Exhibit 10.3
SECOND AMENDMENT
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SECOND AMENDMENT (this "Amendment"), dated as of October 15,
1996, 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, FIRST INTERSTATE BANK OF NEVADA, N.A., THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH, NATIONSBANK OF GEORGIA, N.A., 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 :
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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");
WHEREAS, Xxxxxx'x Jazz was previously formed by Xxxxxx'x
New Orleans Investment Company ("HNOIC"), an indirect Wholly-Owned
Subsidiary of Parent, New Orleans/ Louisiana Development Corporation ("NOLDC")
and Grand Palais Casino, Inc. ("GPCI");
WHEREAS, Xxxxxx'x Jazz was formed to operate the sole land
based casino in New Orleans, Louisiana (the "New Orleans Casino");
WHEREAS, Xxxxxx'x New Orleans Management Company
("Xxxxxx'x New Orleans"), an indirect Wholly-Owned Subsidiary of Parent,
was retained by Xxxxxx'x Jazz to manage the New Orleans Casino;
WHEREAS, on November 22, 1995, Xxxxxx'x Jazz and Xxxxxx'x Jazz
Finance Corp. ("Finance Corp", and together with Xxxxxx'x Jazz, the "Debtors"),
a Wholly-Owned Subsidiary of Xxxxxx'x Jazz, filed voluntary petitions for relief
under Chapter 11 of the Bankruptcy Code (the "Xxxxxx'x Jazz Bankruptcy Case")
with the United States Bankruptcy Court for the District of Delaware, and on
November 30, 1995, the Xxxxxx'x Jazz Bankruptcy Case was transferred to the
United States Bankruptcy Court for the Eastern District of Louisiana (the
"Bankruptcy Court");
WHEREAS, on November 22, 1995, Xxxxxx'x Jazz suspended
construction of the New Orleans Casino;
WHEREAS, since the commencement of the Xxxxxx'x Jazz
Bankruptcy Case, and pursuant to an order by the Bankruptcy Court, Xxxxxx'x Jazz
resumed construction to encapsulate and preserve the New Orleans Casino;
WHEREAS, on December 22, 1995, HNOIC filed a voluntary
bankruptcy petition under Chapter 11 of the Bankruptcy Code with the Bankruptcy
Court;
WHEREAS, as part of the Debtors' Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code, as such Joint Plan of Reorganization
may be amended from time to time (the "Reorganization Plan"), on the effective
date of the Reorganization Plan (the "Plan Effective Date"), all of the assets
and business of the Debtors will vest in Jazz Casino Corporation ("Jazz
Casino"), a Delaware corporation to be formed in connection with the
Reorganization Plan;
WHEREAS, Jazz Casino will be a direct Wholly-Owned Subsidiary
of JCC Intermediary Company ("JCC Intermediary"), which in turn will be a direct
Wholly-Owned Subsidiary of JCC Holding Company ("JCC Holding");
WHEREAS, as part of the Reorganization Plan, Parent (through
an indirect Wholly-Owned Subsidiary), the shareholders of NOLDC, the bondholders
of GPCI and certain holders of Xxxxxx'x Jazz's and Finance Corp's 14-1/4% First
Mortgage Notes 2001 (the "Bondholders") who have executed certain releases will
receive, in the aggregate, 49.9% of the common stock of JCC Holding;
WHEREAS, as part of the Reorganization Plan, the Bondholders
will receive the remaining 50.1% of the common stock of JCC Holding;
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WHEREAS, as part of the Reorganization Plan, Jazz Casino will
finish the completion of construction of the New Orleans Casino through (i) a
construction and working capital credit facility (the "Jazz Casino Construction
Credit Facility") in an amount not to exceed the difference between $215,000,000
and the aggregate principal amount of Jazz Casino Loans (as defined in
succeeding clause (ii)) made to Jazz Casino, (ii) loans (the "Jazz Casino
Loans") made to Jazz Casino (other than as part of the Jazz Casino Construction
Credit Facility) by Parent and/or its Subsidiaries or by a third party and
guaranteed by Parent and/or the Company (such guaranty, the "Jazz Casino Loan
Guaranty"), provided that the aggregate amount of Jazz Casino Loans made by
Parent and its Subsidiaries, when added to the amount of the Jazz Casino
Construction Credit Facility and the amount of the Jazz Casino Loan Guaranty,
shall not exceed $215,000,000, and (iii) an equity investment made by Parent or
a Subsidiary thereof in an amount not to exceed the difference between
$75,000,000 and the aggregate amount of Xxxxxx'x Jazz Investments made in excess
of $130,500,000;
WHEREAS, as part of the Reorganization Plan, the Bondholders
will receive, inter alia, (i) $187,500,000 in aggregate principal of 8% Senior
Subordinated Notes due 2007 issued by Jazz Casino (the "New Senior Subordinated
Bonds") and (ii) a pro rata share of Senior Subordinated Contingent Notes due
2007 issued by Jazz Casino (the "New Contingent Bonds") on which all payments
will be contingent based on a percentage of Jazz Casino's earnings;
WHEREAS, as part of the Reorganization Plan, Xxxxxx'x New
Orleans will manage the New Orleans Casino;
WHEREAS, as part of the Reorganization Plan and in connection
with the completion of the New Orleans Casino, (i) Parent and the Company will
enter into one or more completion guaranties (the "Jazz Casino Completion
Guaranties") in favor of the lenders to Jazz Casino under the Jazz Casino
Construction Credit Facility, the City of New Orleans, the Rivergate Development
Corporation, the Louisiana Gaming Control Board (as successor to the Louisiana
Economic Development and Gaming Corporation), the holders of the New Senior
Subordinated Bonds and the holders of the New Contingent Bonds and (ii) Parent
and/or the Company will enter into certain indemnity arrangements with the title
insurance companies providing the title insurance for the New Orleans Casino and
with the provider of a surety bond (the "Jazz Casino Surety Bond") in connection
with the completion of the construction of the New Orleans Casino (the "Jazz
Casino Indemnity Arrangements");
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WHEREAS, in the event that Parent and/or the Company make any
payments under the Jazz Casino Completion Guaranties or under the Jazz Casino
Indemnity Arrangements, such payments may be characterized as additional loans
or advances made by Parent and/or the Company to Jazz Casino (the "Jazz Casino
Completion Obligation Loans");
WHEREAS, in connection with the Jazz Casino Construction
Credit Facility, Parent and/or the Company may be required to provide certain
additional credit support for the Jazz Casino Construction Credit Facility in
the form of one or more additional guaranties, put agreements, keep-well
agreements and/or other similar credit support in favor of the lenders under the
Jazz Casino Construction Credit Facility (the "Jazz Casino Bank Guaranties");
WHEREAS, the parties hereto wish to permit certain additional
Investments by Parent and its Subsidiaries in, to or for the benefit of, JCC
Holding and its Subsidiaries under the Credit Agreements as herein provided; and
WHEREAS, the parties hereto also wish to amend and/or modify
certain provisions of the Credit Agreements to, inter alia, (i) increase the
Total Revolving Loan Commitment under the 5-Year Credit Agreement by up to
$350,000,000, (ii) permit the Company to redeem the 10-7/8% Senior Subordinated
Notes and/or the 8-3/4% Senior Subordinated Notes, (iii) permit Parent to
repurchase up to $200,000,000 of its common stock through December 31, 1997,
(iv) increase the initial Applicable Margin under the 5-Year Credit Agreement,
(v) increase the amount of other Investments permitted to be made by the Company
and its Subsidiaries and (vi) modify the financial covenants set forth therein,
in each case as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 6.04 of the 5-Year Credit Agreement is
hereby deleted in its entirety and the following new Section 6.04
is inserted in lieu thereof:
"Section 6.04. Additional Conditions to Certain Credit Events.
(a) If at any time after the Second Amendment Effective Date and prior
to the repayment in full of the 8- 3/4% Senior Subordinated Notes, the
Total Outstandings are reduced to an amount which is less than
$375,000,000, then as a condition precedent to any Credit Event which
would cause the Total Outstandings to exceed the 8-3/4 Lowest
Outstanding Amount then in effect by more than $575,000,000, the
Company
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shall have first delivered to the Administrative Agent a satisfactory
(to the Administrative Agent) legal opinion and certificate of its
Chief Financial Officer, Treasurer or Controller, each in form and
scope satisfactory to the Administrative Agent, demonstrating in
reasonable detail that such Credit Event may be incurred without
violating the terms of the 8-3/4% Senior Subordinated Notes Indenture.
(b) If at any time after the Second Amendment Effective Date
and prior to the repayment in full of the 10-7/8% Senior Subordinated
Notes, the Total Outstandings are reduced to an amount which is less
than $182,000,000, then as a condition precedent to any Credit Event
which would cause the Total Outstandings to exceed the 10-7/8 Lowest
Outstanding Amount then in effect by more than $768,000,000, the
Company shall have first delivered to the Administrative Agent a
satisfactory (to the Administrative Agent) legal opinion and
certificate of its Chief Financial Officer, Treasurer or Controller,
each in form and scope satisfactory to the Administrative Agent,
demonstrating in reasonable detail that such Credit Event may be
incurred without violating the terms of the 10-7/8% Senior Subordinated
Notes Indenture."
2. Section 5 of the 364-Day Credit Agreement is hereby
amended by inserting the following new Section 5.04 immediately
after Section 5.03 thereof:
"Section 5.04. Additional Conditions to Loans. If at any time
after the Second Amendment Effective Date and prior to the repayment in
full of the 8-3/4% Senior Subordinated Notes and the 10-7/8% Senior
Subordinated Notes any Borrower desires to incur any Loans, then as a
condition precedent to the incurrence of such Loans, the Company shall
have first delivered to the Administrative Agent a satisfactory (to the
Administrative Agent) legal opinion and certificate of its Chief
Financial Officer, Treasurer of Controller, each in form and scope
satisfactory to the Administrative Agent, demonstrating in reasonable
detail that such Loans may be incurred without violating the terms of
the 8-3/4% Senior Subordinated Notes Indenture and the 10-7/8% Senior
Subordinated Notes Indenture.
3. Section 9.03 of the 5-Year Credit Agreement is hereby
amended by (i) deleting the text "clauses (v) and (vi)" each place such text
appears in clause (iv) thereof and inserting the text "clauses (v), (vi) and
(x)" in lieu thereof in each such place, (ii) deleting the word "and" appearing
at the end of clause
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(viii) thereof, (iii) deleting the period appearing at the end of clause (ix)
thereof and inserting "; and" in lieu thereof, and (iv) inserting the following
new clause (x) at the end thereof:
"(x) so long as no Default or Event of Default shall exist
(both before and after giving effect to the payment thereof), at any
time (and from time to time) on or prior to December 31, 1997, Parent
may purchase, redeem or otherwise acquire outstanding shares of its
common stock in an aggregate amount not to exceed $200,000,000 less the
aggregate amount of Dividends paid pursuant to clause (v) of this
Section 9.03 on or after October 15, 1996 and on or prior to December
31, 1997."
4. Section 8.03 of the 364-Day Credit Agreement is hereby
amended by (i) deleting the text "clauses (v) and (vi)" each place such text
appears in clause (iv) thereof and inserting the text "clauses (v), (vi) and
(x)" in lieu thereof in each such place, (ii) deleting the word "and" appearing
at the end of clause (viii) thereof, (iii) deleting the period appearing at the
end of clause (ix) thereof and inserting "; and" in lieu thereof, and (iv)
inserting the following new clause (x) at the end thereof:
"(x) so long as no Default or Event of Default shall exist
(both before and after giving effect to the payment thereof), at any
time (and from time to time) on or prior to December 31, 1997, Parent
may purchase, redeem or otherwise acquire outstanding shares of its
common stock in an aggregate amount not to exceed $200,000,000 less the
aggregate amount of any Dividends paid pursuant to clause (v) of this
Section 8.03 on or after October 15, 1996 and on or prior to December
31, 1997."
5. Section 9.04 of the 5-Year Credit Agreement is hereby
amended by (i) deleting clauses (xi) and (xii) thereof in their entirety and
inserting the following new clauses (xi) and (xii) in lieu thereof:
"(xi) Additional Unsecured Senior Debt of the Company and
Subordinated Debt of the Company (which, in each case, may be
guaranteed on a like basis by Parent) not otherwise outstanding on the
Second Amendment Effective Date so long as (i) the terms and conditions
of any such Subordinated Debt (including, but not limited to,
subordination provisions) are no more favorable to the holders of such
Subordinated Debt than those set forth in the 8-3/4% Senior
Subordinated Notes Indenture or the 10-7/8% Senior Subordinated Notes
Indenture (provided that the indebtedness covenant contained in any
such
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issue of Subordinated Debt shall have sufficient availability (without
relying on any incurrence ratios) to justify the full amount of the
Total Revolving Loan Commitment and the Total 364-Day Revolving Loan
Commitment, in each case as such commitments are in effect at the time
of the issuance of such Subordinated Debt), (ii) if such Subordinated
Debt (or any portion thereof) constitutes Permitted Designated
Indebtedness, the Total Revolving Loan Commitment shall be reduced as
required by Section 3.03(d), (iii) the terms and conditions of any such
Additional Unsecured Senior Debt (x) do not contain any financial
maintenance or capital expenditure covenants or defaults, (y) do not
have any mandatory repayment, prepayment, redemption, sinking fund,
amortization or maturity prior to the date that is one year after the
Final Maturity Date (other than an option of the holders thereof to
require the Company to repurchase such Additional Unsecured Senior Debt
upon a change of control thereunder) and (z) are no more favorable to
the holders of such Additional Unsecured Senior Debt than those set
forth in this Agreement (provided that the indebtedness covenant
contained in any such issue of Additional Unsecured Senior Debt shall
have sufficient availability (without relying on any incurrence ratios)
to justify the full amount of the Total Revolving Loan Commitment and
the Total 364-Day Revolving Loan Commitment, in each case as such
commitments are in effect at the time of the issuance of such
Additional Unsecured Senior Debt), (iv) no more than $425,000,000 of
Additional Unsecured Senior Debt may be incurred pursuant to this
clause (xi) and (v) the proceeds of any such Additional Unsecured
Senior Debt are concurrently used only to refinance or redeem
outstanding 10-7/8% Senior Subordinated Notes and/or outstanding 8-3/4%
Senior Subordinated Notes and to pay any premiums and transaction costs
associated therewith (including any underwriting or placement
commissions or discounts and legal fees and expenses);
(xii) Parent and its Subsidiaries may guarantee on an
unsecured basis obligations of Specified Subsidiaries, Joint Ventures
and parties to management agreements with the Company or its
Subsidiaries or with such Joint Ventures, in each case with respect to
the development of Gaming Property in an amount not to exceed
$150,000,000 at any one time outstanding for any individual Gaming
Property and $425,000,000 at any one time outstanding for all such
Gaming Properties, provided that (i) the aggregate limitation set forth
above shall be (A) increased (or decreased if Consolidated Net Income
is negative) on the first day of each fiscal year of the Company
commencing on January 1, 1996 by an amount equal to 50% (or 100% for
each
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fiscal year for which Consolidated Net Income is negative) of the
Consolidated Net Income for the fiscal year last ended, and (B)
decreased from time to time by the amount of Dividends paid by the
Company to Parent pursuant to Section 9.03(iv) (other than Dividends
the proceeds of which are used by Parent to repurchase shares of its
common stock pursuant to Section 9.03(x)) on and after the Restatement
Effective Date and prior to the date of determination and (ii) the
aggregate amount of guarantees permitted to be outstanding by Parent
and its Subsidiaries pursuant to this Section 9.04(xii) shall be
reduced by the amount of Investments outstanding pursuant to clause (i)
of the proviso to Section 9.05;",
(ii) deleting the word "and" appearing at the end of clause (xiv) thereof, (iii)
deleting the period appearing at the end of clause (xv) thereof and inserting ";
and" in lieu thereof and (iv) inserting the following new clause (xvi) at the
end thereof:
"(xvi) on and after the Jazz Casino Trigger Date, Parent
and/or the Company may enter into the Jazz Casino Completion
Guaranties, the Jazz Casino Bank Guaranties, the Jazz Casino Loan
Guaranty and the Jazz Casino Indemnity Arrangements and perform their
respective obligations thereunder."
6. Section 8.04 of the 364-Day Credit Agreement is hereby
amended by (i) deleting clauses (xi) and (xii) thereof in their entirety and
inserting the following new clauses (xi) and (xii) in lieu thereof:
"(xi) Additional Unsecured Senior Debt of the Company and
Subordinated Debt of the Company (which, in each case, may be
guaranteed on a like basis by Parent) not otherwise outstanding on the
Second Amendment Effective Date so long as (i) the terms and conditions
of any such Subordinated Debt (including, but not limited to,
subordination provisions) are no more favorable to the holders of such
Subordinated Debt than those set forth in the 8-3/4% Senior
Subordinated Notes Indenture or the 10-7/8% Senior Subordinated Notes
Indenture (provided that the indebtedness covenant contained in any
such issue of Subordinated Debt shall have sufficient availability
(without relying on any incurrence ratios) to justify the full amount
of the Total Revolving Loan Commitment and the Total 5- Year Revolving
Loan Commitment, in each case as such commitments are in effect at the
time of the issuance of such Subordinated Debt), (ii) if such
Subordinated Debt (or any portion thereof) constitutes Permitted
Designated Indebtedness, the Total Revolving Loan Commitment shall be
reduced as required by Section 2.03(c), (iii) the terms and conditions
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of any such Additional Unsecured Senior Debt (x) do not contain any
financial maintenance or capital expenditure covenants or defaults, (y)
do not have any mandatory repayment, prepayment, redemption, sinking
fund, amortization or maturity prior to the date that is one year after
the Final Maturity Date (as defined in the 5-Year Credit Agreement)
(other than an option of the holders thereof to require the Company to
repurchase such Additional Unsecured Senior Debt upon a change of
control thereunder) and (z) are no more favorable to the holders of
such Additional Unsecured Senior Debt than those set forth in this
Agreement (provided that the indebtedness covenant contained in any
such issue of Additional Unsecured Senior Debt shall have sufficient
availability (without relying on any incurrence ratios) to justify the
full amount of the Total Revolving Loan Commitment and the Total 5-Year
Revolving Loan Commitment, in each case as such commitments are in
effect at the time of the issuance of such Additional Unsecured Senior
Debt), (vi) no more than $425,000,000 of Additional Unsecured Senior
Debt may be incurred pursuant to this clause (xi) and (v) the proceeds
of any such Additional Unsecured Senior Debt are concurrently used only
to refinance or redeem outstanding 10-7/8% Senior Subordinated Notes
and/or outstanding 8-3/4% Senior Subordinated Notes and to pay any
premiums and transaction costs associated therewith (including any
underwriting or placement commissions or discounts and legal fees and
expenses);
(xii) Parent and its Subsidiaries may guarantee on an
unsecured basis obligations of Specified Subsidiaries, Joint Ventures
and parties to management agreements with the Company or its
Subsidiaries or with such Joint Ventures, in each case with respect to
the development of Gaming Property in an amount not to exceed
$150,000,000 at any one time outstanding for any individual Gaming
Property and $425,000,000 at any one time outstanding for all such
Gaming Properties, provided that (i) the aggregate limitation set forth
above shall be (A) increased (or decreased if Consolidated Net Income
is negative) on the first day of each fiscal year of the Company
commencing on January 1, 1996 by an amount equal to 50% (or 100% for
each fiscal year for which Consolidated Net Income is negative) of the
Consolidated Net Income for the fiscal year last ended, and (B)
decreased from time to time by the amount of Dividends paid by the
Company to Parent pursuant to Section 8.03(iv) (other than Dividends
the proceeds of which are used by Parent to repurchase shares of its
common stock pursuant to Section 8.03(x)) on and after the Restatement
Effective Date and prior to the date of determination and (ii) the
aggregate amount of
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guarantees permitted to be outstanding by Parent and its Subsidiaries
pursuant to this Section 8.04(xii) shall be reduced by the amount of
Investments outstanding pursuant to clause (i) of the proviso to
Section 8.05;",
(ii) deleting the number "$600,000,000" appearing in clause (xiv) thereof and
inserting the number "$950,000,000" in lieu thereof, (iii) deleting the word
"and" appearing at the end of clause (xiv) thereof, (iv) deleting the period
appearing at the end of clause (xv) thereof and inserting "; and" in lieu
thereof and (v) inserting the following new clause (xvi) at the end thereof:
"(xvi) on and after the Jazz Casino Trigger Date, Parent
and/or the Company may enter into the Jazz Casino Completion
Guaranties, the Jazz Casino Bank Guaranties, the Jazz Casino Loan
Guaranty and the Jazz Casino Indemnity Arrangements and perform their
respective obligations thereunder."
7. Section 9.05 of the 5-Year Credit Agreement is
hereby deleted in its entirety and the following new Section 9.05
is inserted in lieu thereof:
"9.05 Advances, Investments and Loans. Parent will not, and
will not permit any of its Subsidiaries to, directly or indirectly,
lend money or credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any other Person
(collectively, "Investments") other than Investments in the ordinary
course of business, Subsidiary Investments and other Investments
existing on the Restatement Effective Date, provided that:
(i) Investments other than Subsidiary Investments
shall not be made with respect to the development or operation
of Gaming Properties or in connection with Gaming Businesses
(and reasonable extensions thereof), except that Investments
in any Joint Venture relating to the Gaming Business or
Investments in parties to management agreements with the
Company or its Subsidiaries or such Joint Ventures for gaming
projects may be made so long as the aggregate amount thereof
does not exceed $150,000,000 at any one time outstanding
(determined without regard to any write-downs or write-offs of
such Investments) for any individual Gaming Business or gaming
project or $425,000,000 at any one time outstanding
(determined without regard to any write-downs or write-offs of
such Investments) for all such Gaming Businesses and gaming
projects, provided that (x) the aggregate
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limitation set forth above shall be (A) increased (or
decreased if Consolidated Net Income is negative) on the first
day of each fiscal year of the Company commencing on January
1, 1996 by an amount equal to 50% (or 100% for each fiscal
year for which Consolidated Net Income is negative) of the
Consolidated Net Income for the fiscal year last ended and (B)
decreased from time to time by the amount of Dividends paid by
the Company to Parent pursuant to Section 9.03(iv) (other than
Dividends the proceeds of which are to be used by Parent to
repurchase shares of its common stock pursuant to Section
9.03(x)) on and after the Restatement Effective Date, (y) the
aggregate amount of such Investments permitted to be made
pursuant to this Section 9.05(i) shall be reduced by the
aggregate amount of guarantees outstanding pursuant to Section
9.04(xii) and (z) Investments in, to or for the benefit of
Xxxxxx'x Jazz and its Subsidiaries and JCC Holding and its
Subsidiaries shall not be permitted to be made pursuant to
this Section 9.05(i), provided that, after Phase I (under, and
as defined in, Xxxxxx'x Jazz's Second Amended Joint Disclosure
Statement, dated August 28, 1996 (as in effect on the date
hereof)) has been completed, up to $25,000,000 of Investments
in, to or for the benefit of JCC Holding and its Subsidiaries
may be made pursuant to this Section 9.05(i);
(ii) Investments constituting Xxxxxx'x Jazz
Investments shall be permitted, provided that the aggregate
amount of all such Investments (other than in respect of the
Xxxxxx'x Jazz Completion Obligation Loans, the Xxxxxx'x Jazz
Title Indemnity Arrangements and the Xxxxxx'x Jazz Completion
Guaranties), whether made prior to, on or after the
Restatement Effective Date, shall not exceed $175,000,000,
provided further, that (x) no part of the Investments
permitted by this clause (ii) may be used to make Investments
in, to or for the benefit of, JCC Holding and its Subsidiaries
and (y) on and after the Jazz Casino Trigger Date, Parent and
its Subsidiaries may not make any additional Xxxxxx'x Jazz
Investments;
(iii) on and after the Jazz Casino Trigger Date,
Parent and/or the Company may enter into the Jazz Casino
Completion Guaranties, the Jazz Casino Bank Guaranties, the
Jazz Casino Loan Guaranty and the Jazz Casino Indemnity
Arrangements and perform their respective obligations
thereunder, and make (or be deemed to make) Jazz Casino
Completion Obligation Loans to Jazz Casino as a result of such
performance; and
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(iv) on and after the Jazz Casino Trigger Date,
Parent and its Subsidiaries may make the Jazz Casino Loans to
Jazz Casino and may make additional Investments in, to or for
the benefit of, JCC Holding and its Subsidiaries in an
aggregate amount not to exceed the remainder of (x)
$75,000,000 less (y) the aggregate amount of Xxxxxx'x Jazz
Investments made by Parent and/or its Subsidiaries in excess
of $130,500,000.
Notwithstanding (x) the foregoing provisions of this Section
9.05, Investments in the ordinary course of business shall not include
the purchases of (i) Margin Stock and (ii) non-investment grade debt
securities of any Person, it being understood and agreed, however, that
in connection with any Investment in a Joint Venture as permitted by
Section 9.05(i) above or in connection with any Subsidiary Investment
made in a Subsidiary acquired or created after March 31, 1996, the
Company may, subject to Section 7.08(b), make an Investment consisting
of Margin Stock or non-investment grade debt securities of such Joint
Venture or such Subsidiary, as the case may be, and (y) the foregoing
provisions of this Section 9.05 or Section 9.04, (A) in no event shall
the aggregate amount of the Jazz Casino Construction Credit Facility
plus the aggregate amount of Jazz Casino Loans made by Parent and its
Subsidiaries plus the amount of the Jazz Casino Loan Guaranty exceed
$215,000,000 (with such amount to be reduced by any permanent
reductions in the Jazz Casino Construction Credit Facility and/or any
Jazz Casino's Loans theretofore made (whether or not made by Parent or
any of its Subsidiaries)) and (B) the terms and conditions of the Jazz
Casino Surety Bond shall be in form and substance satisfactory to the
Administrative Agent."
8. Section 8.05 of the 364-Day Credit Agreement is
hereby deleted in its entirety and the following new Section 8.05
is inserted in lieu thereof:
"8.05 Advances, Investments and Loans. Parent will not, and
will not permit any of its Subsidiaries to, directly or indirectly,
lend money or credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any other Person
(collectively, "Investments") other than Investments in the ordinary
course of business, Subsidiary Investments and other Investments
existing on the Restatement Effective Date, provided that:
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(i) Investments other than Subsidiary Investments
shall not be made with respect to the development or operation
of Gaming Properties or in connection with Gaming Businesses
(and reasonable extensions thereof), except that Investments
in any Joint Venture relating to the Gaming Business or
Investments in parties to management agreements with the
Company or its Subsidiaries or such Joint Ventures for gaming
projects may be made so long as the aggregate amount thereof
does not exceed $150,000,000 at any one time outstanding
(determined without regard to any write-downs or write-offs of
such Investments) for any individual Gaming Business or gaming
project or $425,000,000 at any one time outstanding
(determined without regard to any write-downs or write-offs of
such Investments) for all such Gaming Businesses and gaming
projects, provided that (x) the aggregate limitation set forth
above shall be (A) increased (or decreased if Consolidated Net
Income is negative) on the first day of each fiscal year of
the Company commencing on January 1, 1996 by an amount equal
to 50% (or 100% for each fiscal year for which Consolidated
Net Income is negative) of the Consolidated Net Income for the
fiscal year last ended and (B) decreased from time to time by
the amount of Dividends paid by the Company to Parent pursuant
to Section 8.03(iv) (other than Dividends the proceeds of
which are to be used by Parent to repurchase shares of its
common stock pursuant to Section 8.03(x)) on and after the
Restatement Effective Date, (y) the aggregate amount of such
Investments permitted to be made pursuant to this Section
8.05(i) shall be reduced by the aggregate amount of guarantees
outstanding pursuant to Section 8.04(xii) and (z) Investments
in, to or for the benefit of Xxxxxx'x Jazz and its
Subsidiaries and JCC Holding and its Subsidiaries shall not be
permitted to be made pursuant to this Section 8.05(i),
provided that, after Phase I (under, and as defined in,
Xxxxxx'x Jazz's Second Amended Joint Disclosure Statement,
dated August 28, 1996 (as in effect on the date hereof)) has
been completed, up to $25,000,000 of Investments in, to or for
the benefit of JCC Holding and its Subsidiaries may be made
pursuant to this Section 8.05(i);
(ii) Investments constituting Xxxxxx'x Jazz
Investments shall be permitted, provided that the aggregate
amount of all such Investments (other than in respect of the
Xxxxxx'x Jazz Completion Obligation Loans, the Xxxxxx'x Jazz
Title Indemnity Arrangements and the Xxxxxx'x Jazz Completion
Guaranties), whether made prior
-13-
to, on or after the Restatement Effective Date, shall not
exceed $175,000,000, provided further, that (x) no part of the
Investments permitted by this clause (ii) may be used to make
Investments in, to or for the benefit of, JCC Holding and its
Subsidiaries and (y) on and after the Jazz Casino Trigger
Date, Parent and its Subsidiaries may not make any additional
Xxxxxx'x Jazz Investments;
(iii) on and after the Jazz Casino Trigger Date,
Parent and/or the Company may enter into the Jazz Casino
Completion Guaranties, the Jazz Casino Bank Guaranties, the
Jazz Casino Loan Guaranty and the Jazz Casino Indemnity
Arrangements and perform their respective obligations
thereunder, and make (or be deemed to make) Jazz Casino
Completion Obligation Loans to Jazz Casino as a result of such
performance; and
(iv) on and after the Jazz Casino Trigger Date,
Parent and its Subsidiaries may make the Jazz Casino Loans to
Jazz Casino and may make additional Investments in, to or for
the benefit of, JCC Holding and its Subsidiaries in an
aggregate amount not to exceed the remainder of (x)
$75,000,000 less (y) the aggregate amount of Xxxxxx'x Jazz
Investments made by Parent and/or its Subsidiaries in excess
of $130,500,000.
Notwithstanding (x) the foregoing provisions of this Section
8.05, Investments in the ordinary course of business shall not include
the purchases of (i) Margin Stock and (ii) non-investment grade debt
securities of any Person, it being understood and agreed, however, that
in connection with any Investment in a Joint Venture as permitted by
Section 8.05(i) above or in connection with any Subsidiary Investment
made in a Subsidiary acquired or created after March 31, 1996, the
Company may, subject to Section 6.08(b), make an Investment consisting
of Margin Stock or non-investment grade debt securities of such Joint
Venture or such Subsidiary, as the case may be, and (y) the foregoing
provisions of this Section 8.05 or Section 8.04, (A) in no event shall
the aggregate amount of the Jazz Casino Construction Credit Facility
plus the aggregate amount of Jazz Casino Loans made by Parent and its
Subsidiaries plus the amount of the Jazz Casino Loan Guaranty exceed
$215,000,000 (with such amount to be reduced by any permanent
reductions in the Jazz Casino Construction Credit Facility and/or any
Jazz Casino Loans theretofore made (whether or not made by Parent or
any of its Subsidiaries)) and (B) the terms and conditions of the Jazz
Casino Surety Bond shall be in form and substance satisfactory to the
Administrative Agent."
-14-
9. Section 9.07 of the 5-Year Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
"Period Ratio
------- -----
Restatement Effective
Date to and including
December 31, 1996 2.75:1
January 1, 1997 to and
including December 31, 1997 3.00:1
January 1, 1998 to and
including December 31, 1998 2.80:1
January 1, 1999 to and
including December 31, 1999 2.30:1
January 1, 2000 and thereafter 2:00:1".
10. Section 8.07 of the 364-Day Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
"Period Ratio
------- -----
Restatement Effective
Date to and including
December 31, 1996 2.75:1
January 1, 1997 to and
including December 31, 1997 3.00:1
January 1, 1998 to and
including December 31, 1998 2.80:1
January 1, 1999 to and
including December 31, 1999 2.30:1
January 1, 2000 and thereafter 2:00:1".
-15-
11. Section 9.08 of the 5-Year Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
"Fiscal Quarter Ratio
--------------- -----
Fiscal quarters ending
September 30, 1996,
December 31, 1996, March
31, 1997, June 30, 1997,
September 30, 1997, December,
31, 1997, March 31,
1998, June 30, 1998 and
September 30, 1998 2.5:1.
Fiscal quarters ending
December 31, 1998 and
thereafter 3.0:1".
12. Section 8.08 of the 364-Day Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
"Fiscal Quarter Ratio
--------------- -----
Fiscal quarters ending
September 30, 1996,
December 31, 1996, March
31, 1997, June 30, 1997,
September 30, 1997, December,
31, 1997, March 31,
1998, June 30, 1998 and
September 30, 1998 2.5:1.
Fiscal quarters ending
December 31, 1998 and
thereafter 3.0:1".
13. Section 9.09 of the 5-Year Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
-16-
"Period Amount
------- ------
Second Amendment Effective Date to
and including December 31, 1996 $ 550,000,000
Year ending December 31, 1997 $ 550,000,000
Year ending December 31, 1998 $ 650,000,000
Year ending December 31, 1999 $ 800,000,000
Year ending December 31, 2000 $1,000,000,000."
14. Section 8.09 of the 364-Day Credit Agreement is hereby
amended by deleting the table appearing therein in its entirety and inserting
the following new table in lieu thereof:
"Period Amount
------- ------
Second Amendment Effective Date to
and including December 31, 1996 $ 550,000,000
Year ending December 31, 1997 $ 550,000,000
Year ending December 31, 1998 $ 650,000,000
Year ending December 31, 1999 $ 800,000,000
Year ending December 31, 2000 $1,000,000,000."
15. Section 9.10 of the 5-Year Credit Agreement is hereby
amended by (i) deleting clauses (i), (ii) and (iii) of the first sentence
thereof in their entirety and inserting the following new clauses (i), (ii) and
(iii) in lieu thereof:
"(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt (other than the Company's 8-3/8%
Subordinated Debentures due 1996) or Additional Unsecured Senior Debt,
provided, that the Company may repurchase, redeem or otherwise retire
outstanding 10-7/8% Senior Subordinated Notes and/or 8-3/4%
-17-
Senior Subordinated Notes with the proceeds of Additional Unsecured
Senior Debt and/or Subordinated Debt issued pursuant to Section
9.04(xi), (ii) make (or give any notice in respect of) any mandatory
payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
when due) any Subordinated Debt or Additional Unsecured Senior Debt as
a result of any sale of assets by Parent or any of its Subsidiaries,
(iii) amend or modify, or permit the amendment or modification of, any
provision of any Subordinated Debt or Additional Unsecured Senior Debt
or of any agreement (including, without limitation, any purchase
agreement, indenture or loan agreement) relating thereto (except
modifications relating to the 10-7/8% Senior Subordinated Notes
Indenture and 8-3/4% Senior Subordinated Notes Indenture in order to
remove and/or make less restrictive the covenants and/or defaults
contained therein in connection with obtaining any exit consents
associated with the tender by the Company for such notes so long as the
documentation with respect thereto is in form and substance
satisfactory to the Administrative Agent)," and
(ii) inserting the following words immediately after the words "Subordinated
Debt" each place such words appear in the final sentence thereof:
"and/or Additional Unsecured Senior Debt".
16. Section 8.10 of the 364-Day Credit Agreement is hereby
amended by (i) deleting clauses (i), (ii) and (iii) of the first sentence
thereof in their entirety and inserting the following new clauses (i), (ii) and
(iii) in lieu thereof:
"(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt (other than the Company's 8-3/8%
Subordinated Debentures due 1996) or Additional Unsecured Senior Debt,
provided, that the Company may repurchase, redeem or otherwise retire
outstanding 10-7/8% Senior Subordinated Notes and/or 8-3/4% Senior
Subordinated Notes with the proceeds of unsecured senior Indebtedness
and/or Subordinated Debt issued pursuant to Section 8.04(xi), (ii) make
(or give any notice
-18-
in respect of) any mandatory payment or prepayment on or redemption or
acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities
before due for the purpose of when due) any Subordinated Debt or
Additional Unsecured Senior Debt as a result of any sale of assets by
Parent or any of its Subsidiaries, (iii) amend or modify, or permit the
amendment or modification of, any provision of any Subordinated Debt or
Additional Unsecured Senior Debt or of any agreement (including,
without limitation, any purchase agreement, indenture or loan
agreement) relating thereto (except modifications relating to the
10-7/8% Senior Subordinated Notes Indenture and 8-3/4% Senior
Subordinated Notes Indenture in order to remove and/or make less
restrictive the covenants and/or defaults contained therein in
connection with obtaining any exit consents associated with the tender
by the Company for such notes so long as the documentation with respect
thereto is in form and substance satisfactory to the Administrative
Agent)," and
(ii) inserting the following words immediately after the words "Subordinated
Debt" each place such words appear in the final sentence thereof:
"and/or Additional Unsecured Senior Debt".
17. The definition of "Applicable Margin" appearing in Section
11.01 of the 5-Year Credit Agreement is hereby deleted in its entirety and the
following new definition of "Applicable Margin" is inserted in lieu thereof:
"`Applicable Margin' shall mean 1-1/8% less the then
applicable Reduction Discount."
18. The definitions of "Lowest Outstanding Amount"
and "364-Day Revolving Loan Commitment Reduction Amount"
appearing in Section 11.01 of the 5-Year Credit Agreement are
hereby deleted in their entirety.
19. The definition of "Reduction Discount" appearing in
Section 11.01 of the 5-Year Credit Agreement is hereby deleted in its entirety
and the following new definition of "Reduction Discount" is inserted in lieu
thereof:
-19-
"`Reduction Discount' shall mean initially zero and from and
after the first day of any Margin Reduction Period (the "Start Date")
to and including the last day of such Margin Reduction Period (the "End
Date"), the Reduction Discount shall be the respective percentage per
annum set forth in clause (A), (B) or (C) below if, but only if, as of
the last day of the most recent fiscal quarter of Parent ended
immediately prior to such Start Date (the "Test Date") the conditions
in clause (A), (B) or (C) below are met:
(A) (x) in the case of Eurodollar Loans, 3/8 of 1%
and (y) in the case of Commitment Commission, 5/100 of 1% in
each case if, but only if, as of the Test Date for such Start
Date either of the following conditions are met and the
conditions set forth in none of clauses (B) and (C) below are
satisfied:
(i) the Consolidated Interest Coverage Ratio
for the Test Period ended on such Test Date shall
be greater than 3.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date
shall be rated at least BBB- Senior Implied by S&P or Baa3
Senior Implied by Xxxxx'x;
(B) (x) in the case of Eurodollar Loans, 5/8 of 1% and (y) in
the case of Commitment Commission, 10/100 of 1% in each case if, but
only if, as of the Test Date for such Start Date either of the
following conditions are met and the conditions set forth in clause (C)
below are not satisfied:
(i) the Consolidated Interest Coverage Ratio for
the Test Period ended on such Test Date shall be greater than
3.50:1.00; or
(ii) the Indebtedness of the Company on such Test
Date shall be rated at least BBB Senior Implied by S&P or Baa2
Senior Implied by Xxxxx'x; or
(C) (x) in the case of Eurodollar Loans, 3/4 of 1% and (y) in
the case of Commitment Commission, 1/8 of 1% in each case if, but only
if, as of the Test Date for such Start Date either of the following
conditions are met:
-20-
(i) the Consolidated Interest Coverage Ratio
for the Test Period ended on such Test Date shall
be greater than 4.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date
shall be rated at least BBB+ Senior Implied by S&P or Baa1
Senior Implied by Xxxxx'x.
Notwithstanding anything to the contrary above in this definition, the
Reduction Discount shall be reduced to zero at all times when a Default
under Section 8.01(a) or (b) shall exist or an Event of Default shall
exist."
20. The definition of "Maximum Swingline Amount" appearing in
Section 11.01 of the 5-Year Credit Agreement is hereby amended by deleting the
number "$25,000,000" appearing therein and inserting the number "$50,000,000" in
lieu thereof.
21. The definition of "Permitted Designated Indebtedness"
appearing in Section 11.01 of the 5-Year Credit Agreement is hereby amended by
inserting the following parenthetical immediately after the reference to
"Section 9.04(xi)" appearing therein:
"(other than Subordinated Debt the proceeds of which are used to
repurchase, redeem or otherwise retire outstanding 10-7/8% Senior
Subordinated Notes and/or 8-3/4% Senior Subordinated Notes)".
22. The definition of "Permitted Designated Indebtedness"
appearing in Section 10.01 of the 364-Day Credit Agreement is hereby amended by
inserting the following parenthetical immediately after the reference to
"Section 8.04(xi)" appearing therein:
"(other than Subordinated Debt the proceeds of which are used to
repurchase, redeem or otherwise retire outstanding 10-7/8% Senior
Subordinated Notes and/or 8-3/4% Senior Subordinated Notes)".
23. Section 11.01 of the 5-Year Credit Agreement is
hereby amended by inserting in the appropriate alphabetical
order the following two new definitions:
"`8-3/4 Lowest Outstanding Amount' shall have the meaning
provided in Section 13.18(b).
-00-
"00-0/0 Xxxxxx Xxxxxxxxxxx Xxxxxx" shall have the
meaning provided in Section 13.18(a)."
24. Section 11.01 of the 5-Year Credit Agreement, and Section
10.01 of the 364-Day Credit Agreement, are each hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"`Additional Unsecured Senior Debt' shall mean each issue of
unsecured senior Indebtedness issued by the Company to the extent
permitted by Section [9.04(xi)] [8.04(xi)] of this Agreement.
`Jazz Casino' shall have the meaning provided in the
recitals to the Second Amendment.
`Jazz Casino Bank Guaranties' shall have the meaning provided
in the recitals to the Second Amendment.
`Jazz Casino Completion Guaranties' shall have the meaning
provided in the recitals to the Second Amendment.
`Jazz Casino Completion Obligation Loans' shall have the
meaning provided in the recitals to the Second Amendment.
`Jazz Casino Construction Credit Facility' shall have the
meaning provided in the recitals to the Second Amendment.
`Jazz Casino Indemnity Arrangements' shall have the meaning
provided in the recitals to the Second Amendment.
`Jazz Casino Loan Guaranty' shall have the meaning provided in
the recitals to the Second Amendment.
`Jazz Casino Loans' shall have the meaning provided in the
recitals to the Second Amendment.
`Jazz Casino Surety Bond' shall have the meaning provided in
the recitals to the Second Amendment.
`Jazz Casino Trigger Date' shall mean the date on which (i)
the Plan Effective Date shall have occurred in accordance with the
terms of the Reorganization Plan and (ii) all material governmental and
material third party approvals with respect to the construction and
operation of the New Orleans Casino to the extent required to be
-22-
obtained by the Plan Effective Date shall have been obtained and remain
in full force and effect, including, without limitation, any referendum
or vote required by the people of the State of Louisiana and/or the
City or Parish of New Orleans.`
`JCC Holding' shall have the meaning provided in the
recitals to the Second Amendment.
`New Orleans Casino' shall have the meaning provided in the
recitals to the Second Amendment.
`Plan Effective Date' shall have the meaning provided in the
recitals to the Second Amendment.
`Reorganization Plan' shall have the meaning
provided in the recitals to the Second Amendment.
`Second Amendment' shall mean the Second Amendment, dated as
of October 15, 1996, to this Agreement.
`Second Amendment Effective Date' shall have the
meaning provided in the Second Amendment."
25. Section 13.07(a) of the 5-Year Credit Agreement is hereby
amended by (i) deleting the word "and" appearing immediately before clause (ii)
of the proviso thereof and (ii) inserting the following new clause (iii) at the
end of such proviso:
"and (iii) at no time shall JCC Holding and its Subsidiaries be treated
as Subsidiaries of Parent for purposes of this Agreement, even though
(x) JCC Holding and its Subsidiaries may at any time fall within the
definition of "Subsidiary" or (y) generally accepted accounting
principles would require otherwise, but shall instead be treated as an
equity investment by Parent".
26. Section 12.07(a) of the 364-Day Credit Agreement is hereby
amended by (i) deleting the word "and" appearing immediately before clause (ii)
of the proviso thereof and (ii) inserting the following new clause (iii) at the
end of such proviso:
"and (iii) at no time shall JCC Holding and its Subsidiaries be treated
as Subsidiaries of Parent for purposes of this Agreement, even though
(x) JCC Holding and its Subsidiaries may at any time fall within the
-23-
definition of "Subsidiary" or (y) generally accepted accounting
principles would require otherwise, but shall instead be treated as an
equity investment by Parent".
27. Section 13.18 of the 5-Year Credit Agreement is
hereby deleted in its entirety and the following new Section
13.18 is inserted in lieu thereof:
"13.18. Certain Agreements with Respect to Existing
Indentures. (a) Each Borrower represents and warrants to the Banks
that, on the Second Amendment Effective Date, loans in aggregate
principal amount equal to the sum of the Total Revolving Loan
Commitment (assuming for purposes of this Section 13.18(a) that the
Total Revolving Loan Commitment equals $950,000,000) and the Total
364-Day Revolving Loan Commitment would be permitted to be incurred
pursuant to the second paragraph of Section 1008 of the 10-7/8% Senior
Subordinated Notes Indenture (and that the Consolidated Fixed Charge
Ratio referred to therein would be at least equal to 2.0 to 1 after
giving effect thereto). Furthermore, the Borrowers agree that they
shall not incur or suffer to exist at any time any Debt (as defined in
the 10-7/8% Senior Subordinated Notes Indenture) pursuant to clause (a)
of the first paragraph of Section 1008 of the 10-7/8% Senior
Subordinated Notes Indenture, except that up to $768,000,000 of
outstanding Debt incurred from time to time pursuant this Agreement may
be justified as having been incurred pursuant to said clause (a). For
purposes of determining compliance with the 10-7/8% Senior Subordinated
Notes Indenture for Credit Events occurring after the Second Amendment
Effective Date, all incurrences of Loans and issuances of Letters of
Credit after the Second Amendment Effective Date will be deemed
incurred pursuant to clause (a) of the first paragraph of Section 1008
of the 10-7/8% Senior Subordinated Notes Indenture; provided that if at
any time after the Second Amendment Effective Date the Total
Outstandings are reduced below an amount equal to $182,000,000 (with
the lowest amount below said amount to which the Total Outstandings
hereunder have at any time been reduced (as such amount may be adjusted
as herein provided), being herein called the "10-7/8 Lowest Outstanding
Amount", it being understood that if the Total Outstandings hereunder
ever exceed the then previous 10-7/8 Lowest Outstanding Amount by more
than $768,000,000, the then previous 10-7/8 Lowest Outstanding Amount
shall be increased by an amount equal to such excess, provided that in
no event
-24-
shall the 10-7/8 Lowest Outstanding Amount ever exceed $182,000,000),
then at any time thereafter the Borrowers shall not be permitted to
incur Loans or have Letters of Credit issued which would cause the
Total Outstandings to exceed the theretofore 10-7/8 Lowest Outstanding
Amount by more than $768,000,000 unless, in connection with any such
Credit Event, the Borrowers establish to the satisfaction of the
Administrative Agent (including by the delivery of a satisfactory legal
opinion and a certificate of the Company's Chief Financial Officer,
Treasurer or Controller) that the incurrence of such Loans or issuance
of such Letter of Credit would be permitted pursuant to the terms of
the 10-7/8% Senior Subordinated Notes Indenture. The Borrowers
represent and warrant that all Indebtedness incurred under this
Agreement shall be permitted to be incurred and remain outstanding
pursuant to the 10-7/8% Senior Subordinated Notes Indenture, and the
Borrowers hereby also covenant and agree that they shall not take any
action with respect to the incurrence of any Indebtedness (including
under this Agreement) which is inconsistent with this Section 13.18(a).
This clause (a) shall cease to be of further force or effect at such
time as all 10-7/8% Senior Subordinated Notes have been repaid in full
and the provisions of Section 1008 of the 10-7/8% Senior Subordinated
Notes Indenture are no longer effective.
(b) Each Borrower represents and warrants to the Banks that,
on the Second Amendment Effective Date, loans in aggregate principal
amount equal to the sum of the Total Revolving Loan Commitment
(assuming for purposes of this Section 13.18(b) that the Total
Revolving Loan Commitment equals $950,000,000) and the Total 364-Day
Revolving Loan Commitment would be permitted to be incurred pursuant to
the second paragraph of Section 1008 of the 8-3/4% Senior Subordinated
Notes Indenture (and that the Consolidated Fixed Charge Ratio referred
to therein would be at least equal to 2.0 to 1 after giving effect
thereto). Furthermore, the Borrowers agree that they shall not incur or
suffer to exist at any time any Debt (as defined in the 8-3/4% Senior
Subordinated Notes Indenture) pursuant to clause (a) of the first
paragraph of Section 1008 of the 8-3/4% Senior Subordinated Notes
Indenture, except that up to $575,000,000 of outstanding Debt incurred
from time to time pursuant to this Agreement may be justified as having
been incurred pursuant to said clause (a). For purposes of determining
compliance with the 8-3/4% Senior Subordinated Notes
-25-
Indenture for Credit Events occurring after the Second Amendment
Effective Date, all incurrences of Loans and issuances of Letters of
Credit after the Second Amendment Effective Date will be deemed
incurred pursuant to clause (a) of the first paragraph of Section 1008
of the 8-3/4% Senior Subordinated Notes Indenture; provided that if at
any time after the Second Amendment Effective Date the Total
Outstandings are reduced below an amount equal $375,000,000 (with the
lowest amount below said amount to which the Total Outstandings
hereunder have at any time been reduced (as such amount may be adjusted
as herein provided), being herein called the "8-3/4 Lowest Outstanding
Amount", it being understood that if the Total Outstandings hereunder
ever exceed the then previous 8-3/4 Lowest Outstanding Amount by more
than $575,000,000, the then previous 8-3/4 Lowest Outstanding Amount
shall be increased by an amount equal to such excess, provided that in
no event shall the 8-3/4 Lowest Outstanding Amount ever exceed
$375,000,000), then at any time thereafter the Borrowers shall not be
permitted to incur Loans or have Letters of Credit issued which would
cause the Total Outstandings to exceed the theretofore 8- 3/4 Lowest
Outstanding Amount by more than $575,000,000 unless, in connection with
any such Credit Event, the Borrowers establish to the satisfaction of
the Administrative Agent (including by the delivery of a satisfactory
legal opinion and a certificate of the Company's Chief Financial
Officer, Treasurer or Controller) that the incurrence of such Loans or
issuance of such Letter of Credit would be permitted pursuant to the
terms of the 8-3/4% Senior Subordinated Notes Indenture. The Borrowers
represent and warrant that all Indebtedness incurred under this
Agreement shall be permitted to be incurred and remain outstanding
pursuant to the 8-3/4% Senior Subordinated Notes Indenture, and the
Borrowers hereby also covenant and agree that they shall not take any
action with respect to the incurrence of any Indebtedness (including
under this Agreement) which is inconsistent with this Section 13.18(b).
This clause (b) shall cease to be of further force or effect at such
time as all 8-3/4% Senior Subordinated Notes have been repaid in full
and the provisions of Section 1008 of the 8-3/4% Senior Subordinated
Notes Indenture are no longer effective."
28. Section 12.18 of the 364-Day Credit Agreement
is hereby deleted in its entirety and the following new
Section 12.18 is inserted in lieu thereof:
-26-
Section 12.18. Certain Agreements with Respect to Existing
Indentures. (a) The Borrowers agree that they shall not incur or suffer
to exist at any time any Debt (as defined in the 10-7/8% Senior
Subordinated Notes Indenture) pursuant to clause (a) of the first
paragraph of Section 1008 of the 10-7/8% Senior Subordinated Notes
Indenture, except that up to $768,000,000 of outstanding Debt incurred
from time to time pursuant to the 5-Year Credit Agreement may be
justified as having been incurred pursuant to said clause (a). For
purposes of determining compliance with the 10-7/8% Senior Subordinated
Notes Indenture for all incurrences of Loans under this Agreement, the
Borrowers agree that they shall not incur any Loans under this
Agreement unless, in connection with such incurrence, the Borrowers
establish to the satisfaction of the Administrative Agent (including by
the delivery of a satisfactory legal opinion and certificate of the
Company's Chief Financial Officer, Treasurer or Controller) that the
incurrence of such Loans would be permitted pursuant to the terms of
the 10-7/8% Senior Subordinated Notes Indenture. The Borrowers
represent and warrant that all Indebtedness incurred under this
Agreement shall be permitted to be incurred and remain outstanding
pursuant to the 10-7/8% Senior Subordinated Notes Indenture, and the
Borrowers hereby also covenant and agree that they shall not take any
action with respect to the incurrence of any Indebtedness (including
under this Agreement) which is inconsistent with this Section 12.18(a).
This clause (a) shall cease to be of further force or effect at such
time as all 10-7/8% Senior Subordinated Notes have been repaid in full
and the provisions of Section 1008 of the 10-7/8% Senior Subordinated
Notes Indenture are no longer effective.
(b) The Borrowers agree that they shall not incur or suffer to
exist at any time any Debt (as defined in the 8-3/4% Senior
Subordinated Notes Indenture) pursuant to clause (a) of the first
paragraph of Section 1008 of the 8-3/4% Senior Subordinated Notes
Indenture, except that up to $575,000,000 of outstanding Debt incurred
from time to time pursuant to the 5-Year Credit Agreement may be
justified as having been incurred pursuant to said clause (a). For
purposes of determining compliance with the 8-3/4% Senior Subordinated
Notes Indenture for all incurrences of Loans under this Agreement, the
Borrowers agree that they shall not incur any Loans under this
Agreement unless, in connection with such incurrence, the
-27-
Borrowers establish to the satisfaction of the Administrative Agent
(including by the delivery of a satisfactory legal opinion and
certificate of the Company's Chief Financial Officer, Treasurer or
Controller) that the incurrence of such Loans would be permitted
pursuant to the terms of the 8-3/4% Senior Subordinated Notes
Indenture. The Borrowers represent and warrant that all Indebtedness
incurred under this Agreement shall be permitted to be incurred and
remain outstanding pursuant to the 8-3/4% Senior Subordinated Notes
Indenture, and the Borrowers hereby also covenant and agree that they
shall not take any action with respect to the incurrence of any
Indebtedness (including under this Agreement) which is inconsistent
with this Section 12.18(b). This clause (b) shall cease to be of
further force or effect at such time as all 8-3/4% Senior Subordinated
Notes have been repaid in full and the provisions of Section 1008 of
the 8-3/4% Senior Subordinated Notes Indenture are no longer
effective."
29. Notwithstanding anything to the contrary contained in
Section 2.08 of each of the Mortgages, the Banks hereby agree that the relevant
Credit Party may from time to time make Material Alterations to any Mortgaged
Property without providing notice to, or obtaining the prior consent of, the
Collateral Agent or the Banks so long as such Material Alterations are otherwise
effected in accordance with the terms of each such Section 2.08.
30. On and after the Second Amendment Effective Date (as
defined below), Parent, the Borrowers, the other Credit Parties and the Banks
hereby approve up to a $350,000,000 increase in the Total Revolving Loan
Commitment under the 5-Year Credit Agreement, provided that (i) the Total
Revolving Loan Commitment under the 5-Year Credit Agreement shall only be
increased to the extent that Parent, the Company and the Administrative Agent
shall have accepted a letter from one or more Banks indicating that such Bank or
Banks have agreed to increase its Revolving Loan Commitment under the 5-Year
Credit Agreement up to the amount set forth in each such letter, (ii) no Bank's
Revolving Loan Commitment under the 5-Year Credit Agreement may be increased
without the consent of such Bank, (iii) all increases in the Total Revolving
Loan Commitment under the 5-Year Credit Agreement as contemplated by this
Section 30 (x) shall be accomplished in coordination with the Administrative
Agent and (y) shall be effective on the same date (such date, the "Increase
Effective Date"), which date may not be later than December 15, 1996,
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provided that the Increase Effective Date shall only occur if the Company
obtains all necessary approvals from the relevant Gaming Authorities (the
"Gaming Approvals") to approve any increase in the Total Revolving Loan
Commitment, (iv) the Administrative Agent shall have received evidence, in form
and substance satisfactory to it, that all Gaming Approvals have been obtained
and (v) at the time the Total Revolving Loan Commitment under the 5-Year Credit
Agreement is increased as contemplated by this Section 30, (x) the Company shall
pay to each Bank that has increased its Revolving Loan Commitment under the
5-Year Credit Agreement such fees as have been agreed upon among the Company,
the Administrative Agent and the Banks and (y) Schedule I to the 5-Year Credit
Agreement shall be deemed amended to reflect the increased Total Revolving Loan
Commitment and the changed Revolving Loan Commitments of the Banks under the
5-Year Credit Agreement. In connection with the increase in the Total Revolving
Loan Commitment under the 5-Year Credit Agreement as contemplated by this
Section 30, on the Increase Effective Date the Borrowers shall (to the extent
necessary), in coordination with the Administrative Agent and the Banks, repay
outstanding Revolving Loans under the 5-Year Credit Agreement of certain Banks
and incur additional Revolving Loans under the 5-Year Credit Agreement from
other Banks, in each case so that the Banks participate in each Borrowing of
outstanding Revolving Loans under the 5-Year Credit Agreement pro rata on the
basis of their Revolving Loan Commitments under the 5-Year Credit Agreement
(after giving effect to the Increase Effective Date). It is hereby agreed that
any breakage or similar costs of the type described in Section 1.11 of the
5-Year Credit Agreement incurred by the Banks in connection with any repayment
or borrowing of Revolving Loans under the 5-Year Credit Agreement as
contemplated above shall be for the account of the Borrowers. Promptly after the
Increase Effective Date, the Borrowers shall execute and deliver to each Bank
that has increased its Revolving Loan Commitment under the 5-Year Credit
Agreement as contemplated by this Section 30 a new Revolving Note appropriately
modified.
31. Each Credit Party hereby agrees that, on or after the
Increase Effective Date and upon the request of the Collateral Agent, such
Credit Party will execute such amendments to the Mortgages as the Collateral
Agent shall reasonably require in connection with the transactions contemplated
by Section 30 of this Amendment.
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32. 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 Second 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 Second Amendment Effective Date, both before
and after giving effect to this Second Amendment, with the same effect as though
such representations and warranties had been made on and as of the Second
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).
33. 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.
34. 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.
35. 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.
36. This Amendment shall become effective on the date
(the "Second Amendment Effective Date") when:
(i) Parent, the Borrowers, each other Credit Party, BTCo in
its individual capacity, 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;
(ii) each Borrower shall have executed and delivered to BTCo
a new Swingline Note reflecting the increased Maximum Swingline Amount;
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(iii) the Administrative Agent shall have received from legal
counsel to Parent, the Borrowers and the other Credit Parties, one or
more opinions addressed to the Administrative Agent and each of the
Banks and dated the Second Amendment Effective Date, each of which
shall be in form and substance satisfactory to the Administrative Agent
and shall cover such of the matters incident to the transactions
contemplated by this Amendment as the Administrative Agent may
reasonably request;
(iv) the Administrative Agent shall have received resolutions
of the Board of Directors (or the equivalent thereof in the case of a
partnership) of each Credit Party, which resolutions shall be certified
by the Secretary or any Assistant Secretary of such Credit Party and
shall authorize the execution, delivery and performance by such Credit
Party of this Amendment and the consummation of the transactions
contemplated hereby, and the foregoing shall be acceptable to the
Administrative Agent in its reasonable discretion; and
(v) the Company shall have paid to the Administrative Agent
for the distribution to each Bank which has signed a counterpart of
this Amendment on or prior to October 24, 1996, an amendment fee equal
to 1/20 of 1% of such Bank's Revolving Loan Commitment (before giving
effect to any increase thereof pursuant to Section 30 of this
Amendment).
37. From and after the Second Amendment Effective Dates, 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/ C. A. Xxxxxxxxx, Jr.
-------------------------
Title: Senior Vice President
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XXXXXX'X OPERATING COMPANY, INC.
By /s/ C. A. Xxxxxxxxx, Jr.
-------------------------
Title: Senior Vice President
MARINA ASSOCIATES
By: XXXXXX'X ATLANTIC CITY, INC.,
a general partner
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
XXXXXX'X XXXX HOLDING COMPANY, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
XXXXXX'X LAS VEGAS, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
XXXXXX'X XXXXXXXX, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Treasurer
-00-
XXXXXX'X XXXXXXXX CITY, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
XXXXXX'X NEW JERSEY, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
BANKERS TRUST COMPANY,
Individually, as
Administrative Agent,
as Collateral Agent
and as an Agent
By /s/ Xxxx Xxx Xxxxx
-------------------------
Title: Managing Director
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 Xxxxxxx
-------------------------
Title: Director, CIBC Wood
Gundy Securities Corp.,
AS AGENT
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CREDIT LYONNAIS, ATLANTA AGENCY,
Individually and as an Agent
By /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Authorized Signature
XXXXX FARGO BANK, N.A.,
Individually and as Agent
By /s/ Xxxxxxx Xxxxxxxxxxxx
-------------------------
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
Individually and as an Agent
By /s/ Xxxxxx Xxxxxx
-------------------------
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/ Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
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THE SUMITOMO BANK, LIMITED,
ATLANTA AGENCY, Individually
and as an Agent
By /s/ Xxxxxx Xxxxxx
-------------------------
Title: General Manager
BANK OF AMERICA NATIONAL TRUST
AND SAVING ASSOCIATION
By /s/ Xxxxxxxx X. Xxx
-------------------------
Title: Vice President
BANK OF AMERICA NEVADA
By /s/ Xxxx Xxxxxxxxxx
-------------------------
Title: Vice President
THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY
By /s/ Xxx X. Xxxxxxxx
-------------------------
Title: Vice President &
Manager
THE BANK OF NOVA SCOTIA
By /s/ A. S. Xxxxxxxxxx
-------------------------
Title: Sr. Team Leader-Loan
Operations
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GIROCREDIT BANK A.G. DER
SPARKASSEN, GRAND CAYMAN
ISLAND BRANCH
By /s/ Xxxx Xxxxxxx
-------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxxx
-------------------------
Title: Vice President
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By /s/ Xxxxxx Xxxxxxxx
-------------------------
Title: Deputy General Manager
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By /s/ Xxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By /s/ Xxxxxxxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By /s/ Xxxxx X. Xxxxx, Xx.
-------------------------
Title: Vice President
-36-
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxx Xxxx
-------------------------
Title: General Manager
PNC BANK, NATIONAL ASSOCIATION
(Successor by merger to
Midlantic Bank, N.A.)
By /s/ Xxxx X. Xxxxxxxx
-------------------------
Title: Banking Officer
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By /s/Xxxxxx X. Xxxxx /s/Mitsuo Veyama
-----------------------------------
Title: Vice President Deputy General
Manager
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Xxxx Xxxxxxxx
-------------------------
Title: Assistant Vice President
DEPOSIT GUARANTY NATIONAL BANK
By /s/ Xxxxx X. Xxxxxxxx
-------------------------
Title: Senior Vice President
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THE MITSUBISHI TRUST & BANKING
CORP.
By /s/ Xxxxxxx Xxxxxx
-------------------------
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxxx
-------------------------
Title: Vice President
By /s/ Xxxxxx Xxx
-------------------------
Title: Associate
ABN AMRO BANK N.V., SAN XXXXXXXXX
XXXXXX
By: ABN AMRO NORTH AMERICA,
INC., AS AGENT
By /s/Xxxxxxx X. French
-------------------------
Title: Group Vice President
& Director
By /s/ Jan-Xxxx Xxxxxxxxxx
-------------------------
Title: Vice President & Director
SUNTRUST BANK, NASHVILLE, N.A.
By /s/ Xxxxx XxXxxxxx Drake
-------------------------
Title: Vice President
-38-
FIRST NATIONAL BANK OF COMMERCE
By /s/ Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
FLEET BANK, N.A.
By /s/ Xxxx X. Xxxxxxxx
-------------------------
Title: Vice President
-39-
