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EXHIBIT 10.44
FIRST AMENDMENT TO AMENDED AND
RENEGOTIATED CASINO OPERATING CONTRACT
This amendment to the Amended and Renegotiated Casino Operating
Contract (the "First Amendment") is made and entered into effective as of the
19th day of October, 1999 among the State of Louisiana by and through the
Louisiana Gaming Control Board (the "Gaming Board") and Jazz Casino Company,
L.L.C., a Louisiana limited liability company ("JCC" or the "Casino Operator").
RECITALS
A. On October 30, 1998, the Gaming Board, JCC and Xxxxxx'x Jazz
Company, a Louisiana general partnership (which has since dissolved in
accordance with and as contemplated by the Joint Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code filed by Xxxxxx'x Jazz Company,
Xxxxxx'x Jazz Finance Corp. and Xxxxxx'x New Orleans Investment Company) entered
into the Amended and Renegotiated Casino Operating Contract (the "Amended COC").
Any capitalized terms utilized and not defined herein shall have the same
meaning as are ascribed to them in the Amended COC;
B. Effective as of July 9, 1999, the Louisiana Legislature during the
1999 Regular Session by Act No. 1221 enacted into law R.S. 27:271 which, among
other things, permits the Gaming Board, during a specified period of time, and
subject to an amendment to the Amended COC, to direct that all or portions of
the Daily Payments due under the Amended COC be paid by the Casino Operator to
the Parish of Orleans and the Compulsive and Problem Gaming Fund, with a
corresponding credit given to the Casino Operator for and toward satisfaction of
the Minimum Payment;
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C. The Gaming Board has requested and the Casino Operator has agreed to
amend the Amended COC to implement provisions of La. R.S. 27:271, authorizing
the Gaming Board to direct that portions of the Minimum Payment (and therefore
all or portions of certain Daily Payments) due under the Amended COC be paid by
the Casino Operator to the Parish of Orleans and the Compulsive and Problem
Gaming Fund (each such directed payment a "Directed Payment" and collectively
the "Directed Payments") from the date of this First Amendment through June 29,
2000, provided that, after June 29, 2000, the authorization related to such
Directed Payments shall be effective only in the event a future act(s) of the
legislature authorizes such Directed Payments to be made on or after June 30,
2000 ("Legislative Authorization"), and only for such period(s) of time
authorized by such Legislative Authorization.
D. The Casino Operator and the Gaming Board have determined that the
$3.5 million cost estimate derived in December of 1997, which estimate was used
in confecting the Bankruptcy Plan and post-Effective Date budgets submitted to
the Bankruptcy Court, is not sufficient to pay the costs associated with the
initial suitability and payment of attorney's fees and related costs incurred by
the State following the bankruptcy filing in November, 1995.
E. The parties have agreed that Section 6.1(b) of the Amended COC shall
be amended to require the Casino Operator to reimburse the Gaming Board a total
of $5.2 million, representing a fair estimate of the incurred and the projected
future costs for the initial suitability, litigation and associated fees and
expenses, and the initial administrative expenses of the State Police and
Attorney General's office. It is further acknowledged and agreed that of the
$5.2 million total "Initial Costs," $3.5 million has been paid and the
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remaining $1.7 million due from the Casino Operator is to be deducted from the
$4,812,447.00 credit due, from the Gaming Board to the Casino Operator as
provided in Section 6.3(a) of the Amended COC (prior to this First Amendment).
NOW, THEREFORE, in consideration of the foregoing the parties do hereby
agree as follows:
PARAGRAPH I.1 - AMENDMENTS
(a) Section 2.111 of the Amended COC is modified by
deleting same in its entirety and substituting the following in its
place and stead:
2.111 "LOUISIANA CASINO REVENUE ACCOUNT" means an
account established in the State Treasury into which
the Casino Operator shall deposit or cause to be
deposited all required sums (including the Daily
Payment and other components of the Louisiana Gross
Gaming Revenue Share Payments and Additional Charges)
which may become due and payable to the State by and
through the Gaming Board pursuant to the Casino
Operating Contract (subject to any Daily payments
made by the Casino Operator to certain specific
accounts at the direction of the Gaming Board
pursuant to Section 6.5[b]).
(b) Section 6.1(b) of the Amended COC is amended by
deleting same in its entirety and substituting the following in its
place and stead:
6.1(b) SUITABILITY AND OTHER ADVANCES. As
consideration for the actual and projected personnel
costs incurred by the Gaming Board, State Police and
Attorney General personnel related to initial
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suitability investigations and costs of opening the
Casino as well as the costs of litigation and
contract counsel from 1995 to the Casino Opening Date
(collectively the "Initial Costs"), it is
acknowledged and agreed that the Casino Operator has
paid to the Gaming Board Three Million, Five Hundred
Thousand and No/100 Dollars ($3,500,000.00). The
Initial Costs have been computed at a total of Five
Million, Four Hundred Ninety-Three Thousand, Six
Hundred Ten and No/100 Dollars ($5,493,610.00). In
addition to the Three Million, Five Hundred Thousand
and No/ 100 Dollars ($3,500,000.00) previously paid
by the Casino Operator as set forth above and
suitability fees of Two Hundred Ninety-Three
Thousand, Six Hundred Ten and No/100 Dollars
($293,610. 00) that have been and/or, are anticipated
to be received by the Gaming Board through the Casino
Opening Date, the parties agree that the Casino
Operator owes a final balance of One Million, Seven
Hundred Thousand and No/100 Dollars ($1,700,000.00)
in Initial Costs to be paid as set forth below. The
Casino Operator agrees that the Four Million, Eight
Hundred Twelve Thousand, Four Hundred Forty-Seven and
No/100 Dollars ($4,812,447.00) credit in Section
6.3(b) of the Casino Operating Contract owed by the
Gaming Board to the Casino Operator, shall be reduced
by One Million, Seven Hundred Thousand and No/100
Dollars ($1,700,000.00) such that the total net
credit under Section 6.3(b) of the Casino Operating
Contract shall be
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Three Million, One Hundred Twelve Thousand, Four
Hundred Seventy-Seven and No/100 Dollars
($3,112,477.00), which amount shall be the "Payment
Credit."
(c) Section 6.3(a) of the Amended COC is amended by deleting the
existing third to last sentence of Section 6.3(a), by adding language to the
existing second to last sentence of Section 6.3(a) and by adding anew sentence
immediately prior to the existing last sentence of Section 6.3(a), such that
Section 6.3(a) of the Amended COC is amended by deleting the same in its
entirety and substituting the following in its place and stead:
6.3(a). The parties intend that at all times during each
Fiscal Year, the Gaming Board shall be paid an amount not less
than the Daily Payment times the number of Days that have
elapsed to date in the Fiscal Year (the "Required Payments"),
with a true-up for any Louisiana Gross Gaming Revenue Share
Payments in excess of the Minimum Payment to occur at the end
of each Fiscal Year; provided however, the Required
Payments/Daily Payments shall be suspended if there is an
Excusable Temporary Cessation of Business pursuant to Section
2.58(b) hereof (in no event to exceed six [6] months) or a
business interruption insurance claim period pursuant to
Section 15.3 - "Utilization of Insurance Proceeds." The amount
of the Daily Payment in a non-leap Fiscal Year shall be the
sum of Two Hundred Seventy-Three Thousand, Nine Hundred
Seventy-Two and 60/100 Dollars ($273,972.60). The amount of
the Daily Payment in a Fiscal Leap Year shall be the sum of
Two Hundred Seventy-Three Thousand, Two Hundred Twenty-Four
and 04/100 Dollars ($273,224.04). The Daily
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Payment shall be paid each Business Day on the terms provided
in Section 6.5 - "Daily Deposits." The Daily Payment for each
non-Business Day shall be carried forward without interest and
paid on the next Business Day. The Casino Operator shall be
entitled to setoff against any Daily Payment to be paid
directly into the Louisiana Casino Revenue Account, the amount
of any Directed Payment actually paid to the Parish of Orleans
and/or to the Compulsive and Problem Gaming Fund pursuant to
Section 6.5(b) of the Casino Operating Contract. During the
second Full Fiscal Year, the Casino Operator shall be entitled
to setoff against each Daily Payment (due during the second
Full Fiscal Year), a per them amount equal to Four Million,
Eight Hundred Twelve Thousand, Four Hundred Forty-Seven and
No/100 Dollars ($4,812,447.00) less the sum of One Million,
Seven Hundred Thousand and No/100 Dollars ($1,700,000.00), or
a net amount of Three Million, One Hundred Twelve Thousand,
Four Hundred Seventy-Seven and No/100 Dollars ($3,112,477.00),
divided by the number of days in such second Full Fiscal Year,
as a credit for the overpayment of funds previously paid by
the Casino Operator to the LEDGC. It is further agreed that
this Payment Credit of Three Million, One Hundred Twelve
Thousand, Four Hundred Seventy-Seven and No/100 Dollars
($3,112,477.00) may be recovered by the Casino Operator only
by virtue of a per diem setoff against Daily Payments during
the second Full Fiscal Year as provided hereinabove in this
Section 6.3(a), and the Casino Operator hereby waives and
renounces any right to assert a claim for recovery of the
Three Million,
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One Hundred Twelve Thousand, Four Hundred Seventy-Seven and
No/100 Dollars ($3,112,477. 00) Payment Credit except as a per
diem setoff as provided hereinabove in this Section 6.3(a).
Except as provided hereinabove in this Section 6.3(a) - Amount
and Payment of Daily Payment, there shall be no abatement in,
any right of offset, setoff or recoupment of, or any right to
withhold or fail to pay the Daily Payment as required in
Section 6.5 - Daily Deposits.
(d) Section 6.5 of the Amended COC is amended by deleting same in
its entirety and substituting the following in its place and stead:
6.5 DAILY DEPOSITS.
(a) Subject to Section 6.5(b), the State's Daily
Payment for each Casino Gaming Day shall be deposited by wire
or electronically directly into the Louisiana Casino Revenue
Account, or such other account designated by the State by and
through the Gaming Board, by 5:00 p.m. Central Standard Time
(or Central Daylight Savings Time when in effect in Louisiana)
of the next Business Day following the close of that Casino
Gaming Day (unless the Gaming Board directs a different
method). For example, the State's Daily Payment for the Casino
Gaming Day ending 6:00 a.m. on Thursday, June 11, 1998 shall
be deposited in the Louisiana Casino Revenue Account by
5:00p.m. on Friday, June 12, 1998.
(b) In connection with the obligations of the Gaming
Board to annually enter into a casino support services
contract with the Parish of Orleans as mandated by La. R.S.
27:247 and to deposit certain monies into
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the Compulsive and Problem Gaming Fund as mandated by La. R.S.
27:270(A)(2), subject to Legislative authorization, the Gaming
Board may direct the Casino Operator to pay all or any portion
of the Daily Payment to the Parish of Orleans and/or the
Compulsive and Problem Gaming Fund on behalf of the Gaming
Board. Nothing in this Section 6.5 shall be deemed to alter
the payment obligations of the Casino Operator or any other
provisions of the Casino Operating Contract and any such
payment directed by the Gaming Board and actually made by the
Casino Operator (at the direction of the Gaming Board) as
provided in this Section 6.5(b) shall, up to the amount paid,
be in satisfaction of and be deemed to be a full or partial
Daily Payment (up to the amount actually paid) for purposes of
the Casino Operating Contract (and no such set-off against any
Daily Payment shall be given to the Casino Operator unless,
and only in the amount and to the extent, a Directed Payment
is actually paid), and the Casino Operator shall be given
credit for any such Directed Payments actually made towards
the satisfaction of the Minimum Payment and the Louisiana
Gross Gaming Revenue Share Payment. Any references herein to
the payment to, or receipt by, the Gaming Board of the
Louisiana Gross Gaming Revenue Share Payment, the Minimum
Payment or the Daily Payment shall be deemed satisfied to the
extent of the Casino Operator's payment of such amounts
pursuant to this Section 6.5(b). No Directed Payment shall be
made pursuant to this Section 6.5(b) to the Parish of Orleans
or the Compulsive and Problem Gaming Fund, except in
accordance with (and only to the extent of
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and in the amounts set forth in) a written notice to the
Casino Operator from the Gaming Board signed by the Chairman
or Vice Chairman of the Gaming Board, directing the Casino
Operator to make certain payments directly to the Parish of
Orleans and/or the Compulsive and Problem Gaming Fund, as
applicable. The Casino Operator shall send a written, dated
notice to the Gaming Board by telephonic facsimile ("fax")
each day that it makes any of the Directed Payments,
confirming that it has on the date of such fax made the
payment to the Parish of Orleans and/or the Compulsive and
Problem Gaming Fund as applicable and set forth the amount
thereof.
(c) Except as to the Directed Payments (actually paid)
nothing in this Section 6.5 shall be deemed to alter or change
the legal obligation of the Gaming Board to reimburse the
Parish of Orleans on an annual basis for casino support
services including, but not limited to, fire, police,
sanitation, health, transportation and traffic services or to
pay monies to the Compulsive and Problem Gaming Fund. Other
than the payment obligations for Directed Payments set forth
in this Section 6.5, the Casino Operator shall have no
obligation to the Gaming Board or the State to reimburse the
Parish of Orleans on an annual basis for casino support
services or to pay monies to the Compulsive and Problem Gaming
Fund.
(d) Nothing in this Section 6.5 shall be deemed to
alter or change the legal obligations of the Minimum Payment
Guarantors under the Minimum Payment Guaranty or alter HET's
and Xxxxxx'x Operating obligations under the Completion
Guarantee issued to the Gaming Board or with respect to
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similar guarantees issued to (i) the City and Rivergate
Development, (ii) Bankers Trust Company, as administrative
agent, for the benefit of JCC's lenders under its credit
agreement entered into in connection with the Plan and as part
of the Initial Plan Financing, and (iii) Norwest Bank
Minnesota, N.A., as trustee under the indentures governing the
new notes and new contingent notes issued in connection with
the Plan and as part of the initial Plan Financing
(collectively, together with the Completion Guarantee, the
"Casino Completion Guarantees").
(e) Section 28.15 of the Amended COC is amended by
deleting same in its entirety and substituting the following
in its place and stead:
28.15 NO THIRD PARTY BENEFICIARY. Except as otherwise provided
in Article XXIII - "Leasehold Mortgages" or Section 25.4(d) -
"Reliance," there shall be no third party beneficiaries of
this Casino Operating Contract. No recipient of any payments
made by the Casino Operator at the direction of the Gaming
Board pursuant to Section 6.5(b) of this Casino Operating
Contract shall be a third party beneficiary of the Casino
Operating Contract, the Casino Completion Guarantees, the
Minimum Payment Guaranty or any other guaranty or surety of
payment provided to the Gaming Board or any third party.
PARAGRAPH I.2 - AFFIRMATION. Except as modified herein, the Amended
COC shall remain in fall force and effect.
PARAGRAPH II - REPRESENTATIONS
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PARAGRAPH II.1 - GAMING BOARD WARRANTIES; DUE AUTHORIZATION. The Gaming
Board warrants to the Casino Operator that it is a duly established State
regulatory agency under Louisiana law and pursuant to the Gaming Act is
authorized to execute and deliver this First Amendment on its own behalf and on
behalf of the State.
PARAGRAPH II.2 - CASINO OPERATOR WARRANTIES. The Casino Operator
warrants and represents that JCC is duly organized and in good standing under
Louisiana law and has the full right, power and authority to enter into this
First Amendment.
PARAGRAPH III - GENERAL PROVISIONS
PARAGRAPH III.1 - ENTIRE AGREEMENT. The Amended COC, as modified by
this First Amendment, constitutes the entire agreement of the parties with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, whether written or oral.
PARAGRAPH III.2 - EFFECTIVE DATE. This First Amendment and the
amendments provided for herein shall take effect as of the effective date set
forth above, and as provided in paragraph C of the Recitals, which are made a
part to this First Amendment; provided, however, the authorization related to
Directed Payments shall continue to be effective after June 29, 2000, only in
the event a future act(s) of the legislature authorizes such Directed Payments
to be made on or after June 30, 2000 ("Legislative Authorization"), and only for
such period(s) of time authorized by such Legislative Authorization.
PARAGRAPH III.3 - UNENFORCEABILITY. Any provision of this First
Amendment Which is prohibited or unenforceable shall be deemed severed from the
Amended COC without invalidating the remaining provisions or affecting the
validity or enforceability of
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the remainder of the Amended COC, provided, however, that any Daily Payment
(being a Directed Payment) made by the Casino Operator to the Parish of Orleans
or the Compulsive and Problem Gaming fund at the written direction of the Gaming
Board in accordance with Section 6.5(b) of the Casino Operating Contract (as
amended by this First Amendment), shall be deemed paid by the Casino Operator in
satisfaction of the Minimum Payment and Louisiana, Gross Gaming Revenue Share
Payments for the Fiscal Year when it is paid notwithstanding any determination
that La. R.S. 27:271 is unconstitutional or unenforceable.
PARAGRAPH III.4 - COUNTERPART EXECUTION. This First Amendment may be
signed in any number of counterparts with the same effect as if the signatures
thereto were upon the same instrument.
PARAGRAPH III.5 - THIRD PARTIES. None of the obligations hereunder of
either the Casino Operator or the Gaming Board shall inure to or be enforceable
by any person or entity other than the Casino Operator and the Gaming Board.
PARAGRAPH III.6 - BINDING EFFECT. This First Amendment shall be binding
upon, and shall inure to the benefit of the parties and their respective
successors in interest and the permitted assigns of the parties hereto, if any.
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IN WITNESS WHEREOF the parties hereto have executed this First
Amendment, all effective as of the day and year first above written.
THE STATE OF LOUISIANA, by and through the
LOUISIANA GAMING CONTROL BOARD
By:
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Duly authorized
Date:
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JAZZ CASINO COMPANY, L.L.C.,
A Louisiana Limited Liability Company
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Duly authorized
Date: 10/29/99
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INTERVENTION IN AND CONSENT TO FIRST AMENDMENT
Xxxxxx'x Entertainment, Inc. and Xxxxxx'x Operating Company, Inc. (each
an "Intervenor"), as Minimum Payment Guarantors and as Completion Guarantors, do
each hereby individually and in solido agree and consent to the above First
Amendment to Amended and Renegotiated Casino Operating Contract ("First
Amendment"), and the terms and provisions thereof, and each Intervenor does
further acknowledge and agree that neither the First Amendment, nor any of the
terms and provisions thereof, shall diminish and/or otherwise affect, any of
their respective obligations to the Gaming Board or the State under the LGCB
Completion Guarantee, the Initial Unconditional Minimum Payment Guaranty
Agreement or any document or instrument, if any, related thereto.
IN WITNESS WHEREOF the Intervenors have executed this Intervention and
Consent, all effective as of the effective date of the above First Amendment.
INTERVENOR(S)
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Duly Authorized Senior Vice President
Date: 11/4/99
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XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Duly Authorized Senior Vice President
Date:11/4/99
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