EX-4.4
CONSENT TO CREDIT AGREEMENTS
CONSENT TO CREDIT AGREEMENTS (this "Consent"), dated as of
April 11, 1997, among XXXXXX'X ENTERTAINMENT, INC. ("Parent"), XXXXXX'X
OPERATING COMPANY, INC. (the "Company"), MARINA ASSOCIATES ("Marina"), the
various lending institutions party to the Credit Agreements referred to below
(the "Banks"), BANKERS TRUST COMPANY, THE BANK OF NEW YORK, CIBC INC., CREDIT
LYONNAIS, ATLANTA AGENCY, XXXXX FARGO BANK, N.A., THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH, NATIONSBANK, N.A. (SOUTH), SOCIETE GENERALE and
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH, as Agents (the "Agents"), 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 Agents
and the Administrative Agent are parties to an Amended and Restated Credit
Agreement, dated as of July 22, 1993 and amended and restated as of June 9, 1995
(as amended, modified or supplemented through the date hereof, the "5-Year
Credit Agreement");
WHEREAS, Parent, the Company, Marina, the Banks, the Agents
and the Administrative Agent are parties to a Credit Agreement, dated as of June
9, 1995 (as amended, modified or supplemented through the date hereof, the
"364-Day Credit Agreement," and together with the 5-Year Credit Agreement, the
"Credit Agreements"); and
WHEREAS, the parties hereto wish to consent to certain actions
to be taken under the Credit Agreements as herein provided;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in
Section 9.10 of the 5-Year Credit Agreement or in Section 8.10 of the 364-Day
Credit Agreement, the Banks hereby agree that the Company also may use the
proceeds of Loans incurred under each Credit Agreement to repurchase, redeem or
otherwise retire outstanding 10-7/8% Senior Subordinated Notes.
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2. Notwithstanding anything to the contrary contained in
Section 9.04(xi)(v) of the 5-Year Credit Agreement or in Section 8.04(xi)(v) of
the 364-Day Credit Agreement, the Banks hereby agree that the Company also may
concurrently use the proceeds of any Additional Unsecured Senior Debt issued in
accordance with the terms of such Sections to repay any outstanding Loans the
proceeds of which were used to repurchase, redeem or otherwise retire
outstanding 10-7/8% Senior Subordinated Notes as permitted by Section 1 of this
Consent.
3. Notwithstanding anything to the contrary contained in the
definition of "Permitted Designated Indebtedness" appearing in Section 11.01 of
the 5-Year Credit Agreement and in Section 10.01 of the 364-Day Credit
Agreement, the Banks hereby agree that the proceeds of any Subordinated Debt
which are used to repay any outstanding Loans the proceeds of which were used to
repurchase, redeem or otherwise retire outstanding 10-7/8% Senior Subordinated
Notes as permitted by Section 1 of this Consent also shall not constitute
Permitted Designated Indebtedness.
4. The Banks hereby consent to, and direct and authorize the
Collateral Agent to effect, the release of all of the Collateral under all of
the Collateral Documents, and authorize the Collateral Agent to execute and
deliver such documentation (including UCC-3 termination statements and the like)
deemed necessary or desirable by it in connection therewith.
5. In order to induce the Banks to enter into this Consent,
Parent and each Borrower hereby represent and warrant that:
(x) as of the date hereof and as of the Consent Effective Date
(as hereinafter defined), the Company's Indebtedness is, and shall be,
rated at least BBB- Senior Implied by S&P or Baa3 Senior Implied by
Xxxxx'x;
(y) no Default or Event of Default exists on the Consent
Effective Date, both before and after giving effect to this Consent;
and
(z) 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 Consent Effective Date, both before and after
giving effect to this Consent, with the same effect as though such
representations and warranties had been made on and as of the Consent
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).
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6. This Consent 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 Consent 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 Consent 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.
9. This Consent shall become effective on the date (the
"Consent Effective Date") when Parent, the Borrowers, each other Credit Party,
the Collateral Agent 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 Consent 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 Consent to be duly executed and delivered as of the date
first above written.
XXXXXX'X ENTERTAINMENT, INC.
By /s/Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
XXXXXX'X OPERATING COMPANY, INC.
By /s/Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
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MARINA ASSOCIATES
By: XXXXXX'X ATLANTIC CITY, INC.,
a general partner
By /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Assistant Secretary
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Assistant Secretary
XXXXXX'X XXXX HOLDING COMPANY, INC.
By /s/Xxxxxxx X. Xxxxx
-------------------------
Title: VP, Treasurer
XXXXXX'X LAS VEGAS, INC.
By /s/Xxxxxxx X. Xxxxx
-------------------------
Title: Treasurer
XXXXXX'X XXXXXXXX, INC.
By /s/Xxxxxxx X. Xxxxx
-------------------------
Title: Treasurer
XXXXXX'X ATLANTIC CITY, INC.
By /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Assistant Secretary
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XXXXXX'X NEW JERSEY, INC.
By /s/Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY,
Individually,
as Administrative Agent,
as Collateral Agent
and as an Agent
By /s/Xxxx Xxx Xxxxx
-------------------------
Title:
THE BANK OF NEW YORK,
Individually and as an
Agent
By /s/Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
CIBC INC., Individually and
as an Agent
By /s/Xxxx X. Xxxxxxx
-------------------------
Title: Managing Director, CIBC
Wood Gundy Securities
Corp., AS AGENT
CREDIT LYONNAIS, ATLANTA AGENCY,
Individually and as an Agent
By /s/Xxxxx X. Xxxxxx
-------------------------
Title: First Vice President
& Manager
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CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/Xxxxx X. Xxxxxx
-------------------------
Title: Authorized Signature
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
Individually and as an Agent
By /s/Xxxx X. Xxxxxxxx
-------------------------
Title: Joint General Manager
NATIONSBANK, N.A. (SOUTH),
Individually and as an Agent,
By /s/Xxxxxxxx X. Xxxxx
-------------------------
Title: Vice President
SOCIETE GENERALE, Individually and
as an Agent
By /s/Xxxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED,
ATLANTA AGENCY, Individually
and as an Agent
By /s/Xxxx Xxxxxx
-------------------------
Title: VP
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XXXXX FARGO BANK, N.A.,
Individually and as Agent
By /s/Xxxxxxx Xxxxxxxxxxxx
-------------------------
Title: V.P.
ABN AMRO BANK N.V., SAN XXXXXXXXX
XXXXXX
By /s/X. X. Xxxxxxx
-------------------------
Title: Group Vice President
By /s/Xxxxxx X. Xxxxxx
-------------------------
Title: Portfolio Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVING ASSOCIATION
By /s/Xxxxx Xxxxx
-------------------------
Title: Vice President
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By /s/Xxxxxxxx X. Xxxxx
-------------------------
Title: VP
COMMERZBANK AG, LOS ANGELES BRANCH
By /s/X. Xxxxxxxxxxx
-------------------------
Title: Vice President
By /s/Xxxxx Xxxxx
-------------------------
Title: Asst. Treasurer
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DEPOSIT GUARANTY NATIONAL BANK
By /s/Xxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By /s/Xxxxxxxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
FIRST NATIONAL BANK OF COMMERCE
By /s/Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
FLEET BANK, N.A.
By /s/Xxxx Xxxxxxxx
-------------------------
Title: SVP
GIROCREDIT BANK A.G. DER
SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH
By /s/Xxxx Xxxxxxx
-------------------------
Title:
By /s/Xxxxxxx Xxxxx
-------------------------
Title:
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HIBERNIA NATIONAL BANK
By /s/S. Xxxx Xxxxxxxxxx
-------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/Xxxxx Xxxx
-------------------------
Title: General Manager
THE MITSUBISHI TRUST & BANKING
CORP.
By /s/Xxxxxxxx Xxxxxx XxXxxx
-------------------------
Title: Senior Vice President
THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY
By /s/Xxx Xxxxxxxx
-------------------------
Title: Vice President &
Manager
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By /s/Xxxxxx X. Xxxxx
-------------------------
Title: Vice President
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SUNTRUST BANK, NASHVILLE, N.A.
By /s/Xxxxx X. Xxxxx
-------------------------
Title: Vice President
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By /s/Xxxxx Xxx
-------------------------
Title: Assistant General
Manager
UNITED STATES NATIONAL BANK
OF OREGON
By /s/Xxxx Xxxxxxxx
-------------------------
Title: Assistant Vice
President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/Xxxxx Xxxxx
-------------------------
Title: Vice President
By /s/Xxxxx Vineau
-------------------------
Title: Senior Analyst
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