EX-4.1
FIRST AMENDMENT
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FIRST AMENDMENT (this "Amendment"), dated as of September 16, 1998,
among XXXXXX'X ENTERTAINMENT, INC. ("Parent"), XXXXXX'X OPERATING COMPANY, INC.
(the "Company"), MARINA ASSOCIATES ("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:
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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 (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 (the "364-Day Credit Agreement", and together with the 5-Year Credit
Agreement, the "Credit Agreements"); and
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreements as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 9.05 of the 5-Year Credit Agreement is hereby amended by (i)
deleting the reference to the amount "$180,000,000" appearing in clause (ii)
thereof and inserting the amount "$195,000,000" in lieu thereof and (ii)
deleting the reference to the amount "$180,000,000" appearing in the last
sentence thereof and inserting the amount "$195,000,000" in lieu thereof.
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2. Section 8.05 of 364-Day Credit Agreement is hereby amended by (i)
deleting the reference to the amount "$180,000,000" appearing in clause (ii)
thereof and inserting the amount "$195,000,000" in lieu thereof and (ii)
deleting the reference to the amount "$180,000,000" appearing in the last
sentence thereof and inserting the amount "$195,000,000" in lieu thereof.
3. The definition of "Jazz Casino Loans" appearing in Section 11.01 of
the 5-Year Credit Agreement is hereby amended by deleting the reference to the
amount "$180,000,000" appearing therein and inserting the amount
"$195,000,000" in lieu thereof.
4. The definition of "Jazz Casino Loans" appearing in Section 10.01 of
the 364-Day Credit Agreement is hereby amended by deleting the reference to the
amount "$180,000,000" appearing therein and inserting the amount "$195,000,000"
in lieu thereof.
5. 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 First Amendment Effective Date (as defined below), 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 First 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 First 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).
6. 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.
7. 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.
8. 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.
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9. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when 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
(including by way of telecopier) the same to the Administrative Agent at the
Notice Office.
10. From and after the First 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.
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
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President/Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President/Treasurer
MARINA ASSOCIATES
By: XXXXXX'X ATLANTIC CITY, INC.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
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BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ Xxxx Xxx Xxxxx
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Name: Xxxx Xxx Xxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
Bank of America NT&SA
SOCIETE GENERALE, Individually and as a
Co-Syndication Agent
By: /s/ J. Xxxxxx Xxxxx
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Name: J. Xxxxxx Xxxxx
Title: Managing Director
CANADIAN IMPERIAL BANK OF COMMERCE,
Individually and as Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Director
CIBC Xxxxxxxxxxx Corp.,
AS AGENT
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Sr. Vice President
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxx, III
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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
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Name: Xxxxxxx X. X. Xxxxxxx
Title: SVP
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxx Xxxxxx
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Name: Xxx Xxxxx Xxxxxx
Title: Vice President
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DEUTSCHE BANK AG, acting through its
New York Branch
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxx-Xxxxx Xxxxxx
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Name: Xxxx-Xxxxx Xxxxxx
Title: Director
THE MITSUBISHI TRUST & BANKING CORP.
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V., SAN XXXXXXXX
XXXXXX
By: ABN AMRO NORTH AMERICA, INC.,
as its Agent
By: /s/ Xxxxxxx X. French
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Name: Xxxxxxx X. French
Title: Group Vice President
& Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan
Operations
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Christian Jagenberg
---------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President and
Deputy General Manager
THE TOKAI BANK, LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Assistant General Manager
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XXXXXX XXXXXXXXX XX XXXXX, XXXXXXX
AGENCY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Relationship Manager
FIRST NATIONAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: SVP
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
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FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
By:
---------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By: /s/ Xxxx X. Wales
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Name: Xxxx X. Wales
Title: Assistant Vice President
First American National Bank, operating
as, and successor in interest by merger
to, Deposit Guaranty National Bank
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
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SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
By:
---------------------------
Name:
Title:
NBD BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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