EXHIBIT 4.01
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THIRTEENTH AMENDMENT TO
CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO CREDIT AGREEMENT, (this
"Thirteenth Amendment") is made and dated as of August 8, 1997
among Rio Properties, Inc., a Nevada corporation (the "Company"),
Rio Leasing, Inc. ("Rio Leasing"; the Company and Rio Leasing,
each a "Borrower" and collectively, the "Borrowers"), the several
financial institutions party hereto ("Banks"), and Bank of
America National Trust and Savings Association, as agent for the
Banks (the "Agent") and amends the Credit Agreement dated as of
July 15, 1993 among the Borrowers, the Banks and the Agent, as
amended by a First Amendment to Credit Agreement dated as of
October 25, 1993, a Second Amendment to Credit Agreement dated as
of November 8, 1993, a Third Amendment to Credit Agreement dated
as of April 15, 1994, a Fourth Amendment to Credit Agreement
dated as of December 16, 1994, a Fifth Amendment to Credit
Agreement dated as of March 20, 1995, a Sixth Amendment to Credit
Agreement dated as of July 31, 1995, a Seventh Amendment to
Credit Agreement dated as of January 17, 1996, an Eighth
Amendment to Credit Agreement dated as of June 17, 1996, a Ninth
Amendment to Credit Agreement and Notes dated as of January 13,
1997, a Tenth Amendment to Credit Agreement dated as of February
3, 1997, an Eleventh Amendment to Credit Agreement dated as of
May 13, 1997 and a Twelfth Amendment to Credit Agreement and
Waiver dated as of May 13, 1997 (as so amended, the "Agreement").
RECITALS
A. The Company had previously notified the Agent and
the Banks that it intended to form a limited partnership to
acquire an approximate 60% ownership interest in the Seven Hills
Golf Course. The Company now desires to have Rio Development, a
wholly-owned Unrestricted Subsidiary of the Parent Guarantor,
directly acquire 100% of the Seven Hills Golf Course. The
purchase price for the Seven Hills Golf Course is approximately
$17,000,000, plus the assumption of approximately $6,000,000 in
existing indebtedness secured by the Seven Hills Golf Course.
Bank of America National Trust and Savings Association has also
made a $8,000,000 term loan to Rio Development and Rio Resorts
for use in connection with the Seven Hills Golf Course.
B. In connection with the Seven Hills Golf Course,
the Company has requested that the Agreement be amended to (i)
increase the permitted investment basket (the "SEVEN HILLS
INVESTMENT BASKET") from $12,000,000 to $28,000,000 to permit
such acquisition and for additional improvements in Seven Hills
Golf Course clubhouse and (ii) create a second basket (the "SEVEN
HILLS OPERATING EXPENDITURE BASKET") to enable the Parent
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Guarantor and its Subsidiaries to pay up to $5,000,000 per year
in operating expenses related to the Seven Hills Golf Course.
C. Separately, the Company has also requested that
the Agreement be amended to: (i) increase the annual Capital
Expenditures basket from $7,500,000 to $10,000,000, (ii) increase
the amount of Real Property acquisitions permitted thereunder
from $35,000,000 to $40,000,000, and (iii) permit expending up to
$1,900,000 in additional Capital Expenditures towards the
extension of Xxxxx Avenue near the Property and for planning
relating to the development of property no. 2.
D. The Agent and the Banks are willing to consent to
the foregoing and to so amend the Agreement, all on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
1. TERMS. All terms used herein shall have the same
meanings as in the Agreement unless otherwise defined herein.
All references to the Agreement herein shall mean the Agreement
as hereby amended.
2. AMENDMENTS TO AGREEMENT. The Borrowers, the Banks
and the Agent hereby agree that the Agreement is amended as
follows:
2.1 All references to the Seven Hills Venture L.P. are
deleted.
2.2 The following new definitions are inserted in
proper alphabetical order in Section 1.01 of the Agreement as
follows:
"'SEVEN HILLS OPERATING EXPENDITURES' means
(without duplication) the aggregate of all amounts
directly or indirectly paid by the Parent Guarantor and
its Subsidiaries and Unrestricted Subsidiaries, whether
by direct payment, dividend, intercompany charge,
investment, in the Ordinary Course of Business or
otherwise, for net operating expenses relating to the
Seven Hills Golf Course."
"'SEVEN HILLS OPERATING EXPENDITURE BASKET' means
$5,000,000 in any calendar year; PROVIDED, that the
Seven Hills Operating Expenditure Basket for calendar
year 1997 shall be $2,500,000."
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2.3 The definitions of "Seven Hills Venture Basket"
and "Seven Hills Venture Basket Expenditures" are renamed to
"Seven Hills Investment Basket" and "Seven Hills Investment
Expenditures," respectively, and are amended and restated in
their entirety as follows:
"'SEVEN HILLS INVESTMENT EXPENDITURES' means
(without duplication) the aggregate of all investments
directly or indirectly made by the Parent Guarantor and
its Subsidiaries and Unrestricted Subsidiaries in the
Seven Hills Golf Course, including without limitation
for the acquisition thereof, all Capital Expenditures
related thereto and all Indebtedness assumed or
incurred in connection therewith."
"'SEVEN HILLS INVESTMENT BASKET' means
$28,000,000."
2.4 The definition is amended and restated in its
entirety as follows:
"'UNRESTRICTED SUBSIDIARIES' means Rio Development
and Rio Resorts."
2.5 Section 6.02(g) of the Agreement is amended and
restated in its entirety as follows:
"(g) Concurrently with the delivery of the
financial statements referred to in Sections 6.01(a)
and (b), a written report, in form and detail
reasonably acceptable to the Agent, describing (i) the
status of the acquisition, development and operation of
the Seven Hills Golf Course and (ii) the amount of
Seven Hills Investment Expenditures and Seven Hills
Operating Expenditures made to date and reasonably
anticipated to be made."
2.6 Section 7.01(m) of the Agreement (Limitation on
Liens) is amended and restated in its entirety as follows:
"(m) Liens on the Seven Hills Golf Course securing
Indebtedness permitted by Section 7.05(i)."
2.7 Section 7.04(d) of the Agreement (Loans and
Investments) is amended and restated in its entirety as follows:
"(d) investments and operating expenses relating
to the Seven Hills Golf Course; PROVIDED, that, after
giving effect thereto, (i) Seven Hills Investment
Expenditures shall not exceed the Seven Hills
Investment Basket, (ii) Seven Hills Operating
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Expenditures shall not exceed the Seven Hills Operating
Expenditure Basket and (iii) no Default or Event of
Default shall then exist or result therefrom; PROVIDED,
FURTHER, that no Loan Party shall cause or permit Rio
Development to own any assets other than the Seven
Hills Golf Course or any other Unrestricted Subsidiary
to own any assets."
2.8 Section 7.05(i) of the Agreement (Limitation on
Indebtedness) is amended and restated in its entirety as two
subsections as follows:
"(i) Indebtedness not exceeding $6,000,000 in the
aggregate secured by a Lien on the Seven Hills Golf
Course existing at the time Rio Development acquired
the Seven Hills Golf Course; PROVIDED, that, after
giving effect thereto, Seven Hills Investment
Expenditures shall not exceed the Seven Hills
Investment Basket and no Default or Event of Default
shall then exist or result therefrom; and
"(j) Additional unsecured Indebtedness of Rio
Development and/or Rio Resorts not exceeding $8,000,000
in the aggregate, the proceeds of which are used to
acquire or develop the Seven Hills Golf Course or to
reimburse the Parent Guarantor and its Subsidiaries for
acquiring or developing the Seven Hills Golf Course;
PROVIDED, that, after giving effect thereto, Seven
Hills Investment Expenditures shall not exceed the
Seven Hills Investment Basket and no Default or Event
of Default shall then exist or result therefrom."
2.9 Section 7.06 (Transactions With Affiliates) of the
Agreement (Transactions With Affiliates) is amended by inserting
the following proviso at the end thereof before the period:
"PROVIDED, HOWEVER, that the Parent Guarantor and its
Subsidiaries may make Seven Hills Investment
Expenditures and Seven Hills Operating Expenditures
PROVIDED that, after giving effect thereto, (i) Seven
Hills Investment Expenditures shall not exceed the
Seven Hills Investment Basket, (ii) Seven Hills
Operating Expenditures shall not exceed the Seven Hills
Operating Expenditure Basket and (iii) no Default or
Event of Default shall then exist or result therefrom."
2.10 Section 7.08(g) of the Agreement is deleted in its
entirety.
2.11 Section 7.13 of the Agreement (Capital
Expenditures) is amended and restated in its entirety as follows:
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"7.13 CAPITAL EXPENDITURES. The Loan Parties and
their respective Subsidiaries and Unrestricted
Subsidiaries shall not make, or become legally
obligated to make, and Capital Expenditures EXCEPT:
"(a) Capital Expenditures in an fiscal year not in
excess of the SUM OF (i) $10,000,000 PLUS (ii) the
amount, if any, by which $10,000,000 exceeds Capital
Expenditures made by the Loan Parties and their
combined Subsidiaries in the immediately preceding
fiscal year; PROVIDED, HOWEVER, that Capital
Expenditures shall not exceed $20,000,000 in any fiscal
year;
"(b) acquisition costs of Real Property not
exceeding $40,000,000 in the aggregate;
"(c) Capital Expenditures not exceeding
$225,000,000 in the aggregate for the Phase 5
Expansion;
"(d) Capital Expenditures in connection with the
Seven Hills Golf Course; PROVIDED, that, after giving
effect thereto, Seven Hills Investment Expenditures
shall not exceed the Seven Hills Investment Basket and
no Default or Event of Default shall then exist or
result therefrom; and
"(e) Capital Expenditures not exceeding $1,900,000
in the aggregate for the extension of Xxxxx Avenue and
for planning relating to the development of property
number 2."
2.12 Schedule 5.19 is amended and restated in its
entirety in the form of Schedule 5.19 hereto.
2.13 Schedule 5.28 is amended by adding the property
descriptions set forth in the form of Schedule 5.28 hereto.
3. REPRESENTATIONS AND WARRANTIES. The Borrowers
jointly and severally represent and warrant to the Banks and
Agent:
3.1 AUTHORITY. The Borrowers have all necessary
power and have taken all corporate action necessary to make this
Thirteenth Amendment, the Agreement, and all other agreements and
instruments to which they are a party executed in connection
herewith and therewith, the valid and enforceable obligations
they purport to be.
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3.2 NO LEGAL OBSTACLE TO THIRTEENTH AMENDMENT.
Neither the execution of this Thirteenth Amendment, the making by
any Borrower of any borrowings under the Agreement, nor the
performance of the Agreement by any Borrower has constituted or
resulted in or will constitute or result in a breach of the
provisions of any contract to which any Borrower is a party, or
the violation of any law, judgment, decree or governmental order,
rule or regulation applicable to any Borrower, or result in the
creation under any agreement or instrument of any security
interest, lien, charge, or encumbrance upon any of the assets of
any Borrower, except as permitted in the Agreement. No approval
or authorization of any governmental authority is required to
permit the execution, delivery or performance by any Borrower of
this Thirteenth Amendment, the Agreement, or the transactions
contemplated hereby or thereby, or the making of any borrowing by
any Borrower under the Agreement.
3.3 INCORPORATION OF CERTAIN REPRESENTATIONS. The
representations and warranties set forth in Article V of the
Agreement are true and correct in all respects on and as of the
date hereof as though made on and as of the date hereof.
3.4 DEFAULT. Except as waived hereby, no Event of
Default under the Agreement has occurred and is continuing.
4. CONDITIONS, EFFECTIVENESS. The effectiveness of
this Thirteenth Amendment shall be subject to the compliance by
the Borrowers with their agreements herein contained, and to the
delivery of the following to the Agent in form and substance
satisfactory to the Agent:
4.1 CORPORATE RESOLUTIONS. A copy of a resolution or
resolutions passed by the Board of Directors of each Borrower,
certified by the Secretary or an Assistant Secretary of each
Borrower as being in full force and effect on the date hereof,
authorizing the amendments to the Agreement, and the Loan
Documents to which each is a party, and the execution, delivery
and performance of this Thirteenth Amendment.
4.2 AUTHORIZED SIGNATORIES. A certificate, signed by
the Secretary or an Assistant Secretary of each Borrower dated
the date hereof, as to the incumbency of the person or persons
authorized to execute and deliver this Thirteenth Amendment and
any instrument or agreement required hereunder on behalf of the
Borrowers.
4.3 OTHER EVIDENCE. Such other evidence with respect
to the Loan Parties or any other person as the Agent or any Bank
may reasonably request to establish the consummation of the
transactions contemplated hereby, the taking of all corporate
action in connection with this Thirteenth Amendment, the
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Agreement and the Notes and the compliance with the conditions
set forth herein.
5. MISCELLANEOUS.
5.1 NO WAIVER. This Thirteenth Amendment is specific
in time and in intent and does not constitute, nor should it be
construed as, a waiver of any other right, power or privilege
under the Loan Documents, or under any agreement, contract,
indenture, document or instrument mentioned in the Loan
Documents; nor does it preclude any exercise thereof or the
exercise of any other right, power or privilege, nor shall any
future waiver of any right, power, privilege or default
hereunder, or under any agreement, contract, indenture, document
or instrument mentioned in the Loan Documents, constitute a
waiver of any other default of the same or of any other term or
provision.
5.2 EFFECTIVENESS OF THE AGREEMENT. Except as hereby
expressly amended, the Agreement remains in full force and
effect, and is hereby ratified and confirmed in all respect.
5.3 COUNTERPARTS. This Thirteenth Amendment may be
executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and
the same instrument. This Thirteenth Amendment shall not become
effective until the Borrowers, the Banks and the Agent shall have
signed a copy hereof, and the Parent Guarantor shall have
consented hereto, whether the same instrument or counterparts,
and the same shall have been delivered to the Agent.
5.4 JURISDICTION. This Thirteenth Amendment, and any
instrument or agreement required hereunder, shall be governed by
and construed under the laws of the State of Nevada; provide that
the Agent and the Banks shall retain all rights arising under
Federal law.
IN WITNESS WHEREOF, the parties hereto have caused this
Thirteenth Amendment to be duly executed and delivered as of the
date first written above.
RIO PROPERTIES, INC.
RIO LEASING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
(Signatures continue)
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:
Xxxxxx Xxxxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:
Xxxxx Xxxxx
Vice President
XXXXX FARGO BANK NATIONAL
ASSOCIATION
By:
Title:
FIRST SECURITY BANK, N.A.
By:
Title:
NBD BANK
By:
Title:
SOCIETE GENERALE
By:
Title:
(Signatures Continue)
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U.S. BANK OF NEVADA
By:
Title:
BANK OF SCOTLAND
By:
Title:
PNC BANK, NATIONAL ASSOCIATION,
SUCCESSOR BY MERGER TO MIDLANTIC
BANK, N.A.
By:
Title:
BANK OF HAWAII
By:
Title:
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CONSENT OF PARENT GUARANTOR
AND SUBSIDIARY GUARANTORS
The undersigned Parent Guarantor, as party to the
Parent Guaranty dated July 15, 1993, Cinderlane, Inc., as party
to a Subsidiary Guaranty dated January 13, 1997, and HLG, Inc.,
Inc., as party to a Subsidiary Guaranty dated May 13, 1997,
hereby consent to the foregoing Thirteenth Amendment to Credit
Agreement dated as of August 8, 1997 and confirm that the Parent
Guaranty and each Subsidiary Guaranty remain in full force and
effect after giving effect thereto and represent and warrant that
there is no defense, counterclaim or offset of any type or nature
under the Parent Guaranty or either Subsidiary Guaranty.
Dated as of August 8, 1997
RIO HOTEL & CASINO, INC.
CINDERLANE, INC.
HLG, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
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SCHEDULE 5.19
TO CREDIT AGREEMENT
SUBSIDIARIES AND OTHER INVESTMENTS
PARENT: RIO HOTEL AND CASINO, INC.
Jurisdiction Percentage
in Which Direct of
PERSON Organized Owner Ownership
SUBSIDIARIES
Rio Properties, Inc. Nevada Parent Guarantor 100%
Rio Leasing, Inc. Nevada Parent Guarantor 100%
Cinderlane, Inc. Nevada Rio Properties 100%
HLG, Inc. Nevada Parent Guarantor 100%
UNRESTRICTED SUBSIDIARIES
Rio Development
Company, Inc. Nevada Parent Guarantor 100%
Rio Resort
Properties, Inc. Nevada Parent Guarantor 100%
SCHEDULE 5.28
TO CREDIT AGREEMENT
CINDERLANE PROPERTIES NOT PLEDGED TO BANKS
The following paragraph is added to Schedule 5.28:
"In addition to the real property listed above, real property
not exceeding $5,000,000 in aggregate value, acquired by
Cinderlane pursuant to Section 7.13(b) of the Agreement (which
real property is contiguous to, and/or to be developed in
conjunction with, existing real property owned by Cinderlane
or the Company) will not be required to be pledged to the
Agent and the Banks."
