ASSIGNMENT OF CONTRACTS AND ANCILLARY RIGHTS
THIS ASSIGNMENT OF CONTRACTS AND ANCILLARY RIGHTS (this
"Assignment") is made as of this 30th day of October, 1998 by JAZZ CASINO
COMPANY, L.L.C., a Louisiana limited liability company (the "Assignor") in favor
of XXXXXX'X OPERATING COMPANY, INC., a Delaware corporation, and XXXXXX'X
ENTERTAINMENT, INC., a Delaware corporation (together, the "Assignees").
RECITALS
A. The Assignees have agreed to guarantee performance by the Assignor
of certain obligations to construct a casino facility in the City of New
Orleans, which guarantees, together with any substitutions and replacements
thereof or modifications thereto, are hereinafter referred to as the "Completion
Guarantees".
B. The obligations of the Assignor to the Assignees in connection with
the Completion Guarantees (together with certain other obligations) are
evidenced by that certain Amended and Restated Completion Loan Agreement among
the Assignor and the Assignees, dated of even date herewith (the "Completion
Loan Agreement").
C. It is a condition precedent to the willingness of the Assignees to
agree to the Completion Guarantees that, among other things, the Assignor shall
have executed and delivered to the Assignees this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of willingness of the
Assignees to agree to the Completion Guarantees and the mutual premises and
agreements contained herein and described in the Completion Loan Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Assignor and the Assignees hereby agree that:
1. Assignment. For the purpose of performing demolition and
construction obligations of the Assignor under the General Development Agreement
(as defined in the Completion Loan Agreement) for the Casino (as defined in the
Completion Loan Agreement) and the Completion Guarantees, the Assignor hereby
assigns, sets over, transfers and delivers to the Assignees all of the
Assignor's right, title and interest in and to the following items of property
(collectively, the "Property"):
(a) any and all contracts and agreements executed by the
Assignor relating to the design, construction, development, financing,
equipping, or opening of the Casino described on Exhibit "I" attached hereto and
by this reference incorporated herein, collectively, as heretofore or hereafter
modified, amended or supplemented, the "Contracts"), including any and
all rights to receive and demand payments or to receive and compel performance
under the Contracts and any rights to terminate the Contracts;
(b) any and all permits, consents, licenses and other
governmental or other authorizations or approvals now or hereafter issued
relating to the Contracts but specifically excluding the Casino Operating
Contract (as defined in the Completion Loan Agreement);
(c) all lien payment bonds and performance bonds for the
Casino and all proceeds thereof;
(d) all plans and specifications for the Casino;
(e) all policies of insurance for the Casino;
(f) all revenues from the Casino, excluding the Minimum
Payment and the State's Interest in Daily Collections (each as defined in the
Casino Operating Contract); and
(g) any and all causes of action, claims, rights or demands in
favor of the Assignor arising out of or based upon the Contracts or the Casino,
whether now existing or hereafter arising.
2. License Back. Notwithstanding the assignment contained in Section 1
hereof, the Assignees hereby grant to the Assignor a license of all of the
rights conveyed by the Assignor to the Assignees pursuant to Section 1 hereof,
specifically excepting the rights, other than in the ordinary course of
business, prior to the occurrence of a Flip Event (as defined in the Restated
Certificate of Incorporation of JCC Holding Company as of the date hereof) or
after the occurrence of a Cure Event (as defined in the Restated Certificate of
Incorporation of JCC Holding Company as of the date hereof) in respect of any
uncured Flip Events, to (a) waive or release any person or entity from the
observance or performance of any obligation to be performed under the terms of
any of the Contracts or other Property, (b) waive or release any person or
entity from liabilities arising out of the Contracts or other Property,
including, without limitation, liabilities based upon any warranty given in any
of the Contracts or other Property, or (c) terminate any of the Contracts or
other Property. Such license from the Assignees to the Assignor is based on the
Assignor's skills, experience, and expertise in casino development, is personal
to the Assignor and may not be assigned by the Assignor to any trustee or
successor of the Assignor.
3. Substitution in Contracts. The license conveyed by the Assignees to
the Assignor pursuant to Section 2 hereof shall be revocable as to any one or
more of the assigned Contracts by and at the option of the Assignees by the
giving of one or more notices to the Assignor (such event being hereinafter
referred to as a "Revocation Event"), and upon the giving of such notice, as to
any such Contracts to which notice has been given:
(a) the Assignees shall become the owner of the Property with
the full power and authority to exercise all rights, privileges and powers of
the Assignor under the Property;
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(b) the Assignees shall have the power in place of the
Assignor to receive all income and performance due under such Contracts and with
respect to the other Property, including, without limitation, the right to seek
payment or performance under any lien payment bonds, performance bonds, or both;
(c) the Assignees shall automatically become substituted and
subrogated in and to all of the rights, actions, liens, privileges, and causes
of action the Assignor has or enjoys or may have or enjoy under or with respect
to such Contracts and with respect to the other Property;
(d) the Assignees shall automatically have the right in place
of the Assignor to make any requests, give any notices, or take any actions with
respect to any disbursements of funds in respect of the Term Loans, the
Revolving Loan, the New Bonds and the New Contingent Bonds , the Subordinated
Loan, and the Convertible Junior Subordinated Debentures (each as defined in the
Completion Loan Agreement);
(e) the Assignees shall have the right in place of the
Assignor to pursue, receive and administer any proceeds thereof, settle or take
any action in respect of any construction related insurance and surety bond
claims;
(f) the Assignees shall have the right in place of the
Assignor to exercise any rights of termination in any of such Contracts; and
(g) the Assignees shall have the right in place of the
Assignor to pursue, receive and administer any proceeds thereof, settle or take
any action in respect of any condemnation claims relating to the Casino.
4. Notification of Contracting Parties; Performance In Favor of
Assignees. Following the occurrence of a Revocation Event, the Assignees may
notify the parties to the Contracts and other Property (other than the Assignor)
or any other third party obligor, defendant or other party which may owe payment
or performance to the Assignor under any judgment, settlement, claim, suit,
obligation, liability or other amount, whether or not reduced to judgment: (i)
of the existence of this Assignment; and (ii) that any payments or performance
due and owing to the Assignor by such parties, obligor, defendant or other party
relating to the Property should be made to the Assignees. Upon receipt of
written notice from the Assignees as aforesaid, the parties to the Contracts and
other Property (other than the Assignor) are hereby expressly and irrevocably
authorized and directed to pay any and all amounts and perform any duties,
liabilities or obligations due to the Assignor pursuant to any of the Contracts
or other Property, to and for the Assignees or such nominee as the Assignees may
designate in such notice. Each of the parties to the Contracts or other Property
shall have no duty to inquire or investigate as to whether the Assignees have
revoked the license or whether the Assignor is the rightful owner, and no such
party shall be liable to the Assignor or its successors and assigns for acting
on the Assignees' notification as provided in this Section 4.
5. Non-Liability of Assignees. Acceptance by the Assignees of this
Assignment shall not bind the Assignees, their respective agents, employees,
successors, or assigns to
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perform or carry out any of the obligations of the Assignor under any of the
Contracts or other Property and the Assignees do not assume any of the
liabilities in connection with or arising or growing out of the covenants and
agreements of the Assignor under any of the Contracts or other Property.
6. Representations, Warranties and Covenants. The Assignor hereby
represents, warrants, covenants and agrees as follows:
(a) The Assignor shall execute, whenever requested by the
Assignees, whatever statements, documents or instruments may be deemed necessary
or advisable by the Assignees to perfect or evidence this Assignment or the
revocation of the license. Any such statements, documents or instruments shall
be in such form and contain such information as the Assignees, in their sole
discretion, deems necessary or desirable in order to afford full and complete
evidence and notice of the assignment of the Property or the revocation of the
license, as the case may be.
(b) The Assignor is the sole owner of the Property, and,
except for liens in favor of the holder of the State Guarantor First Mortgage,
the lenders of the Term Loans and Revolving Loan, the trustee of the New Bonds
and New Contingent Bonds, the Assignees and any lenders who have subordinated
their lien and interest to the rights of the Assignees hereunder pursuant to a
subordination agreement satisfactory to the Assignees, it has not, and in the
future will not have, executed any other assignment or any collateral
assignment, security agreement or pledge or otherwise sold, collaterally
assigned or created a security interest in any of the Property (or any part
thereof), and it has not and shall not perform any act or execute any other
instruments that might prevent the Assignees from fully exercising its rights
under any of the terms, covenants and conditions of this Assignment.
(c) The Contracts and other Property are valid and enforceable
in accordance with their terms and have not been altered, modified, amended,
terminated, or renewed, nor have any of the terms and conditions thereof been
waived in any manner whatsoever, except as disclosed to the Assignees in
writing.
(d) To the best of its knowledge, there are no defaults now
existing under any of the Contracts or other Property and there exists no state
or facts which, with the giving of notice or lapse of time or both, would
constitute a default under any of the Contracts or other Property, and the
Assignor will fulfill, perform, and observe each and every material condition
and covenant of each of the Contracts and other Property to be fulfilled,
performed or observed by the Assignor. The Assignor will give prompt notice to
the Assignees of any notice or claim of default under any of the Contracts and
other Property given to the Assignor, or given by the Assignor, together with a
complete copy of the notice or claim of default and a written explanation of the
alleged basis therefore.
(e) Until any revocation of the license back to the Assignor,
the Assignor will, at its sole cost and expense, enforce the performance and
observance of each and every covenant and condition in each of the Contracts and
other Property to be performed or observed.
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(f) Both prior and subsequent to any revocation of the license
back to the Assignor, the Assignor, at its sole cost and expense, will appear in
and defend any litigation growing out of or in any manner connected with any of
the Contracts and other Property or with respect to any of the obligations and
liabilities of the Assignor thereunder.
7. No Waiver of Secured Obligations. The Assignor shall remain liable
to the Assignees for payment and performance of all obligations under the
Completion Loan Agreement and shall pay and perform the same immediately, to the
Assignees notwithstanding this Assignment by the Assignor to the Assignees.
8. Performance of Assignor's Obligations Under the Contracts and Other
Property. Upon any revocation of the license back to the Assignor, the Assignees
may, at their option, perform any term, condition or covenant of any of the
Contracts and other Property for and on behalf of the Assignor and may act on
behalf of the Assignor in seeking any consents, assignments, approvals or
modifications of the Casino Operating Contract from the LGCB, and any monies
expended in so doing any of the aforesaid shall be chargeable to the Assignor as
an amount advanced pursuant to the Completion Loan Agreement; however, the
Assignor agrees that this Assignment shall not obligate the Assignees, their
respective agents, employees, successors and assigns to perform of any of the
terms and conditions of any of the Contracts and other Property or to perform or
discharge of any obligations of the Assignor under any of the Contracts or other
Property.
9. Notices. Any notice or communication required or permitted to be
given hereunder shall be given in writing, sent by (a) personal delivery, (b)
expedited delivery service with proof of delivery, (c) registered or certified
United States mail, postage prepaid, or (d) telegram, telex, or facsimile
transmission addressed to the appropriate party as follows:
To Assignor: Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: President
To Assignees: Xxxxxx'x Entertainment, Inc.
Xxxxxx'x Operating Company, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to the Corporate Secretary
at the same address
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or to such other address or facsimile number or to the attention of such other
individual as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of telegram, telex or
facsimile, upon receipt.
10. No Waiver. Neither the Assignees' acceptance of partial or
delinquent payment nor any forbearance, failure or delay by the Assignees in
exercising any right, power or remedy hereunder shall be deemed a waiver of any
obligation of the Assignor or of any right, power or remedy of the Assignees or
preclude any other or further exercise thereof; and no single or partial
exercise of any right, power or remedy hereunder shall preclude any other or
further exercise thereof, or the exercise of any other right, power or remedy.
11. Severability. If any provision of this Assignment is rendered or
declared invalid, illegal or unenforceable by reason of any existing or
subsequently enacted legislation or by a judicial decision which shall have
become final or by lack of authorization or authority of the Assignees, all of
the remaining provisions shall remain in full force and effect.
12. Titles of Articles and Sections. All titles or headings to
articles, sections or other divisions of this Assignment are only for the
convenience of the parties and shall not be construed to have any effect or
meaning with respect to the content of such articles, sections or other
divisions, such content being controlling as to the agreement between the
parties hereto.
13. Choice of Law. This Assignment shall be governed by and construed
in accordance with the internal laws of the State of Louisiana.
14. Counterparts. This Assignment may be separately executed in any
number of counterparts, all of which when so executed shall be deemed to
constitute one and the same Assignment.
15. No Third Party Rights. This Assignment is for the sole and
exclusive benefit of the parties hereto designated herein and no other person or
entity (including any creditors of the parties hereto) shall under any
circumstances be deemed to be a beneficiary of any of the rights, remedies,
terms and provisions of this Assignment.
16. Voluntary Agreement. Each party hereto has entered into this
Assignment freely and voluntarily, without coercion, duress, distress, or undue
influence by any other persons or their respective shareholders, directors,
officers, partners, agents or employees.
17. Advice From Counsel. Each party hereto understands that this
Assignment may affect legal rights. Each party hereto represents to the other
that it has received legal advice from counsel of its choice in connection with
the negotiation and execution of this Assignment and is satisfied with its legal
counsel and the advice received from it.
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18. Judicial Interpretation. Should any provision of this Assignment
require judicial interpretation or construction, there shall be no presumption
that the terms hereof shall be more strictly construed or interpreted against
any party hereto by reason of the rule of construction that a document is to be
construed more strictly against the party hereto who prepared the same.
19. Attorneys' Fees. If any party hereto brings any judicial action or
proceeding to enforce its rights under this Assignment, the prevailing party
shall be entitled, in addition to any other remedy, to recover from the others,
regardless of whether such action or proceeding is prosecuted to judgment, all
costs and expenses, including without limitation reasonable attorneys' fees,
incurred therein by the prevailing party.
20. Termination. This Assignment and the license conveyed hereby shall
terminate only upon the termination and release of the Completion Guarantees.
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be executed on the day and year first above written.
Assignor: JAZZ CASINO COMPANY, L.L.C., a
Louisiana limited liability
company,
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
---------------------------------
Title: President
---------------------------------
Assignees: XXXXXX'X OPERATING COMPANY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, XX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx, XX
---------------------------------
Title: Vice President
---------------------------------
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, XX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx, XX
---------------------------------
Title: Vice President
---------------------------------
ACKNOWLEDGMENT
STATE OF LOUISIANA
COUNTY/PARISH OF ORLEANS
BEFORE ME, the undersigned authority, on this day personally
appeared Xxxx X. Xxxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument, and known to me to be the President of JAZZ CASINO
COMPANY, L.L.C., a Louisiana limited liability company, and acknowledged to me
that he executed said instrument for the purposes and consideration therein
expressed, in the capacity therein stated and as the act of said corporation.
Given under my hand and seal of office this 26th day of
October, 1998.
/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
NOTARY PUBLIC
My Commission Expires: Life
ACKNOWLEDGMENT
STATE OF NEW YORK
COUNTY/PARISH OF NEW YORK
BEFORE ME, the undersigned authority, on this day personally
appeared Xxxxxx X. Xxxxxxxx, XX, known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
Vice President of XXXXXX'X OPERATING COMPANY, INC., a Louisiana corporation,
and acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
of said corporation.
Given under my hand and seal of office this 29th day of
October, 1998.
-----------------------------------
/s/ Xxxxx Xxxxx Xxxx
------------------------------------------
NOTARY PUBLIC
My Commission Expires: November 25, 1998
ACKNOWLEDGMENT
STATE OF NEW YORK
COUNTY/PARISH OF NEW YORK
BEFORE ME, the undersigned authority, on this day personally
appeared Xxxxxx X. Xxxxxxxx, XX, known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
Vice-President of XXXXXX'X ENTERTAINMENT, INC., a Louisiana corporation, and
acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
of said corporation.
Given under my hand and seal of office this 29th day of
October, 1998.
-----------------------------------
/s/ Xxxxx Xxxxx Xxxx
------------------------------------------
NOTARY PUBLIC
My Commission Expires: November 25, 1998
EXHIBIT "I"
DESCRIPTION OF CONTRACTS
1. Construction Agreement dated October 10, 1994 between Xxxxxx'x Jazz
Company and Centex Xxxxxx Construction Co., Inc., as modified by that
certain Settlement Agreement dated November 25, 1996 between Xxxxxx'x
Jazz Company and Centex Xxxxxx Construction Co., Inc., and that certain
Amendment to Settlement Agreement dated October 30, 1998 between
Xxxxxx'x Jazz Company and Centex Xxxxxx Construction Co., Inc.
2. Close-In Agreement dated March 5, 1996 between Xxxxxx'x Jazz Company
and Centex Xxxxxx Construction Co., Inc.
3. Design and Construction Agreement dated October 10, 1994 between
Xxxxxx'x Jazz Company and Broadmoor, as modified by that certain
Settlement Agreement dated October 15, 1996 between Xxxxxx'x Jazz
Company and Broadmoor, and that certain Amendment to Settlement
Agreement dated October 21, 1998 between Xxxxxx'x Jazz Company and
Broadmoor.
4. Design Agreement dated January 16, 1995 (and effective November 15,
1994) between Xxxxxx'x Jazz Company and Xxxxx Xxxxx Farnet/Modus, Inc.,
Architects and Planners, as modified by that certain Settlement
Agreement dated April 25, 1997 between Xxxxxx'x Jazz Company and Xxxxx
Xxxxx Farnet/Modus, Inc., Architects and Planners.
5. Program Management Agreement between Xxxxxx'x Jazz Company and
Foxcor/Xxxxxxx PMG, LLC, dated June 1, 1998.
6. Agreement dated May 21, 1997 between Xxxxxx'x Jazz Company and H.C.
Designs, Inc.
