NOTES COMPLETION GUARANTEE
THIS NOTES COMPLETION GUARANTEE is entered into as of October
30, 1998 (this "Completion Guarantee"), by XXXXXX'X ENTERTAINMENT, INC., a
Delaware corporation ("HET"), and XXXXXX'X OPERATING COMPANY, INC., a Delaware
corporation ("HOC," and together with HET, the "Completion Guarantors," and each
a "Completion Guarantor") in favor of NORWEST BANK MINNESOTA, N.A. (together
with any successor, the "Trustee") as trustee under the Indentures (as defined
below), its successors and assigns, for the benefit of the Holders (as defined
below).
RECITALS
A. A plan of reorganization (the "Plan") of Xxxxxx'x Jazz
Company, a Louisiana general partnership ("HJC"), has been consummated as of the
date hereof in connection with the voluntary petition for an Order of Relief
under Chapter 11 of Title 11 of the United States Bankruptcy Code (the
"Bankruptcy Code") filed in the United States Bankruptcy Court on November 22,
1995 and now identified as BK No. 95-14545 in the Eastern District of Louisiana.
B. Pursuant to the Plan, Jazz Casino Company, L.L.C., a
Louisiana limited liability company (the "Company"), JCC Holding Company, a
Delaware corporation ("JCC Holding"), and the Trustee, as trustee, have entered
into:
1. That certain Indenture pursuant to which the
Company has issued $187,500,000 principal amount of its Senior Subordinated
Notes due 2009 with Contingent Payments (as may be amended, modified, renewed,
restated, supplemented or refinanced from time to time, the "New Bonds"); and
2. That certain Indenture pursuant to which the
Company has issued the Senior Subordinated Contingent Notes due 2009 (as may be
amended, modified, renewed, restated, supplemented or refinanced from time to
time, the "New Contingent Bonds," and together with the New Bonds, the "Notes").
For purposes of this Completion Guarantee, "Indentures" shall mean the indenture
for the New Bonds and the indenture for the New Contingent Bonds, collectively,
as each may be amended from time to time.
C. The Company has obtained a performance bond (the
"Performance Bond") from Reliance Insurance Company and United States Fidelity
and Guaranty Company (the "Surety") for the benefit of the Trustee and the
Holders, the City of New Orleans (the "City") and the Rivergate Development
Corporation (the "RDC"), Bankers Trust Company (the "Administrative Agent") as
administrative agent for certain lenders (the "Banks"), and the Louisiana Gaming
Control Board (the "LGCB") for completion of the Phase I and II Construction (as
defined herein) excluding the Minimum FF&E (as defined in the GDA) (the
"Performance Bond Construction").
D. The Completion Guarantors indirectly own a substantial
beneficial interest in the parent of the Company and will obtain substantial
economic and other benefits as a result of the successful completion and opening
of the Casino.
E. All capitalized terms used herein but not defined herein
shall be used herein as defined in the Indentures.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Completion Guarantors, the receipt and sufficiency of
which are hereby acknowledged, the Completion Guarantors hereby make the
following representations and warranties to the Trustee, for the benefit of the
holders of the Notes from time to time (the "Holders"), and hereby covenant and
agree for the benefit of the Holders as follows:
1. Obligations Guaranteed
1.1. The Completion Guarantors hereby irrevocably and
unconditionally, jointly and severally, guarantee:
(a) the full and complete payment and performance of
all obligations (the "Completion Obligations") of the Company diligently to
commence and complete construction of and timely to pay for all costs and
expenses of completion of the Casino whether incurred before or after the
Effective Date (as defined in the Plan) and whether due before or after the
Termination of Construction Date (as defined herein) or otherwise payable by the
Company to any person for the costs and expenses of such completion, and,
subject to receipt of any necessary regulatory approvals, to open the Casino,
including:
(i) the completion of construction (as
extended by Force Majeure (as defined herein)) in accordance with the Plans for
the Phase I and II Construction, on or before twelve (12) months after the
Effective Date,
(ii) equipping the Casino so that the Casino
is ready to open to the public for business as a casino gaming operation on or
before twelve (12) months after the Effective Date,
(iii) so long as any necessary regulatory
approvals from the LGCB, the State Police or any other State of Louisiana
regulatory authorities have been received, the opening of the Casino for
business as a casino gaming operation on or before twelve (12) months after the
Effective Date, or if such approvals have not been received, that the Casino is
in a condition to receive customers in the ordinary course of business, and
(iv) causing the Termination of Construction
Date to occur including, without limitation:
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(A) the payment of any and all costs
of completing the Phase I and II Construction, including without limitation all
labor, materials, supplies, Minimum FF&E (as defined in the GDA) and equipment
related thereto, to be paid and satisfied when due and all cost overruns not
paid by the Company;
(B) the payment, satisfaction or
discharge of liens arising from injuries or damages to persons or property in
connection with the Phase I and II Construction and all liens, charges and
claims, other than Permitted Liens (as defined in the Mortgages), arising from
the furnishing of labor, materials, supplies or equipment for the Phase I and II
Construction, that are or may be imposed upon or asserted against the Casino or
any portion thereof; and
(C) the defense and indemnification
of the Trustee and the Holders against all such liens arising from injuries or
damages to persons or property in connection with the Phase I and II
Construction and all such liens, charges and claims, other than Permitted Liens,
arising from the furnishing of labor, materials, supplies or equipment for the
Phase I and II Construction; and
(b) the full and complete payment and performance of
all obligations (the "Carry Obligations") of the Company to pay on a timely
basis all amounts due from or incurred by or otherwise payable by the Company to
any Person and due before or after the Effective Date until and through the
Termination of Construction Date, including without limitation the payment of
interest and scheduled principal payments (excluding principal on the Notes),
taxes (prior to delinquency, unless being contested in good faith by appropriate
proceedings), amounts owing to the RDC under the Lease (as defined herein),
amounts owing to the LGCB under the Casino Operating Contract, assessments,
utilities, insurance and maintenance expenses, amounts owing from injuries or
damages to person or property or amounts due pursuant to contracts or
agreements; provided that the Completion Guarantors in no event guarantee
payment of any Minimum Payment under and as defined in the Casino Operating
Contract.
1.2. In addition to Section 1.1(b) hereof, the Carry
Obligations shall include, without limitation:
(a) the obligation of the Company upon the
Termination of Construction Date to have available for working capital at least
Five Million Dollars ($5,000,000) of cash in the House Bank (as defined in the
Management Agreement) and at least Twenty Five Million Dollars ($25,000,000) of
availability for immediate drawdown(s) under the Revolving Loans (as defined in
that certain Credit Agreement with various banks and Bankers Trust Company as
administrative agent entered into by the Company and JCC Holding pursuant to the
Plan, the "Credit Agreement"), subject to the terms thereof, reduced by (i) the
amount of Letters of Credit (as defined in the Credit Agreement) not to exceed
Two Million Dollars ($2,000,000), and (ii) a drawing of Ten Million Dollars
($10,000,000) of the Revolving Loan to
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fund the Minimum Balance (as defined in the Management Agreement) on or before
the Termination of Construction Date; and
(b) the obligation of the Company to repay the
Revolving Loan together with any and all amounts of fees, interest, letter of
credit fees and other amounts due in respect of the Revolving Loan due upon an
event of default under the Credit Agreement prior to the Termination of
Construction Date.
This provision may require the Completion Guarantors to contribute working
capital directly to the Company and/or to pay down amounts outstanding under the
Revolving Loan.
1.3. The Completion Obligations, the Carry Obligations and the
Preservation Obligations are collectively referred to herein as the
"Obligations."
1.4. The Completion Guarantors, jointly and severally, agree
to perform and comply with their Obligations, whether or not the Company is
liable therefor individually or jointly or severally with others, and whether or
not recovery against the Company is or may become barred by any statute of
limitations or prescriptive or preemptive period or is or may become
unenforceable or discharged, whether in whole or in part, for any reason other
than payment or performance thereof in full. The Completion Guarantors agree
that this Completion Guarantee is a guarantee of payment and performance and not
of collection, and that each of their obligations under this Completion
Guarantee shall be primary, absolute and unconditional, irrespective of, and
unaffected by:
(a) the genuineness, validity, regularity,
enforceability or any future amendment of, or change in this Completion
Guarantee, or any other agreement, document or instrument to which the Trustee,
the Company and/or the Completion Guarantors is or are or may become a party;
(b) the absence of any action to enforce this
Completion Guarantee or any other document or the waiver or consent by the
Trustee with respect to any of the provisions thereof;
(c) any release or discharge of any one or more of
the Surety, the other Completion Guarantor, the Company or any other party of
any Obligations; or
(d) any other action or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by each Completion Guarantor that its obligations under this
Completion Guarantee shall not be discharged except as set forth in Section 12.3
hereof. Each Completion Guarantor shall be regarded, and shall be in the same
position, as principal debtor with respect to the Obligations.
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1.5. Each Completion Guarantor expressly waives all rights it
may have now or in the future under any statute, or at common law, or at law or
in equity, or otherwise, to compel the Trustee to proceed in respect of the
Obligations against the Company, the Surety or any other party or against any
security for the payment and performance of the Obligations before proceeding
against, or as a condition to proceeding against, any Completion Guarantor. Each
Completion Guarantor agrees that any notice or directive given at any time to
the Trustee which is inconsistent with the waiver in the immediately preceding
sentence shall be null and void and may be ignored by the Trustee, and in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Completion Guarantee for the reason that such pleading or
introduction would be at variance with the written terms of this Completion
Guarantee, unless the Trustee has specifically agreed otherwise in writing.
1.6. The Completion Obligations shall not include any of the
costs which are expressly included as a part of the Carry Obligations.
1.7. Each Completion Guarantor acknowledges that it has
received copies of and is familiar with the Indentures and the Shared Security
Documents (as defined in that certain Intercreditor Agreement among HET, HOCI,
Bankers Trust Company, Norwest Bank Minnesota, National Association, as trustee,
and the other parties named therein).
1.8. Except as expressly provided in this Completion Guarantee
(in particular Sections 1.1(b) and 1.2 hereof), in no event shall the Completion
Guarantors, as a result of this Completion Guarantee, incur, directly or
indirectly, any obligation, contingent or otherwise, under the Indentures or for
the payment of the principal amount of the Notes except to the extent the Notes
are paid as a result of a foreclosure and any Completion Guarantors' funds were
used to improve the Casino ("incur" meaning to create, incur, assume, guarantee
or otherwise become liable for).
2. Default Procedures.
2.1. If for any reason whatsoever the Company:
(a) fails or neglects, even though the Company is not
at fault and whether intentional or unintentional, timely (as extended by Force
Majeure) to commence construction and diligently and expeditiously continue
construction, and complete the Phase I and II Construction within the time
period and in the manner specified in the GDA, free of liens arising from the
furnishing of labor, materials, supplies, furnishings or equipment for the Phase
I and II Construction, other than Permitted Liens; or
(b) otherwise fails to satisfy and fulfill the
Completion Obligations in a timely manner in accordance with the time periods
set forth in Section 1.1(a)(i) hereof; or
(c) fails timely to pay any of the Carry Obligations;
or
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(d) shall have filed against it a petition for relief
under any bankruptcy law, or any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future statute, law or regulation shall be filed
against the Company, and so long as the Completion Guarantors are not otherwise
in default under this Completion Guarantee, in any such event the Company shall
fail to remedy such default to the Trustee's satisfaction within sixty (60) days
after the Company's receipt of a written notice of default with respect thereto
from the Trustee; or
(e) shall be adjudged bankrupt or insolvent, the
Company shall make a general assignment for the benefit of creditors, or the
Company shall admit in writing its inability to pay its debts as they become
due, or the Company shall file a petition for relief under any bankruptcy law,
or any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future statute, law or regulation shall be filed by the Company, or the Company
shall file an answer admitting or not contesting the material allegations of a
petition filed against it in any such proceeding, or the Company shall seek or
consent to or acquiesce in the appointment of a trustee, liquidator of the
Company or a material part of its properties, or the Company shall voluntarily
liquidate or dissolve;
then in any such event or at any time thereafter, the Trustee may give written
notice to the Completion Guarantors, the Company and the Surety of the
occurrence of such event; provided, that if any of the Completion Guarantors,
the Company or the Surety is the subject of any bankruptcy case, any inability
of the Trustee to give notice to such party as a result of the effect of the
bankruptcy case shall not affect the validity or effectiveness of the notice to
the other parties which are not the subject of any bankruptcy case.
2.2. Immediately upon receipt of such notice, the Completion
Guarantors shall take all necessary steps to maintain insurance coverage and
secure the Casino premises to prevent damage or deterioration to the Casino
premises and unauthorized entry or access to the Casino premises (the
"Preservation Obligations"). If after notice and five (5) Business Days
opportunity to cure after such notice, the Completion Guarantors shall fail to
perform the Preservation Obligations, such failure shall be a "Preservation
Obligation Default."
2.3. Commencing on the date on which the Trustee gives any
such notice to the Completion Guarantors pursuant to Section 2.1 hereof, the
Completion Guarantors, at their sole cost, (i) shall pay the Carry Obligations
then due and thereafter shall pay the Carry Obligations when due and/or (ii)
immediately commence to perform the Completion Obligations and thereafter
continue diligently and expeditiously until the Completion Obligations are fully
performed.
2.4. Subject to Section 2.5 hereof, if after notice and five
(5) Business Days opportunity to cure after such notice, the Completion
Guarantors shall fail timely to pay the Carry Obligations (a "Carry Obligation
Default"), after notice and thirty (30) days opportunity to cure after such
notice, the Completion Guarantors shall fail to commence performing the
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Completion Obligations and diligently thereafter continue to perform the
Completion Obligations through the Termination of Construction Date (a
"Completion Obligation Default"), or a Preservation Obligation Default shall
occur, then in addition to all other rights and remedies that may be available
to the Trustee under the terms of this Completion Guarantee, or the Indentures
and/or the Shared Security Documents, at law or in equity, the Trustee or its
agent, in its sole discretion, may proceed as follows:
(a) The Trustee, at its option, may elect to require
specific performance by the Completion Guarantors of any and/or all of the
Completion Obligations after a Completion Obligation Default, the Carry
Obligations after a Carry Obligation Default or the Preservation Obligations
after a Preservation Obligation Default.
(b) After any default by the Company in its
obligations timely to commence and complete the Performance Bond Construction or
the Preservation Obligations, the Trustee, at its option, shall have the right,
but shall have no obligation, to undertake to require the Surety to perform the
Performance Bond Construction or the Preservation Obligations, as the case may
be, pursuant to the Performance Bond, exercisable whether or not the Trustee
elects to proceed judicially or nonjudicially to foreclose on all or any portion
of the Collateral. The Trustee's election to require the Surety to perform the
Performance Bond Construction or the Preservation Obligations shall not release,
diminish or extinguish the liability of the Company or either Completion
Guarantor therefor to the extent the Surety fails to perform such Performance
Bond Construction or the Preservation Obligations. The Completion Guarantors
shall remain obligated to perform the Carry Obligations notwithstanding any such
election and notwithstanding the Surety's performance of the Performance Bond
Construction or the Preservation Obligations.
(c) The Trustee, at its option, shall have the right,
but shall have no obligation, to proceed judicially or nonjudicially to
foreclose on all or any portion of the Collateral, exercisable whether or not
the Trustee elects to require the Completion Guarantors to perform any or all of
the Completion Obligations after a Completion Obligation Default or Carry
Obligations after a Carry Obligation Default or the Preservation Obligations
after a Preservation Obligation Default.
(d) In addition to the Trustee's right to require
specific performance by the Completion Guarantors of any and/or all of the
Completion Obligations after a Completion Obligation Default, the Carry
Obligations after a Carry Obligation Default, and/or the Preservation
Obligations after a Preservation Obligation Default, and whether or not the
Trustee elects to proceed judicially or nonjudicially to foreclose on all or any
portion of the Collateral, and whether or not the Trustee shall have called on
the Surety pursuant to the Performance Bond, (i) the Trustee shall have the
right to recover from the Completion Guarantors all unreimbursed costs and
expenses, including but not limited to attorneys' fees, incurred by the Trustee
in protecting, preserving, enforcing or defending its interests in this
Completion Guarantee, (ii) after a Carry Obligation Default, the Completion
Guarantors shall be liable for the joint benefit of the Trustee, the LGCB, the
Administrative Agent, the City and the RDC as their interests may
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appear for any interest or delinquency costs of the Company arising from such
Carry Obligation Default; provided that the Completion Guarantors shall not be
liable for duplicate payments of the same charge with respect to any such
interest or delinquency costs of the Company regardless of whether multiple
demands are made by any or all of the RDC, the City, the LGCB, the
Administrative Agent or the Trustee, (iii) after a Completion Obligation
Default, the Completion Guarantors shall be liable for the joint benefit of the
Trustee, the City and the RDC, the Administrative Agent and the LGCB as their
interests may appear for damages to pay for the costs of performance of the
Completion Obligations arising from such Completion Obligation Default or such
other damages as may be available at law or in equity; provided that, in no
event shall the Completion Guarantors be liable for duplicate payments in
respect of such damages nor for more than one performance of the Completion
Obligations regardless of whether multiple demands are made by any or all of the
RDC, the City, the LGCB, the Administrative Agent or the Trustee, and (iv) after
a Preservation Obligation Default, the Completion Guarantors shall be liable for
the joint benefit of the Trustee, the City and the RDC, the Administrative Agent
and the LGCB as their interests may appear for damages to pay for the costs of
performance of the Preservation Obligations arising from such Preservation
Obligation Default; provided that, in no event shall the Completion Guarantors
be liable for duplicate payments in respect of such damages nor for more than
one performance of the Preservation Obligations regardless of whether multiple
demands are made by any or all of the RDC, the City, the LGCB, the
Administrative Agent or the Trustee.
(e) With respect to the Completion Obligations, each
Completion Guarantor specifically agrees that this Completion Guarantee
continues whether the Company or the Trustee (or any other agent of the Holders)
is lessee under the Lease.
(f) With respect to the Carry Obligations, each
Completion Guarantor specifically agrees that this Completion Guarantee is
intended as a contract to guarantee payment unconditionally and irrevocably on a
timely basis of all amounts included as Carry Obligations pursuant to Sections
1.1(b) and 1.2 hereof.
(g) No delay or failure by the Trustee to exercise
any remedy against the Completion Guarantors will be construed as a waiver of
that right or remedy.
2.5. The remedies set forth in Sections 2.4 and 7 hereof are
not intended to be exclusive of any remedies that the Trustee may have against
the Company under the Indentures or other documents or agreements referenced
therein or related thereto. The Completion Guarantors recognize that the choice
of remedies by the Trustee will necessarily and properly be a matter of the
Trustee's business judgment, which the passage of time and events may or may not
prove to have been the best choice to maximize recovery by the Trustee at the
lowest cost to the Company or the Completion Guarantors. Nevertheless, the
choice of alternatives by the Trustee shall not be subject to question or
challenge by the Completion Guarantors hereunder, nor shall any such choice be
asserted as a defense, set-off or basis for any claim of failure to mitigate
damages in any action or proceeding arising from this Completion Guarantee.
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3. Alteration of Obligations. In such manner, upon such terms and at
such times as the Trustee deems best, and without notice to either Completion
Guarantor, the Trustee or the Holders may, in accordance with the Indentures,
alter, compromise, accelerate, extend or change the time or manner for the
payment or performance of any of the Notes Obligations (as defined herein),
release the Company, by acceptance of a deed in lieu of foreclosure or
otherwise, as to all or any portion of the Notes Obligations, release,
substitute or add any one or more guarantors or endorsers, accept additional or
substitute security therefor, or release or subordinate any security therefor.
No exercise or non-exercise of any right hereby given to the Trustee, no dealing
by the Trustee, with the Completion Guarantors or any other guarantor, endorser
of the Notes or any other person, and no change, impairment or release of all or
any portion of the Notes Obligations or suspension of any right or remedy of the
Trustee against any person, including without limitation the Company or any
other such guarantor, endorser or other person, shall in any way affect any of
the Obligations or any security furnished by the Completion Guarantors or give
the Completion Guarantors any recourse against the Trustee. If the Trustee has
exculpated or hereafter exculpates the Company from personal liability in whole
or in part, or has agreed or hereafter agrees to look solely to the Collateral
or any other property for the satisfaction of the Company's obligations under
the Indentures or the Shared Security Documents, said exculpation and agreement
shall not affect the Obligations. Each Completion Guarantor further acknowledges
that any such exculpation or agreement that has been given or that is hereafter
given to the Company has been given or is given in reliance upon the covenants
of the Completion Guarantors contained herein.
4. Waiver
4.1. The Completion Guarantors represent, warrant and jointly
and severally agree that, as of the date of this Completion Guarantee, their
obligations under this Completion Guarantee are not subject to any recoupment,
counterclaims, offsets or defenses against the Trustee or the Company of any
kind. The Completion Guarantors further jointly and severally agree that their
obligations under this Completion Guarantee shall not be subject to any
counterclaims, offsets or defenses against the Trustee or against the Company of
any kind which may arise in the future. Each Completion Guarantor hereby
expressly waives and relinquishes all rights, defenses and remedies accorded by
applicable law to sureties or guarantors and agrees not to assert or take
advantage of any such rights, defenses or remedies, including without
limitation:
(a) any right to require the Trustee to proceed
against the Company, the Surety or any other person or to proceed against or
exhaust any security held by the Trustee at any time or to pursue any other
remedy in the power of the Trustee before proceeding against either or both of
the Completion Guarantors, including but not limited to any defense of failure
to join or non-joinder of the Company or any other person whatsoever in any
litigation instituted by the Trustee against either or both of the Completion
Guarantors;
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(b) the defense of the statute of limitations,
prescription, and preemption in any action hereunder or in any action for the
collection or performance of any of the Obligations;
(c) any defense that may arise by reason of the
discharge in bankruptcy, incapacity, lack of authority, death or disability of
any other person or the failure of the Trustee to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding) of
any other person;
(d) diligence, demand, presentment, protest and
notice of any kind (whether, for non-payment or protest or of acceptance,
maturity, extension of time, change in nature or form of the Obligations,
acceptance of further security, release of further security, composition or
agreement arrived at as to the amount of, or the terms of, the Obligations,
notice of adverse change in the Company's financial condition or any other fact
which might materially increase the risk to the Completion Guarantors),
including without limitation notice of the existence, creation or incurring of
any new or additional indebtedness or obligation or of any action or non-action
on the part of the Company, the Trustee any endorser or creditor of the Company
or either Completion Guarantor or on the part of any other person under this or
any other instrument in connection with any obligation or evidence of
indebtedness held by the Trustee as collateral or in connection with any of the
Notes Obligations;
(e) any defense based upon an election of remedies by
the Trustee, including, without limitation, an election to proceed by
nonjudicial rather than judicial foreclosure, which destroys or otherwise
impairs the subrogation rights of the Completion Guarantors, the right of the
Completion Guarantors to proceed against the Company for reimbursement, or both,
or any defense that the Trustee's claims against the Completion Guarantors are
barred or diminished or premature to the extent that the Trustee has or may have
remedies available against the Company;
(f) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal;
(g) any duty on the part of the Trustee to disclose
to the Completion Guarantors any facts the Trustee may now or hereafter know
about the Company, regardless of whether the Trustee has reason to believe that
any such facts materially increase the risk beyond that which the Completion
Guarantors intend to assume, or has reason to believe that such facts are
unknown to either Completion Guarantor, or has a reasonable opportunity to
communicate such facts to either Completion Guarantor, since each Completion
Guarantor acknowledges that it is fully responsible for being and keeping
informed of the financial condition of the Company and of all circumstances
bearing on the risk of non-payment of any of the Notes Obligations;
(h) any defense arising because of the election of
the Trustee in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code;
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(i) any defense based upon any borrowing or grant of
a security interest under Section 364 of the Bankruptcy Code;
(j) waiver or estoppel or any alleged lack of
reasonable or justifiable reliance on the part of the Trustee as to the
Completion Guarantors' representations;
(k) lack, failure or insufficiency of consideration;
(l) any alleged failure of the Trustee to mitigate
injuries, losses or damages or any plea that the Trustee has any duty to
mitigate injuries, losses, or damages prior to seeking recovery under this
Completion Guarantee; and
(m) any defense that the Trustee's claims hereunder
are or may be barred because an adequate remedy at law exists.
4.2. Each Completion Guarantor agrees to forbear from exercise
of any rights of subrogation, indemnity, or contribution against each other, the
Company, the Surety or any other person who may be liable for satisfaction of
the Completion Obligations or the Carry Obligations until such Obligations have
been fully satisfied as to the Trustee.
4.3. In the event of the commencement of a bankruptcy case by
or against any Completion
Guarantor,
(a) each Completion Guarantor agrees to waive the
automatic stay under the Bankruptcy Code and further agrees to the entry of an
immediate order from the Bankruptcy Court, on the Trustee's ex parte motion
granting to the Trustee a modification of the automatic stay (and/or recognition
that the automatic stay is not applicable) allowing it to fully enforce the
provisions of this Completion Guarantee, the Completion Guarantors hereby
agreeing that in such case, "cause," as defined by the Bankruptcy Code, would
exist for the immediate entry by the Bankruptcy Court of such an order modifying
the automatic stay;
(b) whether or not the Company shall have defaulted
in its obligations to complete the Phase I and II Construction, the Trustee
shall have an allowable claim against such Completion Guarantor in an amount
equal to the then estimated amount necessary to pay for the completion of the
Phase I and II Construction, and the Preservation Obligations and any Carry
Obligations through the then estimated date of completion of the Phase I and II
Construction. Any amounts paid on such claim shall be paid for the joint benefit
of the Trustee, the LGCB, the Administrative Agent, the City and the RDC, as
their interests may appear, and shall be used solely to complete, and pay any
costs in connection with the Completion Obligations, the Preservation
Obligations, and any Carry Obligations prior to such completion of, the Phase I
and II Construction. Upon completion of the Phase I and II Construction and the
payment of all costs, liens and claims related thereto, any unused portion of
such amounts paid in respect of any claim under this Section 4.3(b) shall be
promptly reimbursed to such Completion Guarantor. The Company shall be obligated
to promptly reimburse such Completion Guarantor
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for any such amounts paid by and not previously reimbursed to such Completion
Guarantor under this Section 4.3(b).
5. Subordination. All existing and future indebtedness of the Company
to either Completion Guarantor is hereby subordinated in accordance with this
Section 5 to all of the Notes Obligations. Without limiting the foregoing,
during any time in which there is a payment default under the Credit Agreement,
without the prior written consent of the Trustee, such subordinated indebtedness
shall not be paid or withdrawn in whole or in part, nor shall either Completion
Guarantor accept any payment of or on account of any such indebtedness or as a
withdrawal of capital while this Completion Guarantee is in effect.
6. Bankruptcy
6.1. So long as any Obligations are owed to the Trustee, no
Completion Guarantor shall, without the prior written consent of the Trustee
commence, or join with any other person in commencing, any bankruptcy,
reorganization or insolvency proceeding against the Company. Subject to Section
12 hereof, the Obligations shall not be altered, limited or affected by any
proceeding, voluntary or involuntary, involving the bankruptcy, reorganization,
insolvency, receivership, liquidation or arrangement of the Company, or by any
defense which the Company may have by reason of any order, decree or decision of
any court or administrative body resulting from any such proceeding.
6.2. So long as any Obligations are owed to the Trustee,
(a) each Completion Guarantor shall file, in any
bankruptcy or other proceeding in which the filing of claims is required or
permitted by law, all claims which such Completion Guarantor may have against
the Company relating to any indebtedness of the Company to such Completion
Guarantor, and hereby assigns to the Trustee all rights of such Completion
Guarantor thereunder as security for performance of the Obligations jointly with
such assignment to the LGCB under that certain LGCB Completion Guarantee between
the Completion Guarantors and the LGCB of even date herewith (the "LGCB
Completion Guarantee"), to the Administrative Agent under that certain Bank
Completion Guarantee between the Completion Guarantors and the Administrative
Agent of even date herewith (the "Bank Completion Guarantee") and to the City
and the RDC under that certain City/RDC Completion Guarantee between the
Completion Guarantors, the City and the RDC of even date herewith (the "City/RDC
Completion Guarantee").
(b) if either Completion Guarantor does not file any
such claim, the Trustee, as attorney-in-fact for such Completion Guarantor, is
hereby authorized to do so in the name of such Completion Guarantor jointly with
such authorization to the LGCB under the LGCB Completion Guarantee, to the
Administrative Agent under the Bank Completion Guarantee and to the City and the
RDC under the City/RDC Completion Guarantee, or, in the Trustee's, the LGCB's,
the Administrative Agent's, the City's, and the RDC's joint discretion, to
assign the claim to a joint nominee and to cause proofs of claim to be filed in
the name of such
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joint nominee as security for performance of the Obligations. The foregoing
power of attorney is coupled with an interest and cannot be revoked.
(c) the Trustee, jointly with the LGCB under the LGCB
Completion Guarantee, the Administrative Agent under the Bank Completion
Guarantee and the City and the RDC under the City/RDC Completion Guarantee, or a
joint nominee, as the case may be, shall have the right to accept or reject any
plan proposed in any such proceeding and to take any other action which a party
filing a claim is entitled to take. Any exercise or non-exercise of any such
right (i) by the Trustee under this Section 6.2(c), (ii) by the LGCB under the
Section 6.2(c) of the LGCB Completion Guarantee, (iii) by the Administrative
Agent under Section 6.2(c) of the Bank Completion Guarantee, and (iv) by the
City and the RDC under Section 6.2(c) of the City/RDC Completion Guarantee,
shall not impair or diminish the Completion Guarantors' obligations under this
Completion Guarantee. In all such cases, whether in administration, bankruptcy
or otherwise, the person authorized to pay such a claim shall pay the same to
the Trustee, the LGCB under the LGCB Completion Guarantee, the Administrative
Agent under the Bank Completion Guarantee, and the City and the RDC under the
City/RDC Completion Guarantee, as their interests may appear, as security for
performance of the Obligations, and, to the full extent necessary for that
purpose, each Completion Guarantor hereby assigns to the Trustee jointly with
such assignment to the LGCB under the LGCB Completion Guarantee, to the
Administrative Agent under the Bank Completion Guarantee and to the City and the
RDC under the City/RDC Completion Guarantee all of such Completion Guarantor's
rights to all such payments or distributions (other than with respect to
Purchased Bank Indebtedness, if any) to which such Completion Guarantor would
otherwise be entitled.
6.3. This Completion Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company or any Completion Guarantor for liquidation or reorganization,
should the Company or any Completion Guarantor become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's or any Completion
Guarantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount or
must otherwise be restored or returned by the Trustee, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
6.4. In the event that the Company is allowed any extension of
time in connection with any proceeding, voluntary or involuntary, involving the
bankruptcy, reorganization, insolvency, receivership, liquidation or arrangement
of the Company, to cure any default relating to the Phase I and II Construction,
such extension shall not extend the time by which the Completion Guarantors are
required to cause the completion of the Phase I and II Construction in
accordance with the provisions of this Agreement.
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7. Interest, Costs and Attorneys' Fees
7.1. If the Completion Guarantors fail to pay all or any
portion of any monetary amounts due as a part of the Obligations upon notice or
demand by the Trustee, the amount of such monetary portion of the Obligations
and all other sums payable by the Completion Guarantors to the Trustee hereunder
shall bear interest from the date of such notice or demand, as the case may be,
at two percent (2%) over the prime rate of interest charged by Citibank, N.A. at
its offices in New York, New York, to borrowers on ninety (90) day unsecured
commercial loans, as the same may be changed from time to time.
7.2. If, at any time following a default by the Company in the
performance of the Completion Obligations, the Carry Obligations or the
Preservation Obligations which default entitles the Trustee to require
performance hereunder (whether or not notice is actually given pursuant to
Section 2.1), the Trustee refers this Completion Guarantee to an attorney to
enforce, construe, or defend any provision hereof, or as a consequence of any
default hereunder by the Completion Guarantors, the Trustee shall employ counsel
for advice or representation or shall incur legal or other costs and expenses,
with or without the filing of any legal action or proceeding, in connection
with:
(a) any litigation, contest, dispute, suit,
proceeding or action (whether instituted by the Trustee, the Company, the
Completion Guarantors or any other person) in any way relating to the
enforcement of rights or remedies under this Completion Guarantee;
(b) any attempt to enforce any rights of the Trustee
hereunder against the Completion Guarantors or any other person;
(c) any attempt to defend any provision hereof; or
(d) the Performance Bond;
then, and in any such event, the attorneys' fees arising from such services,
including those of any appellate proceedings, and all expenses, costs, charges
and other fees incurred by such counsel and others in any way or respect arising
in connection with or relating to any of the events or actions described herein
shall be payable, on demand, by the Completion Guarantors to the Trustee or the
Completion Guarantors shall cause the Company to make such payment, and if not
so paid, shall be additional Obligations under this Completion Guarantee;
provided that upon any engagement of counsel (i) following a default by the
Company in the performance of the Obligations and (ii) prior to the date on
which the Trustee gives written notice pursuant to Section 2.1 (the "Notice
Date"), the Trustee shall make demand on the Company for any expenses of such
counsel incurred prior to the Notice Date and such expenses shall only become an
Obligation under this Completion Guarantee if the Company shall fail timely to
pay such expenses.
The reference to "attorneys' fees" in this Section 7.2 and in all other places
in this Completion Guarantee shall also include, without limitation, such
reasonable amounts as may then be
14
charged for costs and expenses of legal services furnished by attorneys retained
or employed by the Trustee. Such attorneys' fees shall include, without
limitation, those incurred in connection with any bankruptcy, reorganization,
insolvency, receivership, liquidation, arrangement, lawsuits in state or federal
court, or other similar proceedings involving either Completion Guarantor which
in any way affect the exercise by the Trustee of its rights and remedies
hereunder.
8. Cumulative Rights. All rights, powers and remedies of the Trustee
hereunder and under any other agreement now or at any time hereafter in force
between the Trustee and the Completion Guarantors, including without limitation
any other guarantee executed by either Completion Guarantor relating to any
indebtedness of the Company, shall be cumulative and not alternative, and such
rights, powers and remedies shall be in addition to all rights, powers and
remedies given to the Trustee and the Holders by law and shall not be deemed in
any way to extinguish or diminish the Trustee's rights and remedies. This
Completion Guarantee is in addition to and independent of the guarantee of any
guarantor of any Notes Obligations or other indebtedness of the Company.
9. Independent Obligations. The Obligations are independent of the
Notes Obligations, and, in the event of any default hereunder, a separate action
or actions may be brought and prosecuted against either Completion Guarantor,
whether or not the Company is joined therein or a separate action or actions are
brought against the Company. The Trustee's rights hereunder shall not be
exhausted by its exercise of any of its rights or remedies or by any such action
or by any number of successive actions unless and until all Obligations have
been satisfied and fully performed.
10. Application of Payments or Recoveries. Subject to the applicable
provisions of this Completion Guarantee and the terms of the Indentures, with or
without notice to either Completion Guarantor, the Trustee, in its sole
discretion, at any time and from time to time, and in such manner and upon such
terms as the Trustee deems fit, may apply any or all payments or recoveries from
the Company or from any other guarantor or endorser under any other instrument
or realized from any security, in such manner and order of priority as the
Trustee may determine, to any of the Notes Obligations, whether or not such
indebtedness is secured or is due at the time of such application.
11. Financial Statements. The Completion Guarantors hereby represent
and warrant that the information pertaining to the Completion Guarantors set
forth in their most recent filings with the Securities and Exchange Commission
is true and correct in all material respects, and fairly presents the financial
condition of the Completion Guarantors as of the respective dates indicated
therein and for the periods covered thereby, and that no material adverse change
has occurred in the financial condition or prospects of the Completion
Guarantors since the date of the latest information provided therein.
12. Suspension of or Excuse From Performance
12.1. Notwithstanding anything to the contrary in this
Completion Guarantee, if, at any time, there shall occur a Force Majeure with
respect to the Completion Obligations, then
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the Completion Obligations (but not the Carry Obligations) shall (except as
provided below in this Section) be suspended (the "Suspension") until such time
as such Force Majeure ends; provided, however, in no event shall the Suspension
(for Force Majeure) extend beyond eighteen (18) months from the date upon which
Notice of the Force Majeure was furnished to the LGCB, unless performance of the
Completion Obligations (in accordance with the terms of this Completion
Guarantee) are rendered impossible because of such Force Majeure and in such
event the Suspension shall continue until such time as such performance is no
longer impossible. During the period following any date of Suspension and until
the end of such Suspension, the Completion Guarantors shall each use their best
efforts to remove such Force Majeure.
12.2. The Completion Guarantors hereby agree that any
proceeding under any chapter of the Bankruptcy Code, in receivership, or any
other insolvency proceeding, whether voluntary or involuntary, by or against the
Company and/or any Completion Guarantor, shall not be considered, nor constitute
Force Majeure. The Completion Guarantors further agree that (i) any increase in
the costs to complete (including equipping) the Casino, whether or not such
increase in costs was anticipated and/or contemplated in the Approved Program
Plans, GDA and/or otherwise, (ii) the financial condition or financial inability
of the Company and/or any Completion Guarantor to complete (including equipping)
the Casino, (iii) any other adverse financial projections, financial forecasts,
financial events or financial conditions, and (iv) any failure to obtain funding
or financing (including amounts under the Credit Agreement), shall not be
considered, nor constitute Force Majeure.
12.3. The Obligations shall terminate upon the occurrence of
any of the following: (i) the termination of the Lease or the GDA other than as
a result of (a) the fault of or a breach or default by the Company or any
Completion Guarantor or (b) the voluntary termination of the Lease or the GDA by
the Company, (ii) Casino gaming operations shall no longer be permitted to be
conducted at the Casino or shall be modified, restricted, or limited in a manner
that materially diminishes the benefits afforded to the Company or the gaming
activities permitted to be conducted at the Casino pursuant to the Act (as
defined herein) by reason of a change of law or the enactment of a new law after
the Effective Date or by reason of the Company's rights under the Casino
Operating Contract having been terminated in any material respect, other than as
a result of the fault of or a breach by the Company or any Completion Guarantor,
subject to Section 12.4 hereof, (iii) only as to the Carry Obligations but not
as to the Completion Obligations or the Preservation Obligations, a Force
Majeure shall have continued for more than one (1) year from the first to occur
of a receipt of a notice from the Trustee to the Completion Guarantors pursuant
to Section 2.1 hereof or a similar notice to the Completion Guarantors from the
LGCB, the Administrative Agent, the City or the RDC (provided that the
Completion Guarantors shall have complied with the notice requirements of the
last sentence of Section 15 hereof in respect of any notices received under
Section 2.1 hereof), notwithstanding the Completion Guarantors' actual and
continuous best efforts to remove such Force Majeure; provided, however, that
the Completion Guarantors shall remain liable for all Carry Obligations that
actually came due through the expiration of such one (1) year period to the
extent not satisfied by the Company, and, provided further, that the Completion
Guarantors shall have used their best efforts to remove such Force Majeure
within said one (1) year period, or (iv) as to the
16
Carry Obligations, as of and upon the occurrence of the Termination of
Construction Date and as to the Completion Obligations and the Preservation
Obligations, upon the occurrence of the Completion Obligation Termination Date.
12.4. Upon the occurrence of any of the events described in
Section 12.3(ii) hereof prior to the occurrence of the Termination of
Construction Date, the Completion Guarantors shall nevertheless be obligated to
complete the Poydras Street Support Facility and the Poydras Tunnel Area (each
as defined in the GDA), exterior site and street work, and any improvements
required to be made to the Leased Premises (as defined in the Lease) so that it
may be used for any Highest and Best Use (as defined in the Lease) as required
by Section 4.20 of the Lease.
12.5. The Completion Guarantors and/or the Company shall give
Notice as provided in the Casino Operating Contract to the Trustee of any Force
Majeure within ten (10) days of the date upon which a Force Majeure event has
occurred; provided the remedy for a failure timely to give such Notice shall be
to cause the Suspension otherwise resulting from such Force Majeure to be waived
for any period of time from the occurrence of the Force Majeure until ten (10)
days prior to the furnishing of such Notice (of Force Majeure).
12.6. Other than as set forth in this Agreement and without
waiver of the terms and conditions of this Agreement, including, without
limitation, terms and conditions of the definition of Force Majeure and of this
Section 12, the Company and the Completion Guarantors waive their rights
pursuant to Articles 1873-1878 of the Louisiana Civil Code including, without
limitation, any right to claim excuse from performance or delay of performance
due to impossibility of performance of the Completion Obligations or a
fortuitous event.
13. Definitions. As used in this Completion Guarantee, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined).
"Act" shall mean the Louisiana Economic Development and Gaming
Corporation Act as set forth in LSA R.S. 27:201 et seq., adopted by the
Legislature of the State of Louisiana as Xx. 000, Xxxx 0000 as amended, and
regulations adopted thereunder, amendments and reenactment of LSA R.S.
36:801.1(A) and enactment of LSA R.S. 27:1 et seq., adopted by the Legislature
of the State of Louisiana as Act 7, First Extraordinary Session, 1996, and
regulations adopted thereunder; the Local Option Gaming election as set forth in
LSA R.S. 18:1300.21, adopted by the Legislature of the State of Louisiana as Act
57, First Extraordinary Session 1996, and the act adopted by the Legislature of
the State of Louisiana as Act 98, First Extraordinary Session, 1996.
"Casino - Phase I" shall mean the first phase of development
and construction of the Casino, consisting of a minimum of one hundred thousand
(100,000) square feet of net gaming space, approximately fifteen thousand
(15,000) square feet of multi-function, special event, food service and meeting
room space on the first floor of the Casino, the Poydras Tunnel Area, a two
hundred fifty (250) seat buffet on the first floor of the Casino and parking
facilities.
17
"Force Majeure" shall mean any of the following events or
circumstances, but only to the extent (a) they are not caused or fomented by the
Company, the Completion Guarantors or any affiliates of the Company or either
Completion Guarantor and (b) they delay the performance of the Completion
Obligations beyond the reasonable control of the Company and of the Completion
Guarantors:
(i) strikes, lockouts, labor disputes, inability to procure
materials (for which there is no suitable substitute or alternative that can be
timely obtained on reasonable commercial terms), failure of power;
(ii) material and adverse changes in Governmental Requirements
(as defined in the GDA) applicable to the construction of the Casino first
effective after the Plan Effective Date and after the submission to and approval
by the LGCB of the design thereof, and any material and adverse changes after
the Plan Effective Date in any orders (applicable to the Completion Obligations,
the Casino Premises or the Casino Property) of any federal, state, parish or
municipal governmental authority, including all executive, legislative, judicial
and administrative bodies thereof having jurisdiction over a party, the Casino
Premises, or the Casino Property (however, not including stop work orders due to
a building, safety or other code violation);
(iii) material and adverse changes in Governmental
Requirements first effective after the Plan Effective Date;
(iv) the breach by the LGCB of the Casino Operating Contract
(not caused or fomented by the Company, the Completion Guarantors, or any
affiliates of the Company or of either Completion Guarantor) or other action of
the LGCB (not caused or fomented by the Company, the Completion Guarantors, or
any affiliates of the Company or of either Completion Guarantor), including, as
to the required opening of the Casino-Phase I, the delay in the issuance of
required suitability findings and/or approvals required to open Casino - Phase I
for reasons not under the control of, or which could not have been avoided by
the exercise of due care of, the Company, the Completion Guarantors or any
affiliate of the Company or either Completion Guarantor;
(v) acts of God, tornadoes, hurricanes, floods, sinkholes,
fires and other casualties, landslides, earthquakes, epidemics, quarantine,
pestilence and abnormal inclement weather;
(vi) acts of public enemy, acts of war, terrorism, effects of
nuclear radiation, blockades, insurrections, riots, civil disturbances,
governmental preemption in connection with a national emergency, or national or
international calamity; and
(vii) any litigation not filed or fomented by the Company, the
Completion Guarantors, or any affiliates of either Completion Guarantor in which
any judgment, directive, ruling or order is entered by any judicial, regulatory
or administrative body which substantially restrains or substantially interferes
with the performance of the Completion Obligations.
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"GDA" shall mean the Amended and Restated General Development
Agreement entered into between the Rivergate Development Corporation, the
Company and the City pursuant to the Plan.
"Lease" shall mean the Amended and Restated Lease Agreement
entered into between the Rivergate Development Corporation, as landlord, the
Company, as tenant, and the City, as intervenor, pursuant to the Plan.
"Notes Obligations" shall mean any obligations of the Company
under the Notes, the Indentures, the Shared Security Documents or any related
documents for the benefit of the Trustee or the Holders executed by the Company
concurrently therewith.
"Phase I and II Construction" shall have the meaning set forth
in the GDA.
"Second Floor Shell Construction - Phase II" shall mean the
second phase of development and construction of the Casino on the second floor
of the Casino, which shall consist of shell construction of the second floor
non-gaming space to the stage where it is ready for tenant improvement and build
out for non-gaming entertainment purposes; provided that the build out of the
tenant improvements and the occupancy and opening for business of such second
floor non-gaming development shall not be a part of this phase and may occur
after completion of Casino - Phase I and completion of such tenant improvements
is not part of the Obligations.
"Termination of Construction Date" shall mean that date by
which:
(i) a temporary certificate of occupancy has been
issued for Casino - Phase I by the building department and other relevant
agencies;
(ii) all required permits with respect to the Phase I
and II Construction have been obtained by the Company;
(iii) a notice of completion has been duly recorded
with respect to the Phase I and II Construction;
(iv) an officers' certificate of the Completion
Guarantors has been delivered to the Trustee certifying that the Termination of
Construction Date has occurred;
(v) the Casino is equipped and ready to open for
business as a casino gaming operation;
(vi) a certificate has been delivered by the general
contractor and the project architect to the Trustee for Phase I and Phase II
Construction certifying that Phase I and Phase II Construction has been
substantially completed in accordance with the plans and specifications therefor
and all applicable building laws, ordinances and regulations; and
(vii) Casino - Phase I has opened for business as a
casino gaming operation so long as any necessary regulatory approval from the
LGCB or any other State of
19
Louisiana regulatory authorities have been received or if such approvals have
not been received, even though timely receipt of any such approvals has been
diligently pursued by or on behalf of the Company, Casino - Phase I is in a
condition to receive customers in the ordinary course of business.
14. Completion Obligation Termination Date
14.1. Notwithstanding the occurrence of the Termination of
Construction Date, the Completion Guarantors shall continue to be obligated for
payment or making satisfactory provisions for payment as they come due of all
costs of completing the Phase I and II Construction and for all materialmen's
claims, mechanics' liens or other claims, liens or claims for liens arising from
the furnishing of labor, materials, supplies, other equipment for the Phase I
and II Construction or Minimum FF& E. The date on which all such payments or
satisfactory provisions for all such payments have been made, all lien periods
with respect to the Phase I and II Construction have expired and no liens or
privileges arising from the furnishing of labor, materials, supplies or
equipment for the Phase I and II Construction affecting or purporting to affect
the Leased Premises remain of record in Orleans Parish is herein referred to as
the "Completion Obligation Termination Date."
14.2. For purposes of this Completion Guarantee, in respect of
any Completion Obligations or Carry Obligations not satisfied as of the
Termination of Construction Date, satisfactory provision for payment of claims,
liens and claims for liens shall be deemed to have been made if (a) in respect
of any liens or claims for liens but not non-lien claims, a bond has been
established in accordance with the terms of LSA R.S. 9:4801 et seq., (b) in
respect of any non-lien claims but not liens or claims for liens, an escrow,
letter of credit or trust account for payment has been established in an amount
at least equal to one hundred five percent (105%) of the total of such
outstanding claims, liens and claims for liens with or by an independent third
party, (c) in respect of any non-lien claims, the total of such outstanding
non-lien claims has been guaranteed under a payment guarantee from a party other
than either Completion Guarantor (or any affiliate thereof) rated as an
investment grade credit by a nationally recognized credit rating agency, or (d)
other provision has been made satisfactory to the Trustee.
15. Notices. Whenever the Completion Guarantors or the Trustee shall
desire to give or serve any notice, demand, request or other communication with
respect to this Completion Guarantee, each such notice shall be in writing and
shall be effective only if the same is delivered by personal service, overnight
courier service, or mailed by certified mail, postage prepaid, return receipt
requested, addressed as follows:
20
(a) if to either Completion Guarantor;
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to the Corporate Secretary at the
same address
(b) if to the Company:
Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: President
(c) if to the Surety:
Reliance Insurance Company
Four Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Claims Department
and
United States Fidelity and Guaranty Company
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Claims Department
(d) if to the Trustee, as provided in the Indentures;
or at such other address as shall have been furnished in writing by any person
described above to the party required to give notice hereunder.
Any such notice delivered personally shall be deemed to have
been received upon delivery. Any of the Completion Guarantors, the Company, the
Surety or the Trustee may change its address by giving the others written notice
of the new address as herein provided.
Any notice given or received by any Completion Guarantor to or
from the City or the RDC under the City/RDC Completion Guarantee, to or from the
Administrative Agent under the Bank Completion Guarantee or to or from the LGCB
under the LGCB Completion Guarantee
21
shall be immediately forwarded by such Completion Guarantor to the Trustee at
the address set forth above.
16. Successors and Assigns. This Completion Guarantee shall inure to
the benefit of the Trustee, its successors and assigns, including the assignees
of any Obligations, and shall bind the heirs, executors, administrators,
personal representatives, successors and assigns of each Completion Guarantor.
This Completion Guarantee may be assigned by the Trustee, in its sole
discretion, with respect to all or any portion of the Obligations, and when so
assigned the Completion Guarantors shall be liable to the assignees under this
Completion Guarantee without in any manner affecting the liability of the
Completion Guarantors with respect to any Obligations retained by the Trustee.
Neither Completion Guarantor may assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the
Trustee.
17. Miscellaneous Provisions
17.1. THIS COMPLETION GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK. EACH
COMPLETION GUARANTOR HEREBY SUBMITS TO PERSONAL JURISDICTION AND WAIVES
OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. SERVICE OF
PROCESS ON THE COMPLETION GUARANTORS IN ANY ACTION ARISING OUT OF OR RELATING TO
THIS COMPLETION GUARANTEE SHALL BE EFFECTIVE IF MAILED TO THE COMPLETION
GUARANTORS IN ACCORDANCE WITH SECTION 15 HEREOF. NOTHING HEREIN SHALL PRECLUDE
THE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION.
17.2. This Completion Guarantee shall constitute the entire
agreement of the Completion Guarantors with the Trustee with respect to the
subject matter hereof, and no representation, understanding, promise or
condition concerning the subject matter hereof shall be binding upon the Trustee
unless expressed herein.
17.3. Should any term, covenant, condition or provision of
this Completion Guarantee be determined to be illegal or unenforceable, it is
the intent of the parties that all other terms, covenants, conditions and
provisions hereof shall nevertheless remain in full force and effect.
17.4. Time is of the essence to this Completion Guarantee and
each of its provisions.
17.5. When the context and construction so require, all words
used in the singular herein shall be deemed to include the plural, the masculine
shall include the feminine and neuter, and vice versa.
22
17.6. The word "person" as used herein shall include any
individual, company, firm, association, partnership, limited liability company,
joint venture, corporation, trust or other legal entity of any kind whatsoever.
17.7. No provision of this Completion Guarantee or right
granted to the Trustee hereunder can be waived in whole or in part, nor can
either Completion Guarantor be released from such Obligations, except by a
writing duly executed by an authorized officer of the Trustee. No provision of
this Completion Guarantee or any of the Obligations may be amended without the
prior written consent of the Completion Guarantors and the Trustee and the
consent of any additional beneficiaries hereof shall not be required.
17.8. The Trustee need not inquire into the power of the
Company or the authority of their officers, shareholders or agents acting or
purporting to act on their behalf.
17.9. The headings of this Completion Guarantee are inserted
for convenience only and shall have no effect upon the construction or
interpretation thereof.
17.10. This Completion Guarantee shall be for the sole benefit
of the Trustee, the Holders, and their respective successors and assigns. The
provisions of this Completion Guarantee shall not inure to the benefit of any
other person, including, without limitation, the Company.
17.11. Notwithstanding the foregoing, in the event that the
Completion Guarantors, or either of them, shall enter into the LGCB Completion
Guarantee, the Bank Completion Guarantee or the City/RDC Completion Guarantee,
or any supplemental agreement with respect thereto and such LGCB Completion
Guarantee, Bank Completion Guarantee or the City/RDC Completion Guarantee or
amendment or supplement thereto or the obligations created thereby provides
rights or remedies to the LGCB, the Administrative Agent, the City or the RDC
that are more favorable in any respect than the rights and remedies granted to
the Trustee hereunder (as this Completion Guarantee may from time to time be
amended), the Trustee shall be deemed to have available to it, at its option,
the benefit of the more favorable rights and remedies implemented by such LGCB
Completion Guarantee, Bank Completion Guarantee or City/RDC Completion Guarantee
or amendment or supplemental agreement and shall not under any circumstances be
deemed to have agreed to or become subject to any alterations in the LGCB
Completion Guarantee, the Bank Completion Guarantee or the City/RDC Completion
Guarantee, or any provisions of a supplemental agreement among the Completion
Guarantors, the LGCB, the Administrative Agent, the City and/or the RDC, that
are less favorable than the rights and remedies granted to the Trustee
hereunder.
18. Obligations of Surety. Notwithstanding anything to the contrary in
this Completion Guarantee, nothing herein shall expand or enlarge or otherwise
modify the obligations of the Surety pursuant to the Performance Bond.
19. Effectiveness. This Completion Guarantee shall be effective upon
the occurrence of the Effective Date. If such Effective Date shall not occur,
this Completion Guarantee shall be
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null and void and of no force or effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have each executed this
Completion Guarantee as of the date first above written.
COMPLETION GUARANTORS:
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, XX
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Name: Xxxxxx X. Xxxxxxxx, XX
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Title: Vice President
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XXXXXX'X OPERATING COMPANY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, XX
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Name: Xxxxxx X. Xxxxxxxx, XX
----------------------------------
Title: Vice President
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Accepted and agreed:
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
