EXHIBIT 4.08
89
NINTH AMENDMENT TO
CREDIT AGREEMENT AND NOTES
THIS NINTH AMENDMENT TO THE CREDIT AGREEMENT AND NOTES
(this "Ninth Amendment") is made and dated as of January 13, 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 (a) the Credit Agreement dated as
of July 15, 1993 among the Company, 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 and an Eighth
Amendment to Credit Agreement dated as of June 17, 1996 (as so
amended, the "Agreement"), and (b) all Notes executed and
delivered by the Company.
RECITALS
A. The Company has notified the Agent that the Parent
Guarantor desires to issue up to $125,000,000 in aggregate
principal amount of subordinated notes.
B. The Company has requested that the Agent and the
Banks permit a newly formed subsidiary of the Parent Guarantor,
Rio Leasing, Inc. to be a co-Borrower under the Agreement.
C. Pursuant to Section 7.13 of the Agreement, the
Company and its Subsidiaries are permitted to expend up to
$35,000,000 to acquire additional real property. The Company
formed a new subsidiary, Cinderlane, Inc., a Nevada corporation
("Cinderlane"), principally for the purpose of acquiring such
real property. The Company downstreamed money to Cinderlane to
acquire certain properties, and desires to downstream additional
money to Cinderlane to fund future acquisitions, all within the
$35,000,000 basket provided in Section 7.13. The property which
Cinderlane has acquired and contemplates acquiring is described
on Schedule 5.28 hereto. Among the property acquired by
Cinderlane is the Cinderlite Parcel described on Exhibit O to the
Agreement, as revised by this Ninth Amendment (the "Cinderlite
Parcel").
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D. The Company has requested a waiver under the
Agreement to ratify such prior downstreaming and an amendment to
the Agreement to permit future investments in Subsidiaries with
respect to which Sections 6.14 and 6.15 of the Agreement have
been complied with. In connection therewith, the Company is
willing to cause Cinderlane to contribute the Cinderlite Parcel
to the Company, and pledge the Cinderlite Parcel and the other
parcels described on Exhibit O (collectively, the "Transferred
Properties") to the Secured Parties.
E. The Agent and Banks are willing to agree to the
foregoing provided (i) Rio Leasing pledges substantially all of
its assets to the Banks, (ii) Cinderlane becomes a guarantor and
its stock is pledged to the Agent, (iii) the Transferred
Properties are pledged to the Secured Parties, and (iv) any other
property which Cinderlane or other Subsidiaries of the Parent
Guarantor may from time to time hereafter acquire in addition to
the property to be set forth on Schedule 5.28 hereto are pledged
to the Secured Parties.
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 and the Notes unless otherwise
defined herein. All references to the Agreement and the Notes
herein shall mean the Agreement as hereby amended.
2. AMENDMENTS TO AGREEMENT. The Loan Parties, the
Banks and the Agent hereby agree that the Agreement is amended as
follows:
2.1 The first paragraph and first recital of the
Agreement are amended and restated in their entirety as follows:
"This CREDIT AGREEMENT is entered into as of July
15, 1993, among Rio Properties, Inc., a Nevada
corporation (the "COMPANY"), Rio Leasing, Inc., a
Nevada corporation ("RIO LEASING; the Company and Rio
Leasing, each a "BORROWER" and collectively, the
"BORROWERS"), the several financial institutions party
to this Agreement, and Bank of America National Trust
and Savings Association, as agent for the Banks.
"WHEREAS, the Banks have agreed to make a term
loan available to the Company and a revolving credit
facility available to the Borrowers upon the terms and
conditions set forth in this Agreement;"
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2.2 The following definitions in Section 1.01 of the
Agreement are amended by deleting "the Company" and "the
Company's" and inserting "a Borrower" and "a Borrower's",
respectively, in lieu thereof:
"Acquisition"
"Affiliate"
"Borrowing"
"Capital Lease Obligations"
"Conversion Date"
"Disposition"
"Environmental Claim"
"Gaming Laws"
"Guaranty"
"Interest Period"
"Loan"
"Loan Documents"
"Material Adverse Effect"
"Net Issuance Proceeds"
"Notice of Borrowing"
"Notice of "Conversion/Continuation"
"Pledge Agreement"
"Subsidiary Guarantor"
2.3 The following definition in Section 1.01 of the
Agreement is amended by deleting "the Company" and inserting "the
Borrowers" in lieu thereof:
"Pricing Ratio"
2.4 The following definitions in Section 1.01 of the
Agreement are amended by deleting "the Company and its
Subsidiaries" and inserting "the Borrowers and their respective
Subsidiaries" in lieu thereof:
"Interest Coverage Ratio"
"Interest Expense"
"Material Adverse Effect"
"Tangible Net Worth"
2.5 The following definitions in Section 1.01 of the
Agreement are amended by deleting "the Company or its
Subsidiaries", "the Company or a Subsidiary", "the Company or any
Subsidiaries", "the Company or any Subsidiary of the Company",
"the Company and/or its Subsidiaries", "the Company and its
respective Subsidiaries" and "the Company or any of its
Subsidiaries" and inserting "any Borrower or any of its
Subsidiaries" in lieu thereof:
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"Acquisition"
"Collateral"
"Collateral Documents"
"Completion Guaranty"
"Disposition"
"Funded Debt"
"Guaranty Obligation"
"Joint Venture"
"License Revocation"
"Ordinary Course of Business"
"Pledge Agreement"
2.6 The definition of "Net Income" in Section 1.01 of
the Agreement is amended by deleting "the consolidated net income
of the Company and its Subsidiaries" and inserting "the combined
net income of the Borrowers and their respective Subsidiaries" in
lieu thereof.
2.7 The following definitions in Section 1.01 of the
Agreement are amended by deleting "the Company" and "the
Company's" wherever they appear and inserting "the Loan Parties"
and the "Loan Parties'", respectively, in lieu thereof:
"Obligations"
"Real Property"
2.8 The following definitions in Section 1.01 of the
Agreement are amended and restated in their entirety as follows:
"'EBITDA' means, for any period, for the Borrowers
and their respective Subsidiaries on a combined basis,
determined in accordance with GAAP, the sum of (a) the
net income (or net loss) PLUS (b) all amounts treated
as expenses for depreciation and interest and the
amortization of intangibles of any kind to the extent
included in the determination of such net income (or
loss), PLUS (c) all accrued taxes on or measured by
income to the extent included in the determination of
such net income (or loss), adjusted by adding thereto
any Pre-Opening Expenses attributable to any New
Venture; PROVIDED, HOWEVER, that net income (or loss)
shall be computed for these purposes without giving
effect to extraordinary losses or extraordinary gains."
"'FUNDED DEBT', means as of any date of
determination, without duplication, the sum of (a) all
principal Indebtedness of the Borrowers and their
respective Subsidiaries on a combined basis for
borrowed money (including debt securities issued by any
borrower or any of its Subsidiaries) on that date, PLUS
(b) the aggregate amount of all monetary
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obligations of the Borrowers and their respective
Subsidiaries on a combined basis in respect of Capital
Leases on that date, PLUS (c) the aggregate undrawn
face amount of all letters of credit (other than
letters of credit supporting workers compensation
obligations and permitted pursuant to Section 7.08(d))
for which any Borrower or any of its Subsidiaries is
the account party but which have not been drawn as of
the date of determination, PLUS the aggregate amounts
on which a drawing has been received or paid by an
issuing bank under any such letter of credit which
drawing or payment has not been reimbursed to the
issuing bank by any Borrower or any of its Subsidiaries
as of the date of determination, all as determined in
accordance with GAAP."
"'PARENT SENIOR SUBORDINATED NOTES' means (a) the
10-5/8% Senior Subordinated Notes Due 2005 issued by
the Parent Guarantor, and (b) additional senior
subordinated notes issued from time to time by the
Parent Guarantor in an aggregate principal amount not
exceeding $125,000,000, which notes shall not require
any principal payments prior to seven years after the
date of their issuance and shall have subordination and
other terms (other than pricing) substantially the same
as the Senior Subordinated Notes referred to in clause
(a) hereof."
2.9 The definition of "Security Agreement" in Section
1.01 of the Agreement is amended by inserting the following at
the end thereof: "and shall include any Security Agreement
executed and delivered by any Borrower."
2.10 The following new definitions are inserted in
proper alphabetical order in Section 1.01 of the Agreement as
follows:
"'BORROWER' means the Company or Rio Leasing
(collectively, the 'Borrowers')."
"'CINDERLANE' means Cinderlane, Inc, a Nevada
corporation."
"'LOAN PARTIES' means the Parent Guarantor, each
Borrower, Cinderlane and any other Affiliate or
Subsidiary of any of the foregoing executing and
delivering any Loan Document from time to time
(individually, a 'Loan Party')."
"'NEW VENTURE' means Phase 5 Expansion, any other
casino, hotel, casino/hotel, resort, casino/resort,
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riverboat casino, dockside casino, golf course,
entertainment center or similar facility (or any site
or proposed site for any of the foregoing), including
any substantial additions to any of the foregoing,
directly or indirectly owned or to be owned by the
Parent Guarantor or any of its Subsidiaries."
"'PRE-OPENING EXPENSES' means, with respect to any
fiscal period, the amount of expenses (other than
Interest Expense) classified as "pre-opening expenses"
on the applicable financial statements of the Borrowers
and their respective Subsidiaries for such period,
prepared in accordance with GAAP."
"'RIO LEASING' means Rio Leasing, Inc., a Nevada
corporation."
"'SUBSIDIARY GUARANTY' means each Guaranty
executed and delivered by a Subsidiary of any Borrower,
as such document may from time to time be supplemented,
modified, amended, renewed, or extended (collectively
the "Subsidiary Guaranties")."
2.11 Sections 1.03(b), 2.01(c), 2.02(b), 2.03(f), 2.08
(last sentence only), 2.09, 2.11(b), 2.11(c), 2.12(a), 2.14,
2.15, 3.01, 3.03(a), 3.03(b), 3.06, 3.07, 4.02 (subsection (b)
and last paragraph), 6.11(c), 6.15 and 10.01 of the Agreement are
amended by deleting "Company" wherever it appears and inserting
"Borrowers" in lieu thereof. Where necessary for grammatical
correctness, relevant verbs are changed from the singular form to
the plural form.
2.12 A new Section 2.02(c) is inserted in the Agreement
immediately after Section 2.02(b) as follows:
"(c) The Loans made by each Bank may, in lieu of
Notes, be evidenced by one or more accounts or records
maintained by such Bank in the ordinary course of
business. The accounts or records maintained by each
Bank shall be conclusive absent manifest error of the
amount of the Loans made by the Banks to the Borrowers,
and the interest and payments thereon; PROVIDED,
HOWEVER, that the failure of a Bank to make, or an
error in making, a notation with respect to any Loan
shall not limit or otherwise affect the obligations of
the Borrowers hereunder to such Bank."
2.13 Section 2.03(a) of the Agreement is amended by
deleting "the Company's" and inserting "a Borrower's" in lieu
thereof.
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2.14 Sections 2.03(b), 2.04(a), 2.04(d), 2.04(e), 2.05,
2.06 and 2.07(b) of the Agreement are amended by deleting "the
Company" wherever it appears and inserting "a Borrower" in lieu
thereof.
2.15 Sections 2.03(e), 2.04(b) and 2.13(a), the proviso
to Section 2.04(a) and Section 3.02(b), of the Agreement are
amended by deleting "the Company" wherever it appears and
inserting "the relevant Borrower" in lieu thereof.
2.16 The definition of "Revolving Note" in Section 1.01
of the Agreement and Sections 2.04(c), 2.12(c), 3.02(c) and 3.04
of the Agreement are amended by (a) deleting "the Company"
wherever it first appears therein and inserting "a Borrower" (or
"Each Borrower" in the case of Section 3.04) in lieu thereof and
(b) deleting "the Company" where it appears thereafter and
inserting "such Borrower" in lieu thereof.
2.17 Section 3.05 of the Agreement is amended by (a)
deleting "the Company" where it first appears in such section and
insert "the relevant Borrower" in lieu thereof and (b) deleting
"the Company" where it appears thereafter in such sections and
inserting "such Borrower" in lieu thereof.
2.18 The introductory sentence to Article V of the
Agreement is amended and restated in its entirety as follows:
"The Borrowers jointly and severally represent and
warrant to the Agent and each Bank that:"
2.19 Sections 5.01, 5.02, 5.04, 5.09, 5.10, 5.12(a) and
(b), 5.13, 5.16, 5.21, 5.24, 6.04, 6.05, 6.07, 6.08, 6.09, 6.10,
6.12, 6.22, 6.25, 6.27 (except subhead), and 6.31 are amended by
(a) deleting "Company" wherever it appears and inserting "each
Loan Party" in lieu thereof. Where necessary for grammatical
correctness, relevant verbs are changed from the singular form to
the plural form.
2.20 Section 5.03, 5.505, 5.06, 5.07, 5.08,, 5.12(c)
and (d), 5.14, 5.15, 5.17, 5.18, 5.22, 5.25, 5.26, 5.27, 6.06,
6.23, 6.24 6.26, 6.28, 7.01 through 7.24 (except Sections 7.14
and 7.15), inclusive, and Article IX of the Agreement are amended
by (a) deleting "Company" wherever it appears and inserting "Loan
Parties" in lieu thereof and (b) deleting "its Subsidiaries"
wherever it appears and inserting "their respective Subsidiaries"
in lieu thereof. Where necessary for grammatical correctness,
relevant verbs are changed from the singular form to the plural
form.
2.21 Section 5.19 of the Agreement is amended and
restated in its entirety as follows:
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"5.19 SUBSIDIARIES. Neither the Parent
Guarantor nor any Borrower has any Subsidiaries other
than those specifically disclosed in part (a) of
SCHEDULE 5.19 hereto and neither the Parent Guarantor
nor any Borrower has any equity investments in any
other corporation or entity other than those
specifically disclosed in part (b) of SCHEDULE 5.19 in
each case as such Schedule is updated from time to time
(which updates shall be deemed to update any previous
Schedule from the date received by the Agent without
further action by any party hereto)."
2.22 A new Section 5.28 is inserted in the Agreement
immediately following Section 5.27 as follows:
"5.28 ASSETS OF CINDERLANE. As of the date of
the Ninth Amendment to this Agreement, Cinderlane
neither owns nor has contracts to purchase, options to
purchase or intentions to purchase any substantial real
or personal property other than the real property
described on SCHEDULE 5.28 hereto."
2.23 The introductory sentences to Articles VI and VII
of the Agreement are amended by deleting "Company covenants and
agrees" and "Company hereby covenants and agrees" and inserting
"borrowers hereby jointly and severally covenant and agree" in
lieu thereof.
2.24 Sections 6.01(b) of the Agreement is amended by
deleting "the Company and the Subsidiaries" and inserting "the
Borrowers and their respective Subsidiaries" in lieu thereof.
2.25 Section 6.01(c) of the Agreement is amended and
restated in their entirety as follows:
"(c) As soon as available, but not later than 30
days after the end of each calendar month of each year,
a copy of the unaudited combined balance sheet of the
Borrowers and their respective Subsidiaries as of the
end of such month and the related combined statement of
income and for the period commencing on the first day
and ending on the last day of such month, and for the
year to date and, in each case showing comparisons with
the prior year and certified by an appropriate
Responsible Officer as being complete and correct and
fairly presenting, in accordance with GAAP, the
financial position and the results of operations of the
Borrowers and their respective Subsidiaries; and"
2.26 Sections 6.02(b) and 10.02(c) of the Agreement are
amended by deleting "Company" wherever it appears and inserting
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"Loan Parties" in lieu thereof. Where necessary for grammatical
correctness, relevant verbs are changed from the singular form to
the plural form.
2.27 Section 6.02(e) of the Agreement is amended by
deleting "Company or any Subsidiary" and inserting "any Borrower
or any of its Subsidiaries" in lieu thereof.
2.28 Section 5.10 (last sentence) and Section 6.03 of
the Agreement (except the lead in sentence) is amended (a) by
deleting "the Company or any of its Subsidiaries" and "the
Company or any Subsidiary" wherever it appears and inserting "the
Loan Parties or any of their respective Subsidiaries" in lieu
thereof and (b) by deleting "the Company" wherever it appears and
inserting "any Loan Party" in lieu thereof.
2.29 Sections 6.14 and 6.15 of the Agreement are
amended and restated in their entirety as follows:
"6.14 NEW SUBSIDIARIES. The Borrowers shall cause
any Person that on or after the Closing Date becomes a
Subsidiary of any Borrower to execute and deliver to
the Agent a Guaranty and Collateral Documents in form
and substance satisfactory to the Agent pledging
substantially all the assets and all real and personal
property of such Subsidiary, and the relevant Borrower
shall pledge, or shall cause the pledging of, all
capital stock of such Subsidiary; PROVIDED, HOWEVER,
that Cinderlane shall not be required to pledge any of
the properties listed on SCHEDULE 5.28.
"In connection with any new Subsidiary, the Borrowers
shall deliver a certificate signed by a Responsible
Officer certifying that Section 5.13 is true and
correct after giving effect to such new Subsidiary, and
shall cause such Subsidiary to also deliver documents
of the type referred to in Sections 4.01 (d) and (e)
and to otherwise comply with Sections 4.01 (h) - (k)
and 6.31 with respect thereto.
"6.15 ADDITIONAL COLLATERAL. The Company shall
execute and deliver to the Agent Mortgages as
appropriate containing restrictions and granting Liens
in a manner similar to the Deed of Trust and in any
event reasonably acceptable to the Majority Banks, with
respect to each fee, fixture and leasehold interest in
real property acquired by any Borrower or any of their
respective Subsidiaries, except as provided in the
proviso to Section 6.14."
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2.30 Sections 6.31 and 6.32(c) of the Agreement are
amended by (a) deleting "Company" wherever it appears and
inserting "Loan Parties" in lieu thereof, (b) deleting "its
Subsidiaries" wherever it appears and inserting "their respective
Subsidiaries" in lieu thereof and (c) deleting "the Company's"
and inserting "the Agent's" in lieu thereof. Where necessary for
grammatical correctness, relevant verbs are changed from the
singular form to the plural form.
2.31 Section 7.02 of the Agreement is amended by
deleting "or" at the end of subsection (a), deleting the period
at the end of subsection (b) and inserting "; and" in lieu
thereof, and inserting a new subsection (c) as follows:
"(c) transfers of assets by any Subsidiary or any
Borrower to any Borrower, or transfers of assets by any
Subsidiary or any Borrower to any Subsidiaries with
respect to which Sections 6.14 and 6.15 have been
complied with."
2.32 Section 7.04 of the Agreement is amended by
deleting "or" at the end of subsection (a), deleting the period
at the end of subsection (b) and inserting "; and" in lieu
thereof, and inserting a new subsection (c) as follows:
"(c) Investments in Borrowers and Subsidiaries
with respect to which Sections 6.14 and 6.14 have been
complied with."
2.33 Section 7.05 of the Agreement is amended by
deleting "and" at the end of subsection (f), deleting the period
at the end of subsection (g) and inserting "; and" in lieu
thereof, and inserting a new subsection (h) as follows:
"(h) Indebtedness not exceeding $125,000,000 in
aggregate principal amount not requiring any principal
payments prior to seven years after the date of its
issuance and having subordination and other terms
substantially the same as the Parent Guarantor's
outstanding 10-5/8% Senior Subordinated Notes Due
2005."
2.34 Section 7.08(e) of the Agreement is amended by
deleting "$100,000,000" and inserting "$225,000,000" in lieu
thereof.
2.35 Sections 7.13 and 7.15, and the first paragraphs
of subsections 8.01(x), (y) and (z) of the Agreement are amended
by deleting "the Company" and inserting "the Borrowers" in lieu
thereof and deleting "and its consolidated Subsidiaries" and
inserting "and their combined Subsidiaries" in lieu thereof.
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2.36 Subsections 8.01(a) through (v), inclusive, of the
Agreement are amended by (a) deleting "The Company" and "the
Company" wherever it appears and inserting "Any Loan Party" and
"any Loan Party," respectively, in lieu thereof.
2.37 Article IX and Section 10.01 of the Agreement is
amended by deleting "the Company's" and "the Company" and
inserting "a Loan Party's" and "a Loan Party," respectively, in
lieu thereof.
2.38 Section 10(a) of the Agreement is amended by
inserting the following at the end thereof:
"Any notice given to any Loan Party shall be deemed to
have been given to all Loan Parties."
2.39 Section 10.04 of the Agreement is amended by
deleting "Company" and inserting "Borrowers jointly and
severally" in lieu thereof.
2.40 Sections 10.05(a) and 10.05(b)(i) of the Agreement
are amended by deleting the first references to "Company" in each
section and inserting "Borrowers jointly and severally" in lieu
thereof.
2.41 Sections 3.01, 6.01(a), 10.05(b)(i) of the
Agreement is further amended by deleting "the Company's" and
inserting "the Borrowers'" in lieu thereof.
2.42 Section 10.02(a) of the Agreement is amended by
deleting "Company" and inserting "any Borrower" in lieu thereof.
2.43 Section 10.08(3) of the Agreement is amended by
deleting "Company's" and inserting "Borrower's" in lieu thereof.
2.44 A new Section 10.20 is inserted immediately
following Section 10.19 of the Agreement as follows:
"10.20 GUARANTOR AND SURETYSHIP PROVISIONS.
"(a) Each Borrower shall be jointly and
severally liable for the repayment of all Loans.
"(b) CONDITIONS TO EXERCISE OF RIGHTS.
Each Borrower hereby waives any right it may now or
hereafter have to require the Agent or the Banks, as a
condition to the exercise of any remedy or other right
against such Borrower hereunder or under any other
document executed by such Borrower in connection with
any Obligation, (i) to proceed against any Borrower or
other Person, or against any other collateral assigned
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to the Agent by such Borrower or any other Person, (ii)
to pursue any other right or remedy in the Agent or any
Banks's power, (iii) to give notice of the time, place
or terms of any public or private sale of real or
personal property collateral assigned to the Agent by
any Borrower or other Person (other than such
Borrower), or otherwise to comply with the Nevada
enactment of the Uniform Commercial Code (as modified
or recodified from time to time) with respect to any
such personal property collateral, or (iv) to make or
give (except as otherwise expressly provided in the
Loan Documents) any presentment, demand, protest,
notice of dishonor, notice of protest or other demand
or notice of any kind in connection with any
Obligation.
"(c) DEFENSES. Each Borrower hereby
waives any defense it may now or hereafter have that
relates to: (i) any disability or other defense of any
Borrower or other Person; (ii) the cessation, from any
cause other than full performance, of the obligations
of any Borrower or other Person; (iii) the application
of the proceeds of any Obligation, by any Borrower or
other Person, for purposes other than the purposes
represented to such Borrower by any Borrower or
otherwise intended or understood by such Borrower; (iv)
any act or omission by the Agent or the Banks which
directly or indirectly results in or contributes to
the release of any Borrower or other Person or any
collateral for any Obligations; (v) the
unenforceability or invalidity of any collateral
assignment or guaranty with respect to any Obligation,
or the lack of perfection or continuing perfection or
lack of priority of any lien which secures any
Obligation; (vi) any failure of the Agent or the Banks
to marshal assets in favor of such Borrower or any
other Person; (vii) any modification of any Obligation,
including any renewal, extension, acceleration or
increase in interest rate; (viii) any election of
remedies by the Agent or the Banks that impairs any
subrogation or other right of any Borrower to proceed
against any other Borrower or other Person, including
any loss of rights resulting from anti-deficiency laws
relating to nonjudicial foreclosures of real property
or other laws limiting, qualifying or discharging
obligations or remedies; (ix) any law which provides
that the obligation of a surety or guarantor must
neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces
a surety's or guarantor's obligation in proportion to
the principal obligation; (x) any failure of the Agent
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or the Banks to file or enforce a claim in any
bankruptcy or other proceeding with respect to any
Person; (xi) the election by the Agent or the Banks, in
any bankruptcy proceeding of any Person, of the
application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code; (xii) any extension
of credit or the grant of any lien under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code; (xiii) any use of
cash collateral under Section 363 of the United States
Bankruptcy Code; or (xiv) any agreement or stipulation
with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person.
"(d) SUBROGATION. Each Borrower hereby
waives (i) any right of subrogation which such Borrower
may now or hereafter have against any other Borrower
that relates to any Obligation, (ii) any right to
enforce any remedy such Borrower may now or hereafter
have against any other Borrower that relates to any
Obligation (including without limitation any right of
reimbursement, indemnity or contribution), and (iii)
any right to participate in any collateral now or
hereafter assigned to the Agent or the Banks with
respect to any Obligation (and each Borrower further
agrees that, if and to the extent that any waiver set
forth in this section is ever held to be unenforceable,
all such rights of subrogation, enforcement and
participation shall be junior and subordinate to the
right of the Agent or the Banks to obtain payment and
performance of the Obligations and to all rights of the
Agent or the Banks in and to any property which now or
hereafter serves as collateral security for any
Obligation).
"(e) BORROWER INFORMATION. Each Borrower
warrants and agrees: (i) that such Borrower has not
relied, and will not rely, on any representations or
warranties by the Agent or the Banks to such Borrower
with respect to the creditworthiness of any Borrower or
the prospects of payment of any Obligation from sources
other than the Collateral; (ii) that such Borrower has
established and/or will establish adequate means of
obtaining from each Borrower on a continuing basis
financial and other information pertaining to the
business operations, if any, and financial condition of
such Borrower; (iii) that such Borrower assumes full
responsibility for keeping informed with respect to any
Borrower's business operation, if any, and financial
condition; and (iv) that the Agent or the Banks shall
have no duty to disclose or report to such Borrower any
information now or hereafter known to the Agent or the
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Banks with respect to any information now or hereafter
known to the Agent or the Banks with respect to any
Borrower, including without limitation information
relating to any Borrower's business operation or
financial condition.
"(f) OTHER RIGHTS OF SURETIES. Each
Borrower hereby waives all other rights it may now or
hereafter have, whether or not similar to any of the
foregoing, by reason of laws of the State of Nevada
pertaining to sureties or guarantors.
"(g) SUBORDINATION. Until all of the
Obligations have been fully paid and performed, (i)
each Borrower hereby agrees that all existing an future
indebtedness and other obligations of such Borrower to
any other Borrower (collectively, the "Subordinated
Debt") shall be and are hereby subordinated to all
Obligations which constitute obligations of the
applicable Borrower, and the payment thereof is hereby
deferred in right of payment to the prior payment and
performance of all such Obligations; (ii) such Borrower
shall not collect or receive any cash or non-cash
payments on any Subordinated Debt or transfer all or
any portion of the Subordinated Debt; and (iii) in the
event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, any Borrower with
respect to any Subordinated Debt is received by such
Borrower such payment or distribution shall be held in
trust and immediately paid over to the Agent or the
Banks, is hereby assigned to the Agent or the Banks as
security for the Obligations, and shall be held by the
Agent or the Banks in an interest bearing account until
all Obligations have been fully paid and preformed.
"(h) LAWFULNESS AND REASONABLENESS. Each
Borrower warrants that all of the waivers in this
Agreement are made with full knowledge of their
significance, and of the fact that events giving rise
to any defense or other benefit waived by such Borrower
may destroy or impair right which such Borrower would
otherwise have against the Agent or the Banks, any
Borrower and other Persons, or against collateral.
Each Borrower agrees that all such waivers are
reasonable under the circumstances and further agrees
that, if any such waiver is determined (by a court of
competent jurisdiction) to be contrary to any law or
public policy, such waiver shall be effective to the
fullest extent permitted by law."
14
2.45 Exhibit O to the Agreement is amended by adding
the information set forth on Exhibit O hereto.
2.46 Schedule 5.19 to the Agreement is amended and
restated in its entirety in the form of Schedule 5.19 hereto.
2.47 A new Schedule 5.28 is added to the Agreement in
the form of Schedule 5.28 hereto.
3. AMENDMENTS TO COMPANY NOTES. The Loan Parties,
the Banks and the Agent hereby agree that all Notes executed and
delivered by the Company are amended by deleting "among the
Company," in the second paragraph of each Note and inserting
"among the Borrowers," in lieu thereof.
4. REPRESENTATIONS AND WARRANTIES. The Borrowers
jointly and severally represent and warrant to the Banks and
Agent:
4.1 AUTHORITY. Each Loan Party has all necessary
power and has taken all corporate action necessary to make this
Ninth Amendment, the Agreement, and all other agreements and
instruments to which it is party executed in connection herewith
and therewith, the valid and enforceable obligations they purport
to be.
4.2 NO LEGAL OBSTACLE TO NINTH AMENDMENT. Neither the
execution of this Ninth Amendment, the making by any Borrower of
any borrowings under the Agreement, nor the performance of the
Agreement by any Loan Party has constituted or resulted in or
will constitute or result in a breach of the provisions of any
contract to which any Loan Party is a party, or the violation of
any law, judgment, decree or governmental order, rule or
regulation applicable to any Loan Party, 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 Loan Party, 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
Loan Party of this Ninth Amendment, the Agreement, or the
transactions contemplated hereby or thereby, or the making of any
borrowing by any Borrower under the Agreement.
4.3 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.
4.4 DEFAULT. No Event of Default under the Agreement
has occurred and is continuing.
15
5. CONDITIONS, EFFECTIVENESS. The effectiveness of
this Ninth Amendment shall be subject to the compliance by the
Loan Parties with their agreements herein contained, and to the
delivery of the following to the Agent in form and substance
satisfactory to the Agent:
5.1 CORPORATE RESOLUTIONS. A copy of a resolution or
resolutions passed by the Board of Directors of each Loan Party,
certified by the Secretary or an Assistant Secretary of each Loan
Party 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 Ninth Amendment and, with respect to the
other Loan Parties, all other Loan Documents to which they are a
party.
5.2 AUTHORIZED SIGNATORIES. A certificate, signed by
the Secretary or an Assistant Secretary of each Loan Party dated
the date hereof, as to the incumbency of the person or persons
authorized to execute and deliver this Ninth Amendment and any
instrument or agreement required hereunder on behalf of the Loan
Parties.
5.3 AMENDMENT TO COMPANY SECURITY AGREEMENT. The
Company shall have executed and delivered an Amendment to Company
Security Agreement substantially in the form of Exhibit 5.3(b) to
this Ninth Amendment.
5.4 FIRST AMENDMENT TO PARENT GUARANTY. The Parent
Guarantor shall have executed and delivered a First Amendment to
Parent Guaranty substantially in the form of Exhibit 5.4 to this
Ninth Amendment.
5.5 RIO LEASING NOTES AND SECURITY AGREEMENT. Rio
Leasing shall have executed and delivered:
(a) a Revolving Note in favor of each Bank in
substantially the form of Exhibit 5.5(a) to this Ninth Amendment;
and
(b) A Rio Leasing Security Agreement substantially in
the form of Exhibit 5.5(b) to this Ninth Amendment, together with
all financing statements, certificates, assurances and other
instruments as the Agent shall have requested.
5.6 CINDERLANE GUARANTY. Cinderlane shall have
executed and delivered a Guaranty substantially in the form or
Exhibit 5.6 to this Ninth Amendment.
16
5.7 OFFICER'S CERTIFICATE. A certificate signed by a
Responsible Officer certifying that Section 5.13 of the Agreement
is true and correct after giving effect to this Ninth Amendment.
5.8 OTHER DOCUMENTS. The Loan Parties shall have (and
shall cause any of their respective Subsidiaries to have) done,
executed, acknowledged, delivered, recorded, re-recorded, filed,
re-filed, registered and re-registered, any and all such further
acts, deeds, conveyances, security agreements, Mortgages,
assignments, estoppel certificates, financing statements and
continuations thereof, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent shall
have requested in order (i) to carry out more effectively the
purposes of this Ninth Amendment and (ii) to perfect and maintain
the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby.
5.9 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 Ninth Amendment, the Agreement and
the Notes and the compliance with the conditions set forth
herein.
6. CERTAIN CONDITIONS SUBSEQUENT. The continued
effectiveness of this Ninth Amendment and the Agreement is
subject to the delivery, not later than March 31, 1997, of all of
the following to the Agent, in form and substance satisfactory to
the agent (and the failure to so deliver all of the following by
such date shall constitute an immediate Event of Default under
the Agreement):
6.1 TRANSFER OF CINDERLITE PARCEL; DEEDS OF TRUST.
Evidence that Cinderlane has contributed the Cinderlite Parcel to
the Company, and the Company has executed and delivered an
Unsecured Indemnity Agreement and the additional Deeds of Trusts
or amendments to Deeds of Trust pledging the Transferred
Properties to the Agent and the Banks.
6.2 TITLE INSURANCE. A title insurance company
acceptable to the Agent and the Banks shall have issued or
committed to issue an ALTA Lender's coverage policy of title
insurance issued in connection with the additional Deeds of Trust
or amendments to the Deeds of Trust as requested by the Agent to
reflect the Transferred Properties. In addition, one or more
other title insurance companies acceptable to the Agent and the
Banks shall have issued such reinsurance as the Agent and the
Banks may require. No title matter may be insured over by any
title company without the express written consent of the Agent.
17
6.3 OTHER DOCUMENTS. The Loan Parties shall have (and
shall cause any of their respective Subsidiaries to have) done,
executed, acknowledged, delivered, recorded, re-recorded, filed,
re-filed, registered and re-registered, any and all such further
acts, deeds, conveyances, security agreements, Mortgages,
assignments, estoppel certificates, financing statements and
continuations thereof, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent shall
have requested in order (i) to carry out more effectively the
purposes of this Ninth Amendment and (ii) to perfect and maintain
the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby.
6.4 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 Ninth Amendment, the Agreement and
the Notes and the compliance with the conditions set forth
herein.
7. MISCELLANEOUS.
7.1 EFFECTIVENESS OF THE AGREEMENT AND NOTES. Except
as hereby expressly amended, the Agreement and the Notes shall
remain in full force and effect, and are hereby ratified and
confirmed in all respects.
7.2 WAIVERS. The Banks and the Agent waive any
Default or Event of Default arising under the Agreement by reason
of the Company making investments in Cinderlane to permit
Cinderlane to acquire the real property permitted to be acquired
as Capital Expenditures under Section 7.13 or by reason of
Cinderlane transferring any real property so acquired to the
Company. This Ninth 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.
7.3 COUNTERPARTS. This Ninth 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 Ninth Amendment shall not become
effective until the Borrowers, all Banks and the Agent shall have
18
signed a copy hereof, whether the same or counterparts, and the
same shall have been delivered to the Agent.
7.4 JURISDICTION. This Ninth Amendment, and any
instrument or agreement required hereunder, shall be governed by
and construed under the laws of the State of Nevada; provided
that the Agent and the Banks shall retain all rights arising
under Federal law.
7.5 RIO LEASING AS A PARTY. By signing below, Rio
Leasing agrees to become a party to the Agreement and to be bound
by the terms and conditions thereof as if an original signatory
thereto as a Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this
Ninth Amendment to be duly executed and delivered as of the date
first written above.
RIO PROPERTIES, INC.
By: _________________________
Title: ______________________
RIO LEASING, INC.
By: _________________________
Title: ______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent and a Bank
By: _________________________
Xxx Xxxxxxx
Managing Director
XXXXX FARGO BANK NATIONAL
ASSOCIATION
By: _________________________
Title: ______________________
19
(Signatures continue)
20
FIRST SECURITY BANK OF UTAH, N.A.
By: _________________________
Title: ______________________
NBD BANK
By: _________________________
Title: ______________________
SOCIETE GENERALE
By: _________________________
Title: ______________________
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: ______________________
21
TENTH AMENDMENT TO
CREDIT AGREEMENT
THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this "Tenth
Amendment") is made and dated as of February 3, 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 and a
Ninth Amendment to Credit Agreement and Notes dated as of January
13, 1997 (as so amended, the "Agreement").
RECITAL
The Borrowers have requested an amendment to the
Agreement eliminating all restrictions on dividends to the Parent
Guarantor, and the Agent and Banks are willing to agree to the
foregoing 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 Loan Parties, the
Banks and the Agent hereby agree that the Agreement is amended as
follows:
2.1 Section 7.12(c) of the Agreement is amended and
restated in its entirety as follows:
"(c) Dividends to the Parent Guarantor."
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2.2 Section 8.01 of the Agreement is amended by
inserting a new Section 8.01(aa) immediately after Section
8.01(z) as follows:
"(aa) USE OF DIVIDENDS BY PARENT GUARANTOR.
Notwithstanding anything else contained in this
Agreement to the contrary, any dividends received by
the Parent Guarantor from any other Loan Party as
permitted by Section 7.12(c) shall be promptly (i) used
to make required interest payments on the Parent Senior
Subordinated Notes as and when due, (ii) contributed to
the Company, or (iii) used for operating expenses of
the Parent Guarantor in the Ordinary Court of
Business;"
2.3 Sections 10.01 and 10.06 through 10.19, inclusive,
of the Agreement are amended by deleting "Company" wherever it
appears and inserting "Borrowers" in lieu thereof. Where
necessary for grammatical correctness, relevant verbs are changed
from the singular form to the plural form.
2.4 Article IX of the Agreement is amended by deleting
"the Company," "the Company and its Subsidiaries" and "the
Company's" and inserting "the Loan Parties," "the Loan Parties
and their respective Subsidiaries" and "the Loan Parties'"
respectively, in lieu thereof.
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 Tenth
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.
3.2 NO LEGAL OBSTACLE TO TENTH AMENDMENT. Neither the
execution of this Tenth 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
-2-
authorization of any governmental authority is required to
permit the execution, delivery or performance by any Borrower of
this Tenth 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. No Event of Default under the Agreement
has occurred and is continuing.
4. MISCELLANEOUS.
4.1 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 respects.
4.2 WAIVER. Any violation of the Agreement resulting
from the Company previously dividending funds to the Parent
Guarantor for its use in the Ordinary Course of Business is
hereby waived. This Tenth 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.
4.3 COUNTERPARTS. This Tenth 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 Tenth Amendment shall not become
effective until the Borrowers, all Banks and the Agent shall have
signed a copy hereof, and the Parent Guarantor shall have
consented hereof, whether the same or counterparts, and the same
shall have been delivered to the Agent.
4.4 JURISDICTION. This Tenth Amendment, and any
instrument or agreement required hereunder, shall be governed by
and construed under the laws of the State of Nevada; provided
that the Agent and the Banks shall retain all rights arising
under Federal law.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this
Tenth Amendment to be duly executed and delivered as of the date
first written above.
RIO PROPERTIES, INC.
RIO LEASING, INC.
By:________________________________
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By:_______________________________
Xxxxxxx Xxxxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVING ASSOCIATION,
as a Bank
By:________________________________
Xxx Xxxxxxx
Managing Director
XXXXX FARGO BANK NATIONAL ASSOCIATION
By:________________________________
Title:_____________________________
FIRST SECURITY BANK, N.A.
By:_______________________________
Title:_____________________________
(Signatures continue)
-4-
NBD BANK
By:________________________________
Title:_____________________________
SOCIETE GENERALE
By:________________________________
Title:_____________________________
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:_____________________________
-5-
CONSENT OF PARENT GUARANTOR
AND SUBSIDIARY GUARANTOR
The undersigned Parent Guarantor, as party to the Parent
Guaranty dated July 15, 1993, and the undersigned Subsidiary
Guarantor, as party to the Subsidiary Guaranty dated January 13,
1997, hereby consent to the foregoing Tenth Amendment to Credit
Agreement dated as of February 3, 1997 and confirm that the
Parent Guaranty and 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 the Subsidiary Guaranty.
Dated as of February 3, 1997.
RIO HOTEL & CASINO, INC.
CINDERLANE, INC.
By:_______________________________
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
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