borrowings, other than
Borrowings made at the request of Agent Bank for the purpose of funding
repayment of Swingline Outstandings and/or L/C Reimbursement Obligations as
hereinafter provided, will only be made so long as Borrower is in full
compliance with each of the requirements and conditions precedent set forth in
Article III B of this Credit Agreement."
4. Addition to Section 2.10. As of the First Amendment Effective
Date, Section 2.10 of the Credit Agreement entitled "Fees" shall be and is
hereby amended by adding Subsection (c) thereto as follows:
"c. Concurrently with the issuance of each Letter of Credit,
Borrower shall pay an issuance fee to the L/C Issuer ("L/C Fee") in an amount
equal to the Stated Amount of each such Letter of Credit multiplied by one and
one-half percent (1.50%) per annum for the number of days elapsing from the
issuance date to the Stated Expiry Date of each such Letter of Credit, but in
no event shall the L/C Fee be less than Five Hundred Dollars ($500.00) for
each Letter of Credit. From each L/C Fee the greater of Five Hundred Dollars
($500.00) or one quarter of one percent (.25%) of the Stated Amount of each
such Letter of Credit, calculated on a per annum basis as provided
hereinabove, shall be retained by L/C Issuer for its own account and the
balance of each L/C Fee shall be promptly distributed by Agent Bank to Lenders
in proportion to their respective Syndication Interests in the Credit
Facility. All L/C Fees paid by Borrower are nonrefundable and shall be deemed
fully earned upon issuance of the applicable Letter of Credit."
5. Amendment of Section 2.12. As of the First Amendment Effective
Date, the first sentence of Section 2.12 of the Existing Credit Agreement
entitled "Net Payments" shall be and is hereby deleted and the following is
substituted as a full restatement thereof:
"All payments under the Credit Agreement, the Revolving Credit Note,
the Swingline Note and/or a L/C Reimbursement Obligation shall be made without
set-off, counterclaim, recoupment or defense of any kind and in such amounts
as may be necessary in order that all such payments, after deduction or
withholding for or on account of any future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by the United States or any
Governmental Authority, other than franchise taxes or any tax on or measured
by the gross receipts or overall net income of any Lender pursuant to the
income tax laws of the United States or any State, or the jurisdiction where
each Lender's principal office is located (collectively "Taxes"), shall not be
less than the amounts otherwise specified to be paid under the Credit
Agreement and the Notes."
6. Addition of Letter of Credit Provisions. As of the First
Amendment Effective Date, Section 2.16 entitled "Issuance of Letters of
Credit" shall be and is hereby added to the Credit Agreement as follows:
"Section 2.16. Issuance of Letters of Credit.
a. Any Authorized Officer of Borrower may from time to time
request that a Standby Letter of Credit or Commercial Letter of Credit be
issued by delivering to L/C Issuer (with a telecopy to the Agent Bank) on a
Banking Business Day, at least five (5) Banking Business Days prior to the
date of such proposed issuance, an L/C Agreement in L/C Issuer's then standard
form (consistent with the terms of the Credit Agreement), completed to the
satisfaction of L/C Issuer and such other certificates as the L/C Issuer may
reasonably request; provided, however, that no Letter of Credit shall be
issued (a) if any Default or Event of Default has occurred and remains
continuing, or (b) if after giving effect to the issuance thereof, the
aggregate Stated Amount of outstanding Letters of Credit would exceed Two
Million Five Hundred Thousand Dollars ($2,500,000.00), or (c) the Stated
Amount of the requested Letter of Credit exceeds the Maximum Availability.
Each Letter of Credit shall be issued by the L/C Issuer on the Banking
Business Day specified in the Borrower's application therefor. Each request
for a Letter of Credit and each Letter of Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits, International Chamber of
Commerce Publication New 1994 Revision No. 500, or any successor publication
then in effect. Each Standby Letter of Credit will be issued for a term not
greater than one (1) year and shall not include any provision for automatic
renewal. Each Commercial Letter of Credit will be issued for a term not
greater than one hundred eighty (180) calendar days. In no event shall any
Letter of Credit have a Stated Expiry Date later than thirty (30) days prior
to the Maturity Date. Promptly after receipt of each request for the issuance
of a Letter of Credit and immediately prior to the issuance thereof, L/C
Issuer shall obtain telephonic verification from Agent Bank that the amount of
such request does not exceed the then Available Borrowings. The L/C Issuer
shall promptly notify the Agent Bank of the aggregate L/C Exposure of
outstanding Letters of Credit each time there is a change therein.
b. Upon presentation of a draft drawn under any Letter of
Credit, L/C Issuer shall promptly notify the Agent Bank and Borrower of the
amount under such draft and the date upon which such draft is to be funded.
On or before two (2) Banking Business Days following such notice (unless
Borrower has made other arrangements acceptable to the L/C Issuer to pay the
amount of such draft in full), Borrower shall advance to L/C Issuer the amount
of such draft from Borrower's available funds or shall request a Borrowing or
Construction Disbursement under the Credit Facility in an amount sufficient to
pay the amount of such draft in full. The Agent Bank, upon receipt of such
funds from the Lenders, shall automatically provide such amount to the L/C
Issuer for payment of the amount of such draft and the balance of the
Borrowing or Construction Disbursement, as the case may be, shall be deposited
in immediately available funds to the Designated Deposit Account. In the
event Borrower fails to advance to L/C Issuer the amount of such draft from
Borrower's available funds or to request a Borrowing within two (2) Banking
Business Days from receipt of the notice as specified above, on the third
(3rd) Banking Business Day following Agent Bank's receipt of such notice,
Agent Bank shall, without notice to or consent of the Borrower and without
regard to any other conditions precedent for the making of Borrowings or
Construction Disbursements under the Credit Facility, cause a Borrowing (or
Construction Disbursement if made during the Construction Period) to be made
and funded by the Lenders under the Credit Facility in the amount necessary to
pay the amount of such draft in full. Upon the occurrence of any Event of
Default, L/C Issuer shall, without notice or further authorization or consent
of Borrower whatsoever, be authorized to immediately cause the Cash Collateral
Account to be established and funded by Lenders with a Borrowing (or
Construction Disbursement if made during the Construction Period) advanced to
Agent Bank equal to the aggregate amount of the L/C Exposure then outstanding.
All amounts held by L/C Issuer in the Cash Collateral Account shall be held as
security for the repayment of any L/C Reimbursement Obligation thereafter
arising pursuant to the terms of the L/C Agreement(s) and the Cash Collateral
Pledge Agreement. Borrowings and Construction Disbursements advanced by
Lenders to pay drafts drawn upon or to secure repayment of the L/C Exposure
under Letters of Credit pursuant to this subsection shall: (i) constitute
Borrowings (or Construction Disbursements if made during the Construction
Period) under the Credit Facility, (ii) initially be Base Rate Loans and (iii)
be subject to all of the provisions of this Credit Agreement concerning
Borrowings (or Construction Disbursements if made during the Construction
Period) under the Credit Facility, except that such Borrowings or Construction
Disbursements shall be made upon demand of the Agent Bank as set forth above
rather than upon Notice of Borrowing or Construction Disbursement Request by
Borrower and shall be made, notwithstanding anything in this Credit Agreement
to the contrary, without regard to any other conditions precedent to the
making of Borrowings or Construction Disbursements under the Credit Agreement
and notwithstanding any Default or Event of Default thereunder. All amounts
paid by L/C Issuer on a draft drawn under any Letter of Credit which has not
been funded or concurrently reimbursed by Borrower or through a Borrowing or
Construction Disbursement as provided hereinabove, shall bear interest at the
Base Rate plus the Applicable Margin per annum until repaid or reimbursed to
L/C Issuer.
c. Each Lender's obligation to advance Borrowings or
Construction Disbursements in the proportionate amount of its Syndication
Interest in the Credit Facility of any unreimbursed amounts outstanding under
any Letter of Credit pursuant hereto is several, and not joint or joint and
several. The failure of any Lender to perform its obligation to advance a
Borrowing or Construction Disbursement in a proportionate amount of such
Lender's Syndication Interest of any unreimbursed amounts outstanding under a
Letter of Credit will not relieve any other Lender of its obligation hereunder
to advance such Borrowing or Construction Disbursement in the amount of such
other Lender's proportionate Syndication Interest of such amount, nor relieve
the Lender which has failed to fund of its obligation to fund hereunder. The
Borrower agrees to accept the Borrowings or Construction Disbursements for
payment of Letters of Credit as provided hereinabove, whether or not such
Borrowings or Construction Disbursements could have been made pursuant to the
terms of Article III B or C, Article IX or any other section of the Credit
Agreement.
d. Letters of Credit shall be used and issued for the
benefit of Borrower for the general corporate purposes of Borrower relating to
the Hotel/Casino Facility and/or the Expansion Project."
7. Amendment of Paragraph B of Article III Entitled "Conditions
Precedent to all Borrowings". As of the First Amendment Effective Date,
Paragraph B of Article III of the Existing Credit Agreement shall be and is
hereby deleted and the following is substituted as a full restatement thereof:
"B. Conditions Precedent to all Borrowings. The obligation of
each Lender and Agent Bank to make any Borrowing requested to be made on any
Funding Date, except Borrowings made upon the demand of Agent Bank for the
purpose of funding repayment of Swingline Outstandings and/or L/C
Reimbursement Obligations, is subject to the occurrence of each of the
following conditions precedent as of such Funding Date:"
8. Additions to Section 7.02. As of the First Amendment Effective
Date, Section 7.02 entitled "Default Remedies" shall be and is hereby amended
by adding thereto the additional Subsections (e), (f) and (g) as follows:
"(e) The Swingline Lender shall, upon receipt of written
notice of the occurrence of an Event of Default, terminate its obligation to
make any advances under the Swingline Facility and may declare all outstanding
unpaid Indebtedness hereunder and under the Swingline Note, together with all
accrued interest thereon immediately due and payable without presentation,
demand, protest or notice of any kind. This remedy will be deemed to have
been automatically exercised on the occurrence of any event set out in
Sections 7.01(g), (h) or (i).
(f) The L/C Issuer shall, upon receipt of written notice of
the occurrence of an Event of Default, terminate its obligation to issue
Letters of Credit and/or any Letter of Credit which may be terminated in
accordance with its terms. This remedy will be deemed to have been
automatically exercised on the occurrence of any event set out in Sections
7.01(g), (h) or (i).
(g) Agent Bank and/or L/C Issuer may, or at the direction
of the Requisite Lenders will, direct the Borrower to pay (and Borrower hereby
agrees upon receipt of such notice to pay) to the L/C Issuer an amount in Cash
equal to the then outstanding L/C Exposure, such Cash to be held by L/C Issuer
in the Cash Collateral Account as security for the repayment of all L/C
Reimbursement Obligations thereafter occurring."
9. Amendment of Section 10.04(b). As of the First Amendment
Effective Date, the penultimate sentence of Section 10.04(b) shall be and is
hereby deleted and the following is substituted as a full restatement thereof:
"No Nonusage Fee or L/C Fees shall accrue in favor of, or be payable
to, such Defaulting Lender from the date of any failure to fund Borrowings,
Construction Disbursements or to reimburse Agent Bank for any Liabilities and
Costs as herein provided until such failure has been cured, and Agent Bank
shall be entitled to (A) withhold or setoff, and to apply to the payment of
the defaulted amount and any related interest, any amounts to be paid to such
Defaulting Lender under the Credit Agreement, and (B) bring an action or suit
against such Defaulting Lender in a court of competent jurisdiction to recover
the defaulted amount and any related interest."
10. Amendment of Section 11.01. As of the First Amendment Effective
Date, Section 11.01 entitled "Amendments and Waivers" shall be and is hereby
amended by inserting at the end thereof the following:
"No modification of Section 2.08 or the Swingline Note shall be made
without the consent of the Swingline Lender. No modification of Section 2.16
shall be made without the consent of the L/C Issuer."
11. Conditions Precedent to First Amendment Effective Date. The
occurrence of the First 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 January 30, 1998:
a. Due execution by Borrower, Guarantors and Banks of seven (7)
duplicate originals of this First Amendment;
b. Corporate resolutions or other evidence of requisite
authority of Borrower and Guarantors, as applicable, to execute the First
Amendment;
c. Due execution by Borrower of an original Cash Collateral
Pledge Agreement;
d. Reimbursement to Agent Bank by Borrower for all reasonable
fees and out-of-pocket expenses incurred by Agent Bank in connection with the
First Amendment, including, but not limited to, reasonable attorneys' fees of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and all other like expenses remaining unpaid as of the
First Amendment Effective Date; and
e. Such other documents, instruments or conditions as may be
reasonably required by Lenders.
12. Representations of Borrower. Borrower hereby represents to the
Banks that:
a. 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 First
Amendment Effective Date in all material respects as though such
representations and warranties had been made on and as of the First 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;
b. 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 or Material
Adverse Effect has occurred;
c. no event has occurred and is continuing which constitutes a
Default or Event of Default under the terms of the Credit Agreement; and
d. The execution, delivery and performance of this First
Amendment has been duly authorized by all necessary action of Borrower and
Guarantors and this First Amendment constitutes a valid, binding and
enforceable obligation of Borrower and Guarantors.
13. Affirmation and Ratification of Continuing Guaranty. Guarantors
join in the execution of this First Amendment for the purpose of ratifying and
affirming their respective obligations under the Continuing Guaranty for the
guaranty of the full and prompt payment and performance of all of Borrower's
indebtedness and obligations under the Bank Facilities and each of the Loan
Documents, as modified and amended under this First Amendment.
14. Incorporation by Reference. This First Amendment shall be and is
hereby incorporated in and forms a part of the Existing Credit Agreement.
15. Governing Law. This First Amendment to Credit Agreement shall be
governed by the internal laws of the State of Nevada without reference to
conflicts of laws principles.
16. Counterparts. This First 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.
17. Continuance of Terms and Provisions. All of the terms and
provisions of the Credit Agreement shall remain unchanged except as
specifically modified herein.
18. Additional Exhibit Attached. The following additional Exhibit is
attached hereto and incorporated herein and made a part of the Credit
Agreement as follows:
Exhibit O - Cash Collateral Pledge Agreement - Form
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the day and year first above written.
BORROWER:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------
▇▇▇ ▇▇▇▇▇▇,
Secretary
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GUARANTORS:
MCRI:
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------
▇▇▇ ▇▇▇▇▇▇,
Secretary
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
BANKS:
▇▇▇▇▇ FARGO BANK,
National Association,
Agent Bank, Lender,
Swingline Lender and
L/C Issuer
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PLEDGE AND ASSIGNMENT OF
SAVINGS ACCOUNT AGREEMENT
THIS PLEDGE AND ASSIGNMENT OF SAVINGS ACCOUNT AGREEMENT ("Pledge
Agreement") is made and entered into as of this 9th day of January, 1998, by
and between, GOLDEN ROAD MOTOR INN, INC., a Nevada corporation, Debtor and
Assignor, hereinafter referred to as "Borrower", party of the first part, and
▇▇▇▇▇ FARGO BANK, National Association, hereinafter referred to as "L/C
Issuer" party of the second part.
R_E_C_I_T_A_L_S:
WHEREAS:
A. In this Pledge Agreement all capitalized words and terms not
otherwise specifically herein defined shall have the respective meanings and
be construed herein as provided in or incorporated into Section 1.01 entitled
"Definitions" of the Credit Agreement (as may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), dated as of
December 29, 1997, as amended by First Amendment to Credit Agreement executed
concurrently herewith by and among Borrower, the Guarantors therein named, L/C
Issuer and the Banks therein described, and any reference to a provision of
the 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.
B. Pursuant to the Credit Agreement, L/C Issuer has agreed, subject
to the terms and conditions specified therein, to issue Letters of Credit on
behalf of Borrower up to the maximum aggregate Stated Amount of Two Million
Five Hundred Thousand Dollars ($2,500,000.00) at any time outstanding. As
security for the prompt payment of each and every L/C Reimbursement Obligation
arising after the occurrence of an Event of Default, L/C Issuer may establish
a restricted depository savings account for the account of Borrower (the "Cash
Collateral Account"). It is a condition of the Credit Agreement and the
issuance of Letters of Credit that all Borrowings, Construction Disbursements,
Cash, securities and other property of Borrower which may hereafter be
deposited into the Cash Collateral Account be presently and irrevocably
pledged and assigned to L/C Issuer to be held by L/C Issuer in the manner and
for the purposes set forth in the Credit Agreement and L/C Agreements.
NOW, THEREFORE, in consideration of the Letters of Credit to be issued by
L/C Issuer for the benefit of Borrower, the receipt and sufficiency of which
consideration is hereby acknowledged, the Borrower hereby pledges and assigns
to L/C Issuer all of its right, title and interest in and to the Cash
Collateral Account and any Borrowings, Construction Disbursements, Cash,
securities and other property of Borrower hereafter held or deposited therein,
as follows:
1. Borrower shall and does hereby agree that L/C Issuer shall have
the right, on and after the occurrence of an Event of Default, to establish
and maintain the Cash Collateral Account for the purpose set forth herein and
in the Credit Agreement. The Borrower by these presents does hereby presently
and irrevocably grant, bargain, sell, assign, transfer and set over unto L/C
Issuer, its successors and assigns, all of Borrower's right, title and
interest in and to the Cash Collateral Account and any Borrowings,
EXHIBIT O
Construction Disbursements, Cash, securities and other property of Borrower
hereafter held or deposited therein.
2. In addition to all rights of setoff for repayment of any L/C
Reimbursement Obligation against any Borrowings or Construction Disbursements
held in the Cash Collateral Account, monies, securities or other property
given to L/C Issuer by law, L/C Issuer shall have a right of setoff for the
repayment of any L/C Reimbursement Obligation against any Borrowings,
Construction Disbursements, monies, securities and other property of Borrower
now or hereafter held or deposited in the Cash Collateral Account or on
deposit with L/C Issuer whether held in a general or special account or
deposit, or for safekeeping or otherwise; and every such right of setoff for
the repayment of any L/C Reimbursement Obligation may be exercised without
demand upon or notice to Borrower. No right of setoff shall be deemed to have
been waived by any act or conduct on the part of L/C Issuer or by any neglect
to exercise such right of setoff, or by any delay in doing so; and every right
of setoff shall continue in full force and effect until specifically waived or
released by an instrument in writing executed by L/C Issuer.
3. No delay or failure by L/C Issuer, Agent Bank or any of the Banks
to exercise any right or remedy against the Borrower under the Loan Documents
shall be construed as a waiver of such right or remedy. All remedies of L/C
Issuer, Agent Bank and Banks against the Borrower under the Loan Documents are
cumulative.
4. This Pledge Agreement may not be amended, changed or terminated
except by an agreement in writing signed by the party or parties against whom
enforcement of the change is sought. This Pledge Agreement shall be governed
by and construed in accordance with the laws of the State of Nevada and if any
action is taken to enforce the terms of this Pledge Agreement such action
shall be commenced and maintained within the State of Nevada.
5. If and to the extent that the amounts held from time to time in
the Cash Collateral Account (including any interest) exceed the Stated Amount
of all undrawn Letters of Credit and all unpaid L/C Reimbursement Obligations,
L/C Issuer shall, on or before ten (10) days following receipt of written
request by Borrower, apply such excess in the order of priority set forth in
Section 7.03 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
instrument on the day and year first above written.
BORROWER: L/C ISSUER:
GOLDEN ROAD MOTOR INN, INC., ▇▇▇▇▇ FARGO BANK,
a Nevada corporation National Association,
Agent Bank
By By
-------------------- --------------------
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
Secretary Vice President
STATE OF NEVADA )
) ss
COUNTY OF WASHOE )
This instrument was acknowledged before me on January ___, 1998, by ▇▇▇
▇▇▇▇▇▇ as Secretary of/for GOLDEN ROAD MOTOR INN, INC.
____________________________
Notary Public
STATE OF NEVADA )
) ss
COUNTY OF WASHOE )
This instrument was acknowledged before me on January ___, 1998, by ▇▇▇
▇▇▇▇▇▇▇▇ as Vice President of/for ▇▇▇▇▇ FARGO BANK.
____________________________
Notary Public