Exhibit 10.11
AMENDED AND RESTATED
CONSTRUCTION LIEN INDEMNITY OBLIGATION AGREEMENT
THIS AMENDED AND RESTATED CONSTRUCTION LIEN INDEMNITY
OBLIGATION AGREEMENT (the "Agreement") is entered into on this 30th day of
October, 1998, by and between JAZZ CASINO COMPANY, L.L.C., a Louisiana limited
liability company (the "Company") and XXXXXX'X OPERATING COMPANY, INC., a
Delaware corporation ("HOCI").
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 Construction Lien
Indemnity Obligation Agreement dated as of October 12, 1994, as amended by that
certain First Amendment to the Construction Lien Indemnity Obligation Agreement
dated as of November 8, 1994, by and among HJC, HOCI (formerly known as Embassy
Suites, Inc.), 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 Construction Lien
Indemnity Obligation Agreement").
D. The Plan requires the amendment and restatement of the
Prior Construction Lien Indemnity Obligation Agreement in its entirety in
accordance with the terms hereof.
E. The parties desire to amend and restate the Prior
Construction Lien Indemnity Obligation Agreement on the terms and conditions set
forth herein.
F. The Company and HOCI desire to set forth in this Agreement
their understandings regarding certain obligations between the parties with
respect to that certain Construction Lien Indemnity Agreement (the "Construction
Lien Indemnity Agreement") indemnifying the Company's title insurers regarding
mechanic's liens claiming priority to (i) the Term Loans (as defined herein),
(ii) the Revolving Loan (as defined herein), (iii) the Senior Subordinated Notes
due 2009 with Contingent Payments issued by the Company pursuant to that certain
Indenture entered into pursuant to the Plan, and (iv) the Senior Subordinated
Contingent
Notes due 2009 issued by the Company pursuant to that certain Indenture entered
into pursuant to the Plan (the "Indenture").
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. Capitalized terms shall have the meaning
ascribed herein. 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.
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 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.
Credit Agreement. "Credit Agreement" shall mean that certain
Credit Agreement to be entered into by and among the Company, JCC Holding
Company, Bankers Trust Company, as lender and administrative agent, and certain
other lenders pursuant to the Plan, and all other loan and security documents
governing the terms of the Term Loans and the Revolving Loan.
Person. "Person" shall mean any individual, partnership,
limited liability company, corporation, unincorporated association, joint
venture, trust or other entity.
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.
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Revolving Loan. "Revolving Loan" shall mean the revolving
credit facility to be obtained by the Company on the effective date of the Plan
which shall not exceed Twenty Five Million Dollars ($25,000,000) in aggregate
principal amount, including a subfacility of up to Ten Million Dollars
($10,000,000) to be available for letters of credit, and which shall have the
terms and conditions set forth in the Credit Agreement.
Subordinated Loan Agreement. "Subordinated Loan Agreement"
shall mean that certain Subordinated Loan Agreement to be entered into by the
Company, HOCI and Xxxxxx'x Entertainment, Inc., providing for a loan to the
Company in an amount not to exceed Twenty Two Million Five Hundred Thousand
Dollars ($22,500,000).
Term Loans. "Term Loans" shall mean the A Term Loans and the B
Term Loans as defined in, and to be obtained pursuant to, the Credit Agreement
by the Company on the effective date of the Plan which shall not exceed Two
Hundred Eleven Million Five Hundred Thousand Dollars ($211,500,000) in aggregate
principal amount and shall have such other terms and conditions as shall be set
forth in the Credit Agreement.
2. Construction Lien Indemnity Obligation
(a) The Company and HOCI have been required to
deliver the Construction Lien Indemnity Agreement. Any amounts funded by HOCI
pursuant to the Construction Lien Indemnity Agreement shall thereupon be an
obligation of the Company to HOCI payable upon demand by HOCI (each a
"Construction Lien Indemnity Obligation" and collectively, the "Construction
Lien Indemnity Obligations").
(b) All payments with respect to the Construction
Lien Indemnity Obligations (whether to be made to HOCI or any of its successors
and assigns) shall be subject to the terms of (and subordinated in accordance
with) the Completion Guarantor Subordination Agreements.
3. Interest Rate. Each Construction Lien Indemnity Obligation
shall bear interest from the date incurred until repayment in full at a rate
(the "Interest Rate") equal to the lower of (i) eight percent (8%) per annum and
(ii) the maximum rate permitted by applicable law.
4. Deferral. During any period in which (i) payment of the
Construction Lien Indemnity 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 Indenture) on the New Bonds pursuant to
Section 2.2(e) of the Indenture, the Company shall not be permitted to make any
payment in respect of the Construction Lien Indemnity Obligations; provided
however, that interest shall continue to accrue at the Interest Rate on the
Construction Lien Indemnity Obligations during any period in which the Company
is not permitted to make payments pursuant to this Section 4 and such interest
shall be added to the principal amount of the Construction Lien Indemnity
Obligations.
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5. Obligations Absolute. Subject to the terms and provisions
of this Agreement and the Completion Guarantor Subordination Agreements, all
obligations under this Agreement, 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 the
Construction Lien Indemnity Agreement;
(b) any forgery, fraud, misrepresentation or
insufficiency or breach of representation or warranty, in any respect, of any
Person, other than forgery or fraud of HOCI in connection with this Agreement.
6. Waivers; Modifications
(a) No failure or delay on the part of HOCI 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) 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 HOCI.
(c) 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.
7. No Right of Offset. Other than with respect to liquidated,
final non-appealable judgments against HOCI, no offset or claim that the Company
or any of its Affiliates now or may in the future have against HOCI, or any
Affiliate of HOCI 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.
8. 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 are and have been merged
herein and are superseded hereby.
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(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 and HOCI
shall for all purposes be as set forth below unless otherwise changed by the
applicable party hereto by notice to the other 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
HOCI: Xxxxxx'x Operating Company, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to Corporate Counsel at the
same address
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 party may from time
to time, by notice in writing served upon the other as aforesaid, designate a
different mailing address to which, or a different person to whose attention,
all such notices or demands are thereafter to be addressed.
(d) Successors and Assigns. No party shall assign its
rights and obligations under this Agreement without the prior written consent of
the parties hereto, except that HOCI may assign all or any portion of its right
to receive funds pursuant to this Agreement if the assignee agrees in writing to
be bound by the terms of the Completion Guarantor Subordination Agreements.
Subject to the foregoing, this Agreement (which shall at all times be subject to
the terms of the Completion 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.
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(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 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
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construction that a document is to be construed more strictly against the party
hereto 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) Waiver. Each of the parties hereto acknowledges
and agrees that any shareholder of the Company or any Affiliate of such
shareholder may take any separate action or actions as it shall determine in its
sole discretion to be in its own best interest with respect to the Company under
this Agreement notwithstanding the fact such party may have other roles with
respect to the Company under other agreements. Such shareholder or Affiliate of
such shareholder shall not be deemed to have acted in bad faith or breached any
fiduciary or other duty to the Company for so acting in its best interest under
this Agreement. Each party hereto hereby expressly waives (i) any claim of bad
faith or breach of fiduciary duty for any such action or actions which any party
hereto or its Affiliates may take in its own best interest under this Agreement,
and (ii) any defenses to enforcement of this Agreement or any exercise of any
rights or remedies under this Agreement based on any such claims of bad faith or
breach of fiduciary or other duty to the Company under any other agreement.
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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
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Name: Xxxxxxxxx X. Xxxxxxx
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Title: President
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XXXXXX'X OPERATING COMPANY, INC.,
a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxxx XX
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Name: Xxxxxx X. Xxxxxxxx XX
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Title: V.P.
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[SIGNATURE PAGE TO
AMENDED AND RESTATED CLIOA]
