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EXHIBIT 4.17
WAIVER TO CREDIT AGREEMENT
WAIVER TO CREDIT AGREEMENT, dated as of August 10, 2000 (this
"Waiver"), among JCC HOLDING COMPANY ("Holdings"), JAZZ CASINO COMPANY, L.L.C.
(the "Borrower"), various lending institutions party to the Credit Agreement
referred to below (the "Banks") and BANKERS TRUST COMPANY, as Administrative
Agent (the "Agent"). All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided such terms in the
Credit Agreement referred to below.
WITNESSETH
WHEREAS, Holdings, the Borrower, the Banks and the Agent are parties
to a Credit Agreement, dated as of October 29, 1998 (as amended by the Waiver
dated as of June 4, 1999, the letter agreement dated November 1, 1999, the
Waiver dated as of February 29, 2000, the Amendment dated as of March 29, 2000,
the Waiver dated as of June 29, 2000 and the Waiver dated as of July 27, 2000,
the "Credit Agreement");
WHEREAS, Holdings and the Borrower have requested that the Banks agree
to waive certain requirements of the Credit Agreement, and the Banks have
agreed, subject to the terms and conditions set forth herein, to waive such
requirements of the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. The Banks hereby waive, solely for the period ending at 6:00 p.m.
(New York time) on August 21, 2000 (the "Waiver Period"), compliance by the
Borrower with the provisions of Section 9.09 of the Credit Agreement and any
Default or Event of Default which may exist solely as a result of the
Borrower's failure to comply with the requirements of such Section during the
Waiver Period; provided that, in consideration of such extension, Holdings and
the Borrower hereby agree that at no time on or after the date of this Waiver
and prior to the termination of the Waiver Period (as extended hereby) shall
(i) the aggregate outstanding principal amount of Revolving Loans and Swingline
Loans exceed $7,000,000, (ii) the Letter of Credit Outstandings exceed
$2,000,000 or (iii) any payments be made by Holdings or any of its Subsidiaries
in respect of any amounts owing to HET, HOC or any of their respective
Subsidiaries or Affiliates (other than the Borrower and its Subsidiaries) in
respect of obligations of Holdings or any of its Subsidiaries to any such
Person which are or have been contractually deferred or otherwise forborne by
any such Person, or which are of the type which have been the subject of
contractual deferral or forbearance on the part of any such Person at any time
prior to the date hereof (including current amounts which may become due prior
to the termination of the Waiver Period); provided further that the waiver
granted above shall be effective only during the Waiver Period and such waiver
shall not be of any force or effect at any time thereafter, including with
respect to any failure to comply with such Section 9.09 for the Fiscal Test
Quarter ended June 30, 2000. The provisions of the first proviso to the
immediately preceding sentence shall for all purposes of the Credit Agreement
(including Section 10.03 thereof) constitute a covenant pursuant to Section 9
of the Credit Agreement, and the Banks shall have no obligation to honor
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any Notice of Borrowing or Letter of Credit Request, extend any Loan or issue
or participate in any Letter of Credit to the extent same would result in a
breach of the agreements set forth above. In addition to the foregoing, and in
further consideration of the granting of this Waiver, Holdings and the Borrower
hereby agree, and HET and HOC by their execution hereof consent and agree, that
at all times during the Waiver Period and in addition to any other Default or
Event of Default which may exist from time to time by operation of the Credit
Documents, a Specified Event of Default shall be deemed to exist solely for
purposes of Section 9.06 of the Credit Agreement.
2. In order to further induce the Banks to enter into this Waiver and
grant the waivers contemplated hereby, and in exchange for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
each of Holdings and the Borrower hereby (x) represents and warrants that no
Default or Event of Default exists on the Waiver Effective Date after giving
effect to this Waiver and (y) makes each of the representations, warranties and
agreements made by each such party contained in the Credit Agreement and the
other Credit Documents on and as of the Waiver Effective Date, after giving
effect to this Waiver (it being understood that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct in all material respects as of such date).
3. This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement (or of any provision beyond the specific waivers granted hereby) or
any other Credit Document. It is agreed that this Waiver shall constitute a
Credit Document, as defined in the Credit Agreement.
4. This Waiver 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
together shall constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
5. THIS WAIVER 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.
6. This Waiver shall become effective on the first date (the "Waiver
Effective Date") on which each of Holdings, the Borrower, HET, HOC and the
Required Banks shall have signed a copy hereof (whether the same or different
copies) and shall have delivered (including by way of facsimile) the same to
the Administrative Agent at its Notice Office.
7. At all times on and after the Waiver Effective Date, all references
in the Credit Agreement and each of the Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement after giving
effect to this Waiver.
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8. Each of the parties hereto (including for this purpose HET and HOC)
hereby acknowledges and agrees that none of the parties hereto shall have any
obligations (expressed or implied) to agree to any further amendments,
modifications or waivers with respect to the Credit Agreement or any other
Credit Document, or to provide any consent thereto or otherwise to forebear
with respect to the exercise of their rights under any Credit Document or
otherwise. The provisions of this Section 8 shall not give rise to the
requirement of any consent in instances where such consent is not required.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Waiver to be duly executed and delivered as of the date
first written above.
JCC HOLDING COMPANY
By: /s/ L. Xxxxxxx Xxxxxx
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Title: Vice President, Sec'y, Treasurer
JAZZ CASINO COMPANY, L.L.C.
By: /s/ L. Xxxxxxx Xxxxxx
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Title: Vice President, Sec'y, Treasurer
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By: /s/ June George
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Title: Director
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By:
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Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
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Title:
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BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
For purposes of the Credit Documents to which HET and HOC are party,
by their respective signatures below, each of HET and HOC hereby consents and
agrees to the entering into of this Waiver (as well as all prior amendments and
waivers to the Credit Agreement as described in the recitals hereto) and
acknowledges and affirms that the HET/HOC Guaranty and Loan Purchase Agreement
(as amended by the Amendment thereto dated as of October 1, 1999) remains in
full force and effect in accordance with its terms on the date hereof and after
giving effect to this Waiver:
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Duly Authorized Officer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Duly Authorized Officer
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