Exhibit 10.26
HET/JCC AGREEMENT
THIS HET/JCC AGREEMENT (the "Agreement") is made and entered into this
30th day of October, 1998, by and among JAZZ CASINO COMPANY, L.L.C., ("JCC"),
XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation ("HET") and XXXXXX'X
OPERATING COMPANY, INC., a Delaware corporation ("HOCI").
RECITALS
A. JCC and the State of Louisiana (the "State") by and through the
Louisiana Gaming Control Board have entered into that certain Casino Operating
Contract of even date herewith (the "Casino Operating Contract").
B. Pursuant to the Casino Operating Contract, JCC agrees to pay a
certain Minimum Payment (as defined in the Casino Operating Contract) to the
Louisiana Gaming Control Board (the "LGCB").
C. The State and the LGCB desire that JCC cause to be provided a
Minimum Payment Guaranty (as defined in the Casino Operating Contract) to the
LGCB for each year for the Term (as defined in the Casino Operating Contract) of
the Casino Operating Contract.
D. As a condition to the effectiveness of the Plan (as defined in the
Casino Operating Contract), HET and HOCI (the "Guarantors") have agreed for a
limited period of time to provide a Minimum Payment Guaranty to the LGCB on the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Minimum Payment Guaranty
(a) Obligation. For a period ending no later than March 31,
2004 and subject to earlier non-renewal as specified in Section 1(b) hereof or
early termination pursuant to Section 6(a) and (b) hereof, the Guarantors shall
provide a guaranty to the LGCB in the form attached hereto as Exhibit A and
incorporated herein by this reference for the first three hundred sixty five
(365) days including and after the Casino Opening
Date and in the form attached hereto as Exhibit B and incorporated herein by
this reference for the Fiscal Years beginning April 1, 1999, 2000, 2001, 2002,
and 2003 (collectively, the "Guaranty"). On the Plan Effective Date (as defined
in the Casino Operating Contract), the Guarantors shall provide to the LGCB a
Guaranty for the three hundred sixty-five (365) days including and after the
opening of the Casino (as defined in the Casino Operating Contract) to be
effective only upon the opening of the Casino.
(b) Non-Renewal. The Guaranty shall automatically expire and not
renew (subject to Section 1(d) hereof) and shall not be drawn upon for any of
the Fiscal Years beginning April 1, 2000, 2001, 2002, or 2003 if any of the
following events have occurred and shall be continuing or uncured as of the day
prior to the first day of any such Fiscal Year:
(i) there has been a JCC Bankruptcy Event (as hereinafter
defined) or a cessation of Casino operations;
(ii) there are any then past due and unpaid Guaranty Fees
(as hereinafter defined), other than fees deferred in
accordance with the terms of this Agreement;
(iii) there has been a Minimum Payment Default;
(iv) subject to Section 1(c) hereof, in the case of a
renewal of the Guaranty for the Fiscal Year beginning
April 1, 2000, the Casino (as defined in the Casino
Operating Contract) has failed to generate positive
EBITDA for the period of operations ending January
31, 2000; provided that there shall be no EBITDA test
for the period of operations ending January 31, 2000
if such period of operations commenced after August
1, 1999;
(v) subject to Section 1(d) hereof, in the case of a
renewal of the Guaranty for the Fiscal Years
beginning April 1, 2001, 2002, and 2003, the Casino
has failed to generate EBITDA as of the twelve (12)
month period ending November 30 of the prior calendar
year in an amount equal to Fifteen Million Dollars
($15,000,000) as of the twelve (12) month period
ending November 30, 2000, Twenty Million Dollars
($20,000,000) as of the twelve (12) month period
ending November 30, 2001, and Twenty Five Million
Dollars ($25,000,000) as of the twelve (12) month
period ending November 30, 2002;
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(vi) HET, Xxxxxx'x New Orleans Management Company
("HNOMC") or any of their respective affiliates is
found unsuitable to own, operate, act as a lender to,
or otherwise in respect of the Casino by the State;
(vii) HNOMC has been removed as manager of the Casino;
(viii) The Casino Operating Contract has been terminated;
(ix) JCC has breached any of its covenants under Section 5
hereof; or
(x) An Excusable Temporary Cessation of Operations has
occurred and is continuing.
(c) Renewal for Fiscal Year Beginning April 1, 2000 in the Event of an
Excusable Temporary Cessation of Operations. Notwithstanding the provisions of
Section 1(b)(iv) hereof, the Guaranty shall automatically renew if the Casino's
failure to generate positive EBITDA for the period of operations ending January
31, 2000 is solely the result of an Excusable Temporary Cessation of Operations
and but for the Excusable Temporary Cessation of Operations the EBITDA test of
Section 1(b)(iv) hereof would have been met for the period of operations ending
January 31, 2000. To determine whether the Casino would have generated positive
EBITDA in the absence of an Excusable Temporary Cessation of Operations for the
period of operations ending January 31, 2000, it shall be assumed that the
Casino would have generated EBITDA for each day of any period of time the Casino
was closed due to an Excusable Temporary Cessation of Operations in an amount
equal to the average daily EBITDA generated during the thirty (30) days prior to
such period of time the Casino was closed due to an Excusable Temporary
Cessation of Operations.
(d) Renewal for Fiscal Years Beginning April 1, 2001, 2002, and 2003 in
the Event of an Excusable Temporary Cessation of Operations. Notwithstanding the
provisions of Section 1(b)(v) hereof, for the Fiscal Years beginning April 1,
2001, 2002, or 2003 the Guaranty shall automatically renew if the Casino's
failure to generate EBITDA for the twelve (12) month period ending November 30
of the prior calendar year equal to Fifteen Million Dollars ($15,000,000) as of
the twelve (12) month period ending November 30, 2000, Twenty Million Dollars
($20,000,000) as of the twelve (12) month period ending November 30, 2001, and
Twenty Five Million Dollars ($25,000,000) as of the twelve (12) month period
ending November 30, 2002 is solely the result of an Excusable Temporary
Cessation of Operations; provided that (i) such Fifteen Million Dollars
($15,000,000), Twenty Million Dollars ($20,000,000) and Twenty Five Million
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Dollars ($25,000,000) EBITDA tests, respectively, shall be reduced pro rata for
any period of time the Casino was closed due to an Excusable Temporary Cessation
of Operations during the applicable twelve (12) month period and (ii) the
Guaranty shall automatically expire and not renew if any such reduced EBITDA
tests are not met. For example, if during the twelve (12) month period ending
November 30, 2000 the Casino was closed due to an Excusable Temporary Cessation
of Operations for four (4) months, the EBITDA test for such period would be
reduced from Fifteen Million Dollars ($15,000,000) to Ten Million Dollars
($10,000,000) calculated as follows:
$15 million X Months Casino was open during Fiscal Year (8)
---------------------------------------------
total number of months in Fiscal Year (12).
and in such example the Guaranty would expire and not renew unless the Casino
generated EBITDA of at least Ten Million Dollars ($10,000,000) for the
applicable twelve month period.
(e) Definitions.
(i) For purposes of Section A.4(b)(iv) and (v) hereof, "EBITDA"
shall mean operating income determined according to generally
accepted accounting principles plus depreciation and
amortization determined according to generally accepted
accounting principles, but in determining operating income any
extraordinary non-cash items such as the write down of assets
shall be excluded.
(ii) For purposes of Section A.4(b)(i) hereof, "JCC Bankruptcy
Event" shall mean the commencement of any case or proceeding
seeking liquidation, reorganization or other relief with
respect to JCC or its debt under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
similar official of JCC or the property of JCC, which, in the
case of an involuntary proceeding only, is not dismissed
within thirty (30) days after its commencement, or if JCC
shall consent to any such relief or to the appointment of or
taking possession by any such official in any involuntary case
or other proceeding commenced against it, or shall make a
general assignment for the benefit of its creditors, or shall
take any corporate action to authorize any of the foregoing or
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if JCC is unable to demonstrate its continuing
ability to pay in full amounts due in the ordinary
course of Casino Operations, including its Debt (as
defined in the Casino Operating Contract) and
obligations as they become due according to their
terms.
(d) Notices. The Guarantors shall give JCC ninety (90) days
notice of any non-renewal pursuant to Section 1(b)(ii) or (v) hereof; provided,
however, unless such notice is given to JCC pursuant to Section 1(b)(ii) or (v)
hereof prior to ninety (90) days before the start of the ensuing Fiscal Year,
the Guarantors shall have no right of non-renewal pursuant to Section 1(b)(ii)
or (v) hereof for such ensuing Fiscal Year. The Guarantors shall give JCC thirty
(30) days notice of any non-renewal pursuant to Section 1(b)(iv) hereof;
provided, however, unless such notice is given to JCC pursuant to Section
1(b)(iv) hereof prior to thirty (30) days before the start of the ensuing Fiscal
Year, the Guarantors shall have no right of non-renewal pursuant to Section
1(b)(iv) hereof for such ensuing Fiscal Year. No notice shall be required for
any non-renewal pursuant to Sections 1(b)(i), (iii), (vi), (vii), (viii), (ix)
and (x) hereof.
2. Fees
(a) Annual Fees. For the Fiscal Years beginning on April 1,
1999 and 2000, JCC shall pay a fee to the Guarantors of Six Million Dollars
($6,000,000) per annum. For the Fiscal Years beginning on April 1, 2001, 2002,
and 2003, JCC shall pay a fee to the Guarantors of Five Million Dollars
($5,000,000) per annum. The fees for any Full Fiscal Years shall be payable
quarterly in advance. The Guarantors shall receive a pro rata fee for any
partial Fiscal Year ending March 31, 1999 or for the Fiscal Year ending March
31, 2000 if it is a partial Fiscal Year (i.e. a Fiscal Year in which the Casino
opens after April 1). For any partial Fiscal Year, JCC shall pay any fees
attributable to any partial quarter of such partial Fiscal Year at the beginning
of such partial quarter and shall pay any fees attributable to any full quarter
of such partial Fiscal Year at the beginning of such full quarter.
(b) Deferral. The Guarantors agree to defer receipt of the
Guaranty Fees if and to the extent required by the Credit Agreement (as defined
in the Casino Operating Contract) or Indentures (as defined in the Casino
Operating Contract).
3. Demand Loan. Any amount drawn by the LGCB pursuant to the Guaranty
or advanced by the Guarantors pursuant to Section 4(c) hereof shall be a demand
obligation of JCC to the Guarantors and shall be due immediately upon the date
of payment by the Guarantors to the LGCB of such drawn funds or the date such
funds are advanced by the Guarantors pursuant to Section 4(c) hereof (a "Demand
Loan").
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Demand Loans shall bear interest at the same rate of interest as on the Tranche
A-3 Loan (as defined in the Plan). Such interest shall be due on the amount of
the outstanding Demand Loan from the date of any payment by the Guarantors
pursuant to the Guaranty to the LGCB or the date such funds are advanced by the
Guarantors pursuant to Section 4(c) hereof through the date of repayment or
satisfaction of the Demand Loan.
4. Collateral and Security Interest.
(a) Mortgage and Security Documents. To secure repayment of
any Demand Loan, Termination Fee (as hereinafter defined) and/or unpaid Guaranty
Fee to the Guarantors hereunder, JCC has concurrently herewith provided the
Guarantors with certain mortgage and security documents (collectively, the
"Mortgage and Security Documents").
(b) Expiration of Agreement. Upon (i) the expiration of this
Agreement pursuant to Section 6(c) hereof, (ii) any non-renewal pursuant to
Section 1(b) and 1(d) hereof, or (iii) early termination pursuant to Section 6
hereof, the Guarantors' rights under the Mortgage and Security Documents shall
terminate except with respect to any Demand Loan then outstanding, any
Termination Fee or Guaranty Fee then unpaid or other obligations to the
Guarantors under this Agreement. Upon the satisfaction in full of all Demand
Loans and all other fees and obligations to the Guarantors hereunder, the
Guarantors, upon request from JCC, agree to assign their rights under the
Mortgage and Security Documents to any substitute or successor provider of a
Minimum Payment Guaranty.
(c) Preservation Obligations of JCC
(i) JCC shall timely pay (A) all expenses and costs
required to comply with Section 9.20 - "Insurance
Coverages" of the Casino Operating Contract; (B)
all expenses and costs required to comply with
Section 9.25 - "Maintenance of Casino" of the
Casino Operating Contract; (C) all Impositions (as
defined in the Casino Operating Contract) required
to comply with Section 9.31 - "Payment of
Impositions" of the Casino Operating Contract; and
(D) all rent and other payments due under the
Casino Lease (as defined in the Casino Operating
Contract) required to comply with Section 9.5(b) -
"Performance and Payment of Operating Expense
Obligations" of the Casino Operating Contract
(collectively, the "Preservation Costs").
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(ii) If JCC fails to pay any of the Preservation Costs
within thirty (30) days of the due date thereof,
then after notice and five (5) days opportunity to
cure, the Guarantors may thereafter pay such
Preservation Costs and any amounts advanced shall
be a Demand Loan and additional obligations
secured by the Mortgage and Security Documents.
(iii) JCC shall continuously maintain business
interruption insurance in accordance with the
Casino Lease (as defined in the Casino Operating
Contract), the Casino Operating Contract, the
Casino Management Agreement (as defined in the
Casino Operating Contract), and any additional
requirements of the Guarantors as may be required
to assure that JCC maintains sufficient insurance
so that JCC is covered for any business
interruption that may result in a suspension of
Casino Operations (as defined in the Casino
Operating Contract). If JCC fails to obtain and
maintain such insurance, the Guarantors may upon
notice and five (5) days opportunity to cure,
obtain such insurance on behalf of JCC and the
cost of any such insurance incurred by the
Guarantors shall be a Demand Loan and an
additional Obligation secured by the Mortgage and
Security Documents.
5. Covenants of JCC. So long as a Guaranty hereunder remains in effect,
a Demand Loan remains outstanding, any Termination Fee or Guaranty Fee remains
unpaid or any other obligation of JCC to the Guarantors hereunder remains
unsatisfied, from and after the occurrence of any Extraordinary Flip Event (as
defined in the Certificate of Incorporation of JCC Holding Company), and until
such Extraordinary Flip Event has been cured or waived, JCC agrees:
(a) Restrictions on Debt and Liens. Except as permitted by the
Indentures for the New Bonds (as defined in the Plan), any debt, including,
without limitation, all obligations for borrowed money or obligations evidenced
by bonds, debentures, notes or similar instruments, or any lien or encumbrance
of any kind incurred, modified, renewed or replaced by JCC shall be permitted
only with the prior written consent of the Guarantors.
(b) Restricted Acts. JCC shall not without the prior written
consent of the Guarantors:
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(i) declare or make or become irrevocably committed to
make any redemption, acquisition or other manner
of return of the capital invested in JCC by a
shareholder;
(ii) consolidate, merge with or into any other entity;
(iii) dissolve JCC; or
(iv) sell, lease or otherwise transfer or dispose of,
directly or indirectly, all or any substantial
part of the property of JCC.
(c) Litigation. Without the prior written consent of the
Guarantors, JCC shall not institute any legal action against the LGCB or the
State affirmatively seeking an award of damages related to the Casino Operating
Contract or assert that JCC has continuous rights to operate the Casino after a
termination of the Casino Operating Contract as a result of JCC ceasing Gaming
Operations or failing timely to provide the LGCB a Minimum Payment Guaranty.
6. Termination of Guaranty
(a) JCC Right To Terminate Guaranty. Notwithstanding Section
1(a) hereof, JCC may elect to terminate this Agreement and the Guarantors'
obligation to provide a Guaranty prior to any of the Fiscal Years beginning
April 1, 2001, 2002, or 2003 by providing notice of its intent to terminate to
the Guarantors within ninety (90) days prior to the first day of such Fiscal
Year. In the case of the Fiscal Year beginning April 1, 2001, such termination
shall only be permitted upon the payment of a termination fee of One Million
Dollars ($1,000,000) (the "Termination Fee") concurrently with the notice of
termination. If JCC shall elect to terminate this Agreement ninety (90) days
prior to either the Fiscal Year beginning April 1, 2002 or the Fiscal Year
beginning April 1, 2003, no Termination Fee shall be due. JCC may not elect to
terminate this Agreement for the Fiscal Years beginning April 1, 1999 or April
1, 2000.
(b) Restriction on Termination. JCC is prohibited from
terminating this Agreement unless (i) JCC has obtained and provided to the LGCB
a replacement guaranty or letter of credit which meets the requirements of the
Casino Operating Contract for the Fiscal Year immediately following the last
Fiscal Year for which a Guaranty was provided by the Guarantors, (ii) the Casino
Operating Contract no longer requires JCC to provide a guaranty or letter of
credit, or (iii) the LGCB waives the requirement that JCC provide a guaranty or
letter of credit.
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(c) Expiration of Guaranty. If this Agreement has not previously
been terminated by JCC pursuant to Section 6(a) hereof, or has not previously
terminated as a result of a non-renewal pursuant to Section 1(b) hereof, this
Agreement shall terminate and the obligation of the Guarantors to provide a
Minimum Payment Guaranty shall expire on March 31, 2004.
7. Governing Law. This Agreement shall be governed and construed in
accordance with the internal substantive laws of the State of New York
regardless of the laws which might otherwise govern under New York's or other
applicable concepts of conflicts of law.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. Severability. If any one or more of the provisions contained in
this Agreement or in any other instrument referred to herein, shall for any
reason be held invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or such instrument.
10. Conflict. If there is any conflict or inconsistency between this
Agreement and the provisions of any exhibit attached hereto, the provisions of
this Agreement shall control.
11. Entire Agreement. This Agreement (including the exhibits attached
hereto), as written, contains all of the terms and conditions agreed among JCC
and the Guarantors relating to the matters covered by this Agreement, it being
agreed that all understandings and agreements heretofore and among such parties
or any of them relating to the matters covered by this Agreement are merged in
this Agreement which alone fully and completely expresses their agreement and
understanding.
12. Captions. The headings on the sections in this Agreement are for
convenience only and form no part of this Agreement and shall not affect
its interpretation.
13. Notices. All notices or other communications required or permitted
to be given or delivered pursuant to this Agreement shall be in writing and
shall be considered as properly given if mailed by Certified United States mail,
postage prepaid, with return receipt requested, overnight courier service or
facsimile transmission with receipt confirmed. Any party hereto may from time to
time, by notice in writing served upon the
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other parties hereto pursuant to this Section 13 designate a different address
or person to whose attention notices shall be given. Notices hereunder shall be
deemed given upon receipt. The addresses of the parties hereto for notices are:
JCC: Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
HET and HOCI: Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
14. Advice From Counsel. The parties hereto understand that this
Agreement may affect legal rights. The parties hereto represent that they have
received legal advice from counsel of their choice in connection with the
negotiation and execution of this Agreement and are satisfied with their legal
counsel and the advice received.
15. Access to Documents. Each party hereto acknowledges that it (i) has
been given the opportunity to review all information and documents with respect
to the subject matter of this Agreement; (ii) has made an independent
investigation in making its decision to enter into this Agreement; and (iii) is
not relying on any statements or representations by any other party hereto in
entering into this Agreement other than as expressly set forth in this
Agreement.
16. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and each of their respective successors and assigns and inure to
the benefit of the parties hereto and each of their respective successors and
assigns.
17. Amendments. Any amendment to this Agreement may only be made and
shall only be effective upon written approval of all parties hereto.
18. Further Document Modifications. The parties hereto agree to
negotiate in good faith such modifications to agreements as may be necessary or
appropriate to effect the purpose and intent of this Agreement.
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19. Waiver and Release
(a) No Assurances
(i) The Guarantors have entered into this Agreement as
a condition to the effectiveness of the Plan. As a
prerequisite to maintaining the effectiveness of
the Casino Operating Contract, the Casino
Operating Contract requires that JCC annually
provide to the LGCB a Minimum Payment Guaranty, as
that term is defined in the Casino Operating
Contract. In entering into this Agreement, the
Guarantors have no obligation to provide the
Minimum Payment Guaranty for the entire term of
the Casino Operating Contract, but rather have
agreed only to provide it for the period and on
terms and conditions specified herein. The
Guarantors have expressly informed JCC that they
have not agreed to renew the Agreement beyond
March 31, 2004, or in any prior year where the
Guarantors' obligation to furnish the Guaranty
does not renew by the express terms of Section
1(b) hereof. The Guarantors have informed JCC that
any decision they make concerning whether to renew
the Guaranty or this Agreement will be made in
their sole discretion, acting only in their best
interests. JCC hereby acknowledges that (A) the
Guarantors are not obligated to and have not given
any assurances to JCC that they will renew this
Agreement beyond March 31, 2004, or renew the
Guaranty for any earlier Fiscal Year in which the
Guarantors' obligation to furnish the Guaranty
does not renew under the express terms of Section
1(b) hereof, (B) the Guarantors have the right to
make any such renewal decision by considering only
their best interests, and (C) the Guarantors need
not consider the interests of any other parties in
making any such renewal decision, notwithstanding
that the Guarantors are involved in a number of
capacities in respect of JCC.
(ii) JCC hereby agrees that by entering into this
Agreement or providing a Guaranty or otherwise,
the Guarantors are not now, and in the past have
not, made any assurances or guarantees concerning
the financial results of the Casino, nor are or
have the Guarantors made any assurances or
guarantees that the Casino will be financially
successful or will perform as projected in the
projections and/or feasibility studies included in
the Plan and the Disclosure Statement distributed
in connection with the Plan confirmation process.
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(iii) JCC hereby agrees and acknowledges that any future
representation, warranty, assurance or other
guaranty by the Guarantors or any of their
subsidiaries or other affiliates to JCC concerning
the renewal of the Guaranty or this Agreement, the
operation of the Casino, the financial results of
the Casino, or any other matter concerning the
Casino or the Plan shall only be effective if set
forth in writing and properly executed by the
party to be charged.
(b) Releases
(i) JCC hereby releases and waives and agrees not to
bring any Claims against the Guarantors, whether a
known Claim or an Unknown Claim, that may arise in
any way, in whole or in part, out of (A) the
Guarantors' decision either to renew or not renew
the Guaranty or this Agreement, (B) the Guarantors
acting in their own best interests in connection
with the execution, renewal or failure to renew
the Guaranty or this Agreement, and/or (C) any
alleged assurance or guarantee by the Guarantors
concerning the operation of the Casino, the
financial results of the Casino or any other
matter concerning the Casino or the Plan, unless
such Claim is based on a writing (but in any event
cannot be based on this Agreement or the Guaranty)
properly executed by the party against whom such a
claim is being made.
(ii) JCC also hereby specifically waives any rights it
might have under Louisiana Civil Code Article 3083
and all other applicable or similar law to this
same or similar effect as the matters described in
Section 19(b)(i) hereof, including but not limited
to, any purported right to challenge the validity
or seek rescission of, or to vitiate, the releases
set forth above in Section 19(b)(i) hereof on the
ground that any information was kept concealed
from it and agrees that no remedy shall be
available for any such alleged non-disclosure, and
that the right to rescind the above release on any
such ground is hereby expressly waived.
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(c) Definitions. For the purposes of Sections 19(b)(i) and
(ii) hereof:
(i) "Claim" or "Claims" shall mean any action or
actions, cause or causes of action, in law or
equity, suits, debts, liens, liabilities, claims,
demands, damages, punitive damages, losses, costs
or expenses, and/or reasonable attorneys' fees of
any nature whatsoever.
(ii) "Guarantor" shall include HET, HOCI, Xxxxxx'x New
Orleans Investment Company, Xxxxxx'x Crescent City
Investment Company, Xxxxxx'x New Orleans
Management Company, their successors and assigns,
and all direct or indirect subsidiaries, and each
of their parents, subsidiaries, officers,
directors, corporate representatives, employees,
agents, lawyers and accountants and all persons
acting or claiming through, under or in concert
with any of them.
(iii) "Unknown Claim" or "Unknown Claims" means any and
all Claims, including without limitation, any
Claim which any of the parties hereto does not
know or even suspect to exist in his, her, or its
favor at the time of the giving of the releases
and waivers set forth in Section 19(b)(i) and (ii)
hereof which, if known by him, her or it might
have affected his, her or its decision regarding
the releases and waivers. Each of the parties
acknowledges that he, she or it might hereafter
discover facts in addition to or different from
those which he, she, or its now knows or believes
to be true with respect to the matters herein
released and waived, but each shall be deemed to
have fully, finally and forever released any and
all Claims.
20. No Third Party Beneficiaries. There are no third party
beneficiaries to this Agreement. JCC hereby acknowledges that the Guaranty
provides that there shall be no third party beneficiaries thereof. JCC also
agrees that it shall not claim or assert it is a third party beneficiary or
possesses any derivative claims under the Guaranty.
21. Disclosure. JCC hereby acknowledges that the Guarantors have
informed them (i) not to infer or assume that the Guarantors will renew the
Guaranty or this Agreement; (ii) that the Guarantors will consider only their
own best interests in determining whether to renew the Guaranty or this
Agreement; (iii) that the Guarantors are involved in a number of different
capacities in connection with the reorganization of Xxxxxx'x Jazz Company, the
governance of JCC and JCC Holding Company, and the operation of the Casino; and
(iv) that there can be no assurance that the Casino will
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perform as set forth in the projections and/or feasibility study set forth in
the Plan and Disclosure Statement circulated therewith.
22. Amendment of Obligations. The Guaranty hereunder is provided on the
express condition that JCC shall not amend or modify the Casino Operating
Contract in any way to increase the obligations under the Guaranty or adversely
affect the Guarantors without the prior written agreement of the Guarantors, and
any such amendment or modification shall have no force or effect in respect of
the Guarantors or the Guaranty.
23. Independent Agreement. This Agreement is independent of and shall
survive any cancellation or termination of the Casino Operating Contract.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
JAZZ CASINO COMPANY, L.L.C., a
Louisiana limited liability company
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: President
------------------------------
S-1
XXXXXX'X ENTERTAINMENT, INC., a
Delaware corporation
By: /s/ X.X. Xxxxxxxx XX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx, XX
-------------------------------
Title: V.P.
------------------------------
XXXXXX'X OPERATING COMPANY, INC., a
Delaware corporation
By: /s/ X.X. Xxxxxxxx XX
---------------------------------
Name: X.X. Xxxxxxxx XX
-------------------------------
Title: V.P.
------------------------------
S-2
Exhibits
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Form of Initial Unconditional Guaranty Agreement Exhibit A
Form of Unconditional Guaranty Agreement Exhibit B
for Fiscal Year Ending March 31, ____
E-1
Exhibit A
INITIAL UNCONDITIONAL
MINIMUM PAYMENT GUARANTY AGREEMENT
THIS INITIAL UNCONDITIONAL MINIMUM PAYMENT GUARANTY AGREEMENT (the
"Guaranty") is for the first 365 days (or 366 days if a Fiscal Leap Year is
involved) from and including the Casino Opening Date and is entered into as
of October 30, 1998, by XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation,
and XXXXXX'X OPERATING COMPANY, INC., a Delaware corporation (each a
"Guarantor" and collectively the "Guarantors") in favor of the STATE OF
LOUISIANA by and through the LOUISIANA GAMING CONTROL BOARD (the "LGCB").
RECITALS
A. That certain Casino Operating Contract (the "COC") between Jazz
Casino Company, L.L.C., a Louisiana limited liability company (the
"Company"), and the LGCB, dated as of October 30, 1998, sets forth the
conditions, covenants, obligations, requirements and terms pursuant to which
the Company has the authority to conduct gaming operations at the Casino.
B. As used in this Guaranty, all capitalized terms used herein but not
defined herein shall be used herein as defined in the COC.
C. The Company has caused this Guaranty to be provided to the LGCB for
the first 365 days (or 366 days if a Fiscal Leap Year is involved) from and
including the Casino Opening Date] (the "Covered Fiscal Year"), as required
by the COC, and also to provide for certain payments if there is a default by
the Guarantors of the Completion Obligations (as Completion Guarantors) under
the LGCB Completion Guaranty, attached as Exhibit "B" to the COC.
X. Xxxxxx'x Entertainment, Inc. and Xxxxxx'x Operating Company, Inc.
have separately provided a Completion Guaranty to the Louisiana Gaming
Control Board which guarantees, among other things, the construction,
equipping and opening of the Casino for business and the payment and
performance of certain other indebtedness and obligations, all on the terms
more particularly set forth in the LGCB Completion Guaranty, attached as
Exhibit B to the COC.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantors, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors hereby solidarily make the following
representations and warranties to the LGCB, and hereby solidarily covenant
and agree for the benefit of the LGCB as follows:
1. Obligations Guaranteed and Method of Drawing.
1.1 The Guarantors hereby irrevocably, unconditionally, and in solido
with each other and with the Company, guarantee for the Covered Fiscal Year:
(a) the full, complete and timely payment and performance of all of
the Minimum Payment obligations of the Company to the LGCB under and in
accordance with the provisions of the COC; and
(b) the full, complete and timely payment to the LGCB of all of the
Daily Payments, Required Payments and Minimum Payment in accordance with the
provisions of the COC.
1.2 If there is any delay in timely paying to the LGCB any and/or all of
the Daily Payments, Required Payments and/or Minimum Payment as and when
required under the COC for the Covered Fiscal Year, the Guarantors shall also
pay to the LGCB interest on such payments due at the Default Interest Rate
(as provided in Section 6.7 of the COC) from the date each payment was due,
until paid to the LGCB.
1.3 In no event shall the aggregate total of Daily Payments, Required
Payments and the Minimum Payment to the LGCB under this Guaranty for the
Covered Fiscal Year exceed ONE HUNDRED MILLION DOLLARS ($100,000,000.00),
plus, and in addition thereto, any interest and attorneys' fees applicable to
the Guaranty Obligation provided for in the COC or in this Guaranty.
1.4 If the LGCB has not been timely paid any one or more of the required
Daily Payments for the Covered Fiscal Year, then (a) the LGCB may make
drawings under this Guaranty by providing written notice to the Guarantors
that one or more of the required Daily Payments have not been timely paid and
the principal amount of such Daily Payments then due (the "Notice of
Drawing"), and (b) the Guarantors shall pay to the LGCB all required but
unpaid Daily Payments, plus interest at the Default Interest Rate, upon
receipt of the Notice of Drawing. Guarantors shall make payment by wire or
other electronic transfer as provided in the Notice of Drawing, on or before
the time the Daily Payments are due under Section 6.5 - "Daily Deposits" of
the COC.
1.5 The Guarantors shall not be obligated to make any Daily Payments due
for any day which is twenty (20) days or more prior to the LGCB giving the
Notice of Drawing; provided however, that any payments which are suspended
pursuant to Section 6.3(a) of the COC shall not be due and payable until the
period of the suspension has expired.
2
1.6 Once a Minimum Payment Default has occurred and a Notice of Drawing
has been provided to the Guarantors, the Guarantors shall be obligated
without any further notice by the LGCB to pay, and will pay, to the LGCB any
required Daily Payments for the Covered Fiscal Year on a daily basis for the
remainder of the Covered Fiscal Year (in which a Minimum Payment Default
occurs) to the extent such Daily Payments have not been timely paid.
1.7 If there is a default by Guarantors, in the performance of their
obligations under Section 1.1.(a)(iii) of the LGCB Completion Guarantee, and
the Casino is not opened for business as a casino gaming operation as
provided, and within the time allowed, in the Completion Guarantee,
Guarantors hereby irrevocably, unconditionally and in solido with each other
agree to pay and do hereby guarantee payment to the LGCB under this Guaranty
of a sum equal to the Minimum Payment, namely ONE HUNDRED MILLION AND NO/100
DOLLARS ($100,000,000.00). The $100,000,000.00 sum shall be payable in equal
daily installments for one year (hereinafter, each daily installment will be
a "Scheduled Installment"). It is further agreed that the date the Casino
would have opened if the Guarantors had timely performed their obligation to
open the Casino within the time allowed in the Completion Guaranty will
hereinafter be called the "Scheduled Date." Each Scheduled Installment shall
be payable daily in an amount equal to the Daily Payment, as provided in
Section 6.3 of the COC, the Casino Opening Date had occurred, beginning on
the first day after the Scheduled Date, and such Scheduled Installments will
continue to be paid on each day thereafter for one year. If any Scheduled
Installment is not timely paid when due, as set forth above, interest at the
Default Interest Rate will accrue on the amount of each unpaid Scheduled
Installment from the date each such Scheduled Installment is due until paid
in full. In addition, it is agreed that in no event shall Guarantors'
liability for payments under this Guaranty exceed ONE HUNDRED MILLION and
NO/100 DOLLARS ($100,000,000.00), plus interest and attorney fees, as
provided herein, and any payments actually made to and received by the LGCB
under this paragraph 1.7 for failure to open the Casino by the Scheduled
Date, shall be credited (to the extent of any payments received) against any
damages that the LGCB may be entitled to collect under the Completion
Guarantee for failure to open the Casino by the Scheduled Date.
1.8 Notwithstanding anything contained herein to the contrary, if the
Minimum Payment Default occurs in the First Fiscal Year or if no Minimum
Payment Guaranty is timely furnished for the second Fiscal Year, each
Guarantor in solido with the other Guarantor and the Company shall be
obligated to pay, and will pay, to the LGCB any unpaid Daily Payments, plus,
if applicable, interest at the Default Interest Rate, until the Day prior to
the first (year) anniversary of the Casino Opening Date, it being
3
agreed that the Guaranty for the First Fiscal Year guarantees payment of (and
obligates the Guarantors in solido with the Company to pay) three hundred
sixty-five (365) days (366 days if a Fiscal Leap Year is involved) of Daily
Payments, including any such Daily Payments that become due during the second
Fiscal Year. It is agreed that if the Minimum Payment amount for any partial
First Fiscal Year has been paid and the Minimum Payment Guaranty has been
timely furnished for the next Full Fiscal Year, this Guaranty will be
satisfied and Guarantors shall have no further liability under this Guaranty.
1.9 All of the obligations undertaken hereinabove by the Guarantors in
this Section 1 and any amounts which may be due under Section 6.2 are
hereinafter collectively referred to as the "Guaranty Obligation."
1.10 Notwithstanding the suspension, under the provisions of Section
6.3(a) of the COC, of the payment of any of the amounts included within the
Guaranty Obligation, it is agreed that the Guaranty Obligation covers all
payments which would have been due and payable during the Covered Fiscal Year
except for the fact that such payments were suspended pursuant to Section
6.3(a) of the COC. Any such suspended payments shall be paid in the manner
and within the time provided in the COC, together with Late Payment Interest
from the time the suspended payments become due under the COC, and the
Guarantors guarantee the payment thereof, even after the expiration of the
Covered Fiscal Year.
2. GUARANTORS' ADDITIONAL AGREEMENTS.
2.1 The Guarantors, in solido with each other and the Company, agree to
perform and comply with their Guaranty Obligation, whether or not the Company
is liable therefor individually or jointly or in solido with others, and
whether or not recovery against the Company is or may become barred by any
statute of limitations or prescriptive or preemptive period or is or may
become unenforceable or discharged, whether in whole or in part, for any
reason other than payment thereof in full. The Guarantors agree that this
Guaranty is a guaranty of payment and not of collection, and that their
obligation under this Guaranty shall be primary, absolute and unconditional,
irrespective of, and unaffected by:
(a) the absence of any action to enforce this Guaranty or any other
document or the waiver or consent by the LGCB with respect to any of the
provisions thereof;
(b) any release or discharge of the other Guarantor, the Company or
any other party of the Guaranty Obligation; or
4
(c) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor shall be regarded, and shall be in the same position, as
principal debtor with respect to the Guaranty Obligation.
2.2 Each Guarantor expressly waives all rights it may have now or in the
future under any statute, or at common law, or at law or in equity, or
otherwise, to compel the LGCB to proceed in respect of the Guaranty
Obligation against the Company or any other party or against any security for
the payment of the Guaranty Obligation before proceeding against, or as a
condition to proceeding against, any Guarantor; and without limiting the
above, each Guarantor waives all pleas of division and discussion. Each
Guarantor agrees that any notice or directive given at any time to the LGCB
which is inconsistent with the waiver in the immediately preceding sentence
shall be null and void and may be ignored by the LGCB, and in addition, may
not be pleaded or introduced as evidence in any litigation relating to this
Guaranty for the reason that such pleading or introduction would be at
variance with the written terms of this Guaranty, unless the LGCB has
specifically agreed otherwise in writing.
2.3 Each Guarantor acknowledges that it has received a copy of and is
familiar with the COC, which to the extent of the Guaranty Obligation is
incorporated herein by reference.
2.4 Except as expressly provided for in this Guaranty, in no event shall
the Guarantors, as a result of this Guaranty, incur, directly or indirectly,
any obligation, contingent or otherwise, under the COC ("incur" meaning to
create, incur, assume, guaranty or otherwise become liable for).
3. Alternation of the Guaranty Obligation.
3.1 No exercise or non-exercise of any right hereby given to the LGCB,
no dealing by the LGCB with the Guarantors or any other guarantor or any
other person, and no change, impairment or release of all or any portion of
the Company's COC obligations, or suspension of any right or remedy of the
LGCB against any person, including without limitation the Company or any other
such guarantor or other person, shall in any way affect any part of the
Guaranty Obligation or any security furnished by the Guarantors or give the
Guarantors any recourse against the LGCB.
3.2 This Guaranty is provided on the express condition that, should the
LGCB and the Company amend or modify the COC so as to increase the Guaranty
Obligation or adversely affect the Guarantors
5
without the prior written agreement of the Guarantors, any such amendment or
modification entered into without the prior written agreement of the
Guarantors shall not increase the Guaranty Obligation or adversely affect the
Guarantors.
4. Waiver.
4.1 The Guarantors, in solido with each other, represent, warrant and
agree that, as of the date of this Guaranty, the Guaranty Obligation is not
subject to any recoupment, counterclaims, offsets or defenses against the
LGCB or the Company of any kind. The Guarantors further in solido with each
other agree that the Guaranty Obligation shall not be subject to any
recoupment, counterclaims, offsets or defenses against the LGCB or against
the Company of any kind which may arise in the future. Each Guarantor hereby
expressly waives and relinquishes all rights, defenses and remedies accorded
by applicable law to sureties or guarantors and agrees not to assert or take
advantage of any such rights, defenses or remedies, including without
limitation:
(a) any right to require the LGCB to proceed against the Company or
any other person or to proceed against or exhaust any security held by the
LGCB at any time or to pursue any other remedy in the power of the LGCB
before proceeding against either or both of the Guarantors, including but not
limited to any defense of failure to join or non-joinder of the Company or
any other person whatsoever in any litigation instituted by the LGCB against
either or both of the Guarantors;
(b) the defense of any statute of limitation, prescription and
peremption in any action hereunder or in any action for the collection of any
of the Guaranty Obligation;
(c) any defense that may arise by reason of the discharge in
bankruptcy, incapacity, lack of authority, death or disability of any other
person (including the Company) or the failure of the LGCB to file or enforce
a claim against the estate (in administration, bankruptcy or any other
proceeding) of any other person (including the Company);
(d) diligence, demand, presentment, protest and notice of any kind
other than notices expressly required in this Guaranty (whether for nonpayment
or protest or of acceptance, maturity, extension of time, change in nature or
form of the Company's obligations under the COC, acceptance of further
security, release of further security, composition or agreement arrived at as
to the amount of, or the terms of, the Company's obligations under the COC,
notice of adverse change in the Company's financial condition or any other
fact which might materially increase the risk to the Guarantors), including
without limitation notice of the existence,
6
creation or incurring of any new or additional indebtedness or obligation or
of any action or non-action on the part of the Company, the LGCB, any
endorser or creditor of the Company or either Guarantor or on the part of any
other person under this or any other instrument in connection with any
obligation or evidence of indebtedness held by the LGCB in connection with
any of the obligations of the Company under the COC;
(e) any defense based upon an election of remedies by the LGCB
which destroys or otherwise impairs the subrogation rights of the Guarantors,
the right of the Guarantors to proceed against the Company for reimbursement,
or both, or any defense that the LGCB's claims against the Guarantors are
barred or diminished or premature to the extent that the LGCB has or may have
remedies available against the Company;
(f) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal;
(g) any duty on the part of the LGCB to disclose to the Guarantors
any facts the LGCB may now or hereafter know about the Company, regardless of
whether the LGCB has reason to believe that any such facts materially
increase the risk beyond that which the Guarantors intend to assume, or has
reason to believe that such facts are unknown to either Guarantor, or has a
reasonable opportunity to communicate such facts to either Guarantor, since
each Guarantor acknowledges that it is fully responsible for being and
keeping informed of the financial condition of the Company and of all
circumstances bearing on the risk of nonpayment of any of the obligations of
the Company under the COC;
(h) waiver or estoppel or any alleged lack of reasonable or
justifiable reliance on the part of the LGCB as to the Guarantors'
representations;
(i) lack, failure or insufficiency of consideration;
(j) subject to the notice requirements of Sections 1.4 and 1.5
hereof, any alleged failure of the LGCB to mitigate injuries, losses or
damages or any plea that the LGCB has any duty to mitigate injuries, losses,
or damages prior to seeking recovery under this Guaranty; and
(k) any defense that the LGCB's claims hereunder are or may be
barred because any adequate remedy at law exists.
4.2 Following any default by either Guarantor under this Guaranty, each
Guarantor agrees to forbear from exercise of any
7
rights of subrogation, indemnity, or contribution against each other, the
Company or any other person who may be liable for satisfaction of the
Guaranty Obligation until the Guaranty Obligation has been fully satisfied as
to the LGCB.
5. Bankruptcy.
5.1 In the event of the commencement of a bankruptcy case by or against
any Guarantor, each Guarantor agrees to waive the automatic stay under the
Bankruptcy Code and further agrees to the entry of an immediate order from
the Bankruptcy Court, on the LGCB's ex parte motion granting to the LGCB a
modification of the automatic stay (and/or recognition that the automatic
stay is not applicable) allowing it to fully enforce the provisions of this
Guaranty, the Guarantors hereby agreeing that in such case, "cause," as
defined by the Bankruptcy Code, would exist for the immediate entry by the
Bankruptcy Court of such an order modifying the automatic stay.
5.2 The Guaranty Obligation shall not be altered, limited or affected
by any proceeding, voluntary or involuntary, involving the bankruptcy,
reorganization, insolvency, receivership, liquidation or arrangement of the
Company, or by any defense which the Company may have by reason of any order,
decree or decision of any court or administrative body resulting from any
such proceeding.
5.3 This Guaranty shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company or any
Guarantor for liquidation or reorganization, should the Company or any
Guarantor become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any significant part
of the Company's or any Guarantor's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment of the
Guaranty Obligation, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount or must otherwise be restored or returned by
the LGCB, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned
only by such amount paid and not so rescinded, reduced, restored or returned.
6. Interest, Costs and Attorneys' Fees.
6.1 If the Guarantors fail to timely pay all or any portion of the
Guaranty Obligation in accordance with the provisions of Section 1 of this
Guaranty, such amount shall bear interest as
8
provided in Section 1.2 and/or in Section 1.7 of this Guaranty, as applicable.
6.2 If the LGCB refers this Guaranty to an attorney to enforce,
construe, or defend any provision hereof, or as a consequence of any default
hereunder by the Guarantors in connection with:
(a) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by the LGCB, the Company, the Guarantors or any other
person) in any way relating to the enforcement of rights or remedies under
this Guaranty;
(b) any attempt to enforce any rights of the LGCB hereunder against
the Guarantors or any other person; or
(c) any attempt to defend any provision hereof;
then, and in any such event, the attorneys' fees arising from such services,
including those of any appellate proceedings, and all expenses, costs,
charges and other fees incurred by such counsel and others in any way or
respect arising in connection with or relating to any of the events or
actions described herein shall be payable, on demand, by the Guarantors to
the LGCB or the Guarantors shall cause the Company to make such payment, and
if not so paid, shall be a part of the Guaranty Obligation. The reference to
"attorneys' fees" in this Section 6.2 and in all other places in this
Guaranty shall also include, without limitation, such reasonable amounts as
may then be charged for legal services furnished by attorneys retained or
employed by the State or the LGCB. Such attorneys' fees, costs and expenses
shall include, without limitation, those incurred in connection with any
bankruptcy, reorganization, insolvency, receivership, liquidation,
arrangement, lawsuits in state or federal court, or other similar proceedings
involving either Guarantor which in any way affect the exercise by the LGCB
of its rights and remedies hereunder.
7. CUMULATIVE RIGHTS.
All rights, powers and remedies of the LGCB hereunder and under any
other written agreement now or at any time hereafter in force between the
LGCB and the Guarantors, including without limitation any other guaranty
executed by either Guarantor relating to any indebtedness of the Company,
shall be cumulative and not alternative, and such rights, powers and remedies
shall be in addition to all rights, powers and remedies given to the LGCB by
law and shall not be deemed in any way to extinguish or diminish the LGCB's
rights and remedies. This Guaranty is in addition to and independent of the
guaranty of any guarantor of any other
9
obligations of the Company under the COC or other indebtedness of the Company.
8. Application of Payments and Recoveries.
After a Minimum Payment Default has occurred, as to any payments
received directly from a Guarantor, the LGCB shall apply such payments to
amounts due under the Guaranty Obligation. Any other payments or recoveries
received by the LGCB after a Minimum Payment Default shall be applied, as
directed by the LGCB at its sole option, (a) first, to amounts due for any
Additional Charges, and (b) second, to any Daily Payments, Required Payments,
or Minimum Payment due for any Fiscal Year other than the Fiscal Year in
which the Minimum Payment Default has occurred (collectively, the "Other
Fiscal Year Payments"). Only when such Additional Charges and all Other
Fiscal Year Payments are paid current will any payments or recoveries be
applied to the Guaranty Obligation under this Guaranty Agreement; provided,
however, Daily Payments, Required Payments or Minimum Payments paid by the
Company during a Covered Fiscal Year shall be applied to the Minimum Payment
for that Covered Fiscal Year.
9. Independent Obligations.
The Guaranty obligation is independent of the obligations of the Company
under the COC, and, in the event of any default hereunder, a separate action
or actions may be brought and prosecuted against either Guarantor, whether or
not the Company is joined therein or a separate action or actions are brought
against the Company. The LGCB's rights hereunder shall not be exhausted by
its exercise of any of its rights or remedies or by any such action or by any
number of successive actions unless and until all Guaranty Obligations have
been satisfied and fully performed.
10. Financial Statements.
The Guarantors hereby represent and warrant that the information
pertaining to the Guarantors set forth in their most recent filings with the
Securities and Exchange Commission is true and correct in all material
respects, and fairly presents the financial condition of the Guarantors as of
the respective dates indicated therein and for the periods covered thereby,
and that no material adverse change has occurred in the financial condition
or prospects of the Guarantors since the date of the latest information
provided therein.
11. Notices.
Whenever the Guarantors or the LGCB shall desire to give or serve any
notice, demand, request or other communication with
10
respect to this Guaranty, each such notice shall be in writing and shall be
effective only if the same is delivered by personal service, overnight
courier service, or mailed by certified mail, postage prepaid, return
receipt requested, addressed as follows:
(a) if to either Guarantor
(or both Guarantors):
HET and Xxxxxx'x Operating
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
(b) if to the LGCB, as provided in the COC;
or at such other address as shall have been furnished in writing by any
person described above to the party required to give notice hereunder. Any
such notice shall be deemed to have been received upon delivery. Any of the
Guarantors or the LGCB may change its address by giving the others written
notice of the new address as herein provided.
12. Successors and Assigns.
This Guaranty shall inure to the benefit of the LGCB, its successors and
assigns, and shall bind the successors and assigns of each Guarantor. Neither
Guarantor may assign or transfer any of its rights, obligations or interest
hereunder without the prior written consent of the LGCB.
13. Miscellaneous Provisions.
13.1 This Guaranty shall be governed, interpreted and enforced in
accordance with Louisiana law.
Each Guarantor hereby submits to the jurisdiction of the State and the
courts thereof and to the jurisidiction of the Nineteenth Judicial District
Court in and for East Baton Rouge Parish ("19th JDC") for purposes of any
suit, action or other proceeding arising out of or relating to this Guaranty
and agrees not to assert by way of motion as a defense or otherwise that
such suit, action or other proceeding is brought in an inconvenient forum or
that the venue of such suit, action or other proceeding is improper or that
the subject matter thereof may not be enforced in or by such court or assert
that any suit or action filed in the 19th JDC may be removed to the Federal
Court, and each Guarantor agrees that the 19th JDC shall have the exclusive
jurisdiction for purposes of any suit, action or other proceeding brought
by either of them relating to or arising out of this Guaranty.
11
If at any time during the Term, either Guarantor is not a resident of
the State and has not formally designated or does not continuously maintain
an agent for service of process in Louisiana or has not notified LGCB of the
full name and current street address in Louisiana of such agent for service
of process, such Guarantor hereby designates the Secretary of State of
Louisiana as its agent for service of process in any suit, action or
proceeding involving the LGCB or the State or arising out of or relating to
this Guaranty, and such service shall be made as provided by Louisiana law
for service on an insurance company through the Secretary of State.
13.2 This Guaranty shall constitute the entire agreement of the
Guarantors with the LGCB with respect to the subject matter hereof, and no
representation, understanding, promise or condition concerning the subject
matter hereof shall be binding upon the LGCB or the Guarantors unless
expressed herein.
13.3 Should any term, covenant, condition or provisions of this
Guaranty be determined to be illegal or unenforceable, it is the intent of the
parties that all other terms, covenants, conditions and provisions hereof
shall nevertheless remain in full force and effect.
13.4 Time is of the essence to this Guaranty and each of its provisions.
13.5 When the context and construction so require, all words used in the
singular herein shall be deemed to include the plural, the masculine shall
include the feminine and neuter, and vice versa.
13.6 The word "person" as used herein shall include any individual,
company, firm, association, partnership, limited liability company, joint
venture, corporation, trust or other legal entity of any kind whatsoever.
13.7 No provision of this Guaranty or right granted to the LGCB
hereunder can be waived in whole or in part, nor can either Guarantor be
release from the Guaranty Obligation, except by an express and specific
writing to that effect duly executed by an authorized officer of the LGCB. No
provision of this Guaranty may be amended without the prior written consent
of the Guarantors and the LGCB and the consent of any additional
beneficiaries hereof, if any, shall not be required.
13.8 The LGCB need not inquire into the power of the Guarantors or the
authority of their officers, shareholders or agents acting or purporting to
act on their behalf.
12
13.9 The headings of this Guaranty are inserted for convenience only and
shall have no effect upon the construction or interpretation thereof.
13.10 All of the representations, warranties, agreements, obligations and
covenants of each Guarantor are in solido with the other Guarantor. This
Guaranty shall be for the sold benefit of the State of Louisiana acting by
and through the LGCB, its successors and assigns. The provisions of this
Guaranty shall not inure to the benefit of any other person, including,
without limitation, the Company.
13.11 This Guaranty shall be effective upon execution.
IN WITNESS HEREOF, the undersigned have executed this Guaranty as of the
30th day of October, 1998.
GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ X. X. Xxxxxxxx XX
------------------------------------
Duly Authorized Officer
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ X. X. Xxxxxxxx XX
------------------------------------
Duly Authorized Officer
Approved and consented to:
JAZZ CASINO COMPANY, L.L.C.
By: --------------------------------
Duly Authorized Officer
Accepted and agreed to:
LOUISIANA GAMING CONTROL BOARD
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Chairman
-------------------------------
13
13.9 The headings of this Guaranty are inserted for convenience only and
shall have no effect upon the construction or interpretation thereof.
13.10 All of the representations, warranties, agreements, obligations and
covenants of each Guarantor are in solido with the other Guarantor. This
Guaranty shall be for the sole benefit of the State of Louisiana acting by
and through the LGCB, its successors and assigns. The provisions of this
Guaranty shall not inure to the benefit of any other person, including,
without limitation, the Company.
13.11 This Guaranty shall be effective upon execution.
IN WITNESS HEREOF, the undersigned have executed this Guaranty as of the
30th day of October, 1998.
GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.
By: ________________________________
Duly Authorized Officer
XXXXXX'X OPERATING COMPANY, INC.
By: ________________________________
Duly Authorized Officer
Approved and consented to:
JAZZ CASINO COMPANY, L.L.C.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Duly Authorized Officer
Accepted and agreed to:
LOUISIANA GAMING CONTROL BOARD
By: _____________________________
Name: ___________________________
Title: __________________________
14
Exhibit B
FORM OF
UNCONDITIONAL MINIMUM PAYMENT GUARANTY AGREEMENT
FOR FISCAL YEAR ENDING MARCH 31, ______
THIS UNCONDITIONAL MINIMUM PAYMENT GUARANTY AGREEMENT for Fiscal Year
ending March 31, ____ (the "Guaranty") is entered into as of
________________, ________, by __________________________________ a
___________________________ and _________________________________ a
___________________________________ (each a "Guarantor" and collectively the
"Guarantors") in favor of the STATE OF LOUISIANA by and through the LOUISIANA
GAMING CONTROL BOARD (the "LGCB").
RECITALS
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A. That certain Casino Operating Contract (the "COC") between Jazz
Casino Company, L.L.C., a Louisiana limited liability company (the
"Company"), and the LGCB, dated as of ______________________, 1998, sets
forth the conditions, covenants, obligations, requirements and terms
pursuant to which the Company has the authority to conduct gaming operations
at the Casino.
B. As used in this Guaranty, all capitalized terms used herein but not
defined herein shall be used herein as defined in the COC.
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C. The Company has caused this Guaranty to be provided to the LGCB
for Fiscal Year ending March 31, _____ (the "Covered Fiscal Year"), as
required by the COC.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantors, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors hereby solidarily make the following
representations and warranties to the LGCB, and hereby solidarily covenant
and agree for the benefit of the LGCB as follows:
1. Obligations Guaranteed and Method of Drawing.
1.1 The Guarantors hereby irrevocably, unconditionally, and in solido
with each other and with the Company, guarantee for the Covered Fiscal Year:
(a) the full, complete and timely payment and performance of all of
the Minimum Payment obligations of the Company to the LGCB under and in
accordance with the provisions of the COC; and
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(b) the full, complete and timely payment to the LGCB of all of the
Daily Payments, Required Payments and Minimum Payment in accordance with the
provisions of the COC.
1.2 If there is any delay in timely paying to the LGCB any and/or all of
the Daily Payments, Required Payments and/or Minimum Payment as and when
required under the COC for the Covered Fiscal Year, the Guarantors shall also
pay to the LGCB interest on such payments due at the Default Interest Rate
(as provided in Section 6.7 of the COC) from the date each payment was due,
until paid to the LGCB.
1.3 In no event shall the aggregate total of Daily Payments, Required
Payments and the Minimum Payment to the LGCB under this Guaranty for the
Covered Fiscal Year exceed ONE HUNDRED MILLION DOLLARS ($100,000,000.00),
plus, and in addition thereto, any interest and attorneys' fees applicable to
the Guaranty Obligation provided for in the COC or in this Guaranty.
1.4 If the LGCB has not been timely paid any one or more of the required
Daily Payments for the Covered Fiscal Year, then (a) the LGCB may make
drawings under this Guaranty by providing written notice to the Guarantors
that one or more of the required Daily
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Payments have not been timely paid and the principal amount of such Daily
Payments then due (the "Notice of Drawing"), and (b) the Guarantors shall pay
to the LGCB all required but unpaid Daily Payments, plus interest at the
Default Interest Rate, upon receipt of the Notice of Drawing. Guarantors
shall make payment by wire or other electronic transfer as provided in the
Notice of Drawing, on or before the time the Daily Payments are due under
Section 6.5 -- "Daily Deposits" of the COC.
1.5 The Guarantors shall not be obligated to make any Daily Payments due
for any day which is twenty (20) days or more prior to the LGCB giving the
Notice of Drawing; provided however, that any payments which are suspended
pursuant to Section 6.3(a) of the COC shall not be due and payable until the
period of the suspension has expired.
1.6 Once a Minimum Payment Default has occurred and a Notice of Drawing
has been provided to the Guarantors, the Guarantors shall be obligated
without any further notice by the LGCB to pay, and will pay, to the LGCB any
required Daily Payments for the Covered Fiscal Year on a daily basis for the
remainder of the Covered Fiscal Year (in which a Minimum Payment Default
occurs) to the extent such Daily Payments have not been timely paid.
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1.7 In no event shall the Guarantors be liable to the LGCB under this
Guaranty for any amount in excess of the difference between the Minimum
Payment for the Covered Fiscal Year and the total of the Louisiana Gross
Gaming Revenue Share Payments which have been paid to the LGCB for said
Fiscal Year or liable for any Daily Payments due for and in any Fiscal Year
following the Covered Fiscal Year.
1.8 All of the obligations undertaken hereinabove by the Guarantors
in this Section 1 and any amounts which may be due under Section 6.2 are
hereinafter collectively referred to as the "Guaranty Obligation."
1.9 Notwithstanding the suspension, under the provisions of Section
6.3(a) of the COC, of the payment of any of the amounts included within the
Guaranty Obligation, it is agreed that the Guaranty Obligation covers all
payments which would have been due and payable during the Covered Fiscal Year
except for the fact that such payments were suspended pursuant to Section
6.3(a) of the COC. Any such suspended payments shall be paid in the manner
and within the time provided in the COC, together with Late Payment Interest
from the time the suspended payments become due under the COC, and
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the Guarantors guarantee the payment thereof, even after the expiration of
the Covered Fiscal Year.
2. Guarantors' Additional Agreements
2.1 The Guarantors, in solido with each other and the Company, agree to
perform and comply with their Guaranty Obligation, whether or not the Company
is liable therefor individually or jointly or in solido with others, and
whether or not recovery against the Company is or may become barred by any
statute of limitations or prescriptive or preemptive period or is or may
become enforceable or discharged, whether in whole or in part, for any reason
other than payment thereof in full. The Guarantors agree that this Guaranty
is a guaranty of payment and not of collection, and that their obligation
under this Guaranty shall be primary, absolute and unconditional,
irrespective of, and unaffected by:
(a) the absence of any action to enforce this Guaranty or any other
document or the waiver or consent by the LGCB with respect to any of the
provisions thereof;
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(b) any release or discharge of the other Guarantor, the
Company or any other party of the Guaranty Obligation; or
(c) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor shall be regarded, and shall be in the same position, as
principal debtor with respect to the Guaranty Obligation.
2.2 Each Guarantor expressly waives all rights it may have now or in
the future under any statute, or at common law, or at law or in equity, or
otherwise, to compel the LGCB to proceed in respect of the Guaranty
Obligation against the Company or any other party or against any security for
the payment of the Guaranty Obligation before proceeding against, or as a
condition to proceeding against, any Guarantor; and without limiting the
above, each Guarantor waives all pleas of division and discussion. Each
Guarantor agrees that any notice or directive given at any time to the LGCB
which is inconsistent with the waiver in the immediately preceding sentence
shall be null and void and may be ignored by the LGCB, and in addition, may
not be pleaded or introduced as evidence
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in any litigation relating to this Guaranty for the reason that such pleading
or introduction would be at variance with the written terms of this Guaranty,
unless the LGCB has specifically agreed otherwise in writing.
2.3 Each Guarantor acknowledges that it has received a copy of and is
familiar with the COC, which to the extent of the Guaranty Obligation is
incorporated herein by reference.
2.4 Except as expressly provided for in this Guaranty, in no event
shall the Guarantors, as a result of this Guaranty, incur, directly or
indirectly, any obligation, contingent or otherwise, under the COC ("incur"
meaning to create, incur, assume, guaranty or otherwise become liable for).
3. Alteration of the Guaranty Obligation.
3.1 No exercise or non-exercise of any right hereby given to the LGCB,
no dealing by the LGCB with the Guarantors or any other guarantor or any
other person, and no change, impairment or release of all or any portion of
the Company's COC obligations, or suspension of any right or remedy of the
LGCB against any person, including without limitation the Company or any
other such
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guarantor or other person, shall in any way affect any part of the Guaranty
Obligation or any security furnished by the Guarantors or give the Guarantors
any recourse against the LCGB.
3.2 This Guaranty is provided on the express condition that, should the
LGCB and the Company amend or modify the COC so as to increase the Guaranty
Obligation or adversely affect the Guarantors without the prior written
agreement of the Guarantors, any such amendment or modification entered into
without the prior written agreement of the Guarantors shall not increase the
Guaranty Obligation or adversely affect the Guarantors.
4. Waiver.
4.1 The Guarantors, in solido with each other, represent, warrant and
agree that, as of the date of this Guaranty, the Guaranty Obligation is not
subject to any recoupment, counterclaims, offsets or defenses against the
LGCB or the Company of any kind. The Guarantors further in solido with each
other agree that the Guaranty Obligation shall not be subject to any
recoupment, counterclaims, offsets or defenses against the LGCB or against
the Company of any kind which may arise in the future. Each Guarantor hereby
expressly waives and relinquishes all rights.
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defenses and remedies accorded by applicable law to sureties or guarantors
and agrees not to assert or take advantage of any such rights, defenses or
remedies, including without limitation:
(a) any right to require the LGCB to proceed against the Company or
any other person or to proceed against or exhaust any security held by the
LGCB at any time or to pursue any other remedy in the power of the LGCB
before proceeding against either or both of the Guarantors, including but
not limited to any defense of failure to join or non-joinder of the Company or
any other person whatsoever in any litigation instituted by the LGCB against
either or both of the Guarantors;
(b) the defense of any statute of limitation, prescription and
preemption in any action hereunder or in any action for the collection of any
of the Guaranty Obligation;
(c) any defense that may arise by reason of the discharge in
bankruptcy, incapacity, lack of authority, death or disability of any other
person (including the Company) or the failure of the LGCB to file or enforce
a claim against the estate (in administration, bankruptcy or any other
proceeding) of any other person (including the Company);
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(d) diligence, demand, presentment, protest and notice of any kind
other than notices expressly required in this Guaranty (whether for
nonpayment of protest or of acceptance, maturity, extension of time, change
in nature or form of the Company's obligations under the COC, acceptance of
further security, release of further security, composition or agreement
arrived at as to the amount of, or the terms of, the Company's obligations
under the COC, notice of adverse change in the Company's financial condition
or any other fact which might materially increase the risk to the
Guarantors), including without limitation notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of any
action or non-action on the part of the Company, the LGCB, any endorser or
creditor of the Company or either Guarantor or on the part of any other
person under this or any other instrument in connection with any obligation
or evidence of indebtedness held by the LGCB in connection with any of the
obligations of the Company under the COC;
(e) any defense based upon an election of remedies by the LGCB which
destroys or otherwise impairs the subrogation rights of the Guarantors, the
right of the Guarantors to proceed against the Company for reimbursement, or
both, or any defense that the LGCB's claims against the Guarantors are barred
or diminished or
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premature to the extent that the LGCB has or may have remedies available
against the Company;
(f) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(g) any duty on the part of the LGCB to disclose to the Guarantors any
facts the LGCB may now or hereafter know about the Company, regardless of
whether the LGCB has reason to believe that any such facts materially
increase the risk beyond that which the Guarantors intend to assume, or has
reason to believe that such facts are unknown to either Guarantor, or has a
reasonable opportunity to communicate such facts to either Guarantor, since
each Guarantor acknowledges that it is fully responsible for being and
keeping informed of the financial condition of the Company and of all
circumstances bearing on the risk of nonpayment of any of the obligations of
the Company under the COC;
(h) waiver or estoppel or any alleged lack of reasonable or justifiable
reliance on the part of the LGCB as to the Guarantors' representations;
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(i) lack, failure or insufficiency of consideration;
(j) subject to the notice requirements of Sections 1.4 and 1.5
hereof, any alleged failure of the LGCB to mitigate injuries, losses or
damages or any plea that the LGCB has any duty to mitigate injuries, losses,
or damages prior to seeking recovery under this Guaranty; and
(k) any defense that the LGCB's claims hereunder are or may be
barred because any adequate remedy at law exists.
4.2 Following any default by either Guarantor under this Guaranty,
each Guarantor agrees to forbear from exercise of any rights of subrogation,
indemnity, or contribution against each other, the Company or any other
person who may be liable for satisfaction of the Guaranty Obligation until
the Guaranty Obligation has been fully satisfied as to the LGCB.
5. BANKRUPTCY.
5.1 In the event of the commencement of a bankruptcy case by or
against any Guarantor, each Guarantor agrees to waive the automatic stay
under the Bankruptcy Code and further agrees to the
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entry of an immediate order from the Bankruptcy Court, on the LGCB's ex parte
motion granting to the LGCB a modification of the automatic stay (and/or
recognition that the automatic stay is not applicable) allowing it to fully
enforce the provisions of this Guaranty, the Guarantors hereby agreeing that
in such case, "cause," as defined by the Bankruptcy Code, would exist for the
immediate entry by the Bankruptcy Court of such an order modifying the
automatic stay.
5.2 The Guaranty Obligation shall not be altered, limited or affected by
any proceeding, voluntary or involuntary, involving the bankruptcy,
reorganization, insolvency, receivership, liquidation or arrangement of the
Company, or by any defense which the Company may have by reason of any order,
decree or decision of any court or administrative body resulting from any
such proceeding.
5.3 This Guaranty shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company or any
Guarantor for liquidation or reorganization, should the Company or any
Guarantor become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any significant part
of the Company's or any Guarantor's assets, and shall continue to be
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effective or be reinstated, as the case may be, if at any time payment of the
Guaranty Obligation, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount or must otherwise be restored or returned by
the LGCB, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guaranty Obligation shall be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.
6. Interest, Costs and Attorneys' Fees.
6.1 If the Guarantors fail to timely pay all or any portion of the
Guaranty Obligation in accordance with the provisions of Section 1 of this
Guaranty, such amount shall bear interest as provided in Section 1.2 of this
Guaranty.
6.2 If the LGCB refers this Guaranty to an attorney to enforce,
construe, or defend any provision hereof, or as a consequence of any default
hereunder by the Guarantors in connection with:
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(a) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by the LGCB, the Company, the Guarantors or any other
person) in any way relating to the enforcement of rights or remedies under
this Guaranty;
(b) any attempt to enforce any rights of the LGCB hereunder against the
Guarantors or any other person; or
(c) any attempt to defend any provision hereof;
then, and in any such event, the attorneys' fees arising from such services,
including those of any appellate proceedings, and all expenses, costs,
charges and other fees incurred by such counsel and others in any way or
respect arising in connection with or relating to any of the events or
actions described herein shall be payable, on demand, by the Guarantors to
the LGCB or the Guarantors shall cause the Company to make such payment, and
if not so paid, shall be a part of the Guaranty Obligation. The reference to
"attorneys' fees" in this Section 6.2 and in all other places in this
Guaranty shall also include, without limitation, such reasonable amounts as
may then be charged for legal services furnished by attorneys retained or
employed by the State or the LGCB. Such attorneys' fees, costs and expenses
shall include,
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without limitation, those incurred in connection with any bankruptcy,
reorganization, insolvency, receivership, liquidation, arrangement, lawsuits
in state or federal court, or other similar proceedings involving either
Guarantor which in any way affect the exercise by the LGCB of its rights and
remedies hereunder.
7. Cumulative Rights.
All rights, powers and remedies of the LGCB hereunder and under any
other written agreement now or at any time hereafter in force between the
LGCB and the Guarantors, including without limitation any other guaranty
executed by either Guarantor relating to any indebtedness of the Company,
shall be cumulative and not alternative, and such rights, powers and remedies
shall be in addition to all rights, powers and remedies given to the LGCB by
law and shall not be deemed in any way to extinguish or diminish the LGCB's
rights and remedies. This Guaranty is in addition to and independent of the
guaranty of any guarantor of any other obligations of the Company under the
COC or other indebtedness of the Company.
8. Application of Payments and Recoveries.
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After a Minimum Payment Default has occurred, as to any payments received
directly from a Guarantor, the LGCB shall apply such payments to amounts due
under the Guaranty Obligation. Any other payments or recoveries received by
the LGCB after a Minimum Payment Default shall be applied, as directed by the
LGCB at its sole option, (a) first, to amounts due for any Additional
Charges, and (b) second, to any Daily Payments, Required Payments, or Minimum
Payment due for any Fiscal Year other than the Fiscal Year in which the
Minimum Payment Default has occurred (collectively, the "Other Fiscal Year
Payments"). Only when such Additional Charges and all Other Fiscal Year
Payments are paid current will any payments or recoveries be applied to the
Guaranty Obligation under this Guaranty Agreement; provided, however, Daily
Payments, Required Payments or Minimum Payments paid by the Company during a
Covered Fiscal Year shall be applied to the Minimum Payment for that Covered
Fiscal Year.
9. Independent Obligations.
The Guaranty obligation is independent of the obligations of the Company
under the COC, and, in the event of any default hereunder, a separate action
or actions may be brought and prosecuted against either Guarantor, whether or
not the Company is
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joined therein or a separate action or actions are brought against the
Company. The LGCB's rights hereunder shall not be exhausted by its exercise
of any of its rights or remedies or by any such action or by any number of
successive actions unless and until all Guaranty Obligations have been
satisfied and fully performed.
10. Financial Statements.
The Guarantors hereby represent and warranty that the information
pertaining to the Guarantors set forth in their most recent filings with the
Securities and Exchange Commission is true and correct in all material
respects, and fairly presents the financial condition of the Guarantors as of
the respective dates indicated therein and for the periods covered thereby,
and that no material adverse change has occurred in the financial condition
or prospects of the Guarantors since the date of the latest information
provided therein.
11. Notices.
Whenever the Guarantors or the LGCB shall desire to give or serve any
notice, demand, request or other communication with respect to this Guaranty,
each such notice shall be in writing and
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shall be effective only if the same is delivered by personal service,
overnight courier service, or mailed by certified mail, postage prepaid,
return receipt requested, addressed as follows:
(a) if to either Guarantor
(or both Guarantors):
(b) if to the LGCB, as provided in the COC;
or at such other address as shall have been furnished in writing by any
person described above to the party required to give notice hereunder. Any
such notice shall be deemed to have been received upon delivery. Any of the
Guarantors or the LGCB may change its address by giving the others written
notice of the new address as herein provided.
12. Successors and Assigns.
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This Guaranty shall inure to the benefit of the LGCB, its successors
and assigns, and shall bind the successors and assigns of each Guarantor.
Neither Guarantor may assign or transfer any of its rights, obligations or
interest hereunder without the prior written consent of the LGCB.
13. Miscellaneous Provisions.
13.1 This Guaranty shall be governed, interpreted and enforced in
accordance with Louisiana law.
Each Guarantor hereby submits to the jurisdiction of the State and the
courts thereof and to the jurisdiction of the Nineteenth Judicial District
Court in and for East Baton Rouge Parish ("19th JDC") for purposes of any
suit, action or other proceeding arising out of or relating to this Guaranty
and agrees not to assert by way of motion as a defense or otherwise that such
suit, action or other proceeding is brought in an inconvenient forum or that
the venue of such suit, action or other proceeding is improper or that the
subject matter thereof may no be enforced in or by such court or assert that
any suit or action filed in the 19th JDC may be removed to the Federal Court,
and each Guarantor agrees that the 19th JDC shall have the exclusive
jurisdiction for purposes of any suit,
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action or other proceeding brought by either of them relating to or arising
out of this Guaranty.
If at any time during the Term, either Guarantor is not a resident of
the State and has not formally designated or does not continuously maintain
an agent for service of process in Louisiana or has not notified LGCB of the
full name and current street address in Louisiana of such agent for service
of process, such Guarantor hereby designates the Secretary of State of
Louisiana as its agent for service of process in any suit, action or
proceeding involving the LGCB or the State or arising out of or relating to
this Guaranty, and such service shall be made as provided by Louisiana law
for service on an insurance company through the Secretary of State.
13.2 This Guaranty shall constitute the entire agreement of the
Guarantors with the LGCB with respect to the subject matter hereof, and no
representation, understanding, promise or condition concerning the subject
matter hereof shall be binding upon the LGCB or the Guarantors unless
expressed herein.
13.3 Should any term, covenant, condition or provision of this Guaranty
be determined to be illegal or unenforceable, it is the
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intent of the parties that all other terms, covenants, conditions and
provisions hereof shall nevertheless remain in full force and effect.
13.4 Time is of the essence to this Guaranty and each of its provisions.
13.5 When the context and construction so require, all words used in
the singular herein shall be deemed to include the plural, the masculine
shall include the feminine and neuter, and vice versa.
13.6 The word "person" as used herein shall include any individual,
company, firm, association, partnership, limited liability company, joint
venture, corporation, trust or other legal entity of any kind whatsoever.
13.7 No provision of this Guaranty or right granted to the LGCB
hereunder can be waived in whole or in part, nor can either Guarantor be
released from the Guaranty Obligation, except by an express and specific
writing to that effect duly executed by an authorized officer of the LGCB. No
provision of this Guaranty may be amended without the prior written consent
of the Guarantors and
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the LGCB and the consent of any additional beneficiaries hereof, if any,
shall not be required.
13.8 The LGCB need not inquire into the power of the Guarantors or the
authority of their officers, shareholders or agents acting or purporting to
act on their behalf.
13.9 The headings of this Guaranty are inserted for convenience only
and shall have no effect upon the construction or interpretation thereof.
13.10 All the representations, warranties, agreements, obligations and
covenants of each Guarantor are in solido with the other Guarantor. This
Guaranty shall be for the sole benefit of the State of Louisiana acting by
and through the LGCB, its successors and assigns. The provisions of this
Guaranty shall not inure to the benefit of any other person, including,
without limitation, the Company.
13.11 This Guaranty shall be effective upon execution.
IN WITNESS HEREOF, the undersigned have executed this Guaranty as of
the ____ day of ____________, 199_.
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GUARANTORS:
----------------------------------
By:
------------------------------
Duly Authorized Officer
----------------------------------
By:
------------------------------
Duly Authorized Officer
Approved and consented to:
JAZZ CASINO COMPANY, L.L.C.
By:
-------------------------------
Duly Authorized Officer
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Accepted and agreed to:
LOUISIANA GAMING CONTROL BOARD
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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