Exhibit 10.34
PLEDGE AGREEMENT
----------------
PLEDGE AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of October 29, 1998, among each of the
undersigned pledgors (each a "Pledgor" and, collectively, the "Pledgors"), The
Bank of New York, in its individual capacity acting in respect of any Collateral
(as defined below) credited on the books of a Clearing Corporation (as defined
below) as Securities Intermediary (as defined below) with respect to each
Pledgor (the "Custodian"), and The Bank of New York, not in its individual
capacity but solely as Collateral Agent (the "Pledgee") for the benefit of (v)
Xxxxxx'x Entertainment, Inc., a Delaware Corporation ("HET"), and Xxxxxx'x
Operating Company, Inc., a Delaware Corporation ("HOC"), under the HET/JCC
Agreement or any successor or substitute Minimum Payment Guarantor under any
other Minimum Payment Guarantor Documents referred to below, (w) the Banks (as
defined below) and the Administrative Agent (as defined below) under, and any
other lenders from time to time party to, the Credit Agreement hereinafter
referred to (such Banks, the Administrative Agent and other lenders, if any, are
hereinafter called the "Bank Creditors"), (x) the holders from time to time of
the Senior Subordinated Notes hereinafter referred to (such holders of the
Senior Subordinated Notes are hereinafter called the "Senior Subordinated Note
Holders") and the Senior Subordinated Note Trustee referred to below (the Senior
Subordinated Note Holders, and together with the Senior Subordinated Note
Trustee, in its capacity as such, are hereinafter called the "Senior
Subordinated Note Creditors"), (y) the holders from time to time of the Senior
Subordinated Contingent Notes hereinafter referred to (such holders of the
Senior Subordinated Contingent Notes are hereinafter called the "Senior
Subordinated Contingent Note Holders") and the Senior Subordinated Contingent
Note Trustee referred to below (the Senior Subordinated Contingent Note Holders,
and together with the Senior Subordinated Contingent Note Trustee, in its
capacity as such, are hereinafter called the "Senior Subordinated Contingent
Note Creditors") and (z) 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, Jazz Casino Company, L.L.C., a Louisiana limited liability
company ("JCC"), any such Bank or Banks or any Affiliate of 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, the Senior
Subordinated Note Creditors and the Senior Subordinated Contingent Note
Creditors, are hereinafter called the "Secured Creditors"). Except as otherwise
defined herein, terms used herein and defined in the Intercreditor Agreement (as
in effect on the date hereof and without giving effect to any termination
thereof) shall be used herein as so defined and to the extent not defined herein
or in the Intercreditor Agreement, such terms shall be used herein as defined in
the Credit Agreement.
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 in connection therewith JCC, HET and
HOC have entered into that certain HET/JCC Agreement dated October 29, 1998 (as
amended, modified or supplemented from time to time, the "HET/JCC Agreement");
WHEREAS, JCC Holding Company ("JCC Holding"), JCC, the lenders
(the "Banks") from time to time party thereto, and Bankers Trust Company, as
Administrative Agent (together with any successor agent, the "Administrative
Agent"), have entered into a Credit Agreement, dated as of October 29, 1998,
providing for the making of certain 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 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
referred to below remain outstanding) and under the Senior Subordinated
Contingent Note Documents referred to below (if the Senior Subordinated
Contingent Notes referred to below 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 JCC to the Collateral
Agent);
WHEREAS, JCC has issued $187,500,000 in aggregate principal
amount of its Senior Subordinated Notes with Contingent Payments due 2009 (the
"Senior Subordinated Notes") pursuant to an Indenture, dated as of October 30,
1998, among JCC, as issuer, JCC Holding, as guarantor, and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, together with any
successor trustee, "the Senior Subordinated Note Trustee") (as amended, modified
or supplemented from time to time, the "Senior Subordinated Note Indenture"
2
and, together with the Senior Subordinated Notes and all other documents and
agreements relating thereto are herein called the "Senior Subordinated Note
Documents");
WHEREAS, JCC has issued its Senior Subordinated Contingent
Notes due 2009 (the "Senior Subordinated Contingent Notes") pursuant to an
Indenture, dated as of October 30, 1998, among JCC, as issuer, JCC Holding, as
guarantor, and Norwest Bank Minnesota, National Association, as trustee (in such
capacity, together with any successor trustee the "Senior Subordinated
Contingent Note Trustee") (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");
WHEREAS, JCC 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;
WHEREAS, pursuant to (1) the JCC Holding Guaranty, as defined
in the Credit Agreement, JCC Holding has guaranteed to the Bank Creditors and
the Other Creditors the payment when due of all obligations and liabilities of
JCC under or with respect to (x) the Credit Documents and (y) the Interest Rate
Protection Agreements and (2) the Subsidiaries Guaranty, each Pledgor (other
than JCC Holding and JCC) has jointly and severally guaranteed to the Bank
Creditors and the Other Creditors the payment when due of all obligations and
liabilities of JCC under or with respect to (x) the Credit Documents and (y) the
Interest Rate Protection Agreements;
WHEREAS, pursuant to Article XII of the Senior Subordinated
Note Indenture, JCC Holding and each other Pledgor (other than JCC) have jointly
and severally guaranteed (the "Senior Subordinated Note Guaranty") to the Senior
Subordinated Note Creditors the payment when due of all obligations and
liabilities of JCC under or with respect to the Senior Subordinated Note
Documents;
WHEREAS, pursuant to Article XII of the Senior Subordinated
Contingent Note Indenture, JCC Holding and each other Pledgor (other than JCC)
have jointly and severally guaranteed (the "Senior Subordinated Contingent Note
Guaranty") to the Senior Subordinated Contingent Note Creditors the payment when
due of all obligations and liabilities of JCC under or with respect to the
Senior Subordinated Contingent Note Documents;
WHEREAS, it is a condition precedent to each of the
above-described extensions of credit to JCC that each Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, the Secured Creditors and the Pledgee have entered
into that certain Intercreditor Agreement dated October 29, 1998 (the
"Intercreditor Agreement") setting forth the respective rights of the Secured
Creditors in the Collateral referred to in this Agreement, the
3
Security Agreement (as defined in the Intercreditor Agreement) and the Mortgages
(as defined in the Intercreditor Agreement);
WHEREAS, each Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the above-described
extensions of credit to be made to JCC and the other benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by
each Pledgor for the benefit of the Secured Creditors to secure:
(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 (as defined in the
Intercreditor Agreement) made in accordance with the requirements of
Section 4(e) of the Intercreditor 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 Pledgor 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 the Intercreditor Agreement and the
due performance and compliance by each Pledgor 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,
expenses, enforcement costs (including reasonable attorneys' fees) and
interest on such obligations and indebtedness) of such Pledgor to the
Minimum Payment Guarantors now existing or hereafter incurred under,
arising out of, or in connection with any Minimum Payment Guaranty
Document (in each case, to the extent such obligations and indebtedness
relate to any Minimum Payment Guaranty) to which it is a party
(including, without limitation, all such obligations and indebtedness
under the HET/JCC Agreement) and the due performance and compliance by
such Pledgor 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 all obligations and
indebtedness (including, without limitation, indemnities, fees,
expenses, enforcement costs (including reasonable attorneys' fees) and
interest on such obligations and indebtedness) of such Pledgor to the
Bank
4
Creditors now existing or hereafter incurred under, arising out of, or
in connection with any Credit Document to which it is a party
(including, without limitation, all such obligations and indebtedness
under the Credit Agreement, the JCC Holding Guaranty and the
Subsidiaries Guaranty) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in
each such Credit Document (all such principal, interest, obligations
and liabilities described in this clause (iii) being herein
collectively called the "Credit Document Obligations");
(iv) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, fees,
expenses, enforcement costs (including reasonable attorneys' fees) and
interest on such obligations and indebtedness) of such Pledgor to the
Senior Subordinated Note Creditors, arising out of, or in connection
with the Senior Subordinated Notes and the Senior Subordinated Note
Documents (including, without limitation, all such obligations and
indebtedness under the Senior Subordinated Note Guaranty) and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained therein (all such principal,
interest, 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 all obligations and
indebtedness (including, without limitation, indemnities, fees,
expenses, enforcement costs (including reasonable attorneys' fees) and
interest on such obligations and indebtedness) of such Pledgor to the
Senior Subordinated Contingent Note Creditors, arising out of, or in
connection with the Senior Subordinated Contingent Notes and the Senior
Subordinated Contingent Note Documents (including, without limitation,
all such obligations and indebtedness under the Senior Subordinated
Contingent Note Guaranty) and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained
therein (all such principal, interest, obligations and liabilities
described in this clause (v) being herein collectively called the
"Senior Subordinated Contingent Note 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 such Pledgor to the Other Creditors under, or with
respect to, any Interest Rate Protection Agreement, whether such
Interest Rate Protection Agreement is now in existence or hereafter
arising (including, without limitation, all such obligations and
indebtedness under the JCC Holding Guaranty and the Subsidiaries
Guaranty), and the due performance and compliance by such Pledgor 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 sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral, and any and all amounts (but
without any interest thereon) owing by the Borrower to the
5
Minimum Payment Guarantors to reimburse the Minimum Payment Guarantors
for amounts paid by the Minimum Payment Guarantors to the Collateral
Agent pursuant to the indemnity provisions contained in Section 6(c)
and (d) of the Intercreditor Agreement;
(viii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) through (vi) above, after an Event
of Default (as hereinafter defined) shall have occurred and be
continuing, the reasonable expenses of the Pledgee in retaking,
holding, preparing for sale or lease, selling or otherwise disposing of
or realizing on the Collateral, or of any exercise by the Pledgee of
its rights hereunder, together with reasonable attorneys' fees and
court costs; and
(ix) all amounts paid by any Indemnitee (as hereinafter
defined) as to which such Indemnitee has the right to reimbursement
under Section 11 hereof;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (ix) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit described above, whether outstanding on the date of
this Agreement or extended from time to time after the date of this Agreement.
As used herein the term "Event of Default" shall mean any "Event of Default"
under, and as defined in, the Intercreditor Agreement, or any other default
hereunder after notice from the Pledgee and 30 days opportunity to cure, as the
case may be, and shall in any event include any payment default on the
Obligations after the expiration of any applicable grace period.
2. DEFINITIONS; ANNEXES. (a) Unless otherwise defined herein,
all capitalized terms used herein and defined in the Credit Agreement shall be
used herein as therein defined. Reference to singular terms shall include the
plural and vice versa.
The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the
Recitals hereto.
"Adverse Claim" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Bank Creditors" has the meaning set forth in the first
paragraph hereof.
"Banks" has the meaning set forth in the Recitals hereto.
"Certificated Security" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
6
"Clearing Corporation" has the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established
and maintained by the Pledgee or the Securities Intermediary in the name of any
Pledgor, including, without limitation, the Securities Intermediary Account, to
which Collateral may be credited.
"Credit Agreement" has the meaning set forth in the Recitals
hereto.
"Credit Document Obligations" has the meaning set forth in
Section 1 hereof.
"Custodian" has the meaning set forth in the first paragraph
hereof.
"Custodian Account" means any account established and
maintained by the Custodian in the name of any Pledgor to which Collateral also
credited on the books of a Clearing Corporation may be credited.
"Domestic Corporation" has the meaning set forth in the
definition of "Stock."
"Entitlement Order" has the meaning given such term in Section
8-102(a)(8) of the UCC.
"Event of Default" has the meaning set forth in Section 1
hereof.
"Excluded Collateral" means (i) the Casino Operating Contract;
(ii) the House Bank; and (iii) the Louisiana Gross Gaming Revenue Share
Payments, including the State's Interest in Daily Collections (as such terms are
defined in the Casino Operating Contract).
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the
definition of "Stock."
"Gaming Patron Indebtedness" means all patron gaming
indebtedness owed to any Pledgor, including without limitation any marker,
patron promissory note or other evidence of patron gaming indebtedness.
"HET/JCC Agreement" has the meaning set forth in the Recitals
hereto.
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section
9-105(1)(i) of the UCC.
"Intercreditor Agreement" has the meaning set forth in the
Recitals hereto.
7
"Interest Rate Protection Agreements" has the meaning set
forth in the first paragraph hereof.
"Investment Property" has the meaning given such term in
Section 9-115(1)(f) of the UCC.
"JCC" has the meaning set forth in the first paragraph hereof.
"JCC Holding" has the meaning set forth in the Recitals
hereto.
"Limited Liability Company Assets" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Louisiana UCC" shall have the meaning provided in Section
7(b).
"Minimum Payment Guarantors" shall mean and include HET, HOC
and any substitute or successor Minimum Payment Guarantor from time to time
party to, and as defined in, the Intercreditor Agreement.
"Minimum Payment Guaranty" shall have the meaning assigned
that term in the Intercreditor Agreement.
"Minimum Payment Guaranty Documents" shall have the meaning
assigned that term in the Intercreditor Agreement.
"Minimum Payment Obligations" has the meaning provided in
Section 1 hereof.
"Notes" mean all promissory notes between or among JCC Holding
and its Subsidiaries and all other promissory notes from time to time issued to,
or held by, any Pledgor.
"Notice of Adverse Claim" has the meaning given such term in
Section 8-105 of the UCC.
"Obligations" has the meaning set forth in Section 1 hereof.
"Other Creditors" has the meaning set forth in the first
paragraph hereof.
"Other Obligations" has the meaning set forth in Section 1
hereof.
"Participant" has the meaning set forth in Section 3.2(a)
hereof.
8
"Partnership Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"Pledged Instruments" has the meaning set forth in Section 3.5
hereof.
"Pledged Notes" has the meaning set forth in Section 3.5
hereof.
"Pledgee" has the meaning set forth in the first paragraph
hereof.
"Pledgor" has the meaning set forth in the first paragraph
hereof.
"Proceeds" has the meaning given such term in Section 9-306(l)
of the UCC.
"Protective Advance Obligations" has the meaning set forth in
Section 1.
"Secured Creditors" has the meaning set forth in the first
paragraph hereof.
"Secured Debt Documents" means each of this Agreement, the
Credit Agreement, any other Credit Document, any Interest Rate Protection
Agreement, any Senior Subordinated Note Document, any Senior Subordinated
Contingent Note Document, any Minimum Payment Guaranty Document or any Shared
Security Document (as defined in the Intercreditor Agreement.
"Securities Account" has the meaning given such term in
Section 8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended,
as in effect from time to time.
"Securities Intermediary" has the meaning given such term in
Section 8-102(a)(14) of the UCC.
"Security" has the meaning given such term in Section
8-102(a)(15) of the UCC and shall in any event include all Stock and Notes.
"Security Entitlement" has the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Senior Subordinated Contingent Note Creditors" has the
meaning set forth in the first paragraph hereof.
9
"Senior Subordinated Contingent Note Documents" has the
meaning set forth in the Recitals hereto.
"Senior Subordinated Contingent Note Guaranty" has the meaning
set forth in the Recitals hereto.
"Senior Subordinated Contingent Note Indenture" has the
meaning set forth in the Recitals hereto.
"Senior Subordinated Contingent Note Obligations" has the
meaning set forth in Section 1 hereof.
"Senior Subordinated Contingent Note Trustee" has the meaning
set forth in the Recitals hereto.
"Senior Subordinated Contingent Notes" has the meaning set
forth in the Recitals hereto.
"Senior Subordinated Note Creditors" has the meaning set forth
in the first paragraph hereof.
"Senior Subordinated Note Documents" has the meaning set forth
in the Recitals hereto.
"Senior Subordinated Note Guaranty" has the meaning set forth
in the Recitals hereto.
"Senior Subordinated Note Holders" has the meaning set forth
in the first paragraph hereof.
"Senior Subordinated Note Indenture" has the meaning set forth
in the Recitals hereto.
"Senior Subordinated Note Obligations" has the meaning set
forth in Section 1 hereof.
"Senior Subordinated Note Trustee" has the meaning set forth
in the Recitals hereto.
"Senior Subordinated Notes" has the meaning set forth in the
Recitals hereto.
"Stock" means (x) with respect to corporations incorporated
under the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock at any time owned by any Pledgor of any Domestic Corporation and (y) with
respect to corporations not Domestic Corporations (each a "Foreign
10
Corporation"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Foreign Corporation.
"Termination Date" has the meaning set forth in Section 17
hereof.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York from time to time; provided that all references herein to
specific sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
3. PLEDGE AND GRANT OF SECURITY INTEREST, ETC.
3.1. Pledge. To secure the Obligations now or hereafter owed
or to be performed by such Pledgor, each Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest (subject to those Liens permitted to exist
with respect to the Collateral pursuant to the terms of all Secured Debt
Documents then in effect) in favor of the Pledgee for the benefit of the Secured
Creditors in, all of the right, title and interest (but none of the Pledgor's
obligations) in and to the following, whether now existing or hereafter from
time to time acquired (collectively, but in each case except to the extent
constituting Excluded Collateral, the "Collateral"), upon the terms and subject
to the conditions of this Agreement, and further subject to the provisions of
the Intercreditor Agreement:
(a) each of the Collateral Accounts, including any
and all assets of whatever type or kind deposited by such
Pledgor in a Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without
limitation, all Financial Assets, Investment Property, moneys,
checks, drafts, Instruments, Securities or interests therein
of any type or nature deposited or required by or any Secured
Debt Document to be deposited in such Collateral Account, and
all investments and all certificates and other Instruments
(including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends,
interest, distributions, cash and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the foregoing;
(b) all Securities (including, without limitation,
all Stock and all Notes) of such Pledgor from time to time;
(c) all Limited Liability Company Interests
of such Pledgor from time to time and all of its right, title
and interest in each limited liability company to which each
such interest relates, whether now existing or hereafter
acquired, including, without limitation:
11
(A) all the capital thereof and its interest in all
profits, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company or operating
agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such
Limited Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election and (including, but
not limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing
(with all of the foregoing rights only to be exercisable upon
the occurrence and during the continuation of an Event of
Default); and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to
time and all of its right, title and interest in each partnership to which each
such interest relates, whether now existing or hereafter acquired, including,
without limitation:
12
(A) all the capital thereof and its interest in all
profits, losses, Partnership Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of
such Partnership Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law or otherwise in respect of such Partnership
Interests;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any
partnership agreement or operating agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate,
cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of any of such
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
and (including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute
any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing
(with all of the foregoing rights only to be exercisable upon
the occurrence and during the continuation of an Event of
Default); and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(e) all Instruments and Notes of such Pledgor from time to
time;
(f) all Security Entitlements of such Pledgor from time to
time in any and all of the foregoing;
13
(g) all Financial Assets and Investment Property of such
Pledgor from time to time;
(h) all Gaming Patron Indebtedness and any marker, patron
promissory note or other evidence thereof; and
(i) all Proceeds of any and all of the foregoing.
3.2. Procedures. (a) To the extent that any Pledgor at any
time or from time to time owns, acquires or obtains any right, title or interest
in any Collateral, such Collateral shall automatically (and without the taking
of any action by the respective Pledgor) be pledged pursuant to Section 3.1 of
this Agreement and, in addition thereto, such Pledgor shall (to the extent
provided below) take the following actions as set forth below (as promptly as
practicable and, in any event, within 10 days after it obtains such Collateral)
for the benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security
(other than a Certificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall physically deliver such
Certificated Security to the Pledgee, indorsed to the Pledgee or
indorsed in blank by an effective indorsement;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security to duly authorize and execute,
and deliver to the Pledgee, an agreement for the benefit of the Pledgee
and the Secured Creditors substantially in the form of Annex G hereto
(appropriately completed to the satisfaction of the Pledgee and with
such modifications, if any, as shall be satisfactory to the Pledgee)
pursuant to which such issuer agrees to comply with any and all
instructions originated by the Pledgee without further consent by the
registered owner and not to comply with instructions regarding such
Uncertificated Security (and any Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any
other Person other than a court of competent jurisdiction;
(iii) with respect to an Instrument, Certificated Security,
Uncertificated Security, Partnership Interest or
Limited Liability Company Interest credited on the books of a Clearing
Corporation (including a Federal Reserve Bank, Participants Trust
Company or The Depository Trust Company), (1) compliance with the
applicable rules of such Clearing Corporation, (2) the crediting by
such Clearing Corporation of such Instrument, Security, Partnership
Interest or Limited Liability Company Interest, as the case may be, to
a Securities Account maintained by such Clearing Corporation in the
name of the Custodian, or, if the Custodian is not a participant in
such Clearing Corporation, the crediting by such Clearing Corporation
of such Instrument, Security, Partnership Interest or Limited Liability
Company Interest, as the case may be, to a Securities Account
maintained by such Clearing Corporation in the name of another
Securities Intermediary who is a participant in such Clearing
Corporation (the "Participant") and the crediting by
14
the Participant of such Instrument, Security, Partnership Interest or
Limited Liability Company Interest, as the case may be, to a Securities
Account maintained by the Participant in the name of the Custodian and
(3) the Custodian crediting such Security, Instrument, Partnership
Interest or Limited Liability Company Interest, as the case may be, to
the Custodian Account;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation), (1) if such Partnership Interest or Limited Liability
Company Interest is represented by a certificate, the procedure set
forth in Section 3.2(a)(i), and (2) whether or not such Partnership
Interest or Limited Liability Company Interest is represented by a
certificate, the procedure set forth in Section 3.2(a)(ii);
(v) with respect to an Instrument (other than an Instrument
credited on the books of a Clearing Corporation) or any Note, physical
delivery of such Instrument or Note to the Pledgee, indorsed to the
Pledgee or indorsed in blank; and
(vi) with respect to cash, (i) establishment by the Custodian
of a Collateral Account in the name of such Pledgor over which the
Pledgee shall have exclusive and absolute control and dominion (and no
withdrawals or transfers may be made therefrom by any Person except
with the prior written consent of the Pledgee) and (ii) deposit of such
cash in such Collateral Account (it being expressly understood and
agreed that this Agreement shall be deemed to constitute an
indispensable instrument with respect to such Collateral Account held
exclusively by the Pledgee for the benefit of the Secured Creditors).
(b) In addition to the actions required to be taken pursuant
to the preceding Section 3.2(a), each Pledgor shall take the following
additional actions with respect to the Collateral:
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the
UCC as same may be amended or supplemented from time to time, or under
the laws of any relevant State other than the State of New York), the
respective Pledgor shall take all actions as may be requested from time
to time by the Pledgee so that "control" of such Collateral is obtained
and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on form UCC-1 or other appropriate form) under
the Uniform Commercial Code as in effect in the various relevant
States, on a form covering all Collateral hereunder (with the form of
such financing statements to be satisfactory to the Pledgee), to be
filed in the relevant filing offices so that at all times the Pledgee
has a security interest in all Investment Property and other Collateral
which is perfected by the filing of such financing statements (in each
case to the maximum extent perfection by filing may be obtained under
15
the laws of the relevant States, including, without limitation, Section
9-115(4)(b) of the UCC).
(c) In addition to the actions otherwise required to be taken
above, and notwithstanding anything to the contrary contained elsewhere in this
Agreement, with respect to each Wholly-Owned Subsidiary of JCC Holding (other
than the Borrower and JCC Development), JCC Holding shall take all action as may
be required so that all equity interests therein are certificated, with the
actions described in Section 3.2(a)(i) being taken with respect thereto.
(d) Notwithstanding anything to contrary contained above or in
any of the other Shared Security Documents (as defined in the Intercreditor
Agreement), unless and until an Event of Default has occurred and is continuing,
no Pledgor shall be required to deliver any Gaming Patron Indebtedness or any
evidence thereof to the Pledgee, and shall be required to take no other actions
to perfect security interests therein other than the filing of appropriate
financing statements on Form UCC-1 (or the appropriate equivalent in the
relevant jurisdiction); it being understood and agreed by the Pledgee and the
Secured Creditors that the filing of such financing statements may not (under
applicable Louisiana law) be sufficient to perfect the security interests in the
Gaming Patron Indebtedness. Upon the occurrence and during the continuance of
any Event of Default, each Pledgor covenants and agrees to take such actions
with respect to the Gaming Patron Indebtedness from time to time held by them as
may be requested by the Pledgee or the Required Secured Creditors to perfect or
protect the Pledgee's security interests therein, including without limitation
(i) delivering all markers, patron promissory notes or other evidences of patron
gaming indebtedness to the Pledgee, (ii) stamping all evidences of Gaming Patron
Indebtedness with a legend meeting the requirements of Louisiana Revised
Statutes 9:4330-4334 denoting the assignment, pledge and security interests
granted herein on all then existing Gaming Patron Indebtedness and all Gaming
Patron Indebtedness acquired in the future (and indicating that such Gaming
Patron Indebtedness is subject to the security interests created pursuant to
this Agreement) or (iii) taking such other actions as may be requested by the
Pledgee or the Required Secured Creditors to perfect and protect the security
interests granted pursuant to this Agreement in all Gaming Patron Indebtedness.
It is understood and agreed by the parties hereto (and the Secured Creditors)
that, except for the actions required to be taken as provided above, no Pledgor
shall have any obligation to perfect the Pledgee's security interest in Gaming
Patron Indebtedness. To induce the Secured Creditors to agree to the foregoing,
each Pledgor hereby covenants and agrees for the benefit of the Secured
Creditors that it shall not assign, collaterally assign, pledge, grant a
security interest in or otherwise encumber in any way (other than pursuant to
the Shared Security Documents ) any present or future Gaming Patron
Indebtedness.
3.3. Subsequently Acquired Collateral. If any Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional Collateral at
any time or from time to time after the date hereof, such Collateral shall
automatically (and without any further action being required to be taken) be
subject to the pledge and security interests created pursuant to Section 3.1
and, furthermore, the Pledgor will promptly thereafter take (or cause to be
taken) all action with respect to such Collateral in accordance with the
procedures set forth in Section 3.2, and will promptly thereafter deliver to the
Pledgee (i) a certificate executed by a principal executive officer
16
of such Pledgor describing such Collateral and certifying that the same has been
duly pledged in favor of the Pledgee (for the benefit of the Secured Creditors)
hereunder and (ii) supplements to Annexes A through E hereto as are necessary to
cause such annexes to be complete and accurate at such time.
3.4. Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5. Definitions of Pledged Notes and Pledged Instruments. All
Notes at any time pledged or required to be pledged hereunder are hereinafter
called the "Pledged Notes", and all Instruments at any time pledged or required
to be pledged hereunder are hereinafter called "Pledged Instruments."
3.6. Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants to the Pledgee and the Secured
Creditors that on the date hereof (i) each Subsidiary of such Pledgor, and the
direct ownership thereof, is listed in Annex A hereto; (ii) the Stock held by
such Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex A hereto; (iii) such Stock constitutes that
percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex A hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex B hereto where such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex C hereto; (vi) each such Limited Liability Company Interest
constitutes that percentage of the issued and outstanding equity interest of the
issuing Person as set forth in Annex C hereto; (vii) the Partnership Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex D hereto; (viii) each such Partnership Interest constitutes
that percentage or portion of the entire partnership interest of the Partnership
as set forth in Annex D hereto; (ix) the Instruments held by such Pledgor are
set forth in Annex E hereto; (x) the reference to Section 3.2(a) set forth with
respect to each item of Collateral described in Annexes A through E hereto is
the procedure followed by such Pledgor to perfect the security interest in such
Collateral; and (xi) on the date hereof, such Pledgor owns no other Securities,
Limited Liability Company Interests, Partnership Interests or Instruments.
4. APPOINTMENT OF SUB-AGENTS; INDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents (including, but not
limited to, the Custodian) for the purpose of retaining physical possession of
the Collateral, which may be held (in the discretion of the Pledgee) in the name
of the relevant Pledgor, indorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent (including, but
not limited to, the Custodian) appointed by the Pledgee. The Pledgee shall
promptly notify the Pledgor of any such sub-agent appointed by the Pledgee,
although the failure to give such notice shall not affect the validity of such
appointment.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to
17
exercise any and all voting and other rights pertaining to the Collateral and to
give consents, waivers or ratifications in respect thereof, provided that no
vote shall be cast or any consent, waiver or ratification given or any action
taken which would violate or be inconsistent with any of the terms of this
Agreement, any Secured Debt Documents or any other instrument or agreement
referred to herein or therein, or which would have the effect of impairing the
position or interests of the Pledgee or any Secured Creditor. All such rights of
each Pledgor to vote and to give consents, waivers and ratifications shall cease
in case an Event of Default has occurred and is continuing, and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, all cash dividends,
cash distributions, cash Proceeds and other cash payments payable in respect of
Collateral shall be paid to the respective Pledgor; provided, that all cash
dividends payable in respect of the Pledged Stock which are determined by the
Pledgee to represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid, to the extent so determined to
represent an extraordinary, liquidating or other distribution in return of
capital, to the Pledgee and retained by it as part of the Collateral, provided
further, that such dividends or other distributions shall be applied by the
Pledgee to the repayment of all Obligations then due and payable and, to the
extent in excess thereof shall, if no Default or Event of Default has occurred
and is then continuing, be released to the Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (other than cash) paid or distributed by way of
dividend or otherwise, as the case may be, in respect of the
Collateral;
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (other than cash) paid or distributed in respect
of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement;
(iii)all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (other than cash) which may be paid in respect
of the Collateral by reason of any consolidation, merger, exchange of
stock, conveyance of assets, liquidation or similar corporate
reorganization; and
(iv) any other property or assets (other than cash) which
would constitute Collateral in accordance with the definition thereof
contained therein.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive Proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions, Proceeds or
other payments which are received by any Pledgor contrary to the provisions of
this Section 6 and Section 7 hereof shall be received in trust for the benefit
of the Pledgee, shall be segregated from other property or funds of such Pledgor
and shall be
18
promptly paid over to the Pledgee as Collateral in the same form as
so received (with any necessary indorsement).
7. REMEDIES IN CASE OF EVENTS OF DEFAULT. (a) If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the Pledgee shall be entitled to (i) exercise all of the rights, powers
and remedies (whether vested in it by this Agreement, any Secured Debt Document
or by law) for the protection and enforcement of its rights in respect of the
Collateral, (ii) exercise all the rights and remedies of a secured party under
the Uniform Commercial Code and (iii) without limitation, exercise the following
rights, which each Pledgor hereby agrees to be commercially reasonable:
(1) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the Pledgor;
(2) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(3) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(4) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor for such
purpose, with full power of substitution);
(5) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' written prior notice of the
time and place of any such sale shall be given to such Pledgor. The
Pledgee shall not be obligated to make any such sale of Collateral
regardless of whether any such notice of sale has theretofore been
given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the
Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or
realize upon any or
19
all of the Collateral or for any delay in so doing nor shall any of
them be under any obligation to take any action whatsoever with regard
thereto; and
(6) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash and other Collateral from
any and all Collateral Accounts and to apply such cash and other
Collateral to the payment of any and all Obligations, in the manner
provided by Section 11 of the Intercreditor Agreement.
(b) Notwithstanding anything contained in this Agreement to
the contrary, this Agreement shall be governed by Chapters 8 and 9 of the
Louisiana Commercial Laws, Louisiana R.S. 10:8-101 et seq. and 10:9-101 et seq.
(collectively, the "Louisiana UCC") to the extent that any security interest in
any of the Collateral located in the State of Louisiana, and any remedies
hereunder with respect thereto, are required to be governed by, and interpreted
in accordance with, the laws of the State of Louisiana.
(c) If an Event of Default shall occur and be continuing, the
Pledgee shall have all remedies available to a secured party under the Louisiana
UCC in addition to the other remedies provided elsewhere in this Agreement,
including, without limitation, the right to elect to assume the Limited
Liability Company Interests or Partnership Interests of any Pledgor upon notice
to such Pledgor to the extent provided by applicable law and the documents
creating such interests. For purposes of executory process under the laws of the
State of Louisiana, each Pledgor hereby acknowledges the Obligations and
confesses judgment in favor of the Pledgee for the benefit of the Secured
Creditors, for the full amount of the Obligations, including, without
limitation, principal, interest, attorneys' fees, court costs, and all other
fees, expenses and charges.
(d) Each Pledgor hereby expressly waives, to the fullest
extent permitted by Louisiana law, the benefit of appraisement provided for in
Articles 2332, 2336, 2723 and 2724 of the Louisiana Code of Civil Procedure and
all other laws of the State of Louisiana conferring such benefits and the demand
and three days' delay accorded by Articles 2639 and 2721 of the Louisiana Code
of Civil Procedure.
(e) Pursuant to Louisiana R.S. 27:275 et seq., the Collateral
Agent is hereby authorized and empowered to file a petition to foreclose the
liens created hereby in which the Louisiana Gaming Control Board is named a
nominal defendant and the Pledgors request the appointment of a receiver as
contemplated by and in accordance with the provisions of the cited statutes. The
filing of a verified petition by the Pledgee shall constitute prima facie proof
of the Pledgee's right to enforce the liens created hereby in executory or
ordinary proceedings, at the Pledgee's option, and to appointment of a receiver
pursuant to the cited statutes.
(f) In the event the Collateral or any part thereof is seized
as an incident to an action for the recognition or the enforcement of this
Agreement by executory process, ordinary process, sequestration, writ of fieri
facias, or otherwise, the Pledgors and the Pledgee hereby agree that the court
issuing any such order shall, if petitioned for by the Pledgee, direct the
Sheriff to appoint as a keeper of the Collateral, the Pledgee or any agent
designated by the Pledgee or any person named by the Pledgee at the time such
seizure is effected. This designation is made
20
pursuant to La. R.S. 9:5136 through 5140.2, inclusive, as the same may be
amended, and the Pledgee shall be entitled to all the rights and benefits
afforded thereunder, including reasonable compensation, which compensation shall
be secured by this Agreement, and which reasonable compensation shall not exceed
$10,000 per annum.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in the other Secured
Debt Documents, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or in the other Secured Debt Documents or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any Secured Creditor to exercise any such right,
power or remedy shall operate as a waiver thereof. No notice to or demand on any
Pledgor in any case shall entitle it to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Pledgee or any Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors agree that this
Agreement may be enforced only by the action of the Pledgee, acting upon the
instructions of the Required Secured Creditors (as defined in the Intercreditor
Agreement and that no Secured Creditor, unless otherwise provided in the
Intercreditor Agreement shall have any right individually to seek to enforce or
to enforce this Agreement or to realize upon the security to be granted hereby,
it being understood and agreed that such rights and remedies may be exercised by
the Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement and the Intercreditor Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral, together with all
other moneys received by the Pledgee hereunder, shall be applied to the payment
of the Obligations in the manner provided by Section 11 of the Intercreditor
Agreement.
(b) It is understood and agreed that each Pledgor shall remain
liable to the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of its Obligations; provided that,
unless otherwise provided in this Agreement or by any Secured Debt Document or
other document or instrument to which such Pledgor is a party executed in
connection herewith or therewith, no Pledgor shall be liable for the Obligations
owed to any Secured Creditor by any other Pledgor.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
21
11. INDEMNITY. Each Pledgor jointly and severally agrees to
indemnify and hold harmless the Pledgee, the Custodian and each Secured Creditor
and their respective successors, assigns, employees, agents and servants
(individually an "Indemnitee," and collectively the "Indemnitees") from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, growing out of or resulting from this Agreement or the exercise
by any Indemnitee of any right or remedy granted to it hereunder or under the
other Secured Debt Documents, but excluding any such claims, demands, losses,
judgments, liabilities, costs and expenses to the extent incurred by reason of
the gross negligence or willful misconduct of such Indemnitee. In no event shall
any Indemnitee be liable for any matter or thing in connection with this
Agreement other than to account for and apply moneys actually received by it in
accordance with the terms hereof and of the Intercreditor Agreement. If and to
the extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. a)" \* MERGEFORMAT
(a) Each Pledgor agrees that it will execute and, at its own expense, file and
refile under the Uniform Commercial Code or other applicable law such financing
statements, continuation statements and other documents in such offices as such
Pledgor (or the Pledgee (acting on its own or as provided in the Intercreditor
Agreement)) may deem necessary or appropriate and wherever required by law in
order to perfect and preserve the Pledgee's security interest in the Collateral
and hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
such Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may reasonably require or
deem advisable to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee as such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may
reasonably deem necessary or advisable to accomplish the purposes of this
Agreement.
13. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Secured Debt Documents).
14. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
Each Pledgor represents, warrants and covenants to the Pledgee and the Secured
Creditors (and is deemed to represent, warrant and covenant each time any
Collateral is pledged hereunder) that: (i) it is the legal, record and
beneficial owner of, and has good and marketable
22
title to, all the Collateral, subject to no Lien (except the Lien created by
this Agreement and other Liens to the extent permitted to be in existence
pursuant to the terms of all Secured Debt Documents from time to time in effect)
and no Adverse Claim; (ii) it has full power, authority and legal right to
pledge all Collateral pledged by it pursuant to this Agreement; (iii) this
Agreement has been duly authorized, executed and delivered by such Pledgor and
constitutes a legal, valid and binding obligation of such Pledgor enforceable in
accordance with its terms except to the extent that the enforceability hereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made (and other than pursuant to
the Gaming Regulations in the case of any exercise of remedies hereunder), no
consent of any other party (including, without limitation, any stockholder,
partner, member or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection with the
execution, delivery or performance of this Agreement, the validity or
enforceability of this Agreement, the perfection or enforceability of the
Pledgee's security interest in the Collateral or except for compliance with or
as may be required by applicable securities laws, or the exercise by the Pledgee
of any of its rights or remedies provided herein; (v) the execution, delivery
and performance of this Agreement by such Pledgor will not violate any provision
of any applicable law or regulation or of any order, judgment, writ, award or
decree of any court, arbitrator or governmental authority, domestic or foreign,
applicable to such Pledgor, or of the certificate of incorporation, operating
agreement, limited liability company agreement or by-laws (or equivalent
organizational documents) of such Pledgor or of any securities issued by such
Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed
of trust, loan agreement, credit agreement or other material agreement,
contract, or instrument to which such Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective assets and will not result in the
creation or imposition of (or the obligation to create or impose) any lien or
encumbrance on any of the assets of such Pledgor or any of its Subsidiaries
except as contemplated by this Agreement and the Secured Debt Documents; (vi)
all of the Collateral consisting of Securities, Limited Liability Company
Interests, Partnership Interests or Instruments has been duly and validly
issued, is fully paid and non-assessable and is subject to no options to
purchase or similar rights; (vii) each of the Pledged Notes, to the extent
issued by JCC Holding or any of its Subsidiaries, constitutes, or when executed
by the obligor thereof will constitute, the legal, valid and binding obligation
of such obligor, enforceable in accordance with its terms; (viii) this Agreement
creates, as security for the Obligations, a valid and enforceable perfected
first priority security interest in all of the Collateral, and the Proceeds
thereof, in favor of the Pledgee for the benefit of the Secured Creditors,
subject to no Lien (other than Permitted Liens) or to any agreement made by a
Pledgor purporting to grant to any third party a Lien on the property or assets
of the Pledgor which would include any Collateral and such security interest is
entitled to all the rights, priorities and benefits afforded by the UCC or other
relevant law as enacted in any relevant jurisdiction to perfected security
interests; and (ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee with respect to all Collateral of a type with respect to
which such "control" may be obtained pursuant to Section 8-106 of the UCC. Each
Pledgor
23
covenants and agrees that (i) it will defend the Pledgee's right, title and
security interest in and to the Collateral, and the Proceeds thereof, against
the claims and demands of all Persons whomsoever, (ii) it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Pledgee as Collateral hereunder and will likewise defend the right thereto and
security interest therein of the Pledgee and the other Secured Creditors, (iii)
except as permitted pursuant to the Secured Debt Documents, it will not sell or
otherwise dispose of, grant any option with respect to, any Collateral and (iv)
it will not create, incur, assume or suffer to exist any Lien on any portion of
the Collateral (except the Lien created by this Agreement and other Liens to the
extent same are permitted pursuant to the terms of all Secured Debt Documents
then in effect).
15. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of each Pledgor is located at the address specified in Annex F hereto.
Each Pledgor will not move its chief executive office except to such new
location as such Pledgor may establish in accordance with the last sentence of
this Section 15. The originals of all documents in the possession of such
Pledgor evidencing all Collateral, including but not limited to all Limited
Liability Company Interests and Partnership Interests, and the only original
books of account and records of the Pledgor relating thereto are, and will
continue to be, kept at such chief executive office at the location specified in
Annex F hereto, or at such new locations as the Pledgor may establish in
accordance with the last sentence of this Section 15. All Limited Liability
Company Interests and Partnership Interests are, and will continue to be,
maintained at, and controlled and directed (including, without limitation, for
general accounting purposes) from, such chief executive office location
specified in Annex F hereto, or such new locations as the Pledgor may establish
in accordance with the last sentence of this Section 15. No Pledgor shall
establish a new location for such offices until (i) it shall have given to the
Collateral Agent not less than 45 days' prior written notice of its intention so
to do, clearly describing such new location and providing such other information
in connection therewith as the Collateral Agent may reasonably request and (ii)
with respect to such new location, it shall have taken all action, satisfactory
to the Collateral Agent, to maintain the security interest of the Collateral
Agent in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. Promptly after establishing a new
location for such offices in accordance with the immediately preceding sentence,
the respective Pledgor shall deliver to the Pledgee a supplement to Annex F
hereto so as to cause such Annex F hereto to be complete and accurate.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. To the maximum extent
permitted by law, the obligations of each Pledgor under this Agreement shall be
absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (i) any renewal, extension, amendment or modification of or
addition or supplement to or deletion from any Secured Debt Document or any
other instrument or agreement referred to therein, or any assignment or transfer
of any thereof; (ii) any waiver, consent, extension, indulgence or other action
or inaction under or in respect of any such agreement or instrument (including,
without limitation, this Agreement) or any exercise or non-exercise of any
right, remedy, power or privilege under or in respect of this Agreement or
24
the Secured Debt Documents; (iii) any furnishing of any additional security to
the Pledgee or its assignee or any acceptance thereof or any release of any
security by the Pledgee or its assignee; (iv) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity, irregularity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof or any Obligation or any security
therefor; or (v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to any
Pledgor or any Subsidiary of any Pledgor, or any action taken with respect to
this Agreement by any trustee or receiver, or by any court, in any such
proceeding, whether or not such Pledgor shall have notice or knowledge of any of
the foregoing.
17. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interests created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments (including Uniform Commercial Code termination
statements on Form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys at the time held by the Pledgee or any of
its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security (other than an Uncertificated Security credited on the
books of a Clearing Corporation), a Partnership Interest or a Limited Liability
Company Interest, a termination of the agreement relating thereto executed and
delivered by the issuer of such Uncertificated Security pursuant to Section
3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3(a)(iv). As used in this Agreement, "Termination Date"
shall mean the date upon which no obligations remain pursuant to the HEC/JCC
Agreement or any other Minimum Payment Guaranty Documents and all Minimum
Payment Guaranties have been terminated, the total commitments under the Credit
Agreement have terminated, all Interest Rate Protection Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), all Letters of Credit have been terminated, no Senior
Subordinated Notes or Senior Subordinated Contingent Notes are outstanding and
all other Obligations (excluding normal continuing indemnity obligations which
survive in accordance with their terms, so long as no amounts are then due and
payable in respect thereof) have been indefeasibly paid in full.
(b) Notwithstanding anything to the contrary contained above,
upon the presentment of satisfactory evidence to the Pledgee in its sole
discretion that all obligations evidenced by any Pledged Note or Pledged
Instrument have been repaid in full and that any payments received by the
Pledgor are permitted to be received by the Pledgor pursuant to Section 6
hereof, the Pledgee shall, upon the request and at the expense of the respective
Pledgor, duly assign, transfer and deliver to such Pledgor (without recourse and
without any representation or warranty) such Pledged Note or Pledged Instrument
if same is then in possession of the Pledgee and has not been sold or otherwise
applied or released pursuant to this Agreement.
25
(c) The Pledgee shall release any or all of the Collateral
hereunder in accordance with the terms of Section 17 of the Intercreditor
Agreement. Furthermore, one or more Pledgors (other than JCC Holding and JCC)
may be released from time to time as Pledgors hereunder in accordance with the
terms of Section 17 of the Intercreditor Agreement.
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 17.
18. NOTICES, ETC. All notices and communications hereunder
shall be sent or delivered by mail, telex, telecopy or overnight courier service
and all such notices and communications shall, when mailed, telexed, telecopied
or sent by overnight courier, be effective when deposited in the mails or
delivered to the overnight courier, prepaid and properly addressed for delivery
on such or the next Business Day, or sent by telex or telecopier, except that
notices and communications to the Pledgee shall not be effective until received
by the Pledgee. All notices and other communications shall be in writing and
addressed as follows:
(a) if to any Pledgor:
c/o Jazz Casino Company, L.L.C.
000 X. Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Telephone No.: (000) 000-0000
(b) if to the Pledgee:
The Bank of New York
10161 Centurion Prkwy.
Jacksonville, FL
Attention: Vice President
Telephone No.: 0-000-000-0000
(c) if to the Custodian:
The Bank of New York
10161 Centurion Prkwy.
Jacksonville, FL
Attention: Vice President
Telephone No.: 0-000-000-0000
(d) if to any Minimum Payment Guarantor, at:
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
26
Attention: General Counsel
Telephone No.: (000) 000-0000
(e) if to any Bank Creditor (other than the
Pledgee), either (x) to the Administrative Agent, at the address of the
Administrative Agent specified in the Credit Agreement or (y) at such
address as such Bank Creditor shall have specified in the Credit
Agreement;
(f) if to any Senior Subordinated Note Creditor, to the Senior
Subordinated Note Trustee at such address as Senior Subordinated Note
Trustee shall have specified in the Intercreditor Agreement;
(g) if to any Senior Subordinated Contingent Note Creditor, to
the Senior Subordinated Contingent Note Trustee at such address as the
Senior Subordinated Contingent Note Trustee shall have specified in the
Intercreditor Agreement;
(h) if to any Other Creditor, either (x) to the representative
for the Other Creditors, at such address as such representative may
have provided to the Pledgors and the Pledgee 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 Pledgors and the Pledgee;
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 or, as to any
Secured Creditor, as may otherwise be specified in the applicable Secured Debt
Document.
19. THE PLEDGEE AND THE CUSTODIAN. Each of the Pledgee and, in
the case of Collateral credited on the books of a Clearing Corporation, the
Custodian, will hold, directly or indirectly in accordance with this Agreement,
all items of the Collateral at any time received by it under this Agreement. It
is expressly understood and agreed that the obligations of the Pledgee and the
Custodian with respect to the Collateral, interests therein and the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in the UCC, this Agreement and the Intercreditor Agreement.
20. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
CUSTODIAN. The Custodian shall be deemed to represent and warrant to, and agree
with the Pledgee, for the benefit of the Secured Creditors, that each time any
Certificated Security, Uncertificated Security, Instrument, Partnership Interest
or Limited Liability Company Interest credited on the books of a Clearing
Corporation (including, without limitation, any Security Entitlement therein) is
credited to the Custodian Account that:
(i) such Financial Asset has been credited to the Custodian
Account;
(ii) the Custodian is a Securities Intermediary and is acting
in that capacity with respect to the respective Pledgor;
(iii)the Custodian Account is a Securities Account;
27
(iv) the Custodian will maintain the Custodian Account in the
name of the Pledgor, subject to the control of the Pledgee, during the
term of this Agreement;
(v) the Custodian will treat such Instrument,
Security, Partnership Interest, Limited Liability Company Interest and
Security Entitlement credited to the Custodian Account as a Financial
Asset;
(vi) the Custodian has not and will not identify any of the
Collateral credited to the Custodian Account as belonging to any Person
other than the Pledgor or the Pledgee, for the
benefit of the Secured Creditors;
(vii) the Custodian shall at all times comply strictly with
any and all Entitlement Orders relating to the Custodian Account or any
and all of the Collateral originated by the Pledgee without the further
consent by the Pledgor or any other Person. The Custodian shall not
accept or comply with any Entitlement Order relating to any such
Collateral originated by any Person other than the Pledgee (or its
successor or assignee) or any court of competent jurisdiction;
(viii) the Custodian has not entered into any agreement (other
than this Agreement) with any Person under which the Custodian would be
obligated to comply with any Entitlement Order with respect to the
Custodian Account or any Collateral consisting of a Certificated
Security, Uncertificated Security, Instrument, Limited Liability
Company Interest or Partnership Interest credited to the Custodian
Account or which purports to limit or condition the obligation of the
Custodian to comply with any Entitlement Order originated by the
Pledgee relating to the Custodian Account or any such Collateral, and
agrees not to enter into any such agreement without the prior written
consent of the Pledgee; and
(ix) the Custodian shall promptly notify the Pledgee if at any
time the Custodian has any Notice of Adverse Claim with respect to the
Custodian Account or any Collateral consisting of a Certificated
Security, Uncertificated Security, Instrument, Limited Liability
Company Interest or Partnership Interest credited to the Custodian
Account.
Notwithstanding anything to the contrary contained above, the
Custodian shall have no liability pursuant to this Agreement or otherwise
(including, without limitation, for any inaccuracy of, or failure of the
Custodian to comply with, the foregoing representations, warranties and
agreements) in each case in the absence of gross negligence or willful
misconduct by the Custodian.
21. WAIVER; AMENDMENT. Except as contemplated by Xxxxxxx 00,
xxxx of the terms and conditions of this Agreement may be changed, waived,
modified or varied in any manner whatsoever except in accordance with the terms
of Section 16 of the Intercreditor Agreement.
28
22. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns; provided that no
Pledgor may assign any of its rights or obligations hereunder except pursuant to
an amendment executed in accordance with the requirements of Section 21. 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.
23. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein, in the other
Secured Debt Documents and otherwise in writing in connection herewith or
therewith.
24. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of JCC Holding that is required to execute a counterpart of this
Agreement after the date hereof pursuant to any Secured Debt Document shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee and, upon such execution and delivery, each
such Subsidiary shall be deemed to make each of the representations, warranties
and agreements of a Pledgor under this Agreement and this Agreement shall
constitute the valid and binding obligation of such Subsidiary enforceable
against such Subsidiary in accordance with its terms.
25. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee (all references to the
Pledgee in this Section 25 shall apply equally to the Custodian) or any other
Secured Creditor liable as a member of any limited liability company or
partnership and neither the Pledgee nor any other Secured Creditor by virtue of
this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Pledged Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor
and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 25, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or partnership or otherwise be
deemed to be a co-venturer with respect to any Pledgor or any limited liability
company or partnership either before or after an Event of Default shall have
occurred. The Pledgee shall have only those powers set forth herein and the
Secured Creditors shall assume none of the duties, obligations or liabilities of
a member of any limited liability company or partnership or any Pledgor except
as provided in the last sentence of paragraph (a) of this Section 25.
29
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any other Secured Creditor to appear in
or defend any action or proceeding relating to the Collateral to which it is not
a party, or to take any action hereunder or thereunder, or to expend any money
or incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
26. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE
ESTABLISHMENT AND MAINTENANCE OF THE COLLATERAL ACCOUNTS AND ALL INTERESTS,
DUTIES AND OBLIGATIONS RELATING THERETO) AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE REQUIRED PURSUANT TO SECTIONS 7(b) THROUGH 7(f), BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. REGARDLESS
OF ANY PROVISION IN ANY OTHER AGREEMENT, THE STATE OF NEW YORK SHALL BE DEEMED
TO BE THE JURISDICTION OF THE CUSTODIAN WITHIN THE MEANING OF SECTION 8-110(e)
OF THE UCC. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR
CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
SECURED DEBT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH
COURT LACKS JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT ITS ADDRESS SET FORTH IN
SECTION 18, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH
PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER SECURED DEBT DOCUMENT THAT
SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT OR
30
ANY OTHER SECURED CREDITOR TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY
OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR
INDIRECTLY, THIS AGREEMENT, ANY OTHER SECURED DEBT DOCUMENT, ANY COLLATERAL
ACCOUNT OR ANY OF THE COLLATERAL BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THIS AGREEMENT (INCLUDING
ANY COLLATERAL ACCOUNT OR ANY OF THE COLLATERAL), ANY OTHER SECURED DEBT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
27. GAMING STATUTES. This Agreement, and the pledge and
security interests granted hereby and any remedies contemplated hereby, are and
shall remain subject to the Louisiana Economic Development and Gaming
Corporation Act, La. R.S. 27:1 et seq., La. R.S. 27:201 et seq. and the rules
and regulations thereunder, as amended from time to time (collectively, the
"Louisiana Gaming Regulations"), and the exercise of remedies hereunder will be
subject to the Louisiana Gaming Regulations.
28. INTERCREDITOR AGREEMENT. Notwithstanding any other
provision of this Agreement or any document or instrument executed by any
Pledgor, this Agreement and all liens and security interests and rights granted
herein, and the priority thereof, are expressly subject to the provisions of the
Intercreditor Agreement which are incorporated herein by reference and made
applicable hereto. In addition, the Pledgee is the Collateral Agent, as defined
in and pursuant to the terms of the Intercreditor Agreement, and notwithstanding
anything herein to the contrary, the rights, powers, remedies and obligations of
the Pledgee hereunder shall be subject to the provisions of the Intercreditor
Agreement. Any exercise or waiver by the Pledgee of any of its rights, powers or
remedies hereunder or any other act by the Pledgee hereunder shall be conclusive
evidence of the Pledgee's authority pursuant to the Intercreditor Agreement
against all persons other than the Secured Creditors.
29. 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
31
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.
* * *
32
IN WITNESS WHEREOF, each Pledgor, the Custodian and the
Pledgee have caused this Agreement to be executed by their duly elected officers
duly authorized as of the date first above written.
JCC HOLDING COMPANY,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
---------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
JAZZ CASINO COMPANY, L.L.C.,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
---------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
CP DEVELOPMENT, L.L.C.,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
---------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
FP DEVELOPMENT, L.L.C.,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
---------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
JCC DEVELOPMENT COMPANY,
L.L.C., as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
---------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
THE BANK OF NEW YORK.
not in its individual capacity but solely as
Collateral Agent and Pledgee
By /s/ R. Xxxxxxx Xxxx
---------------------------
Name: R. Xxxxxxx Xxxx
Title: Agent
THE BANK OF NEW YORK,
in its individual capacity as Custodian
By /s/ R. Xxxxxxx Xxxx
---------------------------
Name: R. Xxxxxxx Xxxx
Title: Agent
ANNEX B
TO
PLEDGE AGREEMENT
LIST OF STOCK
Sub-clause of Section 3.2(a) of
Pledge Agreement Pursuant to Which
Required Procedures Will Be Taken
Name of Pledgor Description of Stock
None.
ANNEX B
TO
PLEDGE AGREEMENT
LIST OF NOTES
Sub-clause of Section 3.2(a) of
Pledge Agreement Pursuant to Which
Name of Pledgor Description of Notes Required Procedures Will Be Taken
None.
ANNEX C
TO
PLEDGE AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
Description of Sub-clause of Section 3.2(a) of
Limited Liability Pledge Agreement Pursuant to Which
Name of Pledgor Company Interests Required Procedures Will Be Taken
JCC Holding Company o Ownership of 100% of membership 3.2(a)(ii)
interests in JCC
o Ownership of 100% of membership
interests in JCC Development 3.2(a)(ii)
Company, L.L.C.
o Ownership of 100% of membership
interests in FP Development,
L.L.C.
3.2(a)(i)
o Ownership of 100% of membership
interests in CP Development,
L.L.C.
3.2(a)(i)
ANNEX D
TO
PLEDGE AGREEMENT
LIST OF PARTNERSHIP INTERESTS
Sub-clause of Section 3.2(a) of
Description of Pledge Agreement Pursuant to Which
Name of Pledgor Partnership Interests Required Procedures Will Be Taken
None.
ANNEX E
TO
PLEDGE AGREEMENT
LIST OF INSTRUMENTS
Sub-clause of Section 3.2(a) of
Pledge Agreement Pursuant to Which
Name of Pledgor Description of Instruments Required Procedures Will Be Taken
None.
ANNEX F
TO
PLEDGE AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
I. JCC Holding Company
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
II. Jazz Casino Company, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
III. CP Development, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
IV. FP Development, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
V. JCC Development Company, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
ANNEX G
TO
PLEDGE AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
THIS AGREEMENT (as amended, modified or supplemented from time
to time, this "Agreement"), dated as of October 29, 1998, among each of the
undersigned pledgors (each a "Pledgor" and, collectively, the "Pledgors"), The
Bank of New York, not in its individual capacity but solely as Collateral Agent
(the "Pledgee"), and The Bank of New York, as the issuer of the Uncertificated
Securities, Limited Liability Company Interests and/or Partnership Interests
(each as defined below) (the "Issuer").
W I T N E S S E T H :
WHEREAS, each Pledgor, the Pledgee, and The Bank of New York,
in its individual capacity as Custodian, have entered into the Pledge Agreement,
dated as of October 29, 1998 (as amended, amended and restated, modified or
supplemented from time to time, the "Pledge Agreement"), under which, among
other things, in order to secure the payment of the Obligations (as defined in
the Pledge Agreement), each Pledgor will pledge to the Pledgee for the benefit
of the Secured Creditors (as defined in the Pledge Agreement), and grant a
security interest in favor of the Pledgee for the benefit of the Secured
Creditors in, all of the right, title and interest of such Pledgor in and to any
and all (1) "uncertificated securities" (as defined in Section 8-102(a)(18) of
the Uniform Commercial Code, as adopted in the State of New York)
("Uncertificated Securities"), (2) Partnership Interests (as defined in the
Pledge Agreement) and (3) Limited Liability Company Interests (as defined in the
Pledge Agreement), in each case issued from time to time by the Issuer, whether
now existing or hereafter from time to time acquired by such Pledgor (with all
of such Uncertificated Securities, Partnership Interests and Limited Liability
Company Interests being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this
Agreement in order to perfect the security interest of the Pledgee under the
Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control
of the Issuer Pledge Interests and to provide for the rights of the parties
under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the
Issuer, and the Issuer hereby agrees, to comply with any and all instructions
and orders originated by the Pledgee (and its successors and assigns) in
accordance with the terms of the Pledge Agreement regarding any and all of the
Issuer Pledged Interests without the further consent by the registered owner
(including the respective Pledgor), and not to comply with any instructions or
orders regarding
any or all of the Issuer Pledged Interests originated by any person or entity
other than the Pledgee (and its successors and assigns) or a court of competent
jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any
security interest, lien or other encumbrance or claim affecting the Issuer
Pledged Interests (other than the security interest of the Pledgee) has been
received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Issuer.
The Issuer hereby waives any contractual or statutory security interest and/or
right of offset it has in the Issuer Pledged Interests and does further
acknowledge receipt of the Pledge Agreement. The undersigned further agrees not
to acknowledge or accept any other parties' security interest in the Issuer
Pledged Interests or to enter into any other agreement granting or acknowledging
any other parties' control over or right to make entitlement orders with respect
to the Issuer Pledged Interests.
3. The Issuer hereby represents and warrants that (i) the
pledge by the Pledgors of, and the granting by the Pledgors of a security
interest in, the Issuer Pledged Interests to the Pledgee, for the benefit of the
Secured Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. Until the Pledgee shall have delivered written notice to
the Issuer that all of the Obligations have been paid in full and this Agreement
is terminated, the Issuer will send any and all redemptions, distributions,
interest or other payments in respect of the Issuer Pledged Interests from the
Issuer for the account of the respective Pledgor only by wire transfers to the
applicable address set forth on Annex I hereto.
5. Except as expressly provided otherwise in Sections 4 and 5,
all notices, instructions, orders and communications hereunder shall be sent or
delivered by mail, telex, telecopy or overnight courier service and all such
notices and communications shall, when mailed, telexed, telecopied or sent by
overnight courier, be effective when deposited in the mails or delivered to the
overnight courier, prepaid and properly addressed for delivery on such or the
next Business Day, or sent by telex or telecopier, except that notices and
communications to the Pledgee shall not be effective until received by the
Pledgee. All notices and other communications shall be in writing and addressed
as follows:
(a) if to any Pledgor:
c/o Jazz Casino Company, L.L.C.
000 X. Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Telephone No.: 000-000-0000
(b) if to the Pledgee:
The Bank of New York
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX
Attention: Vice President
Telephone No.: 0-000-000-0000
(c) if to the Issuer:
c/o Jazz Casino Company, L.L.C.
000 X. Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx
Attention: President
Telephone No.: 000-000-0000
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. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
6. This Agreement shall be binding upon the successors and
assigns of each Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. 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. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in writing signed by the Pledgee, the Issuer and any Pledgor
which at such time owns any Issuer Pledged Interests.
7. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
principles of conflict of laws.
Annex G
Page 4
IN WITNESS WHEREOF, each Pledgor, the Pledgee and the Issuer
have caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
JCC HOLDING COMPANY,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
JAZZ CASINO COMPANY, L.L.C.,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
CP DEVELOPMENT, L.L.C,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
FP DEVELOPMENT, L.L.C,,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
Annex G
Page 5
JCC DEVELOPMENT COMPANY, L.L.C.,
as a Pledgor
By /s/ L. Xxxxxxx Xxxxxx
------------------------
Name: L. Xxxxxxx Xxxxxx
Title: V. P. and Secretary
