Exhibit 10.2
AMENDMENT NO. 2 TO FIVE YEAR LOAN AGREEMENT
This AMENDMENT NO. 2 TO FIVE YEAR LOAN AGREEMENT (this "Amendment")
dated as of April 26, 2001 is executed with reference to the Five Year Loan
Agreement (as amended from time to time, the "Loan Agreement") dated as of April
30, 1999, among Xxxxxx'x Operating Company, Inc., a Delaware corporation
("Company"), Marina Associates, a New Jersey general partnership ("Marina" and
together with the Company and such other Subsidiaries that become Borrowers
pursuant to Section 2.10 thereof "Borrowers"), as Borrowers, Xxxxxx'x
Entertainment, Inc., a Delaware corporation (the "Parent"), as Guarantor, Bank
of America N.A. (formerly Bank of America National Trust and Savings
Association) and each lender from time to time a party thereto (collectively,
the "Lenders" and individually, a "Lender"), Bankers Trust Company, as
Syndication Agent, Canadian Imperial Bank of Commerce and Societe Generale, as
Documentation Agents, Commerzbank AG, PNC Bank, National Association and Xxxxx
Fargo Bank, N.A., as Co-Documentation Agents, and Bank of America National Trust
and Savings Association (now known as Bank of America, N.A.), as Administrative
Agent. Terms defined in the Loan Agreement are used herein with the same
meanings.
The Borrowers, Guarantor and the Administrative Agent, acting on
behalf of the Lenders under the Loan Agreement hereby agree as follows:
1. RELEASE OF CO-BORROWER. Red River Entertainment of Shreveport
Partnership in Commendam, a Louisiana limited partnership ("Red River") which is
a Subsidiary of Parent, has heretofore been designated as a co-Borrower pursuant
to Section 2.10 of the Loan Agreement. Each of the Parent and the Borrowers
hereby represent and warrant that, as of the effective date of this Amendment,
no obligations are owed by Red River to the Lenders under its Aggregate
Sublimit.
Each of the Company, the Borrowers and the Lenders agree that upon
the effectiveness of this Amendment, Red River shall cease to be a Borrower for
all purposes of the Loan Agreement and the Loan Documents. Each Borrower and
Guarantor consent to the foregoing release and termination and agree that
nothing in this Section 1 shall waive, alter, diminish or modify any Obligations
of any Borrower (other than Red River to the extent set forth above) or
Guarantor, which Obligations are hereby reaffirmed.
2. SECTION 1.1 - NEW DEFINED TERMS. Section 1.1 of the Loan
Agreement is hereby amended by adding the following defined terms in the
appropriate alphabetical order:
"MANAGEMENT COMPANY" means any Subsidiary of Parent which has
no substantial assets other than contractual rights to receive fees
under management agreements, development agreements or similar
instruments.
"INTERCOMPANY DEBT" means any Indebtedness owed by a
Subsidiary of any Borrower to a Borrower.
"JOINT VENTURE HOLDING COMPANY" means any Subsidiary of Parent
which has no substantial assets other than equity securities,
securities convertible into equity securities and warrants, options
or similar rights to purchase such equity securities or convertible
securities (and any dividends, cash, instruments or other property
received
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in respect of or in exchange for any of the foregoing), in
each case issued by Persons which are not Subsidiaries of Parent.
3. CORRECTION TO SECTION 4.16. Section 4.16 of the Loan Agreement is
hereby amended to correct the reference to "Environmental Laws" by replacing it
with a reference to "Hazardous Materials Laws."
4. SECTION 6.4 - LIENS, ETC.. Section 6.4(g) of the Loan Agreement
is hereby amended and restated in its entirety as follows:
"(g) Liens, Negative Pledges and Rights of Others held by
joint venture partners and any assignees thereof, and lenders
thereto and any assignees thereof, with respect to the interests of
Parent and its Subsidiaries in (i) that joint venture and the
proceeds thereof or (ii) the capital stock or other equity ownership
interests held by any Joint Venture Holding Company in that joint
venture and the proceeds thereof, PROVIDED, in each case, that such
Liens, Negative Pledges and Rights of Others shall secure and relate
only the obligations of such joint venture or Contingent Obligations
permitted by Section 6.7(g);"
5. SECTION 6.7 - SUBSIDIARY INDEBTEDNESS. Section 6.7 of the Loan
Agreement is hereby amended by so that clause (f) thereof reads in full as
follows and to add new clauses (g) and (h):
"(f) Intercompany Debt, PROVIDED such Indebtedness is not
subject to any Lien (other than Liens in favor of the Administrative
Agent and the Lenders);
(g) Contingent Obligations of Management Companies consisting
of guarantees of Indebtedness of Persons which are the
counterparties to any management agreement, development agreement or
other similar instruments to which such Management Companies are
also party, PROVIDED that (i) the assets of each Management Company
issuing any such guarantees shall not exceed 1.0% of Net Tangible
Assets at any time, and (ii) the aggregate amount of assets of all
Subsidiaries issuing guarantees permitted by this Section 6.7(g)
shall not exceed 5% of Net Tangible Assets at any time; and
(h) Contingent Obligations of Joint Venture Holding Companies
consisting of guarantees of Indebtedness of Persons in which such
Joint Venture Holding Companies own equity securities, PROVIDED that
the other Persons owning such equity securities have also ratably
guaranteed such Indebtedness."
6. CONDITIONS PRECEDENT. As conditions precedent to the
effectiveness of this Amendment, the Administrative Agent shall have received
executed counterparts of this Amendment from each of the Borrowers and the
Guarantor and the consents hereto from the Requisite Lenders;
7. COUNTERPARTS. This Amendment may be executed in counterparts in
accordance with Section 11.7 of the Loan Agreement.
8. CONFIRMATION. In all other respects, the Loan Agreement is
confirmed.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above by their duly authorized representatives.
XXXXXX'X ENTERTAINMENT, INC., as Guarantor
By:
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Xxxxxxx X. Xxxxxx, Vice President and Treasurer
XXXXXX'X OPERATING COMPANY, INC., as a Borrower
By:
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Xxxxxxx X. Xxxxxx, Vice President and Treasurer
MARINA ASSOCIATES, as a Borrower
By: Xxxxxx'x New Jersey, Inc., general partner
By:_________________________________
Xxxxxxx X. Xxxxxx, authorized signatory
By: Xxxxxx'x Atlantic City, Inc., general partner
By:_________________________________
Xxxxxxx X. Xxxxxx, authorized signatory
By: RED RIVER ENTERTAINMENT OF SHREVEPORT
PARTNERSHIP IN COMMENDAM, a Louisiana
limited partnership
By: Xxxxxx'x Shreveport Investment
Company, general partner
By:___________________________
Its:___________________________
By: Xxxxxx'x Shreveport Management
Company, general partner
By:__________________________
Its:___________________________
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BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________
Xxxxxx Xxxxxxx, Vice President
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CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Five Year
Loan Agreement (as amended from time to time, the "Loan Agreement") dated as of
April 30, 1999, among Xxxxxx'x Operating Company, Inc., a Delaware corporation
("Company"), Marina Associates, a New Jersey general partnership ("Marina" and
together with the Company and such other Subsidiaries that become Borrowers
pursuant to Section 2.10 thereof, "Borrowers), as Borrowers, Xxxxxx'x
Entertainment, Inc., a Delaware corporation (the "Parent"), as Guarantor, Bank
of America, N.A. (formerly Bank of America National Trust and Savings
Association) and each lender from time to time a party thereto (collectively,
the "Lenders" and individually, a "Lender"), Bankers Trust Company, as
Syndication Agent, Canadian Imperial Bank of Commerce and Societe Generale, as
Documentation Agents, Commerzbank AG, PNC Bank, National Association and Xxxxx
Fargo Bank, N.A., as Co-Documentation Agents, and Bank of America, N.A., as
Administrative Agent. Capitalized terms used but not defined herein are used
with the meanings set forth for those terms in the Loan Agreement.
The undersigned Lender is a party to the Five Year Loan Agreement
and hereby consents to the execution, delivery and performance of the proposed
Amendment No. 2 by the Administrative Agent on behalf of the Lenders to each
such Loan Agreement to which it is a party, substantially in the forms presented
to the undersigned as drafts.
________________________________
[Typed/Printed Name of Bank]
By: ____________________________
________________________________
[Typed/Printed Name and Title]
Dated: ____________________, 2001
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