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EXHIBIT 4.04
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement"), dated as of March 30, 2001,
made by each of the undersigned (each, a "Party" and, together with any entity
that becomes a Party to this Agreement pursuant to Section 8 hereof, the
"Parties") and THE BANK OF NEW YORK, as collateral agent (in such capacity,
collectively, the "Collateral Agent"), for the benefit of the Senior Creditors
(as defined below). Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings assigned to them in the Senior Note Indenture
referred to below.
WITNESSETH:
WHEREAS, 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
(the "Trustee"), have entered into an Indenture, dated as of March 30, 2001, (as
amended, modified or supplemented from time to time, the "Senior Note
Indenture," and together with the Senior Notes and all other documents and
agreements relating thereto are herein called the "Senior Note Documents"),
pursuant to which the Company (x) will initially issue $124,520,000 in aggregate
principal amount of its Senior Notes due 2008 and (y) may, in accordance with
the terms of the Senior Note Indenture, issue additional principal amounts of
its Senior Notes due 2008 as a result of its payment of interest in Secondary
Securities, as defined in the Senior Note Indenture (with all Senior Notes
issued as contemplated by preceding clauses (x) and (y), together with any
securities issued in replacement or substitution therefor, being herein called
the "Senior Notes");
WHEREAS, pursuant to Article X of the Senior Note Indenture,
JCC Holding and various of its Subsidiaries (other than JCC) have jointly and
severally guaranteed (the "Senior Note Guaranty") to the Senior Note Creditors
the payment when due of all obligations and liabilities of JCC under or with
respect to the Senior Note Documents;
WHEREAS, it is a condition precedent to the making of loans or
advances by any Unrestricted Subsidiary to JCC Holding, JCC or any Subsidiary
Guarantor, in each case under Section 5.19 of the Senior Note Indenture, that
this Agreement be executed and delivered by the Parties hereto, at the time of
or prior to the making of such loans or advances;
WHEREAS, it is a condition precedent to the extensions of
credit under the Senior Note Documents that this Agreement be executed and
delivered by the original Parties hereto;
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WHEREAS, additional Parties may from time to time become
parties hereto in order to allow for certain extensions of credit in accordance
with the requirements of the Senior Note Documents;
WHEREAS, each of the Parties hereto desires to execute this
Agreement to satisfy the conditions described in the immediately preceding
paragraphs.
NOW, THEREFORE, in consideration of the mutual premises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the Parties
and the Collateral Agent (for the benefit of the holders from time to time of
Senior Indebtedness) hereby agree as follows:
1. The Subordinated Debt (as defined in Section 6 hereof) and
all payments of principal, interest, and all other amounts thereunder are
hereby, and shall continue to be, subject and subordinate in right of payment to
the prior payment in full, in cash, of all Senior Indebtedness (as defined in
Section 6 hereof) to the extent, and in the manner set forth herein. The
foregoing shall apply, notwithstanding the availability of other collateral to
the Senior Creditors (as defined in Section 6 hereof) or the holders of
Subordinated Debt or the actual date and time of execution, delivery,
recordation, filing or perfection of any security interests granted with respect
to the Senior Indebtedness or the Subordinated Debt, or the lien or priority of
payment thereof, and in any instance wherein the Senior Indebtedness or any
claim for the Senior Indebtedness is subordinated, avoided or disallowed, in
whole or in part, under Title 11 of the United States Code (the "Bankruptcy
Code") or other applicable federal, foreign, state or local law. In the event of
a proceeding, whether voluntary or involuntary, for insolvency, liquidation,
reorganization, dissolution, bankruptcy or other similar proceeding pursuant to
the Bankruptcy Code or other applicable federal, foreign, state or local law
(each, a "Bankruptcy Proceeding"), the Senior Indebtedness shall include all
interest accrued on the Senior Indebtedness, in accordance with and at the rates
specified in the Senior Indebtedness, both for periods before and for periods
after the commencement of any of such proceedings, even if the claim for such
interest is not allowed pursuant to the Bankruptcy Code or other applicable law.
2. Each Party (as a lender of any Subordinated Debt) hereby
agrees that until all Senior Indebtedness has been repaid in full in cash:
(a) Such Party shall not, without the prior written consent of
the Required Senior Creditors (as defined in Section 6 hereof), which consent
may be withheld or conditioned in the Required Senior Creditors' sole
discretion, commence, or join or participate in, any Enforcement Action
(hereinafter defined).
The term "Enforcement Action" shall mean any acceleration of
all or any part of the Subordinated Debt, any foreclosure proceeding, the
exercise of any power of sale, the obtaining of a receiver, the seeking of
default interest, the suing on, or otherwise taking action to enforce any
obligation of JCC Holding, the Company or any Subsidiary Guarantor to pay any
amounts relating to any Subordinated Debt, the exercising of any banker's lien
or rights of set-off or recoupment, the institution of a Bankruptcy Proceeding
against JCC Holding, the Company or
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any Subsidiary Guarantor, or the taking of any other enforcement action against
any asset or Property of JCC Holding, the Company or any Subsidiary Guarantor;
(b) In the event that (i) all or any portion of any Senior
Indebtedness becomes due (whether at stated maturity, by acceleration or
otherwise), (ii) any Event of Default under the Senior Note Indenture or any
event of default under, and as defined in, any other Senior Indebtedness, then
exists or would result from such payment on the Subordinated Debt (including,
without limitation, pursuant to Section 5.5 of the Senior Note Indenture), (iii)
any Party receives any payment or prepayment of principal or interest, in whole
or in part, of (or with respect to) the Subordinated Debt contrary to the terms
of the Subordinated Debt or in violation of the terms of the Senior Note
Indenture or any other Senior Indebtedness or (iv) any distribution, division or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, is made of all or any part of the property, assets or business of
JCC Holding, the Company or any Subsidiary Guarantor or the proceeds thereof, in
whatever form, to any creditor or creditors of JCC Holding, the Company or any
Subsidiary Guarantor or to any holder of indebtedness of JCC Holding, the
Company or any Subsidiary Guarantor or by reason of any liquidation, dissolution
or other winding up of JCC Holding, the Company or any Subsidiary Guarantor or
their respective business, or of any receivership or custodianship for JCC
Holding, the Company or any Subsidiary Guarantor or of all or substantially all
of their respective property, or of any insolvency or bankruptcy proceedings or
assignment for the benefit of creditors or any proceeding by or against JCC
Holding, the Company or any Subsidiary Guarantor for any relief under any
bankruptcy, reorganization or insolvency law or laws, federal, foreign, state or
local, or any law, federal, foreign, state or local relating to the relief of
debtors, readjustment of indebtedness, reorganization, composition or extension,
then, and in any such event, any payment or distribution of any kind or
character, whether in cash, property or securities which shall be payable or
deliverable with respect to any or all of the Subordinated Debt or which has
been received by any Party shall be held in trust by such Party for the benefit
of the Senior Creditors and shall forthwith be paid or delivered directly to the
Senior Creditors for application to the payment of the Senior Indebtedness to
the extent necessary to make payment in full in cash of all sums due under the
Senior Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution to the Senior Creditors. In any such event, the Senior
Creditors may, but shall not be obligated to, demand, claim and collect any such
payment or distribution that would, but for these subordination provisions, be
payable or deliverable with respect to the Subordinated Debt. In the event of
the occurrence of any event referred to in clauses (i), (ii), (iii) or (iv)
above and until the Senior Indebtedness shall have been fully paid in cash and
satisfied and all of the obligations of JCC Holding, the Company and the
Subsidiary Guarantors to the Senior Creditors have been performed in full, no
payment of any kind or character (whether in cash, property, securities or
otherwise) shall be made to or accepted by any Party in respect of the
Subordinated Debt. Notwithstanding anything to the contrary contained above, if
one or more of the events referred to in clauses (i) through (iii) of the first
sentence of this clause (b) is in existence (and no event of the type described
in clause (iv) of the first sentence of this clause (b) is in existence), the
Required Senior Creditors may agree in writing that payments may be made with
respect to the Subordinated Debt which would otherwise be prohibited pursuant to
the provisions contained above, provided that any such waiver shall be
specifically limited to the respective payment or payments which the Required
Senior Creditors agree may be so paid to any Party in respect of the
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Subordinated Debt. In the circumstances described in clause (iv) of the first
sentence of this Section 2(b), no waiver shall be effective unless signed by all
Senior Creditors as same exist at the time the respective distribution or
payment is made;
(c) If any Party shall acquire by indemnification, subrogation
or otherwise, any lien, estate, right or other interest in any of the assets or
properties of JCC Holding, the Company or any Subsidiary Guarantor, that lien,
estate, right or other interest shall be subordinate in right of payment to the
Senior Indebtedness and the lien of the Senior Indebtedness as provided in the
various Security Documents, and any Party hereby waives any and all rights it
may acquire by subrogation or otherwise to any lien of the Senior Indebtedness
or any portion thereof until such time as all Senior Indebtedness has been
repaid in full in cash;
(d) No party shall pledge, assign, hypothecate, transfer,
convey or sell any Subordinated Debt or any interest in any Subordinated Debt to
any entity without the prior written consent of the Required Senior Creditors;
(e) After request by the Collateral Agent, the Trustee, the
Required Holders or the Required Senior Creditors, each Party shall within ten
(10) days furnish the Senior Creditors with a statement, duly acknowledged and
certified setting forth the original principal amount of the notes evidencing
the indebtedness of the Subordinated Debt, the unpaid principal balance, all
accrued interest but unpaid interest and any other sums due and owing
thereunder, the rate of interest, the monthly payments and that to the best
knowledge of Subordinate Lender there exists no defaults under the Subordinated
Debt, or if any such defaults exist, specifying the defaults and the nature
thereof;
(f) In any case commenced by or against JCC Holding, the
Company or any Subsidiary Guarantor under Chapter 11 of the Bankruptcy Code or
any other Bankruptcy Proceeding, the Required Senior Creditors shall have the
exclusive right to exercise any voting rights in respect of the claims of any
Party against JCC Holding, the Company or any Subsidiary Guarantor;
(g) If, at any time, all or part of any payment with respect
to Senior Indebtedness theretofore made (whether by JCC Holding, the Company,
any Subsidiary Guarantor or any other Person or enforcement of any right of
setoff or otherwise) is rescinded or must otherwise be returned by the holders
of Senior Indebtedness for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of JCC Holding, the Company, any
Subsidiary Guarantor or such other Persons), the subordination provisions set
forth herein shall continue to be effective or be reinstated, as the case may
be, all as though such payment had not been made;
(h) No party shall object to the entry of any order or orders
approving any cash collateral stipulations, adequate protection stipulations or
similar stipulations executed by the Senior Creditors in any proceeding under
the Bankruptcy Code or any other Bankruptcy Proceeding; and
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(i) Each Party waives any marshalling rights with respect to
the Senior Creditors in any proceeding under the Bankruptcy Code or any other
Bankruptcy Proceeding.
3. Each Party hereby represents, warrants and covenants as
follows:
(a) Each Party hereby represents and warrants that Schedule I
hereto sets forth a true and correct list of all Subordinated Debt held by each
Party as of the date hereof, and hereby agrees to deliver a supplement to
Schedule I to the Collateral Agent within 10 days after any request by the
Collateral Agent, the Trustee, the Required Holders or the Required Senior
Creditors (although any failure to deliver such a supplement shall have no
effect whatsoever on the subordination provisions contained herein, which shall
apply to such Subordinated Debt whether or not listed on Schedule I); and
(b) Each Party hereby covenants and agrees to cause to that it
will not lend, hold or permit to exist any Subordinated Debt owed to it (in
accordance with the definition thereof contained herein) unless the obligor with
respect to such Subordinated Debt is (or concurrently with such extension
becomes) a Party to this Agreement.
4. Any payments made to, or received by, any Party in respect
of any guaranty or security in support of the Subordinated Debt shall be subject
to the terms of this Subordination Agreement and applied on the same basis as
payments made directly by the obligor under such Subordinated Debt. To the
extent that JCC Holding, the Company or any of the Subsidiaries of JCC Holding
(other than the respective obligor or obligors which are already Parties hereto)
provides a guaranty or any security in support of any Subordinated Debt, the
Party which is the lender of the respective Subordinated Debt will cause each
such Person to become a Party hereto (if such Person is not already a Party
hereto) not later than the date of the execution and delivery of the respective
guarantee or security documentation, provided that any failure to comply with
the foregoing requirements of this Section 4 will have no effect whatsoever on
the subordination provisions contained herein (which shall apply to all payments
received with respect to any guarantee or security for any Subordinated Debt,
whether or not the Person furnishings such guarantee or security is a Party
hereto).
5. Each Party hereby acknowledges and agrees that no payments
will be accepted by it in respect of the Subordinated Debt (unless promptly
turned over to the holders of Senior Indebtedness as contemplated by Section 2
above) to the extent such payments would be prohibited under any Senior
Indebtedness.
6. Definitions. As and in this Agreement, the terms set forth
below shall have the respective meanings provided below:
"Agreement" shall have the meaning provided in the first
paragraph hereof.
"Bankruptcy Code" shall have the meaning assigned that term in
Section 1.
"Bankruptcy Proceeding" shall have the meaning assigned that
term in Section 1.
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"Canal Development" shall have the meaning assigned that term
in the Recitals to this Agreement.
"Collateral Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Company" shall have the meaning assigned that term in the
Recitals to this Agreement.
"Enforcement Action" shall have the meaning assigned that term
in Section 2(a).
"Xxxxxx Development" shall have the meaning assigned that term
in the Recitals to this Agreement.
"Intercreditor Agreement" shall have the meaning assigned at
term in the Senior Note Indenture.
"JCC" shall have the meaning assigned that term in the
Recitals to this Agreement.
"JCC Development" shall have the meaning assigned that term in
the Recitals to this Agreement.
"JCC Holding" shall have the meaning assigned that term in the
Recitals to this Agreement.
"Obligation" shall mean any principal, interest, premium,
penalties, fees, indemnities and other liabilities and obligations
payable under the documentation governing any Senior Indebtedness
(including, without limitation, all interest after the commencement of
any bankruptcy, insolvency, receivership or similar proceeding at the
rate provided in the governing documentation, whether or not such
interest is an allowed claim in such proceeding).
"Party" shall have the meaning provided in the first paragraph
of this Agreement.
"Required Senior Creditors" shall mean that any time the
Required Secured Creditors under, and as defined in, the Intercreditor
Agreement.
"Senior Creditors" shall mean all holders from time to time of
any Senior Indebtedness and shall include, without limitation, (x) all
Holders, from time to time, of the Senior Notes and (y) all other
Secured Creditors under, and as defined in, the Intercreditor
Agreement.
"Senior Indebtedness" shall mean, with respect to JCC Holding,
the Company or any Subsidiary Guarantor, (x) all Obligations (including
Obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of the
respective such Person to the holders from time to time of the Senior
Notes, now existing or hereafter incurred under, arising out of or in
connection with the
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Senior Notes or any other Senior Note Documents (including, without
limitation, all such obligations and liabilities under any guarantees
relating thereto) and the due performance and compliance by the
respective such Person with the terms of each such Senior Note Document
(all such obligations and liabilities under this clause being herein
collectively called the "Senior Note Obligations") and (y) all other
Obligations under, and as defined, in the Intercreditor Agreement.
"Senior Note Document Obligations Termination Date" shall mean
the first date after the Issue Date upon which all obligations pursuant
to the Senior Note Indenture have terminated and all Senior Obligations
have been paid in full in cash.
"Senior Note Documents" shall have the meaning assigned that
term in the Recitals to this Agreement.
"Senior Note Guaranty" shall have the meaning assigned that
term in the Recitals to this Agreement.
"Senior Note Indenture" shall have the meaning assigned that
term in the Recitals to this Agreement.
"Senior Notes" shall have the meaning assigned that term in
the Recitals to this Agreement.
"Subordinated Debt" shall mean the principal of, interest on,
and all other amounts owing from time to time in respect of all loans
and advances (and any other Indebtedness) at any time or from time to
time made by any Unrestricted Subsidiary to JCC Holding, JCC or any
Subsidiary Guarantor (or at any time owing by JCC Holding, JCC or any
Subsidiary Guarantor to any Unrestricted Subsidiary) including without
limitation all amounts so owing pursuant to any guarantees thereof or
security therefor.
"Trustee" shall have the meaning assigned that term in the
Recitals to this Agreement.
7. Each Party agrees to be fully bound by all terms and
provisions contained in this Agreement, both with respect to any Subordinated
Debt (including any guarantees thereof and security therefor) owed to it, and
with respect to all Subordinated Debt (including all guarantees thereof and
security therefor) owing by it.
8. It is understood and agreed that any Credit Party or any
Subsidiary or Affiliate of the Company that is required to execute a counterpart
of this Agreement after the date hereof pursuant to the requirements of the
Senior Note Indenture or any other Senior Note Document shall become a Party
hereunder by executing a counterpart hereof (or an assumption agreement in form
and substance satisfactory to this Collateral Agent) and delivering same to the
Collateral Agent.
9. No failure or delay on the part of any party hereto or any
holder of Senior Indebtedness in exercising any right, power or remedy hereunder
shall operate as a waiver
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thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
10. Each Party hereto acknowledges that to the extent that no
adequate remedy at law exists for breach of its obligations under this
Agreement, in the event any Party fails to comply with its obligations
hereunder, the Collateral Agent or the holders of Senior Indebtedness shall have
the right to obtain specific performance of the obligations of such defaulting
Party, injunctive relief or such other equitable relief as may be available.
11. Any notice to be given under this Agreement shall be in
writing and shall be sent in accordance with the provisions of the Intercreditor
Agreement.
12. In the event of any conflict between the provisions of
this Agreement and the provisions of the Subordinated Debt the provisions of
this Agreement shall prevail.
13. No person other than the parties hereto, the Senior
Creditors from time to time and their successors and assigns as holders of the
Senior Indebtedness and the Subordinated Debt shall have any rights under this
Agreement.
14. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
15. No amendment, supplement, modification, waiver or
termination of this Agreement shall be effective against a party against whom
the enforcement of such amendment, supplement, modification, waiver or
termination would be asserted, unless such amendment, supplement, modification,
waiver or termination was made in a writing signed by such party, provided that
amendments hereto shall be effective as against the Senior Creditors if executed
and delivered by the Required Senior Creditors at such time.
16. In case any one or more of the provisions confined in this
Agreement, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein, and any other application thereof, shall
not in any way be affected or impaired thereby.
17. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER SENIOR NOTE DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION
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OF THE AFORESAID COURTS. EACH OF THE PARTIES HEREBY FURTHER IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH PARTY, AND AGREES NOT
TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY SENIOR NOTE DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS,
THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH PARTY. EACH PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PARTY AT ITS ADDRESS
SET FORTH IN ARTICLE 11 OF THE SENIOR NOTE INDENTURE, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER
ANY OTHER SENIOR NOTE DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY RECIPIENT
UNDER THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER
JURISDICTION. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER SENIOR NOTE DOCUMENTS BROUGHT IN THE COURTS REFERRED TO ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE SENIOR NOTE DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
18. This Agreement shall bind and inure to the benefit of the
Collateral Agent, the Senior Creditors and each Party and their respective
successors, permitted transferees and assigns.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
JCC HOLDING COMPANY
By
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Title:
JAZZ CASINO COMPANY, L.L.C.
By
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Title:
JCC CANAL DEVELOPMENT, L.L.C.
By
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Title:
JCC XXXXXX DEVELOPMENT, L.L.C.
By
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Title:
JCC DEVELOPMENT COMPANY, L.L.C.
By
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Title:
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THE BANK OF NEW YORK,
as Collateral Agent
By
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Name:
Title:
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