INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (as amended, modified or supplemented
from time to time, this "Agreement"), dated as of October 29, 1998, among (u)
Xxxxxx'x Entertainment, Inc., a Delaware corporation ("HET"), Xxxxxx'x Operating
Company, Inc., a Delaware corporation ("HOC"), and any other successor or
substitute entity which becomes a party hereto as a Minimum Payment Guarantor
after the date hereof (with HET, HOC and each other such Minimum Payment
Guarantor being herein each called a "Minimum Payment Guarantor" and,
collectively, the "Minimum Payment Guarantors"), (v) Bankers Trust Company, in
its capacity as Administrative Agent (together with any successor Administrative
Agent, the "Administrative Agent"), for the Banks (as hereinafter defined) and
any other lenders under the Credit Agreement hereinafter referred to (such
Banks, the Administrative Agent and other lenders, if any, are hereinafter
called the "Bank Creditors"), (w) Norwest Bank Minnesota, National Association,
as trustee (together with any successor trustee, in such capacity, the "Senior
Subordinated Note Trustee"), for the holders from time to time of the Senior
Subordinated Notes as hereinafter defined (such holders of the Senior
Subordinated Notes are hereinafter called the "Senior Subordinated Note
Holders", and together with the Senior Subordinated Note Trustee, the "Senior
Subordinated Note Creditors"), (x) Norwest Bank Minnesota, National Association,
as trustee (together with any successor trustee, in such capacity, the "Senior
Subordinated Contingent Note Trustee"), for the holders from time to time of the
Senior Subordinated Contingent Notes as hereinafter defined (such holders of the
Senior Subordinated Contingent Notes are hereinafter called the "Senior
Subordinated Contingent Note Holders," and together with the Senior Subordinated
Contingent Note Trustee, the "Senior Subordinated Contingent Note Creditors" and
together with the Senior Subordinated Note Creditors, the "New Bond Creditors"),
(y) if one or more Banks (or any Affiliate thereof) enter into one or more
interest rate protection agreements (including, without limitation, interest
rate xxxxxx, swaps, caps, floors, collars and similar agreements, collectively,
the "Interest Rate Protection Agreements") with, or guaranteed by, the Borrower
(as hereinafter defined), any such Bank or Banks or any Affiliate of any such
Bank or Banks (even if any such Bank subsequently ceases to be a Bank under the
Credit Agreement for any reason) so long as any such Bank or Affiliate thereof
participates in the extension of such Interest Rate Protection Agreements and
their subsequent assigns, if any (collectively, the "Other Creditors" and,
together with the Minimum Payment Guarantors, the Bank Creditors and the New
Bond Creditors, are hereinafter called the "Secured Creditors") and (z) The Bank
of New York, as Collateral Agent (as hereinafter defined). Capitalized terms
used herein and defined in Section 12 hereof shall have the meaning so provided
therein.
W I T N E S S E T H :
WHEREAS, HET and HOC have jointly and severally provided the
initial Minimum Payment Guaranty, and HET and HOC (and/or one or more other
Minimum Payment Guarantors) may hereafter provide one or more substitute or
replacement Minimum Payment Guaranties and HET, HOC and the Borrower (as
hereinafter defined) have entered into that certain HET/JCC Agreement dated
October 30, 1998 (as amended, supplemented or modified, the "HET/JCC
Agreement");
WHEREAS, JCC Holding Company ("JCC Holding"), Jazz Casino
Company, L.L.C. (the "Borrower"), the lenders (the "Banks") from time to time
party thereto, and the Administrative Agent have entered into a Credit
Agreement, dated as of October 29, 1998, providing for the making of loans and
the issuance of, and participation in, letters of credit as contemplated therein
(as used herein, the term "Credit Agreement" means the Credit Agreement
described above in this paragraph, as the same may be amended, modified,
extended, renewed, replaced, restated, supplemented or refinanced from time to
time, and including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) all
or any portion of, the indebtedness under such agreement or any successor
agreements, whether or not with the same agent, trustee, representative, lenders
or holders; provided that, with respect to any agreement providing for the
refinancing or replacement of indebtedness under the Credit Agreement, such
agreement shall only be treated as, or as part of, the Credit Agreement
hereunder if (i) either (A) all obligations under the Credit Agreement being
refinanced or replaced (if then outstanding) shall be paid in full at the time
of such refinancing or replacement, and all commitments and letters of credit
issued pursuant to the refinanced or replaced Credit Agreement shall have
terminated in accordance with their terms or (B) the Required Banks shall have
consented in writing to the refinancing or replacement indebtedness being
treated as indebtedness pursuant to the Credit Agreement, (ii) the refinancing
or replacement indebtedness shall be permitted to be incurred under the Credit
Agreement being refinanced or replaced (if such Credit Agreement is to remain
outstanding) and the other Credit Documents then in effect, under the Senior
Subordinated Note Documents referred to below (if the Senior Subordinated Notes
remain outstanding) and under the Senior Subordinated Contingent Note Documents
referred to below (if the Senior Subordinated Contingent Notes remain
outstanding) and (iii) a notice to the effect that the refinancing or
replacement indebtedness shall be treated as issued under the Credit Agreement
shall be delivered by the Borrower to the Collateral Agent);
WHEREAS, the Borrower, as issuer, JCC Holding, as guarantor,
and the Senior Subordinated Note Trustee have executed an Indenture, dated as of
October 30, 1998 (as amended, modified or supplemented from time to time, the
"Senior Subordinated Note Indenture," and together with the Senior Subordinated
Notes and all other documents and agreements relating thereto are herein called
the "Senior Subordinated Note Documents"), pursuant to which the Borrower will
issue $187,500,000 in aggregate principal amount of its Senior Subordinated
Notes with Contingent Payments (the "Senior Subordinated Notes");
WHEREAS, the Borrower, as issuer, JCC Holding, as guarantor,
and the Senior Subordinated Contingent Note Trustee have executed an Indenture,
dated as of October 30, 1998 (as amended, modified or supplemented from time to
time, the "Senior Subordinated Contingent Note Indenture" and together with the
Senior Subordinated Contingent Notes and all other documents and agreements
relating thereto are herein called the "Senior Subordinated Contingent Note
Documents"), pursuant to which the Borrower will issue its Senior Subordinated
Contingent Notes (the "Senior Subordinated Contingent Notes");
WHEREAS, the Borrower may at any time and from time to time
enter into, or guarantee obligations of its Subsidiaries under, one or more
Interest Rate Protection Agreements with one or more Other Creditors;
2
WHEREAS, it is a condition precedent to the above-described
extensions of credit to the Borrower that (i) each of the Credit Parties shall
have executed and delivered each of the Shared Security Documents (as
hereinafter defined) to which it is a party and (ii) HET and HOC, as initial
Minimum Payment Guarantors, the Administrative Agent, on behalf of the Bank
Creditors, the Senior Subordinated Note Trustee, on behalf of the Senior Note
Holders, the Senior Subordinated Contingent Note Trustee, on behalf of the
Senior Contingent Note Holders, and the Collateral Agent shall have executed and
delivered this Agreement; and
WHEREAS, the Minimum Payment Guarantors, the Administrative
Agent, the Senior Subordinated Note Trustee, the Senior Subordinated Contingent
Note Trustee and the Collateral Agent desire to enter into this Agreement to
satisfy the conditions described in the preceding paragraph.
NOW, THEREFORE, it is agreed:
1. Appointment. The Secured Creditors, by their acceptance of
the benefits of the Pledge Agreement, the Security Agreement, each Mortgage, and
any other security agreements or security documents which may from time to time
be executed and delivered by JCC Holding or any of its Subsidiaries to secure
the obligations of the Credit Parties to the Secured Creditors (collectively,
but excluding any security agreement which is for the sole purpose of creating
the security interests described in Section 11(j) hereof, the "Shared Security
Documents") as required by the Minimum Payment Guaranty Documents, the Credit
Documents, the Senior Subordinated Note Documents or the Senior Subordinated
Contingent Note Documents, hereby designate The Bank of New York, as Collateral
Agent, to act as specified herein and in each of the Shared Security Documents.
Each Secured Creditor hereby irrevocably authorizes, and each holder of any
Note, Senior Subordinated Note or Senior Subordinated Contingent Note by the
acceptance of such Note, Senior Subordinated Note or Senior Subordinated
Contingent Note shall be deemed irrevocably to authorize, the Collateral Agent
to take such action on behalf of such Secured Creditor or holder pursuant to
this Agreement, the Shared Security Documents and any other documents and
agreements referred to therein (including, without limitation, the Mortgage
Policies and the Bonds) as the Collateral Agent is required to do in accordance
with and subject to the provisions of this Agreement and the Shared Security
Documents and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically required of the Collateral Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Collateral Agent may perform any of its duties hereunder or thereunder by or
through its authorized agents or employees.
2. Nature of Duties. (a) The Collateral Agent shall have no
duties or responsibilities except those expressly set forth herein and in the
Shared Security Documents. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for taking any action or
refraining from taking or omitting to take any action hereunder or under the
Shared Security Documents or in connection herewith or therewith, unless caused
by its or their gross negligence or willful misconduct. The duties of the
Collateral Agent shall be mechanical and administrative in nature only; the
Collateral Agent shall not have by reason of the Shared Security Documents, any
Minimum Payment Guaranty Document, any Credit Document, any
3
Senior Subordinated Note Document, any Senior Subordinated Contingent Note
Document or any Interest Rate Protection Agreement a fiduciary relationship in
respect of any Secured Creditor; and nothing in the Shared Security Documents,
any Minimum Payment Guaranty Document, any Credit Document, any Senior
Subordinated Note Document, any Senior Subordinated Contingent Note Document or
any Interest Rate Protection Agreement, express or implied, is intended to or
shall be so construed as to impose upon the Collateral Agent any obligations in
respect of the Shared Security Documents except as expressly set forth herein or
therein.
(b) The Collateral Agent shall receive direction from the
Required Secured Creditors as a condition to giving any consent or approval, or
commencing any enforcement action, under any Shared Security Document, the
Casino Lease or the Casino Operating Contract and upon receipt thereof shall act
in accordance with such direction, provided that the Collateral Agent shall have
no liability for failing to give any such consent or approval, or failing to
commence any such enforcement action, absent such direction.
3. Lack of Reliance on the Collateral Agent. Independently and
without reliance upon the Collateral Agent, each Secured Creditor, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Credit
Parties and their Subsidiaries in connection with the making and the continuance
of the Obligations and the taking or not taking of any action in connection
therewith, and (ii) its own appraisal of the creditworthiness of the Credit
Parties and their Subsidiaries, and the Collateral Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Secured Creditor with any credit or other information with respect thereto,
whether coming into its possession before the extension of any Obligations or
the purchase of any Notes, Senior Subordinated Notes or Senior Subordinated
Contingent Notes, or at any time or times thereafter. The Collateral Agent shall
not be responsible or liable to any Secured Creditor for any recitals,
statements, information, covenants, agreements, representations or warranties
herein, in the Shared Security Documents or in any document, certificate or
other writing delivered in connection herewith or therewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of the Shared Security Documents or the
Collateral or the financial condition of any Credit Party or any Subsidiary of
any Credit Party or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of the
Shared Security Documents, or the financial condition of any Credit Party or any
Subsidiary of any Credit Party, or the existence or possible existence of any
Default or Event of Default.
4. Certain Rights of the Collateral Agent; Pari Passu in
Priority of Liens; Non-Shared Collateral; Protective Advances; Etc. (a) Except
as provided in Section 4(e) hereof, no Secured Creditor shall have the right to
take any action with respect to (or against) any Collateral, or cause the
Collateral Agent to take any action with respect to (or against) any Collateral,
with only the Required Secured Creditors having the right to direct the
Collateral Agent by written instruction in accordance with Section 4(f) hereof
to take any such action. Except for actions required to be taken by the
Collateral Agent in accordance with this Agreement and the Shared Security
Documents, if the Required Secured Creditors shall fail to instruct the
Collateral Agent with respect to any act or action (including failure to act and
refrain from acting) in connection with this Agreement or the Shared Security
Documents, the Collateral Agent shall be entitled to
4
refrain from such act or taking such action unless and until it shall have
received express instructions from the Required Secured Creditors and to the
extent requested, appropriate indemnification in respect of actions to be taken,
and the Collateral Agent shall not incur liability to any Secured Creditor or
any other Person by reason of so refraining. Without limiting the foregoing, no
Secured Creditor shall have any right of action whatsoever against the
Collateral Agent as a result of the Collateral Agent acting or refraining from
acting (x) hereunder or under any Shared Security Document in accordance with
the instructions of the Required Secured Creditors or (y) under any Shared
Security Document as provided for therein. As used herein, (1) the term
"Required Secured Creditors" shall mean, at any time, those Secured Creditors
which (in aggregate) at such time would constitute both the Required Minimum
Payment Guarantor Secured Creditors (but only if a Minimum Payment Guaranty is
then in effect or if there are unpaid Minimum Payment Obligations which are then
due and payable in an aggregate amount equal to or in excess of $1,000,000) and
the Required Non-Minimum Payment Guarantor Secured Creditors at such time, (2)
the term "Required Minimum Payment Guarantor Secured Creditors" shall mean, at
any time, the Minimum Payment Guarantor or Minimum Payment Guarantors which are
designated as such pursuant to any then outstanding Minimum Payment Guaranty or,
if no such Minimum Payment Guaranty is then outstanding, are owed amounts which
are then due and payable (and have not yet been paid) pursuant to the respective
Minimum Payment Guaranty Documents (or if, pursuant to the terms of the Minimum
Payment Guaranty Documents, less than 100% of such Minimum Payment Guarantors
are required to take actions hereunder, such lesser percentage as may be
specified in the respective Minimum Payment Guaranty Documents) and (3) the term
"Required Non-Minimum Payment Guarantor Secured Creditors" shall mean (i) the
Required Banks at all times other than those times when either clause (ii) or
(iii) below is applicable, (ii) at all times when (and for so long as) (x) the
Credit Agreement Amount is less than $100,000,000, (y) all principal of, and
interest on, all Tranche A Term Loans and Tranche B-1 Term Loans have been
repaid in full and (z) any New Bond Obligations then remain outstanding, the
Required New Bondholders and (iii) if all Credit Agreement Obligations and New
Bond Obligations have been repaid in full and Other Obligations remain
outstanding, the Required Other Creditors. Notwithstanding anything to the
contrary contained in the immediately preceding sentence, (1) if at any time the
principal of any Credit Agreement Obligations has been accelerated, or the
maturity date with respect to any such Credit Agreement Obligations has
occurred, and as a result thereof a payment Event of Default exists under the
Credit Agreement, which payment Event of Default has continued in existence for
at least 90 consecutive days after the date of such acceleration or maturity,
and the Required Secured Creditors at such time (determined without regard to
this clause (1)) have not directed the Collateral Agent to commence enforcement
proceedings pursuant to the Security Documents, then so long as such payment
Event of Default is continuing the Required Banks shall constitute the Required
Secured Creditors for (and only for) purposes of causing the Collateral Agent to
commence enforcement proceedings pursuant to the
5
Shared Security Documents, (2) if at any time any Minimum Payment Obligations in
an aggregate amount in excess of $1,000,000 have not been paid when due (and
remain unpaid) or have been accelerated, and as a result thereof a payment Event
of Default exists under the Minimum Payment Guaranty Documents, which payment
Event of Default has continued in existence for least 90 consecutive days after
the date of the initial occurrence thereof, and the Required Secured Creditors
at such time (determined without regard to this clause (2)) have not directed
the Collateral Agent to commence enforcement proceedings pursuant to the Shared
Security Documents, then so long as such payment Event of Default is continuing
the Secured Creditors holding at least a majority of the outstanding Minimum
Payment Obligations subject to such payment Event of Default shall constitute
the Required Secured Creditors for (and only for) purposes of causing the
Collateral Agent to commence enforcement proceedings pursuant to the Security
Documents and (3) if at any time (x) the principal of any New Bond Obligations
have been accelerated or the maturity date with respect to any such principal
Obligations has occurred or (y) the Make-Whole Amount (as defined in the Senior
Subordinated Contingent Note Indenture) has been declared to be due and payable
pursuant to the Senior Subordinated Contingent Note Indenture, and as a result
thereof a payment Event of Default exists under the Senior Subordinated Note
Indenture or the Senior Subordinated Contingent Note Indenture, which payment
Event of Default has continued in existence for at least 90 consecutive days
after the date of such acceleration, maturity or declaration, and the Required
Secured Creditors at such time (determined without regard to this clause (3))
have not directed the Collateral Agent to commence enforcement proceedings
pursuant to the Shared Security Documents, then so long as such payment Event of
Default is continuing the Secured Creditors holding at least a majority of the
outstanding New Bond Obligations subject to such payment Event of Default shall
constitute the Required Secured Creditors for (and only for) purposes of causing
the Collateral Agent to commence enforcement proceedings pursuant to the
Security Documents; provided that in any such event specified in preceding
clauses (1) through (3) the Secured Creditors who would constitute the Required
Secured Creditors in the absence of this sentence shall have the right (but not
the obligation) to direct the manner and method of enforcement so long as such
directions do not materially delay or impair the taking of enforcement action.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent is authorized, but not obligated, (i) to take
any action reasonably required to perfect or continue the perfection of the
liens on the Collateral for the benefit of the Secured Creditors and (ii) when
instructions from the Required Secured Creditors have not yet been received, to
take any action which the Collateral Agent, in good faith, believes to be
reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; provided that once instructions have been received,
the Collateral Agent shall act or refrain from acting in accordance with such
instructions and the Collateral Agent shall not take any further action which
would be contrary thereto.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not be required to take or refrain from
taking, and shall have no liability to any Secured Creditor for taking or
refraining from taking, any action that exposes or, in the good faith judgment
of the Collateral Agent may expose, the Collateral Agent or its officers,
directors, agents or employees to personal liability (including, without
limitation, taking title to any Collateral) unless the Collateral Agent shall be
adequately indemnified as provided herein or that is, or in the good faith
judgment of the Collateral Agent may be, contrary to this Agreement, the Casino
Lease, the Casino Operating Contract, the Shared Security Documents or
applicable law.
(d) The Minimum Payment Guarantors' liens, the Bank Creditors'
liens, the New Bond Creditors' liens and the Other Creditors' liens in all
Collateral shall be subject to (x) the priorities for distributions in
accordance with the terms of Section 11 hereof and (y) the
6
express subordination provisions (and only those subordination provisions)
contained in the Senior Subordinated Note Indenture, the Senior Subordinated
Contingent Note Indenture and the Credit Agreement (which provisions shall apply
in accordance with the express terms thereof). The foregoing shall be effective
at all times during the term of this Agreement, notwithstanding: (i) the
initiation of any bankruptcy, moratorium, reorganization or other insolvency
proceeding with respect to any Credit Party; (ii) the priorities which would
otherwise result from the order of creation, attachment or perfection of any
such lien; (iii) the taking of possession of any of the Collateral by the
Collateral Agent, any Minimum Payment Guarantor, any Bank Creditor, any New Bond
Creditor or any Other Creditor; (iv) the filing of any financing statement or
the recording of any mortgage or other instrument in any recording office; (v)
the order in which any of the Minimum Payment Obligations, the Credit Agreement
Obligations, the New Bond Obligations or Other Obligations is created; (vi)
whether any such lien is now perfected, hereafter ceases to be perfected, is
avoidable by any bankruptcy trustee or otherwise is set aside, invalidated or
lapses; or (vii) any other matter whatsoever; and shall continue in full force
and effect unless and until this Agreement shall have terminated in accordance
with Section 17 hereof.
(e) After the Completion Guarantors' obligations under the
Completion Guarantees have been fully satisfied, any Secured Creditor, but only
with (and to the extent of) the prior written consent of the Required Secured
Creditors (which consent shall expressly acknowledge that the respective
advances constitute Protective Advances for purposes of this Intercreditor
Agreement), may make advances for the protection of the Secured Creditors'
interest in and lien on the Collateral ("Protective Advances") solely for (i)
the payment of taxes and insurance required to be paid with respect to the
Collateral, (ii) the payment of expenses to maintain the Collateral, and (iii)
to the extent permitted by the Casino Lease, any payments required to cure any
default under the Casino Lease; provided that no portion of the proceeds of
Protective Advances shall be used to make any payments to HET, HOC or the
manager of the casino (or any of their Affiliates). Protective Advances by any
Secured Creditor pursuant to this Section 4(e) may be made directly or by
payment of such funds to the Collateral Agent to be applied by the Collateral
Agent for such purposes. Any Protective Advances made pursuant to this Section
4(e), including any interest payable with respect thereto, shall form part of
the Obligations of the applicable Credit Party to such Secured Creditor, which
shall be fully secured pursuant to the Shared Security Documents, and shall be
entitled to the benefits of the Shared Security Documents and this Agreement,
even if the other Obligations of the respective Secured Creditor are repaid or
if the respective Secured Creditor ceases to be a creditor with respect to such
other Obligations.
(f) For purposes of this Agreement, each Secured Creditor
shall appoint a Person as such Secured Creditor's authorized representative
("Authorized Representative") for the purpose of giving or delivering any
notices or instructions hereunder or under any Shared Security Document. Any
instructions given by the Required Secured Creditors to the Collateral Agent
pursuant to this Agreement or under any Shared Security Document shall be in
writing signed by the Authorized Representative(s) of the various Secured
Creditors comprising the Required Secured Creditors with respect to such
instructions and such instructions shall certify to and for the benefit of the
Collateral Agent that the Secured Creditors issuing or delivering such
instructions constitute the Required Secured Creditors for purposes of this
Section 4 and the instructions being delivered. The Collateral Agent shall be
entitled to conclusively and absolutely
7
rely on such instructions and certification as to the identity of the Required
Secured Creditors with respect to such instructions, and the Collateral Agent
shall not be required to take any action, and shall not be liable to any Secured
Creditor for failing or refusing to act, pursuant to any instructions which are
not given or delivered by the Authorized Representatives of various Secured
Creditors comprising the Required Secured Creditors with respect to such
instructions. The parties hereto acknowledge that the Authorized Representative
of each of the Secured Creditors shall be (v) HET (or a successor designated by
HET), in the case of the Minimum Payment Guarantors, (w) the Administrative
Agent, in the case of the Bank Creditors, (x) the Senior Subordinated Note
Trustee, in the case of the Senior Subordinated Note Creditors, (y) the Senior
Subordinated Contingent Note Trustee, in the case of the Senior Subordinated
Contingent Note Creditors and (z) in the case of any Other Creditor, such
Authorized Representative or Authorized Representative as may be designated by
such Other Creditor by written notice to the Collateral Agent from time to time.
5. Reliance; Interpretation. The Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document signed, sent
or made by the proper Person or entity, and, with respect to all legal matters
pertaining to this Agreement or the Shared Security Documents and its duties
hereunder and thereunder, upon advice of counsel selected by it. If, in its good
faith judgment, the Collateral Agent reasonably believes that any instructions
given or delivered pursuant to this Agreement or any Shared Security Document
require judicial interpretation or are invalid or otherwise contrary to the
provisions of this Agreement, the Casino Lease, the Casino Operating Contract,
the Shared Security Documents or applicable law, the Collateral Agent shall have
the right to petition a court of competent jurisdiction to determine the
validity of, or otherwise interpret, any such instructions. In such event, the
Collateral Agent shall not be required to carry out such instructions unless
directed to do so, or it is determined that it may do so, by such court.
6. Reimbursement and Indemnification. (a) To the extent the
Collateral Agent is not reimbursed and indemnified by the Borrower or any of the
other Credit Parties under the respective Shared Security Documents to which
they are a party, the Collateral Agent shall be entitled to reimbursement from
the proceeds of Collateral, but the Collateral Agent shall have no claim against
any Secured Creditor (other than against HET as, and to the extent, provided in
Section 6(c) and (d) hereof) for reimbursement or indemnification.
(b) Notwithstanding any provision of this Intercreditor
Agreement or any Shared Security Document to the contrary, the Collateral Agent
shall have the right to forbear from taking any action or exercising any remedy
under any Shared Security Document or applicable law, including, without
limitation, the foreclosure upon or the taking of title to any Collateral, if,
in the good faith judgment of the Collateral Agent, the Collateral Agent or its
officers, directors, agents or employees are not adequately indemnified by a
Person acceptable to the Collateral Agent from any liability or claim
(including, without limitation, any environmental liability or claim) by any
person or governmental authority which would result from the taking or
refraining from taking of any such action or the exercise or refraining from
exercising of any such remedy; provided that the Collateral Agent acknowledges
that the indemnity provided in Section 6(c) and (d) hereof shall be adequate for
purposes of this Section 6(b) for so long as such
8
indemnity remains in effect and the initial Minimum Payment Guarantors (or
successor Minimum Payment Guarantor or Minimum Payment Guarantors reasonably
acceptable to the Collateral Agent) remain obligated hereunder.
(c) The Minimum Payment Guarantors hereby jointly, severally
and in solido indemnify, save and hold harmless and agree to defend the
Collateral Agent, its officers, directors, shareholders, employees, agents and
representatives (the "Indemnified Parties") from and against any and all suits,
causes of action, proceedings, claims, controversies, damages, liabilities,
losses, demands, costs and expenses (including reasonable attorneys' fees and
court costs) of any kind which may at any time be brought by any Person against,
or incurred by, any Indemnified Party (collectively, "Liabilities"), arising
from or relating to (i) this Agreement, the Shared Security Documents or any
agreement or instrument to which the Collateral Agent is a party executed in
connection herewith or therewith, (ii) any Collateral, and/or (iii) any act or
omission of the Collateral Agent or any other Indemnified Party in connection
with the taking of any action (or the refraining from taking any action) in
accordance with and as provided in this Agreement or the Shared Security
Documents, excluding, with respect to any of the foregoing, (x) any and all
Liabilities caused by or resulting from the gross negligence, willful misconduct
or bad faith of any Indemnified Party and (y) any and all Liabilities to the
extent such Liabilities are fully paid, satisfied or reimbursed by the Borrower
or any other Person. The applicable Indemnified Party shall notify the Minimum
Payment Guarantors in writing of any Liability subject to indemnification under
this Section 6(c) then due and payable, which notice shall specify the amount of
any such Liability and shall include reasonable documentation evidencing the
payment or satisfaction of such Liability by such Indemnified Party or otherwise
evidencing the obligation of such Indemnified Party to pay such Liability. The
Minimum Payment Guarantors shall, within forty-five (45) days of receipt of such
notice, pay or cause to be paid in full all amounts specified in such notice.
The indemnity provided in this Section 6(c) shall be fully transferable to any
successor collateral agent retained or engaged under Section 9 hereof upon the
resignation of the Collateral Agent (but not upon the removal of the Collateral
Agent by the Required Secured Creditors pursuant to Section 9(a) hereof.
(d) Notwithstanding anything to the contrary contained in any
of the Shared Security Documents or any limitation on the Collateral Agent's
fees contained therein, to the extent the fees (which, for purposes of this
Section 6(d), shall include, without limitation, all reasonable fees incurred by
the Collateral Agent in the performance of its obligations under this Agreement
or the Shared Security Documents, to be reimbursed at the Collateral Agent's
customary hourly rates) and expenses (including, without limitation, reasonable
attorneys' fees and out-of-pocket expenses) of the Collateral Agent as provided
for and in connection with this Agreement are not timely paid by the Borrower or
any other Person, the Minimum Payment Guarantors agree to reimburse and make
whole the Collateral Agent for any such unpaid fees or other expenses within
forty-five (45) days following written demand thereof from the Collateral Agent.
(e) To the extent any amounts are paid by any Minimum Payment
Guarantor to the Collateral Agent pursuant to the provisions of preceding
Sections 6(c) and (d), the respective Minimum Payment Guarantor shall be
subrogated to the rights of the Collateral Agent
9
to receive such amounts from the Borrower and/or from proceeds of distributions
which would otherwise have been made to the Collateral Agent pursuant to Section
11(a)(i) hereof.
7. The Collateral Agent in its Individual Capacity. The
Collateral Agent may accept deposits from, lend money to, and generally engage
in any kind of banking, trust or other business with the Borrower or any
Affiliate or Subsidiary of the Borrower as if it were not performing the duties
specified herein or in the Shared Security Documents, and may accept fees and
other consideration from the Borrower and any of its Affiliates and/or
Subsidiaries for services in connection with the Credit Agreement, the other
Credit Documents and otherwise without having to account for the same to the
Secured Creditors; provided that the Collateral Agent shall use reasonable good
faith efforts so that it at no time becomes a Bank Creditor or a New Bond
Creditor; provided further, that the foregoing proviso shall in no event operate
to prevent the Collateral Agent from acquiring all or any portion of the equity
interests in any other Person which itself is a Bank Creditor or a New Bond
Creditor (and as a result of which the Collateral Agent could become a Bank
Creditor or a New Bond Creditor).
8. Holders. The Collateral Agent may deem and treat the payee
of any Note or the registered owner of any Senior Subordinated Note or Senior
Subordinated Contingent Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment, transfer or endorsement thereof,
as the case may be, shall have been filed with the Collateral Agent. Any
request, authority or consent of any Person or entity who, at the time of making
such request or giving such authority or consent, is the holder of any Note or
the registered owner of any Senior Subordinated Note or Senior Subordinated
Contingent Note shall be final and conclusive and binding on any subsequent
holder, transferee, assignee or endorsee, as the case may be, of such Note,
Senior Subordinated Note or Senior Subordinated Contingent Note or Note, Senior
Subordinated Note or Senior Subordinated Contingent Note issued in exchange
therefor.
9. Resignation by the Collateral Agent. (a) The Collateral
Agent may resign from the performance of all of its functions and duties under
the Shared Security Documents at any time by giving 30 Business Days' prior
written notice to the Borrower, the Minimum Payment Guarantors, the
Administrative Agent and each of the New Bond Trustees and may be removed at any
time, with or without cause, by the Required Secured Creditors by written notice
delivered to the Borrower, the Minimum Payment Guarantors, the Administrative
Agent and each of the New Bond Trustees, provided that such resignation or
removal shall not take effect until a successor Collateral Agent shall have been
appointed and such appointment shall have become effective in accordance with
this Section 9.
(b) Upon receiving notice of any such resignation or removal,
a successor Collateral Agent shall be appointed by the Required Secured
Creditors; provided, however, that such successor Collateral Agent shall be (A)
a bank or trust company having a combined capital and surplus of at least
$100,000,000 subject to supervision or examination by a federal or state banking
authority; (B) authorized under the laws of the jurisdiction of its
incorporation or organization to assume the functions of the Collateral Agent;
and (C) qualified to act in such capacity pursuant to applicable Gaming
Regulations, if required. If the appointment of such successor shall not have
become effective (as hereafter provided) within such 30 Business Day period
after the Collateral Agent shall have given such notice, then the Required
Secured Creditors or the
10
resigning Collateral Agent may petition a court of competent jurisdiction for
the appointment of a successor Collateral Agent. Such court shall, after such
notice as it may deem proper, appoint a successor Collateral Agent meeting the
qualifications specified in this Section 9(b). The Secured Creditors hereby
consent to such petition and appointment so long as such criteria are met.
(c) The resignation or removal of a Collateral Agent shall
become effective only upon the execution and delivery of such documents or
instruments as are necessary to transfer the rights and obligations of the
Collateral Agent under the Shared Security Documents and the recording or filing
of such documents, instruments or financing statements as may be necessary to
maintain the priority and perfection of any security interest granted by any
Shared Security Document. Copies of each such document or instrument shall be
delivered to each of the Borrower, the Minimum Payment Guarantors, the New Bond
Trustees and the Administrative Agent. The appointment of a successor Collateral
Agent pursuant to this Section 9 shall become effective upon the acceptance of
such appointment (and execution by such successor of the documents, instruments
or financing statements referred to above) and such successor Collateral Agent
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Collateral Agent.
(d) After any resignation or removal hereunder of the
Collateral Agent, the indemnification provisions of this Agreement shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it in connection with its agency hereunder while it was Collateral Agent.
10. Fees and Expenses of Collateral Agent. (a) In addition to
the indemnification provisions contained in the various Shared Security
Documents, the Borrower (by its execution and delivery hereof) hereby agrees
that it shall pay to The Bank of New York, as the initial Collateral Agent, such
fees as have been separately agreed to in writing with The Bank of New York for
acting as Collateral Agent hereunder and under the Shared Security Documents. In
the event a successor Collateral Agent is at any time appointed pursuant to
Section 9 of this Agreement, the Borrower hereby agrees to pay such successor
Collateral Agent such reasonable fees for acting as such as would customarily be
charged by such Collateral Agent for acting in such capacity in similar
situations.
(b) In addition, the Borrower, by its execution and delivery
hereof, agrees to pay all reasonable out-of-pocket costs and expenses of the
Collateral Agent in connection with this Agreement and the Shared Security
Documents and any actions taken by the Collateral Agent hereunder or thereunder,
and agrees to pay all costs and expenses of the Collateral Agent in connection
with the enforcement of this Agreement or any of the Shared Security Documents
and the documents and instruments referred to therein (including, without
limitation, reasonable fees and disbursements of counsel for the Collateral
Agent).
11. Application of Proceeds; Applicability of Subordination
Provisions. (a) All moneys collected by the Collateral Agent upon any sale or
other disposition of any Collateral pursuant to the enforcement of any of the
Shared Security Documents or the exercise of any of the remedial provisions
thereof, together with all other moneys received by the Collateral Agent
hereunder or under the Shared Security Documents as a result of any such
enforcement or the
11
exercise of any such remedial provisions or as a result of any distribution of
any Collateral upon the bankruptcy, arrangement, receivership, assignment for
the benefit of creditors or any other action or proceeding involving the
readjustment of the obligations and indebtedness of any Credit Party, or the
application of any Collateral to the payment thereof or any distribution of the
Collateral upon the liquidation or dissolution of any Credit Party, or the
winding up of the assets or business of any Credit Party, or under the Mortgage
Policies or the Bonds or otherwise payable under any Shared Security Documents
shall be applied as follows:
(i) first, to the payment of all amounts owing to the Collateral
Agent of the type described in clauses (vii), (viii) and (ix) of the
definition of "Obligations" and, thereafter, to all amounts owing to
any Minimum Payment Guarantor of the type described in clause (vii) of
the definition of "Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the
outstanding First Priority Secured Obligations shall be paid to the
Secured Creditors as provided in Section 11(f) hereof, with each
Secured Creditor receiving an amount equal to its outstanding First
Priority Secured Obligations or, if the proceeds are insufficient to
pay in full all such First Priority Secured Obligations, such Secured
Creditor's Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Second Priority Secured Obligations shall be paid to the
Secured Creditors as provided in Section 11(f) hereof, with each
Secured Creditor receiving an amount equal to its outstanding Second
Priority Secured Obligations or, if the proceeds are insufficient to
pay in full all such Second Priority Secured Obligations, such Secured
Creditor's Pro Rata Share of the amount remaining to be distributed;
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, an
amount equal to the outstanding Third Priority Secured Obligations
shall be paid to the Secured Creditors as provided in Section 11(f)
hereof, with each Secured Creditor receiving an amount equal to its
outstanding Third Priority Secured Obligations or, if the proceeds are
insufficient to pay in full all such Third Priority Secured
Obligations, such Secured Creditor's Pro Rata Share of the amount
remaining to be distributed;
(v) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iv), inclusive, an
amount equal to the outstanding Fourth Priority Secured Obligations
shall be paid to the Secured Creditors as provided in Section 11(f)
hereof, with each Secured Creditor receiving, subject to the
provisions of following clause (e), an amount equal to its outstanding
Fourth Priority Secured Obligations or, if the proceeds are
insufficient to pay in full all such Fourth Priority Secured
Obligations, such Secured Creditor's Pro Rata Share of the amount
remaining to be distributed;
12
(vi) sixth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (v), inclusive, an
amount equal to the outstanding Fifth Priority Secured Obligations
shall be paid to the Secured Creditors as provided in Section 11(f)
hereof, with each Secured Creditor receiving an amount equal to its
outstanding Fifth Priority Secured Obligations or, if the proceeds are
insufficient to pay in full all such Fifth Priority Secured
Obligations, such Secured Creditor's Pro Rata Share of the amount
remaining to be distributed;
(vii) seventh, to the extent proceeds remain after the
application pursuant to preceding clauses (i) through (vi), inclusive,
an amount equal to the outstanding Sixth Priority Secured Obligations
shall be paid to the Secured Creditors as provided in Section 11(f)
hereof with each Secured Creditor receiving an amount equal to its
outstanding Sixth Priority Secured Obligations or, if the proceeds are
insufficient to pay in full all such Sixth Priority Secured
Obligations, such Secured Creditor's Pro Rata Share of the amount
remaining to be distributed; and
(viii) eighth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (vii),
inclusive, and following the termination of this Agreement pursuant to
Section 17 hereof, to the respective Credit Party under its respective
Shared Security Document, or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement (i) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's First
Priority Secured Obligations, Second Priority Secured Obligations, Third
Priority Secured Obligations, Fourth Priority Secured Obligations, Fifth
Priority Secured Obligations or Sixth Priority Secured Obligations, as the case
may be, and the denominator of which is the then outstanding amount of all First
Priority Secured Obligations, Second Priority Secured Obligations, Third
Priority Secured Obligations, Fourth Priority Secured Obligations, Fifth
Priority Secured Obligations or Sixth Priority Secured Obligations, as the case
may be, (ii) "First Priority Secured Obligations" shall mean all principal of,
interest on, and other amounts owing to the Secured Creditors with respect to
the Protective Advances, if any, made by them in accordance with the
requirements of Section 4(e) of this Agreement, (iii) "Second Priority Secured
Obligations" shall mean, with respect to the Minimum Payment Obligations, all
obligations pursuant to the Minimum Payment Guaranty Documents in respect of
amounts advanced pursuant to one or more Minimum Payment Guaranties, and any
indemnities, fees and expenses, enforcement costs (including reasonable
attorneys' fees) and interest on such obligations in accordance with the terms
of the relevant Minimum Payment Guaranty Documents, (iv) "Third Priority Secured
Obligations" shall mean all principal of, and interest on, all Tranche A Term
Loans under the Credit Agreement, and all regularly accruing fees owing pursuant
to the Credit Agreement with respect to any commitments relating to the Tranche
A Term Loans, and all indemnities, fees and expenses, enforcement costs
(including reasonable attorneys' fees) and interest on or relating to the
foregoing obligations, extensions of credit or commitments in respect thereof,
(v) "Fourth Priority Secured Obligations" shall mean all principal of, and
interest on, all Revolving Loans and Swingline Loans under the Credit Agreement
and the aggregate amount of all unpaid reimbursement obligations
13
(together with all interest accrued thereon) with respect to Letters of Credit
issued pursuant to the Credit Agreement, the aggregate undrawn amounts of all
letters of credit issued pursuant to the Credit Agreement and all regularly
accruing fees owing by the Borrower under the Credit Agreement as same relate to
the foregoing extensions of credit or commitments in respect thereof, and all
indemnities, fees and expenses, enforcement costs (including reasonable
attorneys' fees) and interest on or relating to the foregoing obligations,
extensions of credit or commitments in respect thereof, (vi) "Fifth Priority
Secured Obligations" shall mean (x) in the case of the Credit Agreement
Obligations, all principal of, and accrued and unpaid interest on, all Tranche B
Term Loans, and all regularly accruing fees owing by the Borrower under the
Credit Agreement to the extent same relate to the commitments pursuant to the
Credit Agreement in respect of Tranche B Term Loans and (y) in the case of the
New Bond Obligations, all principal of, and accrued and unpaid interest on, the
Senior Subordinated Notes and the Senior Subordinated Contingent Notes, all
Contingent Payments which have theretofore been earned and are due and payable
in accordance with the terms of the New Bond Indentures and any Primary
Make-Whole Amount owing pursuant to the terms of the Senior Subordinated Note
Indenture as a result of any acceleration of the maturity of the Senior
Subordinated Notes in accordance with the terms thereof; provided that all
Junior Subordinated Make-Whole Amounts shall in any event constitute Sixth
Priority Secured Obligations and shall in no event constitute Fifth Priority
Secured Obligations, and (vii) "Sixth Priority Secured Obligations" shall mean
all Obligations other than First Priority Secured Obligations, Second Priority
Secured Obligations, Third Priority Secured Obligations, Fourth Priority Secured
Obligations and Fifth Priority Secured Obligations. For purposes of this
Agreement (and the preceding provisions of this clause (v)) to the extent
amounts are owing pursuant to the Credit Agreement for the Administrative
Agent's fees, costs of enforcement, indemnities and other items which are not
directly attributable to a single Tranche (as defined in the Credit Agreement)
of Loans, then such amounts shall be deemed to constitute Third Priority Secured
Obligations, Fourth Priority Secured Obligations and/or Fifth Priority Secured
Obligations on a proportionate basis, based upon the relative principal amounts
of the various such Tranches (or, if greater, in the case of Fourth Priority
Secured Obligations, the commitments relating thereto pursuant to the Credit
Agreement). Furthermore, and notwithstanding anything to the contrary contained
elsewhere in this Agreement, to the extent that, after the date of this
Agreement, the relevant Secured Creditors amend or modify the Minimum Payment
Guaranty Documents, Credit Documents or Senior Subordinated Note Documents in a
manner which has the effect of (i) increasing the outstanding principal amount
of Second Priority Secured Obligations, Third Priority Secured Obligations,
Fourth Priority Secured Obligations or Fifth Priority Secured Obligations above
the principal amounts thereof as then in effect (excluding any waivers or
amendments to the Credit Documents which (w) make available the Term Loans
under, and as defined in, the Credit Agreement in the amounts originally
contemplated pursuant to the Credit Agreement, (x) make available Fourth
Priority Secured Obligations which would otherwise not be available to the
extent that the principal amount thereof is not increased above $25 million, (y)
defer or capitalize accrued and unpaid interest or (z) in the case of Credit
Agreement Obligations incurred pursuant to any refinancing, increases to the
principal amount thereof to the extent (i) accrued and unpaid interest and/or
other amounts owing with respect to the refinanced indebtedness is refinanced
and/or (ii) of the fees and expenses incurred in connection with the refinancing
indebtedness), any such increased principal amounts (but only to the extent of
such increase) shall constitute Sixth Priority Secured Obligations rather than
obligations with the higher priority indicated above in this
14
Section 11(b) and (ii) to the extent that amendments or modifications are made
pursuant to the Senior Subordinated Note Documents which directly increase the
amount of Contingent Payments or Make-Whole Amounts (as defined in the relevant
Senior Subordinated Note Documents), then to the extent additional amounts are
owing as a result thereof, such additional amounts shall be deemed to constitute
Sixth Priority Secured Obligations rather than Obligations with the higher
priority otherwise provided in the first sentence of this Section 11(b).
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 11 only) (i) first, to their First Priority Secured Obligations, (ii)
second, to their Second Priority Secured Obligations, (iii) third, to their
Third Priority Secured Obligations, (iv) fourth, to their Fourth Priority
Secured Obligations, (v) fifth, to their Fifth Priority Secured Obligations and
(vi) sixth, to their Sixth Priority Secured Obligations.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Bank Creditors are to receive a distribution on account of undrawn
amounts with respect to letters of credit issued pursuant to the Credit
Agreement (which shall only occur after all outstanding Revolving Loans and
Swingline Loans and all unpaid reimbursement obligations with respect to drawn
letters of credit have been paid in full), such amounts shall be paid to the
Administrative Agent under the Credit Agreement and held by it, for the equal
and ratable benefit of the Bank Creditors holding Fourth Priority Secured
Obligations, as cash security for the repayment of all Fourth Priority Secured
Obligations owing to the Bank Creditors as such. If any amounts are held as cash
security pursuant to the immediately preceding sentence, then upon the
termination of all outstanding letters of credit issued pursuant to the Credit
Agreement, and after the application of all such cash security to the repayment
of all Fourth Priority Secured Obligations after giving effect to the
termination of all such letters of credit, if there remains any excess cash,
such excess cash shall be returned by the Administrative Agent to the Collateral
Agent for distribution in accordance with Section 11(a) hereof.
(e) Each of the Secured Creditors agrees and acknowledges
that, with respect to amounts distributed pursuant to clause (vi) of Section
11(a), in instances where the amount to be distributed is not sufficient to
repay in full all Fifth Priority Secured Obligations, each Secured Creditor's
Pro Rata Share of the amount to be distributed pursuant to said clause (vi)
shall be determined and, to the extent amounts are to be distributed in respect
of the Credit Agreement Obligations (and although the amounts to distributed to
the Bank Creditors shall be determined on the basis of their total Fifth
Priority Secured Obligations of the type described in clause (x) of the
definition thereof contained herein), the amounts so distributed to the Bank
Creditors shall first be applied to all principal of, and interest on, all
Tranche B-1 Term Loans, and all regularly accruing fees owing by the Borrower
under the Credit Agreement to the extent same relate to the commitments pursuant
to the Credit Agreement in respect of Tranche B-1 Term Loans and any
indemnities, fees and expenses, enforcement costs (including reasonably
attorneys' fees) and interest on such obligations in accordance with the terms
of the relevant Credit Documents, until all such amounts have been paid in full,
and only after all such amounts have been paid in full shall the amounts so
distributed in respect of the Fifth Priority Secured Obligations of the type
described in clause (x) of the definition thereof contained herein be
distributed in respect of amounts owing
15
with respect to the Tranche B-2 Term Loans. The New Bond Creditors and the Bank
Creditors acknowledge and agree that the foregoing provisions of this clause (e)
affect the order of distribution (as among the Bank Creditors only) of amounts
to outstanding Credit Agreement Obligations constituting Fifth Priority Secured
Obligations, but that all Fifth Priority Secured Obligations shall be taken into
account in determining the amounts to be distributed pursuant to clause (vi) of
Section 11(a) to the Bank Creditors, on the one hand, and to the New Bond
Creditors, on the other hand.
(f) All payments required to be made hereunder shall be made
(u) if to the Collateral Agent, directly to the Collateral Agent, (v) if to the
Minimum Payment Guarantors, directly to the respective Minimum Payment
Guarantors (including, if to HET, directly to HET), (w) if to the Bank
Creditors, to the Administrative Agent under the Credit Agreement for the
account of (and for distribution to) the Bank Creditors, (x) if to the Senior
Note Creditors, to the Senior Subordinated Note Trustee for the account of (and
for distribution to) the Senior Note Creditors, (y) if to the Senior Contingent
Note Creditors, to the Senior Subordinated Contingent Note Trustee for the
account of (and for distribution to) the Senior Contingent Note Creditors, and
(z) if to the Other Creditors, to the trustee, paying agent or other similar
representative for the Other Creditors or, in the absence of such a
representative, directly to the Other Creditors. All amounts so distributed
shall be applied in accordance with the requirements of this Section 11.
(g) For purposes of applying payments received in accordance
with this Section 11, the Collateral Agent shall be entitled to rely upon the
Authorized Representative of the respective Secured Creditors, on behalf
thereof, for a determination (which such Authorized Representative shall provide
to the Collateral Agent in writing upon the request of the Collateral Agent,
prior to the distribution of any monies by the Collateral Agent) of the
outstanding Second Priority Secured Obligations, Third Priority Secured
Obligations, Fourth Priority Secured Obligations, Fifth Priority Secured
Obligations and Sixth Priority Secured Obligations owed to the Minimum Payment
Guarantors, the Bank Creditors, the New Bond Creditors or the Other Creditors,
as the case may be. For purposes of applying payments received in accordance
with this Section 11, the Collateral Agent shall be entitled to rely upon the
Authorized Representatives for each class of Obligations at such time to be
taken into account for purposes of determining the Required Secured Creditors
for a determination of the First Priority Secured Obligations then outstanding.
Unless it has actual knowledge (including by way of written notice from a
Minimum Payment Guarantor, a Bank Creditor, a New Bond Creditor or an Other
Creditor through an Authorized Representative thereof) to the contrary, the
Minimum Payment Guarantors, the Administrative Agent, the Senior Subordinated
Note Trustee, the Senior Subordinated Contingent Note Trustee and each
Authorized Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no First Priority Secured Obligations and no Sixth Priority Secured
Obligations are outstanding. Unless it has actual knowledge (including by way of
written notice from an Other Creditor) to the contrary, the Collateral Agent, in
acting hereunder, shall be entitled to assume that no First Priority Secured
Obligations and no Interest Rate Protection Agreements are in existence.
(h) It is understood and agreed that the Borrower shall remain
liable to the extent of any deficiency between the amount of the proceeds of the
Collateral thereunder and the
16
aggregate amount of the sums referred to in clauses (i) through (vii),
inclusive, of Section 11(a) of this Agreement.
(i) Distributions made in accordance with this Section 11
(other than to the Minimum Payment Guarantors in respect of Minimum Payment
Obligations) shall, notwithstanding anything to be contrary contained in this
Agreement, be subject to the express subordination provisions contained in the
Senior Subordinated Note Documents, the Senior Subordinated Contingent Note
Documents and the Credit Agreement and, as a result thereof, to the extent any
Secured Creditor (other than to the Minimum Payment Guarantors in respect of
Minimum Payment Obligations or to HET under Section 11(a)(i) hereof) receives a
distribution pursuant to this Section 11 which must be turned over or applied in
accordance with said subordination provisions, said subordination provisions
shall control the ultimate distribution of such amounts.
(j) The Secured Creditors and the Collateral Agent acknowledge
that the Minimum Payment Guarantors have been granted a security interest in the
House Bank to secure the Minimum Payment Obligations maintained at the Casino
and that no Secured Creditor (other than the Minimum Payment Guarantors) shall
have a lien or other security interest in the House Bank. Upon the occurrence
and during the continuance of an Event of Default under the Minimum Payment
Obligations and provided that there are then no operations at the Casino, the
Minimum Payment Guarantors agree to fully enforce and realize upon the security
interest in the House Bank (and apply all proceeds thereof to the Minimum
Payment Obligations) prior to applying the proceeds of any other Collateral to
the Minimum Payment Obligations as set forth in this Section 11.
12. Definitions. The following terms shall have the meanings
herein specified unless the context otherwise requires. Such definitions shall
be equally applicable to the singular and plural forms of the terms defined.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling, (including, but not limited to,
all directors, officers and partners of such Person), controlled by, or under
direct or indirect common control with, such Person or (ii) that directly or
indirectly owns more than 5% of any class of the voting securities or capital
stock of or equity interests in such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" shall have the meaning provided in the first
paragraph of this Agreement.
"Authorized Representative" shall have the meaning provided in
Section 4(f) of this Agreement.
17
"Bank Creditors" shall have the meaning provided in the first
paragraph of this Agreement.
"Banks" shall have the meaning provided in the Recitals to
this Agreement.
"Bonds" shall mean any payment or performance bonds issued in
connection with the construction of the Project.
"Borrower" shall have the meaning provided in the Recitals to
this Agreement.
"Casino" shall mean the Borrower's casino to be located at the
site of the former Rivergate Convention Center in New Orleans, Louisiana.
"Casino Lease" shall mean the Amended and Restated Lease
Agreement among Rivergate Development Corporation as landlord, the Borrower, as
tenant, and the City of New Orleans, as intervenor, dated as of October 29,
1998, as amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Casino Operating Contract" means the Amended and Renegotiated
Casino Operating Contract among Xxxxxx'x Jazz Company, a Louisiana general
partnership, the Borrower, and the State of Louisiana, by and through the LGCB,
dated as of October 30, 1998, as amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Class" shall have the meaning provided in Section 16 hereof.
"Collateral" shall mean all "Collateral" (or similar defined
term) under, and as defined in, the Shared Security Documents.
"Collateral Agent" shall mean (x) with respect to this
Agreement, The Bank of New York acting in its capacity as collateral agent
hereunder and (y) with respect to the Shared Security Documents, The Bank of New
York for the benefit of the Secured Creditors in its capacity as (i) "Collateral
Agent" under, and as defined in, the Security Agreement, (ii) "Pledgee" under,
and as defined in, the Pledge Agreement or (iii) "Mortgagee" under, and as
defined in, the Mortgages, in each case, to include any successor collateral
agent hereunder and under the Shared Security Documents.
"Completion Guarantees" shall mean and include the Bank
Completion Guarantee (as defined in the Credit Agreement) and any completion
guarantee delivered by any Completion Guarantor to the holders of the New Bonds
or to the City, the RDC or the LGCB.
"Completion Guarantor" shall mean each of HET and HOC.
"Contingent Payments" shall mean all Contingent Payments
under, and as defined in, the New Bond Indentures as originally in effect.
"Credit Agreement" shall have the meaning provided in the
Recitals to this Agreement.
18
"Credit Agreement Obligations" shall have the meaning provided
in clause (iii) of the definition of "Obligations."
"Credit Documents" shall mean the Credit Agreement and each
instrument or document executed and delivered pursuant to or in connection
therewith, including without limitation all Credit Documents under, and as
defined in, the Credit Agreement as in effect on the date hereof.
"Credit Party" shall mean and include JCC Holding, the
Borrower and each Subsidiary of JCC Holding or the Borrower that is party to any
Shared Security Document.
"Default" shall mean any event which, with notice or lapse of
time, or both, would become an Event of Default.
"Event of Default" shall mean any Event of Default under, and
as defined in, any Minimum Payment Guaranty Document, the Credit Agreement, the
Senior Subordinated Note Indenture or the Senior Subordinated Contingent Note
Indenture, any payment default under any Interest Rate Protection Agreement or
any Shared Security Document and shall in any event, include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"Fifth Priority Secured Obligations" shall have the meaning
provided in Section 11(b) hereof.
"First Priority Secured Obligations" shall have the meaning
provided in Section 11(b) hereof.
"Fourth Priority Secured Obligations" shall have the meaning
provided in Section 11(b) hereof.
"Gaming Regulations" shall mean the laws, rules, regulations
and orders applicable to the gaming business of the Borrower or any of its
Subsidiaries, or any other Credit Party, as in effect from time to time,
including the Louisiana Economic Development and Gaming Corporation Act (La.
R.S. Section 27:201, et seq.) and the policies, interpretations and
administration thereof by the governmental authorities charged with their
administration and enforcement, including the LGCB.
"HET" shall have the meaning provided in the first paragraph
of this Agreement.
"HET/JCC Agreement" shall have the meaning provided in the
Recitals to this Agreement.
"HOC" shall have the meaning provided in the first paragraph
of this Agreement.
"Interest Rate Protection Agreement" shall have the meaning
provided in the first paragraph of this Agreement.
19
"JCC Holding" shall have the meaning provided in the Recitals
to this Agreement.
"Junior Subordinated Make-Whole Amounts" shall mean (x) in the
case of the Senior Subordinated Notes and Senior Subordinated Note Documents,
all amounts (other than principal, accrued interest, Contingent Payments (as
defined in the Senior Subordinated Note Indenture) for prior periods which have
already become due and payable prior to such acceleration in accordance with the
terms of the Senior Subordinated Note Indenture and the Primary Make-Whole
Amount) due and payable as a result of any acceleration of the maturity of the
Senior Subordinated Notes, in any event including any Secondary Make-Whole
Amount and (y) in the case of the Senior Subordinated Contingent Notes, all
amounts (other than any Contingent Payments (as defined in the Senior
Subordinated Contingent Note Indenture) which were already due and payable prior
to such acceleration) due and payable as a result of any acceleration of the
maturity of the Senior Subordinated Contingent Notes, in any event including
Senior Subordinated Contingent Notes Make-Whole Amount.
"LGCB" mean the Louisiana Gaming Control Board and its
successors and assigns.
"Minimum Payment Guarantor" shall have the meaning provided in
the first paragraph of this Agreement.
"Minimum Payment Guaranty" shall mean the initial Minimum
Payment Guaranty issued on or before the Plan Effective Date by HET and HOC, and
any substitute or successor Minimum Payment Guaranty (as defined in Section 25.1
of the Casino Operating Contract) from time to time issued by HET, HOC or any
other Minimum Payment Guarantor, in each case so long as (x) the respective
Minimum Payment Guaranty is issued without causing a breach, violation or
default under any of the provisions of the Credit Agreement (including Sections
9.11 and 10.07 thereof), or the relevant provisions of any other Secured Debt
Agreement and (y) each party thereto as a Minimum Payment Guarantor becomes a
party to this Agreement in accordance with the provisions of Section 21 hereof.
"Minimum Payment Guaranty Documents" shall mean each Minimum
Payment Guaranty, the HET/JCC Agreement and any successor or replacement
agreement to the HET/JCC Agreement entered into with one or more Minimum Payment
Guarantors, in each case so long as the provisions of such successor agreements
do not violate the relevant provisions of the Credit Agreement (including
Sections 9.11 and 10.07 thereof) or the relevant provisions of any Secured Debt
Agreement.
"Minimum Payment Obligations" shall have the meaning provided
in clause (ii) of the definition of "Obligations."
"Mortgage" shall mean, collectively, (i) the Act of Mortgage
and Collateral Assignment dated as of the date hereof by the Borrower, as
mortgagor, in favor of the Collateral Agent, as mortgagee for the benefit of the
Secured Creditors, (ii) the Act of Mortgage and Collateral Assignment dated as
of the date hereof by JCC Development Company, L.L.C., as mortgagor, in favor of
the Collateral Agent, as mortgagee for the benefit of the Secured
20
Creditors, (iii) the Act of Mortgage and Collateral Assignment dated as of the
date hereof by FP Development, L.L.C., as mortgagor, in favor of the Collateral
Agent, as mortgagee for the benefit of the Secured Creditors, (iv) the Act of
Mortgage and Collateral Assignment dated as of the date hereof by CP
Development, L.L.C., as mortgagor, in favor of the Collateral Agent, as
mortgagee for the benefit of the Secured Creditors and (v) any mortgage, deed of
trust, assignment of leases or rents or similar document executed and delivered
at any time after the date of this Agreement by JCC Holding or any of its
Subsidiaries to secure any of the Obligations.
"Mortgage Policies" shall mean any and all mortgagee title
insurance policies in favor of the Collateral Agent or the Secured Creditors
with respect to any property at any time mortgaged pursuant to any Mortgage.
"Mortgage Release Provisions" shall mean the respective
provisions designated below of the Mortgages described in clauses (ii) through
(iv), inclusive, of the definition of Mortgage contained herein, as follows:
(i) Section 34 of the Mortgage described in clause (ii) of
the definition of Mortgage contained herein;
(ii) Section 32 of the Mortgage described in clause (iii) of
the definition of Mortgage contained herein; and
(iii) Section 32 of the Mortgage described in clause (iv) of
the definition of Mortgage contained herein.
"New Bond Creditors" shall have the meaning provided in the
first paragraph of this Agreement.
"New Bond Documents" shall mean, collectively, the Senior
Subordinated Note Documents and the Senior Subordinated Contingent Note
Documents, in each case as amended, modified or supplemented from time to time.
"New Bond Indenture" shall mean, collectively, the Senior
Subordinated Note Indenture and the Senior Subordinated Contingent Note
Indenture.
"New Bond Obligations" shall have the meaning provided in
clause (v) of the definition of "Obligations."
"New Bond Trustees" shall mean, collectively, the Senior
Subordinated Note Trustee and the Senior Subordinated Contingent Note Trustee.
"New Bondholders" shall mean, collectively, the Senior
Subordinated Note Holders and the Senior Subordinated Contingent Note Holders.
"New Bonds" shall mean, collectively, the Senior Subordinated
Notes and the Senior Subordinated Contingent Notes.
21
"Note" shall mean each promissory note issued from time to
time pursuant to the Credit Agreement.
"Obligations" shall mean all of the Borrower's obligations
with respect to:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of and
interest on all Protective Advances made in accordance with the
requirements of Section 4(e) of this Agreement and (y) all other
obligations and indebtedness (including, without limitation,
indemnities, fees and expenses, enforcement costs (including
reasonable attorneys' fees) and interest on such obligations and
indebtedness), of each Credit Party to the Secured Creditors, whether
now existing or hereafter incurred, to the extent relating to
Protective Advances made in accordance with Section 4(e) of this
Agreement and the due performance and compliance by each Credit Party
with all the terms, conditions and agreements relating to such
Protective Advances (all such principal, interest, obligations and
liabilities described in this clause (i) being herein collectively
called the "Protective Advance Obligations");
(ii) the full and prompt payment when due (whether at the date of
maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, fees and
expenses, enforcement costs (including reasonable attorneys' fees) and
interest on such obligations and indebtedness) of the Borrower and any
other Credit Party to the Minimum Payment Guarantors now existing or
hereafter incurred under, arising out of, or in connection with any
Minimum Payment Guaranty Document (including, without limitation, all
such obligations and indebtedness under the Minimum Payment Guaranty)
to which it is a party (in each case, to the extent such obligations
and indebtedness relate to the Minimum Payment Guaranty) and the due
performance and compliance by the Borrower and each such Credit Party
with all of the terms, conditions and agreements contained in each
such Minimum Payment Guaranty Document (all such principal, interest,
obligations and liabilities described in this clause (ii) being herein
collectively called the "Minimum Payment Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of and
interest on the notes issued by, and loans made to, the Borrower under
the Credit Agreement and all reimbursement obligations and unpaid
drawings (together with interest thereon) with respect to the letters
of credit issued under the Credit Agreement and (y) all other
obligations and indebtedness (including, without limitation,
indemnities, fees and expenses, enforcement costs (including
reasonable attorneys' fees) and interest on such obligations and
indebtedness), of each Credit Party to the Bank Creditors, whether now
existing or hereafter incurred under, arising out of or in connection
with the Credit Agreement and the other Credit Documents and the due
performance and compliance by each Credit Party with all of the terms,
conditions and agreements contained in the Credit Agreement and the
other Credit Documents (all such principal, interest, obligations and
liabilities described in this clause (iii) being herein collectively
called the "Credit Agreement Obligations");
22
(iv) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of, and
premium, if any, and interest on the Senior Subordinated Notes and (y)
all other obligations and indebtedness (including, without limitation,
indemnities, fees and expenses, enforcement costs (including
reasonable attorneys' fees) and interest on such obligations and
indebtedness) of each Credit Party to the Senior Subordinated Note
Creditors, whether now existing or hereafter incurred under, arising
out of or in connection with the Senior Subordinated Notes, the other
Senior Subordinated Note Documents and the Shared Security Documents
and the due performance and compliance by each Credit Party with all
of the terms, conditions and agreements contained in the Senior
Subordinated Notes, the other Senior Subordinated Note Documents and
the Shared Security Documents (all such obligations and liabilities
described in this clause (iv) being herein collectively called the
"Senior Subordinated Note Obligations");
(v) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of (x) the principal of, and
premium, if any, and interest on the Senior Subordinated Contingent
Notes and (y) all other obligations and indebtedness (including,
without limitation, indemnities, fees and expenses, enforcement costs
(including reasonable attorneys' fees) and interest on such
obligations and indebtedness) of each Credit Party to the Senior
Contingent Note Creditors, whether now existing or hereafter incurred
under, arising out of or in connection with the Senior Subordinated
Contingent Notes, the other Senior Subordinated Contingent Note
Documents and the Shared Security Documents and the due performance
and compliance by each Credit Party with all of the terms, conditions
and agreements contained in the Senior Subordinated Contingent Notes,
the other Senior Subordinated Contingent Note Documents and the Shared
Security Documents (all such obligations and liabilities described in
this clause (v) being herein collectively called the "Senior
Subordinated Contingent Note Obligations" and together with the Senior
Subordinated Note Obligations, the "New Bond Obligations");
(vi) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
liabilities owing by the Borrower to the Other Creditors under any
Interest Rate Protection Agreement, whether such Interest Rate
Protection Agreement is now in existence or hereafter arising, and the
due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained therein (all such obligations and
liabilities described in this clause (vi) being herein collectively
called the "Other Obligations");
(vii) any and all amounts owing to the Collateral Agent pursuant
to, or as referenced in, this Agreement or any Shared Security
Document, and any and all amounts (but without any interest thereon)
owing to any Minimum Payment Guarantor pursuant to the subrogation
provisions contained in Section 6(e) hereof; provided that with
respect to the amounts described above as owing to any Minimum Payment
Guarantor pursuant to the subrogation provisions contained in Section
6(e) hereof, the respective amount paid by the Minimum Payment
Guarantor to the Collateral Agent shall have been actually due and
owing to the Collateral Agent at the time of the respective payment by
such Minimum Payment Guarantor;
23
(viii) any and all sums advanced by the Collateral Agent in order
to preserve the Collateral or preserve its security interest in the
Collateral; and
(ix) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of the
Borrower referred to in clauses (i), (ii), (iii), (iv), (v) and (vi),
after an Event of Default shall have occurred and be continuing, the
reasonable expenses of re-taking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Collateral Agent of its rights
hereunder or under the Shared Security Documents, together with
reasonable attorneys' fees and court costs.
"Other Creditor" shall have the meaning provided in the first
paragraph of this Agreement.
"Other Obligations" shall have the meaning provided in clause
(vi) of the definition of "Obligations."
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan Effective Date" shall mean the "Effective Date" as
defined in the Plan of Reorganization (as defined in the Credit Agreement as
originally in effect).
"Pledge Agreement" shall mean the Pledge Agreement, dated as
of October 29, 1998, among JCC Holding and various of its Subsidiaries, as
Pledgors, and the Collateral Agent, as Pledgee for the benefit of the Secured
Creditors, as amended, modified or supplemented from time to time.
"Primary Make-Whole Amount" shall have the meaning assigned
that term in the Senior Subordinated Note Indenture.
"Pro Rata Share" shall have the meaning provided in Section
11(b) hereof.
"Protective Advance Obligations" shall have the meaning
provided in clause (i) of the definition of "Obligations."
"Protective Advances" shall have the meaning provided in
Section 4(e) hereof.
"Qualified Person" shall mean, with respect to any Bank party
to the Credit Agreement on the date hereof or that becomes a Bank pursuant to
Section 1.13, 16.04(b) or 16.04(c) of the Credit Agreement, a commercial bank,
financial institutions or other "accredited investor" (as defined in Regulation
D of the Securities Act), which shall not have been found unsuitable under, and,
to the extent necessary, shall have qualified or be presumed suitable under, the
Gaming Regulations applicable to lenders and the Casino Operating Contract.
"Required Banks" shall have the meaning provided in the Credit
Agreement.
24
"Required Creditors" shall mean the requisite percentage of
Secured Creditors which are needed to take actions with respect to a given Class
of Obligations, i.e., whether the Required Minimum Payment Guarantor Secured
Creditors, the Required Banks, the Required Other Creditors or the Required New
Bondholders.
"Required Minimum Payment Guarantor Secured Creditors" shall
have the meaning provided in Section 4 hereof.
"Required New Bondholders" shall mean the holders from time to
time of at least a majority of the outstanding (with "outstanding" determined in
a manner consistent with the respective New Bond Indentures) principal amount of
New Bonds (for this purpose, treating as outstanding principal any contingent
payments which are actually owing in respect of New Bonds, but ignoring any
contingent payments which may become due in the future).
"Required Non-Minimum Guarantor Secured Creditors" shall have
the meaning provided in Section 4 hereof.
"Required Other Creditors" shall mean the holders of at least
a majority of all Other Obligations outstanding from time to time under the
Interest Rate Protection Agreements, determined in such reasonable fashion as is
acceptable to the Collateral Agent.
"Required Secured Creditors" shall have the meaning provided
in Section 4 hereof.
"Secondary Make-Whole Amount" shall have the meaning assigned
that term in the Senior Subordinated Note Indenture.
"Second Priority Secured Obligations" shall have the meaning
provided in Section 11(b) hereof.
"Secured Creditors" shall have the meaning provided in the
first paragraph of this Agreement.
"Secured Debt Agreements" shall mean and include the Shared
Security Documents, the Minimum Payment Guaranty Documents, the Credit
Documents, the Senior Subordinated Note Documents, the Senior Subordinated
Contingent Note Documents and any Interest Rate Protection Agreements then in
existence.
"Security Agreement" shall mean the Security Agreement, dated
as of October 29, 1998, among JCC Holding and various of its Subsidiaries as
assignors, and the Collateral Agent, as secured party for the benefit of the
Secured Creditors as amended, modified or supplemented from time to time.
"Senior Subordinated Contingent Note Creditors" shall have the
meaning provided in the first paragraph of this Agreement.
"Senior Subordinated Contingent Note Documents" shall have the
meaning provided in the Recitals to this Agreement.
25
"Senior Subordinated Contingent Note Holders" shall have the
meaning provided in the first paragraph of this Agreement.
"Senior Subordinated Contingent Note Indenture" shall have the
meaning provided in the Recitals to this Agreement.
"Senior Subordinated Contingent Note Obligations" shall have
the meaning provided in clause (v) of the definition of "Obligations."
"Senior Subordinated Contingent Note Trustee" shall have the
meaning provided in the first paragraph of this Agreement.
"Senior Subordinated Contingent Notes" shall have the meaning
provided in the Recitals to this Agreement.
"Senior Subordinated Contingent Notes Make-Whole Amount" shall
mean the "Make-Whole Amount", as that term is defined in the Senior Subordinated
Contingent Note Indenture.
"Senior Subordinated Note Creditors" shall have the meaning
provided in the first paragraph of this Agreement.
"Senior Subordinated Note Documents" shall have the meaning
provided in the Recitals to this Agreement.
"Senior Subordinated Note Holders" shall have the meaning
provided in the first paragraph of this Agreement.
"Senior Subordinated Note Indenture" shall have the meaning
provided in the Recitals to this Agreement.
"Senior Subordinated Note Obligations" shall have the meaning
provided in clause (iv) of the definition of "Obligations."
"Senior Subordinated Note Trustee" shall have the meaning
provided in the first paragraph of this Agreement.
"Senior Subordinated Notes" shall have the meaning provided in
the Recitals to this Agreement.
"Shared Security Documents" shall have the meaning provided in
Section 1 hereof.
"Sixth Priority Secured Obligations" shall have the meaning
provided in Section 11(b) of this Agreement.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of
26
any class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time owned by such
Person and/or one or more Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than a 50% equity interest at the
time.
"Third Priority Secured Obligations" shall have the meaning
provided in Section 11(b) hereof.
13. Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications hereunder shall be in writing
and shall be delivered or mailed by first class mail, postage prepaid, addressed
as follows:
(a) if to the Borrower, at:
000 X. Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
(b) if to the Administrative Agent, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx Xxxxx
(c) if to the Collateral Agent, at:
The Bank of New York
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Vice President
(d) if to the Senior Subordinated Note Trustee, at:
Norwest Center
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
(e) if to the Senior Subordinated Contingent Note Trustee, at:
Norwest Center
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
27
(f) if to any Bank Creditor, either (x) to the Administrative
Agent at its address set forth above or (y) at such address as such Bank
Creditor shall have specified in the Credit Agreement;
(g) if to any Other Creditor, either (x) to the Authorized
Representative for the Other Creditors, at such address as such Authorized
Representative may have provided to the Borrower and the Collateral Agent from
time to time, or (y) directly to the Other Creditors at such address as the
Other Creditors shall have specified in writing to the Borrower and the
Collateral Agent;
(h) if to any Senior Subordinated Note Holder, to the Senior
Subordinated Note Trustee at its address set forth above;
(i) if to any Senior Subordinated Contingent Note Holder, to
the Senior Subordinated Contingent Note Trustee at its address set forth above;
(j) if to any Minimum Payment Guarantor at:
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
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;
(k) in addition to any other notices required or permitted to
be given pursuant to this Agreement, the Collateral Agent shall promptly provide
to each Authorized Representative (in accordance with the foregoing provisions
of this Section 13) copies of any notices received by the Collateral Agent under
or with respect to any of the Shared Secured Documents, the Casino Operating
Contract or the Casino Lease.
(l) In addition to any other notices required or permitted to
be given pursuant to this Agreement, the Collateral Agent shall, promptly after
its taking any enforcement action pursuant to this Agreement or any of the
Shared Security Documents, give the LGCB (at the address provided in the
following sentence) written notice of the enforcement action so taken; provided
that any failure or delay in giving any such notice shall not affect or impair
the validity of any such enforcement action and shall give rise to no liability
on the part of the Collateral Agent or any Secured Creditor. All notices to the
LGCB pursuant to this sentence shall be mailed (or sent by reputable courier) to
the LGCB at the following address (or such other address as the LGCB furnishes
to the Collateral Agent from time to time for its receipt of notices pursuant to
this Section):
Louisiana Gaming Control Board
0000 Xxxxxxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chairman
28
14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
15. Miscellaneous. This Agreement shall be binding upon the
parties hereto (including the Credit Parties) and shall inure to the benefit of
and be enforceable by the successors and assigns of the parties hereto. Any
Person that becomes a Secured Creditor after the date hereof by its provision of
any Minimum Payment Guaranty or its acceptance of any Note, any Senior
Subordinated Note, any Senior Subordinated Contingent Note or any Interest Rate
Protection Agreement or the benefits of any Shared Security Document, as the
case may be, shall be bound by the terms hereof. The headings in this Agreement
are for purposes of reference only and shall not limit or define the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which shall constitute one instrument. In
the event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
16. Amendment or Waiver of this Agreement and the Shared
Security Documents Payment; Notice of Acceleration. (a) None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever unless in writing duly signed by the Administrative Agent
(with the consent of the Required Banks), the Required Minimum Payment Guarantor
Secured Creditors, the Senior Subordinated Note Trustee, the Senior Subordinated
Contingent Note Trustee and the Collateral Agent; provided, however, that (x) if
any such change, waiver, modification or variance adversely affects any Credit
Party, the written consent of such Credit Party shall also be required and (y)
if any Interest Rate Protection Agreements are then outstanding and any such
change, waiver, modification or variance will affect the rights and remedies of
the Other Creditors party thereto (and not all Secured Creditors in a like or
similar manner), then the written consent of the Required Other Creditors shall
also be required.
(b) None of the terms and conditions of any Shared Security
Document may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the applicable Credit Party thereto and the
Collateral Agent with the consent of the Required Secured Creditors (and, to the
extent such change, waiver, modification or variance results in the release of
all or substantially all of the Collateral pursuant to all the Shared Security
Documents, with the consent of each of the Banks and each New Bondholder);
provided, however, that (1) any change, waiver, modification or variance
affecting the rights and benefits of a single Class of Secured Creditors (and
not all Secured Creditors in a like or similar manner) shall also require the
written consent of the Required Creditors of such affected Class and (2) any
change, waiver, modification or variance to (a) any of the Mortgage Release
Provisions contained in the Mortgages described in clauses (ii) through (iv),
inclusive, of the definition of Mortgage contained herein, (b) any provision
contained in any Mortgage described in clauses (i) through (iv), inclusive, of
the definition of Mortgage contained herein, stating a maximum amount secured
thereby to the extent that the maximum amount is decreased or (c) any granting
clause in any Mortgage (or otherwise effect any release or partial release,
other than in accordance with the
29
Mortgagee Release Provisions) described in clause (i) through (iv), inclusive,
of the definition of Mortgage contained herein, that releases or decreases the
amount of Collateral subject to the respective Mortgage (unless, in the case of
a partial release, the respective mortgagor certifies that the Collateral so
released is not necessary to the continued use of or conduct of business, if
any, on the respective property subject to such Mortgage) shall in any event as
described in sub-clauses (a), (b) and (c) of this clause (2) require the written
consent of both (x) the Required Creditors with respect to the Credit Agreement
Obligations and (y) the Required Creditors with respect to the New Bond
Obligations; provided further, that without limiting the foregoing, it is
expressly acknowledged and agreed that other creditors may be added as "Secured
Creditors" hereunder (either as part of an existing Class of Secured Creditors
or as a newly created Class) with the consent of the Required Secured Creditors,
and that such addition shall not require the written consent of the Required
Creditors of the various Classes so long as such addition does not otherwise
give rise to an express violation of the terms of the Minimum Payment Guaranty
Documents, the Credit Agreement, the other Credit Documents, the Senior
Subordinated Note Indenture or the Senior Subordinated Contingent Note
Indenture. For the purpose of this Agreement, the term "Class" shall mean each
class of Secured Creditors, i.e., whether (u) any Secured Creditors which have
made Protective Advances, with respect to such Protective Advances, (v) the
Minimum Payment Guarantors as holders of the Minimum Payment Obligations, (w)
the Bank Creditors as holders of the Credit Agreement Obligations, (x) the New
Bondholders as holders of the New Bond Obligations, (y) the Other Creditors as
the holders of the Other Obligations or (z) any newly created class of Secured
Creditors referred to in the immediately preceding sentence. Notwithstanding
anything to the contrary contained above, additional Credit Parties may be added
as parties to the various Shared Security Documents in accordance with the terms
thereof (and without requiring any consent as otherwise contemplated by
preceding clause (b)) and, to the extent provided in Section 17 hereof,
Collateral and/or various Credit Parties may from time to time be released
pursuant to the Shared Security Documents in accordance with the provisions of
said Section 17 (and without the requirement of any additional vote pursuant to
this Section 16).
(c) Each of the Minimum Payment Guarantors, the Administrative
Agent, the Senior Subordinated Note Trustee and the Senior Subordinated
Contingent Note Trustee agrees to deliver to the others:
(i) in the case of the Administrative Agent, prompt written
notice of the acceleration of the Credit Agreement Obligations (such
notice to be provided in the same manner and substantially
contemporaneously with any notice provided to the Borrower), although
the failure to deliver any such notice shall not affect the validity
of such acceleration;
(ii) in the case of the Senior Subordinated Note Trustee, prompt
written notice of the acceleration of the Senior Subordinated Note
Obligations (such notice to be provided in the same manner and
substantially contemporaneously with any notice provided to the
Borrower), although the failure to deliver any such notice shall not
affect the validity of such acceleration;
(iii) in the case of the Senior Subordinated Contingent Note
Trustee, prompt written notice of the acceleration of the Senior
Subordinated Contingent Note Obligations
30
(such notice to be provided in the same manner and substantially
contemporaneously with any notice provided to the Borrower), although
the failure to deliver any such notice shall not affect the validity
of such acceleration; and
(iv) in the case of the Minimum Payment Guarantors, prompt
written notice of any non-renewal of any then outstanding Minimum
Payment Guaranty or any acceleration of any Minimum Payment
Obligations (such notice to be provided in the same manner and
substantially contemporaneously with any notice provided to the
Borrower), although the failure to deliver any such notice shall not
affect the validity of any such non-renewal or acceleration.
17. Termination; Release. (a) This Agreement shall terminate
on the first date upon which (i) no Protective Advances are outstanding (and if
any Protective Advances have theretofore been made, all amounts owing in respect
of Protective Advance Obligations shall have been indefeasibly been paid in
full), (ii) all theretofore outstanding Minimum Payment Guaranties have expired
in accordance with their terms and when all Minimum Payment Obligations which
are then due and payable have been indefeasibly paid in full, (iii) all
commitments under, and letters of credit issued pursuant to, the Credit
Agreement have terminated, when no Note issued thereunder remains outstanding
and all Credit Agreement Obligations have been indefeasibly paid in full, (iv)
no Senior Subordinated Notes remain outstanding and all Senior Subordinated Note
Obligations have been indefeasibly paid in full, (v) no Senior Subordinated
Contingent Notes remain outstanding and all Senior Subordinated Contingent Note
Obligations have been paid in full and (vi) all Interest Rate Protection
Agreements have terminated and all Other Obligations have been indefeasibly paid
in full.
(b) In the event that any Mortgage (excluding the Mortgage
described in clause (i) of the definition thereof contained herein) contains
express release provisions which permit the release of such Mortgage under
conditions which have been (or will concurrently with the respective release be)
satisfied, and so long as the respective release does not give rise to a
violation of any of the provisions of the Credit Documents then in effect, and
so long as the respective Credit Party certifies to the Collateral Agent that
such release is permitted pursuant to the release provisions of the respective
Mortgage and does not give rise to a violation of the terms of the Credit
Documents, the Collateral Agent, at the request and expense of the respective
Credit Party, shall release the respective Mortgage in accordance with the
express release provisions contained therein.
(c) In addition to releases pursuant to preceding clause (b),
in the event that any part of the Collateral (excluding property subject to any
of the Mortgages described in clauses (i) through (iv) of the definition thereof
contained herein, which can be released only pursuant to the provisions thereof)
is sold or otherwise disposed of in connection with a sale or other disposition
permitted by the relevant provisions of the Minimum Payment Guaranty Documents,
the Credit Agreement, the Senior Subordinated Note Indenture and the Senior
Subordinated Contingent Note Indenture or is otherwise released at the direction
of the Required Minimum Payment Secured Creditors, the Required Banks and,
unless the release is permitted pursuant to the terms of the New Bond Documents,
the New Bond Trustees (and all the Banks and all New Bondholders in the case of
a release of all or substantially all of the Collateral under all the Shared
31
Security Documents) and so long as the respective Credit Party under the
respective Shared Security Document certifies to the Collateral Agent that such
sale or other disposition or clause is permitted by the Minimum Payment Guaranty
Documents, the Credit Agreement, the Senior Subordinated Note Indenture and the
Senior Subordinated Contingent Note Indenture and the proceeds of such sale or
other disposition or from such release shall be applied in the manner, if any,
required by the Minimum Payment Guaranty Documents, the Credit Agreement, the
Senior Subordinated Note Indenture and the Senior Subordinated Contingent Note
Indenture, the Collateral Agent, at the request and expense of the respective
Credit Party will duly assign, transfer and deliver to the respective Credit
Party (without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or otherwise disposed of or
released and as may be in the possession of the Collateral Agent and has not
theretofore been released pursuant to this Agreement or the Shared Security
Documents.
(d) At any time that any Credit Party (other than JCC Holding
or the Borrower) is released from all of its obligations pursuant to all Secured
Debt Documents (as defined in the various Shared Security Documents) then in
effect, and so long as the occurrence of such release has been certified to the
Collateral Agent by the Minimum Payment Guarantors (with respect to the Minimum
Payment Guaranty Documents), the Administrative Agent (with respect to the
Credit Documents), the New Bond Trustees (with respect to the New Bond
Obligations) and the Borrower (with respect to all Obligations), and so long as
the Borrower certifies that the respective Credit Party has been released from
all of its Obligations (including any guaranties thereof), the respective Credit
Party shall be released by the Collateral Agent as a party to any Shared
Security Documents to which it is a party at such time, in accordance with the
provisions thereof.
(e) At any time that the respective Credit Party desires that
Collateral (or any Credit Party) be released as provided in the foregoing
Section 17(a), (b), (c) or (d), it shall deliver to the Collateral Agent a
certificate signed by a principal executive officer of such Credit Party stating
that the release of the respective Collateral (or Credit Party) is permitted
pursuant to Section 17(a), (b), (c) or (d). If requested by the Collateral Agent
(although the Collateral Agent shall have no obligation to make any such
request), the respective Credit Party shall furnish appropriate legal opinions
(from counsel acceptable to the Collateral Agent) to the effect set forth in the
immediately preceding sentence. The Collateral Agent shall have no liability
whatsoever to any Secured Creditor as the result of any release of Collateral by
it as permitted by this Section 17.
18. Inconsistent Provisions. If any provision of this
Agreement shall be inconsistent with, or contrary to, any provision in any
Shared Security Document, including, without limitation, any provision of any
Shared Security Document limiting the amount payable to the Collateral Agent,
the provision in this Agreement shall be controlling, and shall supersede such
inconsistent provision to the extent necessary to give full effect to all
provisions contained in this Agreement.
19. Legends. (a) The Borrower and the Senior Subordinated Note
Creditors hereby agree that (i) the Senior Subordinated Note Indenture shall
contain an appropriate provision therein to the effect that such Senior
Subordinated Note Indenture, and the Senior
32
Subordinated Notes issued thereunder, are subject to the terms of this
Agreement, and (ii) each Senior Subordinated Note issued pursuant to the Senior
Subordinated Note Indenture shall contain the following legend (which shall be
printed thereon in bold face):
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN
THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE INDENTURE), WHICH INTERCREDITOR
AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE
SECURITY FOR THIS NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER
SECURED CREDITORS (AS DEFINED IN THE INTERCREDITOR AGREEMENT). COPIES OF SUCH
INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS NOTE UPON
REQUEST TO THE BORROWER.
(b) The Borrower and the Senior Subordinated Contingent Note
Creditors hereby agree that (i) the Senior Subordinated Contingent Note
Indenture shall contain an appropriate provision therein to the effect that such
Senior Subordinated Contingent Note Indenture, and the Senior Subordinated
Contingent Notes issued thereunder, are subject to the terms of this Agreement,
and (ii) each Senior Subordinated Contingent Note issued pursuant to the Senior
Subordinated Contingent Note Indenture shall contain the following legend (which
shall be printed thereon in bold face):
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN
THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE INDENTURE), WHICH INTERCREDITOR
AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE
SECURITY FOR THIS NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER
SECURED CREDITORS (AS DEFINED IN THE INTERCREDITOR AGREEMENT). COPIES OF SUCH
INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS NOTE UPON
REQUEST TO THE BORROWER.
(c) The Borrower and the Banks hereby agree that (i) the
Credit Agreement shall contain an appropriate provision therein to the effect
that the Credit Agreement, and the Notes issued thereunder, are subject to the
terms of this Agreement and (ii) each Note issued pursuant to the Credit
Agreement shall contain the following legend (which shall be printed thereon in
bold face):
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN
THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE AGREEMENT), WHICH INTERCREDITOR
AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE
SECURITY FOR THIS NOTE AND THE SHARING OF PROCEEDS THEREOF WITH CERTAIN OTHER
SECURED CREDITORS (AS DEFINED IN THE INTERCREDITOR AGREEMENT). COPIES OF SUCH
INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY HOLDER OF THIS NOTE UPON
REQUEST TO THE BORROWER.
33
20. Co-Collateral Agents; Separate Collateral Agents. (a) If
at any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Collateral shall be located, or the
Collateral Agent shall be advised by counsel, satisfactory to it and to the
Required Minimum Payment Guarantor Secured Creditors, the Administrative Agent
and the New Bond Trustees, that it is necessary or prudent in the interest of
the Collateral Agent or the Secured Creditors, then the Collateral Agent shall
be entitled to appoint one or more sub-collateral agents or co-collateral
agents, and in such case the Collateral Agent, the Borrower and each of the
other Credit Parties having an interest in the Collateral located in the State
in which such separate or sub-collateral agent or co-collateral agent is to act
shall execute and deliver all instruments and agreements necessary or proper to
constitute another bank or trust company, or one or more individuals approved by
the Collateral Agent, either to act as co-collateral agent or co-collateral
agents jointly with the Collateral Agent originally named herein or any
successor or successors, or to act as a separate or subcollateral agent or
agents of the Collateral Agent and the Secured Creditors in respect of any or
all of the Collateral. If the Borrower and each of the other Credit Parties
having an interest in the Collateral located in the State in which such separate
or sub-collateral agent or co-collateral agent is to act shall not have joined
in the execution of such instruments or agreements within 10 days after the
receipt of a written request from the Collateral Agent so to do, or if a Default
or an Event of Default shall be continuing, the Collateral Agent may act under
the foregoing provisions of this Section 20 without the concurrence of the
Borrower and the other Credit Parties, and the Borrower and each of the other
Credit Parties hereby irrevocably appoint the Collateral Agent as their agent
and attorney to act for them under the foregoing provisions of this Section 20
in either of such contingencies. Any co-collateral agent or separate or
sub-collateral agent appointed to act with respect to the Casino shall be a
Qualified Person.
(b) Every separate or sub-collateral agent (and all references
herein to a "separate collateral agent" shall be deemed to refer also to a
"sub-collateral agent" or a "collateral sub-agent") and every co-collateral
agent, other than any collateral agent which may be appointed as successor to
any Collateral Agent, shall, to the extent permitted by applicable law, be
appointed and act and be such, subject to the following provisions and
conditions, namely:
(i) all rights, remedies, powers, duties and obligations
conferred upon, reserved to or imposed upon the Collateral Agent in
respect of the custody, control and management of monies, papers or
securities shall be exercised solely by the Collateral Agent
hereunder;
(ii) all rights, remedies, powers, duties and obligations
conferred upon, reserved to or imposed upon the Collateral Agent
hereunder shall be conferred, reserved or imposed and exercised or
performed by the Collateral Agent and such separate collateral agent
or separate collateral agents or co-collateral agent or co-collateral
agents, jointly or severally, as shall be provided in the instrument
appointing such separate collateral agent or separate collateral
agents or co-collateral agent or co-collateral agents, except to the
extent that, under any law of any jurisdiction in which any particular
act or acts are to be performed, the Collateral Agent shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, remedies, powers, duties and obligations shall be
exercised and performed by such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents;
34
(iii) no power given hereby to, or which it is provided hereby
may be exercised by, any such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents shall
be exercised hereunder by such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents
except (subject to applicable law) jointly with, or with the consent
or at the direction in writing of, the Collateral Agent;
(iv) all provisions of this Agreement relating to the Collateral
Agent or to releases of Collateral shall apply to any such separate
collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents;
(v) no collateral agent constituted under this Section 20 shall
be personally liable by reason of any act or omission of any other
separate or co-collateral agent or the Collateral Agent hereunder; and
(vi) the Collateral Agent at any time by an instrument in
writing, executed by it, may accept the resignation of any such
separate collateral agent or co-collateral agent and the Collateral
Agent or the Required Secured Creditors may individually or jointly
remove any such separate collateral agent or co-collateral agent, and
in that case, by an instrument in writing executed by the Collateral
Agent or the Required Secured Creditors, as the case may be, and the
Collateral Agent or the Required Secured Creditors, as the case may
be, may appoint a successor to such separate collateral agent or
co-collateral agent, as the case may be, anything herein contained to
the contrary notwithstanding. If the Borrower and each of the other
Credit Parties shall not have joined in the execution of any such
instrument within 10 days after the receipt of a written request from
the Collateral Agent so to do, or if a Default or an Event of Default
shall be continuing, the Collateral Agent shall have the power to
accept the resignation of or remove any such separate collateral agent
or co-collateral agent and to appoint a successor to such separate
collateral agent or co-collateral agent, as the case may be, and to
execute any such instrument without the concurrence of the Borrower or
such other Credit Party, and the Borrower and each of the other Credit
Parties hereby irrevocably appoint the Collateral Agent their agent
and attorney to act for them in such connection in either of such
contingencies. If the Collateral Agent shall have appointed a separate
collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents as above provided, the Collateral Agent may at
any time, by an instrument in writing, accept the resignation of or
remove any such separate collateral agent or co-collateral agent, the
successor to any such separate collateral agent or co-collateral agent
to be appointed by the Borrower and each of the other Credit Parties
and the Collateral Agent, or by the Collateral Agent alone, as
hereinabove provided in this Section 20.
(c) Notwithstanding any other provision of this Section 20,
the Collateral Agent shall not appoint any separate collateral agent or
co-collateral agent without the consent of the Minimum Payment Guarantors, the
Administrative Agent and the New Bond Trustees.
21. Special Provisions regarding Minimum Payment Guarantors.
As contemplated by Section 15 hereof, this Agreement shall be binding upon the
successors and assigns of
35
HET and HOC, as the Minimum Payment Guarantors originally party hereto. In
addition to the provisions of the immediately preceding sentence, if any other
Person at any time furnishes any substitute or replacement Minimum Payment
Guaranty (unless such Minimum Payment Guaranty is being provided on an unsecured
basis), then each such person or entity which so furnishes a successor or
replacement Minimum Payment Guaranty (or becomes a Minimum Payment Guarantor,
either individually or jointly and severally with any other Person) shall be
required (and JCC Holding and the Borrower shall cause each such Person) to
become a party to this Agreement (concurrently with its providing any such
Minimum Payment Guaranty or becoming a Minimum Payment Guarantor), by executing
and delivering to the Collateral Agent an instrument in writing, in
substantially the form of Annex A hereto, pursuant to which it becomes a party
hereto as a Minimum Payment Guarantor. Any Person furnishing a Minimum Payment
Guaranty (or becoming a Minimum Payment Guarantor) which does not so become a
party hereto shall not be entitled to the benefits (and shall not be secured by)
any of the Shared Security Documents.
22. Rights under Casino Lease. The parties hereto acknowledge
that, for purposes of the Casino Lease, the Collateral Agent shall be the "First
Leasehold Mortgagee" under and as defined in the Casino Lease and the exercise
of any and all rights granted the Collateral Agent as the First Leasehold
Mortgagee under the Casino Lease shall be subject to and in accordance with the
terms and conditions of this Agreement, including, without limitation, the
provisions of Sections 4 and 11 hereof.
23. Additional Collateral. Each Secured Creditor hereby agrees
for the benefit of the other Secured Creditors that, except as otherwise
specifically provided in Section 11(j) hereof and in the immediately succeeding
sentence, to the extent any additional or substitute collateral for any of the
Obligations is delivered by JCC Holding or any of its Subsidiaries to or for the
benefit of any Secured Creditor, such collateral shall be subject to the
provisions of this Agreement and the interest of such Secured Creditor therein
shall be immediately transferred to the Collateral Agent. The foregoing
provisions shall not apply to any cash payments received by any Authorized
Representative or Secured Creditor in advance (but not more than ten Business
Days in advance) of the date such cash is to be applied to the payment of any
Obligations or to any cash or cash equivalents required to be delivered at any
time as collateral for one or more outstanding Letters of Credit pursuant to the
Credit Agreement.
24. No Third Party Beneficiaries. This Agreement is entered
into solely for the benefit of the parties hereto and their respective
successors and assigns and for the benefit of the Secured Creditors from time to
time and their respective successors and assigns and, except for the Secured
Creditors and their successors and assigns, there shall be no third party
beneficiaries hereof, nor shall any Person other than the parties hereto and
their respective successors and assigns, and the Secured Creditors and their
respective successors and assigns, be entitled to enforce the provisions hereof
or have any claims against any party hereto (or any Secured Creditor) or their
successors and assigns arising from, or under, this agreement.
36
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK,
as Collateral Agent
By /s/ R. Xxxxxxx Xxxx
----------------------------------
Title: Agent
BANKERS TRUST COMPANY,
as Administrative Agent
By /s/ Xxxx Xxx Xxxxx
----------------------------------
Title: Managing Director
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Senior Subordinated Note Trustee
and as Senior Subordinated Contingent
Note Trustee
By /s/ Xxx Xxxxxxxxxx
----------------------------------
Title: Vice President
XXXXXX'X ENTERTAINMENT, INC.,
as a Minimum Payment Guarantor
By /s/ X.X. Xxxxxxxx, XX
----------------------------------
Title: Vice President
XXXXXX'X OPERATING COMPANY, INC.,
as a Minimum Payment Guarantor
By /s/ X.X. Xxxxxxxx, XX
----------------------------------
Title: Vice President
Acknowledged and Agreed to
as of the date first above
written:
JCC HOLDING COMPANY
By /s/ L. Xxxxxxx Xxxxxx
--------------------------
Title: Vice President/Secretary
JAZZ CASINO COMPANY, L.L.C.
By /s/ L. Xxxxxxx Xxxxxx
--------------------------
Title: Vice President/Secretary
CP DEVELOPMENT, L.L.C.
By /s/ L. Xxxxxxx Xxxxxx
--------------------------
Title: Vice President/Secretary
FP DEVELOPMENT, L.L.C.
By /s/ L. Xxxxxxx Xxxxxx
--------------------------
Title: Vice President/Secretary
JCC DEVELOPMENT COMPANY, L.L.C.
By /s/ L. Xxxxxxx Xxxxxx
--------------------------
Title: Vice President/Secretary
ANNEX A TO INTERCREDITOR AGREEMENT
FORM OF JOINDER AGEEMENT TO BECOME
PARTY TO THE INTERCREDITOR AGREEMENT
[Name and Address of
Collateral Agent]
Re: Intercreditor Agreement dated as of _____, 1998, as amended
Reference is hereby made to that certain Intercreditor Agreement dated
as of ____, 1998, among the various Secured Creditors described therein and you,
as Collateral Agent (the "Intercreditor Agreement"). Unless otherwise defined
herein, capitalized terms used herein and defined in the Intercreditor Agreement
are used herein as therein defined.
The undersigned hereby notifies you that it has provided, or will be
providing, a Minimum Payment Guaranty to the State of Louisiana by and through
the LGCB in accordance with the provisions of Section 25.1 of the Casino
Operating Contract. As a result of the execution and delivery of this Agreement
by the undersigned, the undersigned hereby agrees to become a party to the
Intercreditor Agreement as a Minimum Payment Guarantor thereunder, in each case
in accordance with the terms and provisions of the Intercreditor Agreement. The
undersigned agrees to comply with its obligations (including without limitation
those set forth in Section 6(c) and (d) thereof) as a party to the Intercreditor
Agreement as a Minimum Payment Guarantor thereunder.
IN WITNESS WHEREOF, this Agreement is executed and delivered as of this
____ day of ____, ____.
[Address of Minimum Payment Guarantor] [Name of Minimum Payment Guarantor]
By
-----------------------------
Name:
Title:
Accepted and Agreed as of this ___ day of ____, ____:
[Name of Collateral Agent], as Collateral Agent
By
----------------------------------
Name:
Title:
