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EXHIBIT 10.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT ("First Amendment") is made and entered into as of the 14th day of
April, 2000, by and among HARVEYS CASINO RESORTS, a Nevada corporation, HARVEYS
C.C. MANAGEMENT COMPANY, INC., a Nevada corporation, HARVEYS IOWA MANAGEMENT
COMPANY, INC., a Nevada corporation, HARVEYS TAHOE MANAGEMENT COMPANY, INC., a
Nevada corporation, HBR REALTY COMPANY, INC., a Nevada corporation, HARVEYS BR
MANAGEMENT COMPANY, INC., a Nevada corporation and HCR SERVICES COMPANY, INC., a
Nevada corporation (collectively the "Borrowers"), WELLS FARGO BANK, National
Association, CREDIT LYONNAIS LOS ANGELES BRANCH, BANK ONE, NA, BANKERS TRUST
COMPANY, SOCIETE GENERALE, FIRST SECURITY BANK, N.A., U.S. BANK NATIONAL
ASSOCIATION, FIRST HAWAIIAN BANK, GREATER BAY CORPORATE FINANCE, IMPERIAL BANK,
WEST COAST BANK, NATIONAL CITY BANK OF INDIANA and HIBERNIA NATIONAL BANK, as
Lenders, WELLS FARGO BANK, National Association, as the Swingline Lender (herein
in such capacity, together with its successors and assigns, the "Swingline
Lender"), WELLS FARGO BANK, National Association, as the issuer of letters of
credit thereunder (herein in such capacity, together with its successors and
assigns, the "L/C Issuer"), and WELLS FARGO BANK, National Association, as
arranger, administrative and collateral agent for the Lenders, Swingline Lender
and L/C Issuer (herein, in such capacity, called the "Agent Bank" and, together
with the Lenders, Swingline Lender and L/C Issuer, collectively referred to as
the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrowers and Banks entered into a Second Amended and
Restated Credit Agreement dated as of October 5, 1999 (the "Existing Credit
Agreement").
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. Borrowers and Banks desire to amend the Existing Credit
Agreement for the purpose of fully amending and restating Section 5.24 of the
Existing Credit
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Agreement entitled "Interest Rate Protection" and adding a quarterly
certification as to compliance with Section 5.24 to the Compliance Certificate.
D. Borrowers and Banks have agreed to the following
modifications and amendments to the Existing Credit Agreement on the terms and
subject to the 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 waiver, amendments and
modifications to the Existing Credit Agreement as specifically hereinafter
provided as follows:
1. DEFINITIONS. As of the First Amendment Effective Date,
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:
"Compliance Certificate" shall mean a compliance certificate
as described in Section 5.08(a)(v) substantially in the form of "Exhibit F",
affixed to the First Amendment and by this reference incorporated herein and
made a part hereof, which shall fully restate and supersede the "Compliance
Certificate" affixed as Exhibit F to the Existing Credit Agreement.
"Credit Agreement" shall mean the Existing Credit Agreement as
amended by the First Amendment, 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 have the meaning set forth in the
Preamble of the First Amendment to Second Amended and Restated Credit Agreement
dated as of April 14, 2000, executed by and among Borrowers and Banks.
"First Amendment Effective Date" shall mean April 5, 2000.
2. RESTATEMENT OF INTEREST RATE PROTECTION COVENANT. As of the
first Amendment Effective Date, Section 5.24 entitled "Interest Rate
Protection", shall be and is hereby fully amended and restated in its entirety
as follows:
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"Section 5.24. INTEREST RATE PROTECTION.
a. Commencing no later than one hundred eighty (180)
days following the Amendment Effective Date and continuing for a
period of no less than three (3) years following the date of such
commencement, Borrowers shall maintain Interest Rate Hedges in an
aggregate principal notional amount of no less than fifty percent
(50.0%) of the Total Funded Debt (exclusive of Contingent Liabilities)
outstanding from time to time.
b. Commencing no later than one hundred eighty (180)
days following the Commitment Increase Effective Date and continuing
for a period of no less than three (3) years following the date of
such commencement, Borrowers shall maintain Interest Rate Hedges in an
aggregate principal notional amount of no less than fifty percent
(50.0%) of the amount of the Commitment Increase outstanding from time
to time."
3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF FIRST AMENDMENT.
The First Amendment shall become effective as of the date hereof upon receipt by
Agent Bank of 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:
a. Due execution by Borrowers and Banks of
fourteen (14) duplicate originals of this First Amendment;
b. Corporate resolutions or other evidence of
requisite authority of Borrowers to execute the First Amendment;
c. Reimbursement to Agent Bank by Borrowers 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 Henderson & Morgan, LLC; and
d. Such other documents, instruments or conditions as
may be reasonably required by Lenders.
4. REPRESENTATIONS OF BORROWERS. Borrowers hereby represent to
the Banks that as of the date hereof:
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,
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which shall be true and correct in all material respects as of such date) are
true and correct on and as of the date hereof in all material respects as though
such representations and warranties had been made on and as of the date hereof,
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 Borrowers
and this First Amendment constitutes a valid, binding and enforceable obligation
of Borrowers.
5. INCORPORATION BY REFERENCE. This First Amendment shall be
and is hereby incorporated in and forms a part of the Existing Credit Agreement.
6. GOVERNING LAW. This First Amendment shall be governed by
the internal laws of the State of Nevada without reference to conflicts of laws
principles.
7. 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.
8. CONTINUANCE OF TERMS AND PROVISIONS. All of the terms and
provisions of the Existing Credit Agreement shall remain unchanged except as
specifically modified herein.
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IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment as of the day and year first above written.
BORROWERS:
HARVEYS CASINO RESORTS,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President and CEO
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Senior Vice President,
Treasurer and CFO
HARVEYS C.C. MANAGEMENT
COMPANY, INC.,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
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HARVEYS IOWA MANAGEMENT
COMPANY, INC.,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
HARVEYS TAHOE MANAGEMENT
COMPANY, INC., a Nevada
corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
HCR SERVICES COMPANY, INC.,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
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HBR REALTY COMPANY, INC.,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
HARVEYS BR MANAGEMENT COMPANY, INC.,
a Nevada corporation
By /s/ CHARLES W. SCHARER
-------------------------------
Charles W. Scharer,
President
By /s/ JOHN MCLAUGHLIN
-------------------------------
John McLaughlin,
Secretary/Treasurer
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BANKS:
-----
WELLS FARGO BANK,
National Association,
Agent Bank, Lender,
Swingline Lender and
L/C Issuer
By /s/ SUE FULLER
--------------
Name SUE FULLER
----------
Title VICE PRESIDENT
--------------
CREDIT LYONNAIS
LOS ANGELES BRANCH,
Lender
By /s/ DIANNE M. SCOTT
-------------------
Name DIANNE M. SCOTT
---------------
Title FIRST VICE PRESIDENT & MANAGER
------------------------------
BANK ONE, N.A.,
Lender
By /s/ BETTY FRANCIS-SAMILTON
--------------------------
Name BETTY FRANCIS-SAMILTON
----------------------
Title CUSTOMER SERVICE OFFICER
------------------------
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BANKERS TRUST COMPANY,
Lender
By /s/ LAURA S. BURWICK
--------------------
Name LAURA S. BURWICK
----------------
Title PRINCIPAL
---------
SOCIETE GENERALE,
Lender
By /s/ ALEX Y. KIM
---------------
Name ALEX Y. KIM
-----------
Title VICE PRESIDENT
--------------
FIRST SECURITY BANK, N.A.,
Lender
By /s/ DAVID P. WILLIAMS
---------------------
Name DAVID P. WILLIAMS
-----------------
Title VICE PRESIDENT
--------------
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U.S. BANK NATIONAL
ASSOCIATION,
Lender
By /s/ J. ANDREW BACKSTROM
-----------------------
Name J. ANDREW BACKSTROM
-------------------
Title VICE PRESIDENT
--------------
FIRST HAWAIIAN BANK,
Lender
By /s/ DONALD C. YOUNG
-------------------
Name DONALD C. YOUNG
---------------
Title SENIOR VICE PRESIDENT
---------------------
GREATER BAY CORPORATE
FINANCE, a division of
Cupertino National Bank
& Trust,
Lender
By /s/ DAN MCCARTNEY
-----------------
Name DAN MCCARTNEY
-------------
Title VICE PRESIDENT
--------------
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IMPERIAL BANK,
Lender
By /s/ R. VADALMA
--------------
Name RAY VADALMA
-----------
Title SENIOR MANAGING DIRECTOR
------------------------
WEST COAST BANK,
Lender
By /s/ TIMOTHY B. JOHNSON
----------------------
Name TIMOTHY B. JOHNSON
------------------
Title VICE PRESIDENT
--------------
NATIONAL CITY BANK OF INDIANA,
Lender
By /s/ MARK A. MINNICK
-------------------
Name MARK A. MINNICK
---------------
Title SENIOR VICE PRESIDENT
---------------------
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HIBERNIA NATIONAL BANK,
Lender
By /s/ ROSS S. WALES
-----------------
Name ROSS S. WALES
-------------
Title VICE PRESIDENT
--------------
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