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EXHIBIT 4.13
THIRD WAIVER AND AGREEMENT TO CREDIT AGREEMENT
THIRD WAIVER AND AGREEMENT TO CREDIT AGREEMENT, dated as of February
29, 2000 (this "Waiver"), among JCC HOLDING COMPANY ("Holding"), 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.
W I T N E S S E T H
WHEREAS, Holdings, the Borrower, the Banks and the Agent are parties to
a Credit Agreement, dated as of October 29, 1998 (the "Credit Agreement");
WHEREAS, pursuant to the Minimum Payment Guaranty, HET and HOC have
agreed to guaranty certain amounts required to be paid by the Borrower pursuant
to the Casino Operating Contract, and
WHEREAS, Holdings and the Borrower have requested that the Xxxxx xxxxx
the waivers described herein, and the Banks have agreed, subject to the terms
and conditions set forth herein, to enter into this Waiver as herein provided;
NOW, THEREFORE, it is agreed
1. The Borrower shall obtain, on or before the Third Waiver Effective
Date (as defined below), a fully executed agreement from HET and HOC (and shall
have delivered a copy of same to the Agent) in the form attached hereto as
Exhibit A (the "Extension and Forbearance Agreement"), pursuant to which HET and
HOC shall agree (i) subject to the non-occurrence of certain "non-renewal
events" specified in the Extension and Forbearance Agreement, to the posting of
a new Minimum Payment Guaranty for the one year period beginning April 1, 2000
and ending Xxxxx 00, 0000, (xx) to forbear against collection (or the giving of
any notice in respect of payment, non-payment or collection), at any time prior
to March 31, 2001, of (x) the principal amount of all reimbursement obligations
owing by the Borrower under the Minimum Payment Guaranty Documents not exceeding
$40,000,000 in the aggregate at any time outstanding and (y) accrued and unpaid
interest with respect to principal amounts subject to the forbearance specified
in clause (ii)(x) above, and (iii) that the rate of interest accruing on the
outstanding principal amount of reimbursement obligations owing from the
Borrower to HET and/or HOC pursuant to the Minimum Payment Guaranty Documents
during such one year renewal period shall not, to the extent such principal
obligations do not exceed $40,000,000 in aggregate outstanding principal amount,
exceed the non-default rate of interest applicable to like obligations of the
Borrower under the Minimum Payment Guaranty Documents as in effect on the Third
Waiver Effective Date.
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2. The Banks hereby waive, solely for the period from and including the
date of this Waiver to and including the date on which any payment is due and
payable by the Borrower (or any of its assigns) to HET and/or HOC with respect
to obligations of the type described below in clauses (i) and (iii) of this
Section 2 (after giving effect to any extension of the forbearance period
granted to the Borrower by HET and HOC pursuant to the Extension and Forbearance
Agreement so long as such extension does not impose any material additional
conditions upon Holdings or any of its Subsidiaries), compliance by the Borrower
with the $5,000,000 aggregate limitation set forth in Section 9.04(xvi) of the
Credit Agreement; provided that such waiver is subject to compliance by the
Borrower with the following conditions: (i) indebtedness of the Borrower
representing the principal balance of reimbursement obligations under the
Minimum Payment Guaranty Documents (excluding contingent reimbursement
obligations for payments which have not been made thereunder) shall at no time
exceed $40,000,000, (ii) the principal balance of any such reimbursement
obligations of the Borrower shall in no event be paid (or required to be paid)
by the Borrower prior to Xxxxx 00, 0000, (xxx) interest on such reimbursement
obligations may accrue in accordance with clause (iv) below, although no such
interest shall be payable prior to repayment in full of the aggregate
outstanding principal balance of all such obligations and (iv) the rate of
interest charged with respect to such obligations, at all times prior to the
occurrence of a payment default with respect thereto occurring on or after March
31, 2001, shall not exceed the non-default rate of interest applicable to
obligations pursuant to the Minimum Payment Guaranty Documents as in effect on
the Third Waiver Effective Date. Any failure of the Borrower to comply with the
terms and conditions of the waiver set forth above in this Section 2 shall be
deemed to be a default pursuant to Section 9 of the Credit Agreement, including,
without limitation, for purposes of Section 10.03 of the Credit Agreement. In
addition, the Banks hereby consent to the execution and delivery by the Borrower
of the Limited Forbearance Agreement in the form attached hereto as Exhibit B
(the "Forbearance Agreement") and waive any Default or Event of Default which
may exist solely as a result of the forbearance on the part of HOC or Xxxxxx'x
New Orleans Management Company effected thereby or the decision of the Borrower
not to pay any amounts outstanding under the Equipment Lease (as defined in the
Forbearance Agreement), the Casino Management Agreement (as defined in the
Forbearance Agreement) and/or the Administrative Services Agreement (as defined
in the Forbearance Agreement) prior to the date upon which such amounts are due
and payable (after giving effect to the Forbearance Agreement).
3. In order to induce the Banks to enter into this Waiver and grant the
extension and 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 (i) represent and warrant that no Default or
Event of Default exists and is continuing on the Third Waiver Effective Date
after giving effect to this Waiver, (ii) 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 Third 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
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date) and (iii) represent and warrant that neither the execution and delivery or
performance of this Waiver requires any consent of any Person (except as have
been previously obtained) or will give rise to any default or event of default
with respect to any material agreement or contract of Holdings or any of its
Subsidiaries.
4. 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.
5. 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 Agent.
6. 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.
7. This Waiver shall become effective on the, first date (the "Third
Waiver Effective Date") on which (i) 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 Agent at its Notice Office and (ii) the Agent shall have received a
fully executed copy of the Extension and Forbearance Agreement in the form
attached hereto as Exhibit A.
8. At all times on and after the Third 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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IN WITNESS WHEREOF, each or 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/ Xxxxxxxxx X. Xxxxxxx
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Name:
Title:
JAZZ CASINO COMPANY, L.L.C.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name:
Title:
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By: /s/ Xxxx Xxx Xxxxx
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Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By:
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Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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Acknowledged and Consented to:
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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