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EXHIBIT T3C
JAZZ CASINO COMPANY, L.L.C.,
ISSUER,
JCC HOLDING COMPANY,
JCC CANAL DEVELOPMENT, L.L.C.,
JCC XXXXXX DEVELOPMENT, L.L.C. AND
JCC DEVELOPMENT COMPANY, L.L.C.,
GUARANTORS,
AND
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
INDENTURE
Dated as of March 30, 2001
$124,520,000
Senior Notes due 2008
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1) ................................................ 7.10
(a)(2) ................................................ N.A.
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(a)(5) ................................................ 7.10
(b) ................................................... 7.10
(c) ................................................... N.A.
311 (a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312 (a) ................................................... N.A.
(b) ................................................... 11.3
(c) ................................................... 11.3
313 (a) ................................................... 7.6
(b) ................................................... 7.6
(c) ................................................... 7.6
314 (a) ................................................... 5.2
(b) ................................................... N.A.
(c) .................................... 4.1(c); 4.2(d)
(d) .................................... 4.1(c); 4.2(d); 4.5
(e) ................................................... N.A.
(f) ................................................... N.A.
315 (a) ................................................... N.A.
(b) ................................................... N.A.
(c) ................................................... N.A.
(d) ................................................... N.A.
(e) ................................................... N.A.
316 (a)(last sentence) .................................... N.A.
(a)(1)(A) ............................................. N.A.
(a)(1)(B) ............................................. N.A.
(a)(2) ................................................ N.A.
(b) ................................................... N.A.
317 (a)(1) ................................................ N.A.
(a)(2) ................................................ N.A.
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(b) ................................................... N.A.
318 (a) ................................................... N.A.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE .................................... 1
Section 1.1. Definitions ............................................... 1
Section 1.2. Incorporation by Reference of TIA ......................... 34
Section 1.3. Rules of Construction ..................................... 35
ARTICLE II
THE SECURITIES ................................................................ 35
Section 2.1. Form, Dating and Conditions to Issuance ................... 35
Section 2.2. Execution and Authentication .............................. 36
Section 2.3. Principal Repayments ...................................... 38
Section 2.4. Registrar and Paying Agent ................................ 39
Section 2.5. Paying Agent to Hold Assets in Trust ...................... 40
Section 2.6. Securityholder Lists ...................................... 41
Section 2.7. Transfer and Exchange ..................................... 41
Section 2.8. Replacement Securities .................................... 41
Section 2.9. Outstanding Securities .................................... 42
Section 2.10. Treasury Securities ...................................... 42
Section 2.11. Temporary Securities ..................................... 43
Section 2.12. Cancellation ............................................. 43
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Section 2.13. Defaulted Interest ....................................... 43
ARTICLE III
REDEMPTION .................................................................... 45
Section 3.1. Right of Redemption ....................................... 45
Section 3.2. Notices to Trustee ........................................ 45
Section 3.3. Notice of Redemption ...................................... 45
Section 3.4. Effect of Notice of Redemption ............................ 46
Section 3.5. Deposit of Redemption Price ............................... 46
Section 3.6. Securities Redeemed I ..................................... 47
Section 3.7. Regulatory Redemption Event ............................... 47
ARTICLE IV
SECURITY ...................................................................... 47
Section 4.1. Security Interest ......................................... 47
Section 4.2. Recording; Opinions of Counsel ............................ 48
Section 4.3. Disposition of Certain Collateral ......................... 49
Section 4.4. Net Cash Proceeds Account ................................. 51
Section 4.5. Certain Releases of Collateral ............................ 52
Section 4.6. Lien Priorities ........................................... 52
Section 4.7. Payment of Expenses ....................................... 53
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Section 4.8. Suits to Protect the Collateral ........................... 53
Section 4.9. Trustee's Duties .......................................... 54
Section 4.10. Security Documents ....................................... 54
ARTICLE V
COVENANTS ..................................................................... 55
Section 5.1. Payment of Securities ..................................... 55
Section 5.2. Information Covenants; Compliance Certificate;
Notice of Default ............................................................. 55
Section 5.3. End of Fiscal Years; Fiscal Quarters ...................... 61
Section 5.4. Maintenance of Office or Agency ........................... 61
Section 5.5. Limitation on Restricted Payments ......................... 62
Section 5.6. Existence ................................................. 64
Section 5.7. Payment of Taxes and Other Claims ......................... 64
Section 5.8. Maintenance of Insurance .................................. 64
Section 5.9. Reports ................................................... 65
Section 5.10. Waiver of Stay, Extension or Usury Laws .................. 65
Section 5.11. Transactions with Affiliates ............................. 66
Section 5.12. Limitation on Incurrence of Additional Indebtedness ...... 67
Section 5.13. Limitation on Liens ...................................... 68
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Section 5.14. Consolidation, Merger, Purchase or Sale of
Assets, Etc. ............................................. 71
Section 5.15. Limitation on Payments of Certain Indebtedness,
Modifications of Certain Indebtedness, Modifications
of Certificate of Incorporation, By-laws and Certain
Other Agreements, Etc. ................................... 72
Section 5.16. Listing of Securities .................................... 74
Section 5.17. Compliance with Environmental Laws ....................... 74
Section 5.18. Capital Expenditures ..................................... 75
Section 5.19. Advances, Investments and Loans .......................... 76
Section 5.20. Limitation on Certain Restrictions on Subsidiaries ....... 77
Section 5.21. Business ................................................. 77
Section 5.23. Notices .................................................. 79
Section 5.24. Minimum Consolidated EBITDA .............................. 79
Section 5.25. Limitation on Issuance of Equity Interests ............... 79
Section 5.26. Limitation on Creation of Subsidiaries ................... 79
Section 5.27. Casino Manager ........................................... 79
Section 5.28. Separateness from Unrestricted Subsidiaries .............. 80
Section 5.29. Limitation on Certain Outstanding Obligations ............ 81
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES ............................................... 83
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Section 6.1. Events of Default ......................................... 83
Section 6.2. Acceleration of Maturity Date; Rescission and
Annulment ................................................. 88
Section 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee ................................................ 89
Section 6.4. Trustee May File Proofs of Claim .......................... 90
Section 6.5. Trustee May Enforce Claims Without Possession of
Securities ................................................ 91
Section 6.6. Priorities ................................................ 91
Section 6.7. Limitation on Suits ....................................... 92
Section 6.8. Unconditional Right of Holders to Receive Principal
and Interest .............................................. 92
Section 6.9. Rights and Remedies Cumulative ............................ 93
Section 6.10. Delay or Omission Not Waiver ............................. 93
Section 6.11. Control by Holders ....................................... 93
Section 6.12. Waiver of Past Default ................................... 93
Section 6.13. Undertaking for Costs .................................... 94
Section 6.14. Restoration of Rights and Remedies ....................... 94
ARTICLE VII
TRUSTEE ...................................................................... 95
Section 7.1. Duties of Trustee ......................................... 95
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Section 7.2. Rights of Trustee ......................................... 96
Section 7.3. Individual Rights of Trustee .............................. 97
Section 7.4. Trustee's Disclaimer ...................................... 98
Section 7.5. Notice of Default ......................................... 98
Section 7.6. Reports by Trustee to Holders ............................. 98
Section 7.7. Compensation and Indemnity ................................ 98
Section 7.8. Replacement of Trustee .................................... 100
Section 7.9. Successor Trustee by Xxxxxx, Etc. ......................... 101
Section 7.10. Eligibility; Disqualification ............................ 101
Section 7.11. Preferential Collection of Claims Against Company ........ 101
ARTICLE VIII
RIGHT TO REQUIRE REPURCHASE ........................................ 102
Section 8.1. Repurchase of Securities at Option of the Holder
upon Change of Control or Regulatory Redemption Event ..... 102
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS ................................ 105
Section 9.1. Supplemental Indentures Without Consent of Holders ........ 105
Section 9.2. Amendments, Supplemental Indentures and Waivers
with Consent of Holders ................................... 106
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Section 9.3. Compliance with TIA ....................................... 107
Section 9.4. Revocation and Effect of Consents ......................... 107
Section 9.5. Notation on or Exchange of Securities ..................... 108
Section 9.6. Trustee to Sign Amendments, Etc. .......................... 109
Section 9.7. Consent to Certain Amendments of the Ground
Lease; Trustee's Actions .................................. 109
ARTICLE X
GUARANTY ..................................................................... 110
Section 10.1. Guaranty ................................................. 110
Section 10.2. Parent Guaranty .......................................... 112
Section 10.3. Execution and Delivery of Guaranty ....................... 114
Section 10.4. Future Subsidiary Guarantors ............................. 114
Section 10.5. Release of Guarantors .................................... 115
Section 10.6. When the Guarantor May Merge, Etc. ....................... 116
Section 10.7. Certain Bankruptcy Events ................................ 117
ARTICLE XI
MISCELLANEOUS ................................................................ 117
Section 11.1. TIA Controls ............................................. 117
Section 11.2. Notices .................................................. 118
Section 11.3. Communications by Holders with Other Holders ............. 119
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Section 11.4. Certificate and Opinion as to Conditions Precedent ....... 119
Section 11.5. Statements Required in Certificate or Opinion ............ 120
Section 11.6. Rules by Trustee, Paying Agent, Registrar ................ 120
Section 11.7. Legal Holidays ........................................... 120
Section 11.8. Governing Law ............................................ 120
Section 11.9. No Adverse Interpretation of Other Agreements ............ 121
Section 11.10. No Recourse Against Others; Holders Acting in
Own Best Interests ...................................... 121
Section 11.11. Successors .............................................. 122
Section 11.12. Duplicate Originals ..................................... 122
Section 11.13. Severability ............................................ 122
Section 11.14. Table of Contents, Headings, Etc. ....................... 122
Section 11.15. Gaming Laws ............................................. 122
Section 11.16. Tax Treatment ........................................... 123
Section 11.17. Xxxxxxx and Releases .................................... 123
Section 11.18. Post-Closing Items ...................................... 126
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INDENTURE, dated as of March 30, 2001, among Jazz Casino Company,
L.L.C., a Louisiana limited liability company ("JCC" or the "Company"), as
issuer, JCC Holding Company, a Delaware corporation ("JCC Holding"), JCC Canal
Development, L.L.C., a Louisiana limited liability company ("Canal
Development"), JCC Xxxxxx Development, L.L.C., a Louisiana limited liability
company ("Xxxxxx Development"), and JCC Development Company, L.L.C., a Louisiana
limited liability company ("JCC Development"), as guarantors, and Xxxxx Fargo
Bank Minnesota, National Association, as Trustee.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Company's Senior
Notes due 2008 (the "Senior Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"ADDITIONAL MORTGAGE" shall have the meaning provided in Section
5.22(a).
"ADDITIONAL MORTGAGED PROPERTY" shall have the meaning provided in
Section 5.22(a).
"ADDITIONAL SECURITY DOCUMENTS" shall have the meaning provided in
Section 5.22(b).
"ADJUSTED CERTIFICATE OF DEPOSIT RATE"shall mean, on any day, the sum of
(rounded to the nearest 1/100 of 1%) of (i) the rate obtained by dividing (A)
the most recent weekly average dealer offering rate for negotiable certificates
of deposit with a three-month maturity in the secondary market as published in
the most recent Federal Reserve System publication entitled "Select Interest
Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or substitute containing the foregoing rate information shall not be
published by the Federal Reserve System for any week, the weekly average
offering rate determined on the basis of quotations for such certificates
received by it from three certificate of deposit
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dealers in New York of recognized standing or, if such quotations are
unavailable, then on the basis of other reasonable sources, by (B) a percent
equal to the 100% minus the stated maximum rate of all reserve three-month
certificates of deposit of a member bank of the Federal Reserve System in excess
of $100,000 (including, without limitation, any marginal, emergency
supplemental, special or other reserves), plus (ii) the then daily net annual
assessment rate established by the Trustee for determining the current annual
assessment payable by the Trustee to the Federal Reserve Insurance Corporation
for insuring three-month certificates of deposit.
"AFFILIATE" means (i) any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person, (ii)
any spouse, immediate family member, or other relative who has the same
principal residence of any Person described in clause (i) above, and (iii) any
trust in which any Person described in clause (i) or (ii) above has a beneficial
interest. For purposes of this definition, the term "control" means (a) the
power to direct the management and policies of a Person, directly or through one
or more intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, or (b) the beneficial ownership of 30% or more of the
voting Equity Interest of a Person (on a fully diluted basis). Notwithstanding
the foregoing, no holder of Equity Interests of JCC Holding received pursuant to
the Plan of Reorganization (other than HET and its Subsidiaries and Affiliates)
shall constitute an Affiliate of the Company or JCC Holding or any of their
Subsidiaries, in each case unless the respective holder acquires control of JCC
Holding or the Company as a result of its beneficial owner- ship of 30% or more
of the voting Equity Interests of JCC Holding or the Company, as the case may
be. Unless the context (or a specific reference) otherwise requires, all
references herein to an "Affiliate" or "Affiliates" shall be references to an
"Affili- ate" or "Affiliates" of the Company or any Guarantor.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means the conveyance, sale, transfer, assignment or other
disposition of, directly or indirectly, any property, business or assets of the
Company or any of its Subsidiaries (other than the Equity Interests or other
interests of an Unrestricted Subsidiary), including, without limitation, any
sale or other transfer or issuance of any Equity Interest of any Subsidiary of
the Company or any sale and leaseback transaction, whether by the Company or a
Subsidiary of the Company or the issuance, sale or transfer of Equity Interests
by a Subsidiary of the Company.
"AUTHORIZED REPRESENTATIVE" means, (i) with respect to any Person that
is a corporation, or any Person that has two or more Officers, any Officer
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thereof, and (ii) with respect to any Person that is a limited liability company
and that has fewer than two Officers, an Officer or the manager of such
liability company, and (iii) with respect to any Person that is a partnership
and that has fewer than two Officers, an Officer of a general partner of such
partnership.
"BANKRUPTCY CODE" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"BANKRUPTCY COURT" shall mean the United States Bankruptcy Court for the
Eastern District of Louisiana having jurisdiction over the bankruptcy case of
the Company.
"BANKRUPTCY LAW" means the Bankruptcy Code or any similar Federal, state
or foreign law relating to bankruptcy, insolvency or the relief of debtors.
"BASE RATE" at any time shall mean the higher of (i) 1% in excess of the
Adjusted Certificate of Deposit Rate as then in effect and (ii) 1/2 of 1% in
excess of the Prime Lending Rate as then in effect.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors (or, if such Person is a limited liability
company, of the manager) of such Person.
"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; provided, that
for purposes of the definition of LIBOR, a Business Day shall be any day which
constitutes a Business Day as set forth above and which is also a day for
trading by and between banks in the London interbank market.
"CANAL DEVELOPMENT" means JCC Canal Development, L.L.C. (f/k/a CP
Development, L.L.C.), a Louisiana limited liability company which, on the Issue
Date, is a direct Wholly-Owned Subsidiary of JCC Holding.
"CANAL DEVELOPMENT MORTGAGE" shall have the meaning provided in Section
I(15) of Exhibit B.
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"CANAL DEVELOPMENT MORTGAGED PROPERTY" shall have the meaning provided
in Section I(15) of Exhibit B.
"CAPITAL EXPENDITURES" means, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
gener- ally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means all rental
obligations that are or will be required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligations shall be the capitalized amount of such
obligations, as determined in accordance with GAAP.
"CASH" means such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
"CASH EQUIVALENT" means (i) securities issued or directly and fully
guaranteed, or secured by the United States of America or any agency or
instrumen- tality thereof (provided, that the full faith and credit of the
United States of America is pledged in support thereof) and in each case
maturing within one year after the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital and surplus in excess of $250,000,000 and commercial paper issued
by others rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in each case maturing within one year after the date of
acquisition, (iii) repurchase obligations with a term of not more than 90 days
collateralized by securities issued or directly and fully guaranteed, or secured
by the United States of America or any agency or instrumentality thereof
(provided, that the full faith and credit of the United States of America is
pledged in support thereof) entered into with any bank or other person meeting
the qualifications specified in clause (ii) above, and (iv) investments in money
market funds substan- tially all of whose assets are comprised of securities of
the types described in clauses (i) through (iii).
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"CASINO" means the casino located at the site of the former Rivergate
Convention Center in New Orleans, Louisiana, together with all support
facilities and improvements appurtenant and related thereto (including, without
limitation, the Poydras Street Support Facility and the Poydras Tunnel Area and
shell construction of the Second Floor), but excluding tenant improvements and
non-gaming develop- ment of the Second Floor.
"CASINO LEASE" shall mean the Amended and Restated Lease Agreement among
the RDC, as landlord, the Company, as tenant, and the City, as intervenor, dated
as of October 29, 1998, as amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"CASINO OPERATING CONTRACT" means the Amended and Renegotiated Casino
Operating Contract among Xxxxxx'x Jazz Company, the Company and the State of
Louisiana by and through the Louisiana Gaming Control Board, dated October 30,
1998, as amended by that certain First Amendment to Amended and Renegotiated
Casino Operating Contract dated October 19, 1999 and further amended by the
Second Amendment to Amended and Renegotiated Casino Operating Contract dated
as of March 30, 2001, as it may be amended or supplemented from time to time.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C.Section 9601 et seq.
"CHANGE OF CONTROL" shall mean (i) HET shall have ceased to man- age,
directly or indirectly through a Wholly-Owned Subsidiary, the Casino, unless HET
has theretofore been terminated as Casino manager in accordance with any
Permitted Termination, (ii) JCC Holding shall at any time cease to own 100% of
the Equity Interests of the Company, (iii) the Board of Directors of JCC Holding
shall not consist of a majority of Continuing Directors or (iv) the acquisition
by any Person or "group" (within the meaning of Sections 13(d) and 14(d) under
the Exchange Act, as in effect on the Issue Date) (other than HET or its
Subsidiaries), of beneficial ownership of 50% or more of the voting or economic
interest in the Equity Interests of JCC Holding.
"CITY" means the City of New Orleans, Louisiana.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
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Section references to the Code are to the Code, as in effect at the date of this
Indenture, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COLLATERAL" shall mean all Property (whether real or personal) of the
Company and the Guarantors with respect to which any security interests have
been granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Pledge Agreement Collateral, all Security
Agreement Collat- eral, all Mortgaged Properties and all Cash and Cash
Equivalents delivered as collateral pursuant to any Security Document.
"COLLATERAL AGENT" shall mean The Bank of New York, or any successor
Collateral Agent, acting as collateral agent for the Secured Creditors pursuant
to the Security Documents and any sub-agents or sub-trustees appointed pursuant
to the Intercreditor Agreement and permitted under applicable Gaming
Regulations.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"COMPANY MORTGAGE" shall have the meaning provided in Section I(15) of
Exhibit B.
"COMPANY MORTGAGED PROPERTY" shall have the meaning provided in Section
I(15) of Exhibit B.
"CONFIDENTIALITY AGREEMENT" shall have the meaning provided in Section
5.2(b).
"CONFIRMATION ORDER" shall mean the order of the Bankruptcy Court
confirming the Plan of Reorganization pursuant to Sections 1128 and 1129 of the
Bankruptcy Code entered on March 19, 2001.
"CONSOLIDATED CASH INTEREST EXPENSE" shall mean, for any period, the
total consolidated interest expense of Company and its Consolidated Subsidiaries
for such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Company and its Consolidated Subsidiaries representing the
interest factor for such period, but excluding, however, (without duplication)
(i) all amortization of deferred financing costs and amortization of any premium
or
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discount and other non-cash items that are part of such consolidated interest
expense and (ii) any interest payment made through the issuance of additional
notes or securities (including Securities), in lieu of Cash, in each case in
accordance with the terms of the respective documentation relating thereto. For
periods prior to the Issue Date, Consolidated Interest Expense shall include all
interest expense required to be paid in cash in accordance with the
documentation relating thereto, regardless of any write-downs, write-offs or
other treatment thereof pursuant to the Plan of Reorganization.
"CONSOLIDATED EBIT" shall mean, for any period, the Consolidated Net
Income for such period plus (without duplication) (i) the amount of consolidated
interest expense (to the extent same was deducted in determining Consolidated
Net Income for such period), and (ii) provision for taxes based on income (to
the extent deducted in determining Consolidated Net Income for such period, but
excluding gaming and similar taxes) and without giving effect to any
extraordinary gains or losses or gains or losses from sales of assets.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by (i) adding thereto the amount of all amortization of intangibles and
depreciation expenses that were deducted in arriving at Consolidated EBIT for
such period, and (ii) subtracting therefrom the amount of payments made to, or
on behalf of, JCC Holding as contemplated by Section 5.5(e) for such period to
the extent such amounts have not already been deducting in arriving at
Consolidated EBITDA for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Cash Interest Expense for such
period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income of
the Company and its Consolidated Subsidiaries for such period determined in
accordance with GAAP; provided, that (without duplication of exclusions) (i) the
net income (to the extent positive) of any Person that is not a Subsidiary of
the Company or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
Cash to the Company or a Wholly-Owned Subsidiary thereof, (ii) to the extent
Xxxxxxx- dated Net Income reflects amounts attributable to minority interests in
Subsidiaries that are not Wholly-Owned Subsidiaries of the Company, Consolidated
Net Income shall be reduced by the amounts attributable to such minority
interests, (iii) the net income of any Subsidiary (other than the Company) shall
be excluded to the extent
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that the declaration or payment of dividends and distributions by that
Subsidiary of net income is not at the date of determination permitted without
any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders and (iv) the net income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded.
"CONSOLIDATED SUBSIDIARIES" means, for any Person, all Subsidiaries of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are or are required to be consolidated for
financial statement reporting purposes with the financial statements of such
Person in accordance with GAAP.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing
(including, without limitation, as a result of such Person being a general
partner of the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner) any Indebtedness or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment thereof or
to protect the obligee against loss in respect thereof (in whole or in part),
provided, that the term Contingent Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"CONTINUING DIRECTORS" means the directors of JCC Holding on the Issue
Date and each other director nominated (i) in accordance with the terms of
Sections 3.2(b) (i) through (v) of the Second Amended and Restated Certificate
of Incorporation of JCC Holding, as in effect on the date hereof, (ii) by a
majority of the then Continuing Directors or (iii) by HET at such times as HET
and its Subsidiaries beneficially own 90% or more of the Equity Interests in JCC
Holding.
"CREDIT PARTY" shall mean JCC Holding, the Company and each Subsidiary
Guarantor.
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"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEBT AGREEMENTS" shall have the meaning provided in Section I(6) of
Exhibit B.
"DEFAULT" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.13.
"DISCLOSURE STATEMENT" means the Debtors' Joint Disclosure Statement as
of February 8, 2001 pursuant to Section 1125 of the Bankruptcy Code relating to
the Plan of Reorganization, as approved by the Bankruptcy Court.
"DISQUALIFIED EQUITY INTEREST" means (i) except as provided in (ii),
with respect to any Person, any Equity Interests of such Person that, by its
terms or by the terms of any security into which it is convertible, exercisable
or exchangeable, (A) is, or upon the happening of an event or the passage of
time could be, required to be redeemed (other than as may be required by Gaming
Regulations) or repurchased (including at the option of the holder thereof) by
such Person or any of its Subsidiaries, in whole or in part at any time on or
prior to the first anniversary of the Stated Maturity of the Securities, or (B)
would require any Distribution thereon or with respect thereto or with respect
thereto in contravention of the requirements of this Indenture and (ii) with
respect to any Subsidiary of such Person (including any Subsidiary of the
Company), any Equity Interest other than any Equity Interest with no preference,
privileges, or redemption or repayment provisions.
"DISTRIBUTION" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to any holder or
holders of its Equity Interests or authorized or made any other distribution,
payment or delivery of property (other than common stock of such Person) or Cash
to any holder or holders of its Equity Interests as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for a consideration of
any shares of any class of its capital stock or any partnership interests or any
other Equity Interests outstanding on or after the Issue Date (or any options or
warrants issued by such Person with respect to its capital stock or any
partnership interests or any other Equity Interests), or set aside any funds for
any of the foregoing purposes, or shall have permitted any of its Subsidiaries
to purchase or otherwise acquire for a consid-
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eration any shares of any class of the capital stock or any partnership
interests or any other Equity Interests of such Person outstanding on or after
the Issue Date (or any options or warrants issued by such Person with respect to
its capital stock or any other Equity Interests). Without limiting the
foregoing, "Distributions" with respect to any Person shall also include all
payments made or required to be made by such Person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar
plans or setting aside of any funds for the foregoing purposes.
"DOCUMENTS" shall mean the Revolving Credit Agreement Documents, the
Leases, the Casino Operating Contract, the Management Agreement, the Senior Note
Documents, New Common Stock Documents and the Minimum Payment Guaranty
Documents.
"DOLLARS" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"ELIGIBLE INSTITUTION" means (i) any commercial bank, financial
institution, insurance company or other institutional investor which, in the
ordinary course of its business, purchases bank loans and/or debt securities,
other than any such entity which operates itself, or through a third-party
manager, one or more Casinos and which the Company or Xxxxxx'x Management
Company (or successor Casino manager) determines in its good faith judgment is a
competitor of the Casino and (ii) any Holder of Securities on the Issue Date and
any Affiliate of such Holder which subsequently becomes a Holder.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (i) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (ii) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief in connection with alleged injury or threat of
injury to health, safety or the environment due to the presence of hazardous
materials.
"ENVIRONMENTAL LAW" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, written policy
and rule
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of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, to the extent binding on the
Company or any of its subsidiaries, relating to the environment, employee health
and safety or Hazardous Materials, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as the same may be amended from time to time, 42 U.S.C. Section 9601 ET SEQ.;
the Resource Conservation and Recovery Act, as the same may be amended from time
to time, 42 U.S.C. Section 6901 ET SEQ.; the Federal Water Pollution Control
Act, 33 U.S.C. Section 1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 ET SEQ.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 ET SEQ.; the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 ET SEQ.; and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 ET SEQ. (to the extent
it regulates occupational exposure to Hazardous Materials); and any state and
local or foreign counterparts or equivalents, in each case as amended from time
to time.
"EQUITY INTERESTS" of any Person shall mean all equity interests
therein, including without limitation any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any common
stock, preferred stock, any limited or general partnership interest and any
limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Indenture and any subsequent provisions of ERISA, amendatory thereof,
supplemen- tal thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Company or any Subsidiary of the Company would be
deemed to be a "single employer" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
"EVENT DATE" shall have the meaning specified in Section 8.1.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
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"EVENT OFFER" shall have the meaning specified in Section 8.1.
"EVENT OFFER PERIOD" shall have the meaning specified in Section 8.1.
"EVENT OFFER PRICE" shall have the meaning specified in Section 8.1.
"EVENT PAYMENT" shall have the meaning specified in Section 8.1.
"EVENT PAYMENT DATE" shall have the meaning specified in Section 8.1.
"EVENT PUT DATE" shall have the meaning specified in Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"FINANCIAL FORECAST" shall mean the Financial Forecast provided to the
Trustee on the Issue Date.
"FIXED INTEREST" means interest, payable on the Interest Payment Dates
in accordance with this Indenture, at a rate per annum during each Interest
Period equal to LIBOR for such Interest Period plus 275 basis points (i.e.,
2.75%).
"XXXXXX DEVELOPMENT" means JCC Xxxxxx Development, L.L.C. (f/k/a FP
Development, L.L.C.), a Louisiana limited liability company which, on the Issue
Date, is a direct Wholly-Owned Subsidiary of JCC Holding.
"XXXXXX DEVELOPMENT MORTGAGE" shall have the meaning provided in Section
I(15) of Exhibit B.
"XXXXXX DEVELOPMENT MORTGAGED PROPERTY" shall have the meaning provided
in Section I(15) of Exhibit B.
"GAAP" means United States generally accepted accounting principles as
in effect on the date of this Indenture.
"GAMING AUTHORITY" means any Governmental Authority with the power to
regulate gaming in any Gaming Jurisdiction, and the corresponding Governmental
Authorities with responsibility to interpret and enforce the laws and
regulations applicable to gaming in any Gaming Jurisdiction.
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"GAMING JURISDICTION" shall mean any jurisdiction in which the Company
is licensed to conduct gaming activities.
"GAMING LICENSE" means every material license, material franchise or
other material authorization on the Issue Date or thereafter required to own,
lease, operate or otherwise conduct or manage a casino facility in any state,
local or other jurisdiction including, without limitation, any applicable
material liquor licenses, including, with respect to the Company (and without
limitation) the Casino Operating Contract.
"GAMING PATRON INDEBTEDNESS" shall have the meaning provided such term
in the Pledge Agreement.
"GAMING REGULATIONS" shall mean the laws, rules, regulations and orders
applicable to the gaming business of the Company or any of its Subsidiaries, or
any other Credit Party, as in effect from time to time, including the Louisiana
Economic Development and Gaming Corporation Act (La. R.S. Section 27:201, et
seq.) and the policies, interpretations and administration thereof by the Gaming
Authorities, including the LGCB.
"GOVERNMENTAL AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, province or any city or
other political subdivision and whether now or hereafter in existence, or any
officer or official thereof, and any maritime authority.
"GROUND LEASE" means the Amended and Restated Lease Agreement for the
site of the Casino between the RDC and the City, dated as of March 15, 1994, as
amended on October 29, 1998, by that certain First Amendment to Amended and
Restated Lease Agreement, dated October 29, 1998.
"GUARANTORS" means collectively the Parent Guarantor and each of the
Subsidiary Guarantors.
"GUARANTY" shall have the meaning provided in Section 10.1(a).
"XXXXXX'X INVESTOR" means Xxxxxx'x Crescent City Investment Company, a
Nevada corporation, and its successors.
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"XXXXXX'X MANAGEMENT COMPANY" means Xxxxxx'x New Orleans Management
Company, a Nevada corporation, and its successors.
"HAZARDOUS MATERIALS" means (i) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(ii) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (iii) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"HET" means Xxxxxx'x Entertainment, Inc., a Delaware corporation, and
its successors.
"HET/JCC AGREEMENT" means the Amended and Restated HET/JCC Agreement,
dated as of March 30, 2001, among HET, HOC and the Company (and any substitute
or successor agreement), and any other documents entered into in connection with
(and to the extent relating directly to) such agreement, as amended, modified,
renewed, extended or replaced from time to time, pursuant to which HET and HOC
shall provide the Minimum Payment Guaranty for certain periods and subject to
certain terms and conditions set forth therein.
"HOC" means Xxxxxx'x Operating Company, Inc., a Delaware corporation,
and its successors.
"HOLDER" or "SECURITYHOLDER" means the Person in whose name a Security
is registered on the Registrar's books.
"HOLDER ACTION" shall have the meaning provided in Section 2.10.
"HOLDING COMPANY COSTS" shall have the meaning provided in Section
5.5(e).
"INDEBTEDNESS" of any Person means, without duplication, (i) all
liabilities and obligations, contingent or otherwise, of such Person, (A) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the
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26
assets of such Person or only to a portion thereof) , (B) evidenced by bonds,
notes, debentures or similar instruments, (C) representing the balance deferred
and unpaid of the purchase price of any property or services (including, without
limitation accrued Management Fees and other amounts owing pursuant to the
Management Agreement), except such as would constitute trade payables to trade
creditors in the ordinary course of business, (D) evidenced by bankers'
acceptances or similar instruments issued or accepted by banks, (E) for the
payment of money relating to a Capitalized Lease Obligation, or (F) evidenced by
a letter of credit or a reimbursement obligation of such Person with respect
to any letter of credit; (ii) all obligations of such Person under Interest Rate
Protection Agreements and foreign currency xxxxxx; (iii) all liabilities of
others of the kind described in the preceding clause (i) or (ii) that such
Person has guaranteed or that is otherwise its legal liability; (iv) all
Contingent Obligations of such Person; (v) all obligations to purchase, redeem
or acquire any Equity Interest; and (vi) all obligations secured by a Lien to
which the property or assets (including, without limitation, leasehold interests
and any other tangible or intangible property rights) of such Person are
subject, whether or not the obligations secured thereby shall have been assumed
by or shall otherwise be such Person's legal liability, provided, that the
amount of such obligations shall be limited to the lesser of the fair market
value of the assets or property to which such Lien attaches and the amount of
the obligation so secured. In addition, "Indebtedness" of any Person shall
include Indebtedness described in the foregoing clauses (i) (A), (B) and (C)
that would not appear as a liability on the balance sheet of such Person if (l)
such Indebtedness is the obligation of a partnership or joint venture that is
not a Subsidiary of such Person (a "Joint Venture"), (2) such Person or a
Subsidiary of such Person is a general partner of the Joint Venture (a "General
Partner"), and (3) there is recourse, by contract or operation of law, with
respect to payment of such obligation to property or assets of such Person or a
Subsidiary of such Person; then such Indebtedness shall be included in an amount
not to exceed (x) the greater of (A) the net assets of the General Partner, and
(B) the amount of such obligations to the extent that there is recourse, by
contract or operation of law, to the property or assets of such Person or a
Subsidiary of such Person (other than the General Partner) or (y) if less than
the amounts determined pursuant to clause (x) above, the actual amount of such
Indebtedness that is recourse to such Person, if the Indebtedness is evidenced
by a writing and is for a determinable amount.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
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"INDENTURE OBLIGATIONS" means the Obligations of the Company and the
Guarantors pursuant to this Indenture and the Securities (and any other obligor
hereunder or under the Securities) now or hereafter existing, to pay principal
of and interest on the Securities when due and payable, whether on the Maturity
Date or an Interest Payment Date, by acceleration, redemption (including,
without limitation, pursuant to a Required Regulatory Redemption) or otherwise,
and interest on the overdue principal of, and (to the extent lawful) interest,
if any, on, the Securities and all other amounts due or to become due in
connection with this Indenture, the Securities and the Security Documents,
including any and all extensions, renewals or other modifications thereof, in
whole or in part, and the performance of all other obligations of the Company
(and any other obligor hereunder or under the Securities) and the Guarantors
hereunder or under the Securities, including all costs and expenses incurred
by the Trustee or the Holders in the collection or enforcement of any such
obligations or realization upon the Collateral or the security of any Security
Documents.
"INITIAL DEFICIT AMOUNT" means an amount equal to (i) the Semi-Annual
Free Cash Flow for the period from the Issue Date to and including March 31,
2002 (determined as if such period were a Semi-Annual Free Cash Flow Payment
Period, even though such period exceeds six months' duration) minus (ii)
$8,000,000; provided, if the Initial Deficit Amount as calculated above would
exceed $0, then the Initial Deficit Amount shall instead by $0.
"INSURANCE AND CONDEMNATION PROCEEDS" means the Company's and the
Guarantors' interest in and to all proceeds which now or hereafter may be paid
as a result of any condemnation proceeding or under any insurance policies now
or hereafter obtained by or on behalf of the Company or any of the Guarantors in
connection with the conversion of the Property subject to the Security Documents
into Cash, Cash Equivalents or liquidated claims, together with the interest
payable thereon and the right to collect and receive the same, including, but
without limiting the generality of the foregoing, proceeds of casualty
insurance, title insurance, business interruption insurance and any other
insurance now or hereafter maintained with respect to such Property.
"INTELLECTUAL PROPERTY SECURITY DOCUMENTS" means the Assignment of
Security Interests in United States Trademarks and Patents and the Assignment of
Security Interest in United States Copyrights, each substantially in the form
annexed to the Security Agreement and executed in favor of the Collateral Agent.
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"INTERCREDITOR AGREEMENT" shall have the meaning provided in Section
I(16) of Exhibit B.
"INTEREST PAYMENT DATE" means the stated due date, specified in the
Security, of an installment of interest on the Securities.
"INTEREST PERIOD" shall mean successive periods (of approximately three
months each) ending on each Interest Payment Date, with the first Interest
Period to begin on the Issue Date and to end on the first Interest Payment Date,
and with each successive Interest Period to begin on an Interest Payment Date
and to end on the next Interest Payment Date.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement, interest rate floor agreement or other similar agreement or
arrangement, in each case which are non-speculative in nature and are designed
to protect any Person against fluctuations in interest rates.
"INVESTMENT" by any Person in any other Person means (without duplica-
tion): (i) the acquisition by such Person (whether for Cash, property, services,
securities or otherwise) of capital stock, bonds, notes, debentures, partnership
or other ownership interests or other securities, including any options or
warrants, of such other Person or any agreement to make any such acquisition;
(ii) the making or lending by such Person of any deposit with, or advance, loan
or other extension of credit to or on behalf of, such other Person (including
the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension (but
excluding accounts receivable arising in the ordinary course of business); (iii)
other than (A) any guarantees of the Securities, (B) any guarantees of the
Revolving Credit Agreement by the Guarantors, and (C) any guarantees of Interest
Rate Protection Agreements by the Guarantors, the entering into by such Person
of any guarantee of, or other credit support or contingent obligation with
respect to, Indebtedness or other liability of such other Person; (iv) the
making of any capital contribution by such Person to such other Person; (v) the
making of any capital contribution to any other Person; or (vi) the purchase or
sale of currency or other commodities at a future date in the nature of futures
contracts.
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"ISSUE DATE" means the date of first issuance of the Securities under
this Indenture, which is expected to be the first Business Day upon which the
Plan of Reorganization becomes effective.
"ISSUING BANK" shall have the meaning provided in the Revolving Credit
Agreement.
"JCC DEVELOPMENT" means JCC Development Company, L.L.C., a Louisiana
limited liability company which is a direct Wholly-Owned Subsidiary of JCC
Holding.
"JCC DEVELOPMENT MORTGAGE" shall have the meaning provided in Section
I(15) of Exhibit B.
"JCC DEVELOPMENT MORTGAGED PROPERTY" shall have the meaning provided in
Section I(15) of Exhibit B.
"JCC HOLDING" shall have the meaning provided in the first paragraph.
"LEASEHOLDS" of any Person means all the right, title and interest of
such Person as lessee or licensee in, to and under any lease. "LEASES" shall
mean the Ground Lease and the Casino Lease.
"LEGAL HOLIDAY" shall have the meaning provided in Section 11.7.
"LGCB" means, collectively, the Louisiana Gaming Control Board, and its
successors and assigns.
"LIBOR" means, for each Interest Period (i) a rate per annum equal to
the offered rate for Eurodollar deposits for a three-month period as it appears
on Telerate Service page 3740 or page 3750, as applicable, as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
divided (and rounded off to the nearest 1/16 of 1%) by (ii) a percentage equal
to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves required by applicable law) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D). "Telerate Service page 3740 or page 3750," as applicable, means
the display designated as "Page 3740" or "Page 3750" on
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30
the Telerate Service (or such other pages as may replace page 3740 or page 3750
of that service or such other service as may be nominated by the British
Bankers' Association as the vendor for the purpose of displaying British
Bankers' Association interest settlement rates for United States dollar
deposits). Notwithstanding anything to the contrary contained above, if the
Trustee determines that the rate described in clause (i) of the first sentence
of this definition is not ascertainable pursuant to the provisions of said
clause (i), the rate to be utilized for purposes of said clause (i) shall
instead be (A) the interest rate per annum determined by the Trustee to be the
rate per annum at which deposits in United States dollars are offered for the
relevant Interest Period to major banks in the London interbank market in
London, England by the Trustee at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period or (B) if the
Trustee determines that it cannot ascertain the rate as described in preceding
clause (A), the rate to be utilized for purposes of clause (i) of the first
sentence of this definition shall be determined by the Trustee on such basis as
it determines is fair and reasonable.
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"MANAGEMENT AGREEMENT" means the Third Amended and Restated Management
Agreement between the Company and Xxxxxx'x Management Company relating to the
management of the Casino dated as of March 30, 2001, as it may be amended or
supplemented from time to time.
"MANAGEMENT FEES" means the "MANAGEMENT FEE" and the "SERVICE FEE" as
defined by the Management Agreement, together with any amounts reimbursable to
Xxxxxx'x Management Company under the terms of the Management Agreement, but
excluding the Termination Fee.
"MANAGER SUBORDINATION AGREEMENT" shall have the meaning provided in
Section I(18) of Exhibit B.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATURITY DATE" means, when used with respect to any Security, the date
on which the principal of such Security becomes due and payable as therein or
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31
herein provided, whether at Stated Maturity, an Event Payment Date or by
declaration of acceleration, call for redemption or otherwise.
"MINIMUM PAYMENT GUARANTOR" shall mean HET and HOC as joint and several
obligors, or any successor or substitute guarantor providing a Minimum Payment
Guaranty in accordance with the requirements of the Casino Operating Contract.
"MINIMUM PAYMENT GUARANTY" means the Minimum Payment Guaranty (as
defined in the Casino Operating Contract) that the Casino Operating Contract
obligates the Company to cause to be provided to the State of Louisiana by and
through the Regulating Authority, as the same may be amended, supplemented or
modified from time to time, including any replacement or renewal thereof.
"MINIMUM PAYMENT GUARANTY DOCUMENTS" means each Minimum Payment Guaranty
and all agreements or documents (including, without limitation, the HET/JCC
Agreement) executed and delivered in connection therewith or any successor
documents entered into with a successor Minimum Payment Guarantor other than HET
and HOC.
"MINIMUM PAYMENT GUARANTY FEES" shall mean the fees paid by the Company
pursuant to Section 2 of the HET/JCC Agreement or pursuant to the terms of any
successor Minimum Payment Guaranty Documents.
"MINIMUM PAYMENT GUARANTY LIEN" shall mean the Lien, in each case
created under the Security Documents, securing the Company's obligations
pursuant to the HET/JCC Agreement or pursuant to any successor Minimum Payment
Guaranty Documents.
"MINIMUM PAYMENT GUARANTY OBLIGATIONS" shall have the meaning specified
in the Intercreditor Agreement.
"MISDESCRIPTIONS" shall have the meaning provided in Section 11.18.
"MORTGAGE" shall have the meaning provided in Section I(15) of Exhibit
B.
"MORTGAGED PROPERTY" shall mean and be a collective reference to the
Company Mortgaged Properties, the JCC Development Mortgaged Properties, the
Canal Development Mortgaged Properties and the Xxxxxx Development Mortgaged
Properties, as well as any Additional Mortgaged Properties.
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"NASDAQ" means the National Association of Securities Dealers Automated
Quotations System.
"NET CASH PROCEEDS" means the aggregate amount of Cash or Cash
Equivalents received by the Company in the case of an Asset Sale, less, the sum
of (i) all fees, commissions and other expenses incurred in connection with such
Asset Sale, (ii) the amount (estimated reasonably and in good faith by the
Company) of income, franchise, sales and other applicable taxes required to be
paid by the Company or any of its Subsidiaries in connection with such Asset
Sale and (iii) the aggregate amount of Cash or Cash Equivalents so received
which is used to retire (in whole or in part) any existing Indebtedness (other
than Indenture Obligations) of the Company or its Subsidiaries (owed to a Person
other than an Affiliate) which was secured by the assets that were the subject
of such Asset Sale (and, if such assets constitute Collateral, which
Indebtedness (other than Indenture Obligations) had a higher lien priority than
Indenture Obligations) and which was required to be repaid (which repayment, in
the case of a revolving credit arrangement or multiple advance arrangement,
reduces the commitment thereunder) in connection with such Asset Sale.
"NET CASH PROCEEDS ACCOUNT" means the separate custodial account
established and maintained by the Company in the name of the Collateral Agent
for the benefit of the Secured Creditors pursuant to the terms of the Security
Agreement into which the Net Cash Proceeds from Asset Sales and Insurance and
Condemnation Proceeds are to be deposited.
"NEW COMMON STOCK" shall mean the common stock of JCC Holding, $.01 par
value per share.
"NEW COMMON STOCK DOCUMENTS" shall mean the agreements, instruments and
other documents executed and delivered in connection with the issuance of the
New Common Stock.
"NON-PERMITTED ENCUMBRANCE" shall have the meaning provided in Section
11.18(b).
"NOTICE OFFICE" shall mean the office of the Trustee located at Xxxxx
Fargo Bank Minnesota, National Association, 6th and Marquette, MAC-N9303-120,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Department, or such
other person as the Trustee may hereafter designate in writing as such to the
other parties hereto.
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"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and
bankers' acceptances), damages and other liabilities payable under the
documentation governing, or otherwise relating to, any Indebtedness. Without
limiting the foregoing, the "Obligations" in respect of the Securities shall
include all interest accruing after the filing of any petition or proceeding
with respect to the Company or any Guarantor at the rate specified in the
Security, in each case regardless of whether such interest is an allowed claim
in the relevant proceeding.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer, the Treasurer,
the Controller, or the Secretary or Assistant Secretary of such Person.
"OFFICER'S CERTIFICATE" means, with respect to the Company or any
Guarantor, a certificate signed by any Authorized Representative of such entity
and otherwise complying with the requirements of Sections 11.4(a) and 11.5.
"OPINION OF COUNSEL" means a written opinion from legal counsel to the
Company (or any Guarantor, if applicable) reasonably acceptable to the Trustee
and which complies with the requirements of Sections 4.2(b), 4.2(c), 11.4(b) and
11.5, as the case may be. Unless otherwise required by this Indenture, the
counsel may be in-house counsel to the Company (or such Guarantor, if
applicable).
"PARENT GUARANTOR" means JCC Holding.
"PARENT GUARANTY" shall have the meaning specified in Section 10.2(a).
"PAYING AGENT" shall have the meaning specified in Section 2.4.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"PERMITS" shall mean any and all actions, approvals, certificates,
consents, waivers, exemptions, variances, franchises, orders, permits,
authorizations, rights or licenses of or from any governmental authority or
agency (including any Gaming Authority), including, without limitation, the
Casino Operating Contract.
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"PERMITTED AMENDMENT" shall mean any waiver, amendment or modification
of any provision of the Minimum Payment Guaranty Documents or such Minimum
Payment Guaranty Documents delivered by a substitute or successor Minimum
Payment Guarantor, which (i) are not adverse in any respect to the interests of
the Company or the Holders (including without limitation, so long as the nature
and amount of obligations guaranteed thereunder are not adversely changed or
increased and so long as the financial terms thereof are not made worse from the
perspective of the Company) and (ii) do not cause a Default or Event of Default
pursuant to Section 6.1(q).
"PERMITTED ENCUMBRANCE" shall mean, with respect to any Mortgaged
Property, the Permitted Encumbrances with respect thereto, as defined in the
respective Mortgages.
"PERMITTED INDEBTEDNESS" shall have the meaning specified in Section
5.12.
"PERMITTED LIENS" shall have the meaning specified in Section 5.13.
"PERMITTED TAX PAYMENT" means (for any taxable year of the Company in
which it joins in filing a consolidated federal income tax return with JCC
Holding) a payment (including any estimated tax payment based on any estimated
tax liability for such year) by the Company to JCC Holding in an amount not in
excess of the lesser of (i) the separate return federal income tax liability (if
any) of the affiliated group (within the meaning of Section 1504 of the Code) of
which the Company would be the parent (the "JCC Group") if it were not a member
of another affiliated group for that or any other taxable year, and (ii) the
product of (A) the actual tax liability (if any) of the affiliated group of
which the Company is actually a member (the "Guarantor Group") for such year and
(B) a fraction, (1) the numerator of which is an amount equal to the federal
taxable income of the Company and its Subsidiaries, computed on a hypothetical
consolidated federal income tax basis as if the Company and each of its
Subsidiaries filed a separate consolidated federal income tax return, with the
Company as common parent of such affiliated group and where the Subsidiaries
were not members of another affiliated group for that or any other taxable year
and (2) the denominator of which is the sum of the amount calculated in (1)
above, plus the positive separate federal taxable income of each member of the
Guarantor Group other than the Company and its Subsidiaries; provided, that such
payment can be made by the Company no earlier than two Business Days prior to
the date on which the Guarantor Group is required to make
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federal income tax payments for such year to the Internal Revenue Service. In
the event that JCC Holding and any member of the JCC Group join in filing any
com- bined or consolidated (or similar) state or local income or franchise tax
returns, then Permitted Tax Payment shall include payments with respect to such
state or local income or franchise taxes determined in a manner as similar as
possible to that provided in the preceding sentence for federal income taxes.
"PERMITTED TERMINATION" shall mean a termination of HET or its Affiliate
as manager of the Casino pursuant to (i) Section 17.03 of the Management
Agreement, (ii) Section 17.02(d) of the Management Agreement or (iii) Section
17.02(a) of the Management Agreement as of result of an Event of Default (as
defined therein) by the Manager (as defined therein).
"PERSON" means any individual, limited liability company, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"PIK OPTION" shall have the meaning provided in Section 2.2(e).
"PIK PERIOD" shall have the meaning provided in Section 2 .2(e).
"PLAN" shall mean any multiemployer or single-employer plan, as defined
in Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of), the Company or a Subsidiary of the
Company or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Company, a Subsidiary of the
Company or an ERISA Affiliate maintained, contributed or had an obligation to
contribute to such plan.
"PLAN OF REORGANIZATION" means the Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code, dated February 8, 2001, filed with the United
States Bankruptcy Court for the Eastern District of Louisiana by JCC Holding
Company, Jazz Casino Company, L.L.C., JCC Canal Development, L.L.C., JCC Xxxxxx
Development, L.L.C. and JCC Development Company, L.L.C. (including all exhibits
and schedules annexed thereto).
"PLEDGE AGREEMENT" shall have the meaning provided in Section I(13) of
Exhibit B.
"PLEDGE AGREEMENT COLLATERAL" shall mean all Collateral under, and as
defined in, the Pledge Agreement.
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"PLEDGED SECURITIES" shall mean "COLLATERAL" as defined in the Pledge
Agreement.
"POYDRAS STREET SUPPORT FACILITY" shall mean the support facilities and
improvements appurtenant to the Casino constructed on the Poydras Street Support
Facility Premises.
"POYDRAS STREET SUPPORT FACILITY PREMISES" shall have the meaning
provided in the Casino Lease.
"POYDRAS TUNNEL AREA" shall have the meaning provided in the Casino
Lease.
"PRIME LENDING RATE" shall mean the rate which Bank of America, N.A.
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer of Bank of America, N.A.
"PROJECT" shall mean the lease, renovation, construction, equipping and
operation of the Casino, and all related facilities at the Company Mortgaged
Prop- erty, including, without limitation, the Poydras Street Support Facility
Premises, the Servitude Areas, the Poydras Tunnel Area, the Tunnel, and as
defined in the Casino Lease, the Pedestrian Bridge Areas, the Encroachment Areas
and the Lafayette Subsurface Area, but excluding the Second Floor (other than
the shell construction thereof).
"PROJECT DEFAULT" shall have the meaning provided in Section 6.1(n).
"PROPERTY" means any right or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible,
intangible, contingent, indirect or direct.
"PURCHASE PRICE" means any Event Offer Price.
"QUALIFIED EQUITY INTEREST" means, as to any Person, any Equity Interest
of such Person that is not a Disqualified Equity Interest.
"QUALIFIED SUBORDINATED INDEBTEDNESS" means Subordinated Indebtedness of
JCC Holding which is subordinated in right of payment in all respects to the
Securities (and JCC Holding's Guaranty thereof) and has no scheduled
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installment of principal due by redemption, sinking fund or otherwise, on or
prior to the first anniversary of the Stated Maturity of the Securities and has
a stated maturity on or after the first anniversary of the Stated Maturity of
the Securities.
"RDC" means Rivergate Development Corporation, a Louisiana public
benefit corporation.
"REAL PROPERTY" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"RECORD DATE" means a Record Date specified in the Securities whether or
not such Record Date is a Business Day.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the applicable form of Security.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the principal amount thereof, plus accrued and unpaid interest
to the Redemption Date.
"REGISTRAR" shall have the meaning specified in Section 2.4.
"REGISTRATION RIGHTS AGREEMENTS" shall have the meaning provided in
Section I(19) of Exhibit B.
"REGULATING AUTHORITY" means the Louisiana Gaming Control Board (or any
successor thereto).
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
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"REGULATION X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"REGULATORY REDEMPTION EVENT" shall have the meaning specified in
Section 3.7.
"RELEASE" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"REPORTABLE EVENT" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"REQUIRED HOLDERS" at any time shall mean the Holders of a majority of
the outstanding principal amount of Securities, in each case determined in
accordance with the provisions of Section 2.10 of this Indenture.
"REQUIRED REGULATORY REDEMPTION" means a redemption by the Company, any
Guarantor or any Subsidiary of the Company or any Guarantor of any of such
Person's securities pursuant to, and in accordance with, any order of any
Governmental Authority with appropriate jurisdiction and authority relating to a
Gaming License held by the Company or an Affiliate of the Company (including HET
and any Affiliate of HET) or a Wholly-Owned Subsidiary of the Company, or to the
extent necessary in the reasonable, good faith judgment of the Board of
Directors of JCC Holding, in the case of the Company or an Affiliate of the
Company, or of HET, in the case of HET, one of its Affiliates, or the manager of
the Company, to prevent the loss, failure to obtain or material impairment or to
secure the reinstatement of, any such Gaming License, where such redemption or
acquisition is required because the holder or beneficial owner of such security
is required to be found suitable or to otherwise qualify under any gaming laws
and is not found suitable or so qualified within a reasonable period of time.
"RESERVE FUND" means the Capital Replacement Fund as defined in the
Management Agreement, as in effect on the date hereof.
"RESTRICTED PAYMENT" shall mean (i) any authorization, declaration or
payment of any Distributions with respect to JCC Holding or any of its
Subsidiaries or any other payment to any of their Affiliates (excluding the
Company), (ii) the
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making (or the giving of any notice in respect thereof) by JCC Holding or any of
its Subsidiaries of any voluntary or mandatory payment, purchase, acquisition or
redemption, whether by the making of any payments of the principal, interest or
otherwise, in respect of any loan, advance or extension of credit made to JCC
Holding or any of its Subsidiaries by, or in respect of any guarantee or
Contingent Obligation made for the benefit of JCC Holding or any of its
Subsidiaries by, or in respect of any other obligation of JCC Holding or any of
its Subsidiaries owed to, HET, HOC or any Affiliate of HET or HOC (excluding the
Company and its Wholly-Owned Subsidiaries), whether pursuant to any Document or
otherwise, (iii) any purchase, prepayment, redemption, or other acquisition or
retirement for value of, or any defeasance of, any Subordinated Indebtedness,
directly or indirectly, by JCC Holding or any of its Subsidiaries prior to the
scheduled maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Subordinated Indebtedness (including
any payment in respect of any amendment of the terms of such Subordinated
Indebtedness, which amendment is sought in connection with any such acquisition
of such Indebtedness or seeks to shorten any such due date), (iv) the making (or
the giving of any notice in respect thereof) by JCC Holding or any of its
Subsidiaries of any payment whatsoever in respect of, or pursuant to, any of the
Minimum Payment Guaranty Documents and (v) the payment of any Management Fees,
Termination Fee or any other fees or expenses (including the reimbursement
thereof by JCC Holding or any of its Subsidiaries) pursuant to the Management
Agreement or any other agreement with an Affiliate of JCC Holding or its
Subsidiaries. Notwithstanding anything to the contrary contained above, (A)
payments made in respect of the Indenture Obligations in accordance with the
terms of the Securities and this Indenture shall not constitute Restricted
Payments, even if the respective Indenture Obligations are held by HET, HOC or
an Affiliate thereof or of JCC Holding, (B) payments of Revolving Obligations
pursuant to the Revolving Credit Agreement in accordance with the terms of the
Revolving Credit Agreement Documents shall not constitute Restricted Payments
even if the respective Obligations are held by HET, HOC, Xxxxxx'x Management
Company or an Affiliate thereof, and (C) payments by any Unrestricted
Subsidiaries with respect to loans incurred by such Unrestricted Subsidiaries
pursuant to and in accordance with Section 5.12(h), will not constitute
Restricted Payments even if the respective Obligations are held by HET, HOC,
Xxxxxx'x Management Company or one or more Affiliates thereof.
"RETURNS" shall have the meaning provided in Section II(9) of Exhibit B.
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"REVOLVING CREDIT AGREEMENT" means the Revolving Credit Agreement, dated
as of March 30, 2001, among the Company, JCC Holding, the Subsidiary Guarantors
and the Revolving Lenders, together with the related documents thereto
(including, without limitation, any guaranty agreements and security documents),
in each case as such agreements may be amended (including any amendment and
restatement thereof), supplemented or modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding Subsidiaries of JCC Holding or the
Company which are Guarantors 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.
"REVOLVING CREDIT AGREEMENT DOCUMENTS" shall mean the Revolving Credit
Agreement and all other Credit Documents as defined in the Revolving Credit
Agreement (or, in the case of any replacement thereof, all related documents
entered into in connection therewith).
"REVOLVING LENDERS" means the lenders from time to time party to the
Revolving Credit Agreement.
"REVOLVING LOANS" means collectively the Revolving Loans and the Letter
of Credit Obligations under the Revolving Credit Agreement.
"REVOLVING OBLIGATIONS" shall mean all amounts owing to the Revolving
Lenders, Issuing Banks and the Collateral Agent pursuant to the terms of the
Revolving Credit Agreement or any other Revolving Credit Agreement Documents.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECOND FLOOR" shall mean the non-gaming areas of the second floor of
the Casino which are subject to the Second Floor Sublease.
"SECOND FLOOR SUBLEASE" means the Second Floor Non-Gaming Sublease,
dated as of October 29, 1998, between the Company as sublessor and JCC
Development as sublessee relating to JCC Development's sublease of the second
floor of the Casino, attached as Exhibit O to the Casino Lease.
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"SECONDARY SECURITIES" has the meaning set forth in Section 2.2(e).
"SECURED CREDITORS" means, collectively, the Minimum Payment Guarantor,
the Revolving Lenders and the Trustee for the benefit of the Holders.
"SECURITIES" or "SENIOR NOTES" means the Senior Notes due 2008,
including Series A Notes, Series B Notes, and any Secondary Securities issued as
interest thereon, in each case, issued under this Indenture, as the same may be
amended or modified from time to time in accordance with the terms hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SECURITIES SCHEDULED REPAYMENT" shall have the meaning provided in
Section 2.3(b).
"SECURITIES SCHEDULED REPAYMENT DATE" shall have the meaning provided in
Section 2.3(b).
"SECURITY AGREEMENT" shall have the meaning provided in Section I(14) of
Exhibit B.
"SECURITY AGREEMENT COLLATERAL" shall mean all "Collateral" as defined
in the Security Agreement.
"SECURITY DOCUMENTS" shall mean the Pledge Agreement, the Security
Agreement, the Intellectual Property Security Documents, each Mortgage, and,
after the execution and delivery thereof, each Additional Mortgage and each
Additional Security Document.
"SECURITYHOLDER" See "HOLDER"
"SECURITY INTERESTS" means the Liens on the Collateral created by the
Security Documents in favor of the Collateral Agent for the benefit of the
Secured Creditors.
"SEMI-ANNUAL FREE CASH FLOW" shall mean, for any Semi-Annual Free Cash
Flow Payment Period, the remainder of (i) the sum of (A) Consolidated EBITDA for
such Semi-Annual Free Cash Flow Payment Period, (B) the aggregate amount of Cash
released from the Reserve Fund (except to the extent released for the purpose of
making Capital Expenditures which are not deducted pursuant to follow-
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ing clause (ii)(A)) during the respective Semi-Annual Free Cash Flow Payment
Period and (C) the aggregate amount of Cash or Cash Equivalents received by the
Company and its Subsidiaries during the respective Semi-Annual Free Cash Flow
Payment Period from investments theretofore made by them pursuant to the
provisions of Section 5.19(e) to the extent such receipts have not already
increased Consolidated Net Income for such period, less (without duplication)
(ii) the sum of (A) the amount of Capital Expenditures (but excluding Capital
Expenditures (x) financed with Indebtedness, (y) made with equity issuances or
capital contributions and (z) made with Insurance and Condemnation Proceeds or
proceeds of condemnation awards to the extent the receipt of such Insurance and
Condemnation Proceeds, as the case may be, has not, and will not, increase
Consolidated Net Income) made by the Company and its Subsidiaries on a
consolidated basis during the respective Semi-Annual Free Cash Flow Payment
Period, (B) the aggregate amount of Cash deposited in the Reserve Fund during
the respective Semi-Annual Free Cash Flow Payment Period, (C) the aggregate
amount of Investments made by the Company and its Subsidiaries pursuant to
Section 5.19(e) during the respective Semi-Annual Free Cash Flow Payment Period
to the extent same have not reduced Consolidated Net Income for such period, (D)
the amount of taxes (excluding gaming and similar taxes) actually paid in Cash
during the respective Semi-Annual Free Cash Flow Payment Period, (E) all Cash
payments of fees, costs and expenses made during the respective Semi-Annual Free
Cash Flow Payment Period pursuant to Minimum Payment Guaranty Documents (except
to the extent the same reduced Consolidated Net Income during the respective
Semi-Annual Free Cash Flow Payment Period), and (F) Consolidated Cash Interest
Expense for such Semi-Annual Free Cash Flow Payment Period; provided, that with
respect to the Semi-Annual Free Cash Flow Payment Period ending September 30,
2002, same shall be reduced by the Initial Deficit Amount (for this purpose,
expressed as a positive number); and provided further, that for each Semi-Annual
Free Cash Flow Payment Period occurring thereafter until the first Semi-Annual
Free Cash Flow Payment Period following a Semi-Annual Free Cash Flow Payment
Period where the amount of Semi-Annual Free Cash Flow (after giving effect to
the adjustments pursuant to this or the immediately preceding proviso, as the
case may be) was greater than or equal to $0, Semi-Annual Free Cash Flow for
such Semi-Annual Free Cash Flow Payment Period shall be reduced by the amount
(for this purpose, expressed as a positive number) by which Semi-Annual Free
Cash Flow for the immediately preceding Semi-Annual Free Cash Flow Payment
Period was less than $0.
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"SEMI-ANNUAL FREE CASH FLOW PAYMENT DATE" means each November 15 and May
15, beginning with (and including) November 15, 2002 and ending with (and
including) May 15, 2005.
"SEMI-ANNUAL FREE CASH FLOW PAYMENT PERIOD" means with respect to the
repayment required on each Semi-Annual Free Cash Flow Payment Date, the
immediately preceding six-month period ending March 31 or September 30, as the
case may be, of the Company.
"SENIOR NOTE DOCUMENTS" shall mean this Indenture, the Securities and
all other documents executed and delivered in connection therewith.
"SERIES A NOTES" shall mean such Series A Notes in a form substantially
similar to the form provided in the attached Exhibit A-2.
"SERIES B NOTES" shall mean such Series B Notes in a form substantially
similar to the form provided in the attached Exhibit A-3
"SERVITUDE AREAS" shall mean the Employee Bus and Parking Facility
Servitude Area, the Employee and Bus Parking Facility Access Servitude Area, and
the Observation Tower Servitude Area (each as defined in the Casino Lease).
"SIGNIFICANT SUBSIDIARY" of a Person means a Subsidiary of such Person
which, together with its Consolidated Subsidiaries, has assets or revenues equal
to or greater than 10% of the assets or revenues, respectively, of such Person
and its Subsidiaries on a consolidated basis.
"SPECIAL RECORD DATE" shall have the meaning provided in Section
2.13(a).
"SPECIFIED REAL ESTATE" shall mean the Canal Development Mortgaged
Property and the Xxxxxx Development Mortgaged Property.
"STATED MATURITY" means March 31, 2008.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of JCC Holding, the
Company or any Subsidiary that is subordinated in right of payment to the
Securities (or JCC Holding's or any Subsidiary Guarantor's Guaranty thereof).
"SUBSIDIARY" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
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voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture, limited liability company or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"SUBSIDIARY GUARANTY" means all guarantees at any time from any
Subsidiary of JCC Holding pursuant to Article X.
"SUBSIDIARY GUARANTOR" shall mean and include each of JCC Development,
Canal Development, Xxxxxx Development and each Subsidiary of JCC Holding, which,
after the Issue Date is required to be a Subsidiary Guarantor pursuant to
Section 10.4 hereof on or prior to the release thereof pursuant to Section 10.5.
"TERMINATION EVENT," when used with respect to the Leases or the Casino
Operating Contract, shall mean (i) any material provision of any Lease or the
Casino Operating Contract, as the case may be, at any time for any reason ceases
to be valid and binding on any of the parties thereto or is declared to be null
and void or any of the parties thereto shall deny in writing that it has any
further liability or obligation thereunder, or (ii) the termination of any Lease
or the Casino Operating Contract, provided, that the term "Termination Event"
does not include the scheduled expiration in the ordinary course of any Lease or
the Casino Operating Contract in accordance with its terms.
"TERMINATION FEE" shall have the meaning provided in the Management
Agreement as in effect on the Issue Date.
"TEST PERIOD" shall mean, for any determination made hereunder, the four
consecutive fiscal quarters of the Company then last ended (taken as one
accounting period).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the execution of this Indenture.
"TRANSACTION" means the reorganization effected pursuant to the Plan of
Reorganization and the financing therefor and resulting therefrom.
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"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUSTEE REDEMPTION NOTICE" shall have the meaning provided in Section
3.1.
"TRUST OFFICER" means any officer within the corporate trust department
(or any successor group) of the Trustee including any vice president, assistant
vice president, secretary, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the corporate trust department (or any successor group) of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"TUNNEL" shall mean the support facilities and improvements appurtenant
to the Casino constructed on and/or in the Poydras Tunnel Area.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"UNFUNDED CURRENT LIABILITY" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated benefits under the Plan as
of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"UNITED STATES" and "U.S." shall each mean the United States of America.
"UNRESTRICTED SUBSIDIARIES GUARANTY" means the Guaranty of each of the
Unrestricted Subsidiaries.
"UNRESTRICTED SUBSIDIARY" means Canal Development, Xxxxxx Development,
JCC Development and each Subsidiary thereof and any other special purpose
Subsidiary of JCC Holding (so long as the same is not a Subsidiary of the
Company) created or acquired after the Issue Date; provided, that no Person
shall
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constitute an Unrestricted Subsidiary if (i) the Company or any of its
Subsidiaries owns any Equity Interest (whether directly or indirectly) in any
such Person or (ii) any Indebtedness or other obligation of the respective
Person or any Subsidiary or direct or indirect holding company thereof (other
than JCC Holding) is recourse in any respect (whether by operation of law or
pursuant to any Contingent Obligation) to JCC Holding, the Company or any
Subsidiary of the Company.
"WHOLLY-OWNED SUBSIDIARY" with respect to a Subsidiary of any Person
means (i) any corporation 100% of whose capital stock is at the time owned by
such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii)
any partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
Section 1.2. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, such provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITYHOLDER" means a Holder or a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
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(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the
plural include the singular;
(e) provisions apply to successive events and transactions;
(f) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(g) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
Section 2.1. Form, Dating and Conditions to Issuance.
(a) The Securities and the Trustee's certificate of
authentication, in respect thereof, shall be substantially in the form
of Exhibit A hereto, which is incorporated into and made a part of this
Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
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(b) The issuance of the Securities is subject to and conditioned
upon satisfaction of the conditions set forth in Exhibit B hereto and
the Company hereby represents and warrants that all such conditions have
been satisfied and represents and warrants that the representations and
warranties in Exhibit B are true and correct in all material respects on
the Issue Date.
Section 2.2. Execution and Authentication.
(a) The Securities shall be executed on behalf of the Company by
an Officer of the Company. The signature of any such Officer on the
Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company
shall bind the Company, notwithstanding that such individual or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities.
(c) A Security shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the
Security, but such signature shall be conclusive evidence that the
Security has been authenticated pursuant to the terms of this Indenture.
(d) The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of up to $124,520,000, excluding
Secondary Securities, upon a written order of the Company in the form of
an Officer's Certificate. The Officer's Certificate shall specify the
amount of Securities to be authenticated and the date on which the
Securities are to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $124,520,000, except
for any Secondary Securities that may be issued pursuant to this Section
2.2 and except as provided in Sections 2.10 and 2.11. Upon the written
order of the Company in the form of an Officer's Certificate, the
Trustee shall authenticate Securities in substitution of Securities
originally issued to reflect any name change of the Company.
(e) The Company shall pay Fixed Interest in Cash on each Interest
Payment Date; provided , however, that during the first year after the
Issue Date (the "PIK Period"), the Company may, at its option (the "PIK
Option"),
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pay, on any Interest Payment Dates, up to 50% of the Fixed Interest due
and payable on such Interest Payment Dates in additional Securities (the
"Secondary Securities") in lieu of the payment of the relevant portion
of Fixed Interest in Cash on the Securities as provided in paragraph 1
of the Securities. At any time or from time to time prior to the first
anniversary of the Issue Date, any Holder may require that its
Securities be exchanged for an equivalent aggregate amount of Series A
Notes and Series B Notes, 50% of such exchange amount being in Series A
Notes and 50% in Series B Notes. During the PIK Period, 100% of the
Fixed Interest due and payable on the Series A Notes shall be paid
exclusively in Cash, and 100% of the Fixed Interest due and payable on
the Series B Notes shall be paid in Cash or, at the option of the
Company, through the issuance of Secondary Securities. Notwithstanding
anything to the contrary contained above, if any Securities (not divided
into Series A Notes and Series B Notes) are outstanding at a time when
any Series B Notes are outstanding, then if the PIK Option is exercised
with respect to any Securities or Series B Notes, and if the Company
elects the PIK Option for less than the maximum amounts permitted above,
then in each case the percentage of Fixed Interest payable through the
issuance of Secondary Securities with respect to the Series B Notes
shall be twice the percentage of Fixed Interest paid on Securities not
divided into Series A Notes and Series B Notes. All Secondary Securities
shall be governed by this Indenture and shall be subject to the same
terms (including Stated Maturity and rate of interest from time to time
payable thereon (but not including the issuance date)) on all other
Securities.
In addition to the payments of Fixed Interest, the Company will pay to
the Holder of each Security in accordance with the terms of such
Security and this Indenture such Xxxxxx's pro rata amount of principal
as amortized in Section 2.3 below.
(f) With respect to each Interest Payment Date where the PIK
option is applicable, the Company shall give written notice to the
Trustee of the amount of interest to be paid in Secondary Securities not
less than five Business Days prior to the applicable Interest Payment
Date, and the Trustee or an authenticating agent (upon written order of
the Company signed by an Authorized Representative of the Company given
not less than five nor more than 45 days prior to such Interest Payment
Date) shall authenticate for original issue (pro rata to each Holder of
any Securities, but subject to the adjustment for outstanding Series B
Notes described in the fourth sentence of
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preceding clause (e), on the applicable Record Date) Secondary
Securities in an aggregate principal amount equal to the amount of Cash
interest not paid on the Interest Payment Dates during the first year
after the Issue Date. Each issuance of Secondary Securities in lieu of
the partial payment of Fixed Interest in Cash on the Securities shall be
made pro rata with respect to the outstanding Securities, but subject to
the adjustment for outstanding Series B Notes described in the fourth
sentence of preceding clause (e), and the Company shall have the right
to aggregate amounts of interest payable in the form of Secondary
Securities to a Holder of outstanding Securities and issue to such
holder a single Secondary Security (subject to the right of any Holder
to request that the respective Secondary Security be split into Series A
Notes and Series B Notes as contemplated above) in payment thereof.
(g) The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the
Company, any Affiliate of the Company or any of its Subsidiaries.
(h) Securities shall be issuable only in registered form without
coupons in denominations of $1.00 and any integral multiple thereof;
provided, however, that the Company may at its option pay Cash in lieu
of issuing Secondary Securities in any denominations of less than $1.00.
Section 2.3. Principal Repayments.
(a) In addition to any other mandatory repayments pursuant to
this Section 2.3, on each Semi-Annual Free Cash Flow Payment Date, an
amount equal to 50% of Semi-Annual Free Cash Flow for the Semi-Annual
Free Cash Flow Payment Period last ended before the respective
Semi-Annual Free Cash Flow Payment Date shall be applied as a mandatory
prepayment of outstanding Securities on the basis required by Section
2.3(c).
(b) In addition to any other mandatory repayments pursuant to
this Section 2.3, on each date set forth below there shall be required
to be repaid on the basis required by Section 2.3(c), that aggregate
principal amount of the Securities, to the extent then outstanding, as
is set forth opposite such date (a
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"Securities Scheduled Repayment," and each such date, a "Securities
Scheduled Repayment Date"):
Scheduled Repayment Date Amount
------------------------ ------
June 30, 2005 $1,500,000
September 30, 2005 $1,500,000
December 30, 2005 $1,500,000
March 30, 2006 $1,500,000
June 30, 2006 $1,500,000
September 30, 2006 $1,500,000
December 30, 2006 $1,500,000
March 30, 2007 $1,500,000
June 30, 2007 $1,500,000
September 30, 2007 $1,500,000
December 30, 2007 $1,500,000
Stated Maturity The then outstanding aggregate prin-
cipal amount of the Securities (to-
gether with all accrued and unpaid
interest thereon).
(c) All amounts required to be applied pursuant to this clause
(c) as a result of the requirements of Sections 2.3(a) and (b) shall be
applied to repay the outstanding principal of the Securities on a pro
rata basis (based upon the then outstanding principal amounts thereof).
(d) Notwithstanding anything to the contrary contained elsewhere
in this Indenture, all then outstanding Securities shall be repaid in
full on the Stated Maturity.
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Section 2.4. Registrar and Paying Agent. The Company shall maintain an
office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency in the Borough of Manhattan, The City of
New York where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Securities may be served. The Company may act as its own Registrar or Paying
Agent, except that, for the purposes of Articles III and VIII, neither the
Company, any Subsidiary of the Company, nor any Affiliate of the Company shall
act as Paying Agent. The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-Registrars
and one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. The Company hereby initially appoints the Trustee as
Registrar and Paying Agent, and the Trustee hereby initially agrees so to act
until such time as the Trustee has resigned or a successor has been appointed.
The Company may change any Registrar, Paying Agent or co-Registrar without
notice to any Holder.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
Section 2.5. Paying Agent to Hold Assets in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets and/or Secondary Securities held by the Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee in
writing of any Default by the Company in making any such payment. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate such
assets and hold them as a separate trust fund for the benefit of the Holders or
the Trustee. The Company at any time may require a Paying Agent to distribute
all assets and/or Secondary Securities held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets and/or Secondary Securities held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets and/or Secondary Securities that shall have been delivered
by the Company to the Paying Agent, the Paying Agent (if other than
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the Company) shall have no further liability for such assets and/or Secondary
Securities.
Section 2.6. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee on or before the third Business Day
preceding each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee
reasonably may require of the names and addresses of Holders. The Trustee, the
Registrar and the Company shall provide a current securityholder list to any
Gaming Authority upon demand.
Section 2.7. Transfer and Exchange. When Securities are presented to
the Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.2, 2.3, 3.6 and 5.14).
Section 2.8. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder of a Security claims and submits an
affidavit or other evidence, reasonably satisfactory to the Trustee, to the
effect that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security if
the Trustee's requirements are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Security.
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Every replacement Security is an additional obligation of the Company
and the Guarantors.
Section 2.9. Outstanding Securities. Securities outstanding at any time
are all the Securities that have been authenticated by the Trustee, including
Secondary Securities, except those canceled by it, those delivered to it for
cancellation and those described in this Section 2.9 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security, except as provided in Section 2.10.
If a Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof reasonably satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.8.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds Cash sufficient to pay
all of the principal and interest due on the Securities payable on that date and
payment of the Securities called for redemption is not otherwise prohibited,
then on and after that date such Securities cease to be outstanding and interest
on them ceases to accrue unless the Company defaults in its obligations with
respect thereto.
Section 2.10. Treasury Securities. In determining whether the Holders of
the required principal amount of Securities have concurred in any direction,
amendment, supplement, waiver or consent (each a "Holder Action"), Securities
owned by the Company, any Guarantor, any Affiliate of the Company, HET or any
Affiliate of HET shall be disregarded, except that, (a) in the case of any
Holder Action which (and only to the extent that same) amends, modifies, or
waives the provisions of Section 5.24 hereof, or effects a rescission of an
acceleration pursuant to the second paragraph of Section 6.2, which acceleration
was based solely on a breach of the obligations set forth in Section 5.24, only
Securities owned by JCC Holding and any of its Subsidiaries (and not those owned
by any other Affiliate of JCC Holding, including, without limitation, HET or any
Affiliate of HET) shall be excluded and (b) for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Securities that the Trustee knows
or has reason to know are so owned shall be disregarded. If for any reason, with
respect to any given Holder Action, the TIA requires (pursuant to a requirement
that is not permitted to be altered as provided herein) that outstand-
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ing Securities be determined in a manner other than that provided above in this
Section 2.10, then the determination of outstanding Securities for such Holder
Action shall be made in accordance with the provisions of this Section 2.10, but
shall also require the concurrence of the holders of the minimum percentage of
outstanding securities (determined in accordance with the requirements of the
TIA) as may be specified in the TIA for the taking of such Holder Action.
Section 2.11. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may execute, and upon a written order of the
Company in the form of an Officer's Certificate, the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company reasonably and in
good faith considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall execute, and upon written order of the Company in the
form of an Officer's Certificate, the Trustee shall authenticate definitive
Securities in exchange for temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities authenticated and delivered
hereunder.
Section 2.12. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration, transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Securities (subject to the record
retention requirement of the Exchange Act). Certification of the destruction
of all cancelled Securities shall be delivered to the Company. Subject to
Section 2.8, the Company may not issue new Securities to replace Securities they
have paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 2.12, except as expressly permitted in the form of Securities
and as permitted by this Indenture. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the obligations represented by such Securities unless and until surrendered
to the Trustee pursuant to this Section 2.12.
Section 2.13. Defaulted Interest. Interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on Record Date
for such interest.
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Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest (a "Special Record Date"), which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of Cash equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such Cash when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause (a). Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security register not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following clause
(b); and
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
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notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner shall be deemed practicable by the Trustee. Subject
to the foregoing provisions of this Section, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
ARTICLE III
REDEMPTION
Section 3.1. Right of Redemption. Subject to the provisions of Section
5.15, the Securities shall be redeemable in whole or in part at the election of
the Company at the Redemption Price at any time and from time to time as herein
provided, and shall be redeemed in whole or in part at any time pursuant to a
Required Regulatory Redemption at the Redemption Price. In the event of a
Required Regulatory Redemption, the Company shall notify the Trustee (a
"Trustee Redemption Notice") of any redemption under this Section 3.1, and upon
receipt of such notice, the Trustee shall not accord any rights or privileges
under this Indenture or any Security to any Securityholder or owner of a
beneficial or voting interest who is required to dispose of any Security or
tender it for redemption, except to pay the Redemption Price upon tender of such
Security.
Section 3.2. Notices to Trustee. If the Company elects or is required to
redeem Securities pursuant to Section 3.1, the Company shall notify the Trustee
in writing of the aggregate principal amount of the Securities to be redeemed,
the redemption date (as so determined by the Company, the "Redemption Date") and
whether the Company would like the Trustee to give notice of redemption to the
Holders. Such notice to the Trustee shall be delivered at least five days prior
to the mailing of the Notice of Redemption provided for in Section 3.3.
Section 3.3. Notice of Redemption. At least 10 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first class mail, postage prepaid, to each Holder whose Securities are to be
redeemed (unless a shorter notice period shall be required by applicable law).
At the Company's request, the Trustee shall give the notice of redemption in
the Company's
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name and at the Company's expense. Each notice for redemption shall identify the
Securities to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price, including the amount of accrued and
unpaid interest to be paid upon such redemption;
(c) the name, address and telephone number of the Paying Agent;
(d) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(e) if any Security is being redeemed in part, the portion of the
principal amount equal to $1.00 or any integral multiple thereof of such
Security to be redeemed and that, after the Redemption Date, and upon
surrender of such Security, a new Security or Securities in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(f) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities
to be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(g) the CUSIP number of the Securities to be redeemed; and
(h) that the notice is being sent pursuant to this Section 3.3
and Paragraph 6 of the Securities.
Section 3.4. Effect of Notice of Redemption. Once notice of redemption
is mailed in accordance with Section 3.3, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Trustee or Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price.
Section 3 .5. Deposit of Redemption Price. On or before the Redemption
Date, the Company shall deposit with the Paying Agent Cash sufficient to pay the
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Redemption Price of all Securities to be redeemed on such Redemption Date. The
Paying Agent shall promptly return to the Company any Cash so deposited which is
not required for that purpose upon the written request of the Company.
Whether or not such Securities are presented for payment, interest on
the Securities to be redeemed will cease to accrue on the Redemption Date.
Section 3.6. Securities Redeemed In Part. If less than all outstanding
Securities are to be redeemed, except pursuant to a Required Regulatory
Redemption, redemption shall be pro rata among all Holders of the Securities.
Upon surrender of a Security that is to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder, without
service charge, a new Security or Securities equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.7. Regulatory Redemption Event. In the event the Company is
required to redeem, pursuant to a Required Regulatory Redemption or Redemptions,
$20,000,000 or more of Securities in the aggregate after giving effect to all
Required Regulatory Redemptions since the Issue Date, each Holder of Securities
(other than Holders who are subject to a Required Regulatory Redemption) shall
have the right, at such Holder's option, to require the Company to repurchase
all or any such part of such Xxxxxx's Securities pursuant to Article VIII (a
"Regulatory Redemption Event").
ARTICLE IV
SECURITY
Section 4.1. Security Interest.
(a) In order to secure the prompt and complete payment and
performance in full of the Indenture Obligations, the Company, the
Guarantors and, as applicable, the Trustee, the other Secured
Creditors and the Collateral Agent for the benefit of the Secured
Creditors have entered into this Indenture and the Security Documents.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of this Indenture, the Intercreditor Agreement and the
Security Documents, and the Trustee agrees to all of the terms and
provisions of this Indenture, the Intercreditor Agreement, the Manager
Subordination Agreement and the Security Documents, as this Indenture,
the Intercreditor Agreement, the Manager Subordination
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Agreement and the Security Documents may be amended from time to time
pursuant to the provisions thereof and hereof.
(b) The Collateral is to be held by the Collateral Agent for the
benefit of the Secured Creditors, subject to the terms of the
Intercreditor Agreement, the Security Documents and Section 4.6.
(c) The provisions of TIA Section 314(d), and the provisions of
TIA Section 314(c)(3) to the extent applicable by specific reference in
this Article IV, are hereby incorporated by reference herein as if set
forth in their entirety, except that, as set forth in Section 4.5, TIA
Section 314(d) need not be complied with in certain respects.
Section 4.2. Recording; Opinions of Counsel.
(a) The Company represents that it has caused to be executed and
delivered, filed and recorded and covenants that it will promptly cause
to be executed and delivered, filed and recorded, all instruments and
documents, and has done and will do or will cause to be done all such
acts and other things, at the Company's expense, as are necessary to
effect and maintain valid and perfected security interests in the
Collateral. The Company shall, as promptly as practicable, cause to be
executed and delivered, filed and recorded all instruments and do all
acts and other things as may be required by law to perfect, maintain and
protect the security interests under the Security Documents and herein.
(b) The Company shall furnish to the Trustee and the Collateral
Agent, concurrently with the execution and delivery of this Indenture
and the Security Documents and promptly after the execution and delivery
of any amendment thereto or any other instrument of further assurance,
an Opinion(s) of Counsel stating that, in the opinion of such counsel,
subject to customary exclusions and exceptions reasonably acceptable to
the Trustee, either (i) this Indenture, the Security Documents, any such
amendment and all other instruments of further assurance have been
properly recorded, registered and filed and all such other action has
been taken to the extent necessary to make effective valid security
interests and to perfect the security interests intended to be created
by this Indenture and the Security Documents, and reciting the details
of such action, or (ii) no such action is necessary to effect
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and maintain in full force and effect the validity and perfection of the
security interests under the Security Documents and hereunder.
(c) The Company shall furnish to the Trustee and the Collateral
Agent, on or prior to March 30, of each year commencing in 2002, an
Opinion(s) of Counsel, dated as of such date, stating that, in the
opinion of such counsel, subject to customary exclusions and exceptions
reasonably acceptable to the Trustee, either (A) all such action has
been taken with respect to the recording, registering, filing,
rerecording and refiling of this Indenture, all supplemental indentures,
the Collateral Documents, financing statements, continuation statements
and all other instruments of further assurance as is necessary to
maintain the validity and perfection of security interests under the
Collateral Documents and hereunder in full force and effect and reciting
the details of such action, and stating that all financing statements
and continuation statements have been executed and filed and such other
actions taken that are necessary fully to preserve and protect the
rights of the Holders and the Trustee hereunder and under the Collateral
Documents, or (B) no such action is necessary to maintain in full force
and effect the validity and perfection of the security interests under
the Collateral Documents and hereunder.
(d) The provisions of TIA Section 314(d), and the provisions of
TIA Section 314(c)(3) to the extent applicable by specific reference in
this Article IV, are hereby incorporated by reference herein as if set
forth in their entirety, except that, as set forth in Section 4.5, TIA
Section 314(d) need not be complied with in certain respects.
Section 4.3. Disposition of Certain Collateral .
(a) The Company may, without requesting the release or consent of
the Trustee or the Collateral Agent, but otherwise subject to the
requirements of this Indenture, and in each case in the ordinary
course of its business:
(i) sell, assign, transfer, license or otherwise dispose of,
free from the security interests under the Security Documents and
hereunder, any machinery, equipment, or other personal Property
constituting Collateral that has become worn out, obsolete, or
unserviceable or is being upgraded, upon replacing the same with or
substituting for the same, machinery, equipment
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or other Property constituting Collateral not necessarily of the same
character but being of at least equal fair value and at least equal
utility to the Company as the Property so disposed of, which Property
shall without further action become Collateral subject to the security
interests under the Security Documents and hereunder;
(ii) (A) consistent with industry practices, sell, assign,
transfer, license or otherwise dispose of, free from the security
interests under the Security Documents and hereunder, inventory held for
resale that is at any time part of the Collateral, (B) in the ordinary
course of the Company's business and consistent with industry practices,
collect, liquidate, sell, factor or otherwise dispose of, free from the
security interests under the Security Documents and hereunder, accounts
receivable or notes receivable that are part of the Collateral or (C)
make ordinary course of business Cash payments (including scheduled
repayments of Indebtedness permitted to be incurred hereby) from Cash
that is at any time part of the Collateral;
(iii) sell, assign, transfer, license or otherwise dispose
of, free from the security interests under the Security Documents and
hereunder, any personal property the use of which is no longer necessary
or desirable in the proper conduct of the business of the Company and
its Subsidiaries and the maintenance of its earnings and is not material
to the conduct of the business of the Company and its Subsidiaries;
(iv) sell, assign, transfer, license or otherwise dispose of,
free from the security interests under the Security Documents and
hereunder, any assets or property in accordance with Section 5.14;
provided, that the Collateral Agent shall have a valid and perfected
security interest in all net proceeds that are not Net Cash Proceeds
from such disposition (except those fees, commissions and other expenses
and taxes deducted in the definition of "Net Cash Proceeds") and in any
assets or property acquired with the proceeds from such disposition in
the same priority as such assets or property so disposed of; and
(v) sell, assign, transfer, license, release or otherwise
dispose of, free from the security interests under the Security
Documents, the Intercreditor Agreement and hereunder, any Collateral as
permitted by and pursuant to the express terms of any of the Security
Documents and/or the Intercreditor Agreement.
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(b) Notwithstanding the provisions of subsection (a) above, the
Company shall not dispose of or transfer (by lease, assignment, license,
sale or otherwise) or pledge, mortgage or otherwise encumber Collateral
pursuant to the provisions of Section 4.3(a)(ii) or (iii) with a fair
value of 10% or more of the aggregate fair value of all Collateral then
existing in any transaction or any series of related transactions.
(c) In the event that the Company has sold, exchanged, or
otherwise disposed of or proposes to sell, exchange or otherwise dispose
of any portion of the Collateral which under the provisions of this
Section 4.3 may be sold, exchanged or otherwise disposed of by the
Company without consent of the Trustee or the Collateral Agent, and the
Company requests the Trustee or the Collateral Agent to furnish a
written disclaimer, release or quitclaim of any interest in such
property under the Security Documents, the Trustee shall execute such an
instrument (or instruct the Collateral Agent to do so), prepared by the
Company, upon delivery to the Trustee of an Officer's Certificate by the
Company reciting the sale, exchange or other disposition made or
proposed to be made and describing in reasonable detail the property
affected thereby, and certifying that such property is property which by
the provisions of this Section 4.3 may be sold, exchanged or otherwise
disposed of or dealt with by the Company without any release or consent
of the Trustee or the Holders. Each of the Trustee and the Collateral
Agent shall be authorized to conclusively rely on such certification.
(d) Any disposition of Collateral made in compliance with the
provisions of this Section 4.3 shall be deemed not to impair the
security interests under the Security Documents and hereunder in
contravention of the provisions of this Indenture.
Section 4.4. Net Cash Proceeds Account. All Cash or Cash Equivalents
received by the Company or its Subsidiaries as Net Cash Proceeds from any Asset
Sale or as Insurance and Condemnation Proceeds shall be deposited in the Net
Cash Proceeds Account, in which account there shall be, subject to the lien
priority provisions set forth in the Intercreditor Agreement, the Security
Documents and Section 4.6, a perfected security interest in favor of the
Collateral Agent for the benefit of the Secured Creditors. As long as no Default
or Event of Default exists, the funds from time to time on deposit in the Net
Cash Proceeds Account may, subject to the requirement of the immediately
succeeding sentence, be disbursed
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from such account for general corporate purposes and to replace, restore, repair
or rebuild the respective Collateral. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, if the aggregate amount of
Insurance and Condemnation Proceeds (for this purpose, excluding proceeds from
business interruption insurance) with respect to any single event or series of
related events equals or exceeds $1,000,000, then all Insurance and Condemnation
Proceeds received from the respective event or series of related events
(including proceeds from business interruption insurance) may only be withdrawn
from the Net Cash Proceeds Account so long as no Default or Event of Default
then exists, (a) in the case of proceeds from business interruption insurance,
for general corporate purposes, and (b) in the case of all other such
Insurance and Condemnation Proceeds, (i) within 180 days after the date of the
receipt of such proceeds, to commence replacement, restoration, repair or
reconstruction of any Collateral that has been damaged, destroyed, or subject to
the respective casualty or condemnation event (provided, that such replacement,
restoration, repair or reconstruction is completed within 365 days of such
commencement) and/or (ii) to the extent not used for the purposes described in
the preceding clause (i), subject to the terms of the Intercreditor Agreement,
to redeem Securities in accordance with the provision of Section 3.1 of this
Indenture. Any release of proceeds as contemplated by the immediately preceding
sentence shall be effected pursuant to the delivery of an Officer's Certificate
by the Company to the Trustee at the time of each release of such funds, with
each such Officer's Certificate to certify the amount of funds to be withdrawn
and the use to be made of the proceeds of such drawing.
Section 4.5. Certain Releases of Collateral. Subject to applicable law,
the release of any Collateral from Liens created by the Security Documents or
the release of, in whole or in part, the Liens created by the Security
Documents, will not be deemed to impair the Security Documents in contravention
of the provisions of this Indenture if and to the extent the Collateral or Liens
are released pursuant to, and in accordance with, the Intercreditor Agreement
and the applicable Security Documents and are in compliance with the terms
hereof (including, without limitation, the applicable provisions of Section
5.14). To the extent applicable, without limitation (except as provided in the
last sentence of this paragraph), the Company, the Guarantors and each obligor
on the Securities shall cause TIA Section 314(d), relating to the release of
property or securities from the Liens of the Security Documents, to be complied
with. Any certificate or opinion required by TIA Section 314(d) may be made by
two Officers of the Company, except in cases in which TIA Section 314(d)
requires that such certificate or opinion be made by an independent Person. The
Company shall not be required under this Indenture to deliver to the Trustee any
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certificates or opinions required to be delivered pursuant to Section 314(d) of
the TIA in connection with releases of Collateral in accordance with Section
4.3(a)(ii) hereunder, unless TIA Section 314(d) would require such certificate
or opinion to be made by an independent Person.
Section 4.6. Lien Priorities.
(a) Priorities. As more fully provided in (and subject to the
express provisions of) the various Security Documents and the
Intercreditor Agreement, it is acknowledged and agreed that all proceeds
applied in accordance with the various Security Documents are required
to be applied: (i) first, to certain Obligations (as used in this
Section 4.6, the term "Obligations" shall have the meaning provided in
the Intercreditor Agreement) owing to the Collateral Agent, (ii) second,
to all reimbursement obligations pursuant to the Minimum Payment
Guaranty Documents in respect of amounts actually paid pursuant to one
or more Minimum Payment Guaranties, and any interest thereon or other
amounts secured thereby in accordance with the terms of the relevant
Minimum Payment Guaranty Documents, (iii) third, to all unpaid Revolving
Obligations (as defined in the Intercreditor Agreement); and (iv)
fourth, to all unpaid Indenture Obligations, as (and on the basis)
provided in the Security Documents and the Intercreditor Agreement.
(b) Acknowledgment of Prior Security Interest.
(i) It is acknowledged and agreed that the security interests
granted pursuant to various of the Security Documents shall also secure
the Minimum Payment Obligations (as defined in the Intercreditor
Agreement) owed to HET and HOC as Minimum Payment Guarantors and the
Minimum Payment Obligations owing to any other Minimum Payment Guarantor
which becomes a party to the Intercreditor Agreement in accordance with
the terms and provisions thereof, with the Minimum Payment Obligations
so secured to be entitled to the Lien priorities in terms of
distributions pursuant to the Security Documents described in preceding
Section 4.6(a).
(ii) It is acknowledged and agreed that the security
interests granted pursuant to various of the Security Documents shall
also secure the Revolving Obligations (as defined in the Intercreditor
Agreement) in accordance with the terms and provisions thereof, with
the Revolving Obligations (so long as the aggregate principal amount
thereof at no time outstanding
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exceeds $35,000,000) so secured to be entitled to the Lien priorities in
terms of distributions pursuant to the Security Documents described in
preceding Section 4.6(a).
Section 4.7. Payment of Expenses. On demand of the Trustee, the Company
forthwith shall pay or satisfactorily provide for all reasonable expenditures
incurred by the Trustee and the Collateral Agent under this Article IV,
including the reasonable fees and expenses of counsel.
Section 4.8. Suits to Protect the Collateral. Subject to Section 4.1 of
this Indenture, the Intercreditor Agreement and to the provisions of the
Security Documents, the Trustee shall have power to institute and to maintain
such suits and proceedings as it may deem expedient to prevent any impairment of
the Collateral by any acts which may be unlawful or in violation of the Security
Documents or this Indenture, including the power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid or if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interests in contravention of this
Indenture or be prejudicial to the interests of the Holders or of the Trustee.
The Trustee shall give notice to the Company promptly following the institution
of any such suit or proceeding.
Section 4.9. Trustee's and Collateral Agent's Duties . The powers and
duties conferred upon the Trustee and the Collateral Agent by this Article IV
are solely to protect the security interests and shall not impose any duty upon
the Trustee or Collateral Agent to exercise any such powers and duties, except
as expressly provided in this Indenture or the TIA. Neither the Trustee nor
the Collateral Agent shall be under any duty to the Company or any Guarantor
whatsoever to make or give any presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, or other notice
or demand in connection with any Collateral, or to take any steps necessary to
preserve any rights against prior parties except as expressly provided in this
Indenture. Neither the Trustee nor the Collateral Agent shall be liable to the
Company or the Guarantors for failure to collect or realize upon any or all of
the Collateral, or for any delay in so doing, nor shall the Trustee or the
Collateral Agent be under any duty to the Company or the Guarantors to take any
action whatsoever with regard thereto. Neither the Trustee nor the Collateral
Agent shall have any duty to the Company or the Guarantors to comply with any
recording, filing, or other legal requirements necessary to establish or
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maintain the validity, priority or enforceability of the security interests in,
or the Trustee's or the Collateral Agent's rights in or to, any of the
Collateral.
Section 4.10. Security Documents. Notwithstanding any provision of this
Indenture, or the Security Documents, or any other documents contemplated
hereunder to the contrary:
(a) this Indenture and the Security Documents shall grant no
Liens, or any other security or other interests or right in or to (i)
the Casino Operating Contract, (ii) the House Bank (as defined in the
Management Agreement), and (iii) the Louisiana Gaming Gross Revenue
Share Payments (including the State's Interest in Daily Collections), as
such terms are defined in the Casino Operating Contract; and
(b) the Casino Operating Contract and the Louisiana Gaming Gross
Revenue Share Payments (including the State's Interest in Daily
Collections), are not part of the Collateral and are not included within
the definition of Collateral.
ARTICLE V
COVENANTS
Section 5.1. Payment of Securities.
(a) The Company shall duly and punctually pay the principal of
and interest on the Securities, including any such interest paid on
Secondary Securities at the places, on the dates and in the manner
provided in the Securities and this Indenture. An installment of
principal of or interest on the Securities shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the
Company or an Affiliate of the Company) holds for the benefit of the
Holders, on or before 10:00 a.m. New York City time on that date, Cash
and/or, to the extent permitted or required by Section 2.2, Secondary
Securities, deposited and designated for and sufficient to pay the
installment, and has not received instructions from the Company not to
make such payment and is not otherwise prohibited from paying such
principal, interest or Secondary Securities to the Holders pursuant to
this Indenture.
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(b) The Company shall pay interest (including post-petition
interest in any proceeding under any applicable Bankruptcy Law) on
overdue principal and on overdue installments of interest at a rate per
annum equal to Base Rate (as in effect from time to time) plus 375 basis
points, compounded quarterly, to the extent lawful.
Section 5.2. Information Covenants; Compliance Certificate; Notice of
Default.
(a) JCC Holding and/or the Company will furnish to the Trustee,
and each Holder who makes a written request to the Company with a copy
to the Trustee, the following information:
(i) Monthly Reports. Within 30 days after the end of each
fiscal month of JCC Holding (other than the last such month of any
fiscal quarter of JCC Holding), copies of such monthly financial
statements, if any, which JCC Holding or any of its Subsidiaries is
required to file with any Gaming Authority and which are publicly
available after such filing.
(ii) Quarterly Financial Statements. Within 45 days after
the close of each of the first three quarterly accounting periods in
each fiscal year of JCC Holding and within 90 days after the close of
the fourth quarterly accounting period in each fiscal year of JCC
Holding, the consolidated balance sheet of JCC Holding and its
Consolidated Subsidiaries as at the end of such quarterly accounting
period and the related consolidated statements of income and retained
earnings and statement of cash flows, in each case for such quarterly
accounting period and for the elapsed portion of the fiscal year ended
with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding periods in the
prior fiscal year, all of which shall be certified by a financial
officer of the Company, subject to normal year-end audit adjustments.
To the extent JCC Holding is filing quarterly reports on Form 10-Q with
the SEC, delivery of such reports to the Trustee and requesting Holders
shall be deemed to satisfy the foregoing requirements of this
subsection. If JCC Holding has any Subsidiaries which are Unrestricted
Subsidiaries hereunder, then the quarterly financial information
required by this clause (ii) shall include a reasonably detailed
presentation, either on the face of the financial statements or the
footnotes thereto, and in the management's discussion an analysis of
operational and financial developments, of the financial condition and
results of
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operations of Unrestricted Subsidiaries separate from the financial
condition and results of operations of JCC Holding and its Subsidiaries
which are not Unrestricted Subsidiaries.
(iii) Annual Financial Statements. Within 120 days after the
close of each fiscal year of JCC Holding, (A) the consolidated balance
sheet of JCC Holding and its Consolidated Subsidiaries as at the end of
such fiscal year and the related consolidated statements of income and
retained earnings and statement of cash flows for such fiscal year
setting forth comparative figures for the preceding fiscal year and
certified by Deloitte & Touche or such other independent certified
public accountants of recognized national standing reasonably acceptable
to the Trustee, and (B) management's discussions and analysis of the
important operational and financial developments during such fiscal
year. To the extent JCC Holding is filing Annual Reports on Form 10-K
with the SEC, delivery of such reports to the Trustee and the requesting
Holders shall be deemed to satisfy the foregoing requirements of this
subsection. If JCC Holding has any Subsidiaries which are Unrestricted
Subsidiaries hereunder, then the annual financial information required
by this clause (iii) shall include a reasonably detailed presentation,
either on the face of the financial statements or the footnotes thereto,
and in the management's discussion and analysis of operational and
financial developments, of the financial condition and results of
operations of Unrestricted Subsidiaries separate from the financial
condition and results of operations of JCC Holding and its
Subsidiaries which are not Unrestricted Subsidiaries.
(iv) Other Reports, Notices and Filings. Promptly, copies of
all financial information, proxy materials, notices and other
information and reports, if any, which JCC Holding or any of its
Subsidiaries shall file with the SEC.
(b) JCC Holding and/or the Company will furnish to each Holder of
5% or more of the outstanding Securities who (1) is an Eligible
Institution, (2) makes a written request to the Company and (3)
furnishes to the Company an executed confidentiality agreement,
substantially in the form furnished by the Company to the Trustee on the
Issue Date (the "Confidentiality Agreement"), the following
information:
(i) To the extent not provided pursuant to Section 5.2(a)(i),
within 30 days after the end of each fiscal month of JCC Holding (other
than
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the last such month of any fiscal quarter of JCC Holding), the
consolidated balance sheet of JCC Holding and its Consolidated
Subsidiaries as at the end of such fiscal month and the related
consolidated statements of income and retained earnings and statement of
cash flows for such fiscal month and for the elapsed portion of the
fiscal year ended with the last day of such fiscal month, all of which
shall be certified by a financial officer of JCC Holding, subject to
normal year-end audit adjustments. If JCC Holding has any Subsidiaries
which are Unrestricted Subsidiaries hereunder, then the monthly
financial information required by this clause (i) shall include a
reasonably detailed presentation, either on the face of the financial
statements or the footnotes thereto, of the financial condition and
results of operations of Unrestricted Subsidiaries separate from the
financial condition and results of operations of JCC Holding and its
Subsidiaries which are not Unrestricted Subsidiaries.
(ii) Management Letters. Promptly after the receipt thereof
by JCC Holding or any of its Subsidiaries, a copy of any "management
letter" received by JCC Holding or such Subsidiary from its certified
public accountants and the management's responses thereto.
(iii) Management Agreement. No later than 30 days following
the approval thereof by the Board of Directors of JCC Holding, the
annual plan prepared pursuant to Article 8 of the Management Agreement,
any revisions to the annual plan referred to in the Management Agreement
as may be agreed to by JCC Holding or the Company and/or Xxxxxx'x
Management Company, any submissions to arbitration in connection with
such annual plan and the results of any such arbitration.
(iv) Budgets. No later than 30 days following the approval
thereof by the Board of Directors of JCC Holding, a budget (including
budgeted statements of income and sources and uses of cash and balance
sheets) prepared by JCC Holding for (A) each of the twelve months of
such fiscal year prepared in detail and (B) for the year immediately
following such fiscal year, in each case prepared in summary form and
consolidated for JCC Holding and its Subsidiaries, and accompanied by
the statement of a financial officer of JCC Holding to the effect that,
to the best of such officer's knowledge, the budget is a reasonable
estimate for the period covered thereby.
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(v) Other Reports, Notices and Filings. Promptly, copies of
all financial information, notices and other information and reports, if
any, which JCC Holding or any of its Subsidiaries (A) delivers to
holders of any other issue of its Indebtedness if the aggregate
principal amount thereof exceeds (or upon the utilization of any unused
commitment may exceed) $5,000,000, pursuant to the terms of the
documentation governing any such Indebtedness (or any trustee, agent or
other representative therefor) or (B) delivers pursuant to any of the
Minimum Payment Guaranty Documents (including, without limitation, any
notice to the effect that the Minimum Payment Guaranty shall not be
renewed or extended).
(vi) Litigation. Promptly, and in any event within three
Business Days after JCC Holding or the Company obtains knowledge
thereof, notice of any litigation or governmental investigation or
proceeding (including any investigation by any Gaming Authority) pending
(A) against JCC Holding or any of its Subsidiaries or Affiliates of any
thereof (other than the initial suitability investigations by the LGCB
of directors and officers of the Company and JCC Holding, but including
notice of any adverse finding in any such investigation), which could
materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Company or JCC Holding and its Subsidiaries taken as a whole, (B)
with respect to any material Indebtedness of JCC Holding and its
Subsidiaries taken as a whole or (C) with respect to any Document or the
Transaction.
(vii) Environmental Matters. Promptly upon, and in any event
within ten Business Days after, an Authorized Representative of JCC
Holding or any of its Subsidiaries obtains knowledge thereof, notice of
one or more of the following environmental matters, unless such
environmental matters could not, individually or when aggregated with
all other such environmental matters, be reasonably expected to
materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects
of the Company and its Subsidiaries taken as a whole:
(A) any pending or threatened Environmental Claim against JCC
Holding or any of its Subsidiaries or any Real Property owned or
operated by the Company or any of its Subsidiaries;
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(B) any condition or occurrence on or arising from any Real
Property owned or operated by JCC Holding or any of its
Subsidiaries that (1) results in noncompliance by JCC Holding or
any of its Subsidiaries with any applicable Environmental Law or
(2) could reasonably be expected to form the basis of an
Environmental Claim against JCC Holding or any of its
Subsidiaries or any such Real Property;
(C) any condition or occurrence on any Real Property owned or
operated by JCC Holding or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject
to any restrictions on the ownership, occupancy, use or
transferability by JCC Holding or any of its Subsidiaries of such
Real Property under any Environmental Law; and
(D) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on
any Real Property owned or operated by JCC Holding or any of its
Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature
of the claim, investigation, condition, occurrence or removal or
remedial action and JCC Holding's or such Subsidiary's response
thereto. In addition, JCC Holding will provide copies of all
material communications with any government or governmental
agency relating to Environmental Laws, all communications with
any Person (other than its attorneys) relating to any
Environmental Claim of which notice is required to be given
pursuant to this Section 5.2(b)(vii), and such detailed reports
of any such Environmental Claim as may reasonably be requested by
a Holder; provided that in any event JCC Holding shall deliver
all notices received by it or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA.
The Company in its reasonable discretion may refuse to provide the
information set forth in this Section 5.2(b) to any Holder who is not an
Eligible Institution if, in the reasonable judgment of JCC Holding or
the Company,
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providing such information to such Holder may adversely affect the
Company.
(c) Compliance Certificate; Notice of Default. JCC Holding and/or
the Company will furnish to the Trustee the following information:
(i) within 120 days after the end of its fiscal year, an
Officer's Certificate complying (whether or not required) with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, the Security Documents,
the Revolving Credit Agreement and further stating, as to each such
Officer signing such certificate, whether or not the signer knows of any
failure by the Company, any Guarantor or any Subsidiary of the Company
or any Guarantor to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The
Officer's Certificate shall also notify the Trustee should the relevant
fiscal year end on any date other than the current fiscal year end date;
(ii) so long as not contrary to the then current
recommendation of the American Institute of Certified Public
Accountants, within 120 days after the end of its fiscal year a written
report of a firm of independent certified public accountants with an
established national reputation stating that, in conducting their audit
for such fiscal year, nothing has come to their attention that caused
them to believe that of the Company or any Subsidiary of the Company was
not in compliance with the provisions set forth in Sections 2.3, 5.1,
5.5, 5.14, 5.24 and 5.29 of this Indenture;
(iii) at the time of the delivery of the financial statements
provided for in Section 5.2(a)(ii) and (iii), a certificate of an
Authorized Officer of JCC Holding to the effect that, to the best of
such officer's knowledge, no Default or Event of Default has occurred
and is continuing or, if any Default or Event of Default has occurred
and is continuing, specifying the nature and extent thereof, which
certificate shall (A) if the last day of the period covered by the
respective financial statements then being delivered correlates to the
last day of a Semi-Annual Free Cash Flow Payment Period, set forth in
reasonable detail the calculations of Semi-Annual Free Cash Flow for
such Semi-Annual Free Cash Flow Payment and (B) set forth in reason-
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able detail the calculation of Consolidated EBITDA for the Test Period
ended on the last day covered by the respective financial statements;
and
(iv) so long as any of the Securities are outstanding,
deliver to the Trustee, immediately upon becoming aware of any Default
or Event of Default under this Indenture, or any default or event of
default under the Revolving Credit Agreement, an Officer's Certificate
specifying such Default or Event of Default under this Indenture or
event of default under the Revolving Credit Agreement, as applicable,
and what action the Company is taking or proposes to take with respect
thereto. The Trustee shall not be deemed to have knowledge of a Default
or an Event of Default unless one of its trust officers receives notice
of the Default or Event of Default giving rise thereto from the Company
or any of the Holders.
Section 5.3. End of Fiscal Years; Fiscal Quarters. JCC Holding shall
cause (a) its, and each of its Subsidiaries', fiscal years to end on December
31, except that, for purposes of the Casino Operating Contract and the Minimum
Payment Guaranty Documents, the fiscal year of the Company shall be deemed to
end on March 31, and (b) its, and each of its Subsidiaries', fiscal quarters to
end on the last day of each March, June, September and December.
Section 5.4. Maintenance of Office or Agency. The Company shall maintain
in the Borough of Manhattan, the City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided , however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of
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any such other office or agency. The Company hereby initially designates the
Corporate Trust Office of the Trustee as such office.
Section 5.5. Limitation on Restricted Payments. JCC Holding will not,
and will not permit any of its Subsidiaries to, authorize, declare, pay or make
any Restricted Payments, except:
(a) any Subsidiary of the Company may make Restricted Payments
to the Company or any Wholly-Owned Subsidiary of the Company;
(b) any Unrestricted Subsidiary may make Restricted Payments to
JCC Holding or any other Unrestricted Subsidiary;
(c) the Company may pay the Management Fees and Minimum Payment
Guaranty Fees, in each case to the extent permitted by Section 5.11(c)
and (d);
(d) the Company may make Distributions to JCC Holding in an
amount equal to all Permitted Tax Payments to the extent all such
Distributions pursuant to this clause (d) are promptly (and in any
event within two Business Days) used by JCC Holding to make payments in
respect of the tax obligations of the type described in the definition
of Permitted Tax Payments; provided further, that any refund actually
received by JCC Holding shall be promptly (in any event within two
Business Days) returned to the Company (and, if not so returned, shall
reduce the amount of payments otherwise permitted to be made in the
future by the Company pursuant to this clause (d));
(e) the Company may make to, or on behalf of, JCC Holding
payments (all of which payments, if made to JCC Holding, shall be used
by it promptly, and in any event within 10 Business Days, to pay the
amounts in respect of which such payments were advanced to it pursuant
to this Section 5.5(e)) to cover administrative, overhead, or holding
company operating expenses incurred in the ordinary course of business,
including, without limitation, JCC Holding's reasonable professional
fees and expenses in connection with complying with its reporting
obligations and obligations to prepare and distribute business records,
financial statements, or other documents to any lender or other
Persons having business dealings with JCC Holding or as may be required
by law, JCC Holding's costs and related
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expenses in connection with computation of federal, state, local or
foreign taxes and other governmental charges, including franchise taxes,
other than Permitted Tax Payments, indemnification agreements, insurance
premiums, surety bonds and insurance brokers' fees, JCC Holding's
expenses for directors', officers' and employees' compensation and
benefits, rent, office furnishings, fixtures, equipment and office
supplies and JCC Holding's reasonable expenses, including professional
fees and expenses in connection with its obligations under the
Registration Rights Agreements ("Holding Company Costs"); provided,
that, at such time as any Unrestricted Subsidiary (i) is no longer a
Subsidiary Guarantor or (ii) has Cash or Cash Equivalents through loans,
Investments or otherwise (other than from JCC Holding or its
Subsidiaries) in excess of $1,000,000, such Unrestricted Subsidiary
shall pay its allocable fair share (as determined in good-faith by the
Board of Directors of JCC Holding) of Holding Company Costs;
(f) JCC Holding and any of its Subsidiaries may make payments on
any loans or advances made pursuant to Section 5.19(d), (e) and, subject
to compliance with the applicable subordination provisions, (f);
(g) JCC Holding may purchase or redeem outstanding shares of the
New Common Stock if no Default or Event of Default then exists or would
result therefrom to the extent necessary in the good-faith judgment of
the Board of Directors of JCC Holding to prevent the filing of a
disciplinary action by the State of Louisiana or the LGCB or to prevent
the loss or secure the reinstatement of the Casino Operating Contract;
provided that the aggregate amount spent in connection with purchases
pursuant to this clause (g) shall in no event exceed $5,000,000 and
shall be made only from the proceeds of Qualified Subordinated
Indebtedness permitted to be incurred pursuant to Section 5.12(g);
(h) JCC Development may pay rents to the Company pursuant to the
Second Floor Sublease; and
(i) at any time after any payment is made by any Minimum Payment
Guarantor pursuant to the terms of a Minimum Payment Guaranty, such
payment may be reimbursed to the respective Minimum Payment Guarantor by
the Company and the Company may pay interest thereon in accordance with
the terms of the relevant Minimum Payment Guaranty Documents.
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Section 5.6. Existence. The Company and the Guarantors shall do or cause
to be done all things necessary to preserve and keep in full force and effect
their existence, rights (charter and statutory) and franchises in accordance
with the respective organizational documents of each of them; provided ,
however, that neither the Company nor any Guarantor shall be required to
preserve any right or franchise if (a) the Board of Directors or members, as
applicable, shall determine reasonably and in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Company or
Subsidiary and (b) the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 5.7. Payment of Taxes and Other Claims. The Company and each of
the Guarantors shall, and shall cause each of its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon the Company, any Guarantor or any of their Subsidiaries
or upon any of their material properties and assets and (b) all material lawful
claims, whether for labor, materials, supplies, services or anything else, which
have become due and payable and which by law have or may become a Lien upon the
property and assets of the Company, any Guarantor or any of their Subsidiaries;
provided , however, that neither the Company nor any Guarantor shall be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP.
Section 5.8. Maintenance of Insurance. On the Issue Date, and at all
times thereafter, JCC Holding and its Subsidiaries shall have in effect
customary comprehensive general liability, property and casualty and business
interruption insurance, shall have payment or performance or similar bonds in
place for the Casino, in each case on terms and in an amount reasonably believed
by JCC Holding to be sufficient (taking into account, among other factors, the
creditworthiness of the insurer) to avoid a material adverse change in the
financial condition or results of operation of JCC Holding and its Subsidiaries,
taken as a whole.
Section 5.9. Reports. Whether or not the Company or any Guarantor is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company and JCC Holding shall file (which filing may be on a
consolidated basis) with the SEC (to the extent permitted under the Exchange
Act) on or prior to the date
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they are or would have been required to file such with the SEC (the "Required
Filing Date"), annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC if the Company or JCC Holding, as applicable, were
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by such
reporting entity's certified independent public accountants as such would be
required in such reports to the SEC and, in each case, together with a
management's discussion and analysis of financial condition and results of
operations which would be so required. The Company and JCC Holding shall also
include in such reports, in the case of quarterly reports, the Company's
Consolidated EBITDA with respect to the most recently ended fiscal quarter and,
in the case of annual reports, audited Consolidated EBITDA for the most recently
ended fiscal year. The Company and JCC Holding shall also file all other reports
and information that they are or would have been required with the SEC prior to
the Required Filing Date. The Company and JCC Holding will also provide copies
of such annual and quarterly reports to the Trustee within 30 days after the
Required Filing Date; provided, that the Company and JCC Holding shall not be in
default of the provisions of this Section 5.9 for any failure to file reports
with the SEC solely by refusal by the SEC to accept the same for filing, it
being understood that in such event, such reports shall be delivered to the
Trustee as described herein as if they had been filed with the SEC.
Section 5.10. Waiver of Stay, Extension or Usury Laws. The Company and
each Guarantor covenant (to the extent that they may lawfully do so) that they
will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law wherever enacted which would prohibit or forgive the Company or any
Guarantor from paying all or any portion of the principal of or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) the Company and each
Guarantor hereby expressly waive all benefit or advantage of any such law
insofar as such law applies to the Securities, and covenant that they shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 5.11. Transactions with Affiliates. JCC Holding will not, and
will not permit any of its Subsidiaries (other than Unrestricted Subsidiaries)
to, enter into any transaction or series of related transactions with any
Affiliate of JCC Holding or
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any of its Subsidiaries, other than in the ordinary course of business and on
terms and conditions substantially as favorable to JCC Holding or such
Subsidiary as would reasonably be obtained by JCC Holding or such Subsidiary at
that time in a comparable arm's-length transaction with a Person other than an
Affiliate, except that:
(a) Restricted Payments may be paid to the extent provided in
Section 5.5;
(b) loans and advances may be made to the extent expressly
permitted by Sections 5.12(a), (g), and (i), and Investments may be made
as permitted by Section 5.19(d), (e) and (f), and repayments may be made
with respect thereto (in each case subject to compliance with any
applicable subordination provision);
(c) the Company may enter into the Management Agreement and may
pay the Management Fees pursuant thereto as and when due and payable in
accordance with the terms of the Management Agreement, provided, that no
payment may be made by JCC Holding, the Company or any of their
Subsidiaries of the Termination Fee unless and until all Securities,
together with all interest and other Obligations incurred hereunder (as
well as any refinancing of any of the foregoing unless it is
specifically otherwise agreed in the relevant refinancing documentation)
have been paid in full; provided further, that the Termination Fee may
be paid directly to Xxxxxx'x Management Company by a successor manager
permitted to act as such without causing any Default or Event of Default
so long as neither JCC Holding nor any of its Subsidiaries incurs any
obligation to reimburse such successor manager for all or any portion of
the Termination Fee so paid; provided further, that all Termination Fees
shall be subject to the terms of the Manager Subordination Agreement;
(d) the Company may enter into the Minimum Payment Guaranty
Documents and may pay the Minimum Payment Guaranty Fees and other costs
and expenses pursuant thereto, provided, that the Minimum Payment
Guaranty Fees payable in connection with any extension, successor or
substitute for the Minimum Payment Guaranty shall be calculated on a
basis, and be payable at rates, which are not less favorable to the
Company than the Minimum Payment Guaranty Fees payable by it with
respect to the Minimum Payment Guaranty as in effect on the Issue Date;
and
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(e) the Company and the Guarantors may enter into and perform the
Revolving Credit Agreement Documents.
Section 5.12. Limitation on Incurrence of Additional Indebtedness. JCC
Holding will not, and will not permit any of its Subsidiaries to, contract,
create, incur, assume or suffer to exist any Indebtedness, provided, that the
provisions of this Section 5.12 shall not prevent the creation, incurrence,
assumption or existence of the following (Indebtedness described below is herein
referred to as "Permitted Indebtedness"):
(a) Indebtedness incurred pursuant to this Indenture in an
aggregate principal amount not to exceed (i) $124,520,000 (plus the
aggregate principal amount of Secondary Securities issued as interest in
lieu of Cash interest, in each case in accordance with the terms of this
Indenture to the extent the same may be deemed to be principal), less
(ii) the aggregate principal amount of all repayments of principal of
Securities effected after the Issue Date;
(b) accrued expenses and trade accounts payable incurred in the
ordinary course;
(c) Indebtedness under Interest Rate Protection Agreements
relating to Indebtedness otherwise permitted under this Section 5.12;
(d) Indebtedness subject to Liens permitted under Section 5.13(e)
or evidenced by Capitalized Lease Obligations, provided, that in no
event shall the aggregate principal amount of such Indebtedness and
Capitalized Lease Obligations exceed $10,000,000 (which amount shall
increase by $5,000,000 on each of the first three anniversaries of the
Issue Date but on a prospective basis only) at any time outstanding;
(e) Indebtedness incurred from time to time pursuant to the
Revolving Credit Agreement Documents so long as the aggregate principal
amount thereof (for this purpose, including the face amount of all
outstanding letters of credit and all unpaid drawings with respect
thereto as principal) at no time outstanding exceeds $35,000,000 and
complies with the provisions of Section 5.15(b);
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(f) Indebtedness of the Company representing reimbursement
obligations under the Minimum Payment Guaranty Documents, subject to
compliance with the provisions of Section 5.29;
(g) JCC Holding may incur Qualified Subordinated Indebtedness not
to exceed an aggregate amount of $5,000,000 for the sole purpose of
Required Regulatory Redemptions;
(h) Unrestricted Subsidiaries may incur Indebtedness, provided
such Indebtedness is expressly non-recourse to JCC Holding, the Company
and their respective Subsidiaries which are not Unrestricted
Subsidiaries;
(i) JCC Holding and its Subsidiaries may incur Indebtedness to
the extent expressly permitted under clauses (d), (e) and (f) of Section
5.19; and
(j) the Company may incur Indebtedness in an amount not to exceed
$150,000 in connection with charges under credit cards obtained from
third-party financial institutions for use by employees of the Company.
Section 5.13. Limitation on Liens. JCC Holding will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any property or assets (real or personal, tangible
or intangible) of JCC Holding or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to JCC Holding
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided, that the
provisions of this Section 5.13 shall not prevent the creation, incurrence,
assumption or existence of the following (Xxxxx described below are herein
referred to as "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental
charges, compensation or levies not yet due and payable or Liens for
taxes, assessments or governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate reserves
have been established in accordance with generally accepted accounting
principles;
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(b) Permitted Encumbrances;
(c) Xxxxx created pursuant to the Security Documents;
(d) leases or subleases granted by the Company or the
Unrestricted Subsidiaries to other Persons in the ordinary course of
business not materially interfering with the conduct of the business of
the Company or the Unrestricted Subsidiaries, respectively, or
materially detracting from the value of the assets of the Company or the
Unrestricted Subsidiaries, respectively;
(e) Liens on equipment or machinery subject to Capitalized Lease
Obligations to the extent permitted by Section 5.12(d), provided, that
(i) the amount of such Capitalized Lease Obligations outstanding at any
one time, together with the aggregate principal amount of all
Indebtedness outstanding at such time and secured by Liens permitted by
clause (g) of this Section 5.13, shall not exceed that aggregate amount
permitted by Section 5.12(d), (ii) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation
and (iii) the Lien encumbering the equipment or machinery giving rise
to the Capitalized Lease Obligation does not encumber any other asset;
(f) Liens (other than any lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security in the ordinary course of business;
(g) Liens placed upon equipment or machinery used in the ordinary
course of business of the Company or any Unrestricted Subsidiary at the
time of acquisition thereof by the Company or the Unrestricted
Subsidiaries or within 90 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof,
provided, that (i) the aggregate outstanding principal amount of all
Indebtedness secured by Liens permitted by this clause (g) at any time,
together with the amount of all Capitalized Lease Obligations
outstanding at such time, shall not exceed that aggregate amount
permitted by Section 5.12(d) and (ii) in all events, the Lien
encumbering the equipment or machinery so acquired does not encumber any
other asset of JCC Holding or any of its Subsidiaries;
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(h) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of JCC Holding, the Company or the
Unrestricted Subsidiaries;
(i) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Company or the
Unrestricted Subsidiaries in the ordinary course of business;
(j) Liens arising out of judgments or awards in respect of which
JCC Holding, the Company or the Unrestricted Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review in respect of
which there shall have been secured a subsisting stay of execution
pending such appeal or proceedings, provided, that the aggregate amount
of all such judgments or awards (and any Cash and the fair market value
of any property subject to such Liens) does not exceed $5,000,000 at any
time outstanding;
(k) lessor's privileges under leases to which the Company or the
Unrestricted Subsidiaries is a party;
(l) restrictions pursuant to legends on stock required by Gaming
Regulations and the Casino Operating Contract to the extent such
restrictions constitute a Lien;
(m) restrictions pursuant to the Management Agreement, the Casino
Lease and the Casino Operating Contract on the granting of any security
interest in the House Bank and Minimum Balance (each as defined in the
Management Agreement) and the Reserve Fund;
(n) Liens securing Indebtedness of the Unrestricted Subsidiaries,
in each case so long as such Indebtedness is incurred pursuant to, and
permitted under, Section 5.12(h) and so long as such Liens encumber
only the assets of the Unrestricted Subsidiaries;
(o) the ownership rights of the State of Louisiana in the
Louisiana Gross Revenue Share Payments, including the State of
Louisiana's Interest in Daily Collections, each to the extent granted to
the State of Louisiana under (and as each such term is defined in) the
Casino Operating Contract as
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originally in effect and as modified from time to time in compliance
with Section 5.15;
(p) the Minimum Payment Guaranty Lien shall be permitted; and
(q) Liens in respect of property or assets of the Company or the
Unrestricted Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for
borrowed money, such as carriers', warehousemen's, materialmen's and
mechanics' liens and other similar Liens arising in the ordinary course
of business, and (i) which do not in the aggregate materially detract
from the value of the respective Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Company or the Unrestricted Subsidiary, respectively, or (ii) which
are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
Section 5.14. Consolidation, Merger, Purchase or Sale of Assets, Etc.
JCC Holding will not, and will not permit any of its Subsidiaries (other than
Unrestricted Subsidiaries) to, wind up, liquidate or dissolve its affairs or
enter into any transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing at any future time)
all or substantially all of its property or assets, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets in the ordinary course of business) of any Person, except
that:
(a) Capital Expenditures by the Company shall be permitted in
accordance with the provisions of Section 5.18;
(b) Investments may be made to the extent permitted by Section
5.19;
(c) the Company may lease (as lessor) portions of the Casino for
retail, restaurant and other ancillary uses so long as all such leases
(i) do not in the aggregate detract from the gaming operations of the
Casino in any material respect, (ii) are permitted by the Casino
Operating Contract, the Casino Lease, the Gaming Regulations and
applicable zoning and conditional uses and (iii) are subordinate and
subject to the Company Mortgage;
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(d) the Company may lease (as lessee) real or personal property
so long as any such lease does not create a Capitalized Lease Obligation
(other than as permitted under Section 5.12);
(e) HET, or any of its Subsidiaries, so long as HET or its
respective Subsidiary owns 90% of more of the common stock of JCC
Holding, may merge with or into JCC Holding so long as (i) no Default or
Event of Default exists at the time of such merger or immediately
thereafter giving effect thereto and (ii) the surviving corporation
enters into such agreements, in form and substance reasonably
satisfactory to the Trustee, affirming that it assumes all obligations
of JCC Holding under the Guaranty and the relevant Security Documents,
and takes all action necessary or desirable to maintain the perfection
and priority of all security interests created under such Security
Documents; and
(f) the Company may make dispositions pursuant to Section 4.3
(a)(i), (ii) and (iii) hereof.
To the extent any Collateral is sold as permitted by this Section 5.14, such
Collateral (unless sold to JCC Holding or a Subsidiary of JCC Holding) shall be
sold free and clear of the Liens created by the Security Documents, and the
Collateral Agent shall be authorized to take any actions (and shall take such
actions) as it deems appropriate in order to effect the release of the
respective Collateral from the Liens created by the respective Security
Documents.
Section 5.15. Limitation on Payments of Certain Indebtedness,
Modifications of Certain Indebtedness, Modifications of Certificate of
Incorporation, By-laws and Certain Other Agreements, Etc.
(a) JCC Holding will not, and will not permit any of its
Subsidiaries to, (i) make (or give any notice in respect of) any
voluntary or optional payment or prepayment on or redemption or
acquisition for value of, any Securities except in accordance with the
provisions of this Indenture, (ii) amend, modify or permit the amendment
or modification of any provision of the Minimum Payment Guaranty
Documents, except for such amendments or modifications that are
Permitted Amendments, (iii) amend or modify, or permit the amendment or
modification of, any provision of its certificate of incorporation,
by-laws or other applicable organization documents, the
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Casino Lease, the Casino Operating Contract or the Management Agreement,
except such amendments, modifications or changes which are not adverse
to the interests of the Company and do not impose material restrictions
on the Company, (iv) amend, modify or permit the amendment or
modification of the Manager Subordination Agreement, or (v) amend or
modify, or permit the amendment or modification of, the Revolving Credit
Agreement Documents, except (A) such amendments, modifications or
changes which are not adverse to the interests of the Company (and do
not increase the pricing pursuant to the Revolving Credit Agreement
Documents) and do not impose material restrictions on the Company and
(B) a replacement working capital loan facility for the Revolving Credit
Agreement may be entered into in accordance with the provisions of
subsection (b) of this Section 5.15.
(b) Notwithstanding anything to the contrary contained in clause
(v) of subsection of (a) of this Section 5.15, JCC Holding and the
Company may, in accordance with their obligations pursuant to the
Revolving Credit Agreement, use their commercially reasonable efforts
following the six-month anniversary of the Effective Date to identify
and obtain a working capital loan facility (with a lender or lenders
other than HET and its Affiliates) to replace and refinance the
Revolving Obligations, which working capital loan facility shall contain
such terms and conditions (including, without limitation, fees, pricing,
representations, warranties, covenants and events of default) that are
market terms and conditions for a company engaged in the casino and
gaming business similar to the Company and with a credit quality similar
to the Company; provided, that (i) at the time of the entering into of
any such replacement working capital loan facility, the Consolidated
Interest Coverage Ratio for the Test Period last ended shall equal or
exceed 2.0:1.0, (ii) at the time of the entering into of any such
replacement working capital loan facility and immediately after giving
effect thereto, no Default or Event of Default shall be in existence and
(iii) such replacement working capital loan facility (A) shall have been
approved by a majority of all the members of JCC Holding's Board of
Directors who are not Affiliates of HET or were nominated by HET or its
Affiliates, (B) shall not require any payment of interest or fees
(excluding the up-front fees referenced in following clause (C)) in
amounts greater than those provided in the Revolving Credit Agreement
as in effect on the Issue Date, except that interest rates and letter of
credit fees may be increased (if on market terms and conditions) by not
more than 25 basis points (0.25%) from the respective rates of interest
and letter of credit fees as provided in the Revolving Credit
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Agreement as in effect on the Issue Date, (C) shall not contain upfront
fees of greater than 2.5% of the total loan facility, (D) shall provide
a total committed working capital loan facility (on a substantially
similar basis to the Revolving Credit Agreement as in effect on the
Issue Date) in an amount equal to $35,000,000, (E) shall have a maturity
date not earlier than the Revolving Loan Maturity Date (as defined in
the Revolving Credit Agreement as originally in effect) and (F) shall
not have any mandatory or scheduled repayments in excess of, or sooner
than, the repayments required under the Revolving Credit Agreement as
originally in effect.
Section 5.16. Listing of Securities . The Company covenants and agrees
that (a) it will, as promptly as practicable, use its best efforts to cause the
Securities to be listed on the New York Stock Exchange, American Stock Exchange
or, if permitted, NASDAQ and (b) it shall provide to each Holder (i) written
notice 10 Business Days prior to registering the Securities, or any of its
common stock, under Section 12 of the Exchange Act and (ii) written notice of
such registration upon the date of registration.
Section 5.17. Compliance with Environmental Laws.
(a) The Company and each of the Guarantors will comply, in all
material respects with all Environmental Laws applicable to the
ownership or use of its Real Property now or hereafter owned or operated
by the Company or any of the Guarantors, will within a reasonable time
period pay or cause to be paid all costs and expenses incurred in
connection with such compliance and will keep or cause to be kept all
such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws, except as could not reasonably be expected to have a
material adverse effect, singly or in the aggregate, on the properties,
business, results of operations, financial condition, business affairs
or prospects of the Company (a "Material Adverse Effect"). Except as
could not reasonably be expected to have a Material Adverse Effect,
neither the Company nor any Guarantor will generate, use, treat, store,
release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of Hazardous Materials on any Real Property
now or hereafter owned or operated by the Company or any Guarantor, or
transport or permit the transportation of Hazardous Materials to or
from any such Real Property except for Hazardous Materials used or
stored at any such Real Properties in material compliance with all
applicable Environmental Laws
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and reasonably required in connection with the operation, use and
maintenance of any such Real Property.
(b) At the written request of the Trustee or the Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Company will provide,
at its expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by the Company or any
Guarantor, prepared by an environmental consulting firm approved by the
Trustee, indicating the presence or absence of Hazardous Materials and
the potential cost of any removal or remedial action in connection with
any Hazardous Materials on such Real Property; provided, that such
request may be made only if (i) there has occurred and is continuing an
Event of Default, (ii) the Trustee or the Holders of a majority in
aggregate principal amount of the Securities at the time outstanding
reasonably believe that the Company or any such Guarantor or any such
Real Property is not in material compliance with any Environmental Law,
or (iii) circumstances exist that reasonably could be expected to form
the basis of a material Environmental Claim against the Company or any
such Guarantor or any such Real Property. If the Company fails to
provide the same within 90 days after such request was made, the Trustee
may order the same, and the Company and any such Guarantor shall grant
and hereby grant to the Trustee and its agents access to such Real
Property and specifically grant the Trustee an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an
assessment, all at the Company's expense.
Section 5.18. Capital Expenditures. JCC Holding will not, and will not
permit any of its Subsidiaries (other than Unrestricted Subsidiaries) to, make
Capital Expenditures, except:
(a) the Company may make Capital Expenditures with funds
deposited in the Reserve Fund in accordance with the requirements of the
Management Agreement;
(b) the Company may make Capital Expenditures in excess of the
funds deposited in the Reserve Fund in an amount not to exceed
$10,000,000; provided, that (except as provided in the immediately
succeeding proviso) such funds shall be used solely to make improvements
to the Casino, as
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permitted by the LGCB, for the exclusive purposes of adding food service
facilities in the Casino; provided further, that (i) up to but not more
than, $250,000 of the $10,000,000 of Capital Expenditures permitted by
this clause (b) may be allocated to Capital Expenditures related to
limousine services and (ii) up to but not more than $2,000,000 of the
$10,000,000 of Capital Expenditures permitted by this clause (b) may
be allocated to Capital Expenditures (other than in connection with food
services facilities and limousine services) in connection with the
Casino; and
(c) the Company may make Capital Expenditures with Insurance and
Condemnation Proceeds to replace or restore the Casino on account of
loss, physical destruction, condemnation or damage to the Casino in
accordance with Section 4.4.
Section 5.19. Advances, Investments and Loans. JCC Holding will not, and
will not permit any of its Subsidiaries to, directly or indirectly, make any
Investment, except that the following shall be permitted:
(a) JCC Holding and its Subsidiaries may acquire and hold Cash
and Cash Equivalents, it being understood and agreed that the provisions
of this clause (a) do not authorize JCC Holdings or any of its
Subsidiaries to transfer Cash or Cash Equivalents to any other such
Person;
(b) JCC Holding and its Subsidiaries may acquire and hold
accounts receivable owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(c) JCC Holding and its Subsidiaries may enter into Interest Rate
Protection Agreements to the extent permitted in Section 5.12(c);
(d) JCC Holding may make Investments in the Company (so long as
all such Investments in the Company are common equity investments) and
the Unrestricted Subsidiaries from the net cash proceeds of issuances of
Qualified Equity Interests of JCC Holding;
(e) the Company may make loans to any Unrestricted Subsidiary
(other than an Unrestricted Subsidiary which has been released from its
Subsidiary Guaranty pursuant to Section 10.5, which has transferred
assets
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pursuant to the provisions of Section 10.5(b), or which is a Subsidiary
of any Unrestricted Subsidiary described in this parenthetical), to (i)
pay property and franchise taxes, if any, and (ii) to pay
pre-development and/or development costs; provided that (A) no amounts
shall be loaned pursuant to the foregoing provisions of this cause (e)
more than three Business Days before the date of the use of such amounts
by the respective Unrestricted Subsidiary to make the payments in
respect of which the loans are being made and (B) the aggregate amount
of loans made for the purposes described in this clause (e) shall not
exceed, in the aggregate, $1,500,000 in any fiscal year (with the amount
so loaned in each case to determined without regard to any write-downs
or write-offs in respect of the amounts so loaned); provided that any
amounts up to $1,000,000 not spent in fiscal year ended December 31,
2001 may be carried over to fiscal year ended December 31, 2002; and
(f) the Unrestricted Subsidiaries may make Investments in JCC
Holding or any Unrestricted Subsidiaries, provided, that any loans or
advances to JCC Holding shall be subordinated pursuant to an agreement
substantially in the form attached hereto as Exhibit L.
Section 5.20. Limitation on Certain Restrictions on Subsidiaries. JCC
Holding will not, and will not permit any of its Subsidiaries (other than
Unrestricted Subsidiaries) to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (a) pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by JCC Holding or any Subsidiary of JCC Holding, or pay any
Indebtedness owed to the Company or a Subsidiary of the Company, (b) make loans
or advances to the Company or any of the Company's Subsidiaries or (c) transfer
any of its properties or assets to the Company, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) the
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Company or a Subsidiary of the
Company and (iv) customary provisions restricting assignment of any licensing
agreement entered into by the Company or a Subsidiary of the Company in the
ordinary course of business.
Section 5.21. Business.
(a) JCC Holding will engage in no business other than its
ownership of the Equity Interests in the Company and the Unrestricted
Subsidiaries
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(except activities associated therewith and with its rights and
obligations otherwise permitted pursuant to this Indenture and not
prohibited by the Casino Operating Contract, the Casino Lease, the
Gaming Regulations or applicable zoning and conditional uses).
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other
than the operation of the Casino and the sublease and development of the
Second Floor and the businesses ancillary thereto.
(c) JCC Development will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other
than the leasing (and subleasing) and development of the Second Floor
and the businesses ancillary thereto.
Section 5.22. Additional Security and Further Assurances.
(a) JCC Holding will, and will cause each of its Subsidiaries to,
grant to the Collateral Agent security interests, pledge agreements,
mortgages and amendments or supplements thereto (collectively, an
"Additional Mortgage") in such Real Property or other assets
(including, without limitation, leasehold interests) of JCC Holding or
any of its Subsidiaries as are not covered by the Security Documents, to
the extent acquired after the Issue Date (but in any event excluding the
Specified Real Estate after the release thereof from the Mortgages in
accordance with the terms thereof), and as may be requested from time to
time by the Collateral Agent (each such Real Property an "Additional
Mortgaged Property"). All such Additional Mortgages shall be granted
pursuant to documentation substantially in the form of the applicable
Security Document executed on the Issue Date or in such other form as is
reasonably satisfactory to the Collateral Agent and shall constitute
valid and enforceable perfected Liens that are, except to the extent
subject to then existing Liens permitted by Section 5.13 at the time of
such perfection, superior to and prior to the rights of all third
Persons and subject to no other Liens. The Additional Mortgages or
instruments related thereto shall have been duly recorded or filed in
such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Mortgages and all
taxes, fees and other charges payable in connection therewith shall
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have been paid in full. All Additional Mortgages shall be Shared
Security Documents as defined in the Intercreditor Agreement.
(b) JCC Holding will, and will cause each of its Subsidiaries to,
make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates (including estoppel
certificates from the RDC in respect of the Casino Lease), real property
surveys, reports and other assurances or instruments (collectively, the
"Additional Security Documents") and take such further steps relating
to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require pursuant to this Section 5.22.
Furthermore, JCC Holding shall cause to be delivered to the Collateral
Agent such opinions of counsel, title insurance and other related
documents as may be reasonably requested by the Collateral Agent to
assure itself that this Section 5.22 has been complied with. All
Additional Security Documents shall be Shared Security Documents as
defined in the Intercreditor Agreement.
(c) JCC Holdings agrees that each action required by Section
5.22(a) or (b) shall be completed as soon as possible, but in no event
later than 30 days after such action is requested to be taken by the
Collateral Agent.
Section 5.23. Notices. The Company shall at all times (i) maintain the
registration of the Collateral Agent as the Registered Leasehold Mortgagee under
(and as defined in) the Casino Operating Contract, (ii) provide the RDC with the
notice address for the Collateral Agent under (and as defined in) the Casino
Lease and (iii) cause a copy or will deliver a copy of any notice provided by
the LGCB or the RDC to the Collateral Agent to be delivered at the same time to
the Trustee.
Section 5.24. Minimum Consolidated EBITDA. The Company will not permit
Consolidated EBITDA for any Test Period ended after March 31, 2003 to be less
than $1.00.
Section 5.25. Limitation on Issuance of Equity Interests. (a) JCC
Holding shall not issue any Equity Interest, except Qualified Equity Interests,
and (b) JCC Holding will not permit the Company to issue any Equity Interests
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities
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convertible into Equity Interests, except for issuances to JCC Holding where the
respective Equity Interests have been pledged, and delivered to the Collateral
Agent for pledge, pursuant to the Pledge Agreement.
Section 5.26. Limitation on Creation of Subsidiaries. The Company will
not establish, create or acquire any Subsidiaries, except that the Company may
form one or more Wholly-Owned Subsidiaries to operate certain ancillary and
support functions in connection with the Casino.
Section 5.27. Casino Manager. Neither JCC Holding nor the Company will
permit any Person, other than Xxxxxx'x Management Company, to act as the
"manager" or in a similar capacity with respect to the Casino, provided, that
(A) any other Wholly-Owned Subsidiary of HET may be substituted for Xxxxxx'x
Management Company as the casino manager so long as at least 30 days prior
written notice thereof has been given to the Trustee and the Holders and, during
the 30 days after the giving of such notice, neither the Trustee nor the
Required Holders have objected in writing to the substitution, and no Default or
Event of Default exists at the time of such substitution, and (B) the "manager"
of the Casino may be replaced pursuant to a Permitted Termination; provided
further, that in the event of any replacement of a manager pursuant to the
preceding proviso, (i) all necessary regulatory and other approvals (including,
without limitation, all approvals required of any relevant Gaming Authorities)
shall have been obtained in connection with such substitution, (ii) after giving
effect to the substitution, there shall be no conflict with any applicable law,
rule, regulation or contract applicable to JCC Holding or its Subsidiaries, the
Casino or the new manager, and (iii) any successor manager shall have assumed
all obligations pursuant to all relevant contracts (including, without
limitation, the Management Agreement and the Manager Subordination Agreement)
pursuant to documentation in form and substance reasonably satisfactory to the
Trustee.
Section 5.28. Separateness from Unrestricted Subsidiaries. JCC Holding,
the Company and each of their Subsidiaries which is not an Unrestricted
Subsidiary shall conduct its business and operations in accordance with the
following provisions:
(a) maintain books and records and bank accounts separate from
those of the Unrestricted Subsidiaries;
(b) maintain its bank accounts and all its other assets separate
from those of the Unrestricted Subsidiaries;
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(c) hold itself out to creditors and the public as a legal entity
separate and distinct from the Unrestricted Subsidiaries;
(d) provide appropriate disclosure in the footnotes to the
financial statements of JCC Holding regarding Unrestricted Subsidiaries;
(e) except as expressly permitted by this Indenture, allocate and
charge fairly and reasonably any common employee or overhead shared with
any of the Unrestricted Subsidiaries;
(f) except as expressly permitted by this Indenture, transact all
business with Unrestricted Subsidiaries on an arm's-length basis and
enter into transactions with Unrestricted Subsidiaries only on a
commercially reasonable basis;
(g) conduct business in its own name and use separate stationery,
invoices and checks;
(h) not commingle its assets or funds with those of any Unre-
stricted Subsidiary;
(i) not assume, guarantee (directly or indirectly) or pay the
Indebtedness of any Unrestricted Subsidiary;
(j) except as expressly permitted by this Indenture, pay its own
liabilities and expenses only out of its own funds, and not pay any
liabilities and expenses of any of the Unrestricted Subsidiaries;
(k) except as expressly permitted by this Indenture, pay salaries
of its own employees from its own funds, and not pay salaries of the
employees of any Unrestricted Subsidiary;
(l) not hold out its credit as being available to satisfy the
obligations of any Unrestricted Subsidiary;
(m) not pledge its assets for the benefits of any Unrestricted
Subsidiary; and
(n) correct any known misunderstanding regarding its identity as
being separate from the Unrestricted Subsidiary.
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Furthermore, each of JCC Holding and the Company will, and will
cause each of its Subsidiaries (including Unrestricted Subsidiaries) to, satisfy
customarily corporate or limited liability company formalities, as the case may
be, including the holding of regular board of directors', shareholders' and/or
members' meetings, as appropriate, or action by directors, shareholders or
members without a meeting and the maintenance of company offices and records.
Additionally, neither JCC Holding nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the
separate legal existence of any Unrestricted Subsidiary being ignored, or in the
assets and liabilities of JCC Holding or any of its Subsidiaries being
substantively consolidated with those of any Unrestricted Subsidiary in a
bankruptcy, reorganization or other insolvency proceeding.
Section 5.29. Limitation on Certain Outstanding Obligations. JCC
Holding and the Company will not permit the sum of the items described in the
following clauses (a) through (d) to exceed $20,000,000 at any time outstanding:
(a) the aggregate amount of all unpaid reimbursement and other
payment obligations pursuant to the Minimum Payment Guaranty Documents
(but excluding contingent obligations in respect to amounts not yet
drawn or made available pursuant to the Minimum Payment Guaranty) which
have been waived, deferred or not paid when due pursuant to the terms of
the Minimum Payment Guaranty Documents as in effect on the Issue Date
and, without duplication, the amount of all outstanding loans and
advances made or deemed made pursuant to the Minimum Payment Guaranty
Documents and all accrued and unpaid interest thereon;
(b) the aggregate amount of unpaid obligations under the Manage-
ment Agreement (or any replacement agreement or agreements), which have
been waived, deferred or not paid when due pursuant to the terms of the
Management Agreement (without giving effect to any waiver or
modification thereto);
(c) the aggregate amount of interest and fees accrued or accruing
pursuant to the Revolving Credit Agreement Documents which have been
waived, deferred or otherwise not paid on a timely basis pursuant to the
terms of the Revolving Credit Agreement Documents as in effect on the
Issue Date (or, in the case of any replacement Revolving Credit
Agreement with a lender other than HET and any of its Affiliates, as in
effect on date of the entering into thereof in accordance with the
relevant requirements of Section 5.15(b)); and
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(d) any other amounts (excluding trade payables in the ordinary
course which do not remain unpaid more than 90 days after the respective
trade payable came into existence, and principal and unpaid drawings
under the Revolving Credit Agreement Documents to the extent permitted
to be outstanding pursuant to Section 5.12(e)) owing to HET or any of
its Subsidiaries by JCC Holding, the Company or any of their
Subsidiaries (excluding Unrestricted Subsidiaries which have been
released from their, or are not party to any, Guaranty).
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be caused voluntarily or involuntarily or
effected, without limitation, by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the failure by the Company to pay any installment of interest
on the Securities as and when due and payable and the continuance of any
such failure for 10 days;
(b) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Securities when and as the same
become due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, failure to pay any Event Offer
Price;
(c) any representation, warranty or statement made by or on
behalf of JCC Holding or any of its Subsidiaries herein or in any
Security Document or in any certificate delivered pursuant hereto or
thereto shall prove to be untrue in any material respect on the date as
of which made or deemed made;
(d) failure of JCC Holding or any Subsidiary of JCC Holding to
comply with (i) any provision of Section 5.11, which failure continues
for 30 days, (ii) any provision of Section 5.12(f) or 5.29, which
failure continues for five days, or (iii) any provision of any of
Sections 5.5, 5.12 (other than 5.12(f)), 5.13, 5.14, 5.15, 5.18, 5.19,
5.24, 5.25 and 5.27;
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(e) except as otherwise provided herein, the failure by the
Company or any Guarantor to observe or perform any other covenant or
agreement contained in this Indenture and the continuance of such
failure for a period of 30 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities then
outstanding;
(f) the filing by the Parent Guarantor, the Company, any
Subsidiary of the Company, or any Significant Subsidiary of the Parent
Guarantor (in each case, a "Debtor") of a petition commencing a
voluntary case under Section 301 of title 11 of the United States Code,
or the commencement by a Debtor of a case or proceeding under any other
Bankruptcy Law seeking the adjustment, restructuring or discharge of the
debts of such Debtor, or the liquidation of such Debtor, including
without limitation the making by a Debtor of an assignment for the
benefit of creditors; or the taking of any corporate action by a Debtor
in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing;
(g) the filing against a Debtor of a petition commencing an
involuntary case under Section 303 of title 11 of the United States
Code, with respect to which case (i) such Debtor consents or fails to
timely object to the entry of, or fails to seek the stay and dismissal
of, an order of relief, (ii) an order for relief is entered and is
pending and unstayed on the 60th day after the filing of the petition
commencing such case, or if stayed, such stay is subsequently lifted so
that such order for relief is given full force and effect, or (iii) no
order for relief is entered, but the court in which such petition was
filed has not entered an order dismissing such petition by the 60th day
after the filing thereof; or the commencement under any other Bankruptcy
Law of a case or proceeding against a Debtor seeking the adjustment,
restructuring, or discharge of the debts of such Debtor, or the
liquidation of such Debtor, which case or proceeding is pending without
having been dismissed on the 60th day after the commencement thereof;
(h) the entry by a court of competent jurisdiction or by the
Regulating Authority of a judgment, decree or order appointing a
receiver, liquidator, trustee, custodian or assignee of a Debtor or of
the property of a Debtor, or directing the winding up or liquidation of
the affairs or property of a Debtor, and (i) such Debtor consents or
fails to timely object to the entry of, or fails to seek the stay and
dismissal of, such judgment, decree, or order, or (ii) such judgment,
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decree or order is in full force and effect and is not stayed on the
60th day after the entry thereof, or, if stayed, such stay is thereafter
lifted so that such judgment, decree or order is given full force and
effect;
(i) (i) JCC Holding, the Company or any of their Subsidiaries
(other than Unrestricted Subsidiaries of JCC Holding) shall (A) default
in any payment of any Indebtedness (other than the Indenture
Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (B)
default in the observance or performance of any agreement or condition
relating to any Indebtedness (other than the Indenture Obligations) or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent
on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due
prior to its stated maturity; provided, that in the case of the
Revolving Credit Agreement Documents only, such failure as described
above in this clause (B) shall have continued unremedied (i.e., has not
been cured or waived) for 30 days or more, or (ii) any Indebtedness
(other than the Indenture Obligations) of JCC Holding or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior
to the stated maturity thereof; provided, that it shall not be a Default
or an Event of Default under this Section 6.1(i) unless the aggregate
principal amount of all Indebtedness as described in preceding clauses
(i) and (ii) is at least $5,000,000;
(j) final unsatisfied judgments not covered by insurance
aggregating in excess of $15,000,000, at any one time rendered against
JCC Holding, the Company, any Subsidiary of the Company, or any
Significant Subsidiary of JCC Holding and not stayed, bonded or
discharged for any period of 60 consecutive days;
(k) the loss of the legal right of the Company to operate slot
machines at the Casino for gaming activities and such loss continuing
for more than 90 days;
(l) a failure to comply with the provisions of the Security
Documents and the continuance of such failure to comply for a period of
30 days after written notice is given to the Company by the Trustee or
to the Company and the
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Trustee by the Holders of at least 25% in aggregate principal amount of
the Securities outstanding; provided, that if such failure to comply
materially and adversely affects (i) the Collateral, (ii) the priority
or perfection of the security interests purported to be created with
respect to any material portion of the Collateral or (iii) the rights
and remedies of the Collateral Agent, the Trustee or the respective
Secured Creditors in respect of any material portion of the Collateral,
then the failure to comply need only continue after the applicable cure
period specified in the applicable Security Document;
(m) any Security Document fails to become or ceases to be in full
force and effect (other than in accordance with its terms or the terms
hereof) or ceases (once effective) to create in favor of the Collateral
Agent, with respect to any material amount of Collateral, a valid and
perfected Lien on the Collateral (except to the extent a valid and
perfected Lien on the Collateral is not required at such time under the
terms of the Security Documents) to be covered thereby (unless a prior
or exclusive Lien is specifically permitted by this Indenture);
(n) there shall occur and be continuing (i) a Termination Event
under any Lease or the Casino Operating Contract, or (ii) a default or
an event of default by the Company or any of its Subsidiaries as
described and defined in any of the Leases or the Casino Operating
Contract, or (iii) any event or condition which could, either
immediately or with the giving of notice or lapse of time or both,
enable any party to any Lease or the Casino Operating Contract other
than the Company or any of its Subsidiaries to terminate or suspend its
obligations under such Lease or the Casino Operating Contract, or (iv) a
breach by the Company or any of its Subsidiaries of any term, covenant
or agreement contained in any Lease or the Casino Operating Contract, or
if, in the case of this clause (iv), in the determination of the
Required Holders, such breach could reasonably be expected to have a
material adverse effect on either the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Company and its Subsidiaries taken as a whole, and if such
Termination Event or other event or condition described in the preceding
clause (i), (ii), (iii) or (iv) (each, a "Project Default") remains
uncured for 30 days after the occurrence thereof; provided, that (A)
except as provided in the following clause (B), if (1) such Project
Default cannot be cured within such 30-day period, (2) such Project
Default is susceptible of cure by the Company, (3) the Company is
proceeding with diligence and in good faith to cure such Project
Default, (4) the existence of such Project Default does not impair the
Liens on the Collateral or any leasehold interest in Collateral and (5)
the Trustee shall
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have received a certificate of the Company stating what action the
Company is taking to cure such Project Default, then, the time within
which such Project Default may be cured shall be extended to such date,
not to exceed a total of 120 days after the occurrence of such Project
Default, as shall be necessary for the Company diligently to cure such
Project Default and, (B) notwithstanding anything to the contrary
contained above, there shall be no grace period, and it shall be an
immediate Event of Default, if any of the Leases or Casino Operating
Contracts are the subject of a Termination Event of the type described
in clause (b) of the definition thereof;
(o) a Change of Control shall occur;
(p) any Gaming Authority having jurisdiction over the Casino
shall determine that JCC Holding, any of its respective Subsidiaries or
Affiliates or Xxxxxx'x Management Company (or the then manager of the
Casino), as the case may be, to the extent that any of the foregoing
Persons are required to be found suitable under the Gaming Regulations,
does not qualify, or that a required suitability finding or license
(including, without limitation, the Casino Operating Contract) of any of
them with respect to the Casino should be revoked, not renewed or
suspended for more than 10 days, or any such Gaming Authority shall have
appointed a conservator, supervisor or trustee to oversee any of the
operations of the Company (except, with respect to the foregoing, if (i)
any such failure to be found suitable timely shall have been appealed by
JCC Holding or any of its respective Subsidiaries or Affiliates or
Xxxxxx'x Management Company (or the then manager of the Casino), as the
case may be, and any such determination is stayed or otherwise does not
prevent continued gaming operations at the Casino or (ii) such failure
to be found suitable is cured within any applicable cure periods, and
does not prevent continued gaming operations at the Casino, or (iii) in
the case of unsuitability of Xxxxxx'x Management Company, a successor
manager of the Casino shall have been obtained in accordance with the
requirements of Section 5.27 without interruption of gaming operations;
(q) unless no Minimum Payment Guaranty is required by the Casino
Operating Contract, at any time (i) the Minimum Payment Guaranty shall
expire in accordance with its terms, unless a substitute or successor
guarantor assumes all obligations of the Minimum Payment Guarantor in
accordance with the requirements of the Casino Operating Contract and
without causing an Event of Default under following clause (iii), or
(ii) any other event shall occur with
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respect to the Minimum Payment Guaranty, in each case which occurrence
permits (or requires) the termination of the Casino Operating Contract,
or (iii) any Person other than HET or HOC becomes a substitute or
successor guarantor providing a Minimum Payment Guaranty, unless such
substitute or successor guarantor meets all requirements contained in
the Casino Operating Contract and executes documentation in favor of the
Trustee and the Collateral Agent which is substantially the same as the
documentation (including, without limitation, the Intercreditor
Agreement) entered into by the Minimum Payment Guarantor on or prior the
Issue Date;
(r) any Guaranty or any provision thereof shall cease to be a
legal, valid and binding obligation enforceable against the obligor
thereof, or any Guarantor shall default in its due performance of any
term, covenant or agreement on its part to be performed or observed
pursuant to its Guaranty, or any default or event of default under, and
as defined in, a Guaranty shall be in existence;
(s) (i) the Manager Subordination Agreement or any provision
thereof shall cease to be a legal, valid and binding obligation
enforceable against any party thereto who has agreed to subordinate any
obligations pursuant thereto, or any such party shall default in the due
performance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Manager Subordination Agreement,
or (ii) at any time there shall be any manager of the Casino which has
not executed and delivered to the Trustee a counterpart to the Manager
Subordination Agreement or an assumption of the obligations of Xxxxxx'x
Management Company thereunder in accordance with the requirements of
Section 5.27; or
(t) the Management Agreement (or any successive management
agreement entered into with a new manager of the Casino appointed in
accordance with the provisions of 5.27) or any material provision
thereof shall cease to be in full force and effect or an Event of
Default (as defined in the Management Agreement) or any substantially
similar event, however defined, in any amended or replacement Management
Agreement, shall have occurred.
Section 6.2. Acceleration of Maturity Date; Rescission and Annulment.
If an Event of Default other than an Event of Default specified in Section
6.1(f), (g) or (h) with respect to JCC Holding or the Company, occurs and is
continuing, then, and in every such case, unless the principal of all of the
Securities shall have already become
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due and payable, either the Trustee or the Holders of not less then 50% in
aggregate principal amount of then outstanding Securities, by a notice in
writing to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all of the principal of the Securities,
determined as set forth below, together with accrued interest thereon, to be due
and payable immediately. If an Event of Default specified in Section 6.1(f), (g)
or (h) occurs with respect to JCC Holding or the Company, all principal of,
premium applicable to, and accrued interest on, the Securities shall be
immediately due and payable on all outstanding Securities without any
declaration or other act on the part of the Trustee or the Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of not less
than 50% (66 and 2/3% in the case of an Event of Default solely as a result of a
breach of the obligations set forth in Section 5.24) in aggregate principal
amount of then outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences and may
waive, on behalf of all Holders, an Event of Default or an event which with
notice or lapse of time or both would become an Event of Default if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Securities;
(ii) principal of (and premium, if any, applicable to)
any Securities which would become due otherwise than by such declaration
of acceleration, and interest thereon at the rate borne by the
Securities;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities;
(iv) all sums paid or advanced by the Trustee hereunder
and the compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default, other than the nonpayment of amounts
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.12.
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Notwithstanding the previous sentence of this Section 6.2, no rescission,
amendment or waiver shall be effective for any Event of Default or event which
with notice or lapse of time or both would be an Event of Default with respect
to any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Security, unless all such affected
Holders agree, in writing, to rescind such acceleration or waive such Event of
Default or event. No such waiver shall cure or waive any subsequent default or
impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if an Event of Default in payment of
principal, premium or interest specified in Section 6.1(a) and (b) occurs and is
continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal and interest, and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
and on any overdue interest, at the rate borne by the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including compensation to, and expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee, irrespective
of whether the principal of the
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Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest shall be
entitled and empowered, by intervention in such proceeding or otherwise to take
any and all actions under the TIA, including:
(a) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
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Section 6.6. Priorities. Subject to the express provisions of the
Intercreditor Agreement and Section 4.6, any money or other property collected
by the Trustee pursuant to this Article VI shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or other property on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, and interest on, the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
Section 6.7. Limitation on Suits. No Holder of any Security shall have
any right to order or direct the Trustee to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 50% in principal amount of then
outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and interest on, such Security on the
Maturity Dates of such payments as expressed in such Security (in the case of
Required Regulatory Redemption, the Redemption Price on the applicable
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 6.9. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in Section 2.8, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.10. Delay or Omission Not Waiver. No delay or omission by the
Trustee or by any Holder of any Security to exercise any right or remedy arising
upon any Event of Default shall impair the exercise of any such right or remedy
or constitute a waiver of any such Event of Default. Every right and remedy
given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.11. Control by Holders. Subject to the terms of the
Intercreditor Agreement with respect to actions taken under the Security
Documents, the Holder or
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Holders of a majority in aggregate principal amount of then outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred upon the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 6.12. Waiver of Past Default. Subject to Section 6.8, the Holder
or Holders of not less than 50% in aggregate principal amount of the outstanding
Securities may, by written notice to the Trustee on behalf of all Holders, prior
to the declaration of acceleration of the maturity of the Securities, waive any
past default hereunder and its consequences, except a default:
(a) in the payment of the principal of, premium, if any, or
interest on, any Security as specified in clauses (a) and (b) of Section
6.1; or
(b) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair the exercise of any right arising therefrom.
Section 6.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by its acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted to be taken by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
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litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 6.13 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any) or interest on,
any Security on or after the Maturity Date of such Security.
Section 6.14. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every case, subject to any determination in such proceeding, the Company, the
Guarantors, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default, the Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are
adverse to the Trustee.
In the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates
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or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of clause
(b) of this Section 7.1;
(ii) at the expense of the Company, the Trustee shall
comply with any order or directive of a Gaming Authority that the
Trustee submit an application for any license, finding of suitability or
other approval pursuant to any Gaming Law and will cooperate fully and
completely in any proceeding related to such application, provided ,
however, that in the event the Trustee in its reasonable judgment
determines that complying with such order or directive would subject it
or its officers or directors to unreasonable or onerous requirements,
the Trustee may, at its option, resign as Trustee in lieu of complying
with such order or directive; and provided further, that no resignation
shall become effective until a successor Trustee is appointed and
delivers a written acceptance in accordance with Section 7.8 hereof;
(iii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or to take or omit to
take any action under this Indenture or at the request, order or
direction of the Holders or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to clauses (a), (b), (c), (d) and (f) of this
Section 7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
(g) The Trustee shall furnish to each Person who so requests in
writing, and who states therein that it is a beneficial Holder of 5% or
more of the outstanding Securities, a copy of the Confidentiality
Agreement.
Section 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officer's Certificate or an
Opinion of Counsel, which shall conform to Sections 11.4 and 11.5. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Indenture or the TIA.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
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(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article V. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to Section
6.1(a) or 6.1(b) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual
knowledge.
(h) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Authorized Representative of the
Company.
Section 7.3. Individual Rights of Trustee. The Trustee in its individual
capacity may become the owner or pledgee of any of the Securities, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company, any Guarantor, any of their
respective Subsidiaries, or their respective Affiliates with the same rights it
would have if it were not Trustee; provided, however, that the Trustee shall
use reasonable good-faith efforts so that it at no time becomes a Revolving
Lender; provided further, that the foregoing proviso shall in no event operate
to prevent the Trustee from acquiring all or any portion of the equity interests
in any other Person which itself is a Revolving Lender (and as a result of which
the Trustee could become a Revolving Lender). Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities and it shall
not be responsible for any statement in the Securities, other than the Trustee's
certificate of authentication, or the use or application of any funds received
by a Paying Agent other than the Trustee.
Section 7.5. Notice of Default. If a Default that is not an Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Securityholder notice of the uncured Default within 90 days
after such Default occurs. If an Event of Default occurs and is continuing and
if it is known to the Trustee, the
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Trustee shall mail to each Securityholder notice of the uncured Event of Default
within the earlier of 30 days after the Trustee learns of such Event of Default
or 90 days after such Event of Default occurs. Except in the case of a Default
in payment of principal of, or interest on, any Security (including the payment
of the Redemption Price on the Redemption Date), the Trustee may withhold the
giving of notice of a Default that is not an Event of Default if and so long as
a committee of Trust Officers in good faith determines that withholding the
notice is in the interests of the Securityholders.
Section 7.6. Reports by Trustee to Holders. If required by law, within
60 days after each March 30, beginning March 30, 2002, the Trustee shall mail to
each Securityholder a brief report dated on such date that complies with TIA
Section 313(a). If required by law, the Trustee also shall comply with TIA
Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system. A
copy of each report at the time of its mailing to Securityholders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
Section 7.7. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents, accountants, experts and counsel.
The Company shall indemnify the Trustee (in its capacity as Trustee) and
each of its officers, directors, attorneys-in-fact and agents for, and hold it
harmless against, any claim, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel), loss or liability incurred by them without gross negligence, bad faith
or willful misconduct on its part, arising out of or in connection with (a) the
administration of this trust and their rights or duties hereunder including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder and (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
real property owned, leased or at any time operated by the Company or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of
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Hazardous Materials at any location, whether or not owned or operated by the
Company or any of its Subsidiaries, the non-compliance of any real property with
foreign, federal, state and local laws, regulations, and ordinances (including
applicable permits thereunder) applicable to any real property, or any
environmental claim relating in any way to the Company or any of its
Subsidiaries, their operations, or any real property owned, leased or at any
time operated by the Company or any of its Subsidiaries, including, in each
case, without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation,
litigation, or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence,
bad faith or willful misconduct of the Person to be indemnified). The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall provide reasonable cooperation at the Company's expense in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel; provided, that the Company will not be
required to pay such fees and expenses if it assumes the Trustee's defense and
there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its gross negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f), (g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article VIII and any rejection or
termination of this Indenture under any Bankruptcy Law.
Section 7.8. Replacement of Trustee. The Trustee may resign by so
notifying the Company in writing. The Holder or Holders of a majority in
principal amount of the outstanding Securities may remove the Trustee by so
notifying the Company and the
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Xxxxxxx in writing and may appoint a successor trustee with the Company's
consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder or
Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.7 have
been paid, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company's obligations under Section 7.7 shall continue for the benefit of
the retiring Trustee.
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Section 7.9. Successor Trustee by Xxxxxx, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and TIA Section
310(a)(5). The Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
RIGHT TO REQUIRE REPURCHASE
Section 8.1. Repurchase of Securities at Option of the Holder upon
Change of Control or Regulatory Redemption Event.
(a) In the event that a Change of Control or a Regulatory
Redemption Event (the date on which such event occurs being
referred to as the "Event Date") occurs, the Company shall be
required to commence an offer to purchase Securities (each an
"Event Offer"), and each Holder of Securities shall have the
right, at such Holder's option, subject to the terms and
conditions hereof, to require the Company to repurchase all or
any part (in integral multiples of $1.00) of such Holder's
Notes, at a Cash price (the "Event Offer Price") equal to 100%
of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase thereof (the "Event
Payment Date") in accordance with the following provision.
(b) In the event that, pursuant to this Section 8.1, the Company
shall be required to commence an Event Offer, the Company shall
follow the procedures set forth in this Section 8.1 as follows:
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(i) the Event Offer shall commence within 10 Business
Days following the Event Date;
(ii) the Event Offer shall remain open for 20 Business
Days and no longer, except to the extent that a longer period is
required by applicable law (the "Event Offer Period");
(iii) within five Business Days following the expiration
of an Event Offer (and in any event not later than 35 Business Days
following the Event Date), the Company shall purchase all of the
tendered Securities at the Event Offer Price together with accrued
interest to the Event Payment Date;
(iv) if the Event Payment Date is on or after an
interest payment record date and on or before the related interest
payment date, any accrued interest will be paid to the Person in whose
name a Security is registered at the close of business on such record
date, and no additional interest will be payable to Holders who tender
Securities pursuant to the Event Offer and who are paid on the Event
Payment Date;
(v) the Company shall provide the Trustee with notice of
the Event Offer at least five Business Days before the commencement of
any Event Offer; and
(vi) on or before the commencement of any Event Offer,
the Company or the Trustee (upon the request and at the expense of the
Company) shall send, by first-class mail, a notice to each of the
Holders, which (to the extent consistent with this Indenture) shall
govern the terms of the Event Offer and shall state:
(1) that the Event Offer is being made
pursuant to this Section 8.1;
(2) the Event Offer Price (including the
amount of accrued and unpaid interest),
the Event Payment Date and the Event Put
Date (as defined below);
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(3) that any Security or portion thereof not
tendered or accepted for payment will
continue to accrue interest;
(4) that, unless (a) the Company defaults in
depositing Cash with the Paying Agent
(which may not for purposes of this
Section 8.1, notwithstanding anything in
this Indenture to the contrary, be the
Company or any Affiliate of the Company)
in accordance with the last paragraph of
this clause (b) or (b) such Event
Payment (an "Event Payment")is
prevented for any reason, any Security
or portion thereof accepted for payment
pursuant to the Event Offer shall cease
to accrue interest after the Event
Payment Date;
(5) that Holders electing to have a
Security, or portion thereof, purchased
pursuant to an Event Offer will be
required to surrender the Security, with
the form entitled "Option of Holder to
Elect Purchase" on the reverse of the
Security completed, to the Paying
Agent (which may not for purposes of
this Section 8.1, notwithstanding
anything in this Indenture to the
contrary, be the Company or any
Affiliate of the Company) at the address
specified in the notice prior to the
close of business on the fifth Business
Day prior to the Event Payment Date (the
"Event Put Date");
(6) that Holders will be entitled to
withdraw their elections, in whole or in
part, if the Paying Agent (which, for
purposes of this Section 8.1, notwith-
standing any other provision of this
Indenture, may not be the Company or an
Affiliate of the Company) receives, up
to the close of business on the Event
Put Date, a telegram, telex, facsimile
transmission or letter setting forth the
name of the Holder, the principal amount
of the Securities the Holder is
withdrawing and a statement that
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such Xxxxxx is withdrawing his election
to have such principal amount of
Securities purchased; and
(7) a brief description of the events
resulting in such Change of Control or
Required Regulatory Redemption.
No later than 12:00 noon, New York City Time, on an Event
Payment Date, the Company shall (i) accept for payment Securities or portions
thereof properly tendered pursuant to the Event Offer prior to the close of
business on the Event Put Date, (ii) irrevocably deposit with the Paying Agent
Cash sufficient to pay the Event Offer Price (including accrued and unpaid
interest) of all Securities so tendered and (iii) deliver to the Trustee
Securities so accepted together with an Officer's Certificate listing the
Securities or portions thereof being purchased by the Company. The Paying Agent
shall on the Event Payment Date pay to the Holders of Securities so accepted an
amount equal to the Event Offer Price (including accrued and unpaid interest),
and the Trustee shall promptly authenticate and mail or deliver to such Holders
a new Security equal in principal amount to any unpurchased portion of the
Security surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company and any Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, or may amend,
modify or supplement the Securities, this Indenture, the Intercreditor
Agreement, or any of the Security Documents, in a form reasonably satisfactory
to the Trustee and the Company, for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency, or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this clause (a) shall
not adversely affect the rights or interests of any Holder in any
respect;
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(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company or to make any other change that does not adversely affect
the rights or interests of any Holder; provided, that the Company has
delivered to the Trustee an Opinion of Counsel stating that such change
does not adversely affect the rights or interests of any Holder;
(c) to provide for additional collateral for or additional
Guarantors of the Securities;
(d) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(e) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the
Company and the Securities, in each case without releasing the Company
from any obligations hereunder; or
(f) to comply with the requirements of the TIA (which have not
been, or are not permitted to be, waived herein).
Section 9.2. Amendments, Supplemental Indentures and Waivers with
Consent of Holders. Subject to Section 6.8 and the last sentence of this
paragraph, with the consent of the Holders of not less than 50% in aggregate
principal amount of then outstanding Securities, by written act of said Holders
delivered to the Company and the Trustee, the Company and any Guarantor, when
authorized by Board Resolutions, and the Trustee may amend or supplement any of
the Security Documents, the Intercreditor Agreement, this Indenture or the
Securities or enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of any of the Security Documents, the Intercreditor Agreement,
this Indenture or the Securities or of modifying in any manner the rights of the
Holders under any of the Security Documents, the Intercreditor Agreement, this
Indenture or the Securities. Subject to Section 6.8 and the last sentence of
this paragraph, the Holder or Holders of a majority in aggregate principal
amount of then outstanding Securities may waive compliance by the Company or any
Guarantor with any provision of any of the Security Documents, the Intercreditor
Agreement, this Indenture or the Securities. Notwithstanding the foregoing
provisions of this Section 9.2, no such amendment, supplemental indenture or
waiver shall, (i) without the consent of
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Holders of not less than 66 and 2/3% in aggregate principal amount of
outstanding Securities (determined in accordance with the special rules for this
purpose provided in Section 2.10) amend, modify or waive the provisions of
Section 5.24 and the defined terms as used therein, (ii) without the consent of
Holders of not less than 75% in aggregate principal amount of outstanding
Securities, amend, modify or waive the provisions of Article VIII, and the
defined terms as used therein and (iii) without the consent of the Holder of
each outstanding Security affected thereby:
(a) change the Stated Maturity of any Security;
(b) reduce the principal amount of any Security;
(c) reduce the rate or extend the time for payment of interest
on any Security;
(d) make the principal of, or the interest on, any Security
payable with anything or in any manner other than as provided for in
this Indenture and the Securities as in effect on the Issue Date;
(e) make any changes in Section 6.8 or this third sentence of
this Section 9.2 (except, in the case of this third sentence, to add any
additional provision of this Indenture to this sentence);
(f) reduce any Purchase Price;
(g) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or change the
percentage of principal amount of Securities whose Holders must consent
to an amendment, supplement or waiver of any provision of this Indenture
or the Securities (except to increase any required percentage) or make
any changes in the provisions concerning the rights of Holders to
recover the principal of, interest on, or redemption payment with
respect to, any Security; or
(h) make the Securities subordinated in right of payment to any
extent or under any circumstances to any other indebtedness. It shall
not be necessary for the consent of the Holders under this Section to
approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2 or 9.4
becomes effective, it shall bind each Holder, subject to the limitations set
forth above.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 9.3. Compliance with TIA. Every amendment, waiver or supplement
of this Indenture or the Securities shall comply with the requirements of the
TIA as then in effect, it being understood and agreed that, to the maximum
extent permitted by the TIA, the provisions of Section 2.10 shall be given full
force and effect for all purposes of determining whether the holders of the
requisite percentage of outstanding securities have given any consent pursuant
to this Article IX.
Section 9.4. Revocation and Effect of Consents. Until an amendment,
waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of his Security by written notice to the Company or the Person
designated by the Company as the Person to whom consents should be sent if such
revocation is received by the Company or such Person before the date on which
the Trustee receives an Officer's Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be
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entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (h) of Section 9.2, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
(or a portion of the same) debt as the consenting Holder's Security with respect
to which a consent was given; provided, that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal and premium of
and interest on a Security, on or after the respective dates set for such
amounts to become due and payable expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates.
Section 9.5. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee or require the Holder to
put an appropriate notation on the Security. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determine, the
Company in exchange for the Security shall issue, the Guarantors shall endorse
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
Section 9.6. Trustee to Sign Amendments, Etc. The Trustee shall execute
any amendment, supplement or waiver authorized pursuant to this Article IX,
provided, that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture.
Section 9.7. Consent to Certain Amendments of the Ground Lease;
Trustee's Actions. To the extent required under the Ground Lease, the Trustee,
on behalf of the Holders, hereby waive its right to consent or shall be
authorized to waive its consent, as the case may be, to any future amendment,
modification or change of such Ground
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Lease, and any and all other leases now or hereafter subject to the Mortgages,
provided, that:
(a) such amendment, modification or change would not (i) have a
material adverse effect on the Collateral, (ii) have a material adverse
effect on the rights of the Holders or the Collateral Agent under the
Ground Lease or such other lease, as the case may be; or (iii)
materially increase the payment obligations under the Ground Lease, or
such other lease, as the case may be; and
(b) contemporaneously with the execution of such amendment,
modification or change, the Collateral Agent shall receive, at no cost
to the Holders or the Collateral Agent, an endorsement to the
mortgagee's title insurance policy insuring the Mortgages, assuring (i)
that such amendment does not impair or invalidate the lien of the
Mortgages and (ii) that such amendment does not affect the coverage
afforded by the above-referenced title insurance policy.
Except as set forth above, the Trustee may request the consent and
approval of the Holders as a condition to giving any consent or approval under
the Ground Lease, or any other lease or the Casino Operating Contract and shall
have no responsibility or liability for failing to give any such consent or
approval absent direction from the Holders.
ARTICLE X
GUARANTY
Section 10.1. Guaranty.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to
clause (d) below, each of the Guarantors hereby irrevocably and
unconditionally guarantees (the "Guaranty") to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Securities or the obligations of the Company
under this Indenture or the Securities, that: (i) the principal and
premium (if any) of and interest on the Securities will be paid in full
when due, whether at the maturity or Interest Payment Date, by
acceleration, redemption (including, without limitation, any Required
Regula-
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tory Redemption), upon any Event Offer, or otherwise; (ii) all other
obligations of the Company to the Holders or the Trustee under this
Indenture or the Securities will be promptly paid in full or performed,
all in accordance with the terms of this Indenture and the Securities;
and (iii) in case of any extension of time of payment or renewal of any
Securities or any of such other obligations, they will be paid in full
when due or performed in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration, redemption (including,
without limitation, any Required Regulatory Redemption), upon any Event
Offer, or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Guarantor shall be obligated to pay
the same before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the
validity, regularity or enforceability of the Securities or this
Indenture, the absence of any action to enforce the same, any delays in
obtaining or realizing upon or failures to obtain or realize upon
collateral, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstances that might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the
Company or right to require the prior disposition of the assets of the
Company to meet its obligations, protest, notice and all demands
whatsoever and covenants that this Guaranty will not be discharged
except by complete performance of the obligations contained in the
Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any
Custodian, Trustee, or similar official acting in relation to the
Company or such Guarantor, any amount paid by the Company or such
Guarantor to the Trustee or such Holder, this Guaranty, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until the principal of, premium, if any, and interest
on all Securities issued hereunder shall have been paid in full. Each
Guarantor further agrees that, as between such Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Section 6.2 for the purposes of this Guaranty,
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notwithstanding any stay, injunction or other prohibition preventing
such acceleration as to the Company of the obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of
those obligations as provided in Section 6.2, those obligations (whether
or not due and payable) will forthwith become due and payable by each of
the Guarantors for the purpose of this Guaranty.
(d) It is the intention of each Guarantor and the Company that
the obligations of each Guarantor hereunder shall be, but not in excess
of, the maximum amount permitted by applicable law. Accordingly, if the
obligations in respect of the Guaranty would be annulled, avoided or
subordinated to the creditors of the Guarantor by a court of competent
jurisdiction in a proceeding actually pending before such court as a
result of a determination both that such Guaranty was made without fair
consideration and, immediately after giving effect thereto, or at the
time that any demand is made thereupon, such Guarantor was insolvent or
unable to pay its debts as they mature or left with an unreasonably
small capital, then the obligations of such Guarantor under such
Guaranty shall be reduced by such an amount, if any, that would result
in the avoidance of such annulment, avoidance or subordination;
provided, however, that any reduction pursuant to this paragraph shall
be made in the smallest amount as is necessary to reach such result. For
purposes of this paragraph, "fair consideration," "insolvency," "unable
to pay its debts as they mature," "unreasonably small capital" and the
effective times of reductions, if any, required by this paragraph shall
be determined in accordance with applicable law.
(e) Each Guarantor shall be subrogated to all rights of the
Holders against the Company under the Securities, this Indenture or the
Security Documents in respect of any amounts paid by such Guarantor
pursuant to the provisions of such Guaranty or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to
receive any payments arising out of, or based upon, such right of
subrogation until the principal of, premium, if any, and interest on all
Securities issued hereunder shall have been paid in full.
Section 10.2. Parent Guaranty.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to
subsection (d) below, the Parent Guarantor hereby irrevocably and
unconditionally guarantees (the "Parent Guaranty" and, together with the
Guaranty of the Parent Guarantor,
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the "Parent Guaranties") to each holder of a Subsidiary Guaranty and to
the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Subsidiary Guaranties or the obligations of
any of the Subsidiaries under the Subsidiary Guaranties, that all
obligations of each of the Subsidiaries to the Holders or the Trustee
under the Subsidiary Guaranties will be promptly paid in full or
performed, all in accordance with the terms of the various Subsidiary
Guaranties.
(b) The Parent Guarantor hereby agrees that its obligations with
regard to this Parent Guaranty shall be unconditional, irrespective of
the validity, regularity or enforceability of the Subsidiary Guaranties
or this Indenture, the absence of any action to enforce the same, any
delays in obtaining or realizing upon or failures to obtain or realize
upon collateral, the recovery of any judgment against any Subsidiary,
any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of any
Subsidiary under the Subsidiary Guaranties. The Parent Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of any Subsidiary, any
right to require a proceeding first against any Subsidiary or right to
require the prior disposition of the assets of any Subsidiary to meet
its obligations, protest, notice and all demands whatsoever and
covenants that this Parent Guaranty will not be discharged except by
complete performance of the obligations of the Subsidiaries under the
Subsidiary Guaranties.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to any Subsidiary, or any Custodian, Trustee, or
similar official acting in relation to such Subsidiary, any amount paid
by such Subsidiary to the Trustee or such Holder, this Parent Guaranty,
to the extent theretofore discharged, shall be reinstated in full force
and effect. The Parent Guarantor agrees that it will not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until the principal of, premium, if any,
and interest on all Securities issued hereunder shall have been paid in
full. The Parent Guarantor further agrees that, as between such
Subsidiary, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.2 for the purposes of this Parent
Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration as to any Subsidiary of the obligations
guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.2, those
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obligations (whether or not due and payable) will forthwith become due
and payable by the Parent Guarantor for the purpose of this Parent
Guaranty.
(d) It is the intention of the Parent Guarantor and the
Subsidiaries that the obligations of the Parent Guarantor hereunder
shall be, but not in excess of, the maximum amount permitted by
applicable law. Accordingly, if the obligations in respect of the Parent
Guaranty would be annulled, avoided or subordinated to the creditors of
the Parent Guarantor by a court of competent jurisdiction in a
proceeding actually pending before such court as a result of a
determination both that the Parent Guaranty was made without fair
consideration and, immediately after giving effect thereto, or at the
time that any demand is made thereupon, the Parent Guarantor was
insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of the Parent Guarantor
under the Parent Guaranty shall be reduced by such an amount, if any,
that would result in the avoidance of such annulment, avoidance or
subordination; provided, however, that any reduction pursuant to this
paragraph shall be made in the smallest amount as is necessary to reach
such result. For purposes of this paragraph, "fair consideration,"
"insolvency," "unable to pay its debts as they mature," "unreasonably
small capital" and the effective times of reductions, if any, required
by this paragraph shall be determined in accordance with applicable law.
(e) The Parent Guarantor shall be subrogated to all rights of
the Holders against the Subsidiaries under the Subsidiary Guaranties in
respect of any amounts paid by the Parent Guarantor pursuant to the
provisions of the Parent Guaranty; provided, however, that the Parent
Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the
principal of, premium, if any, and interest on all Securities issued
hereunder shall have been paid in full.
Section 10.3. Execution and Delivery of Guaranty.
(a) To evidence its Guaranty set forth in Section 10.1, each
Guarantor agrees that a notation referencing such Guaranty shall be set
forth on the Security.
(i) Each Guarantor agrees that its Guaranty set forth in
Section 10.1 shall remain in full force and effect and apply to all the
Securities
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notwithstanding any failure to endorse on each Security a notation of
such Guaranty.
(ii) The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of
the Guaranty set forth in this Indenture on behalf of each Guarantor.
(b) To evidence the Parent Guaranty set forth in Section 10.2,
the Parent Guarantor agrees that a notation referencing such Parent
Guaranty shall be set forth on the Security.
(i) The Parent Guarantor agrees that the Parent Guaranty
set forth in Section 10.2 shall remain in full force and effect and
apply to each Subsidiary Guaranty notwithstanding any failure to endorse
on each Subsidiary Guaranty a notation of such Parent Guaranty.
(ii) The delivery of any Security shall constitute due
delivery of the Parent Guaranty set forth in this Indenture on behalf of
the Parent Guarantor.
Section 10.4. Future Subsidiary Guarantors. The Company shall cause each
Person that is or becomes a Subsidiary of the Company after the Issue Date to
execute an Indenture supplemental hereto for the purpose of adding such
Subsidiary as a Guarantor hereunder.
Section 10.5. Release of Guarantors.
(a) In the event of a sale or other disposition (to a Person
other than JCC Holding and its Subsidiaries, and in a transaction
permitted by this Indenture) of all of the Equity Interests of any
Subsidiary Guarantor, owned by JCC Holding or its Subsidiaries, by way
of merger, consolidation or otherwise, then such Guarantor shall be
released and relieved of any obligations under its Guaranty and all
security interests in the Equity Interests of such released Guarantor
shall be released from the security interests created pursuant to the
Security Documents.
(b) In the event any Unrestricted Subsidiary incurs Indebtedness
for borrowed money (from any Person other than JCC Holding or its
Subsidiaries) in excess of $2,500,000 for purposes of developing real
property owned or
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leased by it, as long as (i) no Default or Event of Default exists at
the time of such incurrence or immediately after giving effect thereto,
(ii) such Unrestricted Subsidiary is being released from all other
direct and indirect guarantees by it of Indebtedness of JCC Holding and
its Subsidiaries (other than Unrestricted Subsidiaries), and (iii) such
Unrestricted Subsidiary repays in full in Cash any and all Indebtedness
to JCC Holding and its Subsidiaries (including, without limitation, all
amounts theretofore loaned to the respective such Unrestricted
Subsidiary pursuant to Section 5.19(e), determined without regard to any
write-downs, write-offs or forgivenesses thereof), then such Guarantor
shall be released and relieved of any obligations under its Guaranty.
(c) In the event of the sale or other disposition (in a
transaction permitted by this Indenture) by any Unrestricted Subsidiary
of its assets to a Person (other than (x) HET and any Affiliate thereof,
except to the extent such person constitutes an Affiliate of HET solely
because of HET's direct or indirect equity interests in JCC Holding or
(y) JCC Holding or any Wholly-Owned Subsidiary thereof), all security
interests created pursuant to the Security Documents shall be released
with respect to such assets, so long as (i) no Default or Event of
Default exists at the time of such sale or other disposition or
immediately after giving effect thereto and (ii) such Unrestricted
Subsidiary repays in full in Cash any and all Obligations to JCC Holding
and its Subsidiaries (including, without limitation all amounts
theretofore loaned to the respective such Unrestricted Subsidiary
pursuant to Section 5.19(e), determined without regard to any
write-downs, write-offs or forgivenesses thereof). In connection with
any release of assets pursuant to the provisions of this clause (c), it
is understood that the respective Unrestricted Subsidiary shall remain a
party to its Guaranty unless and until otherwise released in accordance
with the provisions of preceding clauses (a) and/or (b), and its Equity
Interests, and the assets which continue to be owned by such
Unrestricted Subsidiary, shall continue to be subject to the applicable
provisions of the various Security Documents to which it is a party.
(d) Notwithstanding anything to the contrary contained above,
the releases provided in preceding clauses (a), (b) and (c) shall only
occur upon the delivery by the Company to the Trustee of an Officer's
Certificate in form and substance reasonably satisfactory to the
Trustee, and subject to the Trustee's right to request an Opinion of
Counsel pursuant to Section 11.4, certifying the relevant facts
described above and certifying in reasonable detail the releases which
shall occur in accordance with the provisions of Section 10.5(a), (b) or
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(c), as the case may be. As described in preceding clauses (a), (b) and
(c), (i) in cases where preceding clause (a) or (b) is applicable, the
Guaranty of the respective Unrestricted Subsidiary shall be released,
(ii) in cases where preceding clause (a) or (b) is applicable, the
respective released Unrestricted Subsidiary shall also be released from
the Security Documents to which it is a party (and the assets of the
respective Unrestricted Subsidiary shall likewise be released
therefrom), (iii) in cases where preceding clause (a) is applicable, the
Equity Interests in the respective released Unrestricted Subsidiary
shall be released from the security interests created pursuant to the
Security Documents and (iv) in cases where preceding clause (c) is
applicable, only the assets being sold or disposed of to the respective
Person described in preceding clause (c) shall be released from the
security interests created pursuant to the Security Documents. Each
Officer's Certificate delivered pursuant to this clause (d) shall
contain a certification of all relevant facts permitting (and the
satisfaction of all conditions to) the releases described in the
respective clause of this Section 10.5. Following its receipt of the
documentation described above in this clause (d), the Trustee shall
execute any documents reasonably required in order to effect the
releases contemplated above in this Section 10.5.
Section 10.6. When the Guarantor May Merge, Etc. No Guarantor shall
consolidate with or merge with or into any other Person, unless:
(a) either the Company or a Guarantor shall be the continuing
Person, or the Person (if other than the Company or a Guarantor) formed
by such consolidation or into which the Guarantor is merged or to which
the assets of the Guarantor are transferred shall be a corporation
organized and validly existing under the laws of the United States or
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of such Guarantor under the Guaranty and/or Parent Guaranty,
as applicable, and this Indenture;
(b) such transaction complies with the relevant requirements of
Section 5.14 and immediately after giving effect to such transaction, no
Event of Default, and no event or condition which, after notice or lapse
of time or both, would become an Event of Default, shall have occurred
and be continuing; and
(c) the Guarantor has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale,
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conveyance or lease and such supplemental indenture comply with this
Section and that all conditions precedent herein provided for relating
to such transaction have been complied with. Upon any consolidation or
merger, the successor corporation formed by such
consolidation or into which the Guarantor is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Indenture with the same effect as if such
successor corporation had been named as a Guarantor herein.
Section 10.7. Certain Bankruptcy Events. Each Guarantor hereby covenants
and agrees that in the event of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company, such Guarantor shall not file (or
join in any filing of), or otherwise seek to participate in the filing of, any
motion or request seeking to stay or to prohibit (even temporarily) execution on
the Guaranty or the Parent Guaranty and hereby waives and agrees not to take the
benefit of any such stay of execution, whether under Section 362 or 105 of the
United States Bankruptcy Code or otherwise.
ARTICLE XI
MISCELLANEOUS
Section 11.1. TIA Controls. If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by operation of the TIA, the
imposed duties, upon qualification of this Indenture under the TIA, shall
control; provided, that if any provision of the TIA is modified or waived for
purposes of this Indenture pursuant to the express terms hereof, such waiver or
modification shall be given full force and effect for purposes of this Indenture
to the extent such waiver or modification is not violative of provisions of the
TIA.
Section 11.2. Notices. Any notices or other communications to the
Company, any Guarantor or the Trustee required or permitted hereunder shall be
in writing, and shall be sufficiently given if made by hand delivery, by telex,
by telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
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if to the Company or any Guarantor:
Xxx Xxxxx Xxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
if to the Trustee:
Xxxxx Fargo Bank Minnesota, National Association
6th and Marquette
MAC-N9303-120
Minneapolis, Minnesota 55479
Attention: Corporate Trust Department
The Company, the Guarantors or the Trustee by notice to each other party
may designate additional or different addresses as shall be furnished in writing
by such party. Any notice or communication to the Company, any Guarantor or the
Trustee shall be deemed to have been given or made as of the date so delivered,
if personally delivered; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
In addition to any other notices required or permitted to be given
pursuant to this Indenture, the Trustee shall, promptly after its delivery of
any written notice to the Company (i) which specifically states that an Event of
Default is in existence or (ii) pursuant to the first paragraph of Section 6.2
(or promptly after its receipt of any such notice delivered to it by the
Holders), send to the Regulating Authority (at the address set forth below) a
copy of such written notice; provided, however, that any failure or
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delay in giving any such notice shall not affect or impair the validity of said
notice or any action taken pursuant thereto (or otherwise pursuant to this
Indenture, any Collateral Document or the Intercreditor Agreement) and shall
give rise to no liability (monetary or otherwise) on the part of the Trustee or
any Secured Creditor to any Holder, the Regulating Authority or any other
Person. All notices to the Regulating Authority pursuant to this paragraph shall
be mailed (or sent by reputable courier) to the Regulating Authority at the
following address (or such other address as the Regulating Authority provides to
the Trustee from time to time for its receipt of notices pursuant to this
paragraph):
Louisiana Gaming Control Board
0000 Xxxxxxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chairman
Section 11.3. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
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(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officer's Certificate or certificates of public officials.
Section 11.6. Rules by Trustee, Paying Agent, Registrar. The Trustee may
make reasonable rules for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 11.7. Legal Holidays. A "Legal Holiday" used with respect to a
particular place of payment is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are not required to be open. If a payment
date is a Legal Holiday in New York, New York, payment may be made at such place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 11.8. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY AND THE GUARANTORS
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND
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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 11.9. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company, the Guarantors or any of their Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 11.10. No Recourse Against Others; Holders Acting in Own Best
Interests.
(a) A direct or indirect stockholder, incorporator, member,
director, officer, partner, employee, as such, of the Company or the
Guarantors or any Affiliate of either (including, without limitation,
Xxxxxx'x Investor, Xxxxxx'x Management Company, HET and HOC, but
excluding the Company and the Guarantors themselves) shall not have any
liability for any obligations of the Company or the Guarantors under the
Securities or this Indenture or for any claim based on, in respect of or
by reason of such obligations; provided, however, that nothing
contained in this Section 11.10 shall (i) impair the validity of the
Indebtedness evidenced by this Indenture or the Securities, (ii) prevent
the taking of any action permitted by law against the Company or the
assets of the Company or the proceeds of such assets or (iii) in any way
affect or impair the right of the Collateral Agent, the Trustee or any
Holder to take any action permitted by law to realize upon any of the
Collateral or any other security which may secure the Company's or the
Guarantors' obligations. Notwithstanding the foregoing, nothing in
this Section 11.10 shall be deemed to release the Company or any officer
of the Company from liability under this Indenture or any of the
Security Documents for its fraudulent actions, intentional material
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misrepresentations, gross negligence or willful misconduct or for any of
its obligations or liabilities under any agreement, document, instrument
or certificate executed by such person in its individual capacity in
connection with the transactions contemplated by this Indenture and the
Security Documents. Each Securityholder by accepting a Security waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
(b) Each of the Holders of the Securities reserves the right to
act in its own best interests in connection with any Holder Action
herein, without the creation of any fiduciary obligations on the part of
each such Holder.
Section 11.11. Successors. All agreements of the Company and the
Guarantors in this Indenture and the Securities shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 11.12. Duplicate Originals. All parties may sign any number of
copies or counterparts of this Indenture. Each signed copy or counterpart shall
be an original, but all of them together shall represent the same agreement.
Section 11.13. Severability. In case any one or more of the provisions
in this Indenture or in the Securities shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
Section 11.14. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and the Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
or provisions hereof.
Section 11.15. Gaming Laws. This Indenture, the Security Documents, the
Securities and the Security Interests 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 as the
same may be amended from time to time (collectively, the "Gaming Regulations"),
and in particular, without limitation, the exercise of remedies under the
Security Documents with respect to the Collateral will be subject to the Gaming
Regulations. The Company represents and
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warrants that all requisite approvals under the Gaming Regulations have been
obtained for the execution and issuance of this Indenture, the Security
Documents, the Securities and the security interests thereunder.
Section 11.16. Tax Treatment. The Company, each Guarantor, and each
Holder of a Security by acceptance of a Security, agree to (i) treat a Security
as evidence of indebtedness for federal, state and local income tax purposes;
and (ii) use a discount rate with respect to the Security for purposes of
Treasury Regulation Sections 1.1275-4(c) and 1.1274-2(c) & (g) such that the
issue price will be equal to 100% of the original principal amount.
Section 11.17. Waivers and Releases.
(a) NO ASSURANCES.
(i) As a condition to the effectiveness of the
confirmation of the Plan of Reorganization, the Initial Minimum Payment
Guarantors have entered into the HET/JCC Agreement in favor of the
Regulating Authority. The HET/JCC Agreement provides that the Minimum
Payment Guarantors will provide the Minimum Payment Guaranty required
under the Casino Operating Contract for the Fiscal Years (as defined in
the Casino Operating Contract) ending March 31, 2002, 2003, 2004 and
2005, subject to termination or non-renewal in accordance with the terms
of the HET/JCC Agreement. As a prerequisite to maintaining the
effectiveness of the Casino Operating Contract, the Casino Operating
Contract requires that the Company annually on each March 31 (beginning
with March 31, 2003) cause to be provided a Minimum Payment Guaranty or
extensions thereof extending to the third anniversary of the respective
March 31. In entering into the HET/JCC Agreement, the Minimum Payment
Guarantors have no obligation to provide a Minimum Payment Guaranty for
the entire term of the Casino Operating Contract, but rather have agreed
only to provide a Minimum Payment Guaranty for the period and on terms
and conditions specified therein. The Minimum Payment Guarantors have
expressly informed the Trustee on behalf of the Holders that the Minimum
Payment Guarantors have not agreed to renew the HET/JCC Agreement beyond
March 31, 2005. The Minimum Payment Guarantors have informed the Trustee
on behalf of the Holders that any decision the Minimum Payment
Guarantors make concerning whether to renew any Minimum Payment Guaranty
or the HET/JCC Agreement will be made in the Minimum Payment Guarantors'
sole discretion, acting only in their best interests. The Trustee on
behalf of the
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Holders hereby acknowledges that (A) the Initial Minimum Payment
Guarantors are not obligated to, and have not given any assurances to
the Trustee that the Minimum Payment Guarantors will, renew the HET/JCC
Agreement beyond March 31, 2005, (B) the Minimum Payment Guarantors have
the right to make any such renewal decision by considering only their
best interests, and (C) the Minimum Payment Guarantors need not consider
the interests of any other parties in making any such renewal decision,
notwithstanding that the Minimum Payment Guarantors are involved in a
number of capacities in respect of the Company.
(ii) The Trustee and the Holders hereby agree that the
Minimum Payment Guarantors, by entering into the HET/JCC Agreement or
providing a Minimum Payment Guaranty or otherwise, are not now, and in
the past have not, made any assurances or guarantees concerning the
financial results of the Casino, nor are or have the Minimum Payment
Guarantors made any assurances or guarantees that the Casino will be
financially successful or will perform as projected in the projections
and/or feasibility studies included in the Disclosure Statement
distributed in connection with the Plan of Reorganization confirmation
process.
(iii) The Trustee and the Holders hereby agree and
acknowledge that any future representation, warranty, assurance or other
guaranty by the Minimum Payment Guarantors or any of their subsidiaries
or other Affiliates to the Trustee or the Holders concerning the renewal
of any Minimum Payment Guaranty or the HET/JCC Agreement, the operation
of the Casino, the financial results of the Casino, or any other matter
concerning the Casino or the Plan of Reorganization shall only be
effective if set forth in writing and properly executed by the party to
be charged.
(b) RELEASES.
(i) The Trustee and the Holders hereby release and waive
and agree not to bring any Claims against the Minimum Payment
Guarantors, whether a known Claim or an Unknown Claim, that may arise in
any way, in whole or in part, out of (A) the Minimum Payment Guarantors'
decision either to renew or not renew any Minimum Payment Guaranty or
the HET/JCC Agreement, (B) the Minimum Payment Guarantors acting in
their own best interests in connection with the execution, renewal or
failure to renew any Minimum Payment Guaranty or the HET/JCC Agreement,
and/or (C) any
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alleged assurance or guarantee by the Minimum Payment Guarantors
concerning the operation of the Casino, the financial results of the
Casino or any other matter concerning the Casino or the Plan of
Reorganization, unless such Claim is based on a writing (but in any
event cannot be based on the HET/JCC Agreement or any Minimum Payment
Guaranty) properly executed by the party against whom such a claim is
being made.
(ii) The Trustee and the Holders also hereby
specifically waive any rights each might have under Louisiana Civil Code
Article 3083 and all other applicable or similar laws to this same or
similar effect as the matters described in Section 11.17(b)(i) hereof,
including, but not limited to, any purported right to challenge the
validity or seek rescission of, or to vitiate, the releases set forth
above in Section 11.17(b)(i) hereof on the ground that any information
was kept concealed from it and agrees that no remedy shall be available
for any such alleged non-disclosure, and that the right to rescind the
above release on any such ground is hereby expressly waived.
(c) DEFINITIONS. For purposes of Sections 11.17(b)(i) and (ii)
hereof:
(i) "Claim" or "Claims" shall mean any action or
actions, cause or causes of action, in law or equity, suits, debts,
liens, liabilities, claims, demands, damages, punitive damages, losses,
costs or expenses, and/or reasonable attorneys' fees of any nature
whatsoever.
(ii) "Minimum Payment Guarantors" shall include HET,
HOC, Xxxxxx'x New Orleans Investment Company, Xxxxxx'x Crescent City
Investment Company, Xxxxxx'x New Orleans Management Company, their
successors and assigns, and all direct or indirect subsidiaries, and
each of their parents, subsidiaries, officers, directors, corporate
representatives, employees, agents, lawyers and accountants and all
Persons acting or claiming through, under or in concert with any of
them.
(iii) "Unknown Claim" or "Unknown Claims" means any and
all Claims, including, without limitation, any Claim which any of the
parties hereto does not know or even suspect to exist in his, her, or
its favor at the time of the giving of the releases and waivers set
forth in Section 11.17 hereof which, if known by him, her or it might
have affected his, her or its decision regarding the releases and
waivers. Each of the parties acknowledges that he, she or it
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might hereafter discover facts in addition to or different from those
which he, she, or it now knows or believes to be true with respect to
the matters herein released and waived, but each shall be deemed to have
fully, finally and forever released any and all Claims.
(d) NO THIRD PARTY BENEFICIARIES. The Trustee and the Holders
hereby acknowledge that each Minimum Payment Guaranty and the HET/JCC
Agreement provide that there shall be no third party beneficiaries
thereof. The Trustee and the Holders also hereby agree that each shall
not claim or assert it is a third party beneficiary or possesses any
derivative claims under any Minimum Payment Guaranty or the HET/JCC
Agreement.
(e) DISCLOSURE. The Trustee on behalf of the Holders hereby
acknowledges that the Minimum Payment Guarantors have informed it (i)
not to infer or assume that the Minimum Payment Guarantors will renew
any Minimum Payment Guaranty or the HET/JCC Agreement; (ii) that the
Minimum Payment Guarantors will consider only their own best interests
in determining whether to renew any Minimum Payment Guaranty or the
HET/JCC Agreement; (iii) that the Minimum Payment Guarantors are
involved in a number of different capacities in connection with the
reorganization of the Company, the governance of the Company and JCC
Holding, and the operation of the Casino; and (iv) that there can be no
assurance that the Casino will perform as set forth in the projections
and/or feasibility study set forth in the Disclosure Statement
circulated in connection with the Plan of Reorganization.
(f) AMENDMENT OF OBLIGATIONS. Each Minimum Payment Guaranty
provided under the HET/JCC Agreement is provided on the express
condition that the Company shall not amend or modify the Casino
Operating Contract in any way to increase the obligations under any
Minimum Payment Guaranty or adversely affect the Minimum Payment
Guarantors without the prior written agreement of the Minimum Payment
Guarantors, and any such amendment or modification shall have no force
or effect in respect of the Minimum Payment Guarantors or any Minimum
Payment Guaranty provided thereby.
Section 11.18. Post-Closing Items.
(a) The Company shall deliver to the Trustee and the Collateral
Agent no later than 90 days after the Issue Date a true and correct
current survey
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of each Mortgaged Property (and, where applicable, the underlying
property subject to a leasehold which is subject to a Mortgage) along
with a certification of such survey from the surveyor, which surveyor
shall be a qualified M.A.I. surveyor reasonably satisfactory to the
Trustee, as to the accuracy and completeness of such survey, which
survey and surveyor's certification shall be in compliance with industry
standards in all material respects.
(b) The Company shall deliver to the Trustee and the Collateral
Agent no later than 90 days after the Issue Date an Officer's
Certificate of the Company certifying, for each Mortgaged Property and
following the Company's review of the survey described above, (A)(i)
that the description of title in the relevant Mortgage for such
Mortgaged Property accurately and completely describes the Mortgaged
Property, or (ii) each and every difference, omission, inadequacy or
other misdescription in the description of the title in the relevant
Mortgage for such Mortgaged Property that has been disclosed by the
survey for such Mortgaged Property (the "Misdescriptions") and (B)(i)
that there exist no easements, rights of way or encumbrances with
respect to such Mortgaged Property (including as shown in the survey
described above) other than Permitted Encumbrances or (ii) if any
easements, rights of way or encumbrances, other than Permitted
Encumbrances, are disclosed in the survey described above (each a
"Non-Permitted Encumbrance"), each such Non-Permitted Encumbrance (and
specifically listing each such Non-Permitted Encumbrance) and certifying
the removal thereof (together with the relevant supporting documentation
with respect thereto).
(c) In the case of any Misdescription, as described in the
preceding subsection (b)(A)(ii) of this Section 11.18, each of the
Trustee and the Collateral Agent is authorized to execute and deliver
amendments to any of the Mortgages to correct any such Misdescription
and to record and file any such amendments to the Mortgages as may be
necessary to give effect thereto; provided, that any such amendment
shall be executed, delivered, recorded and filed so as to give effect to
such amendment no later than 30 days following the delivery of the
survey to the Trustee and the Collateral Agent by the Company as
provided in subsection (a) of this Section 11.18.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
JAZZ CASINO COMPANY, L.L.C.
a Louisiana limited liability company
By:
-------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Vice President-Finance,
Secretary and Treasurer
JCC HOLDING COMPANY,
a Delaware corporation
By:
-------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Vice President-Finance,
Secretary and Treasurer
JCC CANAL DEVELOPMENT, L.L.C.,
a Louisiana limited liability company
By:
-------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Vice President-Finance,
Secretary and Treasurer
JCC XXXXXX DEVELOPMENT, L.L.C.,
a Louisiana limited liability company
By:
-------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Vice President-Finance,
Secretary and Treasurer
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JCC DEVELOPMENT COMPANY, L.L.C.,
a Louisiana limited liability company
By:
-------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Vice President-Finance,
Secretary and Treasurer
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Corporate Trust Officer
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TABLE OF EXHIBITS
A .................................................................Form of Notes
A-1 ........................................................Form of Note
A-2 ...............................................Form of Series A Note
A-3 ...............................................Form of Series B Note
A-4 ..................................................Form of Assignment
A-5 ..........................Form of Option of Holder to Elect Purchase
B .........................Closing Conditions and Representations and Warranties
C ..............................................................Form of Opinions
C-1 ....................................................Xxxxxx & Xxxxxxx
C-2 ........................................................Xxxxx Xxxxxx
C-3 ..................................................Xxxxx & Xxxxx, LLP
C-4 .............................................Pillsbury Winthrop, LLC
C-5 ............................................Xxxxxxx X. Xxxxxxx, Esq.
D .................................................Form of Officer's Certificate
E ......................................................Form of Pledge Agreement
F ....................................................Form of Security Agreement
G .............................................................Form of Mortgages
G-1 ....................................................Company Mortgage
G-2 ............................................JCC Development Mortgage
G-3 ..........................................Canal Development Mortgage
G-4 .........................................Xxxxxx Development Mortgage
H ................................. .....................Intercreditor Agreement
I ................................................................Consent Letter
J .................................Manager Subordination Agreement (Noteholders)
K ...........................................................Litigation Schedule
L .......................................................Subordination Agreement
M ..................................Registration Rights Agreement (Common Stock)
N ..................................Registration Rights Agreement (Senior Notes)
O ..............................................Second Floor Non-Gaming Sublease
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EXHIBIT A-1
[FORM OF NOTE]
JAZZ CASINO COMPANY, L.L.C.
SENIOR NOTES
DUE 2008
No. $
Jazz Casino Company, L.L.C., a Louisiana limited liability company
(hereinafter called the "Company," which term includes any successor entity
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ________________________ , or registered assigns, the
principal sum of ________________ Dollars, on March 30, 2008.
Interest Payment Dates: March 30, June 30, September 30 and December 30.
The first Interest Payment Date is June 30, 2001.
Record Dates: March 15, June 15, September 15 and December 15. The first
Record Date is June 15, 2001.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
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146
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
JAZZ CASINO COMPANY, L.L.C.
By:
-------------------------------------
President
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
------------------------------------------------------------
Xxxxx Fargo Bank Minnesota, National Association, as Trustee
By:
--------------------------------------------------------
Authorized Signatory
Dated:
148
JAZZ CASINO COMPANY, L.L.C.
[FORM OF
SENIOR NOTES
DUE 2008]
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT (AS DEFINED IN THE INDENTURE), WHICH INTERCREDITOR AGREEMENT, AMONG
OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE SECURITY FOR THIS
NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER SECURED CREDITORS.
COPIES OF SUCH INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS
NOTE UPON REQUEST TO THE COMPANY.
1. INTEREST.
Jazz Casino Company, L.L.C., a Louisiana limited liability company (the
"Company"), promises to pay Fixed Interest on the principal amount of this
Security from March 30, 2001 (the "Issue Date"). "Fixed Interest" means
interest, payable on the Interest Payment Dates in accordance with the
Indenture, at a rate per annum of LIBOR (as determined for the respective
Interest Period) plus 275 basis points.
The Company promises to pay Fixed Interest in Cash on each Interest
Payment Date; provided , however, that during the first year after the Issue
Date (the "PIK Period"), the Company may, at its option (the "PIK Option"), pay,
on any Interest Payment Dates, up to 50% of the Fixed Interest due and payable
on such Interest Payment Dates in additional Securities (the "Secondary
Securities") in lieu of the payment of the relevant portion of Fixed Interest in
Cash on the Securities. At any time or from time to time prior to the first
anniversary of the Issue Date, any Holder may require that its Securities be
exchanged for an equivalent aggregate amount of Series A Notes and Series B
Notes, 50% of such exchange amount being in Series A Notes and 50% in Series B
Notes. During the PIK Period, 100% of the Fixed Interest due and payable on the
Series A Notes shall be paid exclusively in Cash, and 100% of the Fixed Interest
due and payable on the Series B Notes shall be paid in Cash or, at the option of
the Company, through the issuance of Secondary Securities. Notwithstanding
anything to the contrary contained above, if any Securities (not divided into
Series A Notes and
149
Series B Notes) are outstanding at a time when any Series B Notes are
outstanding, then if the PIK Option is exercised with respect to any Securities
or Series B Notes, and if the Company elects the PIK Option for less than the
maximum amounts permitted above, then in each case the percentage of Fixed
Interest payable through the issuance of Secondary Securities with respect to
the Series B Notes shall be twice the percentage of Fixed Interest paid on
Securities not divided into Series A Notes and Series B Notes. If, pursuant to
this paragraph, the Company issues Secondary Securities as partial Cash payment
of Fixed Interest, it shall give notice to the Trustee not less than five
Business Days prior to the applicable Interest Payment Date, and shall instruct
the Trustee (upon written order of the Company signed by an Officer of the
Company given not less than five nor more than 45 days prior to such Interest
Payment Date) to authenticate Secondary Securities, dated such Interest Payment
Date, in a principal amount equal to the amount of Fixed Interest not paid in
Cash in respect of this Security on such Interest Payment Date. Each issuance of
Secondary Securities as partial Cash payments of Fixed Interest on the
Securities shall be made pro rata with respect to the outstanding Securities.
Any such Secondary Securities shall be governed by the Indenture and shall be
subject to the same terms (including the maturity date and the rate of interest
from time to time payable thereon) as this Security (except, as the case may be,
with respect to the title, issuance date and aggregate principal amount). The
term Securities shall include the Secondary Securities that may be issued under
the Indenture.
Interest on this Security will be payable on each Interest Payment Date
(March 30, June 30, September 30 and December 30), commencing June 30, 2001, to
the Person in whose name this Security is registered at the close of business
not less than fifteen days (March 15, June 15, September 15 or December 15)
preceding such Interest Payment Date (each, a "Record Date"). Interest on this
Security will be computed on the basis of a 360-day year, consisting of twelve
30-day months.
In addition to payments of Fixed Interest, the Company will pay to the
Holder of this Security in accordance with the terms of this Security and the
Indenture such Holder's pro rata amount of principal as amortized below:
Scheduled Repayment Date Amount
------------------------ ------
June 30, 2005 $1,500,000
September 30, 2005 $1,500,000
December 30, 2005 $1,500,000
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March 30, 2006 $1,500,000
June 30, 2006 $1,500,000
September 30, 2006 $1,500,000
December 30, 2006 $1,500,000
March 30, 2007 $1,500,000
June 30, 2007 $1,500,000
September 30, 2007 $1,500,000
December 30, 2007 $1,500,000
Stated Maturity The then outstanding aggregate prin-
cipal amount of the Securities (to-
gether with all accrued and unpaid
interest thereon).
In addition, on each Semi-Annual Free Cash Flow Payment Date (November
15 and May 15), beginning with November 15, 2002 and ending with May 15, 2005,
the Company shall pay an amount equal to 50% of Semi-Annual Free Cash Flow for
the Semi-Annual Free Cash Flow Payment Period last ended before the respective
Semi-Annual Free Cash Flow Payment Date.
To the extent it is lawful, the Company promises to pay interest on any
interest payment due but unpaid on such principal amount at a rate per annum
equal to Base Rate plus 375 basis points compounded quarterly, as determined
from time to time, to the extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("Cash") (or, pursuant to
Paragraph 1 hereof, in Secondary Securities). However, the Company may pay
principal and interest by wire transfer of Federal funds, or interest
3
151
by its check payable in such Cash (or, pursuant to Paragraph 1 hereof, in
Secondary Securities). The Company may deliver any such interest payment to the
Paying Agent or the Company may mail any such interest payment to a Holder at
the Holder's registered address. Notwithstanding the preceding two sentences, in
the case of Securities of which The Depository Trust Company or its nominee is
the Holder, such payments must be made by wire transfer of Federal funds (or,
pursuant to Paragraph 1 hereof, in Secondary Securities).
3. PAYING AGENT AND REGISTRAR.
Initially, Xxxxx Fargo Bank Minnesota, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or Co-registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or Co-registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of March
30, 2001 (the "Indenture"), among the Company, JCC Holding, Canal Development,
Xxxxxx Development, JCC Development and the Trustee. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act, as in effect on the date
of the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are secured obligations of the Company limited in aggregate
principal amount to $124,520,000, except for Secondary Securities and except as
otherwise provided in the Indenture.
5. REDEMPTION.
The Securities shall be redeemable in whole or in part at the election
of the Company, except as set forth in the Indenture, at the Redemption Price at
any time and from time to time, and shall be redeemed in whole or in part at any
time pursuant to a Required Regulatory Redemption at the Redemption Price. Any
redemption of the Securities shall comply with Article III of the Indenture.
6. NOTICE OF REDEMPTION.
4
152
Notice of redemption will be mailed by first class mail at least 10 days
but not more than 60 days before the Redemption Date (unless a shorter notice
period shall be required by applicable laws or by order of any Gaming Authority)
to each Holder of Securities to be redeemed at his registered address.
Securities may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent (other than the Company or an
Affiliate thereof) on such Redemption Date, the Securities called for redemption
will cease to bear interest and the only right of the Holders of such Securities
will be to receive payment of the Redemption Price, including any accrued and
unpaid interest to the Redemption Date.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in denominations
of $1.00 and integral multiples of $1.00. A Holder may register the transfer of,
or exchange Securities in accordance with, the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent(s) will pay the money back to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent(s) with respect to such money shall cease.
10. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, the Indenture
or the Securities may be amended or supplemented with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived
5
153
with the consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture, the Security Documents,
the Intercreditor Agreement or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, or make any other change
that does not adversely affect the rights of any Holder of a Security.
11. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
issue additional Equity Interests, enter into transactions with Affiliates,
incur Liens, sell assets, merge or consolidate with any other Person and sell,
lease, transfer or otherwise dispose of substantially all of its properties or
assets. The limitations are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on compliance with
such limitations.
12. SECURITY.
In order to secure the obligations under the Indenture, the Company, the
Guarantors and the Trustee or the Collateral Agent have entered into the
Security Documents in order to create security interests in certain assets and
properties of the Company. As more fully set forth in the Security Documents and
Section 4.6 of the Indenture, the rights of the Holders (and the Trustee on
their behalf) to receive proceeds from the disposition of such assets and
properties are subject to the lien priorities created in favor of (i) certain
Obligations owing to the Collateral Agent, (ii) all reimbursement obligations
pursuant to the Minimum Payment Guaranties and any interest thereon and (iii)
unpaid Revolving Obligations.
13. SALE OF ASSETS.
Except as specifically provided in the Indenture, JCC Holding and its
subsidiaries are not permitted to enter into a transaction of merger or
consolidation or convey, sell, lease or otherwise dispose of (or agree to do any
of the foregoing at any future time) all or substantially all of their assets or
enter into sale-leaseback transactions or purchase or otherwise acquire any part
of the property or assets of any Person.
6
154
14. GAMING LAWS.
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the gaming laws, regulations
and the jurisdiction and requirements of the Gaming Authorities and the further
limitations and requirements set forth in the Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 50% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity reasonably satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power.
17. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company, the Guarantors or their respective Affiliates with the same
rights it would have if it were not the Trustee; provided , however, that the
Trustee shall use reasonable good-faith efforts so that it at no time becomes a
Revolving Lender; provided further, that the foregoing provision shall in no
event operate to prevent the Trustee from acquiring all or any portion of the
equity interests in any other Person which itself is a Revolving Lender (and as
a result of which the Trustee could become a Revolving Lender).
18. NO RECOURSE AGAINST OTHERS.
An incorporator, director, officer, employee, stockholder or member, as
such, of the Company or any Guarantor or any Affiliate thereof (including,
without limitation,
7
155
Xxxxxx'x Investor, Xxxxxx'x Management Company, HET and HOC, but excluding the
Company and Guarantors themselves) shall not have any liability for any
obligation of the Company or the Guarantors under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations, subject to certain exceptions set forth in the Indenture. Each
Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture.
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. TAX TREATMENT.
The Company, each Guarantor, and each Holder of a Security by acceptance
of a Security, agree to (i) treat a Security as evidence of indebtedness for
federal, state and local income tax purposes and (ii) use a discount rate with
respect to the Security for purposes of Treasury Regulation Sections 1.1275-4(c)
and 1.1274-2(c) & (g) such that the issue price will be equal to 100% of the
original principal amount.
8
156
23. GUARANTY.
For value received and pursuant to and in accordance with the terms of
the Indenture, the Guarantors have unconditionally guaranteed, as set forth in
Article X of the Indenture (the "Guaranty"), to each Holder of a Security and
the Trustee the due and punctual payment of the principal of, premium (if any),
and interest on, such Security when and as the same shall become due and payable
for any reason in accordance with the terms of such Security and the Indenture.
For value received and pursuant to and in accordance with the terms of the
Indenture, JCC Holding has unconditionally guaranteed, as set forth in Article X
of the Indenture, to each holder of a Subsidiary Guaranty and the Trustee that
the obligations of each Subsidiary Guarantor will be promptly paid in full or
performed in accordance with the terms of the various Subsidiary Guaranties and
the Indenture. The Guarantors or the Subsidiary Guarantors may be released from
their respective guaranties in accordance with the terms of the Indenture.
9
157
EXHIBIT A-2
[FORM OF SERIES A NOTE]
JAZZ CASINO COMPANY, L.L.C.
SERIES A SENIOR NOTES
DUE 2008
No. $
Jazz Casino Company, L.L.C., a Louisiana limited liability company
(hereinafter called the "Company," which term includes any successor entity
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ______________________________ , or registered assigns, the
principal sum of ____________________ Dollars, on March 30, 2008.
Interest Payment Dates: March 30, June 30, September 30 and December 30.
The first Interest Payment Date is June 30, 2001.
Record Dates: March 15, June 15, September 15 and December 15. The first
Record Date is June 15, 2001.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
158
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
JAZZ CASINO COMPANY, L.L.C.
By:
-------------------------------------
President
2
159
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
------------------------------------------------------------
Xxxxx Fargo Bank Minnesota, National Association, as Trustee
By:
--------------------------------------------------------
Authorized Signatory
Dated:
160
JAZZ CASINO COMPANY, L.L.C.
[FORM OF SERIES A
SENIOR NOTES
DUE 2008]
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT (AS DEFINED IN THE INDENTURE), WHICH INTERCREDITOR AGREEMENT, AMONG
OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE SECURITY FOR THIS
NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER SECURED CREDITORS.
COPIES OF SUCH INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS
NOTE UPON REQUEST TO THE COMPANY.
1. INTEREST.
Jazz Casino Company, L.L.C., a Louisiana limited liability company (the
"Company"), promises to pay Fixed Interest on the principal amount of this
Security from March 30, 2001 (the "Issue Date"). "Fixed Interest" means
interest, payable on the Interest Payment Dates in accordance with the
Indenture, at a rate per annum of LIBOR (as determined for the respective
Interest Period) plus 275 basis points.
The Company promises to pay Fixed Interest in Cash on each Interest
Payment Date (March 30, June 30, September 30 and December 30), commencing June
30, 2001, to the Person in whose name this Security is registered at the close
of business not less than fifteen days (March 15, June 15, September 15 or
December 15) preceding such Interest Payment Date (each, a "Record Date").
Interest on this Security will be computed on the basis of a 360-day year,
consisting of twelve 30-day months.
In addition to payments of Fixed Interest, the Company will pay to the
Holder of this Security in accordance with the terms of this Security and the
Indenture such Holder's pro rata amount of principal as amortized below:
4
161
Scheduled Repayment Date Amount
------------------------ ------
June 30, 2005 $1,500,000
September 30, 2005 $1,500,000
December 30, 2005 $1,500,000
March 30, 2006 $1,500,000
June 30, 2006 $1,500,000
September 30, 2006 $1,500,000
December 30, 2006 $1,500,000
March 30, 2007 $1,500,000
June 30, 2007 $1,500,000
September 30, 2007 $1,500,000
December 30, 2007 $1,500,000
Stated Maturity The then outstanding aggregate prin-
cipal amount of the Securities (to-
gether with all accrued and unpaid
interest thereon).
In addition, on each Semi-Annual Free Cash Flow Payment Date (November
15 and May 15), beginning with November 15, 2002 and ending with May 15, 2005,
the Company shall pay an amount equal to 50% of Semi-Annual Free Cash Flow for
the Semi-Annual Free Cash Flow Payment Period last ended before the respective
Semi-Annual Free Cash Flow Payment Date.
To the extent it is lawful, the Company promises to pay interest on any
interest payment due but unpaid on such principal amount at a rate per annum
equal to Base Rate plus 375 basis points compounded quarterly, as determined
from time to time, to the extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender
5
162
Securities to a Paying Agent to collect principal payments. Except as provided
below, the Company shall pay principal and interest in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
payment of public and private debts ("Cash"). However, the Company may pay
principal and interest by wire transfer of Federal funds, or interest by its
check payable in such Cash. The Company may deliver any such interest payment to
the Paying Agent or the Company may mail any such interest payment to a Holder
at the Holder's registered address. Notwithstanding the preceding two sentences,
in the case of Securities of which The Depository Trust Company or its nominee
is the Holder, such payments must be made by wire transfer of Federal funds.
3. PAYING AGENT AND REGISTRAR.
Initially, Xxxxx Fargo Bank Minnesota, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or Co-registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or Co-registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of March
30, 2001 (the "Indenture"), among the Company, JCC Holding, Canal Development,
Xxxxxx Development, JCC Development and the Trustee. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act, as in effect on the date
of the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are secured obligations of the Company limited in aggregate
principal amount to $124,520,000, except for Secondary Securities and except as
otherwise provided in the Indenture.
5. REDEMPTION.
The Securities shall be redeemable in whole or in part at the election
of the Company, except as set forth in the Indenture, at the Redemption Price at
any time and from time to time, and shall be redeemed in whole or in part at any
time pursuant to a Required Regulatory Redemption at the Redemption Price. Any
redemption of the Securities shall comply with Article III of the Indenture.
6
163
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed by first class mail at least 10 days
but not more than 60 days before the Redemption Date (unless a shorter notice
period shall be required by applicable laws or by order of any Gaming Authority)
to each Holder of Securities to be redeemed at his registered address.
Securities may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent (other than the Company or an
Affiliate thereof) on such Redemption Date, the Securities called for redemption
will cease to bear interest and the only right of the Holders of such Securities
will be to receive payment of the Redemption Price, including any accrued and
unpaid interest to the Redemption Date.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in denominations
of $1.00 and integral multiples of $1.00. A Holder may register the transfer of,
or exchange Securities in accordance with, the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent(s) will pay the money back to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent(s) with respect to such money shall cease.
7
164
10. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, the Indenture
or the Securities may be amended or supplemented with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding. Without notice to
or consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Security Documents, the Intercreditor Agreement or the Securities
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
11. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
issue additional Equity Interests, enter into transactions with Affiliates,
incur Liens, sell assets, merge or consolidate with any other Person and sell,
lease, transfer or otherwise dispose of substantially all of its properties or
assets. The limitations are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on compliance with
such limitations.
12. SECURITY.
In order to secure the obligations under the Indenture, the Company, the
Guarantors and the Trustee or the Collateral Agent have entered into the
Security Documents in order to create security interests in certain assets and
properties of the Company. As more fully set forth in the Security Documents and
Section 4.6 of the Indenture, the rights of the Holders (and the Trustee on
their behalf) to receive proceeds from the disposition of such assets and
properties are subject to the lien priorities created in favor of (i) certain
Obligations owing to the Collateral Agent, (ii) all reimbursement obligations
pursuant to the Minimum Payment Guaranties and any interest thereon and (iii)
unpaid Revolving Obligations.
13. SALE OF ASSETS.
8
165
Except as specifically provided in the Indenture, JCC Holding and its
subsidiaries are not permitted to enter into a transaction of merger or
consolidation or convey, sell, lease or otherwise dispose of (or agree to do any
of the foregoing at any future time) all or substantially all of their assets or
enter into sale-leaseback transactions or purchase or otherwise acquire any
part of the property or assets of any Person.
14. GAMING LAWS.
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the gaming laws, regulations
and the jurisdiction and requirements of the Gaming Authorities and the
further limitations and requirements set forth in the Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 50% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity reasonably satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power.
17. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company, the Guarantors or their respective Affiliates with the same
rights it would have if it were not the Trustee; provided, however, that the
Trustee shall use reasonable good-faith efforts so that it at no time becomes a
Revolving Lender; provided further, that the foregoing provision shall in no
event operate to prevent the
9
166
Trustee from acquiring all or any portion of the equity interests in any other
Person which itself is a Revolving Lender (and as a result of which the Trustee
could become a Revolving Lender).
18. NO RECOURSE AGAINST OTHERS.
An incorporator, director, officer, employee, stockholder or member, as
such, of the Company or any Guarantor or any Affiliate thereof (including,
without limitation, Xxxxxx'x Investor, Xxxxxx'x Management Company, HET and HOC,
but excluding the Company and Guarantors themselves) shall not have any
liability for any obligation of the Company or the Guarantors under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations, subject to certain exceptions set forth in the
Indenture. Each Holder of a Security by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture.
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securi-
10
167
ties and reliance may be placed only on the other identification numbers printed
hereon.
22. TAX TREATMENT.
The Company, each Guarantor, and each Holder of a Security by acceptance
of a Security, agree to (i) treat a Security as evidence of indebtedness for
federal, state and local income tax purposes and (ii) use a discount rate with
respect to the Security for purposes of Treasury Regulation Sections 1.1275-4(c)
and 1.1274-2(c) & (g) such that the issue price will be equal to 100% of the
original principal amount.
23. GUARANTY.
For value received and pursuant to and in accordance with the terms of
the Indenture, the Guarantors have unconditionally guaranteed, as set forth in
Article X of the Indenture (the "Guaranty"), to each Holder of a Security and
the Trustee the due and punctual payment of the principal of, premium (if any),
and interest on, such Security when and as the same shall become due and payable
for any reason in accordance with the terms of such Security and the Indenture.
For value received and pursuant to and in accordance with the terms of the
Indenture, JCC Holding has unconditionally guaranteed, as set forth in Article X
of the Indenture, to each holder of a Subsidiary Guaranty and the Trustee that
the obligations of each Subsidiary Guarantor will be promptly paid in full or
performed in accordance with the terms of the various Subsidiary Guaranties and
the Indenture. The Guarantors or the Subsidiary Guarantors may be released
from their respective guaranties in accordance with the terms of the Indenture.
11
168
EXHIBIT A-3
[FORM OF SERIES B NOTE]
JAZZ CASINO COMPANY, L.L.C.
SERIES B SENIOR NOTES
DUE 2008
No. $
Jazz Casino Company, L.L.C., a Louisiana limited liability company
(hereinafter called the "Company," which term includes any successor entity
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ________________________________ , or registered assigns, the
principal sum of __________________ Dollars, on March 30, 2008.
Interest Payment Dates: March 30, June 30, September 30 and December 30.
The first Interest Payment Date is June 30, 2001.
Record Dates: March 15, June 15, September 15 and December 15. The first
Record Date is June 15, 2001.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
1
169
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
JAZZ CASINO COMPANY, L.L.C.
By:
-------------------------------------
President
2
170
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
------------------------------------------------------------
Xxxxx Fargo Bank Minnesota, National Association, as Trustee
By:
--------------------------------------------------------
Authorized Signatory
Dated:
171
JAZZ CASINO COMPANY, L.L.C.
[FORM OF SERIES B
SENIOR NOTES
DUE 2008]
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT (AS DEFINED IN THE INDENTURE), WHICH INTERCREDITOR AGREEMENT, AMONG
OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE SECURITY FOR THIS
NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER SECURED CREDITORS.
COPIES OF SUCH INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS
NOTE UPON REQUEST TO THE COMPANY.
1. INTEREST.
Jazz Casino Company, L.L.C., a Louisiana limited liability company (the
"Company"), promises to pay Fixed Interest on the principal amount of this
Security from March 30, 2001 (the "Issue Date"). "Fixed Interest" means
interest, payable on the Interest Payment Dates in accordance with the
Indenture, at a rate per annum of LIBOR (as determined for the respective
Interest Period) plus 275 basis points.
During the PIK Period, the Company promises to pay 100% of the Fixed
Interest due and payable on the Series B Notes in Cash or, at the option of the
Company, through the issuance of Secondary Securities. Notwithstanding anything
to the contrary contained above, if any Securities (not divided into Series A
Notes and Series B Notes) are outstanding at a time when any Series B Notes are
outstanding, then if the PIK Option is exercised with respect to any
Securities or Series B Notes, and if the Company elects the PIK Option for less
than the maximum amounts permitted in section 2.2(e) of the Indenture, then in
each case the percentage of Fixed Interest payable through the issuance of
Secondary Securities with respect to the Series B Notes shall be twice the
percentage of Fixed Interest paid on Securities not divided into Series A Notes
and Series B Notes. If, pursuant to this paragraph, the Company issues Secondary
Securities as partial Cash payment of Fixed Interest, it shall give notice to
the Trustee not less than five Business Days prior to the applicable Interest
Payment Date, and shall instruct the Trustee (upon written order of the
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172
Company signed by an Officer of the Company given not less than five nor more
than 45 days prior to such Interest Payment Date) to authenticate Secondary
Securities, dated such Interest Payment Date, in a principal amount equal to
the amount of Fixed Interest not paid in Cash in respect of this Security on
such Interest Payment Date. Each issuance of Secondary Securities as partial
Cash payments of Fixed Interest on the Securities shall be made pro rata with
respect to the outstanding Securities. Any such Secondary Securities shall be
governed by the Indenture and shall be subject to the same terms (including the
maturity date and the rate of interest from time to time payable thereon) as
this Security (except, as the case may be, with respect to the title, issuance
date and aggregate principal amount). The term Securities shall include the
Secondary Securities that may be issued under the Indenture.
Interest on this Security will be payable on each Interest Payment Date
(March 30, June 30, September 30 and December 30), commencing June 30, 2001, to
the Person in whose name this Security is registered at the close of business
not less than fifteen days (March 15, June 15, September 15 or December 15)
preceding such Interest Payment Date (each, a "Record Date"). Interest on this
Security will be computed on the basis of a 360-day year, consisting of twelve
30-day months.
In addition to payments of Fixed Interest, the Company will pay to the
Holder of this Security in accordance with the terms of this Security and the
Indenture such Holder's pro rata amount of principal as amortized below:
Scheduled Repayment Date Amount
------------------------ ------
June 30, 2005 $1,500,000
September 30, 2005 $1,500,000
December 30, 2005 $1,500,000
March 30, 2006 $1,500,000
June 30, 2006 $1,500,000
September 30, 2006 $1,500,000
December 30, 2006 $1,500,000
March 30, 2007 $1,500,000
June 30, 2007 $1,500,000
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173
September 30, 2007 $1,500,000
December 30, 2007 $1,500,000
Stated Maturity The then outstanding aggregate prin-
cipal amount of the Securities (to-
gether with all accrued and unpaid
interest thereon).
In addition, on each Semi-Annual Free Cash Flow Payment Date (November
15 and May 15), beginning with November 15, 2002 and ending with May 15, 2005,
the Company shall pay an amount equal to 50% of Semi-Annual Free Cash Flow for
the Semi-Annual Free Cash Flow Payment Period last ended before the respective
Semi-Annual Free Cash Flow Payment Date.
To the extent it is lawful, the Company promises to pay interest on any
interest payment due but unpaid on such principal amount at a rate per annum
equal to Base Rate plus 375 basis points compounded quarterly, as determined
from time to time, to the extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("Cash") (or, pursuant to
Paragraph 1 hereof, in Secondary Securities). However, the Company may pay
principal and interest by wire transfer of Federal funds, or interest by its
check payable in such Cash (or, pursuant to Paragraph 1 hereof, in Secondary
Securities). The Company may deliver any such interest payment to the Paying
Agent or the Company may mail any such interest payment to a Holder at the
Holder's registered address. Notwithstanding the preceding two sentences, in
the case of Securities of which The Depository Trust Company or its nominee is
the Holder, such payments must be made by wire transfer of Federal funds (or,
pursuant to Paragraph 1 hereof, in Secondary Securities).
3. PAYING AGENT AND REGISTRAR.
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174
Initially, Xxxxx Fargo Bank Minnesota, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or Co-registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or Co-registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of March
30, 2001 (the "Indenture"), among the Company, JCC Holding, Canal Development,
Xxxxxx Development, JCC Development and the Trustee. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act, as in effect on the date
of the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are secured obligations of the Company limited in aggregate
principal amount to $124,520,000, except for Secondary Securities and except as
otherwise provided in the Indenture.
5. REDEMPTION.
The Securities shall be redeemable in whole or in part at the election
of the Company, except as set forth in the Indenture, at the Redemption Price at
any time and from time to time, and shall be redeemed in whole or in part at any
time pursuant to a Required Regulatory Redemption at the Redemption Price. Any
redemption of the Securities shall comply with Article III of the Indenture.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed by first class mail at least 10 days
but not more than 60 days before the Redemption Date (unless a shorter notice
period shall be required by applicable laws or by order of any Gaming Authority)
to each Holder of Securities to be redeemed at his registered address.
Securities may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent (other than the Company or an
Affiliate thereof) on
7
175
such Redemption Date, the Securities called for redemption will cease to bear
interest and the only right of the Holders of such Securities will be to receive
payment of the Redemption Price, including any accrued and unpaid interest to
the Redemption Date.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in denominations
of $1.00 and integral multiples of $1.00. A Holder may register the transfer of,
or exchange Securities in accordance with, the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent(s) will pay the money back to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent(s) with respect to such money shall cease.
10. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, the Indenture
or the Securities may be amended or supplemented with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding. Without notice to
or consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Security Documents, the Intercreditor Agreement or the Securities
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place
8
176
of certificated Securities, or make any other change that does not adversely
affect the rights of any Holder of a Security.
11. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
issue additional Equity Interests, enter into transactions with Affiliates,
incur Liens, sell assets, merge or consolidate with any other Person and sell,
lease, transfer or otherwise dispose of substantially all of its properties or
assets. The limitations are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on compliance with
such limitations.
12. SECURITY.
In order to secure the obligations under the Indenture, the Company, the
Guarantors and the Trustee or the Collateral Agent have entered into the
Security Documents in order to create security interests in certain assets and
properties of the Company. As more fully set forth in the Security Documents and
Section 4.6 of the Indenture, the rights of the Holders (and the Trustee on
their behalf) to receive proceeds from the disposition of such assets and
properties are subject to the lien priorities created in favor of (i) certain
Obligations owing to the Collateral Agent, (ii) all reimbursement obligations
pursuant to the Minimum Payment Guaranties and any interest thereon and (iii)
unpaid Revolving Obligations.
13. SALE OF ASSETS.
Except as specifically provided in the Indenture, JCC Holding and its
subsidiaries are not permitted to enter into a transaction of merger or
consolidation or convey, sell, lease or otherwise dispose of (or agree to do any
of the foregoing at any future time) all or substantially all of their assets or
enter into sale-leaseback transactions or purchase or otherwise acquire any
part of the property or assets of any Person.
14. GAMING LAWS.
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the gaming laws, regulations
and the jurisdic-
9
177
tion and requirements of the Gaming Authorities and the further limitations and
requirements set forth in the Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 50% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity reasonably satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power.
17. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company, the Guarantors or their respective Affiliates with the same
rights it would have if it were not the Trustee; provided, however, that the
Trustee shall use reasonable good-faith efforts so that it at no time becomes a
Revolving Lender; provided further, that the foregoing provision shall in no
event operate to prevent the Trustee from acquiring all or any portion of the
equity interests in any other Person which itself is a Revolving Lender (and as
a result of which the Trustee could become a Revolving Lender).
18. NO RECOURSE AGAINST OTHERS.
An incorporator, director, officer, employee, stockholder or member, as
such, of the Company or any Guarantor or any Affiliate thereof (including,
without limitation, Xxxxxx'x Investor, Xxxxxx'x Management Company, HET and HOC,
but excluding the Company and Guarantors themselves) shall not have any
liability for any obligation of the Company or the Guarantors under the
Securities or the Inden-
10
178
ture or for any claim based on, in respect of or by reason of such obligations,
subject to certain exceptions set forth in the Indenture. Each Holder of a
Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture.
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. TAX TREATMENT.
The Company, each Guarantor, and each Holder of a Security by acceptance
of a Security, agree to (i) treat a Security as evidence of indebtedness for
federal, state and local income tax purposes and (ii) use a discount rate with
respect to the Security for purposes of Treasury Regulation Sections 1.1275-4(c)
and 1.1274-2(c) & (g) such that the issue price will be equal to 100% of the
original principal amount.
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179
23. GUARANTY.
For value received and pursuant to and in accordance with the terms of
the Indenture, the Guarantors have unconditionally guaranteed, as set forth in
Article X of the Indenture (the "Guaranty"), to each Holder of a Security and
the Trustee the due and punctual payment of the principal of, premium (if any),
and interest on, such Security when and as the same shall become due and payable
for any reason in accordance with the terms of such Security and the Indenture.
For value received and pursuant to and in accordance with the terms of the
Indenture, JCC Holding has unconditionally guaranteed, as set forth in Article X
of the Indenture, to each holder of a Subsidiary Guaranty and the Trustee that
the obligations of each Subsidiary Guarantor will be promptly paid in full or
performed in accordance with the terms of the various Subsidiary Guaranties and
the Indenture. The Guarantors or the Subsidiary Guarantors may be released
from their respective guaranties in accordance with the terms of the Indenture.
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180
EXHIBIT A-4
[FORM OF ASSIGNMENT]
I or we assign this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee and irrevocably appoint agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
Dated: ___________________ Signed: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature guarantee should be made by a guarantor institution participating in
the Securities Transfer Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.
181
EXHIBIT A-5
[FORM OF OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Article VIII of the Indenture, sign and date this election form as
indicated below.
If you want to elect to have only part of this Security purchased by
the Company pursuant to the Indenture, state the principal amount you want to be
purchased:
$ ______________
Dated: ____________________ Signed: ____________________
(Sign exactly as your name appears on the other side of this Security)
182
EXHIBIT B
Closing Conditions and Representations and Warranties
I. Closing Conditions
Each of JCC Holding, the Company and the other Guarantors agrees to take, or
causes to be taken, the following actions on or prior to the Issue Date.
1. Execution of Indenture; Securities. (i) This Indenture shall be
executed and delivered and (ii) there shall be delivered to the
Trustee for the account of each Holder the appropriate
Securities, executed by the Company, in each case in the amount,
maturity and as otherwise provided herein.
2. Fees, Etc. On the Issue Date, the Company shall have paid to the
Trustee all costs, fees and expenses (including, without
limitation, legal fees and expenses of counsel to the Trustee
only, title premiums, survey charges and recording taxes and
fees) payable to the Trustee then due.
3. Officer's Certificate. On the Issue Date, the Trustee shall have
received a certificate dated the Issue Date signed on behalf of
the Company by an Authorized Representative of the Company
stating that all of the conditions in Sections 6, 7, 9, 10, 11,
12, 13, 20, 21, 22, and 23 of this Section I of Exhibit B have
been satisfied on such date.
4. Opinions of Counsel. On the Issue Date, the Trustee shall have
received (i) from Xxxxxx & Xxxxxxx, special counsel to Xxxxxx'x
Management Company, an opinion addressed to the Trustee dated the
Issue Date in the form of Exhibit C-1, (ii) from Xxxxx Xxxxxx,
General Counsel to Xxxxxx'x Management Company, an opinion
addressed to the Trustee dated the Issue Date in the form of
Exhibit C-2, (iii) from Xxxxx & Xxxxx LLP, Louisiana counsel to
the Company, an opinion addressed to the Trustee and dated the
Issue Date in the form of Exhibit C-3, (iv) from Pillsbury
Winthrop, LLP, New York counsel to the Company , an opinion
addressed to the Trustee and dated the Issue Date in the form of
Exhibit C-4, and (v) from Xxxxxxx
Exhibit B - 2
183
X. Xxxxxxx, Esq., special counsel to the Company for Louisiana
gaming matters in the form of Exhibit C-5.
5. Corporate Documents; Proceedings; etc. On the Issue Date, the
Trustee shall have received a certificate, dated the Issue Date,
signed by an Authorized Representative of each of the Credit
Parties, and attested to by another Authorized Representative of
each such Credit Party, in the form of Exhibit D with appropriate
insertions, together with copies of such Credit Party's
certificate of incorporation and by-laws (or other relevant
organizational documents), as the case may be, and the
resolutions or other appropriate authorizing documents of such
Credit Party referred to in such certificate, and the foregoing
shall be in form and substance reasonably satisfactory to the
Trustee.
6. Debt Agreements. On the Issue Date, there shall have been
delivered to the Trustee true and correct copies, certified as
true and complete by an Authorized Representative of JCC Holding,
of all agreements evidencing or relating to Indebtedness of JCC
Holding or any of its Subsidiaries which is to remain outstanding
after the Issue Date (collectively, the "Debt Agreements").
7. Leases; Etc. On the Issue Date, there shall have been delivered
to the Trustee, true and correct copies, certified as true and
complete by an Authorized Representative of the Company, of all
Leases. Furthermore, (i) the Collateral Agent shall have been
registered as the Registered Leasehold Mortgagee under (and as
defined in) the Casino Operating Contract, (ii) the notice
address for the Collateral Agent as Leasehold Mortgagee under
(and as defined in) the Casino Lease shall have been delivered to
the RDC.
8. Confirmation of Plan of Reorganization. On or prior to the Issue
Date, (i) there shall have been delivered to the Trustee true and
correct copies of the Plan of Reorganization and the Disclosure
Statement, (ii) a Confirmation Order shall have been entered,
(iii) the order referenced in preceding clause (ii) shall not
have been stayed and shall have become final and non-appealable
and (iv) all conditions precedent to the effective date of the
Plan of Reorganization shall have been satisfied.
Exhibit B - 3
184
9. Revolving Credit Facility. On or prior to the Issue Date, (i) the
Company and the Revolving Lenders shall have entered into the
Revolving Credit Agreement and (ii) there shall have been
delivered to the Trustee true and correct copies of the Revolving
Credit Agreement Documents.
10. Releases. [Intentionally Omitted].
11. Issuance of New Common Stock. On or prior to the Issue Date, (i)
JCC Holding shall have issued all shares of New Common Stock in
accordance with and pursuant to the Plan of Reorganization and
(ii) there shall have been delivered to the Trustee true and
correct copies of the New Common Stock Documents.
12. Management Agreement. On the Issue Date, there shall have been
delivered to the Trustee (i) a true and correct copy, certified
as true and complete by an Authorized Representative of the
Company, of the Management Agreement (including all exhibits and
schedules thereto). Except for the Management Agreement, the
Company shall not be a party to any other management agreement or
arrangement with respect to the Casino or otherwise.
13. Pledge Agreement. On the Issue Date, JCC Holding, the Company
and each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Pledge Agreement in the form of Exhibit
E (as modified, supplemented or amended from time to time, the
"Pledge Agreement") and shall have delivered to the Collateral
Agent, as Pledgee, all the Pledged Securities, if any, referred
to therein then owned by JCC Holding, the Company and each
Subsidiary Guarantor (to the extent required to be delivered on
the Issue Date pursuant to the terms thereof), (i) endorsed in
blank in the case of promissory notes constituting Pledged
Securities and (ii) together with executed and undated stock
powers, in the case of capital stock constituting Pledged Securi-
ties.
14. Security Agreement. On the Issue Date, JCC Holding, the Company
and each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Security Agreement in the form of
Exhibit F (as modified, supplemented or amended from time to
time, the "Security
Exhibit B - 4
185
Agreement") covering all of JCC Holding's, the Company's and each
Subsidiary Guarantor's present and future Security Agreement
Collateral, together with:
(a) proper Financing Statements (Form UCC-1) fully executed
for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or
desirable to perfect the security interests purported to
be created by the Security Agreement;
(b) unless otherwise previously provided, certified copies of
Requests for Information or Copies (Form UCC-11), or
equivalent reports, listing all effective financing
statements that name JCC Holding, the Company or any
Subsidiary Guarantor as debtor and that are filed in the
jurisdictions referred to in clause (a) above, together
with copies of such other financing statements (none of
which shall cover the Collateral except to the extent
evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination or
assignment statements (Form UCC-3) or such other
termination statements as shall be required by local law)
fully executed for filing;
(c) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as
may be necessary or desirable to perfect the security
interests intended to be created by the Security
Agreement; and
(d) evidence that JCC Holding, the Company and the Subsidiary
Guarantors have obtained all necessary consents to permit
them to assign to the Collateral Agent pursuant to the
Security Agreement all of the their right, title and
interest in and to all material Permits required to be
obtained by the Issue Date in connection with the
ownership, lease, construction, equipping and operation of
the Project or any facilities or services ancillary
thereto and the other transactions contemplated by the
Revolving Credit Agreement Documents and the other Docu-
ments and otherwise referred to herein or therein, Project
Documents, construction documents, architectural and engi-
Exhibit B - 5
186
neering documents, maintenance, management (including the
Management Agreement), leasing and service documents and
franchise contracts relating to the Project (other than
(i) the Casino Operating Contract and (ii) to the extent a
security interest therein cannot be so granted under
applicable law, any other Permit).
15. Mortgages. On the Issue Date, the Collateral Agent shall
have received a copy certified by the Recorder of Mortgages for
Orleans Parish, Louisiana of fully executed mortgages in the form
of Exhibits G-1 through G-4, inclusive (as modified, supplemented
or amended from time to time, each a "Mortgage" and,
collectively, the "Mortgages"), which Mortgages shall cover (i)
in the case of the Mortgage executed and delivered in the form of
Exhibit G-1 (as modified, supplemented or amended from time to
time, the "Company Mortgage"), the Casino Lease and the Company's
fee simple estate or leasehold estate or other interest, as the
case may be, in such other Real Property owned or leased by the
Company (each, a "Company Mortgaged Property" and, collectively,
the "Company Mortgaged Properties"), (ii) in the case of the
Mortgage executed and delivered in the form of Exhibit G-2 (as
modified, supplemented or amended from time to time, the "JCC
Development Mortgage"), JCC Development's interest as sublessee
in the Second Floor Sublease and JCC Development's fee simple
estate or leasehold estate or other interest, as the case may be,
in such other Real Property owned or leased by JCC Development
(each a "JCC Development Mortgaged Property" and, collectively,
the "JCC Development Mortgaged Properties"), (iii) in the case of
the Mortgage executed and delivered in the form of Exhibit G-3
(as modified, supplemented or amended from time to time, the
"Canal Development Mortgage"), Canal Development's fee simple
estate or leasehold estate or other interest, as the case may be,
in such Real Property owned or leased by Canal Development (each
a "Canal Development Mortgaged Property" and, collectively, the
"Canal Development Mortgaged Properties"), and (iv) in the case
of the Mortgage executed and delivered in the form of Exhibit G-4
(as modified, supplemented or amended from time to time, the
"Xxxxxx Development Mortgage"), Xxxxxx Development's fee simple
estate or leasehold estate or other interest, as the case may be,
in such Real Property owned or leased by Xxxxxx Development (each
a "Xxxxxx Development Mortgaged Property" and, collectively, the
"Xxxxxx Development Mortgaged Properties"), and each of which
Mortgages shall have been recorded in Orleans Parish, Louisiana
to effectively create a valid and enforceable mortgage lien.
Exhibit B - 6
187
16. Intercreditor Agreement. On the Issue Date, the Trustee, the
Collateral Agent, and the Revolving Lenders shall have duly
authorized, executed and delivered an Intercreditor Agreement in
the form of Exhibit H (as modified, supplemented or amended from
time to time, the "Intercreditor Agreement"), and the
Intercreditor Agreement shall be in full force and effect.
17. Consent Letter. On the Issue Date, the Trustee shall have
received a letter from CT Corporation System, presently located
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in
the form of Exhibit I, indicating its consent to its
appointment by each Credit Party as its agent to receive service
of process as specified in Section 11.8 of the Indenture.
18. Manager Subordination Agreement. On the Issue Date, the Company
and Xxxxxx'x Management Company shall have duly authorized,
executed and delivered a Subordination Agreement in the form of
Exhibit J (as modified, supplemented or amended from time to
time, the "Manager Subordination Agreement"), and the Manager
Subordination Agreement shall be in full force and effect.
19. Registration Rights Agreements. On the Issue Date, the Company
and each Holder listed in Exhibit A to the Registration Rights
Agreements shall have duly authorized, executed and delivered the
Registration Rights Agreements in the form of Exhibits M and N
(as modified, supplemented or amended from time to time,
collectively, the "Registration Rights Agreements"), and the
Registration Rights Agreements shall remain in full force and
effect.
20. Adverse Change; Approvals; Permits; etc.
(a) On the Issue Date, nothing shall have occurred which is
reasonably likely to have a material adverse effect (i)
on the rights or remedies of the Trustee or the Revolving
Lenders, or on the ability of any Credit Party to perform
their respective obligations to the Trustee and the
Revolving Lenders or (ii) on the business, property,
assets, liabilities, condition (financial
Exhibit B - 7
188
or otherwise) or prospects of any Credit Party from that
set forth in the Financial Forecast.
(b) On or prior to the Issue Date, all necessary governmental
(domestic and foreign) and third party approvals
(including, without limitation, all approvals of the
Bankruptcy Court having jurisdiction over the Credit
Parties' bankruptcy case) and Permits (including, without
limitation, the Casino Operating Contract) (other than
approvals and Permits as are immaterial to the
construction or operation of the Project) required to be
obtained by such date in connection with the ownership,
lease, construction and operation of the Project or any
facilities or services ancillary thereto and the other
transactions contemplated by the Revolving Credit
Agreement Documents and the other Documents and otherwise
referred to herein or therein shall have been obtained and
remain in full force and effect, and no action shall have
been taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the
completion of the Project or the consummation of the
transactions contemplated by this Indenture and the
other Documents. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other
restraint pending or notified (i) challenging the
legality, validity or enforceability of any such Permit or
the legality or validity of the process pursuant to which
such Permit was issued or (ii) prohibiting or imposing
materially adverse conditions upon the completion of the
Project or the consummation of the transactions
contemplated by this Indenture and the other Documents.
(c) On or prior to the Issue Date, there shall have been
delivered to the Trustee evidence that the Holders of the
Securities are qualified under the Louisiana Gaming
Regulations as financial sources or qualifiers, or are
exempt or waived from, or are presumed qualified under,
the provisions thereof, and the Trustee shall be satisfied
that no other Louisiana gaming license, authorization,
qualification, waiver or exemption of the Holders of the
Securities is required on or prior to the Issue
Exhibit B - 8
189
Date by reason of this Indenture or the Security
Documents. The Trustee shall be satisfied with any
conditions or requirements imposed by Louisiana or other
relevant Gaming Authorities upon the Holders of the
Securities, this Indenture, the Security Documents or the
Collateral.
(d) On or prior to the Issue Date, the Company, HET, HOC and
Xxxxxx'x Management Company shall have received any
qualifications required on or prior to the Issue Date
under applicable Gaming Regulations in connection with
this Indenture, the Security Documents and the
Transaction, and the Company, HET, HOC and Xxxxxx'x
Management Company shall have received all other
approvals, authorizations or consents of, or notices to or
registrations with any governmental body and required
releases and consents from any other appropriate Persons
in connection with this Indenture, the Security Documents
and the Transaction and required on or prior to the Issue
Date.
(e) On the Issue Date, there shall have been delivered to the
Trustee true and correct copies, certified as true and
complete by an Authorized Representative of the Company,
of all such approvals and Permits referred to in this
Section 20 and required to be obtained by the Issue Date.
21. Litigation. On the Issue Date, no litigation by any entity
(private or governmental) shall be pending or threatened (except
that litigation which is identified in the attached Exhibit K)
(i) with respect to the Indenture, the other Documents or with
respect to the Transaction or (ii) which could have a material
adverse effect on the business, property, assets, nature of
assets, liabilities, condition (financial or otherwise) or
prospects of the Company.
22. Minimum Payment Guaranty; etc.
(a) On the Issue Date, HET and HOC shall have duly authorized,
executed and delivered the initial Minimum Payment
Guaranty in favor of the LGCB as required by Section 25.1
of the Casino Operating Contract and, in connection
therewith, HET,
Sched. B - 9
190
HOC and the Company shall have entered into the HET/JCC
Agreement.
(b) On the Issue Date, there shall have been delivered to the
Trustee true and correct copies, certified as true and
complete by an Authorized Representative of Company, of
all of the Minimum Payment Guaranty Documents, all of
which shall be reasonably satisfactory to the Trustee.
23. No Default; Representations and Warranties. On the Issue
Date and after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and
warranties as set forth in Part II of this Schedule B, in the
Security Documents and in the other Revolving Credit Agreement
Documents shall be true and correct in all material respects (it
being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as
of such specified date).
The issuance of the Securities on the Issue Date shall be
deemed to constitute a representation and warranty by the Company
to the Trustee that all of the conditions specified in this
Exhibit B exist (and have been satisfied) as of that time. All of
the Securities, certificates, legal opinions and other documents
and papers referred to in the Indenture, unless otherwise
specified, shall be delivered to the Trustee at the Notice Office
for the account of each of the Holders of the Securities and,
except for the Securities, in sufficient counterparts for each of
the Holders of the Securities and shall be in form and substance
reasonably satisfactory to the Holders of the Securities.
Sched. B - 10
191
II. Representations, Warranties and Agreements. In order to induce the
Holders of the Securities to accept the Securities, each of JCC Holding,
the Company and the Guarantors makes the following representations,
warranties and agreements, with the occurrence of the Issue Date being
deemed to constitute a representation and warranty that the matters
specified in this Exhibit B are true and correct in all material
respects on the Issue Date (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects
only as of such specified date).
1. Status. Each of JCC Holding and its Subsidiaries (i) is a duly
organized and validly existing corporation or limited liability
company, as the case may be, in good standing under the laws of
the jurisdiction of its organization, (ii) has the requisite
power and authority to own its property and assets and to
transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where
the conduct of its business requires such qualifications except
for failures to be so qualified which, individually or in the
aggregate, could not reasonably be expected to have a material
adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of
the Company and its Subsidiaries taken as a whole.
2. Power and Authority. Each of JCC Holding and its Subsidiaries has
the corporate or limited liability company, as the case may be,
power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has
taken all necessary action to authorize the execution, delivery
and performance by it of each of such Documents. Each of JCC
Holding and its Subsidiaries has duly executed and delivered
each of the Documents to which it is party, and each of such
Documents constitutes the legal, valid and binding obligation of
such Person enforceable in accordance with its terms, except to
the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and
by equitable principles (regardless of whether enforcement is
sought in equity or at law).
Sched. B - 11
192
3. No Violation. Neither the execution, delivery or performance by
JCC Holding or any of its Subsidiaries of the Documents to which
it is a party, nor compliance by it with the terms and provisions
thereof, (i) will contravene any provision of any applicable law,
statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach
of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the
properties or assets of JCC Holding or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material
agreement, contract or instrument to which JCC Holding or any of
its Subsidiaries is a party or by which it or any of its property
or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation or
bylaws, or other organizational documents, of JCC Holding or any
of its Subsidiaries.
4. Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with (except as have been obtained or made on or
prior to the Issue Date and excluding any such items which are
not required to be obtained or in effect as of the Issue Date),
or exemption by, any governmental or public body or authority
(including, without limitation, any Gaming Authority), or any
subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of
any Document, (ii) the consummation of the Transaction or (iii)
the legality, validity, binding effect or enforceability of any
such Document, except where the failure to so obtain would not
(x) have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise)
or prospects of the Company or JCC Holding and its Subsidiaries
taken as a whole or (y) adversely affect the Holders of the
Securities, the Trustee, the Collateral Agent or their rights
under, or the legality, validity, binding effect or
enforceability of, any Senior Note Document.
5. Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections.
Sched. B - 12
193
(a) On and as of the Issue Date, (i) the Financial Forecast
was prepared based upon the assumptions described therein
for the periods presented, (ii) the Financial Forecast was
based on good faith assumptions and estimates, and (iii)
although a range of possible different assumptions and
estimates might also be reasonable, neither JCC Holding
nor the Company is aware of any facts that would lead it
to believe that the assumptions and estimates on which
the Financial Forecast was based are not reasonable;
provided that no assurance can be given that the projected
results will be realized or with respect to the ability of
the Company to achieve the projected results, and while
the Financial Forecast is necessarily presented with
numerical specificity, the actual results achieved during
the periods presented in all likelihood will differ from
the projected results and such differences may be
material.
(b) Except as fully disclosed in the Financial Forecast, there
were as of the Issue Date no liabilities or obligations
with respect to JCC Holding or any of its Subsidiaries of
any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which,
either individually or in aggregate, would be material to
the Company or JCC Holding and its Subsidiaries taken as a
whole.
6. Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of JCC Holding and the Company,
threatened (except that litigation which is identified in the
attached Exhibit K) (i) with respect to any Document or (ii) that
could reasonably be expected to materially and adversely affect
the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Company or
JCC Holding and its Subsidiaries taken as a whole.
7. True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of JCC Holding or the Company in
writing to the Trustee for purposes of or in connection with this
Indenture, the other Documents or any transaction contemplated
herein or therein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of JCC
Holding or the
Sched. B - 13
194
Company in writing to the Trustee, will be, true and accurate in
all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the
circumstances under which such information was provided.
8. Use of Proceeds; Margin Regulations. No part of the proceeds of
any Securities (or Indebtedness refinanced therewith) was used to
purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither the
making (or deemed making) of any Securities nor the use of the
proceeds thereof will violate or be inconsistent with the
provisions of Regulation T, Regulation U or Regulation X.
9. Tax Returns and Payments. Each of JCC Holding and its
Subsidiaries has timely filed or caused to be timely filed, on
the due dates thereof or within applicable extension or grace
periods, with the appropriate taxing authority, all material U.S.
federal, state, city and other returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with
respect to the income, properties or operations of JCC Holding
and its Subsidiaries. The Returns accurately reflect in all
material respects all liability for taxes of JCC Holding and its
Subsidiaries for the periods covered thereby. Each of JCC
Holding and its Subsidiaries has paid all material taxes payable
by it other than taxes which are not delinquent, and other than
those contested in good faith and for which adequate reserves
have been established in accordance with generally accepted
accounting principles. There is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the
best knowledge of JCC Holding and the Company, threatened by any
taxing authority regarding any taxes relating to JCC Holding and
its Subsidiaries. As of the Issue Date, neither JCC Holding nor
any of its Subsidiaries has entered into an agreement or waiver
or been requested to enter into an agreement or waiver extending
any statute of limitations relating to the payment or collection
of taxes of JCC Holding or such Subsidiary. Neither JCC Holding
nor any of its Subsidiaries has provided, with respect to itself
or property held by it, any consent under Section 341 of the
Code.
Sched. B - 14
195
10. Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no
Plan has an Unfunded Current Liability; no Plan has an
accumulated or waived funding deficiency, has permitted decreases
in its funding standard account or has applied for an extension
of any amortization period within the meaning of Section 412 of
the Code; all contributions required to be made with respect to a
Plan have been timely made; neither JCC Holding nor any of its
Subsidiaries nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
expects to incur any liability (including any indirect,
contingent, or secondary liability) under any of the foregoing
Sections with respect to any Plan; no proceedings have been
instituted to terminate or appoint a trustee to administer any
Plan; no condition exists which presents a material risk to JCC
Holding or any of its Subsidiaries or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no lien imposed under
the Code or ERISA on the assets of JCC Holding or any of its
Subsidiaries or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and JCC Holding and its Subsidiaries may
cease contributions to or terminate any employee benefit plan
maintained by any of them without incurring any material
liability. The representations and warranties in this Section
II(10) of Exhibit B shall only apply insofar as the matters
referred to in this Section II(10) of Exhibit B present a risk of
material liability to JCC Holding or any of its Subsidiaries or
ERISA Affiliates. With respect to a multi-employer plan as
defined in Section 4001(a)(3) of ERISA, it is understood and
agreed that the representations and warranties of this Section
II(10) of Exhibit B are based solely on nonreceipt by JCC Holding
or its Subsidiaries or ERISA Affiliates of written notice from
the PBGC or a Plan Administrator referring to material violations
or material liabilities affecting JCC Holding or its Subsidiaries
or ERISA Affiliates in respect of the matters referred to in such
representations and warranties.
11. The Security Documents.
Sched. B - 15
196
(a) The provisions of the Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of
the Secured Creditors (subject to the provisions of the
Intercreditor Agreement) a legal, valid and enforceable
security interest in all right, title and interest of the
Credit Parties in the Security Agreement Collateral
described therein, and the Security Agreement, upon the
filing of Form UCC-1 financing statements or the
appropriate equivalent (which filings have been made),
creates a fully perfected (except as otherwise expressly
provided in Section 3.2(d) of the Pledge Agreement with
respect to Gaming Patron Indebtedness) lien on, and
security interest in, all right, title and interest in all
of the Security Agreement Collateral described therein,
subject to no other Liens other than Permitted Liens. The
recordation of the Assignment of Security Interest in U.S.
Patents and Trademarks in the form attached to the
Security Agreement in the United States Patent and
Trademark Office together with filings on Form UCC-1 made
pursuant to the Security Agreement will be effective,
under applicable law, to perfect the security interest
granted to the Collateral Agent in the trademarks and
patents covered by the Security Agreement and the
recordation of the Assignment of Security Interest in U.S.
Copyrights in the form attached to the Security Agreement
with the United States Copyright Office together with
filings on Form UCC-1 made pursuant to the Security
Agreement will be effective under federal law to perfect
the security interest granted to the Collateral Agent in
the copyrights covered by the Security Agreement. Each
Credit Party has good and valid title to all Security
Agreement Collateral described therein, free and clear of
all Liens except those described above in this clause (a).
(b) The security interests created in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured
Creditors (subject to the provisions of the Intercreditor
Agreement) under the Pledge Agreement constitute first
priority perfected (except as otherwise expressly provided
in Section 3.2(d) of the Pledge Agreement with respect to
Gaming Patron Indebtedness) security interests in the
Pledge Agreement Collateral, subject
Sched. B - 16
197
to no security interests of any other Person. No filings
or recordings are required in order to perfect (or
maintain the perfection or priority of) the security
interests created in the Pledged Securities and the
proceeds thereof under the Pledge Agreement.
(c) Upon the establishment of any Pledged Account in
accordance with the Security Agreement, and until the
termination of such Security Agreement in accordance with
its respective terms, the security interests created in
favor of the Collateral Agent for the benefit of the
Secured Creditors (subject to the provisions of the
Intercreditor Agreement) under such Security Agreement
will constitute perfected security interests in the
Collateral (as defined in such Security Agreement),
subject to no security interests of any other Person
(other than Permitted Liens). No filings or recordings are
required (other than those that have been made) in order
to perfect (or maintain the perfection or priority of) the
security interests created in such Collateral.
(d) The Mortgages create, as security for the obligations
purported to be secured thereby, valid and enforceable
perfected security interests in and mortgage liens on all
of the Mortgaged Properties in favor of the Collateral
Agent for the benefit of the Secured Creditors (subject to
the provisions of the Intercreditor Agreement), superior
to and prior to the rights of all third Persons (except
that the security interest and mortgage lien created in
the Mortgaged Properties may be subject to the Permitted
Encumbrances related thereto) and subject to no other
Liens (other than Permitted Liens). Each of JCC Holding
and its Subsidiaries has good and merchantable title to
all fee-owned Mortgaged Properties and valid leasehold
title to all leasehold Mortgaged Properties, in each case
free and clear of all leases, occupancy interests and all
Liens except those described in the first sentence of this
subsection (d).
12. Representations and Warranties in Documents. On the Issue Date,
all representations and warranties set forth in the Documents
were true
Sched. B - 17
198
and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).
13. Properties. Each of JCC Holding and its Subsidiaries has good and
valid title to all material properties owned by it (except as
sold or otherwise disposed of in the ordinary course of
business), free and clear of all Liens, other than Permitted
Liens. On the Issue Date, the Mortgages set forth a true and
complete description of all Real Property owned or leased by JCC
Holding and its Subsidiaries and sets forth the direct owner or
lessee thereof.
14. Capitalization.
(a) On the Issue Date, the authorized capital stock of JCC
Holding shall consist of 40,000,000 shares of common
stock, $.01 par value per share, of which no more than
12,386,200 shares are issued and outstanding. All such
outstanding shares of common stock have been duly and
validly issued, are fully paid and non-assessable and are
free of preemptive rights. As of the Issue Date, JCC
Holding does not have outstanding any securities
convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or
any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of,
or any calls, commitments or claims of any character
relating to, its capital stock.
(b) 100% of the Equity Interests in each of the Company, JCC
Development, Canal Development and Xxxxxx Development are
owned by JCC Holding, and all such Equity Interests are
fully paid and nonassessable and are free of preemptive
rights. As of the Issue Date, none of the Company, JCC
Development, Canal Development or Xxxxxx Development has
outstanding any securities convertible into or
exchangeable for its Equity Interests or outstanding any
rights to subscribe for or to purchase, or any options for
the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its
Equity Interests.
Sched B - 18
199
15. Subsidiaries. As of the Issue Date, JCC Holding has no
Subsidiaries other than the Company, JCC Development, Canal
Development and Xxxxxx Development, each of which is a direct
Wholly-Owned Subsidiary of JCC Holding.
16. Compliance with Statutes, Etc.
(a) Each of JCC Holding and its Subsidiaries is in compliance
with all applicable statutes, laws, ordinances, codes,
rules, regulations and orders of, and all applicable
restrictions imposed by and all applicable Permits
issued by, all governmental bodies, domestic or foreign,
in respect of the conduct of its business, the ownership
of its property and the construction and operation of the
Casino (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and
controls) to the extent required as of the Issue Date,
except such instances of noncompliance as could not,
individually or in the aggregate, reasonably be expected
to have a material adverse effect on the business,
operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Company or
JCC Holding and its Subsidiaries taken as a whole.
(b) All necessary governmental (domestic and foreign) and
third party approvals and Permits (including, without
limitation, the Casino Operating Contract) (other than any
approvals and Permits as are immaterial to the operation
of the Casino) required to be obtained by the date upon
which this representation is being made or deemed made
in connection with the ownership, lease, construction and
operation of the Casino or any facilities or services
ancillary thereto and the other transactions
contemplated by the Revolving Credit Agreement Documents
and the other Documents and otherwise referred to herein
or therein have been obtained and remain in full force and
effect, and all applicable waiting periods shall have
expired without any action being taken by any competent
authority which restrains, prevents or imposes
materially adverse conditions upon the operation of the
Casino or the consummation of the transactions
contemplated by this Indenture and the
Sched B - 19
200
other Documents. Additionally, there does not exist any
judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other
restraint pending or notified (i) challenging the
legality, validity or enforceability of any such Permit or
the legality or validity of the process pursuant to which
such Permit was issued or (ii) prohibiting or imposing
materially adverse conditions upon the operation of the
Casino or the consummation of the transactions
contemplated by this Indenture and the other Documents.
17. Investment Company Act. Neither JCC Holding nor any of its
Subsidiaries is an "investment company" or a company "controlled"
by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
18. Public Utility Holding Company Act. Neither JCC Holding nor any
of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of
1935, as amended.
19. Environmental Matters.
(a) Each of JCC Holding and its Subsidiaries is in compliance
with all applicable Environmental Laws and the
requirements of any Permits issued under such
Environmental Laws. There are no pending or, to the best
knowledge of JCC Holding and the Company after due
inquiry, past or threatened Environmental Claims against
JCC Holding or any of its Subsidiaries or any Real
Property owned or operated by JCC Holding or any of its
Subsidiaries that individually or in the aggregate could
reasonably be expected to materially and adversely affect
the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or JCC Holding and its Subsidiaries taken as a
whole. There are no facts, circumstances, conditions or
occurrences with respect to the business or operations of
JCC Holding or any of its Subsidiaries or any Real
Property owned or operated by JCC Holding or any of its
Subsidiaries or, to the best knowl-
Sched B - 20
201
edge of JCC Holding and the Company after due inquiry, on
any property adjoining or in the vicinity of any such Real
Property that, to the best knowledge of JCC Holding and
the Company after due inquiry, could reasonably be
expected (i) to form the basis of an Environmental Claim
against JCC Holding or any of its Subsidiaries or any such
Real Property that individually or in the aggregate could
reasonably be expected to materially and adversely affect
the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or JCC Holding and its Subsidiaries taken as a
whole, or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy,
use or transferability of such Real Property by JCC
Holding or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any
Real Property owned or operated by JCC Holding or any of
its Subsidiaries where such generation, use, treatment or
storage has violated or could reasonably be expected to
violate any Environmental Law. Hazardous Materials have
not at any time been Released on or from any Real Property
owned or operated by JCC Holding or any of its
Subsidiaries where such Release has violated or could
reasonably be expected to violate any applicable
Environmental Law. There are no underground storage
tanks located on any Real Property owned or operated by
JCC Holding or any of its Subsidiaries that are not in
compliance with all Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section
II(19) of Exhibit B, the representations made in this
Section II(19) of Exhibit B shall only be untrue if the
aggregate effect of all failures and noncompliances of the
types described above have, or could reasonably be
expected to have, a material adverse effect on the
business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or JCC Holding and its Subsidiaries taken as a
whole.
Sched B - 21
202
20. Labor Relations. Neither JCC Holding nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Company or JCC
Holding and its Subsidiaries taken as a whole. There is (i) no
unfair labor practice complaint pending against JCC Holding or
any of its Subsidiaries or, to the best knowledge of JCC Holding
and the Company, threatened against any of them, before the
National Labor Relations Board, and no material grievance or
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against JCC Holding or any
of its Subsidiaries or, to the best knowledge of JCC Holding
and the Company, threatened against any of them, (ii) no strike,
labor dispute, slowdown or stoppage pending against JCC Holding
or any of its Subsidiaries or, to the best knowledge of JCC
Holding and the Company, threatened against JCC Holding or any of
its Subsidiaries and (iii) to the best knowledge of JCC Holding
and the Company, no union representation proceeding is pending
with respect to the employees of JCC Holding or any of its
Subsidiaries except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a
material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or
prospects of the Company or JCC Holding and its Subsidiaries
taken as a whole.
21. Patents, Licenses, Franchises and Formulas. Each of JCC Holding
and its Subsidiaries owns all patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and
formulas, or has rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever
nature, reasonably necessary for the present conduct of its
business, without any known conflict with the rights of others
which, or the failure to obtain which, as the case may be, would
result in a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise)
or prospects of the Company or JCC Holding and its Subsidiaries
taken as a whole.
22. Indebtedness.
Sched B - 22
203
(a) Except for the Revolving Credit Agreement and the
Securities, JCC Holding and its Subsidiaries as of the
Issue Date have no Indebtedness.
(b) The subordination provisions contained in the Manager
Subordination Agreement are enforceable against Xxxxxx'x
Management Company, and all Obligations hereunder and
under the other Revolving Credit Agreement Documents are
within the definition of "Senior Indebtedness" included in
such subordination provisions.
23. Special Purpose Corporation. JCC Holding engages in no business
activities and has no significant assets (other than the Equity
Interests in the Company, JCC Development, Canal Development,
Xxxxxx Development and any other Subsidiary of JCC Holding
created or established after the Issue Date in accordance with
the requirements of this Indenture) or liabilities (other than
the liabilities expressly permitted by this Indenture).
Sched. B - 23
