Exhibit 10.09
LGCB COMPLETION GUARANTEE
THIS LGCB COMPLETION GUARANTEE is entered into as of October
30, 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 LOUISIANA GAMING CONTROL BOARD (the
"LGCB").
RECITALS
A. A plan of reorganization (the "Plan") of Xxxxxx'x Jazz
Company, a Louisiana general partnership ("HJC"), has been confirmed in
connection with the voluntary petition for an Order of Relief under Chapter 11
of Title 11 of the United States Bankruptcy Code (the "Bankruptcy Code") filed
in the United States Bankruptcy Court on November 22, 1995 and now identified as
BK No. 95-14545 in the Eastern District of Louisiana.
B. That certain Casino Operating Contract between Jazz Casino
Company, L.L.C., (the "Company"), and the LGCB dated as of October 30, 1998 (the
"COC") sets forth the conditions, covenants, obligations, requirements and terms
pursuant to which the Company has the authority to conduct gaming operations at
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 LGCB, the City of New
Orleans (the "City") and the Rivergate Development Corporation (the "RDC"),
Bankers Trust Company (the "Administrative Agent") as agent for certain lenders
(the "Banks"), and 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) for the completion of Phase I and
II Construction (as defined herein) excluding the FF&E (as defined herein) (the
"Performance Bond Construction").
D. The Completion Guarantors own a substantial beneficial
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 COC.
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 LGCB, and hereby covenant and
agree for the benefit of the LGCB as follows:
1. Obligations Guaranteed
1.1. The Completion Guarantors hereby irrevocably,
unconditionally, and in solido with each other and the Company, guarantee:
(a) the full and complete payment and performance of all
obligations (the "Completion Obligations") of the Company diligently to commence
and complete construction of and timely to pay for all costs of completion of
the Casino whether incurred before or after the Plan Effective Date and whether
due before or after the Termination of Construction Date (as defined herein) or
otherwise payable by the Company to any person for the costs and expenses of
such completion, and, subject to receipt of any necessary regulatory approvals,
to open the Casino, including:
(i) the completion of construction (as extended by
Force Majeure (as defined herein)) in accordance with the Approved Program Plans
of the Phase I and II Construction, on or before twelve (12) months after the
Plan Effective Date,
(ii) equipping the Casino with the FF&E so that
the Casino is ready to open to the public for business as a casino gaming
operation on or before twelve (12) months after the Plan Effective Date,
(iii) opening the Casino for business as a casino
gaming operation on or before twelve (12) months after the Plan Effective Date
so long as any necessary regulatory approvals from the LGCB, the State Police or
any other State regulatory authorities have been received, provided that timely
receipt of any such approvals has been diligently pursued by or on behalf of the
Company in accordance with the Rules and Regulations for such approvals, and
(iv) causing the Termination of Construction Date
to timely occur, including, without limitation:
(A) the payment of any and all costs of
completing the Phase I and II Construction, including acquiring and
installing the FF&E, 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;
(B) the payment, satisfaction or discharge
of liens, if any, arising from injuries or damages to persons or
property in connection with the Phase I and II Construction including
the FF&E and all liens, charges and claims, other than liens set forth
on Exhibit A attached hereto and by this reference incorporated herein
("Permitted Liens"), arising from the furnishing of labor, materials,
supplies or equipment for the Phase I and II Construction including the
FF&E, that are or may be imposed upon or asserted against the Casino or
any portion thereof; and
(C) the defense and indemnification of the
LGCB against all such liens, if any, arising from injuries or damages
to persons or property in
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connection with the Phase I and II Construction including the FF&E and
all such 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, including the FF&E; and
(b) the full and complete payment and performance of all
obligations (the "Carry Obligations") of the Company to pay on a timely basis
all amounts due from or incurred by or otherwise payable by the Company to any
Person, and all project costs (other than any costs which are included as a part
of the Completion Obligations) due before or after the Plan Effective Date until
and through the Termination of Construction Date to be funded, paid and/or
satisfied until and through the Termination of Construction Date, 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), amounts owing to Rivergate Development under the Lease
(as defined herein), amounts owing to the LGCB under the COC, amounts due to
allowed general unsecured creditors as provided in Section 9.32- "Payment to
Unsecured Creditors" of the COC, assessments, utilities, insurance and
maintenance expenses, amounts owing from injuries or damages to person or
property, amounts owing for claims which arise on or prior to the Termination of
Construction Date, or amounts due pursuant to contracts and agreements; provided
that the Completion Guarantors in no event guarantee the Minimum Payment
Shortfall.
1.2. The Carry Obligations shall include, without limitation:
(a) the obligation of the Company upon the Termination
of Construction Date to have available for working capital at least Five Million
Dollars ($5,000,000) of cash in the House Bank (as defined in the Management
Agreement) and at least Twenty Five Million Dollars ($25,000,000) of
availability for immediate drawdown(s) under the Revolving Loans (as defined in
that certain Credit Agreement entered into by the Company pursuant to the Plan,
the "Credit Agreement"), subject to the terms thereof, reduced by (i) the amount
of Letters of Credit (as defined in the Credit Agreement) not to exceed Two
Million Dollars ($2,000,000), and (ii) a drawing of Ten Million Dollars
($10,000,000) of the Revolving Loan to fund the Minimum Balance (as defined in
the Management Agreement) on or before the Termination of Construction Date; and
(b) the obligation of the Company to repay the Revolving
Loan together with any and all amounts of fees, interest, letter of credit fees
and other amounts due in respect of the Revolving Loan prior to the Termination
of Construction Date.
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 Loan.
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 and
the Company, 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
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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 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 absence of any action to enforce this Completion
Guarantee 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 any one or more of the
Surety, the other Completion Guarantor, the Company or any other party of any
Obligations; or
(c) 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 LGCB to proceed in respect of the
Obligations against the Company 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 and without limiting
the above, each Completion Guarantor waives all pleas of division and of
discussion. Each Completion 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 Completion Guarantee for the reason that such pleading or
introduction would be at variance with the written terms of this Completion
Guarantee, unless the LGCB 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.
1.7. Each Completion Guarantor acknowledges that it has
received copies of and is familiar with the COC, which is 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 COC ("incur" meaning to create, incur, assume, guarantee
or otherwise become liable for).
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2. Procedures for Completion
2.1. If for any reason whatsoever:
(a) the Company fails or neglects timely (as extended by
Force Majeure) to commence construction and diligently and expeditiously
continue construction, and complete the Phase I and II Construction including
the FF&E, free of liens arising from the furnishing of labor, materials,
supplies or equipment for the Phase I and II Construction including the FF&E in
accordance with the COC, other than Permitted Liens; or
(b) the Company otherwise fails to satisfy and fulfill
the Completion Obligations in a timely manner in accordance with the time
periods set forth in Section 1.1(a)(i) hereof; or
(c) the Company fails timely to pay any of the Carry
Obligations; or
(d) the Company 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 said petition is not dismissed within sixty (60) days
after the filing of said petition; or
(e) the Company 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 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 LGCB 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 LGCB 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 (pursuant to
Section 2.1 hereof), the Completion Guarantors shall take all necessary steps to
maintain insurance coverage and secure the Casino Premises to prevent damage or
deterioration to the Casino Premises and unauthorized entry or access to the
Casino Premises (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". Commencing on the date on which the LGCB
gives any such
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notice to the Completion Guarantors pursuant to Section 2.1 hereof, the
Completion Guarantors, at their sole cost, (i) with respect to a Carry
Obligation Default shall pay the Carry Obligations when and as due and (ii) with
respect to a Completion Obligation Default shall immediately commence to perform
the Completion Obligations and thereafter continue diligently and expeditiously
until the Completion Obligations are fully performed.
2.3. Subject to Section 2.4 hereof, if 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"), after notice and thirty (30) days opportunity to cure after such
notice, the Completion Guarantors shall fail to commence performing the
Completion Obligations and diligently thereafter continue to perform the
Completion Obligations through the Termination of Construction Date (a
"Completion Obligation Default"), or a Preservation Obligation Default shall
occur, then in addition to all other rights and remedies that may be available
to the LGCB under the terms of this Completion Guarantee or the COC, at law or
in equity, the LGCB or its agent, in its sole discretion, may proceed as
follows:
(a) The LGCB, 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 LGCB, 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 LGCB'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 timely 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 timely
performance of the Performance Bond Construction or the Preservation
Obligations.
(c) In addition to the LGCB'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 LGCB shall have called
on the Surety pursuant to the Performance Bond, (i) the LGCB 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 LGCB in
protecting, preserving, enforcing or defending its interests in or under this
Completion Guarantee, (ii) after a Carry Obligation Default, the Completion
Guarantors shall be liable for the solidary benefit of the LGCB, the New
Indenture Trustee, the Administrative Agent, the City and the RDC 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
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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 solidary
benefit of the LGCB, the City and the RDC, 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 such 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 Administrative Agent, the New Indenture
Trustee or the LGCB, and (iv) after a Preservation Obligation Default, the
Completion Guarantors shall be liable for the solidary benefit of the LGCB, the
City and the RDC, 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 Preservation Obligations regardless of whether multiple demands are made by
any or all of the RDC, the City, the Administrative Agent, the New Indenture
Trustee or the LGCB.
(d) With respect to the Completion Obligations, each
Completion Guarantor specifically agrees that this Completion Guarantee is
intended as a contract to guarantee timely and full completion of the Phase I
and II Construction including the acquisition and installation of the FF&E on
the property subject to the Lease and continues whether or not the Company is
lessee thereunder.
(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 Section 1.1(b) hereof.
(f) No delay or failure by the LGCB to exercise any
remedy against the Completion Guarantors will be construed as a waiver of that
right or remedy.
2.4. The remedies set forth in Sections 2.3 and 7 hereof are
not intended to be exclusive of any remedies that the LGCB may have against the
Company under the COC or other documents or agreements referenced therein or
related thereto. The Completion Guarantors recognize that the choice of remedies
by the LGCB will necessarily and properly be a matter of the LGCB'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 LGCB at the lowest cost to the
Company or the Completion Guarantors. Nevertheless, the choice of alternatives
by the LGCB 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 Obligations. In such manner, upon such terms and at
such times as the LGCB deems best, and without notice to either Completion
Guarantor, the LGCB may in accordance with the COC alter, compromise,
accelerate, extend or change the time or manner for
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the payment or performance of any of the COC Obligations (which shall mean any
obligations of the Company under the COC), release the Company, as to all or any
portion of the COC 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 LGCB, no dealing by the LGCB 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 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 of the
Obligations or any security furnished by the Completion Guarantors or give the
Completion Guarantors any recourse against the LGCB. If the LGCB 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 LGCB or the 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 LGCB or against the Company
of any kind 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 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 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 LGCB 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 LGCB 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 Obligations, acceptance of
further security, release of further security,
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composition or agreement arrived at as to the amount of, or the terms of, the
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 LGCB, 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 LGCB in connection with any of the COC Obligations;
(e) any defense based upon an election of remedies by
the LGCB 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 LGCB's claims
against the Completion 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
Completion 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 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 COC Obligations;
(h) waiver or estoppel or any alleged lack of reasonable
or justifiable reliance on the part of the LGCB as to the Completion Guarantors'
representations;
(i) lack, failure or insufficiency of consideration;
(j) 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 Completion
Guarantee; and
(k) any defense that the LGCB'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 LGCB.
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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 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 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 LGCB 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 solidary benefit of the LGCB,
the City and the RDC, 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 COC Obligations. During any period in which there is a
payment default under the COC, without the prior written consent of the LGCB,
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.
6. Bankruptcy
6.1. So long as any Obligations are owed to the LGCB, no
Completion Guarantor shall, without the prior written consent of the LGCB
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.
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6.2. So long as any Obligations are owed to the LGCB,
(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 LGCB all rights of such Completion
Guarantor thereunder as security for performance of the Obligations jointly with
such assignment to the City and the RDC under that certain City/RDC Completion
Guarantee between the Completion Guarantors, the City and the RDC of even date
herewith (the "City/RDC 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 LGCB, 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 City and the RDC under the City/RDC 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
LGCB's, the City's and RDC's, the Administrative Agent's, and New Indenture
Trustee's joint discretion, to assign the claim to a joint nominee and to cause
proofs of claim to 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 LGCB, jointly with the City and RDC under the
City/RDC 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 LGCB under this Section 6.2(c), (ii)
by the New Indenture Trustee under the Section 6.2(c) of the Notes Completion
Guarantee, (iii) by the Administrative Agent under Section 6.2(c) of the Bank
Completion Guarantee, and (iv) by the City and the RDC under Section 6.2(c) of
the City/RDC 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 LGCB, the City and RDC under the City/RDC
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 LGCB jointly with such assignment to the City and the RDC
under the City/RDC 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.
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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 LGCB, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance 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 LGCB, the amount of such monetary portion of the Obligations and
all other sums payable by the Completion Guarantors to the LGCB 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 Completion Obligations or the Carry Obligations which default
entitles the LGCB to require performance hereunder (whether or not notice is
actually given pursuant to Section 2.1), the LGCB 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
LGCB 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 LGCB, 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 LGCB
hereunder against the Completion Guarantors or any other person;
(c) any attempt to defend any provision hereof; or
12
(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 LGCB 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 Completion Obligations or the Carry
Obligations and (ii) prior to the date on which the LGCB gives written notice
pursuant to Section 2.1 (the "Notice Date"), the LGCB 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 also include, without limitation, such
reasonable amounts as may then be charged for legal services furnished by
attorneys retained or employed by 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 Completion Guarantor which in any way affect the exercise by
the LGCB of its rights and remedies hereunder.
8. Cumulative Rights. All rights, powers and remedies of the LGCB
hereunder and under any other agreement now or at any time hereafter in force
between the LGCB 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 LGCB by law and shall not be deemed in any way to
extinguish or diminish the LGCB's rights and remedies. This Completion Guarantee
is in addition to and independent of the guarantee of any guarantor of any COC
Obligations or other indebtedness of the Company.
9. Independent Obligations. The Obligations are independent of the COC
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 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 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 COC, with or
without notice to either Completion Guarantor, the LGCB, in its sole discretion,
at any time and from time to time, and in such manner and upon such terms as the
LGCB deems fit, may (a) apply any or all payments or recoveries from the Company
or from any other guarantor or endorser under any other
13
instrument, in such manner and order of priority as the LGCB may determine, to
any of the COC Obligations, whether or not such indebtedness is due at the time
of such application, and (b) refund to the Completion Guarantors any payment
received by the LGCB upon any Obligations, and, if such refund is made, payment
of the amount refunded shall be fully guaranteed hereby.
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 with
respect to the Completion Obligations, then the Completion Obligations (but not
the Carry Obligations) shall (except as provided below in this section) be
suspended (the "Suspension") until such time as such Force Majeure ends;
provided however, in no event shall the Suspension (for Force Majeure) extend
beyond eighteen (18) months from the earlier of the date upon which the Company
or any Completion Guarantor knew or reasonably should have known of the
occurrence of the Force Majeure, unless performance of the Completion
Obligations (in accordance with the terms of this Completion Guarantee) are
rendered impossible during such eighteen (18) month period because of such Force
Majeure pursuant to subsections (ii) through (vii) of the definition of Force
Majeure or Force Majeure due to a national or general strike, lockout or labor
dispute, and in such event the Suspension shall continue until such time as such
performance is no longer impossible. 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 insolvency proceeding, whether voluntary or involuntary, by or against the
Company and/or any Completion Guarantor shall not be considered, nor constitute
Force Majeure. 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 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
14
that materially diminishes the benefits afforded to the Company or the gaming
activities permitted to be conducted at the Casino pursuant to the Act (as
defined herein) by reason of a change of law or the enactment of a new law after
the Plan Effective Date 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, a Force Majeure shall
have continued for more than one (1) year from the first to occur of a receipt
of a notice from the LGCB to the Completion Guarantors pursuant to Section 2.1
hereof or a similar notice to the Completion Guarantors from the New Indenture
Trustee, the Administrative Agent, the City or the RDC (provided that the
Completion Guarantors shall have complied with the notice requirements of the
last sentence of Section 15 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 and
upon the occurrence of the Termination of Construction Date 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 Termination of
Construction Date, the Completion Guarantors shall nevertheless be obligated to
complete the Poydras Street Support Facility and the Poydras Tunnel Area (each
as defined in the GDA), exterior site and street work, and any improvements
required to be made to the Leased Premises (as defined in the Lease) so that it
may be used for any Highest and Best Use (as defined in the Lease) 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 pursuant to this
Agreement.
12.6. The Completion Guarantors and/or the Company shall give
Notice as provided in the Casino Operating Contract to the LGCB of any Force
Majeure within ten (10) days of the date upon which a Force Majeure event has
occurred, provided the remedy for a failure timely to give such Notice shall be
to cause the Suspension otherwise resulting from such Force Majeure to be waived
for any period of time from the occurrence of the Force Majeure until ten (10)
days prior to the furnishing of such Notice (of Force Majeure).
12.7. Other than as set forth in this Agreement and without
waiver of the terms and conditions of this Agreement, including, without
limitation, terms and conditions of the definition of Force Majeure and of this
Section 12, the Company and the Completion Guarantors waive their rights
pursuant to Articles 1873-1878 of the Louisiana Civil Code including, without
15
limitation, any right to claim excuse from performance or delay of performance
due to impossibility of performance of the Completion Obligations or a
fortuitous event.
13. Definitions. As used in this Completion Guarantee, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined).
"Act" shall mean the Louisiana Economic Development and Gaming
Corporation Act as set forth in LSA R.S. 27:201 et seq., adopted by the
Legislature of the State of Louisiana as Xx. 000, Xxxx 0000 as amended, and
regulations adopted thereunder, amendments and reenactment of LSA R.S.
36:801.1(A) and enactment of LSA R.S. 27:1 et seq., adopted by the Legislature
of the State of Louisiana as Act 7, First Extraordinary Session, 1996, and
regulations adopted thereunder; the Local Option Gaming election as set forth in
LSA R.S. 18:1300.21, adopted by the Legislature of the State of Louisiana as Act
57, First Extraordinary Session 1996, and the act adopted by the Legislature of
the State of Louisiana as Act 98, First Extraordinary Session, 1996.
"Casino - Phase I" shall mean the first phase of development
and construction of the Casino, consisting of a minimum of one hundred thousand
(100,000) square feet of net gaming space, approximately fifteen thousand
(15,000) square feet of multi-function, special event, food service and meeting
room space on the first floor of the Casino, the Poydras Tunnel Area, a two
hundred fifty (250) seat buffet on the first floor of the Casino and parking
facilities.
"FF&E" shall mean at least one hundred (100) gaming tables and
two thousand (2,000) slot machines, and such other furnishings, fixtures and
equipment to be used in the operation of the Casino.
"Force Majeure" shall mean any of the following events or
circumstances, but only to the extent they are not caused or fomented by the
Company, the Completion Guarantors or any affiliates of the Company or either
Completion Guarantor and they delay the performance of the Completion
Obligations beyond the reasonable control of the Company and of the Completion
Guarantors:
(i) strikes, lockouts, labor disputes, inability to procure
materials (for which there is no suitable substitute or alternative that can be
timely obtained on reasonable commercial terms), failure of power;
(ii) material and adverse changes in Governmental Requirements
applicable to the construction of the Casino first effective after the Plan
Effective Date and after the submission to and approval by the LGCB of the
design thereof, and any material and adverse changes after the Plan Effective
Date in any orders (applicable to the Competion Obligations, the Casino Premises
or the Casino Property) of any federal, state, parish or municipal governmental
authority, including all executive, legislative, judicial and administrative
bodies thereof having jurisdiction over a party, the Casino Premises, or the
Casino Property (however, not including stop work orders due to a building,
safety or other code violation);
16
(iii) material and adverse changes in Governmental
Requirements first effective after the Plan Effective Date;
(iv) the breach by the LGCB of the COC (not caused or fomented
by the Company, the Completion Guarantors, or any affiliates of the Company or
of either Completion Guarantor) or other action of the LGCB (not caused or
fomented by the Company, the Completion Guarantors, or any affiliates of either
Completion Guarantor), including, as to the required opening of the Casino-Phase
I, the delay in the issuance of required suitability findings and/or approvals
required to open Casino - Phase I for reasons not under the control of, or which
could not have been avoided by the exercise of due care of, the Company, the
Completion Guarantors or any affiliate of the Company or either Completion
Guarantor;
(v) acts of God, tornadoes, hurricanes, floods, sinkholes,
fires and other casualties, landslides, earthquakes, epidemics, quarantine,
pestilence, and abnormal inclement weather;
(vi) acts of public enemy, acts of war, terrorism, effects of
nuclear radiation, blockades, insurrections, riots, civil disturbances,
governmental preemption in connection with a national emergency, or national or
international calamity; and
(vii) any judgment, directive, ruling or order that is entered
by any judicial, regulatory or administrative body which substantially restrains
or substantially interferes with the performance of the Completion Obligations.
"GDA" shall mean the Amended and Restated General Development
Agreement entered into between the Rivergate Development Corporation, Jazz
Casino Corporation and the City pursuant to the Plan.
"Lease" shall mean the Amended and Restated Lease Agreement
entered into between the Rivergate Development Corporation, as landlord, the
Company, as tenant, and the City, as intervenor, pursuant to the Plan.
"Phase I and II Construction" shall have the meaning set forth
in the GDA and shall be in conformity with the Construction Documents (as
defined in the COC).
"Second Floor Shell Construction - Phase II" shall mean the
second phase of development and construction of the Casino on the second floor
of the Casino, which shall consist of shell construction of the second floor
non-gaming space to the stage where it is ready for tenant improvement and build
out for non-gaming entertainment purposes; provided that the build out of the
tenant improvements and the occupancy and opening for business of such second
floor non-gaming development shall not be a part of this phase and may occur
after completion of Casino - Phase I and completion of such tenant improvements
is not part of the Obligations.
"Termination of Construction Date" shall mean that date by
which all of the following have occurred:
17
(i) a temporary certificate of occupancy has been issued for
Casino - Phase I by the building department and other relevant agencies;
(ii) all required permits with respect to the Phase I and II
Construction have been received by the Company;
(iii) a notice of completion has been duly recorded with
respect to the Phase I and II Construction;
(iv) an officers' certificate of the Completion Guarantors has
been delivered to the LGCB certifying that the Termination of Construction Date
has occurred;
(v) the Casino is equipped with the FF&E and ready to open for
business as a casino gaming operation;
(vi) a certificate has been delivered by the general
contractor and the project architect to the LGCB for the Phase I and II
Construction certifying that the Phase I and II Construction has been
substantially completed in accordance with the plans and specifications therefor
and all applicable building laws, ordinances and regulations; and
(vii) Casino - Phase I has opened for business as a casino
gaming operation so long as any necessary regulatory approvals from the LGCB or
any other State regulatory authorities have been received, or, if such approvals
have not been received, even though timely receipt of any such approvals has
been diligently pursued by or on behalf of the Company in accordance with the
Rules and Regulations for such approvals, Casino Phase I is in a condition to
receive customers in the ordinary course of business.
14. Completion Obligation Termination Date
14.1. Notwithstanding the occurrence of the Termination of
Construction Date, 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 including the acquisition
and installation of the FF&E and for all materialmen's claims, mechanics' liens
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, including
the FF&E. The date after the Actual 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 Premises remain of record in Orleans Parish is herein referred to as the
"Completion Obligation Termination Date".
14.2. For purposes of this Completion Guarantee, in respect of
any Completion Obligations or Carry Obligations not satisfied as of the
Termination of Construction Date, 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
18
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 the LGCB.
15. Notices. Whenever the Completion Guarantors or the LGCB 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, 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
Fax: (000) 000-0000
Attn: General Counsel
(b) if to the Company:
Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
(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 LGCB, as provided in the COC;
19
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 Completion Guarantors, the Company, the Surety or the LGCB
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 City or the RDC under the City/RDC 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 LGCB at the address set forth
above.
16. Successors and Assigns. This Completion Guarantee shall inure to
the benefit of the LGCB its successors and assigns including the assignees of
any Obligations, and shall bind the heirs, executors, administrators, personal
representatives, successors and assigns of each Completion Guarantor. This
Completion Guarantee may be assigned by the LGCB, in its sole discretion, with
respect to all or any portion of the Obligations, and when so assigned the
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 LGCB. Neither
Completion Guarantor may assign or transfer any of its rights, obligations or
interest hereunder without the prior written consent of the LGCB.
17. Miscellaneous Provisions
17.1. THIS COMPLETION GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF LOUISIANA AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF LOUISIANA
(AND WITHOUT APPLYING ANY PROVISIONS RELATED TO CONFLICTS OF LAWS). 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. WITH RESPECT TO ANY ACTION BROUGHT IN THE 19TH JUDICIAL DISTRICT
COURT IN AND FOR EAST BATON ROUGE PARISH, EACH COMPLETION GUARANTOR AGREES NOT
TO ASSERT BY WAY OF MOTION OR DEFENSE OR OTHERWISE THAT SUCH ACTION IS BROUGHT
IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH ACTION IS IMPROPER.
17.2. This Completion Guarantee shall constitute the entire
agreement of the Completion 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 unless
expressed herein.
17.3. 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
20
terms, covenants, conditions and provisions hereof shall nevertheless remain in
full force and effect.
17.4. Time is of the essence to this Completion Guarantee and
each of its provisions.
17.5. 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.
17.6. 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.
17.7. No provision of this Completion Guarantee or right
granted to the LGCB 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 LGCB. 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 LGCB and the consent of any
additional beneficiaries hereof, if any, shall not be required.
17.8. The LGCB 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.
17.9. The headings of this Completion Guarantee are inserted
for convenience only and shall have no effect upon the construction or
interpretation thereof.
17.10. This Completion Guarantee shall be for the sole benefit
of the LGCB, 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.
17.11. 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 City/RDC Completion Guarantee,
or any supplemental agreement with respect thereto and such Notes Completion
Guarantee, Bank Completion Guarantee, or City/RDC Completion Guarantee or
amendment or supplement thereto or the obligations created thereby provides
rights or remedies to the New Indenture Trustee, the Administrative Agent, the
City or the RDC that are more favorable in any respect than the rights and
remedies granted to the LGCB hereunder (as this Completion Guarantee may from
time to time be amended), the LGCB 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 City/RDC
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 City/RDC Completion Guarantee, or any provisions of a supplemental agreement
among the Completion Guarantors, the New Indenture Trustee, the Administrative
Agent, the City and/or the RDC, that are less favorable than the rights and
remedies granted to the LGCB hereunder.
21
18. Effectiveness. This Completion Guarantee shall be effective upon
the occurrence of the Plan Effective Date. If such Plan Effective Date shall not
occur, this Completion Guarantee shall be null and void and of no force or
effect.
[SIGNATURE PAGE FOLLOWS]
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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/ Xxxxxx X. Xxxxxxxx XX
------------------------------
Name: Xxxxxx X. Xxxxxxxx XX
------------------------------
Title: Vice President
-----------------------------
XXXXXX'X OPERATING COMPANY, INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx XX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx XX
------------------------------
Title: Vice President
-----------------------------
Accepted and agreed:
LOUISIANA GAMING CONTROL BOARD
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: Chairman
---------------------------
S-1
[Signature Page to LGCB Completion Guarantee]
Exhibit A
Permitted Liens
1. Ad valorem real estate taxes and special assessments for 1995
and all subsequent years, which are not yet due and payable.
2. Reservation of servitudes in favor of the Sewerage and Water
Board of the City of New Orleans (the "Delta Street S&WB
Servitude") and in favor of New Orleans Public Service, Inc.
(the "Delta Street NOPSI Servitude"), contained in Ordinance
No. 15,799 M.C.S. (Calendar No. 18,425) of the City of New
Orleans, registered April 27, 1993, under N.A. No. 93-18030,
as Conveyance Office Instrument No. 68196, and in Act of
Revocation of Dedication by the City of New Orleans dated
April 26, 1993, filed April 27, 1993, under Notarial Archives
No. 93-18031, as Conveyance Office Instrument No. 68195, as
shown on the survey of Xxxxxxxx, Xxxx & Associates, Drawing
No.
E60-3, last dated October 25, 1994.
3. Terms and Conditions of the GDA.
4. Reservation of a servitude in favor of New Orleans Public
Service, Inc., contained in the sale from City of New Orleans
to Xxxxxx'x Louisiana and Texas Railroad and Steamship
Company, dated February 3, 1932, filed February 6, 1932, in
Conveyance Office Book 466, folio 476, as shown on the survey
of Xxxxxxxx, Xxxx & Associates, Drawing No. E60-3, last dated
October 25, 1994.
5. Apparent servitudes for 10" sewer line, 24" drain line and 20"
water line, in the southeast corner of the land (outside of
former Delta Street) as shown on the survey of Xxxxxxxx, Xxxx
& Associates, Drawing No. E60-3, last dated October 25, 1994.
6. Encroachment of adjoining buildings onto Parcel II of Tract IX
of Rivergate Sites, as shown on the survey L-15, by Xxxxxxxx,
Xxxx & Associates, last dated October 25, 1994.
7. Encroachments as evidenced by the following: concrete, brick
pedestrian passageway and brick walk as shown on survey L-17-2
last dated August 16, 1994 by Xxxxxxxx, Xxxx & Associates, but
only to the extent that the encroachment is outside the
Encroachment Area.
8. Encroachment upon Poydras Street by the granite columns and
cornice appurtenant to Parcel II of Tract IX of Rivergate
Sites, as shown on the plat of survey by Xxxxxxxx, Xxxx &
Associates, Drawing No. L-15, last dated October 25, 1994.
9. Terms and conditions of the Lease.
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