Exhibit 10.19
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That we, Jazz Casino Company, L.L.C, (the "Principal"), as
Principal, and Reliance Insurance Company, a Pennsylvania corporation, and
United States Fidelity and Guaranty Company, a Maryland corporation (each a
"Surety", and collectively, the "Sureties"), as Sureties, are held and firmly
bound, in solido with each other, unto the City of New Orleans (the "City") and
the Rivergate Development Corporation, a Louisiana public benefit corporation
(the "RDC"), the Louisiana Gaming Control Board (the "LGCB"), Norwest Bank
Minnesota, national association, as trustee for the holders of the Senior
Subordinated Notes due 2009 with Contingent Payments and the holders of the
Senior Subordinated Contingent Notes due 2009 (the "Trustee"), and Bankers Trust
Company (the "Administrative Agent") as administrative agent for certain lenders
(the "Banks") (each an "Obligee" and collectively, the "Obligees") in the
amounts set forth in Section 2(b) hereof, for payment of which sums under the
terms of this Performance Bond (this "Bond") we bind ourselves, our heirs,
personal representatives, successors, and assigns, jointly and severally (and in
the case of the Sureties, in solido with each other), on the terms and
conditions set forth below.
WHEREAS, the Principal, the RDC, and the City have entered into
that certain Xxxxxxx and Restated General Development Agreement of even date
herewith (the "GDA"), the terms of which are fully incorporated herein by
reference, with respect to, among other things, the Phase I and II Construction
(as defined in the GDA).
WHEREAS, Xxxxxx'x Entertainment, Inc., a Delaware corporation,
and Xxxxxx'x Operating Company, Inc., a Delaware corporation (collectively, the
"Completion Guarantors"), have entered into that certain City/RDC Completion
Guarantee of even date herewith in favor of the City and the RDC, that certain
LGCB Completion Guarantee of even date herewith in favor of the LGCB, that
certain Notes Completion Guarantee of even date herewith in favor of the
Trustee, and that certain Bank Completion Guarantee of even date herewith in
favor of the Administrative Agent (each a "Completion Guarantee" and
collectively, the "Completion Guarantees"), the terms of which Completion
Guarantees are fully incorporated herein by reference.
NOW, THEREFORE, the condition of this Bond is as follows:
1. Obligations of Sureties. If (i) the Principal defaults under
Section 2.13(a) of the GDA with regard to the commencement or completion of all
or any portion of the Phase I and II Construction excluding the Principal's
obligations in respect of the Minimum FF&E (as defined in the GDA), and (ii)
such Obligee provides notice to the Sureties at the address set forth in Section
4 hereof of the foregoing, then the Sureties shall thereupon (A) take all steps
necessary to secure the Development (as defined in the GDA) to prevent damage or
deterioration to the Development and unauthorized access or entry to the
Development, and (B) diligently, expeditiously and continuously prosecute or
cause to be prosecuted to completion the Phase I and II Construction (excluding
the Minimum FF&E) or such portion thereof as shall be the subject of such demand
in accordance with Section 2.13(a) of the GDA (the "Performance Bond
Construction"), subject to the terms set forth in Section 2 hereof.
2. Terms and Conditions. The obligations of the Sureties under
this Bond shall be subject to the following terms and conditions: a. Subject to
Section 2.e. hereof, the Sureties' obligations under this Bond to each Obligee
shall terminate (i) upon the completion of the Performance Bond Construction or
(ii) as to each Obligee, upon the termination of the Completion Obligations of
the Completion Guarantors with respect to each such Obligee, respectively,
pursuant to Section 12.3 of the respective Completion Guarantee in favor of such
Obligee.
b. The Sureties under this Bond shall in no event be liable to
the Obligees or be required to expend funds in prosecuting or causing to be
prosecuted to completion the Performance Bond Construction together with
reimbursement of any fees or costs pursuant to Section 10.a. hereof in an
aggregate amount under this Bond in excess of One Hundred Nineteen Million
Dollars ($119,000,000).
c. Any performance by the Sureties in satisfaction of their
obligations in accordance with the terms of this Bond (without modification or
compromise of the terms of this Bond) which is made pursuant to the demand of
one Obligee shall constitute performance in satisfaction of all obligations that
may be owed to all Obligees.
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d. If the Principal timely prosecutes or causes to be
prosecuted to completion all of the Performance Bond Construction, then this
Bond shall be null and void and of no further effect. If the Principal timely
prosecutes or causes to be prosecuted to completion any portion of the
Performance Bond Construction, then this Bond shall be null and void and of no
further effect with respect to such portion of the Performance Bond
Construction, provided however that this Bond shall remain in effect with
respect to such portion of the Performance Bond Construction which has not been
completed, subject to the aggregate cost limit set forth in Section 2.b. hereof.
The Surety shall have no obligations under this Bond with respect to
installation of any of the Minimum FF&E or any other FF&E (as defined in the
GDA).
e. Except as to any matter as to which written notice shall
have been made pursuant to Section 1 hereof prior thereto, the obligations of
the Sureties hereunder shall expire on the second anniversary of the date of
this Bond, as extended by any period of Force Majeure (as defined in the GDA),
regardless of the status of the completion of the Performance Bond Construction
or any portion thereof.
3. Successors and Assigns. This Bond may not be assigned by any
party hereto without the consent of the other parties hereto. This Bond shall be
binding upon the parties hereto and their respective permitted successors and
assigns.
4. Notices. All notices or other communications required or
permitted to be given or delivered pursuant to this Bond shall be in writing and
shall be considered as properly given if transmitted by Certified United States
mail, postage prepaid, with return receipt requested, overnight courier service,
or personal delivery. Any party hereto may from time to time, by notice in
writing served upon the other parties hereto pursuant to this Section designate
a different address or person to whose attention notices shall be given. Notices
hereunder shall be deemed given upon receipt. The address of the parties hereto
for notices are:
Sureties: Reliance Insurance Company
Three Parkway, 10th Floor
Philadelphia, Pennsylvania 19103
Attention: Claims Department
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United States Fidelity and Guaranty Company
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Claims Department
Principal: Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: President
with copies to Xxxxxx'x Entertainment, Inc.
Completion Guarantor: 0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000-5423
Attention: General Counsel
City and the RDC: as provided in the City/RDC Completion
Guaranty
Trustee: as provided in the Notes Completion
Guarantee
LGCB: as provided in the LGCB Completion
Guarantee
Administrative Agent: as provided in the Bank Completion
Guarantee
5. Copies of Notices. Any notice received by the Sureties from
any of the Obligees shall be immediately forwarded by the Sureties to each of
the other Obligees and to the Principal and Completion Guarantors at the
addresses set forth above.
6. Modification of GDA. Any obligations of the Sureties to
complete the Performance Bond Construction pursuant to Section 2.a. hereof shall
be in accordance with Section 2.13(a) of the GDA as in effect on the execution
date hereof or as otherwise set forth pursuant to any amendment, modification,
supplement, extension, renewal or restatement of the GDA executed by all parties
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to the GDA as to which the Sureties have been notified by any Obligee. The
failure of Obligees to notify the Sureties of any amendment, modification,
supplement, extension, renewal or restatement of the GDA shall not be a default
under this Bond; provided that the Sureties shall have no obligations in respect
of any amendment, modification, supplement, extension, renewal or restatement of
the GDA as to which they have not been notified.
7. No Other Parties Benefited. No other parties other than those
named in this Bond shall have any rights hereunder.
8. Time for Filing Suit. Any suit under this Xxxx must be
instituted before the expiration of two (2) years from the date of a notice to
the Sureties pursuant to Section 1 hereof.
9. Definitions. As used in this Bond, the following terms shall
have the following meanings, such meanings to be equally applicable to both the
singular and plural forms of the terms defined:
"Act" shall mean the Louisiana Economic Development and Gaming
Corporation Act as set forth in LSA R.S. 4:601 et seq., adopted by the
Legislature of the State of Louisiana as No. 384, Acts 1992, as amended, and
regulations adopted thereunder, amendments and reenactment of LSA R.S.
36:801.1(A) and enactment of LSA R.S. 27:1 et seq., adopted by the Legislature
of the State of Louisiana as Act 7, First Extraordinary Session, 1996, and
regulations adopted thereunder; the Local Option Gaming election as set forth in
LSA R.S. 18:1300.21, adopted by the Legislature of the State of Louisiana as Act
57, First Extraordinary Session 1996, and the act adopted by the Legislature of
the State of Louisiana as Act 98, First Extraordinary Session, 1996.
"Casino Operating Contract" shall mean that certain Amended and
Restated Casino Operating Contract by and between the Principal and the LGCB
entered into pursuant to the Plan (as defined in the GDA).
10. Fees and Costs
a. Following any default by the Principal under Section
2.13(a) of the GDA, the Sureties shall reimburse the reasonable attorneys' fees
and costs of the Obligees to enforce any rights in respect of the breach of
Section 2.13(a) of the GDA.
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b. The Sureties shall reimburse the reasonable attorney's fees
and costs of the Obligees to enforce this Bond as a result of any default by the
Sureties in the performance of this Bond.
11. Submission to Jurisdiction
a. Each party to this Bond hereby submits to the jurisdiction
of the State of Louisiana and the courts thereof, for the purposes of any suit,
action of other proceeding arising out of or relating to this Bond and hereby
agrees not to assert by way of motion as a defense or otherwise that such action
is brought in an inconvenient forum or that the venue of such action is improper
or that the subject matter thereof may not be enforced in or by such courts.
b. If at any time during the term of this Bond, any party
hereto is not a resident of the State of Louisiana or has no officer, director,
employee, or agent thereof available for service of process as a resident of the
State of Louisiana, or if any permitted assignee thereof shall be a foreign
corporation, partnership or other entity or shall have no officer, director
employee, or agent available for service of process in the State of Louisiana,
any such party or its assignee hereby designates the Secretary of State, State
of Louisiana, its agent for the service of process in any court action arising
out of or relating to this Bond and such service shall be made as provided by
the laws of the State of Louisiana for service upon a non-resident; provided,
however, that at the time of service on the Secretary of State, copy of such
service shall be delivered to such party in the manner provided in Section 4
hereof. 12. Governing Law. This Bond shall be governed and construed in
accordance with the internal substantive laws of the State of Louisiana
regardless of the laws which might otherwise govern under Louisiana's or other
applicable concepts of conflicts of law.
[SIGNATURE PAGES FOLLOW]
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Signed and sealed the 29th day of October, 1998.
PRINCIPAL: JAZZ CASINO COMPANY, L.L.C., a
Louisiana limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
---------------------------------
Title: President
---------------------------------
SURETIES: RELIANCE INSURANCE COMPANY
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
UNITED STATES FIDELITY AND
GUARANTY COMPANY
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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Signed and sealed the 29th day of October, 1998.
PRINCIPAL: JAZZ CASINO COMPANY, L.L.C., a
Louisiana limited liability company
By: /s/
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
SURETIES: RELIANCE INSURANCE COMPANY
By: /s/ X. X. Xxxxxxx, Xx.
---------------------------------
Name: X. X. Xxxxxxx, Xx.
---------------------------------
Title: Attorney In Fact
---------------------------------
UNITED STATES FIDELITY AND
GUARANTY COMPANY
By: /s/ X. X. Xxxxxxx, Xx.
---------------------------------
Name: X. X. Xxxxxxx, Xx.
---------------------------------
Title: Attorney In Fact
---------------------------------
Countersignature:
/s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx, LA Resident Agent
J&H Xxxxx & XxXxxxxx of Louisiana, Inc.
000 Xxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
License No. 107761
S-1
Accepted and agreed:
OBLIGEES:
TRUSTEE
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
LOUISIANA GAMING CONTROL BOARD
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: Chairman
---------------------------------------
CITY OF NEW ORLEANS
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
RIVERGATE DEVELOPMENT CORPORATION
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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Accepted and agreed:
OBLIGEES:
TRUSTEE
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
LOUISIANA GAMING CONTROL BOARD
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
CITY OF NEW ORLEANS
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------------
Title: Mayor
---------------------------------------
RIVERGATE DEVELOPMENT CORPORATION
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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Accepted and agreed:
OBLIGEES:
TRUSTEE
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
LOUISIANA GAMING CONTROL BOARD
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
CITY OF NEW ORLEANS
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
RIVERGATE DEVELOPMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Vice-President
---------------------------------------
S-2
ADMINISTRATIVE AGENT:
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
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S-3
