EXHIBIT 4(18)
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of November 30, 1998,
among XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation ("Parent"), XXXXXX'X
OPERATING COMPANY, INC., a Delaware corporation (the "Company"), MARINA
ASSOCIATES, a partnership organized under the laws of New Jersey ("Marina"), the
lenders party to the Credit Agreements referred to below (the "Banks"), CANADIAN
IMPERIAL BANK OF COMMERCE and SOCIETE GENERALE, as Co-Syndication Agents (the
"Co-Syndication Agents"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent (the "Documentation Agent"), and BANKERS
TRUST COMPANY, as Administrative Agent (the "Administrative Agent"). Unless
otherwise defined herein, all capitalized terms used herein shall have the
respective meanings provided such terms in the 5-Year Credit Agreement or the
364-Day Credit Agreement, as the case may be, referred to below.
W I T N E S S E T H:
WHEREAS, Parent, the Company, Marina, the Banks, the Co-Syndication
Agents, the Documentation Agent and the Administrative Agent are parties to a
Credit Agreement, dated as of July 22, 1993 and amended and restated as of June
9, 1995 and further amended and restated as of April 1, 1998 (as amended,
modified or supplemented through, but not including, the date hereof, the
"5-Year Credit Agreement");
WHEREAS, Parent, the Company, Marina, the Banks, the Co-Syndication
Agents, the Documentation Agent and the Administrative Agent are parties to a
Credit Agreement, dated as of June 9, 1995 and amended and restated as of April
1, 1998 (as amended, modified or supplemented through, but not including, the
date hereof, the "364-Day Credit Agreement" and, together with the 5-Year Credit
Agreement, the "Credit Agreements");
WHEREAS, Parent and the Company plan to acquire all of the
outstanding capital stock of Rio Hotel & Casino, Inc. ("Rio Hotel") pursuant to
a transaction whereby (x) a Wholly-Owned Subsidiary of Parent will merge with
and into Rio Hotel (the "Rio Merger") and (y) immediately thereafter, Parent
will contribute its equity interest in Rio Hotel to the Company;
WHEREAS, the consideration to be paid by Parent to the shareholders
of Rio Hotel as part of the Rio Merger shall consist of one share of common
stock of Parent for every share of common stock of Rio Hotel held by such
shareholders (as such amount may be adjusted pursuant to the Agreement and Plan
of Merger for the Rio Merger (the "Rio Merger Agreement"));
WHEREAS, as part of the Rio Merger, Rio Hotel shall keep outstanding
(i) its $100,000,000 10-5/8% Senior Subordinated Notes due July 15, 2005 (the
"10-5/8% Rio Subordinated Notes"), (ii) its $125,000,000 9-1/2% Senior
Subordinated Notes due April 15, 2007 (the "9-1/2% Rio Subordinated Notes" and,
together with the 10-5/8% Rio Subordinated Notes, the "Rio Subordinated Notes")
and (iii) its $275,000,000 senior secured bank credit facility agented by Bank
of America National Trust & Savings Association (the "Rio Credit Facility");
WHEREAS, as a result of the Rio Merger, a "change of control" shall
occur under the Rio Subordinated Notes which will allow the holders thereof to
"put" their Rio Subordinated Notes back to Rio Hotel at a purchase price of 101%
of par (the "Rio Change of Control Put");
WHEREAS, to fund the purchase of any Rio Subordinated Notes "put" to
Rio Hotel pursuant to the Rio Change of Control Put, Rio Hotel will either (x)
increase the Rio Credit Facility by $125,000,000 (the "Rio Credit Facility
Amendment") or (y) enter into a new, parallel $125,000,000 credit facility on
substantially the same terms and conditions as the Rio Credit Facility (the
"Additional Rio Credit Facility");
WHEREAS, Parent and the Company have requested that the Banks
consent to, and the Banks have agreed to give their consent to, the Rio Merger
on the terms and conditions provided for herein; and
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreements as herein provided;
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NOW, THEREFORE, it is agreed:
I. Amendments to the 5-Year Credit Agreement.
1. Section 1.08(a) of the 5-Year Credit Agreement is hereby amended
by (i) deleting the words "equal to the Base Rate" appearing therein and (ii)
inserting the words "equal to the sum of the Applicable Base Rate Margin plus
the Base Rate" in lieu thereof.
2. Section 1.08(b) of the 5-Year Credit Agreement is hereby amended
by deleting the words "Applicable Margin" appearing therein and inserting the
words "Applicable Eurodollar Rate Margin" in lieu thereof.
3. Section 2.05(a) of the 5-Year Credit Agreement is hereby amended
by inserting the words "sum of the Applicable Base Rate Margin plus the"
immediately before the words "Base Rate" in each place such words appear
therein.
4. Section 3.01(b) of the 5-Year Credit Agreement is hereby amended
by deleting the words "Applicable Margin for Eurodollar Loans" appearing therein
and inserting the words "Applicable Eurodollar Rate Margin" in lieu thereof.
5. The table appearing in Section 3.03(b) of the 5-Year Credit
Agreement is hereby amended by (x) deleting the dates "January 31, 1999", "July
31, 1999" and "January 31, 2000" appearing therein and (y) deleting the
references to (i) the amount "$75,000,000" appearing opposite the dates "January
31, 1999" and "July 31, 1999" appearing therein and (ii) the amount
"$100,000,000" appearing opposite the date "January 31, 2000" appearing therein.
6. Section 3.03(e) of the 5-Year Credit Agreement is hereby amended
by inserting the following new sentence at the end thereof:
"In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Second Amendment
Effective Date upon which Parent receives any proceeds from the issuance
by Parent of any common or preferred (including trust preferred) equity or
any Trust Preferred Subsidiary receives any proceeds from the issuance by
it of any
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trust preferred equity (other than proceeds received from the issuance of
equity to officers, directors and employees of Parent or any of its
Subsidiaries or Unrestricted Subsidiaries), the Total Revolving Loan
Commitment shall be reduced by an amount equal to its Share of the cash
proceeds of the respective equity issuance (net of underwriting or
placement discounts and commissions and other reasonable costs associated
therewith), provided that, to the extent that the 364-Day Banks do not
require that their full Share be applied to reduce the Total 364-Day
Revolving Loan Commitment, the amount of their Share not so applied shall
instead be applied to reduce the Total Revolving Loan Commitment as
required by clause (g) of this Section 3.03; and provided further, that
the provisions of this sentence shall cease to be of any further force or
effect at such time as the Total Revolving Loan Commitment and the Total
364-Day Revolving Loan Commitment shall have been reduced pursuant to this
Section 3.03(e) and Section 2.03(c) of the 364-Day Credit Agreement as a
result of equity issuances by Parent (and/or a Trust Preferred Subsidiary,
as the case may be) and/or issuances by the Company of Additional
Unsecured Senior Debt and/or Subordinated Debt generating in the aggregate
at least $750,000,000 in gross cash proceeds."
7. Section 8 of the 5-Year Credit Agreement is hereby amended by
inserting the following new Sections 8.15 and 8.16 at the end thereof:
"8.15 Maintenance of Corporate Separateness. Parent will, and will
cause each of its Subsidiaries and Unrestricted Subsidiaries to, satisfy
customary corporate formalities, including the holding of regular board of
directors' and shareholders' meetings or action by directors or
shareholders without a meeting and the maintenance of corporate offices
and records. Neither Parent nor any of its Subsidiaries shall make any
payment to a creditor of any Unrestricted Subsidiaries in respect of any
liability of any Unrestricted Subsidiaries, and no bank account of any
Unrestricted Subsidiary shall be commingled with any
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bank account of Parent or any of its Subsidiaries. Any financial
statements distributed to any creditors of any Unrestricted Subsidiaries
shall clearly establish or indicate the corporate separateness of such
Unrestricted Subsidiaries from Parent and its Subsidiaries. Finally,
neither Parent nor any of its Subsidiaries shall take any action, or
conduct its affairs in a manner, which is likely to result in the
corporate existence of (x) Parent or any of its Subsidiaries being
substantively consolidated with any Unrestricted Subsidiary or (y) any
Unrestricted Subsidiary being substantively consolidated with Parent or
any of its Subsidiaries, in either case in a bankruptcy, reorganization or
other insolvency proceeding.
8.16 Collateral. Except as otherwise provided in the immediately
succeeding sentence, in the event that on or prior to June 30, 1999 the
Company has not permanently reduced the Total Revolving Loan Commitment
and the Total 364-Day Revolving Loan Commitment pursuant to Section
3.03(e) of this Agreement and Section 2.03(c) of the 364-Day Credit
Agreement as a result of equity issuances by Parent (and/or a Trust
Preferred Subsidiary, as the case may be) and/or issuances by the Company
of Additional Unsecured Senior Debt and/or Subordinated Debt generating in
the aggregate at least $500,000,000 in gross cash proceeds, then (A)
Parent, the Company and each other Credit Party shall grant to the
Collateral Agent, for the benefit of the Administrative Agent, the
Collateral Agent, the Banks, the 364-Day Banks, the Letter of Credit
Issuers and the Interest Rate Protection Creditors, a first priority
perfected security interest in substantially all of such Credit Parties'
tangible and intangible assets, with such exceptions thereto as may be
acceptable to the Administrative Agent (including an exception with
respect to a Lien on the Company's and its Subsidiaries' riverboat
casinos), (B) each such Credit Party shall promptly enter into and/or
deliver, or cause to be delivered, all such security and other
documentation as may be necessary or, in the reasonable opinion of the
Administrative Agent,
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desirable to effectively create such security interest in all such assets,
(C) Parent, the Company and each other Credit Party shall deliver, or
cause to be delivered, to the Administrative Agent one or more opinions of
counsel, in form and substance, and from counsel, reasonably acceptable to
the Administrative Agent, with respect to the security interests granted
by such Credit Parties as required above and such other matters incident
to the transactions contemplated thereby as the Administrative Agent shall
reasonably request and (D) Parent, the Company and each Subsidiary
Borrower shall enter into an appropriate amendment to this Agreement, in
form and substance satisfactory to the Administrative Agent and the
Required Banks, in connection with the grant of the security interests as
required above and such other matters incident thereto as the
Administrative Agent may reasonably require. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, if on June
30, 1999 the senior unsecured Indebtedness of the Company is rated at
least BBB- by S&P or Baa3 by Xxxxx'x, then no Credit Party shall be
required to grant any such security interests or take any of the other
actions otherwise required by the immediately preceding sentence."
8. Section 9.01 of the 5-Year Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (xix) thereof, (ii)
deleting the period at the end of the clause (xx) thereof and inserting the text
"; and" in lieu thereof and (iii) inserting the following new clause (xxi)
immediately following clause (xx) thereof:
"(xxi) from and after the time that any Liens are created by any
Credit Party in favor of the Collateral Agent by operation of Section 8.16
(but only for so long as such Liens remain in effect), Liens on the
property or assets of such Credit Party in support of such Credit Party's
obligations in respect of any Additional Unsecured Senior Debt on an equal
and ratable basis with the Liens on such property or assets of such Credit
Party arising by operation of Section 8.16 and pursuant to documentation
in form and
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substance reasonably satisfactory to the Administrative Agent (but, in any
event, only to the extent any such Liens are required to be created
pursuant to the documentation evidencing such Additional Unsecured Senior
Debt)."
9. Section 9.03(iv) of the 5-Year Credit Agreement is hereby amended
by deleting the text "clauses (v) and (vi)" in each instance such text appears
therein and inserting in each such instance the text "clauses (v), (vi) and
(xi)" in lieu thereof.
10. Section 9.03 of the 5-Year Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (ix) thereof, (ii)
deleting the period appearing at the end of clause (x) thereof and inserting the
text "; and" in lieu thereof and (iii) inserting the following new clause (xi)
immediately following clause (x) thereof:
"(xi) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent and any
Trust Preferred Subsidiary may pay cash Dividends to holders of any trust
preferred stock issued by it."
11. The last paragraph of Section 9.05 of the 5-Year Credit
Agreement is hereby amended by (i) deleting the word "and" appearing at the end
of clause (x)(A) thereof and (ii) inserting the following new sub-clause (C)
immediately following clause (x)(B) thereof:
"and (C) from and after the consummation of the Rio Merger, Parent
and its Subsidiaries may expend up to $50,000,000 of the Investment basket
set forth in clause (i) of this Section 9.05 to make cash Investments in
Rio Hotel and its Subsidiaries, provided that such $50,000,000 amount
shall be increased to $100,000,000 from and after such time as the Total
Revolving Loan Commitment and the Total 364-Day Revolving Loan Commitment
have been reduced pursuant to Section 3.03(e) of this Agreement and
Section 2.03(c) of the 364-Day Credit Agreement as a result of equity
issuances by Parent (and/or a Trust Preferred
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Subsidiary, as the case may be) and/or issuances by the Company of
Additional Unsecured Senior Debt and/or Subordinated Debt generating in
the aggregate at least $250,000,000 in gross cash proceeds."
12. The table appearing in Section 9.07(b) of the 5-Year Credit
Agreement is hereby deleted in its entirety and the following new table is
inserted in lieu thereof:
Period Ratio
--------------------------------- ---------
Showboat Merger Effective Date to
and including June 30, 1998 5.50:1.00
July 1, 1998 to and including
March 31, 1999 5.00:1.00
April 1, 1999 to and including
June 30, 1999 4.75:1.00
July 1, 1999 to and including
September 30, 1999 4.50:1.00
October 1, 1999 to and including
December 31, 1999 4.25:1.00
January 1, 2000 to and including
March 31, 2000 4.00:1.00
Thereafter 3.50:1.00
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13. The table appearing in Section 9.08(b) of the 5-Year Credit
Agreement is hereby deleted in its entirety and the following new table is
inserted in lieu thereof:
Fiscal Quarter Ratio
----------------------------------- ---------
Fiscal quarters ending June 30,
1998, September 30, 1998,
December 31, 1998, March 31,
1999, June 30, 1999, September 30,
1999 and December 31, 1999 2.00:1.00
Fiscal quarters ending March 31,
2000 and thereafter 2.50:1.00
14. Section 9.10 of the 5-Year Credit Agreement is hereby amended by
deleting the following text appearing in clause (i)(B) thereof:
"(i) the Company or a Wholly-Owned Subsidiary thereof owns at least
79% of the total equity interest (as determined on a fully diluted basis)
in the Showboat East Chicago Riverboat Casino and (ii)".
15. Section 9.12 of the 5-Year Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Section
9.12 or anything else contained in this Agreement, neither Parent nor any
Subsidiary of Parent shall issue any trust preferred stock other than such
issuances by Parent and a Trust Preferred Subsidiary in each case so long
as all the terms and conditions of, and the documentation for,
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such trust preferred stock shall be in form and substance reasonably
satisfactory to the Administrative Agent."
16. Section 9.14 of the 5-Year Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
"In addition to the foregoing, from and after the consummation of
the Rio Merger, Parent will ensure that at all times (i) either the
Company or a Wholly-Owned Subsidiary of the Company that is a Guarantor
owns all of the outstanding capital stock of Rio Hotel and that Rio Hotel
owns all of the outstanding capital stock of Rio Properties (although
nothing herein shall prevent Rio Hotel and Rio Properties from merging
together so long as all of the outstanding capital stock of the surviving
corporation is owned by the Company or a Wholly-Owned Subsidiary of the
Company that is a Guarantor) and (ii) either Rio Hotel or Rio Properties
is the owner and operator of the Rio Hotel and Casino in Las Vegas,
Nevada."
17. The definition of "Applicable Margin" appearing in Section 11.01
of the 5-Year Credit Agreement is hereby deleted in its entirety.
18. The definition of "Consolidated EBITDA" appearing in Section
11.01 of the 5-Year Credit Agreement is hereby amended by inserting the
following proviso at the end thereof:
" ; provided that for purposes of determining compliance with
Section 9.07(b) only, (x) (A) prior to the consummation of the Rio Merger,
Consolidated EBITDA for Parent's fiscal quarters ending on March 31, 1998,
June 30, 1998 and September 30, 1998 was $124,092,000, $152,904,000 and
$158,683,000, respectively and (B) from and after the consummation of Rio
Merger, Consolidated EBITDA for Parent's fiscal quarters ending on March
31, 1998, June 30, 1998 and September 30, 1998 was $149,401,000,
$172,983,000 and $184,543,000, respectively (which amounts represent
Parent's historical Consolidated EBITDA for such quarters as adjusted to
give pro forma effect for the historical
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operating results of (I) in the case of clause (A) above, Showboat and its
Consolidated Subsidiaries for the respective fiscal quarters and (II) in
the case of clause (B) above, Showboat and its Consolidated Subsidiaries
and Rio Hotel and its Consolidated Subsidiaries for the respective fiscal
quarters) and (y) from and after the consummation of the Rio Merger,
Consolidated EBITDA for Parent's fiscal quarter ending December 31, 1998
shall be adjusted to give pro forma effect for the historical operating
results of Rio Hotel and its Consolidated Subsidiaries for the portion of
such fiscal quarter prior to the consummation of the Rio Merger".
19. The definition of "Consolidated Interest Expense" appearing in
Section 11.01 of the 5-Year Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (i) thereof and inserting a comma
in lieu thereof and (ii) inserting the following new clause (iii) immediately
following clause (ii) thereof:
"and (iii) the amount of all Dividends paid by Parent and Trust
Preferred Subsidiaries during such period to holders of their respective
trust preferred stock; provided, however, that in the event that the
parent company of such Trust Preferred Subsidiary is not allowed an
off-setting tax deduction in respect of interest payments made by such
parent company on subordinated indebtedness issued in connection with the
issuance of any such trust preferred stock, then an amount equal to the
product of (A) the amount of all Dividends paid by Parent and Trust
Preferred Subsidiaries during such period to holders of their respective
trust preferred stock and (B) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of Parent expressed
as a decimal shall instead be added to Consolidated Interest Expense for
such period".
20. The definition of "Consolidated Net Income" appearing in Section
11.01 of the 5-Year Credit Agreement is hereby deleted in its entirety and the
following new definition of "Consolidated Net Income" is inserted in lieu
thereof:
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"Consolidated Net Income" shall mean, for any period, the net income
of Parent and its Consolidated Subsidiaries (without deduction for
minority interests in Subsidiaries) for such period, provided that for the
purposes of determining the applicable Reduction Discount and Consolidated
Net Income under Sections 9.03, 9.04 and 9.05, the net income (or loss) of
any Unrestricted Subsidiary shall be included in any calculation of
Consolidated Net Income only to the extent of the payment of cash
dividends or distributions by such Unrestricted Subsidiary to Parent or a
Wholly-Owned Subsidiary thereof during such period."
21. The definition of "Permitted Designated Indebtedness" appearing
in Section 11.01 of the 5-Year Credit Agreement is hereby deleted in its
entirety and the following new definition of "Permitted Designated Indebtedness"
is inserted in lieu thereof:
"Permitted Designated Indebtedness" shall mean (i) all Subordinated
Debt incurred pursuant to Section 9.04(xi) and (ii) all Additional
Unsecured Senior Debt; provided, however, after the Total Revolving Loan
Commitment and the Total 364-Day Revolving Loan Commitment have been
permanently reduced pursuant to Section 3.03(e) of this Agreement and
Section 2.03(c) of the 364-Day Credit Agreement as a result of equity
issuances by Parent (and/or a Trust Preferred Subsidiary, as the case may
be) and/or issuances by the Company of Additional Unsecured Senior Debt
and/or Subordinated Debt generating in the aggregate at least $750,000,000
in gross cash proceeds, then the next $200,000,000 of Subordinated Debt
issued thereafter shall not be considered "Permitted Designated
Indebtedness", and provided further, however, after the Total Revolving
Loan Commitment and the Total 364-Day Revolving Loan Commitment have been
permanently reduced pursuant to Section 3.03(e) of this Agreement and
Section 2.03(c) of the 364-Day Credit Agreement in any fiscal quarter of
Parent as a result of equity issuances by Parent (and/or a Trust Preferred
Subsidiary, as the case may be) and/or issuances by the
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Company of Additional Unsecured Senior Debt and/or Subordinated Debt
generating in the aggregate at least $250,000,000 in gross cash proceeds
during such fiscal quarter, then any additional Subordinated Debt issued
thereafter during such fiscal quarter shall not be considered "Permitted
Designated Indebtedness" so long as the proceeds therefrom are used within
120 days after any such issuances to refinance, repay, purchase,
repurchase, redeem or otherwise retire the East Chicago Showboat Notes
(including the payment of any premiums associated therewith) (it being
understood and agreed that (x) until such proceeds from any such issuances
of additional Subordinated Debt are used to refinance, repay, purchase,
repurchase, redeem or otherwise retire the East Chicago Showboat Notes as
permitted hereunder, such proceeds may be used to voluntarily prepay Loans
in accordance with Section 4.01 and (y) to the extent that any portion of
such proceeds from any such issuances of additional Subordinated Debt are
not used within such 120 day period to refinance, repay, repurchase,
redeem or otherwise retire the East Chicago Showboat Notes, the Total
Revolving Loan Commitment and the 364-Day Revolving Loan Commitment shall
be reduced pursuant to Section 3.03(e) of this Agreement and Section
2.03(c) of the 364-Day Credit Agreement by an amount equal to such portion
not so used to the extent such portion would otherwise constitute
"Permitted Designated Indebtedness" hereunder).
22. The definition of "Reduction Discount" appearing in Section
11.01 of the 5-Year Credit Agreement is hereby amended by inserting the words
"and Base Rate Loans" immediately following the words "Eurodollar Loans"
appearing in clauses (A)(x), (B)(x) and (C)(x) therein.
23. The definition of "Subsidiary" appearing in Section 11.01 of the
5-Year Credit Agreement is hereby amended by inserting the following new
sentence at the end thereof:
"Notwithstanding the foregoing (and except for purposes of (x) the
definition of Unrestricted Subsidiary contained herein, (y) determining
compliance with Sections 9.07(b), 9.08(b) and 9.09 only and (z) Sections
10.04 and 10.05), an Unrestricted Subsidiary
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shall be deemed not to be a Subsidiary of Parent or any of its other
Subsidiaries for purposes of this Agreement."
24. Section 11.01 of the 5-Year Credit Agreement is hereby further
amended by inserting the following new definitions in the appropriate
alphabetical order:
"Applicable Base Rate Margin" shall mean 0% less, to the extent that
such percentage has been increased by operation of the provisions set
forth below in this definition, the then applicable Reduction Discount;
provided, however, in the event that the Total Revolving Loan Commitment
and the Total 364-Day Revolving Loan Commitment have not been reduced
pursuant to Section 3.03(e) of this Agreement and Section 2.03(c) of the
364-Day Credit Agreement as a result of equity issuances by Parent (and/or
a Trust Preferred Subsidiary, as the case may be) and/or issuances by the
Company of Additional Unsecured Senior Debt and/or Subordinated Debt
generating in the aggregate at least (x) $250,000,000 in gross cash
proceeds during the period from the Second Amendment Effective Date to and
including December 31, 1998, then the Applicable Base Rate Margin shall be
increased from and after January 1, 1999 by 1/2 of 1%, (y) either (A)
$500,000,000 in gross cash proceeds during the period from the Second
Amendment Effective Date to and including March 31, 1999 or (B)
$250,000,000 in gross cash proceeds during the period from January 1, 1999
to and including March 31, 1999, then the Applicable Base Rate Margin
shall be increased from and after April 1, 1999 by 1/2 of 1% (after giving
effect to any increase thereto effected pursuant to
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preceding clause (x), if any) and (z) either (A) $750,000,000 in gross
cash proceeds during the period from the Second Amendment Effective Date
to and including June 30, 1999 or (B) $250,000,000 in gross cash proceeds
during the period from April 1, 1999 to and including June 30, 1999, then
the Applicable Base Rate Margin shall be increased from and after July 1,
1999 by 1/2 of 1% (after giving effect to any increases effected thereto
pursuant to preceding clauses (x) and (y), if any). Notwithstanding
anything to the contrary contained in this definition or elsewhere in this
Agreement, in no event shall the Applicable Base Rate Margin be less than
0% (and if the Applicable Base Rate Margin would otherwise be less than 0%
by operation of the applicable Reduction Discount, such Applicable Base
Rate Margin shall instead be 0%).
"Applicable Eurodollar Rate Margin" shall mean 1-1/4% less the then
applicable Reduction Discount; provided, however, in the event that the
Total Revolving Loan Commitment and the Total 364-Day Revolving Loan
Commitment has not been reduced pursuant to Section 3.03(e) of this
Agreement and Section 2.03(c) of the 364-Day Credit Agreement as a result
of equity issuances by Parent (and/or a Trust Preferred Subsidiary, as the
case may be) and/or issuances by the Company of Additional Unsecured
Senior Debt and/or Subordinated Debt generating in the aggregate at least
(x) $250,000,000 in gross cash proceeds during the period from the Second
Amendment Effective Date to and including December 31, 1998, then the
Applicable Eurodollar Rate Margin shall be increased from and after
January 1, 1999 by 1/2 of 1%, (y) either (A) $500,000,000 in gross cash
proceeds during the period from the Second Amendment Effective Date to and
including March 31, 1999 or (B) $250,000,000 in gross cash proceeds during
the period from January 1, 1999 to and including March 31, 1999, then the
Applicable Base Rate Margin shall be increased from and after April 1,
1999 by 1/2 of 1% (after giving effect to any increase effected pursuant
to preceding clause (x), if any) and (z) either (A) $750,000,000 in gross
cash proceeds during the period from the Second Amendment Effective Date
to and including June 30, 1999 or (B) $250,000,000 in gross cash proceeds
during the period from April 1, 1999 to and including June 30, 1999, then
the Applicable Eurodollar Rate Margin shall be increased from and after
July 1, 1999 by 1/2 of 1% (after giving effect to any increases thereto
effected pursuant to preceding clauses (x) and (y), if any).
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"Rio Hotel" shall mean Rio Hotel and Casino, Inc., a Nevada
corporation.
"Rio Merger" shall mean the acquisition by Parent and the Company of
all of the outstanding capital stock of Rio Hotel through the merger of a
Wholly-Owned Subsidiary of the Company with and into Rio Hotel.
"Rio Properties" shall mean Rio Properties, Inc., a Nevada
corporation and a Wholly-Owned Subsidiary of Rio Hotel.
"Second Amendment Effective Date" shall mean November 30, 1998.
"Trust Preferred Subsidiary" shall mean a special purpose Subsidiary
of the Company (other than, in any event, a Material Subsidiary) whose
sole purpose is to issue trust preferred stock, which does not otherwise
have any assets or liabilities and all of the common stock of which is
owned by the Company or a Wholly-Owned Subsidiary thereof.
"Unrestricted Subsidiary" shall mean Rio Hotel and its Subsidiaries.
25. Section 13.07(a) of 5-Year Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (ii) of the proviso
thereof and inserting a comma in lieu thereof and (ii) inserting the following
new clause (iv) at the end of such proviso:
"and (iv) except as expressly provided herein, the financial results
of Unrestricted Subsidiaries shall be ignored".
II. Amendments to 364-Day Credit Agreement.
1. Section 1.09(a) of the 364-Day Credit Agreement is hereby amended
by (i) deleting the words "equal to the Base Rate" appearing therein and (ii)
inserting the words "equal to the sum of the Applicable Base Rate Margin plus
the Base Rate" in lieu thereof.
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2. Section 1.09(b) of the 364-Day Credit Agreement is hereby amended
by deleting the words "Applicable Margin" appearing therein and inserting the
words "Applicable Eurodollar Rate Margin" in lieu thereof.
3. Section 2.03(c) of the 364-Day Credit Agreement is hereby amended
by inserting the following new sentence at the end thereof:
"In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, on each date on or after the Second Amendment
Effective Date upon which Parent receives any proceeds from the issuance
by Parent of any common or preferred (including trust preferred) equity or
any Trust Preferred Subsidiary receives any proceeds from the issuance by
it of any trust preferred equity (other than proceeds received from the
issuance of equity to officers, directors and employees of Parent or any
of its Subsidiaries or Unrestricted Subsidiaries), the Total Revolving
Loan Commitment shall be reduced by an amount equal to its Share of the
cash proceeds of the respective equity issuance (net of underwriting or
placement discounts and commissions and other reasonable costs associated
therewith), provided that, to the extent that the 5-Year Banks do not
require that their full Share be applied to reduce the Total 5-Year
Revolving Loan Commitment, the amount of their Share not so applied shall
instead be applied to reduce the Total Revolving Loan Commitment as
required by clause (e) of this Section 2.03; and provided further, that
the provisions of this sentence shall cease to be of any further force or
effect at such time as the Total Revolving Loan Commitment and the Total
5-Year Revolving Loan Commitment shall have been reduced pursuant to this
Section 2.03(c) and Section 3.03(e) of the 5-Year Credit Agreement as a
result of equity issuances by Parent (and/or a Trust Preferred Subsidiary,
as the case may be) and/or issuances by the Company of Additional
Unsecured Senior Debt and/or Subordinated Debt generating in the aggregate
at least $750,000,000 in gross cash proceeds."
-17-
4. Section 7 of the 364-Day Credit Agreement is hereby amended by
inserting the following new Sections 7.15 and 7.16 at the end thereof:
"7.15 Maintenance of Corporate Separateness. Parent will, and will
cause each of its Subsidiaries and Unrestricted Subsidiaries to, satisfy
customary corporate formalities, including the holding of regular board of
directors' and shareholders' meetings or action by directors or
shareholders without a meeting and the maintenance of corporate offices
and records. Neither Parent nor any of its Subsidiaries shall make any
payment to a creditor of any Unrestricted Subsidiaries in respect of any
liability of any Unrestricted Subsidiaries, and no bank account of any
Unrestricted Subsidiary shall be commingled with any bank account of
Parent or any of its Subsidiaries. Any financial statements distributed to
any creditors of any Unrestricted Subsidiaries shall clearly establish or
indicate the corporate separateness of such Unrestricted Subsidiaries from
Parent and its Subsidiaries. Finally, neither Parent nor any of its
Subsidiaries shall take any action, or conduct its affairs in a manner,
which is likely to result in the corporate existence of (x) Parent or any
of its Subsidiaries being substantively consolidated with any Unrestricted
Subsidiary or (y) any Unrestricted Subsidiary being substantively
consolidated with Parent or any of its Subsidiaries, in either case in a
bankruptcy, reorganization or other insolvency proceeding.
7.16 Collateral. Except as otherwise provided in the immediately
succeeding sentence, in the event that on or prior to June 30, 1999 the
Company has not permanently reduced the Total Revolving Loan Commitment
and the Total 5-Year Revolving Loan Commitment pursuant to Section 2.03(c)
of this Agreement and Section 3.03(e) of the 5-Year Credit Agreement as a
result of equity issuances by Parent (and/or a Trust Preferred Subsidiary,
as the case may be) and/or issuances by the Company of Additional
Unsecured Senior Debt and/or Subordinated Debt generating in the aggregate
at least
-18-
$500,000,000 in gross cash proceeds, then (A) Parent, the Company and each
other Credit Party shall grant to the Collateral Agent, for the benefit of
the Administrative Agent, the Collateral Agent, the Banks, the 364-Day
Banks, the Letter of Credit Issuers and the Interest Rate Protection
Creditors, a first priority perfected security interest in substantially
all of such Credit Parties' tangible and intangible assets, with such
exceptions thereto as may be acceptable to the Administrative Agent
(including an exception with respect to a Lien on the Company's and its
Subsidiaries' riverboat casinos), (B) each such Credit Party shall
promptly enter into and/or deliver, or cause to be delivered, all such
security and other documentation as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to effectively create such
security interest in all such assets, (C) Parent, the Company and each
other Credit Party shall deliver, or cause to be delivered, to the
Administrative Agent one or more opinions of counsel, in form and
substance, and from counsel, reasonably acceptable to the Administrative
Agent, with respect to the security interests granted by such Credit
Parties as required above and such other matters incident to the
transactions contemplated thereby as the Administrative Agent shall
reasonably request and (D) Parent, the Company and each Subsidiary
Borrower shall enter into an appropriate amendment to this Agreement, in
form and substance satisfactory to the Administrative Agent and the
Required Banks, in connection with the grant of such security interests as
required above and such other matters incident thereto as the
Administrative Agent may reasonably require. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, if on June
30, 1999 the senior unsecured Indebtedness of the Company is rated at
least BBB- by S&P or Baa3 by Xxxxx'x, then no Credit Party shall be
required to grant any such security interests or take any of the other
actions required by the immediately preceding sentence."
-19-
5. Section 8.01 of the 364-Day Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (xix) thereof, (ii)
deleting the period at the end of the clause (xx) thereof and inserting the text
"; and" in lieu thereof and (iii) inserting the following new clause (xxi)
immediately following clause (xx) thereof:
"(xxi) from and after the time that any Liens are created by any
Credit Party in favor of the Collateral Agent by operation of Section 7.16
(but only for so long as such Liens remain in effect), Liens on the
property or assets of such Credit Party in support of such Credit Party's
obligations in respect of any Additional Unsecured Senior Debt on an equal
and ratable basis with the Liens on such property or assets of such Credit
Party arising by operation of Section 7.16 and pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent
(but, in any event, only to the extent any such Liens are required to be
created pursuant to the documentation evidencing such Additional Unsecured
Senior Debt)."
6. Section 8.03(iv) of the 364-Day Credit Agreement is hereby
amended by deleting the text "clauses (v) and (vi)" in each instance such text
appears therein and inserting in each such instance the text "clauses (v), (vi)
and (xi)" in lieu thereof.
7. Section 8.03 of the 364-Day Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (ix) thereof, (ii)
deleting the period appearing at the end of clause (x) thereof and inserting the
text "; and" in lieu thereof and (iii) inserting the following new clause (xi)
immediately following clause (x) thereof:
"(xi) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent and any
Trust Preferred Subsidiary may pay cash Dividends to holders of trust
preferred stock issued by it."
-20-
8. The last paragraph of Section 8.05 of the 364-Day Credit
Agreement is hereby amended by (i) deleting the word "and" appearing at the end
of clause (x)(A) thereof and (ii) inserting the following new sub-clause (C)
immediately following clause (x)(B) thereof:
"and (C) from and after the consummation of the Rio Merger, Parent
and its Subsidiaries may expend up to $50,000,000 of the Investment basket
set forth in clause (i) of this Section 8.05 to make cash Investments in
Rio Hotel and its Subsidiaries, provided that such $50,000,000 amount
shall be increased to $100,000,000 from and after such time as the Total
Revolving Loan Commitment and the Total 5-Year Revolving Loan Commitment
have been reduced pursuant to Section 2.03(c) of this Agreement and
Section 3.03(e) of the 364-Day Credit Agreement as a result of equity
issuances by Parent (and/or a Trust Preferred Subsidiary, as the case may
be) and/or issuances by the Company of Additional Unsecured Senior Debt
and/or Subordinated Debt generating in the aggregate at least $250,000,000
in gross cash proceeds."
9. The table appearing in Section 8.07(b) of the 364-Day Credit
Agreement is hereby deleted in its entirety and the following new table is
inserted in lieu thereof:
Period Ratio
------------------------------- ---------
Showboat Merger Effective Date
to and including June 30, 1998 5.50:1.00
July 1, 1998 to and including
March 31, 1999 5.00:1.00
April 1, 1999 to and including
June 30, 1999 4.75:1.00
-21-
Period Ratio
------------------------------- ---------
July 1, 1999 to and including
September 30, 1999 4.50:1.00
October 1, 1999 to and including
December 31, 1999 4.25:1.00
January 1, 2000 to and including
March 31, 2000 4.00:1.00
Thereafter 3.50:1.00
10. The table appearing in Section 8.08(b) of the 364-Day Credit
Agreement is hereby deleted in its entirety and the following new table is
inserted in lieu thereof:
Fiscal Quarter Ratio
-------------------------------- ---------
Fiscal quarters ending June 30,
1998, September 30, 1998,
December 31, 1998, March 31,
1999, June 30, 1999, September
30, 1999 and December 31, 1999
2.00:1.00
Fiscal quarters ending March 31,
2000 and thereafter 2.50:1.00
11. Section 8.10 of the 364-Day Credit Agreement is hereby amended
by deleting the following text appearing in clause (i)(B) thereof:
"(i) the Company or a Wholly-Owned Subsidiary thereof owns at least
79% of the total equity interest (as determined on a fully diluted basis)
in the Showboat East Chicago Riverboat Casino and (ii)".
-22-
12. Section 8.12 of the 364-Day Credit Agreement is hereby amended
by inserting the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Section
8.12 or anything else contained in this Agreement, neither Parent nor any
Subsidiary of Parent shall issue any trust preferred stock other than such
issuances by Parent and a Trust Preferred Subsidiary in each case so long
as all the terms and conditions of, and the documentation for, such trust
preferred stock shall be in form and substance reasonably satisfactory to
the Administrative Agent."
13. Section 8.14 of the 364-Day Credit Agreement is hereby amended
by inserting the following new sentence at the end thereof:
"In addition to the foregoing, from and after the consummation of
the Rio Merger, Parent will ensure that at all times (i) either the
Company or a Wholly-Owned Subsidiary of the Company that is a Guarantor
owns all of outstanding capital stock of Rio Hotel and that Rio Hotel owns
all of the outstanding capital stock of Rio Properties (although nothing
herein shall prevent Rio Hotel and Rio Properties from merging together so
long as all of the outstanding capital stock of the surviving corporation
is owned by the Company or a Wholly-Owned Subsidiary of the Company that
is a Guarantor) and (ii) either Rio Hotel or Rio Properties is the owner
and operator of the Rio Hotel and Casino in Las Vegas, Nevada."
14. The definition of "Applicable Margin" appearing in Section 10.01
of the Credit Agreement is hereby deleted in its entirety.
15. The definition of "Consolidated EBITDA" appearing in Section
10.01 of the 364-Day Credit Agreement is hereby amended by inserting the
following proviso at the end thereof:
-23-
"; provided that for purposes of determining compliance with Section
8.07(b) only, (x) (A) prior to the consummation of the Rio Merger,
Consolidated EBITDA for Parent's fiscal quarters ending on March 31, 1998,
June 30, 1998 and September 30, 1998 was $124,092,000, $152,904,000 and
$158,683,000, respectively and (B) from and after the Rio Merger,
Consolidated EBITDA for Parent's fiscal quarters ending on March 31, 1998,
June 30, 1998 and September 30, 1998 was $149,401,000, $172,983,000 and
$184,543,000 respectively (which amounts represent Parent's historical
Consolidated EBITDA for such quarters as adjusted to give pro forma effect
for the historical operating results of (I) in the case of clause (A)
above, Showboat and its Consolidated Subsidiaries for the respective
fiscal quarters and (II) in the case of clause (B) above, Showboat and its
Consolidated Subsidiaries and Rio Hotel and its Consolidated Subsidiaries
for the respective fiscal quarters) and (y) from and after the
consummation of the Rio Merger, Consolidated EBITDA for Parent's fiscal
quarter ending December 31, 1998 shall be adjusted to give pro forma
effect for the historical operating results of Rio Hotel and its
Consolidated Subsidiaries for the portion of such fiscal period prior the
consumation of the Rio Merger.
16. The definition of "Consolidated Interest Expense" appearing in
Section 10.01 of the 364-Day Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (i) thereof and inserting a comma
in lieu thereof and (ii) inserting the following new clause (iii) immediately
following clause (ii) thereof:
"and (iii) the amount of all Dividends paid by Parent and Trust
Preferred Subsidiaries during such period to holders of their respective
trust preferred stock; provided, however, that in the event that the
parent company of such Trust Preferred Subsidiary is not allowed an
off-setting tax deduction in respect of interest payments made by such
parent company on subordinated indebtedness issued in connection with the
issuance of any such trust preferred stock, then an amount equal to the
product of (A) the amount of all
-24-
Dividends paid by Parent and Trust Preferred Subsidiaries during such
period to holders of their respective trust preferred stock and (B) a
fraction, the numerator of which is one and the denominator of which is
one minus the current effective consolidated federal, state and local
income tax rate of Parent expressed as a decimal shall instead be added to
Consolidated Interest Expense for such period."
17. The definition of "Consolidated Net Income" appearing in Section
10.01 of the 364-Day Credit Agreement is hereby deleted in its entirety and the
following new definition of "Consolidated Net Income" is inserted in lieu
thereof:
"Consolidated Net Income" shall mean, for any period, the net income
of Parent and its Consolidated Subsidiaries (without deduction for
minority interests in Subsidiaries) for such period, provided that for the
purpose of determining the applicable Reduction Discount and Consolidated
Net Income under Sections 8.03, 8.04 and 8.05, the net income (or loss) of
any Unrestricted Subsidiary shall be included in the calculation of
Consolidated Net Income only to the extent of the payment of cash
dividends or distributions by such Unrestricted Subsidiary to Parent or a
Wholly-Owned Subsidiary thereof during such period."
18. The definition of "Permitted Designated Indebtedness" appearing
in Section 10.01 of the 364-Day Credit Agreement is hereby deleted in its
entirety and the following new definition of "Permitted Designated Indebtedness"
is inserted in lieu thereof:
"Permitted Designated Indebtedness" shall mean (i) all Subordinated
Debt incurred pursuant to Section 8.04(xi) and (ii) all Additional
Unsecured Senior Debt; provided, however, after the Total Revolving Loan
Commitment and the Total 5-Year Revolving Loan Commitment have been
permanently reduced pursuant to Section 2.03(c) of this Agreement and
Section 3.03(e) of the 5-Year Credit Agreement as a result of equity
issuances by Parent (and/or a Trust Preferred Subsidiary, as the case may
be) and/or issuances by the
-25-
Company of Additional Unsecured Senior Debt and/or Subordinated Debt
generating in the aggregate at least $750,000,000 in gross cash proceeds,
the next $200,000,000 of Subordinated Debt issued thereafter shall not be
considered "Permitted Designated Indebtedness", and provided further,
however, after the Total Revolving Loan Commitment and the 5-Year
Revolving Loan Commitment have been permanently reduced pursuant to
Section 2.03(c) of this Agreement and Section 3.03(e) of the 5-Year Credit
Agreement in any fiscal quarter of Parent as a result of equity issuances
by Parent (and/or a Trust Preferred Subsidiary, as the case may be) and/or
issuances by the Company of Additional Unsecured Senior Debt and/or
Subordinated Debt generating in the aggregate at least $250,000,000 in
gross cash proceeds during such fiscal quarter, then any additional
Subordinated Debt issued thereafter during such fiscal quarter shall not
be considered "Permitted Designated Indebtedness" so long as the proceeds
therefrom are used within 120 days after any such issuances to refinance,
repay, purchase, repurchase, or otherwise retire the East Chicago Showboat
Notes (including the payment of any premiums associated therewith) (it
being understood and agreed that (x) until such proceeds from any such
issuances of additional Subordinated Debt are used to refinance the East
Chicago Showboat Notes as permitted hereunder, such proceeds may be used
to voluntarily prepay Loans in accordance with Section 3.01 and (y) to the
extent that any portion of such proceeds from any such issuances of
additional Subordinated Debt are not used within such 120 day period to
refinance, repay, purchase, repurchase, redeem or otherwise retire the
East Chicago Showboat Notes, the Total Revolving Loan Commitment and the
5-Year Revolving Loan Commitment shall be reduced pursuant to Section
2.03(c) of this Agreement and Section 3.03(e) of the 5-Year Credit
Agreement by an amount equal to such portion not so used to the extent
such portion would otherwise constitute "Permitted Designated
Indebtedness" hereunder).
-26-
19. The definition of "Reduction Discount" appearing in Section
10.01 of the 364-Day Credit Agreement is hereby amended by inserting the words
"and Base Rate Loans" immediately following the words "Eurodollar Loans"
appearing in clauses (A)(x), (B)(x) and (C)(x) therein.
20. The definition of "Subsidiary" appearing in Section 10.01 of the
364-Day Credit Agreement is hereby amended by inserting the following new
sentence at the end thereof:
"Notwithstanding the foregoing (and except for purposes of (x) the
definition of Unrestricted Subsidiary contained herein, (y) determining
compliance with Sections 8.07(b), 8.08(b) and 8.09 only and (z) Sections
9.04 and 9.05), an Unrestricted Subsidiary shall be deemed not to be a
Subsidiary of Parent or any of its other Subsidiaries for purposes of this
Agreement."
21. Section 10.01 of the 364-Day Credit Agreement is hereby further
amended by inserting the following new definitions in the appropriate
alphabetical order:
"Applicable Base Rate Margin" shall mean 0% less, to the extent that
such percentage has been increased by operation of the provisions set
forth below in this definition, the then applicable Reduction Discount;
provided, however , in the event that the Total Revolving Loan Commitment
and the Total 5-Year Revolving Loan Commitment have not been reduced
pursuant to Section 2.03(c) of this Agreement and Section 3.03(e) of the
5-Year Credit Agreement as a result of equity issuances by Parent (and/or
a Trust Preferred Subsidiary, as the case may be) and/or issuances by the
Company of Additional Unsecured Senior Debt and/or Subordinated Debt
generating in the aggregate at least (x) $250,000,000 in gross cash
proceeds during the period from the Second Amendment Effective Date to and
including December 31, 1998, then the Applicable Base Rate Margin shall be
increased from and after January 1, 1999 by 1/2 of 1%, (y) either (A)
$500,000,000 in gross
-27-
cash proceeds during the period from the Second Amendment Effective Date
to and including March 31, 1999 or (B) $250,000,000 in gross cash proceeds
during the period from January 1, 1999 to and including March 31, 1999,
then the Applicable Base Rate Margin shall be increased from and after
April 1, 1999 by 1/2 of 1% (after giving effect to any increase thereto
effected pursuant to preceding clause (x), if any) and (z) either (A)
$750,000,000 in gross cash proceeds during the period from the Second
Amendment Effective Date to and including June 30, 1999 or (B)
$250,000,000 in gross cash proceeds during the period from April 1, 1999
to and including June 30, 1999, then the Applicable Base Rate Margin shall
be increased from and after July 1, 1999 by 1/2 of 1% (after giving effect
to any increases effected thereto pursuant to preceding clauses (x) and
(y), if any). Notwithstanding anything to the contrary contained in this
definition or elsewhere in this Agreement, in no event shall the
Applicable Base Rate Margin be less than 0% (and if the Applicable Base
Rate Margin would otherwise be less than 0% by operation of the applicable
Reduction Discount, such Applicable Base Rate Margin shall instead be 0%).
"Applicable Eurodollar Rate Margin" shall mean 7/8 of 1% less the
then applicable Reduction Discount, provided, however, in the event that
the Total Revolving Loan Commitment and the Total 5-Year Revolving Loan
Commitment have not been reduced pursuant to Section 2.03(c) of this
Agreement and Section 3.03(e) of the 5-Year Credit Agreement as a result
of equity issuances by Parent (and/or a Trust Preferred Subsidiary, as the
case may be) and/or issuances by the Company of Additional Unsecured
Senior Debt and/or Subordinated Debt generating in the aggregate at least
(x) $250,000,000 in gross cash proceeds during the period from the Second
Amendment Effective Date to and including December 31, 1998, then the
Applicable Eurodollar Rate Margin shall be increased from and after
January 1, 1999 by 1/2 of 1%, (y) either (A) $500,000,000 in gross cash
proceeds during the period from the Second Amendment Effective Date to and
including March 31, 1999 or (B) $250,000,000 in gross cash proceeds during
the period from January 1, 1999 to and including March 31, 1999,
-28-
then the Applicable Eurodollar Rate Margin shall be increased from and
after April 1, 1999 by 1/2 of 1% (after giving effect to any increase
thereto effected pursuant to preceding clause (x), if any) and (z) either
(A) $750,000,000 in gross cash proceeds during the period from the
Restatement Effective Date to and including June 30, 1999 or (B)
$250,000,000 in gross cash proceeds during the period from April 1, 1999
to and including June 30, 1999, then the Applicable Eurodollar Rate Margin
shall be increased from and after July 1, 1999 by 1/2 of 1% (after giving
effect any increases thereto effected pursuant to preceding clauses (x)
and (y), if any).
"Rio Hotel" shall mean Rio Hotel and Casino, Inc., a Nevada
corporation.
"Rio Merger" shall mean the acquisition by Parent and the Company of
all of the outstanding capital stock of Rio Hotel through the merger of a
Wholly-Owned Subsidiary of the Company with and into Rio Hotel.
"Rio Properties" shall mean Rio Properties, Inc., a Nevada
corporation and a Wholly-Owned Subsidiary of Rio Hotel.
"Second Amendment Effective Date" shall mean November 30, 1998.
"Trust Preferred Subsidiary" shall mean a special purpose Subsidiary
of the Company (other than, in any event, a Material Subsidiary) whose
sole purpose is to issue trust preferred stock and which does not
otherwise have any assets or liabilities and all of the common stock of
which is owned by the Company or a Wholly-Owned Subsidiary thereof.
"Unrestricted Subsidiary" shall mean Rio Hotel and its Subsidiaries.
-29-
22. Section 12.07(a) of 364-Day Credit Agreement is hereby amended
by (i) deleting the word "and" appearing at the end of clause (ii) of the
proviso thereof and inserting a comma in lieu thereof and (ii) inserting the
following new clause (iv) at the end of such proviso:
"and (iv) except as expressly provided herein, the financial results
of Unrestricted Subsidiaries shall be ignored".
III. Consent to Rio Merger.
1. The Banks hereby consent to the consummation of the Rio Merger on
the terms and conditions set forth in the Rio Merger Agreement and this
Amendment, provided that on or prior to the time the Rio Merger is consummated,
either (x) the Rio Credit Facility Amendment or (y) the Additional Rio Credit
Facility shall have been entered into and shall, in either case, be in full
force and effect and the Administrative Agent shall have received a true and
correct copy of the Rio Credit Facility Amendment or the Additional Rio Credit
Facility, as the case may be, which shall, in either case, be in form and
substance reasonably satisfactory to the Administrative Agent.
IV. Miscellaneous.
1. In order to induce the Banks to enter into this Amendment, Parent
and each Borrower hereby represent and warrant that (x) no Default or Event of
Default exists on the Second Amendment Effective Date, both before and after
giving effect to this Amendment and (y) all of the representations and
warranties contained in each Credit Agreement shall be true and correct in all
material respects on and as of the Second Amendment Effective Date, both before
and after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Second Amendment
Effective Date (it being understood that any representation or warranty made as
of a specified date shall be required to be true and correct in all material
respects only as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreements or any other Credit Document.
-30-
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Parent, the Company and the Administrative
Agent.
4. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
5. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when (i) Parent, the Borrowers and the Required Banks
under, and as defined in, each Credit Agreement shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(in-cluding by way of telecopier) the same to the Administrative Agent at the
Notice Office and (ii) the Administrative Agent shall have received for the
account of each Bank which has executed a counterpart hereof and delivered the
same to the Administrative Agent at the Notice Office by 5:30 p.m. (New York
time) on December 7, 1998 an amendment fee equal to .15% of the sum of such
Bank's Revolving Loan Commitment under each of the 5-Year Credit Agreement and
the 364-Day Credit Agreement.
6. From and after the Second Amendment Effective Date, all
references in the Credit Agreements and the other Credit Documents to each
Credit Agreement shall be deemed to be references to each such Credit Agreement
as modified hereby.
* * *
-31-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President/Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President/Treasurer
MARINA ASSOCIATES
By: XXXXXX'X ATLANTIC CITY, INC.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By: /s/ Xxxx Xxx Xxxxx
----------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
Individually and as Documentation Agent
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SOCIETE GENERALE, Individually and as a
Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
CANADIAN IMPERIAL BANK OF
COMMERCE, Individually and as
Co-Syndication Agent
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director, CIBC
Xxxxxxxxxxx Corp., AS AGENT
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
By: /s/ Xxxxxx X. Xxxxx, III
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Name: Xxxxxx X. Xxxxx, III
Title: Associate
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxx X. X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. X. Xxxxxxx
Title: SVP
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx Xxxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President & Manager
DEUTSCHE BANK AG, acting through its
New York Branch and/or Cayman
Islands Branch
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxx-Xxxxx Xxxxxx
----------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
THE SUMITOMO BANK, LIMITED, ATLANTA
AGENCY
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: VP
THE MITSUBISHI TRUST & BANKING CORP.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
THE SANWA BANK, LIMITED, NEW YORK
BRANCH
By: /s/ Xxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
ABN AMRO BANK N.V., SAN XXXXXXXXX
XXXXXX
By: ABN AMRO NORTH AMERICA, INC., as
its Agent
By: /s/ Xxxxxxx X. French
----------------------------
Name: Xxxxxxx X. French
Title: Group Vice President & Director
By: /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Credit Officer
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
----------------------------
Name: M. D. Xxxxx
Title: Agent Operations
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Christian Jagenberg
-----------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
and Deputy General Manager
THE TOKAI BANK, LIMITED, NEW YORK
BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant General Manager
BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Relationship Manager
FIRST NATIONAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title:
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
FIRST AMERICAN NATIONAL BANK, operating
as, and successor in interest by
merger to, Deposit Guaranty National Bank
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
By: ---------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Representative
HIBERNIA NATIONAL BANK
By: /s/ Xxxx Wales
---------------------------
Name: Xxxx Wales
Title: Vice President
DEPOSIT GUARANTY NATIONAL BANK
By: ---------------------------
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Xxxxx Xxxxxxx
--------------------------
/s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Erste Bank New York Branch
Name: Xxxx X. Xxxxxxx
Title: First Vice President
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
By: ---------------------------
Name:
Title:
BANK OF AMERICA NT & SA
By: ---------------------------
Name:
Title:
NBD BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Account Officer
