Exhibit 10.10
AMENDED AND RESTATED SUBORDINATED
COMPLETION LOAN AGREEMENT
THIS AMENDED AND RESTATED COMPLETION LOAN AGREEMENT is entered
into on this 30th day of October, 1998, by and among JAZZ CASINO COMPANY,
L.L.C., a Louisiana limited liability company (the "Company"), XXXXXX'X
OPERATING COMPANY, INC., a Delaware corporation, and XXXXXX'X ENTERTAINMENT,
INC., a Delaware corporation.
RECITALS
X. Xxxxxx'x Jazz Company, a Louisiana general partnership
("HJC"), filed a voluntary petition for relief under Chapter 11 of the United
States Bankruptcy Code on November 22, 1995, which case is now pending in the
United States Bankruptcy Court for the Eastern District of Louisiana, Case No.
95-14545.
B. HJC has submitted, and the United States Bankruptcy Court
for the Eastern District of Louisiana has confirmed, the Plan (as defined
herein).
C. As contemplated by the Plan, the Company has succeeded to
all the rights and obligations of HJC under that certain Completion Loan
Agreement dated as of October 12, 1994, as amended by that certain First
Amendment to the Completion Loan Agreement dated as of November 8, 1994, by and
among HJC, HOCI (formerly known as Embassy Suites, Inc.), HET (formerly known as
The Promus Companies Incorporated), Xxxxxx'x New Orleans Investment Company, a
Nevada corporation, New Orleans/Louisiana Development Corporation, a Louisiana
corporation, Grand Palais Casino, Inc., a Delaware corporation and Grand Palais
Management Company, L.L.C., a Delaware limited liability company (the "Prior
Completion Loan Agreement").
D. The Plan requires the amendment and restatement of the
Prior Completion Loan Agreement in its entirety in accordance with the terms
hereof.
E. The parties hereto desire to amend and restate the Prior
Completion Loan Agreement on the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. Each of the following terms when used herein
shall have the following defined meanings:
Affiliate. "Affiliate" shall mean as to any Person the
affiliates of whom are relevant for purposes of any provisions of this
Agreement, (i) any corporation, partnership, limited liability company,
unincorporated association, joint venture, trust or individual controlled by,
under
common control with, or which controls, directly or indirectly, such Person, and
(ii) a trust of which the Person, or a direct or indirect shareholder of such
Person, is a trustee, or which has as its principal beneficiaries such Person,
or any direct or indirect shareholder of such Person, or members of the
immediate family of such direct or indirect shareholder or other Person. For
purposes hereof, shares or other ownership interests held by a trust shall be
deemed to be owned pro-rata by the beneficiaries of such trust.
Agreement. "Agreement" shall mean this Amended and Restated
Completion Loan Agreement.
Assignment of Contracts. "Assignment of Contracts" shall mean
that certain Assignment of Contracts and Ancillary Rights of even date herewith
attached hereto as Exhibit A and by this reference incorporated herein.
Available Cash Flow. "Available Cash Flow" shall mean Cash
Flow remaining after payment or reserve, as the case may be, of all outstanding
cash principal and interest (including, without limitation, Contingent Payments
(as defined in the Indentures)), owing in respect of the New Bonds and the New
Contingent Bonds, the Subordinated Credit Facility, the Convertible Junior
Subordinated Debentures, and all amounts due and payable in respect of the Bank
Debt.
Available Funds. "Available Funds" shall mean the amount of
funds available to pay amounts required for completion of the Casino
representing proceeds available to the Company from or under any and all equity
contributions actually made to the Company, the Term Loans, the Subordinated
Credit Facility, and the Convertible Junior Subordinated Debentures.
Available Proceeds of Major Capital Events. "Available
Proceeds of Major Capital Events" shall mean Proceeds of Major Capital Events
remaining after payment or reserve, as the case may be, of all outstanding
principal and interest (including, without limitation, Contingent Payments (as
defined in the Indentures)) owing in respect of the New Bonds and the New
Contingent Bonds, the Subordinated Credit Facility, the Convertible Junior
Subordinated Debentures, and all amounts due and payable in respect of the Bank
Debt.
Bank Debt. "Bank Debt" shall mean the loans and letters of
credit to be obtained by JCC on and after the effective date of the Plan
pursuant to the Credit Agreement which shall include (a) term loans not to
exceed Two Hundred Eleven Million Five Hundred Thousand Dollars ($211,500,000)
in aggregate principal amount (the "Term Loans") and (b) a working capital
facility (including revolving loans, swingline loans and letters of credit) in
the amount of Twenty Five Million Dollars ($25,000,000) (the "Revolving Loan")
and shall have such other terms and conditions as shall be set forth in the Bank
Debt Documents.
Bank Debt Documents. "Bank Debt Documents" shall mean,
collectively, the Credit Agreement, all guarantees and all other loan, security
and other documents governing the terms and conditions of, or relating to, the
Bank Debt.
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Business Day. "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York, New York are authorized or obligated by law or executive order to
close.
Cash Flow. "Cash Flow" means all cash received by the Company
from all sources (except Major Capital Events) remaining after payment of
current expenses, liabilities, debts or obligations of the Company, including,
without limitation, any payments due under the Lease or the Casino Operating
Contract.
Casino. "Casino" shall mean the 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 and the Second
Floor Shell Construction.
Casino Operating Contract. "Casino Operating Contract" shall
mean that certain Casino Operating Contract between HJC and the LGCB dated as of
July 15, 1994, as such contract may be modified pursuant to the Plan or from
time to time by the parties thereto.
City. "City" shall mean the City of New Orleans.
Company. "Company" has the meaning set forth in the preamble
to this Agreement.
Completion Budget. "Completion Budget" shall mean,
collectively and separately, all costs of acquiring, designing, leasing,
renovating, constructing, financing, equipping, furnishing, licensing and
opening the Casino pursuant to one or more budgets for the Casino as approved by
the Company in accordance with its Articles of Organization and Operating
Agreement (as they may from time to time be modified).
Completion Guarantees. "Completion Guarantees" has the meaning
set forth in Section 2(a) hereof.
Completion Guarantor Subordination Agreements. "Completion
Guarantor Subordination Agreements" shall mean that certain Completion
Guarantor Subordination Agreement entered into by and among HET, HOCI and
Norwest Bank Minnesota, N.A. pursuant to the Indentures, that certain
Completion Guarantor Subordination Agreement (Lenders) entered into by and
among HET, HOCI and Bankers Trust Company pursuant to the Credit Agreement,
and that certain Completion Guarantor Subordination Agreement entered into by
and among HET, HOCI, and Norwest Bank Minnesota, N.A. pursuant to the
indenture for the Convertible Junior Subordinated Debentures.
Completion Loan. "Completion Loan" has the meaning set forth
in Section 2(b) hereof.
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Completion Loan Documents. "Completion Loan Documents" shall
mean this Agreement, the Assignment of Contracts, the Consent, the Entry
Agreement, and any other documents executed and delivered by the parties hereto
in connection with this Agreement.
Completion Loan Payment Date. "Completion Loan Payment Date"
has the meaning set forth in Section 6(a) hereof.
Completion Loan Payment Obligations. "Completion Loan Payment
Obligations" shall mean any Completion Loan and any interest thereon.
Consent. "Consent" shall mean that certain Consent and
Attornment Agreement, of even date herewith attached as Exhibit B hereto and by
this reference incorporated herein.
Construction Lien Indemnity Agreement. "Construction Lien
Indemnity Agreement" shall mean that certain Amended and Restated Construction
Lien Indemnity Agreement to be entered into by and among the Company, HOCI and
First American Title Insurance Company.
Convertible Junior Subordinated Debentures. "Convertible
Junior Subordinated Debentures" shall mean the Convertible Junior Subordinated
Debentures due 2009 of the Company to be issued under the Plan in the aggregate
principal amount of approximately Twenty Seven Million Dollars ($27,000,000).
Credit Agreement. "Credit Agreement" shall mean that certain
Credit Agreement to be entered into by and among the Company, JCC Holding
Company, as guarantor, Bankers Trust Company, as administrative agent, and
certain lenders, pursuant to the Plan, as such agreement may be amended
(including any amendment and restatement thereof), supplemented or modified from
time to time, including any agreements extending the maturity of, refinancing,
replacing or otherwise restructuring (including by way of adding subsidiaries of
the Company as additional borrowers or guarantors thereunder) all or a portion
of the indebtedness under such agreement or any successor or replacement
agreement, and whether by the same or any other agent, lender or group of
lenders.
Debt. "Debt" shall mean: (i) all obligations for borrowed
money; (ii) all obligations evidenced by bonds, debentures, notes or similar
instruments; (iii) all obligations to pay the deferred purchase price of
property or services, except trade accounts payable in the ordinary course of
business; (iv) all obligations as lessee that are capitalized in accordance with
generally accepted accounting principles; (v) all obligations to repay any bank
or other Person in respect of amounts paid or available to be drawn under a
letter of credit, banker's acceptance, surety, performance or appeal bond or
similar instrument (each such obligation to be valued at the face amount of such
instrument); and (vi) all obligations secured by a Lien or guaranteed by the
Company.
Default. "Default" shall have the meaning set forth in Section
8(a) hereof.
Default Rate. "Default Rate" shall mean the Interest Rate plus
two percent (2%), but in no event greater than the maximum rate permitted by
applicable law.
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Entry Agreement. "Entry Agreement" shall mean that certain
Amended and Restated Entry Agreement among the Guarantors, the Company, the RDC
and the City, a copy of which is attached hereto as Exhibit C and by this
reference incorporated herein.
GAAP. "GAAP" shall mean United States generally accepted
accounting principles as in effect on the date hereof.
General Development Agreement. "General Development Agreement"
shall mean that certain Amended General Development Agreement by and among the
RDC, City and Xxxxxx'x Jazz Company dated March 15, 1994, as assumed by the
Company, and as further amended pursuant to the Plan.
Guarantors. "Guarantors" shall mean HOCI or HET or both.
HET. "HET" shall mean Xxxxxx'x Entertainment, Inc., a Delaware
corporation, and its successors and assigns.
HJC. "HJC" shall have the meaning set forth in Recital A to
this Agreement.
HOCI. "HOCI" shall mean Xxxxxx'x Operating Company, Inc., a
Delaware corporation, and its successors and assigns.
Holder. "Holder" shall have the meaning set forth in
Section 16 hereof.
Indemnified Parties. "Indemnified Parties" shall mean HET and
HOCI, and their officers, directors, corporate representatives, employees,
lawyers and agents thereof.
Indentures. "Indentures" shall mean those certain Indentures
entered into pursuant to the Plan, pursuant to which the Company has issued the
New Bonds and the New Contingent Bonds, collectively, as such Indentures may be
amended (including any amendment and restatement thereof) supplemented or
modified from time to time, including any agreements extending the maturity of,
refinancing, replacing or otherwise restructuring (including by way of adding
subsidiaries of the Company as additional guarantors thereunder) all or a
portion of the indebtedness under such Indentures or any successor or
replacement indenture.
Interest Rate. "Interest Rate" shall mean a rate equal to the
lower of (i) eight percent (8%) per annum, or (ii) the maximum rate permitted by
applicable law.
Lease. "Lease" shall mean that certain lease by and between
Celebration Park Casino, Inc., the RDC, and the City, as intervenor, dated as of
April 27, 1993, as amended by that certain Amended Lease Agreement by and
between the Company, the RDC and the City, as intervenor, dated as of March 15,
1994, as further amended pursuant to the Plan.
Lenders. "Lenders" shall mean the lenders of the Bank Debt.
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LGCB. "LGCB" shall mean the Louisiana Gaming Control Board, or
any successor entity.
Lien. "Lien" shall mean, with respect to any asset of the
Company, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset.
Major Capital Event. "Major Capital Event" shall mean any
borrowings or equity or debt financings (except short term borrowings in the
ordinary course of business and any exercise of the HET Warrant (as defined in
the Plan)) by the Company or otherwise relating to the Project (excluding any
Debt incurred pursuant to this Agreement, the Subordinated Credit Facility, the
Credit Agreement, the Convertible Junior Subordinated Debenture Documents (as
defined in the Plan) or the Indentures), any sale of all or a substantial
portion of the Company's assets (excluding dispositions of personal property and
equipment in the ordinary course of business), any insured casualty loss or any
condemnation or other involuntary conversion with respect to a substantial
portion of the Company's assets (including losses covered by title insurance),
or any revocation or breach by the LGCB under the Casino Operating Contract.
Management Agreement. "Management Agreement" shall mean that
certain Second Amended and Restated Management Agreement entered into by and
between the Manager and the Company pursuant to the Plan.
Manager. "Manager" shall mean Xxxxxx'x New Orleans Management
Company, a Nevada corporation, and its successors and assigns.
Maturity. "Maturity" has the meaning set forth in Section 3
hereof. New Bonds.
"New Bonds" shall mean the Senior Subordinated Notes due
2009 with Contingent Interest of the Company to be issued under the Plan in
the aggregate non-contingent principal amount, as of the date hereof, of One
Hundred Eighty Seven Million Five Hundred Thousand Dollars ($187,500,000), as
such instruments may be modified in accordance with the terms of the
Indentures.
New Contingent Bonds. "New Contingent Bonds" shall mean the
Senior Subordinated Contingent Notes due 2009 of the Company to be issued under
the Plan, as such instruments may be modified in accordance with the terms of
the Indentures.
Non-Qualified Person. "Non-Qualified Person" shall mean any
Person that would, if associated with the Company or the Company's Affiliates or
with either Guarantor, in the judgment of the Guarantors or any licensing
authority, impair or cause the denial, suspension or revocation of any gaming
registration, permit, license, right or entitlement or alcoholic beverage
registration, permit, license, right or entitlement held or applied for by the
Company, the Guarantors, or any Affiliate of the Guarantors or the Company.
Obligations. "Obligations" shall mean all principal and
interest in respect of any Completion Loan and all other obligations pursuant to
this Agreement and any interest thereon, all whether incurred or accrued before
or after maturity or acceleration thereof.
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Performance Bond. "Performance Bond" shall mean that certain
Performance Bond entered into by and between the Company as the principal and
Reliance Insurance Company and United States Fidelity and Guaranty Company, as
the surety, pursuant to the Plan.
Performance Bond Indemnity Agreement. "Performance Bond
Indemnity Agreement" shall mean that certain Performance Bond Indemnity
Agreement entered into by and between HOCI, Reliance Insurance Company and
United States Fidelity and Guaranty Company, pursuant to the plan, in respect of
the Performance Bond.
Person. "Person" shall mean any individual, partnership,
limited liability company, corporation, unincorporated association, joint
venture, trust or other entity.
Phase I and II Construction. "Phase I and II Construction"
shall have the meaning given in the General Development Agreement.
Plan. "Plan" shall mean that certain plan of reorganization of
HJC confirmed by the United States Bankruptcy Court for the Eastern District of
Louisiana for that certain case captioned In re Xxxxxx'x Jazz Company, Case No.
95-14545, as modified.
Prior Debt. "Prior Debt" shall mean all amounts owing in
respect of the Bank Debt, the New Bonds and the New Contingent Bonds and any
modifications, renewals, replacements or Refinancings of the Bank Debt, the New
Bonds and the New Contingent Bonds permitted pursuant to Section 7(a) hereof.
Proceeds of Major Capital Event. "Proceeds of Major Capital
Event" shall mean the net proceeds of any Major Capital Event after deducting
any closing costs or expenses arising in connection with the Major Capital
Event, Debt repaid or required to be repaid in connection with such Major
Capital Event out of such proceeds, including, without limitation, pursuant to
Section 5 of the Indentures and the Mortgages (as defined in the Indentures),
and any amounts reinvested in the Project or held in any escrow or other
restricted accounts for investment in the Project, including without limitation,
the deduction of any Contingent Payments under and as defined in the Indentures.
Project. "Project" shall mean any business conducted at or
with respect to the Casino and such additional movable and immovable property as
the Company may determine to lease or acquire, that is either located thereat or
used in connection with or relates to the business of the Company and the Casino
Operating Contract.
RDC. "RDC" shall mean the Rivergate Development Corporation, a
Louisiana public benefit corporation.
Refinance. "Refinance" shall have the meaning set forth in
Section 7(a)(i) hereof.
Refinanceable Debt. "Refinanceable Debt" shall have the
meaning set forth in Section 7(a)(i) hereof.
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Refinancing. "Refinancing" shall have the meaning set forth in
Section 7(a)(i) hereof.
Refinancing Indebtedness. "Refinancing Indebtedness" shall
have the meaning set forth in Section 7(a)(i) hereof.
Restricted Payments Covenants. "Restricted Payments Covenants"
shall have the meaning set forth in Section 3 hereof.
Revolving Loan. "Revolving Loan" has the meaning set forth in
the definition for "Bank Debt" herein.
Second Floor Shell Construction. "Second Floor Shell
Construction" shall mean the 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 the Casino and completion of such tenant improvements is not part
of the Obligations.
Subordinated Credit Facility. "Subordinated Credit Facility"
shall mean that certain Subordinated Loan Agreement entered into by and among
the Company, HET and HOCI, pursuant to Section 6.2(i) of the Plan, pursuant to
which HET and HOCI shall loan to the Company an original principal amount not to
exceed Twenty Two Million Five Hundred Thousand Dollars ($22,500,000).
Substitute Holder. "Substitute Holder" has the meaning set
forth in Section 16 hereof.
Term Loans. "Term Loans" has the meaning set forth in the
definition for "Bank Debt" herein.
2. Completion Guarantees and Completion Loan
(a) COMPLETION GUARANTEES. The Guarantors have been
requested to enter into Completion Guarantees (collectively, the "Completion
Guarantees," and individually, a "Completion Guarantee") for the purposes of (i)
the New Bonds and the New Contingent Bonds, (ii) the General Development
Agreement, (iii) the Casino Operating Contract, and (iv) the Credit Agreement.
(b) COMPLETION LOANS. The parties hereto agree that
any amounts (i) expended by the Guarantors pursuant to any of the Completion
Guarantees or the Completion Loan Documents, which are not also expenditures
under the Construction Lien Indemnity Agreement, or (ii) expended by the
Guarantors pursuant to the Performance Bond Indemnity Agreement, in any event
from any source, whether from their own funds or borrowings of a Guarantor,
shall be a loan (each a "Completion Loan" and collectively, the "Completion
Loans") from the Guarantors to the Company.
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(c) Advance of Available Funds
(i) The parties hereto hereby agree that at
such time that there is a demand, call, notice or requirement for performance of
any Completion Guarantee, without any further action by the parties hereto the
Guarantors shall be entitled to control the disbursement and use of all
Available Funds and to apply such Available Funds to any and all costs required
to complete the Casino. Without limiting the generality of the foregoing
provision, at such time that there is a demand, call, notice or requirement for
the Guarantors to expend any amounts in respect of any Completion Guarantee, the
Guarantors shall be entitled to take any action to obtain the Available Funds
without any further action or consent by the Company, including, without
limitation, drawing and using any portion of the Terms Loans, the Subordinated
Credit Facility, or the Convertible Junior Subordinated Debentures up to the
total amount available thereunder, or taking any other action which the
Guarantors reasonably determine to be necessary or helpful to obtain Available
Funds to be applied to the cost to complete the Casino subject to the obligation
to provide certain minimum cash and working capital availability as described in
the Completion Guarantees.
(ii) Subject to the terms of the Bank Debt
Documents, the parties hereto hereby agree that the Guarantors shall be entitled
to draw on the Revolving Loan to fund the costs to be funded from the Project
Account (as defined in the Credit Agreement). The Guarantors hereby agree as of
the completion of Phase I and II Construction that they shall directly pay to
the Lenders to reduce the outstanding amount of such Revolving Loan an amount
equal to any amounts drawn on the Revolving Loan to fund any such costs to be
funded from the Project Account (as defined in the Credit Agreement). On each
such date, the Guarantors shall also reimburse the Company for all interest paid
by the Company with respect to any such amounts drawn to fund the costs to be
funded from the Project Account (as defined in the Credit Agreement) under the
Revolving Loan. The parties hereto hereby agree that any amounts paid by the
Guarantors to pay down the Revolving Loan, including any interest reimbursed to
the Company pursuant to this Section 2(c)(ii) accrued at up to a maximum rate of
eight percent (8%) per annum, shall be a Completion Loan under this Agreement.
Any interest repaid pursuant to this Section 2(c)(ii) which is attributable to
an interest rate greater than eight percent (8%) per annum shall not be a
Completion Loan under this Agreement. Nothing herein shall limit the obligations
of the Guarantors under the Completion Guarantees with respect to available
working capital at the Casino.
(iii) The Company hereby instructs the
Lenders to follow all instructions of the Guarantors with respect to the
disbursement, withdrawal, management, or control, or notices in respect, of all
or any portion of the Term Loans, the Subordinated Credit Facility, or the
Convertible Junior Subordinated Debentures, effective upon receipt by the
Lenders of notice from the Guarantors that there has been a demand, call, notice
or requirement for performance of any Completion Guarantee until such time that
all obligations of the Guarantors in respect of the Completion Guarantees have
been fully satisfied.
(iv) Subject to Section 2(c)(ii) hereof, the
Company hereby instructs the Lenders to follow all instructions of the
Guarantors with respect to the disbursement,
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withdrawal, management or control of the Revolving Loan to the extent that
additional funds are required to fund the costs to be funded from the Project
Account (as defined in the Credit Agreement).
(d) Concurrently herewith:
(i) the Company shall execute and deliver to
HET and HOCI an Assignment of Contracts and Ancillary Rights in the form of
Exhibit A hereto; and
(ii) each of the following parties shall
execute and deliver a Consent and Attornment Agreement in the form of Exhibit B
hereto: (A) Centex Xxxxxx Construction Co., Inc. ("Centex") with respect to that
certain Construction Agreement dated October 10, 1994 between Centex and the
Company, as assignee of HJC, as amended on November 25, 1996, and as further
amended on October 26, 1998 (B) Broadmoor with respect to that certain
Construction Agreement dated October 10, 1994 between Broadmoor and the Company,
as assignee of HJC, as amended by a settlement on October 15, 1996 and as
further amended on October 21, 1998, (C) Xxxxx Xxxxx Xxxxxx/Modus, Inc.,
Architects and Planners ("Xxxxx Xxxxx"), with respect to that certain Design
Agreement dated January 15, 1995 (and effective November 15, 1994) between Xxxxx
Xxxxx and the Company, as assignee of HJC, and (D) Foxcor/Pearson PMG, LLC
("Foxcor"), with respect to that certain Program Management Agreement Concerning
Phase II and III between Foxcor and the Company, as assignee of HJC; and
(iii) the RDC, the City, HET and HOCI shall
execute and deliver the Entry Agreement in the form of Exhibit C hereto.
3. TERM OF OBLIGATIONS. All Completion Loans shall be due and
payable in full on the date (the "Maturity") which is six (6) months following
the maturity of the New Bonds and the New Contingent Bonds.
4. INTEREST RATE. Except as otherwise provided in Section 9(b)
hereof, the outstanding principal amount of each Completion Loan shall bear
interest at the Interest Rate from the date incurred until repayment in full.
5. ENTRY AGREEMENT. The rights of entry pursuant to the Entry
Agreement and the rights of the Guarantors pursuant to Section 14(b) hereof may
be exercised by the Guarantors at any time or from time to time following the
date of this Agreement; provided that the Guarantors shall be liable to the
Company for actual damages resulting from their willful misconduct or gross
negligence in the exercise of such rights of entry. If such rights are exercised
as a result of (i) any demand, call, notice or requirement for performance under
any Completion Guarantee, or (ii) the Guarantors having determined in good faith
that the cost of completing the Casino will materially exceed the Completion
Budget or there will be a delay in the timely completion or opening of the
Casino, the Guarantors' liability to the Company for actual damages arising from
the exercise of their rights of entry pursuant to the Entry Agreement or their
rights pursuant to Section 14(b) hereof shall be limited to actual damages of
the Company for any claim of wrongful entry by the Guarantors, not to exceed Two
Million Dollars ($2,000,000) unless such damages result from the
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Guarantors' willful misconduct or gross negligence. Such good faith
determination by the Guarantors pursuant to clause (ii) of this Section 5 may be
based on, among other things, the occurrence of any of the following:
(a) a thirty (30) day delay in the construction
schedule with respect to the Casino which is reasonably believed by the
Guarantors to have a materially adverse impact on the Completion Budget or the
timely completion of the Casino;
(b) a cost overrun of more than Ten Million Dollars
($10,000,000) in the aggregate in any one or more line items of a construction
budget for the Casino approved by the Company prior to a notice to proceed as
given by the Company pursuant to the construction contracts for the Casino;
(c) a notice of default sent to the Company by any
contractor that has not been cured or withdrawn within ten (10) Business Days of
such notice;
(d) the filing of a Lien by any contractor that is
not released and satisfied by the Company or not diligently and continuously
defended by the Company, and, immediately upon the loss of any such defense, is
not released and satisfied by the Company;
(e) the filing of any litigation that materially
jeopardizes the timely completion of the Casino and does not suspend or
terminate the obligations of the Guarantors under the Completion Guarantees
during the pendency of such litigation;
(f) a Default;
(g) the receipt of a notice of default under the
Casino Operating Contract, the General Development Agreement or the Lease,
relating to the construction obligations of the Company; or
(h) the failure of the Company timely to file or
pursue any necessary regulatory approvals from the LGCB or any other state
regulatory authorities necessary for opening the Casino.
6. Repayment of Completion Loan Payment Obligations
(a) APPLICATION OF AVAILABLE CASH FLOW AND AVAILABLE
PROCEEDS OF MAJOR CAPITAL EVENTS. Subject to the provisions of this Agreement
and the Completion Guarantor Subordination Agreements, all outstanding
Completion Loan Payment Obligations shall be paid in arrears on a quarterly
basis on the first (1st) Business Day following the last day of each March,
June, September, and December (each a "Completion Loan Payment Date") from, and
only to the extent of, one hundred percent (100%) of Available Cash Flow for the
month immediately preceding the applicable Completion Loan Payment Date. Subject
to the provisions of this Agreement and the Completion Guarantor Subordination
Agreements, upon the occurrence of a Major Capital Event other then the exercise
of the HET Warrant by the Company, all Completion
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Loan Payment Obligations then outstanding shall be reduced by application of one
hundred percent (100%) of the Available Proceeds of Major Capital Event of such
Major Capital Event.
(b) DEFERRAL PERIODS. During any period in which (i)
payment of the Completion Loan Payment Obligations is prohibited under the terms
of the Credit Agreement or (ii) the Company has paid Fixed Interest in Secondary
Securities (each term as defined in the Indentures) on the New Bonds pursuant to
Section 2.2(e) of the Indentures, the Company shall not be permitted to make any
payment in respect of the Completion Loan Payment Obligations; provided,
however, that interest shall continue to accrue at the Interest Rate on the
Completion Loan Payment Obligations during any period in which the Company is
not permitted to make payments pursuant to this Section 6(b) and such interest
shall be added to the principal amount of the Completion Loan Payment
Obligations.
(c) SUBORDINATION. All payments with respect to the
Obligations (whether to be made to HET, HOCI or any of their successors and
assigns) shall be subject to the terms of (and subordinated in accordance with)
the Completion Guarantor Subordination Agreements.
(d) RIGHT TO RECEIVE AUDIT REPORTS. So long as any
Completion Guarantee or any Obligation is outstanding, at the request of the
Guarantors:
(i) The Company shall prepare and deliver to
the Guarantors, on or before the twentieth (20th) day of each month, a statement
of all income and expenses in connection with the operation of the Casino on a
line item basis for the prior month, which statement shall include a calculation
of Available Cash Flow for the prior month and otherwise be in form satisfactory
to the Guarantors.
(ii) The Company shall deliver to the
Guarantors, on or before March 1 of each year a copy of its audited financial
statement for the preceding calendar year. In the event such audited financial
statement shows that Available Cash Flow for the preceding calendar year was
different from the amount reported by the Company on a monthly basis, the amount
of such difference shall be promptly applied to, or credited against, the
Completion Loan Payment Obligations, as applicable.
(iii) The Company shall maintain accurate
and complete books and records evidencing calculations of Available Cash Flow.
The Guarantors shall have the right at any time upon reasonable notice to
conduct an audit of the books and records of the Company upon which the
Company's calculations of Available Cash Flow are based.
7. Covenants and Restrictions
(a) Covenants
(i) The Company may incur any Debt or Lien
issued in exchange for, or the proceeds from the issuance and sale of which are
used substantially concurrently to repay, redeem, defease, refund, refinance,
discharge or otherwise retire for value, in whole or in part (a "Refinancing",
or as appropriate, to "Refinance") the Bank Debt, the New Bonds, or the New
12
Contingent Bonds ("Refinanceable Debt") in a principal amount not to exceed
(after deduction of reasonable and customary fees and expenses incurred in
connection with the Refinancing) the lesser of (i) the principal amount of the
Refinanceable Debt so Refinanced, and (ii) if such Refinanceable Debt being
Refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such Refinancing
plus, in either case, the lesser of the amount of premium actually paid at such
time to Refinance the Refinanceable Debt and the stated amount of any premium
required to be paid in connection with such a Refinancing pursuant to the terms
of the Refinanceable Debt being Refinanced ("Refinancing Indebtedness".
(ii) Except with respect to the New Bonds,
the New Contingent Bonds, the Bank Debt, the Subordinated Credit Facility, any
lien arising in respect of the State Guarantor First Mortgage (as defined in the
Management Agreement) and any Refinancing Indebtedness pursuant to Section
7(a)(i) hereof, any Debt or Lien incurred, modified, renewed or replaced by the
Company shall be permitted only to the extent permitted by the Indentures as in
effect on the Plan Consummation Date.
(iii) The Company shall use all Available
Funds for the construction and development of the Casino.
(b) RESTRICTED ACTS. Except as permitted by the
Indentures, the Company shall not:
(i) declare or make or become irrevocably
committed to make any redemption, acquisition or other manner of return of the
capital invested in the Company by a shareholder;
(ii) consolidate or merge with or into any
other entity;
(iii) dissolve the Company; or
(iv) sell, lease or otherwise transfer or
dispose of, directly or indirectly, all or any substantial part of the property
of the Company.
(c) MAINTENANCE OF SEPARATE ACCOUNTS, BOOKS AND
RECORDS. The Company and the Guarantors agree that:
(i) separate accounts, books and records
shall be maintained with respect to (A) funds generated by, and available for,
the operation of the Casino, including, without limitation, amounts drawn under
the Revolving Loan, and (B) funds available to fund the costs of construction of
the Casino, including, without limitation, any amounts necessary to fund any
items to be funded from the Project Account (as defined in the Credit Agreement)
and drawn under any or all of the Term Loans, the Revolving Loan (prior to the
Termination of Construction Date (as defined in the Completion Guarantees) and
subject to Section 2(c)(ii) hereof), the Convertible Junior Subordinated
Debentures and the Subordinated Credit Facility. No funds held in respect of the
operation of the Casino shall be commingled with any funds held to fund the
costs of construction of the Casino; and
13
(ii) within forty-five (45) days following
the Termination of Construction Date, the Company shall have its accountants
audit its books and records maintained pursuant to Section 7(c)(i) hereof and
all amounts expended to construct the Casino. If such audit determines that the
amounts in the aggregate expended for the items to be funded from the Project
Account (as defined in the Credit Agreement) through the Termination of
Construction Date were in excess of the costs to be funded from the Project
Account (as defined in the Credit Agreement), the Guarantors shall reimburse to
the Company within fifteen (15) days following the date of issuance of such
audit an amount equal to the difference between the costs to be funded from the
Project Account (as defined in the Credit Agreement) and the actual amount
expended for the items to be funded from the Project Account (as defined in the
Credit Agreement) as determined by the audit. Any amounts so reimbursed to the
Company by the Guarantors shall be a Completion Loan under this Agreement.
(d) TERMINATION OF COVENANTS. All covenants set forth
in this Section 7 shall terminate only upon the satisfaction in full of all of
the Obligations, and the satisfaction and release of all of the Completion
Guarantees.
8. Default
(a) EVENTS OF DEFAULT. It shall be a default (a
"Default") under this Agreement, if any one or more of the following events
occur:
(i) failure of the Company to make payment
of any principal or interest on any Completion Loan or any costs and expenses
pursuant to Section 20(m) hereof within ten (10) Business Days following notice
to the Company that such payments are due and payable in accordance with the
terms of this Agreement and the Completion Guarantor Subordination Agreements;
(ii) a breach by the Company of any other
material obligation pursuant to any of the Completion Loan Documents following
notice of such breach to the Company and failure of the Company to cure such
breach within a period of thirty (30) days following such notice;
(iii) acceleration of any of the Prior Debt
with an aggregate principal amount in excess of $50,000,000 following notice to
the Company of such acceleration and failure of the Company to cure such
acceleration within a period of thirty (30) days following such notice, other
than any such acceleration resulting from the failure of the Guarantors to
perform the Completion Guarantees;
(iv) commencement of any case or proceeding
seeking liquidation, reorganization or other relief with respect to the Company
or its Debt under any bankruptcy, insolvency, or other similar law now or
hereafter in effect, or, seeking the appointment of a trustee, receiver,
liquidator, custodian or similar official of the Company or the property of the
Company, which, in the case of an involuntary proceeding only, is not dismissed
within ninety (90) days after its commencement, or if the Company shall consent
to any such relief or to the appointment of or
14
taking possession by any such official in any involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of its creditors, or shall take any corporate action to authorize any of
the foregoing;
(v) the liquidation, sale or dissolution of
the Company; or
(vi) the termination of the Management
Agreement or removal of the Manager as the manager of the Casino (other than as
a result of a voluntary termination by the Manager or a default by the Manager
thereunder or the termination of the Management Agreement by the Company 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;
provided that notwithstanding the occurrence of a Default, HET and HOCI (and
their successors and assigns) shall forbear from exercising (and shall not be
permitted to exercise) any remedies hereunder if any Prior Debt is then
outstanding.
(b) ACTS OR OMISSIONS OF HET AND MANAGER. No act or
omission of HET or any subsidiary of HET as a shareholder of the Manager or of
the Company's sole member, JCC Holding Company, and no damage caused by the
Guarantors in the exercise of rights granted by the Entry Agreement or pursuant
to Section 14(b) hereof shall in any way delay, postpone, restrain or otherwise
interfere with the exercise by the Guarantors of any of their remedies hereunder
or under the other Completion Loan Documents; provided, however, that nothing
contained herein shall limit the liability of the Manager under the Management
Agreement or the Guarantors under Section 5 hereof.
9. Remedies
(a) Upon the occurrence and during the continuance of
a Default, the Guarantors shall have the right immediately to declare due and
owing any or all of the Obligations with notice to the Company, but without
demand to the Company; provided that so long as any Prior Debt is outstanding,
HET and HOCI may not declare the Obligations immediately due and owing until
such outstanding Prior Debt has also been declared immediately due and owing.
Except as otherwise limited by the terms of this Agreement or the Completion
Guarantor Subordination Agreements, the Guarantors shall have all other rights
and remedies available at law or equity, under this Agreement or under any other
agreements entered into by the Guarantors or any of their Affiliates, and each
such agreement and rights and remedies may be enforced separately and
independently.
(b) Interest on any Obligations not paid when due
hereunder shall accrue at the Default Rate, provided that no interest or other
payments pursuant to this Agreement shall be due or payable (and the Default
Rate shall not apply) so long as JCC is prohibited from making payments by the
terms of this Agreement or the Completion Guarantor Subordination Agreements.
15
10. OBLIGATIONS ABSOLUTE. All Obligations, unless otherwise
specifically provided herein, are unconditional, irrevocable and continuing
until paid and performed in full, and shall be paid and performed in strict
accordance with the terms of this Agreement under all circumstances, including
without limitation, the following:
(a) any lack of validity or enforceability of any of
the Completion Guarantees;
(b) other than with respect to liquidated, final
non-appealable judgments against the Guarantors for damages payable under
Section 5 hereof, the existence of any claim, set-off, defense or other right
that the Company or any party hereto may have at any time against any
Guarantor, or any Affiliate of any Guarantor, or any other Person, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction; and
(c) any forgery, fraud, misrepresentation or
insufficiency or breach of representation or warranty, in any respect, of any
Person, other than forgery or fraud of either Guarantor in connection with this
Agreement.
11. PURCHASE OF BANK NOTES. The Company recognizes that the
Guarantors may succeed to the rights and remedies of the Lenders at any time
before foreclosure with respect to the Bank Debt, and all documents related
thereto and security therefor, including without limitation the Credit
Agreement, mortgage and other security agreements, instruments and documents
encumbering the Casino or evidencing or securing payment of the Bank Debt (and
any rights or property used in connection therewith relating thereto or arising
therefrom, and the proceeds thereof).
12. RIGHTS OF THE GUARANTORS. Subject to the terms and
conditions of this Agreement, the Guarantors may, at any time and from time to
time, without consent of the Company, and without incurring responsibility to
the Company, and without impairing or releasing the obligations of the Company,
exercise or refrain from exercising any rights against the Company or any other
collateral or guarantee which may secure the Obligations or otherwise act or
refrain from acting (or consent to any such action or inaction).
13. COMPLETION GUARANTEE PROTECTIONS. Recognizing that the
Guarantors will be assuming significant risk in issuing the Completion
Guarantees, the Company agrees that,
(a) the general contract for construction of the
Casino and related contract documents referred to herein shall be in a form
approved in writing by the Guarantors, and
(b) the Guarantors, on behalf of the Company, may
take any actions necessary to cause the opening of the Casino to occur in
accordance with the terms of the Completion Guarantees, including, without
limitation, to pursue any necessary regulatory approvals from the LGCB or any
other state regulatory authorities necessary for opening the Xxxxxx.
00
00. Waivers; Modifications
(a) WAIVERS GENERALLY. No failure or delay on the
part of the Guarantors to insist on strict performance in exercising any
privilege, right or remedy shall operate as a waiver thereof or a waiver of any
term, provision or condition hereof, nor shall any single or partial exercise of
any privilege, right or remedy preclude any other or further exercise thereof or
the exercise of any other privilege, right or remedy.
(b) NO CONTINUING WAIVERS. A waiver in one or more
instances of any of the terms, covenants, conditions or provisions hereof shall
apply to the particular instance or instances and at the particular time or
times only, and no such waiver shall be deemed a continuing waiver, but all of
the terms, covenants, conditions and other provisions of this Agreement shall
survive and continue to remain in full force and effect; and no waiver shall be
effective unless in writing, dated and signed by the Guarantors.
(c) MODIFICATIONS. No change, amendment,
modification, cancellation or discharge hereof, or any part hereof, shall be
valid unless in writing, dated and signed by the party against whom such change,
amendment, modification, cancellation or discharge is sought to be charged.
15. LENDER REDEMPTION. If the holder of a Completion Loan (the
"Holder") is required to qualify or be found suitable under any applicable
gaming law, regulation, rule or order and does not so qualify or otherwise does
not meet the suitability standards pursuant to any applicable gaming law,
regulation, rule or order, the Holder shall and hereby agrees to sell the
Completion Loan to a suitable holder or holders (the "Substitute Holder") that
assume(s) and accept(s) the rights and obligations of the Holder hereunder and
under the Completion Guarantor Subordination Agreements. If the Holder fails to
sell the Completion Loan to a Substitute Holder within thirty (30) days of being
determined unsuitable or unqualified, or such lesser period of time as specified
by any applicable gaming law, regulation, rule or order, the Company may
designate a Substitute Holder within an additional thirty (30) day period, or
such lesser period of time as specified by any applicable gaming law,
regulation, rule or order, or may at its election upon written notice to the
Holder, subject to all restrictions of any applicable gaming law, regulation,
rule or order, immediately redeem the Holder's Completion Loan by payment of all
principal, interest and other amounts due with respect to such Completion Loan.
To the extent and for so long as required by any applicable gaming law,
regulation, rule or order, the Holder agrees that upon the Holder being
determined unsuitable or unqualified, the redemption of the Holder's Completion
Loan and all payments to and rights of such Holder shall be subject to all
restrictions of any applicable gaming law, regulation, rule or order.
16. NO RIGHT OF OFFSET. Other than with respect to liquidated,
final non-appealable judgments against the Guarantors for damages payable under
Section 5 hereof, no offset or claim that the Company or any shareholder of the
Company now or may in the future have against the Guarantors, any of their
Affiliates or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction, shall relieve the
Company from paying any amounts owing hereunder.
17
17. INDEMNIFICATION. The Company hereby indemnifies and agrees
to defend the Indemnified Parties and to hold each of them harmless from any
cost, expense, liability, loss, or damage, including, without limitation,
reasonable attorneys' fees, incurred by any of them as a result of their
exercise of any rights or remedies under any of the Completion Loan Documents,
and from any and all claims and demands whatsoever that may be asserted against
the Indemnified Parties, or any of them, by reason of any alleged obligations or
undertakings on their part to perform the Entry Agreement or any of the
contracts or other property assigned to the Guarantors pursuant to the
Assignment of Contracts or exercise their rights pursuant to Section 13(b)
hereof; provided that the Guarantors shall not be indemnified for their bad
faith or willful misconduct or any damages for which the Guarantors are
determined by a liquidated, final non-appealable judgment to be liable pursuant
to Section 5 hereof.
18. GAMING REGULATIONS. This Agreement and any remedies
contemplated hereby, are and shall remain subject to the Louisiana Economic
Development and Gaming Corporation Act, La.R.S. 27:1 et seq., La.R.S. 27:201 et
seq. and the rules and regulations thereunder (collectively, as may be amended
from time to time the "Louisiana Gaming Regulations"), and the exercise of
remedies hereunder will be subject to the Louisiana Gaming Regulations.
19. Miscellaneous.
(a) ENTIRE AGREEMENT. This Agreement represents the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and all prior agreements, understandings, representations
and warranties in regard to the subject matter hereof, including, without
limitation, the Prior Completion Loan Agreement, are and have been merged herein
and are superseded hereby.
(b) GOVERNING LAW. This Agreement and the rights of
the parties hereunder shall be governed by and interpreted in accordance with
the internal laws of the State of New York without application of conflict of
laws principles.
(c) NOTICES. The address of the Company, the
Guarantors, the Trustee, and the Administrative Agent under and as defined in
the Credit Agreement shall for all purposes be as set forth below unless
otherwise changed by the applicable party hereto by notice to the others as
provided herein.
Company: Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: President
18
HOCI and HET: Xxxxxx'x Operating Company, Inc.
Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to the Corporate Secretary at
the same address
Trustee: Norwest Bank Minnesota, N.A.
Norwest Center
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxx XxXxxxx - Corporate Trust
Department
Administrative Agent: Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxx Xxxxx
All notices or other communications required or permitted to be given pursuant
to the provisions of this Agreement shall be in writing and shall be considered
as properly given if mailed by certified United States mail, postage prepaid,
with return receipt requested, by overnight courier service, or by facsimile
transmission with reception confirmed. Notices hereunder in any manner shall be
effective only if and when received by the addressee. Certified mail receipt or
express courier receipt at the above addresses shall establish receipt for
purposes of notices under this Agreement. Either the Company, the Trustee, the
Administrative Agent or the Guarantors may from time to time, by notice in
writing served upon the others as aforesaid, designate a different mailing
address or facsimile number to which, or a different person to whose attention,
all such notices or demands are thereafter to be sent.
(d) SUCCESSORS AND ASSIGNS. Other than the
Guarantors, no party hereto shall assign its rights or obligations under this
Agreement without the prior written consent of the remaining parties hereto; and
none of HET, HOCI or any of their successors and assigns shall assign any of its
rights or obligations under this Agreement unless the respective assignee agrees
in writing to be bound by the terms of the Completion Guaranator Subordination
Agreements. Subject to the foregoing, this Agreement (which shall at all times
be subject to the terms of the Completion
19
Guarantor Subordination Agreements) shall be binding upon and inure to the
benefit of the parties hereto, their successors, assigns, heirs, legal
representatives, executors and administrators.
(e) GRAMMATICAL CHANGES. Whenever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter gender as the circumstances require.
(f) CAPTIONS. Captions contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit or
extend the scope or intent of this Agreement or any provision hereof.
(g) SEVERABILITY. If any provision of this Agreement,
or the application of such provision to any Person or circumstance, shall be
held invalid, the remainder of this Agreement, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby; provided that the parties hereto shall
attempt to reformulate such invalid provision to give effect to such portions
thereof as may be valid without defeating the intent of such provision and the
economic burdens and benefits of this Agreement are not impaired.
(h) COUNTERPARTS. This Agreement, or any amendment
hereto, may be executed in multiple counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same instrument,
notwithstanding that all of the parties hereto are not signatories to the
original or the same counterpart. In addition, this Agreement, or any amendment
hereto, may contain more than one counterpart of the signature pages, and this
Agreement, or any amendment hereto, may be executed by the affixing of the
signatures of each of the parties hereto to one of such counterpart signature
pages; all of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
(i) NO THIRD PARTY RIGHTS. This Agreement is for the
sole and exclusive benefit of the parties hereto designated herein and no other
Person shall under any circumstances be deemed to be a beneficiary of any of the
rights, remedies, terms and provisions of this Agreement.
(j) VOLUNTARY AGREEMENT. Each party hereto has
entered into this Agreement freely and voluntarily, without coercion, duress,
distress, or undue influence by any other Persons or their respective
shareholders, directors, officers, partners, agents or employees.
(k) ADVICE FROM COUNSEL. Each party hereto
understands that this Agreement 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 Agreement and is
satisfied with its legal counsel and the advice received from it.
(l) JUDICIAL INTERPRETATION. Should any provision of
this Agreement 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
20
construction that a document is to be construed more strictly against the party
who prepared the same.
(m) ATTORNEYS' FEES. If any party hereto brings any
judicial action or proceeding to enforce its rights under this Agreement, 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.
(n) PERMITTED ACTIONS. Each of the parties hereto
acknowledges and agrees that the Guarantors may take any separate action or
actions to the extent permitted under this Agreement as it shall determine in
its sole discretion to be in its own best interest.
21
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement effective as of the day and year first above written.
JAZZ CASINO COMPANY, L.L.C., a Louisiana
limited liability company,
By /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Title: President
------------------------------------
XXXXXX'X OPERATING COMPANY, INC., a
Delaware corporation
By /s/ Xxxxxx X. Xxxxxxxx XX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx XX
-------------------------------------
Title: V. P.
------------------------------------
XXXXXX'X ENTERTAINMENT, INC., a Delaware
corporation
By /s/ Xxxxxx X. Xxxxxxxx XX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx XX
-------------------------------------
Title: V. P.
------------------------------------
AS TO THE PROVISIONS OF
SECTIONS 2(c)(iii) and (iv) ONLY:
Agreed and accepted Oct 30, 1998
by: -------
BANKERS TRUST COMPANY, as
Administrative Agent for Lenders
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------
Title: VICE PRESIDENT
--------------------------
SIGNATURE PAGE
TO
COMPLETION LOAN AGREEMENT
EXHIBIT A
FORM OF ASSIGNMENT OF CONTRACTS AND ANCILLARY RIGHTS
A-1
EXHIBIT B
FORMS OF CONSENT AND ATTORNMENT AGREEMENT
B-1
EXHIBIT C
ENTRY AGREEMENT
C-1
