Exhibit 10.08
CITY/RDC COMPLETION GUARANTEE
THIS CITY/RDC COMPLETION GUARANTEE is entered into as of
October 29, 1998 (this "Completion Guarantee"), by XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation ("HET"), and XXXXXX'X OPERATING COMPANY, INC., a Delaware
corporation ("HOC," and together with HET, the "Completion Guarantors," and each
a "Completion Guarantor") in favor of the RIVERGATE DEVELOPMENT CORPORATION, a
Louisiana public benefit corporation (the "RDC"), and the CITY OF NEW ORLEANS
(the "City" and together with the RDC, "Landlord").
RECITALS
A. A plan of reorganization (the "Plan") of Xxxxxx'x Jazz
Company, a Louisiana general partnership ("HJC"), has been consummated in
connection with the voluntary petition for an Order of Relief under Chapter 11
of Title 11 of the United States Bankruptcy Code filed in the United States
Bankruptcy Court for the District of Delaware and transferred to the United
States Bankruptcy Court for the Eastern District of Louisiana, now identified as
BK No. 95-14545.
B. That certain Amended and Restated Lease Agreement entered
into pursuant to the Plan between the RDC, as landlord, Jazz Casino Company,
L.L.C., a Louisiana limited liability company (the "Company"), as tenant, and
the City, as intervenor (the "Lease") and that certain Amended and Restated
General Development Agreement (the "GDA") entered into pursuant to the Plan
between the Landlord and the Company and the City, as intervenor, set forth the
conditions, covenants, obligations, requirements and terms pursuant to which the
Company has the authority to develop and operate the Casino.
C. The Company has obtained a performance bond (the
"Performance Bond") from Reliance Insurance Company and United States Fidelity
and Guaranty Company (the "Surety") for the benefit of the City and the RDC, the
New Indenture Trustee (as defined in the Plan) as trustee for the holders of the
New Bonds (as defined in the Plan) and the holders of the New Contingent Bonds
(as defined in the Plan), Bankers Trust Company (the "Administrative Agent") as
administrative agent for certain lenders (the "Banks"), and the Louisiana Gaming
Control Board (the "LGCB") for completion of the Phase I and II Construction (as
defined in the GDA) in accordance with Section 2.13(a) of the
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GDA excluding the Minimum FF&E (as defined in the GDA) (the "Performance Bond
Construction").
D. The Completion Guarantors indirectly own a substantial
interest in the parent of the Company and will obtain substantial economic and
other benefits as a result of the successful completion and opening of the
Casino.
E. As used in this Completion Guarantee, all capitalized terms
used herein but not defined herein shall be used herein as defined in the Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Completion Guarantors, the receipt and sufficiency of
which are hereby acknowledged, the Completion Guarantors hereby make the
following representations and warranties to the Landlord, and hereby covenant
and agree for the benefit of the Landlord as follows:
1. Obligations Guaranteed
1.1. The Completion Guarantors hereby irrevocably,
unconditionally, and in solido with each other, the Company and the Surety,
guarantee:
(a) the full and complete payment and performance of all
obligations (the "Completion Obligations") of the Company diligently to commence
and complete the construction of and timely and fully to pay for all costs and
expenses of completion of the Phase I and II Construction in accordance with
Section 2.13(a) of the GDA whether incurred before or after the Effective Date
(as defined in the Plan) and whether due before or after the completion of the
Phase I and II Construction or otherwise payable by the Company to any person
for the costs and expenses of such completion, including:
(i) the payment of any and all costs of completing
the Phase I and II Construction and the Components (including all support
facilities and improvements appurtenant or related to each), all as set forth in
the GDA, including without limitation all labor, materials, supplies and
equipment related thereto, to be paid and satisfied when due including, without
limitation, all cost overruns not paid by the Company;
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(ii) the payment, satisfaction or discharge of liens
arising from injuries or damages to persons or property in connection with the
Phase I and II Construction and all liens, charges and claims, other than
Permitted Liens (which shall mean the liens, charges, claims and other
encumbrances described on Exhibit G to the Lease) arising from the furnishing of
labor, materials, supplies or equipment for the Phase I and II Construction and
the Components, as the case may be, that are or may be imposed upon or asserted
against the Development, or any portion thereof; and
(iii) the defense and indemnification of the Landlord
against all liens arising from injuries or damages to persons or property in
connection with the Phase I and II Construction and all liens, charges and
claims, other than Permitted Liens, arising from the furnishing of labor,
materials, supplies or equipment for the Phase I and II Construction and the
Components, as the case may be; and
(b) so long as any necessary regulatory approvals from the
LGCB, the State Police and any other State regulatory authorities have been
received, the opening of the Casino for business as a casino gaming operation
within twelve (12) months after the Effective Date, or if such approvals have
not been received, that the Casino is in a condition to receive customers in the
ordinary course of business; and
(c) the full and complete payment and performance of all
obligations (the "Carry Obligations") of the Company to pay on a timely basis
all amounts incurred by or otherwise payable by the Company to any person and
due before or after the Effective Date until and through the completion of the
Phase I and II Construction to be funded, paid and satisfied until and through
the completion of the Phase I and II Construction, including without limitation,
any rent or other amounts due under Article IV of the Lease, liquidated damages
or other amounts payable to the Landlord under the Lease or the GDA (including
but not limited to JCC Development's obligation, if any, prior to the completion
of Phase I and II Construction, to pay rent directly to Landlord under the
Second Floor Sublease), and all project costs (other than any costs which are
included as a part of the Completion Obligations), including without limitation
the payment of interest and scheduled principal payments (excluding principal on
the New Bonds and the New Contingent Bonds), taxes (prior to delinquency), all
allowed priority and administrative tax claims due by HJC under the Plan,
amounts owing to the LGCB under the Casino Operating Contract, amounts owing to
the Landlord under the Lease, assessments, utilities, insurance and maintenance
expenses,
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amounts owing from injuries or damages to person or property, or amounts due
pursuant to contracts or agreements; provided that the Completion Guarantors in
no event guarantee payment of the Minimum Payment under and as defined in the
Casino Operating Contract pursuant to this Completion Guarantee.
1.2. In addition to Section 1.1(c) above, the Carry
Obligations shall also include, without limitation:
(a) the obligation of the Company upon the completion of the
Phase I and II Construction to have available for working capital at least Five
Million Dollars ($5,000,000) of cash in the House Bank (as defined in the Casino
Management Agreement) and at least Twenty Five Million Dollars ($25,000,000) of
availability for immediate drawdown(s) under the Revolving Loans pursuant to and
as defined in the Construction Credit Facility, subject to the terms thereof,
reduced by (i) the amount of a letter of credit subfacility not to exceed Two
Million Dollars ($2,000,000), and (ii) a drawing of Ten Million Dollars
($10,000,000) of the Revolving Loans to fund the Minimum Balance (as defined in
the Casino Management Agreement) on or before the completion of Phase I and II
Construction; and
(b) the obligation of the Company to repay the Revolving Loans
upon an event of default under the Revolving Loans together with any and all
amounts of fees, interest, letter of credit fees and other amounts due in
respect of the Revolving Loans prior to the completion of the Phase I and II
Construction.
This provision may require the Completion Guarantors to contribute working
capital directly to the Company and/or to pay down amounts outstanding under the
Revolving Loans.
1.3. The Completion Obligations, the Carry Obligations and the
Preservation Obligations are collectively referred to herein as the
"Obligations."
1.4. The Completion Guarantors, in solido with each other, the
Company, and the Surety agree to perform and comply with their Obligations,
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 or performance thereof in full. The Completion
Guarantors agree that this Completion Guarantee is a guarantee of payment and
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performance and not of collection, and that each of their obligations under this
Completion Guarantee shall be primary, absolute and unconditional, irrespective
of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability, or
any future amendment of, or change in, this Completion Guarantee, or any other
agreement, document or instrument to which the Landlord, the Company and/or the
Completion Guarantors is or are or may become a party;
(b) the absence of any action to enforce this Completion
Guarantee or any other document or the waiver or consent by the Landlord with
respect to any of the provisions thereof;
(c) any release or discharge of either the Surety, the other
Completion Guarantor, the Company or any other party of any Obligations; or
(d) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor;
it being agreed by each Completion Guarantor that its obligations under this
Completion Guarantee shall not be discharged except as set forth in Section 12.3
hereof. Each Completion Guarantor shall be regarded, and shall be in the same
position, as principal debtor with respect to the Obligations.
1.5. Each Completion 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 Landlord to proceed in respect of the
Obligations against the Company, the Surety or any other party or against any
security for the payment and performance of the Obligations before proceeding
against, or as a condition to proceeding against, any Completion Guarantor. Each
Completion Guarantor agrees that any notice or directive given at any time to
the Landlord which is inconsistent with the waiver in the immediately preceding
sentence shall be null and void and may be ignored by the Landlord, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Completion Guarantee for the reason that such pleading or
introduction would be at variance with the written terms of this Completion
Guarantee, unless the Landlord has specifically agreed otherwise in writing.
1.6. The Completion Obligations shall not include any of the
costs which are included as a part of the Carry Obligations.
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1.7. Each Completion Guarantor acknowledges that it has
received copies of and is familiar with the Lease and the GDA, which are
incorporated herein by reference.
1.8. Except as expressly provided in this Completion
Guarantee, in no event shall the Completion Guarantors, as a result of this
Completion Guarantee, incur, directly or indirectly, any obligation, contingent
or otherwise, under the Lease and/or the GDA ("incur" meaning to create, incur,
assume, guarantee or otherwise become liable for).
2. Default Procedures
2.1. If for any reason whatsoever the Company:
(a) fails or neglects, even if the Company is not at fault and
whether intentional or unintentional, timely (as extended by Force Majeure (as
defined in the GDA)) to commence construction within the time set forth in
Section 2.13(a) of the GDA and diligently and expeditiously continue
construction, and complete the Phase I and II Construction or any Component
respectively, within the time period and in the manner specified in the GDA free
of liens arising from the furnishing of labor, materials, supplies, furnishings
or equipment for the Phase I and II Construction, other than Permitted Liens; or
(b) otherwise fails in any other manner to prosecute with
diligence and continuity the Completion Obligations; or
(c) fails timely to pay any of the Carry Obligations; or
(d) shall have filed against it a petition for relief under
any bankruptcy law, or any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
any present or future statute, law or regulation shall be filed against the
Company, and so long as the Completion Guarantors are not otherwise in
default under this Completion Guarantee, in any such event the Company shall
fail to remedy such default to the Landlord's satisfaction within sixty (60)
days after the Company's receipt of a written notice of default with respect
thereto from the Landlord; or
(e) shall be adjudged bankrupt or insolvent, the Company shall
make a general assignment for the benefit of creditors, or the Company shall
admit in writing its inability to pay its debts as they become due, or the
Company shall file a petition for relief under any bankruptcy law, or any
petition seeking any
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reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future statute, law or
regulation shall be filed by the Company, or the Company shall file an answer
admitting or not contesting the material allegations of a petition filed
against it in any such proceeding, or the Company shall seek or consent to or
acquiesce in the appointment of a trustee, liquidator of the Company or a
material part of its properties, or the Company shall voluntarily liquidate
or dissolve;
then in any such event or at any time thereafter, the Landlord may give written
notice to the Completion Guarantors, the Company and the Surety of the
occurrence of such event; provided, that if any of the Completion Guarantors,
the Company or the Surety is the subject of any bankruptcy case, any inability
of the Landlord to give notice to such party as a result of the effect of the
bankruptcy case shall not affect the validity or effectiveness of the notice to
the other parties which are not the subject of any bankruptcy case.
2.2. Immediately upon receipt of such notice, the Completion
Guarantors shall take all necessary steps to maintain insurance coverage and
secure the Development to prevent damage or deterioration to the Development and
unauthorized entry or access to the Development (the "Preservation
Obligations"). If after notice and five (5) Business Days opportunity to cure
after such notice, the Completion Guarantors shall fail to perform the
Preservation Obligations, such failure shall be a "Preservation Obligation
Default".
2.3. Commencing on the date on which the Landlord gives any
such notice to the Completion Guarantors pursuant to Section 2.1 hereof, the
Completion Guarantors, at their sole cost, shall be obligated to cure the
default or defaults alleged to exist in such notice within the applicable cure
period set forth in Section 2.4 hereof. If the alleged default is a failure to
pay one or more Carry Obligations, the Completion Guarantors shall pay the Carry
Obligations then due and thereafter shall pay the Carry Obligations when and as
due. If the alleged default is a failure to perform one or more Completion
Obligations, the Completion Guarantors shall immediately commence to perform the
Completion Obligations and thereafter continue diligently and expeditiously
until the Completion Obligations are fully performed.
2.4. Subject to Section 2.5 hereof, if (i) after notice and
five (5) Business Days opportunity to cure after such notice, the Completion
Guarantors shall fail timely to pay the Carry Obligations (a "Carry
Obligation Default"), or (ii) after notice and thirty (30) days opportunity
to cure after such notice, the
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Completion Guarantors shall fail to commence performing the Completion
Obligations and diligently thereafter continue to perform the Completion
Obligations through the date of Completion (as defined in the GDA) (a
"Completion Obligation Default"), or (iii) a Preservation Obligation Default
shall occur, then in addition to all other rights and remedies that may be
available to the Landlord under the terms of this Completion Guarantee, or
the Lease or the GDA, at law or in equity, the Landlord or its agent, in its
sole discretion, may proceed as follows:
(a) Landlord, at its option, may elect to require specific
performance by the Completion Guarantors of any and/or all of the Completion
Obligations after a Completion Obligation Default, the Carry Obligations after a
Carry Obligation Default and/or the Preservation Obligations after a
Preservation Obligation Default.
(b) After any default by the Company in its obligations timely
to commence and complete the Performance Bond Construction or the Preservation
Obligations, the Landlord, at its option, shall have the right, but shall have
no obligation, to undertake to require the Surety to perform the Performance
Bond Construction or the Preservation Obligations, as the case may be, pursuant
to the Performance Bond. The Landlord's election to require the Surety to
perform the Performance Bond Construction or the Preservation Obligations shall
not release, diminish or extinguish the liability of the Company or either
Completion Guarantor therefor to the extent the Surety fails to perform such
Performance Bond Construction or the Preservation Obligations. The Completion
Guarantors shall remain obligated to perform the Carry Obligations
notwithstanding any such election and notwithstanding the Surety's performance
of the Performance Bond Construction or the Preservation Obligations.
(c) In addition to the Landlord's right to require specific
performance by the Completion Guarantors of any and/or all of the Completion
Obligations after a Completion Obligation Default, the Carry Obligations after a
Carry Obligation Default, and/or the Preservation Obligations after a
Preservation Obligation Default, and whether or not the Landlord shall have
called on the Surety pursuant to the Performance Bond, (i) the Landlord shall
have the right to recover from the Completion Guarantors all unreimbursed costs
and expenses, including but not limited to attorneys' fees, incurred by the
Landlord in protecting, preserving, enforcing or defending its interests in this
Completion Guarantee, (ii) after a Carry Obligation Default, the Completion
Guarantors shall be liable for the joint benefit of the Landlord, the LGCB, the
Administrative Agent, and the New
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Indenture Trustee as their interests may appear for any interest or delinquency
costs of the Company arising from such Carry Obligation Default; provided that
the Completion Guarantors shall not be liable for duplicate payments of the same
charge with respect to any such interest or delinquency costs of the Company
regardless of whether multiple demands are made by any or all of the RDC, the
City, the LGCB, the Administrative Agent, or the New Indenture Trustee, (iii)
after a Completion Obligation Default, the Completion Guarantors shall be liable
for the joint benefit of the Landlord, the LGCB, the Administrative Agent, and
the New Indenture Trustee as their interests may appear for damages to pay for
the costs of performance of the Completion Obligations arising from such
Completion Obligation Default or such other damages as may be available at law
or in equity; provided that, in no event shall the Completion Guarantors be
liable for duplicate payments in respect of damages nor for more than one
performance of the Completion Obligations regardless of whether multiple demands
are made by any or all of the RDC, the City, the New Indenture Trustee, the
Administrative Agent, or the LGCB, and (iv) after a Preservation Obligation
Default, the Completion Guarantors shall be liable for the joint benefit of the
Landlord, the LGCB, the Administrative Agent, and the New Indenture Trustee as
their interests may appear for damages to pay for the costs of performance of
the Preservation Obligations arising from such Preservation Obligation Default;
provided that, in no event shall the Completion Guarantors be liable for
duplicate payments in respect of damages nor for more than one performance of
the Completion Obligations regardless of whether multiple demands are made by
any or all of the RDC, the City, the New Indenture Trustee, the Administrative
Agent, or the LGCB.
(d) With respect to the Obligations, each Completion Guarantor
specifically agrees that this Completion Guarantee continues whether the Company
is lessee under the Lease.
(e) With respect to the Carry Obligations, each Completion
Guarantor specifically agrees that this Completion Guarantee is intended as a
contract to guarantee payment on a timely basis of all amounts included as Carry
Obligations pursuant to Sections 1.1(c) and 1.2 hereof.
(f) No delay or failure by the Landlord to exercise any remedy
against the Completion Guarantors will be construed as a waiver of that right or
remedy.
2.5. The remedies set forth in Sections 2.4 and 7 hereof are
not intended to be exclusive of any remedies that the Landlord may have against
the
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Company under the Lease or the GDA or other documents or agreements referenced
therein or related thereto. The Completion Guarantors recognize that the choice
of remedies by the Landlord will necessarily and properly be a matter of the
Landlord's business judgment, which the passage of time and events may or may
not prove to have been the best choice to maximize recovery by the Landlord at
the lowest cost to the Company or the Completion Guarantors. Nevertheless, the
choice of alternatives by the Landlord shall not be subject to question or
challenge by the Completion Guarantors hereunder, nor shall any such choice be
asserted as a defense, set-off or basis for any claim of failure to mitigate
damages in any action or proceeding arising from this Completion Guarantee.
3. Alteration of Xxxxxxxxxxx.Xx such manner, upon such terms and at
such times as the Landlord deems best, and without notice to either Completion
Guarantor, the Landlord may in accordance with the Lease and the GDA alter,
compromise, accelerate, extend or change the time or manner for the payment or
performance of any of the Lease Obligations (which shall mean any obligations of
the Company under the Lease and GDA or any related documents of the Landlord
executed by the Company concurrently therewith), release the Company as to all
or any portion of the Lease Obligations, release, substitute or add any one or
more guarantors, accept additional or substitute security therefor, or release
or subordinate any security therefor. No exercise or non-exercise of any right
hereby given to the Landlord, no dealing by the Landlord with the Completion
Guarantors or any other guarantor or any other person, and no change, impairment
or release of all or any portion of the Lease Obligations or suspension of any
right or remedy of the Landlord against any person, including without limitation
the Company or any other such guarantor or other person, shall in any way affect
any of the Obligations or any security furnished by the Completion Guarantors or
give the Completion Guarantors any recourse against the Landlord. If the
Landlord has exculpated or hereafter exculpates the Company from personal
liability in whole or in part, said exculpation shall not affect the
Obligations. Each Completion Guarantor further acknowledges that any such
exculpation that has been given or that is hereafter given to the Company has
been given or is given in reliance upon the covenants of the Completion
Guarantors contained herein.
4. Waiver
4.1. The Completion Guarantors, in solido with each other,
represent, warrant and agree that, as of the date of this Completion Guarantee,
their obligations under this Completion Guarantee are not subject to any
recoupment, counterclaims, offsets or defenses against the Landlord or the
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Company of any kind. The Completion Guarantors further in solido with each other
agree that their obligations under this Completion Guarantee shall not be
subject to any counterclaims, offsets or defenses against the Landlord or
against the Company which may arise in the future. Each Completion 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 Landlord to proceed against the
Company, the Surety, or any other person or to proceed against or exhaust any
security held by the Landlord at any time or to pursue any other remedy in the
power of the Landlord before proceeding against either or both of the Completion
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 Landlord against either or both of the Completion Guarantors;
(b) the defense of the statute of limitations, prescription,
and preemption in any action hereunder or in any action for the collection or
performance of any of the Obligations;
(c) any defense that may arise by reason of the discharge in
bankruptcy, incapacity, lack of authority, death or disability of any other
person or the failure of the Landlord to file or enforce a claim against the
estate (in administration, bankruptcy or any other proceeding) of any other
person;
(d) diligence, demand, presentment, protest and notice of any
kind (whether, for non-payment or protest or of acceptance, maturity, extension
of time, change in nature or form of the Lease Obligations, acceptance of
further security, release of further security, composition or agreement arrived
at as to the amount of, or the terms of, the Lease Obligations, notice of
adverse change in the Company's financial condition or any other fact which
might materially increase the risk to the Completion 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 Landlord, any endorser or creditor of the Company or either
Completion 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 Landlord in connection with any of the Lease Obligations;
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(e) any defense based upon an election of remedies by the
Landlord which destroys or otherwise impairs the subrogation rights of the
Completion Guarantors, the right of the Completion Guarantors to proceed against
the Company for reimbursement, or both, or any defense that the Landlord's
claims against the Completion Guarantors are barred or diminished or premature
to the extent that the Landlord 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 Landlord to disclose to the
Completion Guarantors any facts the Landlord may now or hereafter know about the
Company, regardless of whether the Landlord has reason to believe that any such
facts materially increase the risk beyond that which the Completion Guarantors
intend to assume, or has reason to believe that such facts are unknown to either
Completion Guarantor, or has a reasonable opportunity to communicate such facts
to either Completion Guarantor, since each Completion 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
non-payment of any of the Lease Obligations;
(h) waiver or estoppel or any alleged lack of reasonable or
justifiable reliance on the part of the Landlord as to the Completion
Guarantors' representations;
(i) lack, failure or insufficiency of consideration;
(j) any alleged failure of the Landlord to mitigate injuries,
losses or damages or any plea that the Landlord has any duty to mitigate
injuries, losses, or damages prior to seeking recovery under this Completion
Guarantee; and
(k) any defense that the Landlord's claims hereunder are or
may be barred because an adequate remedy at law exists.
4.2. Each Completion Guarantor agrees to forbear from exercise
of any rights of subrogation, indemnity, or contribution against each other, the
Company, the Surety or any other person who may be liable for satisfaction of
the Completion Obligations or the Carry Obligations until such Obligations have
been fully satisfied as to the Landlord.
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4.3. In the event of the commencement of a bankruptcy case by
or against any Completion Guarantor,
(a) each Completion 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 Landlord's ex parte motion, granting to
the Landlord 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 Completion Guarantee, the Completion 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.
(b) whether or not the Company shall have defaulted in its
obligations to complete the Phase I and II Construction, the Landlord shall have
an allowable claim against such Completion Guarantor in an amount equal to the
then estimated amount necessary to pay for the Completion of the Phase I and II
Construction, and the Preservation Obligations and any Carry Obligations through
the then estimated date of completion of the Phase I and II Construction. Any
amounts paid on such claim shall be paid for the joint benefit of the Landlord,
the LGCB, the Administrative Agent, and the New Indenture Trustee as their
interests may appear and shall be used solely to complete, and pay any costs in
connection with the Completion Obligations, the Preservation Obligations, and
any Carry Obligations prior to such completion of, the Phase I and II
Construction. Upon completion of the Phase I and II Construction and the payment
of all costs, liens and claims related thereto, any unused portion of such
amounts paid in respect of any claim under this Section 4.3(b) shall be promptly
reimbursed to such Completion Guarantor. The Company shall be obligated to
promptly reimburse such Completion Guarantor for any such amounts paid by and
not previously reimbursed to such Completion Guarantor under this Section
4.3(b).
5. Subordination. All existing and future indebtedness of the Company
to either Completion Guarantor is hereby subordinated in accordance with this
Section 5 to all of the Lease Obligations. Without the prior written consent of
the Landlord, during any period in which there is a payment default under the
Lease or the GDA such subordinated indebtedness shall not be paid or withdrawn
in whole or in part, nor shall either Completion Guarantor accept any payment of
or on account of any such indebtedness or as a withdrawal of capital while this
Completion Guarantee is in effect. Any such payment by the Company in violation
of this Completion Guarantee shall be received by the Completion Guarantors in
trust for the Landlord, and the Completion Guarantors shall cause
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the same to be paid to the Landlord immediately upon demand by the Landlord on
account of the Lease Obligations.
6. Bankruptcy
6.1. So long as any Obligations are owed to the Landlord, no
Completion Guarantor shall, without the prior written consent of the Landlord
commence, or join with any other person in commencing, any bankruptcy,
reorganization or insolvency proceeding against the Company. Subject to Section
12 hereof, the Obligations 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.
6.2. So long as any Obligations are owed to the Landlord,
(a) each Completion Guarantor shall file, in any bankruptcy or
other proceeding in which the filing of claims is required or permitted by law,
all claims which such Completion Guarantor may have against the Company relating
to any indebtedness of the Company to such Completion Guarantor, and hereby
assigns to the Landlord all rights of such Completion Guarantor thereunder as
security for performance of the Obligations jointly with such assignment to the
LGCB under that certain LGCB Completion Guarantee between the Completion
Guarantors and the LGCB of even date herewith (the "LGCB Completion Guarantee"),
to the Administrative Agent under that certain Bank Completion Guarantee between
the Completion Guarantors and the Administrative Agent of even date herewith
(the "Bank Completion Guarantee"), and to the New Indenture Trustee under that
certain Notes Completion Guarantee between the Completion Guarantors and the New
Indenture Trustee of even date herewith (the "Notes Completion Guarantee").
(b) if either Completion Guarantor does not file any such
claim, the Landlord, as attorney-in-fact for such Completion Guarantor, is
hereby authorized to do so in the name of such Completion Guarantor jointly with
such authorization to the LGCB under the LGCB Completion Guarantee, to the
Administrative Agent under the Bank Completion Guarantee, and to the New
Indenture Trustee under the Notes Completion Guarantee, or, in the Landlord's,
the LGCB's, the Administrative Agent's, and the New Indenture Trustee's joint
discretion, to assign the claim to a joint nominee and to cause proofs of claim
to
14
be filed in the name of such joint nominee as security for performance of the
Obligations. The foregoing power of attorney is coupled with an interest and
cannot be revoked.
(c) the Landlord, jointly with the LGCB under the LGCB
Completion Guarantee, the Administrative Agent under the Bank Completion
Guarantee and the New Indenture Trustee under the Notes Completion Guarantee, or
a joint nominee, as the case may be, shall have the right to accept or reject
any plan proposed in any such proceeding and to take any other action which a
party filing a claim is entitled to take. Any exercise or non-exercise of any
such right (i) by the Landlord under this Section 6.2(c), (ii) by LGCB under
Section 6.2(c) of the LGCB Completion Guarantee, (iii) by the Administrative
Agent under Section 6.2(c) of the Bank Completion Guarantee, and (iv) by the New
Indenture Trustee under Section 6.2(c) of the Notes Completion Guarantee, shall
not impair or diminish the Completion Guarantors' obligations under this
Completion Guarantee. In all such cases, whether in administration, bankruptcy
or otherwise, the person authorized to pay such a claim shall pay the same to
the Landlord, the LGCB under the LGCB Completion Guarantee, the Administrative
Agent under the Bank Completion Guarantee and the New Indenture Trustee under
the Notes Completion Guarantee, as their interests may appear, as security for
performance of the Obligations, and, to the full extent necessary for that
purpose, each Completion Guarantor hereby assigns to the Landlord jointly with
such assignment to the LGCB under the LGCB Completion Guarantee, to the
Administrative Agent under the Bank Completion Guarantee and to the New
Indenture Trustee under the Notes Completion Guarantee all of such Completion
Guarantor's rights to all such payments or distributions to which such
Completion Guarantor would otherwise be entitled.
6.3. This Completion Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company or any Completion Guarantor for liquidation or reorganization,
should the Company or any Completion 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 Completion
Guarantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount or
must otherwise be restored or returned by the Landlord, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance
15
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
6.4. In the event that the Company is allowed any extension of
time in connection with any proceeding, voluntary or involuntary, involving the
bankruptcy, reorganization, insolvency, receivership, liquidation or arrangement
of the Company, to cure any default relating to the Phase I and II Construction,
such extension shall not extend the time by which the Completion Guarantors are
required to cause the completion of the Phase I and II Construction or otherwise
perform their obligations under this Agreement in accordance with the provisions
of this Agreement.
7. Interest, Costs and Attorneys' Fees
7.1. If the Completion Guarantors fail to pay all or any
portion of any monetary amounts due as a part of the Obligations upon notice or
demand by the Landlord, the amount of such monetary portion of the Obligations
and all other sums payable by the Completion Guarantors to the Landlord
hereunder shall bear interest from the date of such notice or demand, as the
case may be, at the legal rate for judgments under Louisiana law.
7.2. If, at any time following a default by the Company in the
performance of the Obligations which default entitles the Landlord to require
performance hereunder (whether or not notice is actually given pursuant to
Section 2.1), the Landlord refers this Completion Guarantee to an attorney to
enforce, construe, or defend any provision hereof, or as a consequence of any
default hereunder by the Completion Guarantors, the Landlord shall employ
counsel for advice or representation or shall incur legal or other costs and
expenses, with or without the filing of any legal action or proceeding, in
connection with:
(a) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by the Landlord, the Company, the Completion
Guarantors or any other person) in any way relating to the enforcement of rights
or remedies under this Completion Guarantee;
(b) any attempt to enforce any rights of the Landlord
hereunder against the Completion Guarantors or any other person;
16
(c) any attempt to defend any provision hereof; or
(d) the Performance Bond;
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 Completion Guarantors to the Landlord or the
Completion Guarantors shall cause the Company to make such payment, and if not
so paid, shall be additional Obligations under this Completion Guarantee;
provided that upon any engagement of counsel (i) following a default by the
Company in the performance of the Obligations and (ii) prior to the date on
which the Landlord gives written notice pursuant to Section 2.1 (the "Notice
Date"), the Landlord shall make demand on the Company for any expenses of such
counsel incurred prior to the Notice Date and such expenses shall only become an
Obligation under this Completion Guarantee if the Company shall fail timely to
pay such expenses.
The reference to "attorneys' fees" in this Section 7.2 and in all other places
in this Completion Guarantee shall include without limitation such reasonable
amounts as may then be charged for costs and expenses of legal services
furnished by attorneys retained or employed by the Landlord. Such attorneys'
fees 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 Completion Guarantor which in any way affect the exercise by the Landlord
of its rights and remedies hereunder.
8. Cumulative Rights. All rights, powers and remedies of the Landlord
hereunder and under any other agreement now or at any time hereafter in force
between the Landlord and the Completion Guarantors, including without limitation
any other guarantee executed by either Completion 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 Landlord by law and shall not be deemed in any way to
extinguish or diminish Landlord's rights and remedies. This Completion Guarantee
is in addition to and independent of the guarantee of any guarantor of any Lease
Obligations or other indebtedness of the Company.
17
9. Independent Obligations. The Obligations are independent of the
Lease Obligations, and, in the event of any default hereunder, a separate action
or actions may be brought and prosecuted against either Completion Guarantor,
whether or not the Company is joined therein or a separate action or actions are
brought against the Company. The Landlord'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 Obligations have
been satisfied and fully performed.
10. Application of Payments or Recoveries. Subject to the applicable
provisions of this Completion Guarantee and the terms of the Lease and the GDA,
with or without notice to either Completion Guarantor, the Landlord, in its sole
discretion, at any time and from time to time, and in such manner and upon such
terms as the Landlord deems fit, may apply any or all payments or recoveries
from the Company or from any other guarantor or endorser under any other
instrument, in such manner and order of priority as the Landlord may determine,
to any of the Lease Obligations, whether or not such indebtedness is due at the
time of such application.
11. Financial Statements. The Completion Guarantors hereby represent
and warrant that the information pertaining to the Completion 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 Completion 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 Completion
Guarantors since the date of the latest information provided therein.
12. Suspension of or Excuse From Performance
12.1. Notwithstanding anything to the contrary in this
Completion Guarantee, if, at any time, there shall occur a Force Majeure (as
defined in the GDA) with respect to the Completion Obligations, then the
Completion Obligations (but not the Carry Obligations) shall be suspended (the
"Suspension") until such time as such Force Majeure ends. During the period
following any date of Suspension and until the end of such Suspension, the
Completion Guarantors shall each use their best efforts to remove such Force
Majeure.
12.2. The Completion Guarantors hereby agree that any
proceeding under any Chapter of the Bankruptcy Code, in receivership, or any
other
18
insolvency proceeding, whether voluntary or involuntary, by or against the
Company and/or any Completion Guarantor or any surety under any bond shall not
be considered, nor constitute Force Majeure nor otherwise excuse or suspend
performance of the Obligations. The Completion Guarantors further agree that (i)
any increase in the costs to complete (including equipping) the Casino, whether
or not such increase in costs was anticipated and/or contemplated in the
Approved Program Plans, GDA and/or otherwise, (ii) the financial condition or
financial inability of the Company and/or any Completion Guarantor to complete
(including equipping) the Casino, (iii) any other adverse financial projections,
financial forecasts, financial events or financial conditions, or (iv) any
failure to obtain funding or financing, shall not be considered, nor constitute
Force Majeure.
12.3. The Obligations shall terminate upon the occurrence of
any of the following: (i) the termination of the Lease or the GDA by the
Company, RDC or the City other than as a result of (a) the fault of or a breach
or default by the Company or any Completion Guarantor or (b) the voluntary
termination of the Lease or the GDA by the Company, (ii) Casino Gaming
Operations shall no longer be permitted to be conducted at the Casino or shall
be modified, restricted or limited in a manner that materially diminishes the
benefits afforded to Company or the gaming activities permitted to be conducted
at the Casino pursuant to the Act by reason of a change of law or the enactment
of a new law after the Effective Date (as defined in the Plan) or by reason of
the Company's rights under the Casino Operating Contract having been terminated
in any material respect, other than as a result of the fault of or a breach or
default by the Company or any Completion Guarantor, subject to Section 12.4
hereof, (iii) only as to the Carry Obligations but not as to the Completion
Obligations or the Preservation Obligations, a Force Majeure shall have
continued for more than one (1) year from the first to occur of a receipt of a
notice from Landlord to the Completion Guarantors pursuant to Section 2.1 hereof
or a similar notice to the Completion Guarantors from the LGCB, the
Administrative Agent or the New Indenture Trustee (provided that the Completion
Guarantors shall have complied with the notice requirements of the last sentence
of Section 14 hereof in respect of any notices received under Section 2.1
hereof) notwithstanding the Completion Guarantors' actual and continuous best
efforts to remove such Force Majeure; provided, however, that the Completion
Guarantors shall remain liable for all Carry Obligations that actually came due
through the expiration of such one (1) year period to the extent not satisfied
by the Company, and, provided further, that the Completion Guarantors shall have
used their best efforts to remove such Force Majeure within said one (1) year
period, or (iv) as to the Carry Obligations, as of
19
and upon the completion of the Phase I and Phase II Construction in accordance
with Section 2.13(a) of the GDA and as to the Completion Obligations, upon the
Completion Obligation Termination Date.
12.4. Upon the occurrence of any of the events described in
Section 12.3(ii) hereof prior to the occurrence of the completion of the Phase I
and II Construction, the Completion Guarantors shall nevertheless be obligated
to complete the Poydras Street Support Facility Premises, the Poydras Tunnel
Area, exterior site and street work, and any improvements required to be made to
the Leased Premises so that it may be used for any Highest and Best Use as
required by Section 4.20 of the Lease.
12.5. Delays caused by the failure of the Company, its
contractor(s), architect(s), consultants or subcontractors to furnish in a
timely manner approved working or shop drawings, materials, fixtures, equipment,
appliances or other fittings or to perform their work in a timely manner shall
not constitute a basis of extension of time, except to the extent caused by an
event of Force Majeure that would allow an extension of time under this
Completion Guarantee and the GDA.
12.6. The Completion Guarantors shall have a concurrent right
with the Company to give notice to the City and the RDC of any Force Majeure as
provided in Section 12 of the GDA.
12.7. Other than as set forth in this Completion Guarantee and
without waiver of the terms and conditions of this Completion Guarantee,
including, without limitation, terms and conditions of this Section 12, or the
terms and conditions of the definition of "Force Majeure" set forth in the GDA,
the Company and the Completion Guarantors waive their rights pursuant to
Articles 1873-1878 and 3506(15) of the Louisiana Civil Code, and, without
limitation, any right to claim excuse from performance or delay of performance
due to impossibility of performance of the Completion Obligations, irresistible
force or a fortuitous event.
13. Completion Obligation Termination Date and Satisfaction of Claims
and Liens
13.1. Notwithstanding the completion of Phase I and II
Construction, the Completion Guarantors shall continue to be obligated for
payment or making satisfactory provisions for payment as they become due of all
costs of completing the Phase I and II Construction and for all materialmen's
claims, mechanics' liens
20
or other claims, liens or claims for liens arising from the furnishing of labor,
materials, supplies or equipment for the Phase I and II Construction. The date
after the Opening Date on which all such payments or satisfactory provisions for
all such payments have been made, all lien periods with respect to the Phase I
and II Construction have expired and no liens or privileges arising from the
furnishing of labor, materials, supplies or equipment for the Phase I and II
Construction affecting or purporting to affect the Leased Premises remain of
record in Orleans Parish is herein referred to as the "Completion Obligation
Termination Date".
13.2. For purposes of this Completion Guarantee, in respect of
any Completion Obligations or Carry Obligations not satisfied as of the
completion of the Phase I and II Construction in accordance with Section 2.13(a)
of the GDA, satisfactory provision for payment of claims, liens and claims for
liens shall be deemed to have been made if (a) in respect of any liens or claims
for liens but not non-lien claims, a bond has been established in accordance
with the terms of LSA R.S. 9:4801 et seq., (b) in respect of non-lien claims but
not liens or claims for liens, an escrow, letter of credit or trust account for
payment has been established in an amount at least equal to one hundred five
percent (105%) of the total of such outstanding non-lien claims with or by an
independent third party, (c) in respect of any non-lien claims, the total of
such outstanding non-lien claims has been guaranteed under a payment guarantee
from a party other than either Completion Guarantor (or any affiliate thereof)
rated as an investment grade credit by a nationally recognized credit rating
agency, or (d) other provision has been made satisfactory to Landlord.
14. Notices. Whenever the Completion Guarantors or the Landlord shall
desire to give or serve any notice, demand, request or other communication with
respect to this Completion Guarantee, each such notice shall be in writing and
shall be effective only if the same is delivered by personal service, by
overnight courier service, or mailed by certified mail, postage prepaid, return
receipt requested, addressed as follows:
(a) if to either Completion Guarantor:
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Attn: General Counsel
21
(b) if to the Company:
Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Attn: President
(c) if to the Surety:
Reliance Insurance Company
Four Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Claims Department
and
United States Fidelity and Guaranty Company
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Claims Department
(d) if to the Landlord, as provided in the Lease;
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 given when
delivered by hand or four (4) business days after mailing. Any of the Completion
Guarantors, the Company, the Surety or the Landlord may change its address by
giving the others written notice of the new address as herein provided.
Any notice given or received by any Completion Guarantor to or
from the LGCB under the LGCB Completion Guarantee, to or from the Administrative
Agent under the Bank Completion Guarantee or to or from the New Indenture
Trustee under the Notes Completion Guarantee shall be immediately forwarded by
such Completion Guarantor to the Landlord at the address set forth above.
15. Successors and Assigns. This Completion Guarantee shall inure to
the benefit of the Landlord, its successors and assigns, including the assignees
of any Obligations, and shall bind the heirs, executors, administrators,
personal
22
representatives, successors and assigns of each Completion Guarantor. This
Completion Guarantee may be assigned by the Landlord, in its sole discretion,
with respect to all or any portion of the Obligations, and when so assigned
Completion Guarantors shall be liable to the assignees under this Completion
Guarantee without in any manner affecting the liability of the Completion
Guarantors with respect to any Obligations retained by the Landlord. Neither
Completion Guarantor may assign or transfer any of its rights, obligations or
interest hereunder without the prior written consent of the Landlord.
16. Miscellaneous Provisions
16.1. THIS COMPLETION GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF LOUISIANA. EACH
COMPLETION GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF LOUISIANA AND CONSENTS TO SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY
LOUISIANA LAW IN ANY ACTION BROUGHT UNDER OR ARISING FROM THIS COMPLETION
GUARANTEE.
16.2. This Completion Guarantee shall constitute the entire
agreement of the Completion Guarantors with Landlord with respect to the subject
matter hereof, and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon Landlord unless
expressed herein.
16.3. Should any term, covenant, condition or provision of
this Completion Guarantee 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.
16.4. Time is of the essence to this Completion Guarantee and
each of its provisions.
16.5. 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.
23
16.6. 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.
16.7. No provision of this Completion Guarantee or right
granted to the Landlord hereunder can be waived in whole or in part, nor can
either Completion Guarantor be released from such Obligations, except by a
writing duly executed by an authorized officer of the Landlord. No provision of
this Completion Guarantee or any of the Obligations may be amended without the
prior written consent of the Completion Guarantors and the Landlord and the
consent of any additional beneficiaries hereof shall not be required.
16.8. The Landlord need not inquire into the power of the
Company or the authority of their officers, shareholders or agents acting or
purporting to act on their behalf.
16.9. The headings of this Completion Guarantee are inserted
for convenience only and shall have no effect upon the construction or
interpretation thereof.
16.10. This Completion Guarantee shall be for the sole benefit
of the Landlord, its successors and assigns. The provisions of this Completion
Guarantee shall not inure to the benefit of any other person, including, without
limitation, the Company.
16.11. Notwithstanding the foregoing, in the event that the
Completion Guarantors, or either of them, shall enter into the Notes Completion
Guarantee, the Bank Completion Guarantee or the LGCB Completion Guarantee, or
any supplemental agreement with respect thereto and such Notes Completion
Guarantee, Bank Completion Guarantee, or LGCB Completion Guarantee or amendment
or supplement thereto or the obligations created thereby provides rights or
remedies to the New Indenture Trustee, the Administrative Agent or the LGCB that
are more favorable in any respect than the rights and remedies granted to the
Landlord hereunder (as this Completion Guarantee may from time to time be
amended), the Landlord shall be deemed to have available to it, at its option,
the benefit of the more favorable rights and remedies implemented by such Notes
Completion Guarantee, Bank Completion Guarantee, or LGCB Completion Guarantee or
amendment or supplemental agreement and shall not under any circumstances be
deemed to have agreed to or become subject to any alterations in the Notes
Completion Guarantee, the Bank Completion Guarantee or the LGCB
24
Completion Guarantee, or any provisions of a supplemental agreement among the
Completion Guarantors, the New Indenture Trustee, the Administrative Agent,
and/or the LGCB, that are less favorable than the rights and remedies granted to
the Landlord hereunder.
17. Obligations of Surety. Notwithstanding anything to the contrary in
Sections 1.1 or 1.4 or any other provision hereof, nothing herein shall expand,
enlarge or otherwise modify the obligations of the Surety pursuant to the
Performance Bond.
18. Effectiveness. This Completion Guarantee shall be effective as of
the date this Completion Guarantee is executed and delivered by the parties
hereto and the Effective Date (as defined in the Plan) has occurred.
[SIGNATURE PAGE FOLLOWS]
25
IN WITNESS WHEREOF, the undersigned have each executed this
Completion Guarantee as of the date first above written.
COMPLETION GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
---------------------------
XXXXXX'X OPERATING COMPANY,
INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
---------------------------
Accepted and Agreed:
RIVERGATE DEVELOPMENT CORPORATION
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
THE CITY OF NEW ORLEANS
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
SIGNATURE PAGE TO CITY/RDC COMPLETION GUARANTEE
IN WITNESS WHEREOF, the undersigned have each executed this
Completion Guarantee as of the date first above written.
COMPLETION GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
XXXXXX'X OPERATING COMPANY,
INC., a Delaware corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Accepted and Agreed:
RIVERGATE DEVELOPMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Title: Vice-President
--------------------------
THE CITY OF NEW ORLEANS
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
SIGNATURE PAGE TO CITY/RDC COMPLETION GUARANTEE
IN WITNESS WHEREOF, the undersigned have each executed this
Completion Guarantee as of the date first above written.
COMPLETION GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
XXXXXX'X OPERATING COMPANY,
INC., a Delaware corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Accepted and Agreed:
RIVERGATE DEVELOPMENT CORPORATION
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
THE CITY OF NEW ORLEANS
By: /s/ Xxxx X. Morial
--------------------------
Name: Xxxx X. Morial
--------------------------
Title: Mayor
--------------------------
SIGNATURE PAGE TO CITY/RDC COMPLETION GUARANTEE
