Exhibit 4.1
THIRD AMENDMENT AND CONSENT
THIRD AMENDMENT AND CONSENT (this "Amendment"), dated as of January 19,
1999, 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"); and
WHEREAS, the parties hereto wish to amend and modify certain provisions of
the Credit Agreements as herein provided;
NOW, THEREFORE, it is agreed:
I. RELEASE FROM COMPANY SUB/GUARANTY.
1. The Banks hereby agree that from and after the Third Amendment Effective
Date (as defined below), each Guarantor
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that is a Subsidiary of the Company shall, without any further action, be
released from its obligations under the Company/Sub Guaranty.
II. AMENDMENTS TO THE 5-YEAR CREDIT AGREEMENT.
1. Section 8.11 of the 5-Year Credit Agreement is hereby amended by
deleting the text contained therein in its entirety and inserting in lieu
thereof the text "[intentionally omitted]".
2. Section 9.02 of the 5-Year Credit Agreement is hereby amended by
deleting clauses (vi) and (vii) appearing in said Section in their entirety and
inserting the following clauses (vi) and (vii) in lieu thereof:
"(vi) any Subsidiary of the Company may be merged or consolidated with
or into any other Subsidiary of the Company so long as in the case of any
such merger or consolidation involving a Wholly-Owned Subsidiary of the
Company, the Wholly-Owned Subsidiary is the surviving corporation of such
merger or consolidation;
(vii) any Subsidiary of the Company may transfer assets to the Company
or to any Wholly-Owned Subsidiary of the Company;".
3. Section 9.04(x) of the 5-Year Credit Agreement is hereby amended by
deleting the text "and its other Subsidiaries" appearing in clause (ii) of said
Section.
4. Section 9.04 of the 5-Year Credit Agreement is hereby further amended by
deleting the text "and its Subsidiaries" in each instance such text appears in
clause (xii) of said Section and inserting in each such instance the text "and
the Company" in lieu thereof.
III. AMENDMENTS TO 364-DAY CREDIT AGREEMENT.
1. Section 7.11 of the 364-Day Credit Agreement is hereby amended by
deleting the text contained therein in its entirety and inserting in lieu
thereof the text "[intentionally omitted]".
2. Section 8.02 of the 364-Day Credit Agreement is hereby amended by
deleting clauses (vi) and (vii) appearing in said Section in their entirety and
inserting the following clauses (vi) and (vii) in lieu thereof:
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"(vi) any Subsidiary of the Company may be merged or
consolidated with or into any other Subsidiary of the Company so long
as in the case of any such merger or consolidation involving a
Wholly-Owned Subsidiary of the Company, the Wholly-Owned Subsidiary is
the surviving corporation of such merger or consolidation;
(vii) any Subsidiary of the Company may transfer assets to the
Company or to any Wholly-Owned Subsidiary of the Company;".
3. Section 8.04(x) of the 364-Day Credit Agreement is hereby
amended by deleting the text "and its other Subsidiaries" appearing in clause
(ii) of said Section.
4. Section 8.04 of the 364-Day Credit Agreement is hereby
further amended by deleting the text "and its Subsidiaries" in each instance
such text appears in clause (xii) of said Section and inserting in each such
instance the text "and the Company" in lieu thereof.
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 Third 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 Third 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 Third 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.
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.
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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
"Third 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.
6. From and after the Third 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.
* * *
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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: V.P. and Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: V.P. and 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
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Bank of America NT&SA
SOCIETE GENERALE, Individually and as a
Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
CANADIAN IMPERIAL BANK OF COMMERCE,
Individually and as Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: 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/ Xxx Xxxxxx
---------------------------
Name: Xxx Xxxxxx
Title: Vice President
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
---------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Head of Southest Region
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxx Xxxxxx
---------------------------
Name: Xxx Xxxxx Xxxxxx
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By:
--------------------------
Name:
Title:
DEUTSCHE BANK AG, acting through its
New York Branch and/or Cayman Islands
Branch
By: /s/ Xxxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxxx Xxxxx
Title: Associate
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By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
THE SUMITOMO BANK, LIMITED, ATLANTA
AGENCY
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President & Manager
THE MITSUBISHI TRUST & BANKING CORP.
By:
---------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
THE SANWA BANK, LIMITED, NEW YORK
BRANCH
By:
---------------------------
Name:
Title:
ABN AMRO BANK N.V., SAN XXXXXXXX
XXXXXX
By: ABN AMRO NORTH AMERICA, INC.,
as its Agent
By: /s/ Xxxxxxx X. French
---------------------------
Name: Xxxxxxx X. French
Title: Group Vice President
& Director
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By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
---------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan
Operations
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
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
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THE TOKAI BANK, LIMITED, NEW YORK BRANCH
By:
---------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Relationship Manager
FIRST NATIONAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Sr. VP
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
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FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President -
National Department
By:
---------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President & Group
Leader
HIBERNIA NATIONAL BANK
By: /s/ Xxxx X. Wales
---------------------------
Name: Xxxx X. Wales
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Erste Bank, New York
Branch
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
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SUNTRUST BANK, NASHVILLE, N.A.
By: /s/
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
NBD BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
COMMERICA BANK
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Account Officer
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