EXHIBIT 10.3
AMENDMENT NO. 3 TO LOAN AGREEMENT
This Amendment No. 3 to Loan Agreement dated as of June 30, 2000,
("Amendment") is entered into with reference to the Loan Agreement dated as
of March 23, 1998, by and among Hard Rock Hotel, Inc., a Nevada corporation
("Borrower"), the Lenders named therein, and Bank of America, N.A. (under its
former name, "Bank of America National Trust and Savings Association"), as
Administrative Agent (as amended by an Amendment No. 1 dated April 10, 1998,
and an Amendment No. 2 dated March 31, 1999, the "Loan Agreement"). The
Administrative Agent, acting with the consent of the Lenders in accordance
with the terms of the Loan Agreement, and Borrower hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein are used with the
meanings set forth for those terms in the Loan Agreement.
2. SECTION 1.1 - DEFINED TERMS. The following defined terms set forth
in Section 1.1 of the Loan Agreement are hereby amended to read in full as
follows:
"COMMITMENT" means $42,000,000 or such lesser amount to which the
Commitment may be reduced from time to time pursuant to the terms of Sections
2.5, 2.6 and 2.7.
"FISCAL YEAR" means the fiscal year of Borrower consisting of (a) a
twelve-month period ending on each November 30 through November 30, 1999
(with a one month stub period consisting of the month of December, 1999, and
(b) each subsequent twelve-month period ending on each December 31.
"FIXED CHARGE COVERAGE RATIO" means, as of each date of
determination, the ratio of (a) Annualized EBITDA as of that date PLUS
Supervisory Fees paid in Cash during the twelve month period preceding that
date, to (b) the SUM of (i) required payments of principal and interest and
mandatory prepayments made in Cash by Borrower and its Subsidiaries with
respect to Indebtedness made during such twelve month period, (ii)
Maintenance Capital Expenditures (OTHER THAN ROOM REFURBISHMENT EXPENDITURES)
made during the same period, (iii) taxes actually paid in cash with respect
to income of Borrower and its Subsidiaries net of refunds during the same
period, and (iv) Supervisory Fees paid in cash during the same period.
"REDUCTION AMOUNT" means, as to each Reduction Date, $2,000,000, or
such lesser amount to which that Reduction Amount may be reduced in
accordance with the second sentence of Section 2.5 or the last sentence of
Section 2.7:
"REDUCTION DATE" means the last day of each Fiscal Quarter,
commencing with the Fiscal Quarter ending March 31, 2001, through the
Maturity Date.
In addition thereto, Section 1.1 of the Loan Agreement is hereby amended to
add the following defined term thereto:
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"ROOM REFURBISHMENT EXPENDITURES" means Maintenance Capital
Expenditure made to refurbish rooms in Borrower's original hotel tower in an
aggregate amount not to exceed (a) $6,000,000 during Borrower's Fiscal Year
ending December 31, 2000, (b) $6,000,000 during Borrower's Fiscal Year ending
December 31, 2001, and (c) $10,000,000 in the aggregate during such Fiscal
Years.
3. ELIMINATION OF SCHEDULE COMMITMENT REDUCTIONS. Section 2.6 of the
Loan Agreement is hereby amended to read in full as follows [with the added
text emphasized herein for the convenience of the reader]:
"2.6 SCHEDULED MANDATORY REDUCTIONS OF COMMITMENT. The Commitment shall
automatically and permanently reduce on each Reduction Date by the
related Reduction Amount UNTIL THE COMMITMENT HAS BEEN REDUCED TO
$25,000,000."
4. ELIMINATION OF OTHER MANDATORY COMMITMENT REDUCTIONS. Section 2.7
of the Loan Agreement is hereby amended to read in full as follows:
"2.7 OTHER MANDATORY REDUCTIONS OF COMMITMENT. The Commitment shall
automatically and permanently reduce (a) on September 30, 2001 and on
each succeeding September 30, by an amount equal to 50% of Excess Cash
Flow for the then mostly recently ended Fiscal Year, and (b) upon
receipt by Borrower or any of its Subsidiaries thereof, by an amount
equal to 100% of the Net Cash Proceeds from offerings of Indebtedness or
equity securities of Borrower or its Subsidiaries; PROVIDED, however,
that the requirements of this Section shall terminate on the earlier of
the Trigger Date or the date upon which the Commitment is reduced to
$25,000,000. Each reduction of the Commitment pursuant to this Section
2.7 shall be applied to Reduction Amounts in the inverse order of their
occurrence."
4. FIXED CHARGE COVERAGE RATIO. The Lenders waive Borrower's
compliance with the Fixed Charge Coverage Ratio set forth in Section 6.13 of
the Loan Agreement for the Fiscal Quarter ended March 31, 2000 only. This is
a one time waiver, and Borrower shall fully comply with Section 6.13 as to
all other Fiscal Periods. Furthermore, Section 6.13 of the Loan Agreement is
hereby amended to read in full as follows:
"6.13 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio as of the last day of any Fiscal Quarter set forth below to be
less than the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarter Ending Minimum Ratio
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June 30, 2000 through
September 30, 2000 1.20:1.00
December 1, 2000 and
March 31, 2001 1.30:1.00
June 30, 2001 and thereafter 1.40:1.00."
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5. CAPITAL EXPENDITURES. Section 6.14(b) of the Loan Agreement is
hereby amended to read in full as follows:
"(b) Maintenance Capital Expenditures in an aggregate amount not to
exceed $7,500,000 during any Fiscal Year."
6. ADJUSTMENTS TO ANNUALIZED EBITDA. In calculating Annualized EBITDA
(a) for any period during which any payments made to Xxxx Xxxxxxxx in
connection with the termination of his employment with Borrower, the amount
of such payments made during that period, not to exceed $1,500,000 during the
term of this Agreement, shall be added thereto, (b) for any period during
which any payments made to Xxxx XxXxxxxxx in connection with the termination
of his employment with Borrower, the amount of such payments made during that
period, not to exceed $500,000 during the term of this Agreement, shall be
added thereto, and (c) as of the last day of the Fiscal Quarter ending March
31, 2000, Annualized EBITDA shall be calculated on the basis of the 10 month
fiscal period then ended, annualized on a straight line basis.
7. RELEASE OF THE MAKE-WELL AND THE COMPLETION GUARANTY. The Lenders
hereby consent to the release of the Make-Well and the Completion Guaranty
executed by Xxxxx X. Xxxxxx, and direct the Administrative Agent to
deliver a letter in the form of Exhibit A to Xxxxx X. Xxxxxx and Borrower.
8. WAIVER - FAILURE TO DELIVER FINANCIAL STATEMENTS. The Lenders
hereby waive the (a) failure of the Borrower to deliver its audited financial
statements for the Fiscal Year ended November 30, 1999, the failure of
Borrower to deliver its unaudited financial statements for the Fiscal Year
ended November 30, 1999, and (c) the failure of Borrower to deliver its
unaudited financial statements for the Fiscal Quarter ended March 31, 2000 on
a timely basis. This is a one time waiver, and Borrower shall fully comply
with Section 7.1 as to all other Fiscal Periods.
9. CONDITIONS PRECEDENT. The effectiveness of this Amendment shall be
conditioned upon the receipt by the Administrative Agent of the following:
(a) counterparts of this Amendment executed by Borrower and the
Administrative Agent, acting on behalf of the Lenders;
(b) written consents to the execution, delivery and
performances hereof from all of the Lenders; and
(c) delivery to the Administrative Agent of Borrower's audited
financial statements for the twelve month Fiscal Year ended November 30,
1999, Borrower's unaudited financial statements for the one month fiscal
period ended December 31, 1999, and Borrower's unaudited financial
statements for the Fiscal Quarter ended March 31, 2000.
10. REPRESENTATION AND WARRANTY. Borrower represents and warrants to
the Administrative Agent and the Lenders that no Default or Event of Default
has occurred and remains continuing.
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11. CONFIRMATION. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are hereby confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
HARD ROCK HOTEL, INC., a Nevada corporation
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Title: PRESIDENT
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BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ XXXXXX XXXXXXX
----------------------------------------
Xxxxxx Xxxxxxx, Vice President
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Exhibit A
August 4, 2000
Xxxxx X. Xxxxxx
and
Hard Rock Hotel, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000-0000
This letter is delivered with reference to the Loan Agreement dated as of
March 23, 1998, by and among Hard Rock Hotel, Inc., a Nevada corporation, the
Lenders named therein, and Bank of America, N.A., as Administrative Agent (as
amended, the "Loan Agreement"). Capitalized terms used but not defined herein
are used with the meanings set forth for those terms in the Loan Agreement.
By this letter, we hereby confirm that Xx. Xxxxxx is released from his
obligations to the Lenders under the Make-Well Agreement and the Completion
Guaranty, it being understood that the Lenders do not purport to release the
Completion Guaranty on behalf of the holders of the senior subordinated notes
issued pursuant to the Indenture or on behalf of the Trustee under the
Indenture.
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXXX XXXXXXX
---------------------------
Xxxxxx Xxxxxxx, Vice President
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CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of March 23, 1998, by and among Hard Rock Hotel, Inc., a Nevada
corporation, the Lenders named therein, and Bank of America, N.A., as
Administrative Agent (as amended, the "Loan Agreement"). Capitalized terms
used but not defined herein are used with the meanings set forth for those
terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent on behalf of the Lenders, substantially in the form
presented to the undersigned as a draft.
Xxxxx Xxxxx
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[Typed/Printed Name of Lender]
By: /s/ XXXXX XXXXX
-----------------------------
XXXXX XXXXX
Title: MANAGING DIRECTOR
--------------------------
Date:
--------------------------
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CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of March 23, 1998, by and among Hard Rock Hotel, Inc., a Nevada
corporation, the Lenders named therein, and Bank of America, N.A., as
Administrative Agent (as amended, the "Loan Agreement"). Capitalized terms
used but not defined herein are used with the meanings set forth for those
terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent on behalf of the Lenders, substantially in the form
presented to the undersigned as a draft.
BANK OF SCOTLAND
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[Typed/Printed Name of Lender]
By: /s/ XXXXX XXXXX
-----------------------------
XXXXX XXXXX
Title: SENIOR VICE PRESIDENT
--------------------------
Date: JULY 14, 2000
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CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Loan Agreement
dated as of March 23, 1998, by and among Hard Rock Hotel, Inc., a Nevada
corporation, the Lenders named therein, and Bank of America, N.A., as
Administrative Agent (as amended, the "Loan Agreement"). Capitalized terms
used but not defined herein are used with the meanings set forth for those
terms in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent on behalf of the Lenders, substantially in the form
presented to the undersigned as a draft.
IMPERIAL BANK
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[Typed/Printed Name of Lender]
By: /s/ GUY Y. XXXX XXXXXXX
-----------------------------
Guy Y. Xxxx Xxxxxxx
Title: Vice President
--------------------------
Date: July 17, 2000
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