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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
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JAZZ CASINO COMPANY, L.L.C.
(Name of Applicant)
512 South Peters, New Orleans, Louisiana 70130
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
8% Convertible Junior Subordinated $26,637,000(1)
Debentures Due 2009
Approximate date of proposed issuance: February 28, 1998
Jazz Casino Company, L.L.C.
512 South Peters
New Orleans, Louisiana 70130
(Name and address of agent for service)
With a copy to:
John M. Newell, Esq.
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
(213) 485-1234
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The applicant hereby amends this application for qualification on such date
or dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this amendment, or (ii) such date as the Commission, acting pursuant
to Section 307(c) of the Trust Indenture Act of 1939, as amended (the "Act"),
may determine upon the written request of this applicant.
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(1) The aggregate principal amount of the 8% Convertible Junior
Subordinated Debentures Due 2009 is subject to adjustment as provided for in
the Debtors' Third Amended Joint Plan of Reorganization under Chapter 11 of
the Bankruptcy Code as modified through December 10, 1997, dated December 10,
1997, and as provided for in the indenture governing such securities.
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GENERAL
1. GENERAL INFORMATION. Furnish the following as to the applicant.
(a) Form of organization:
A limited liability company.
(b) State or other sovereign power under the laws of which organized:
Louisiana.
2. SECURITIES ACT EXEMPTION APPLICABLE. State briefly the facts relied upon
by the applicant as a basis for the claim that registration of the indenture
securities under the Securities Act of 1933 is not required.
On November 22, 1995, Harrah's Jazz Company, a Louisiana general
partnership ("HJC"), and Harrah's Jazz Finance Corp., a Delaware corporation
and wholly-owned subsidiary of HJC ("Finance Corp."), filed voluntary
petitions for relief under Chapter 11 of the United States Bankruptcy Code
(the "Bankruptcy Code"). On December 22, 1995, Harrah's New Orleans
Investment Company, a Nevada corporation and partner in HJC ("HNOIC" and,
collectively with HJC and Finance Corp., "the Debtors"), filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code to facilitate
efforts to reorganize HJC. On or about February 26, 1997 the Debtors filed
the Third Amended Joint Plan of Reorganization (the "Plan of Reorganization")
and related Disclosure Statement (the "Disclosure Statement") with the U.S.
Bankruptcy Court for the Eastern District of Louisiana (the "Bankruptcy
Court"). By order dated February 28, 1997 the Bankruptcy Court approved the
Disclosure Statement. By order dated April 28, 1997 the Bankruptcy Court
confirmed the Plan or Reorganization.
The Effective Date of the Plan of Reorganization was and is conditioned
upon, among other things, the execution and delivery of a modified Casino
Operating Contract and all necessary approvals, if any, from the State of
Louisiana (the "State"). The State has taken the position that the State
legislature must approve the modified Casino Operating Contract, which the
State legislature failed to do in its regular session which adjourned on June
23, 1997. As a result of the State legislature's failure to approve the
modified Casino Operating Contract, the Plan of Reorganization was modified
in certain respects. On December 10, 1997 the Debtors submitted a Third
Amended Joint Plan of Reorganization As Modified Through December 10, 1997
(the "Modified Plan of Reorganization") and related Disclosure Statement (the
"Modified Disclosure Statement"). A hearing to consider the adequacy of the
Modified Disclosure Statement was held on December 10, 1997, at which the
Bankruptcy Court approved the Modified Disclosure Statement. A hearing to
consider confirmation of the Modified Plan of Reorganization is set for
January 21, 1998. The Modified Disclosure Statement is expected to be
distributed to creditors of the Debtors on or about December 18, 1997.
Accordingly, if the Modified Plan of Reorganization is confirmed, and if
certain other conditions precedent are satisfied or waived as set forth in
the Modified Plan of Reorganization, the Effective Date (as defined below)
may occur, and the Notes (as defined below) may be issued, on or about
February 28, 1998.
Under the Modified Plan of Reorganization, the assets and business of HJC
will vest in Jazz Casino Company, L.L.C., a Louisiana limited liability company
(the "Company" or "applicant"), on the date that the Modified Plan of
Reorganization is consummated (the "Effective Date"). On the Effective Date,
pursuant to the Modified Plan of Reorganization, the Company will issue to
certain of the Debtors' existing creditors $26,637,000 in aggregate principal
amount of 8% Convertible Junior Subordinated Debentures Due 2009 of the
Company (the "Securities"), to be issued under the indenture to be
qualified. The aggregate principal amount of the Securities may increase
as provided for in the Modified Plan of Reorganization or as provided for in
the indenture governing the securities.
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The issuance of the Securities will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to the
exemption from the registration requirements of the Securities Act provided
by Section 1145 of the Bankruptcy Code. Generally, section 1145 of the
Bankruptcy Code exempts the offer or sale of securities under a plan of
reorganization from registration under the Securities Act and under
equivalent state securities and "blue sky" laws if the following requirements
are satisfied: (i) the securities are issued by the debtor or its successor
under a plan of reorganization; (ii) the recipients of the securities hold a
claim against the debtor, an interest in the debtor or a claim for an
administrative expense against the debtor; and (iii) the securities are
issued entirely in exchange for the recipient's claim against or interest in
the debtor or are issued "principally" in such exchange and "partly" for cash
or property. The Company believes that the issuance of the Securities under
the Modified Plan of Reorganization will satisfy such requirements of section
1145 of the Bankruptcy Code and, therefore, such issuance is exempt from the
registration requirements referred to above.
AFFILIATIONS
3. AFFILIATES. Furnish a list or diagram of all affiliates of the applicant
and indicate the respective percentages of voting securities or other bases of
control.
As of December 16, 1997:
100% of the membership interests in the Company are owned by JCC
Holding Company, a Delaware corporation ("JCC Holding").
As of the Effective Date:
100% of the membership interests in the Company will be owned by JCC
Holding; and
100% of the membership interests in JCC Development Company, L.L.C., a
Louisiana limited liability company ("JCC Development"), will be owned by JCC
Holding.
As a result of certain transactions to be consummated on the Effective
Date pursuant to the Plan of Reorganization, Harrah's Entertainment, Inc., a
Delaware corporation, and certain holders of the 14 1/4% First Mortgage Notes
due 2001 with Contingent Payments of HJC and Finance Corp. issued under a
previously qualified indenture, may be deemed to be affiliates of the
Company. This application on Form T-3 (the "Application") will be amended to
include a complete list of affiliates of the Company as of the Effective Date.
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all offices
with the applicant held or to be held by each person named.
As of December 16, 1997:
None. The Company is a member managed, single member, limited liability
company formed under the Louisiana Limited Liability Company Law, La. R.S.
12:1301 ET SEQ., and as such the Company does not have directors and is not
required to appoint officers.
As of the Effective Date:
The Company expects to appoint officers prior to or on the Effective
Date, however, the individuals who will serve as officers of the Company have
not yet been determined. This Application will be amended to include the
individuals who will serve as officers as of the Effective Date.
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5. PRINCIPAL OWNERS OF VOTING SECURITIES. Furnish the following information
as to each person owning 10 percent or more of the voting securities of the
applicant.
As of December 16, 1997:
Name and Complete Title of Class Percentage of Voting
Mailing Address Owned Amount Owned Securities Owned
----------------- -------------- ------------ ---------------------
JCC Holding Company Membership Interest N/A* 100%
1023 Cherry Road
Memphis, Tennessee 38117
* The Company is a single member limited liability company formed under the
Louisiana Limited Liability Company Law, La. R.S. 12:1301 ET SEQ. The sole
member, JCC Holding, presently owns, and is expected to own on the
Effective Date, all of the membership interests in the Company.
As of the Effective Date the Company expects the above list of principal
owners of voting securities will remain unchanged.
6. UNDERWRITERS. Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
(a) Within three years prior to the date of the filing of this
Application, no person acted as an underwriter of any securities of the
Company which are currently outstanding.
(b) None.
CAPITAL SECURITIES
7. CAPITALIZATION. (a) Furnish the following information as to each
authorized class of securities of the applicant.
As of December 16, 1997:
<TABLE>
<CAPTION>
Amount Amount
Title of Class Authorized Outstanding
-------------- ----------- -----------
<S> <C> <C>
Membership Interest N/A* N/A*
As of the Effective Date:
Amount Amount
Title of Class Authorized Outstanding
-------------- ----------- -----------
Membership Interest N/A* N/A*
Senior Subordinated Notes Due 2009 With Contingent Payments $187,500,000(1) $187,500,000
Senior Subordinated Contingent Notes Due 2009 (2) (2)
8% Convertible Junior Subordinated Debentures Due 2009 $ 26,637,000(3) $ 26,637,000(3)
</TABLE>
* The Company is a single member limited liability company formed under the
Louisiana Limited Liability Company Law, La. R.S. 12:1301 ET SEQ. The sole
member, JCC Holding, presently owns, and is expected to own on the
Effective Date, all of the membership interests in the Company.
(1) Plus additional Senior Subordinated Notes due 2009 with Contingent
Payments issued in lieu of cash interest payments in accordance with the
terms of the indenture for such securities.
(2) All payments in respect of the Senior Subordinated Contingent Notes Due
2009 will be contingent payments, and such contingent payments will be
limited to an annual aggregate maximum amount of $18,319,035.
(3) Plus additinal Securities issued (i) in lieu of cash interest payments
in accordance with the terms of the Indenture or (ii) pursuant to the
Modified Plan of Reorganization.
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(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
Because the Company is a member managed, single member, limited
liability company, all decisions relating to the business affairs and
properties of the Company shall be made by JCC Holding as the sole member of
the Company.
Holders of the Senior Subordinated Notes due 2009 with Contingent
Payments, the Senior Subordinated Contingent Notes due 2009 and the
Securities do not have any voting rights by reason of ownership of those
securities.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point the analysis of
indenture provisions required under section 305(a)(2) of the Trust Indenture Act
of 1939, as amended (the "TIA").
The Securities will be issued under an indenture (the "Indenture") to be
dated as of the Effective Date, between the Company, and a trustee to be
named (the "Trustee"), a copy of which is included as Exhibit
T3C hereto. Capitalized terms used in this Section 8 which are not otherwise
defined below or elsewhere in the Application have the respective meanings
assigned to them in the Indenture. The following summary of certain
provisions of the Indenture does not purport to be complete and is subject
to, and is qualified in its entirety, by reference to all of the provisions
of the Indenture.
(A) EVENTS OF DEFAULT. The following are Events of Default under the
Indenture:
(1) failure by the Company to pay interest on any Security when the
same becomes due and payable, which failure continues for a period of 30 days;
(2) failure by the Company to pay the principal of any Security when
the same becomes due and payable at maturity, upon redemption or otherwise;
(3) failure by the Company or JCC Holding to observe or perform the
covenant in the Indenture regarding when the Company and JCC Holding may merge;
(4) failure by the Company or JCC Holding to comply with any other
agreements or covenants in, or provisions of, the Securities or the Indenture;
and
(5) certain events of bankruptcy, insolvency or reorganization in
respect of either the Company or a Significant Subsidiary.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 30% in principal amount
of the then Outstanding Securities notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 30 days after receipt
of the notice.
If an Event of Default (other than an Event of Default specified in
clause (5) above) occurs and is continuing, the Trustee may, by written notice
to the Company, or the Holders of at least 30% (or 25% in the case of an Event
of Default specified in clause (1) or (2) above) in principal amount of the then
Outstanding Securities may, by written notice to the Company and the Trustee,
and the Trustee shall, upon the request of such Holders, declare the unpaid
principal of and any accrued but unpaid interest on all the Securities to be due
and payable. Upon such declaration the principal and interest shall be due and
payable immediately; provided, however, that if any Indebtedness is outstanding
pursuant to the Credit Agreement or the New Indentures, upon a declaration of
acceleration, such principal and interest shall be due and payable upon the
earlier of (x) the day that is five Business Days after the provision to the
Company, the Credit Agent and the New Indentures Trustee of such written notice,
unless such Event of Default is cured or waived prior to such date and (y) the
date of the acceleration of any Indebtedness under the Credit Agreement or the
New Indentures. If an Event of Default specified in clause (5) above occurs,
the unpaid principal of and any accrued but unpaid interest on all the
Securities shall IPSO FACTO become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then Outstanding
Securities by written notice to the Company and to the Trustee may rescind an
acceleration and its
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consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of that acceleration) have been
cured or waived. No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereto.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Trust Officer of the Trustee, the Trustee shall mail to the
Holders a notice of the Default or Event of Default within 30 days after
obtaining such knowledge of the occurrence thereof and so long as any
Indebtedness is outstanding pursuant to the Credit Agreement or the New
Indenture, shall mail a copy thereof to the Credit Agent and the New Indentures
Trustee. Except in the case of a Default or Event of Default in payment of
interest or principal on any Security, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders.
(B) AUTHENTICATION AND DELIVERY; APPLICATION OF PROCEEDS.
Each Security will be signed by one Officer of the Company by manual or
facsimile signature. A Security will not be valid until authenticated by the
manual signature of the Trustee, such signature to be conclusive evidence
that the Security has been authenticated under the Indenture. No provisions
are contained in the Indenture with respect to use by the Company of proceeds
of issuance of the Securities.
(C) RELEASE AND SUBSTITUTION OF PROPERTY SUBJECT TO THE LIEN OF THE
INDENTURE.
Not applicable.
(D) SATISFACTION AND DISCHARGE.
The Indenture will cease to be of further effect when all outstanding
Securities (including any Secondary Securities) theretofore authenticated and
issued have been delivered (other than destroyed, lost or stolen Securities that
have been replaced or paid) to the Trustee for cancellation and the Company has
paid all sums payable under the Indenture.
In addition, the Company may terminate all of its obligations under the
Indenture if: (1) the Company has irrevocably deposited with the Trustee trust
funds in an amount sufficient to pay principal and interest on the Securities to
maturity or redemption, as the case may be; (2) the Company delivers to the
Trustee an Officers' Certificate stating that all conditions precedent to
satisfaction and discharge of the Indenture have been complied with, and an
Opinion of Counsel to the same effect; (3) no Default or Event of Default shall
have
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occurred and be continuing on the date of such deposit or before 90 days after
the date of such deposit; (4) the Company has paid or caused to be paid all sums
then payable by the Company under the Indenture and the Securities; (5) such
deposit shall not result in a breach or violation of, or constitute a default
under, the Indenture or any other instrument to which the Company is a party or
by which the Company or any of its assets or properties are bound; and (6) the
Holders have a perfected security interest in the trust funds deposited pursuant
to clause (1) above. In the event the Securities are defeased as aforesaid, the
Company will be relieved of its obligations under the Indenture, with certain
specified exceptions.
(E) EVIDENCE AS TO COMPLIANCE WITH CONDITIONS AND COVENANTS.
The Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company and within 60 days after the
end of each quarterly period, an Officers' Certificate stating whether or not,
after a review of the activities of JCC Holding, the Company and its
Subsidiaries during the preceding fiscal year or quarter, as applicable, made
under the supervision of the signing Officers with a view to determining whether
the Company and JCC Holding have kept, observed, performed and fulfilled their
respective obligations under the Indenture and the Securities, and further
stating, as to each such Officer signing the certificate, whether or not the
signer knows of any failure by the Company or JCC Holding to comply with any
conditions or covenants in the Indenture or Securities and, if such signer does
know of such failure to comply, the certificate shall describe such failure and
what action the Company is taking or proposes to take with respect thereto.
The annual reports delivered to the Trustee and the Holders pursuant to the
Indenture will be accompanied by a written statement of the Company's
independent public accountants that in making the examination necessary for
certification of such annual reports nothing has come to their attention that
would lead them to believe that the Company has violated certain provisions of
the Indenture concerning payment of principal and interest on the Securities or,
if any such violation has occurred, specifying the nature and period of
existence thereof. The Company will also, so long as any of the Securities are
outstanding, promptly deliver to the Trustee, forthwith upon any Officer
becoming aware of any Event of Default or Default, and, in any event within five
Business Days of such awareness, an Officers' Certificate specifying such Event
of Default or Default and what action the Company is taking or proposes to take
with respect thereto.
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The Indenture provides that upon any application or request by the
Company to the Trustee to take any action under a provision of the Indenture,
the Company must furnish to the Trustee an Officers' Certificate or, if
customary or reasonably requested by the Trustee, an Opinion of Counsel, each
stating that all conditions precedent, if any, provided for in the Indenture
relating to the proposed action have been complied with. Any such
certificate or opinion must comply with the requirements of the TIA are the
Indenture.
9. OTHER OBLIGORS. Give the name and complete mailing address of any other
person, other than the applicant, who is an obligor on the indenture
securities.
None.
CONTENTS OF APPLICATION FOR QUALIFICATION. This application for qualification
comprises:
(a) Pages numbered __ to __, consecutively. (1)
(b) The statement of eligibility and qualification of the trustee under
the indenture to be qualified. (2)
(c) The following exhibits in addition to those filed as part of the
statement of eligibility and qualification of the trustee:
Exhibit T3A.1 Operating Agreement of the Company. (3)
Exhibit T3B Not applicable.
Exhibit T3C Form of Indenture to be qualified for the 8%
Convertible Junior Subordinated Debentures.
Exhibit T3D Not applicable.
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Exhibit T3E.1 Debtors' Third Amended Joint Disclosure
Statement dated February 26, 1997, and exhibits
thereto. (4)
Exhibit T3E.2 Debtors' Third Amended Joint Plan of
Reorganization dated February 26, 1997, and
exhibits thereto. (4)
Exhibit T3E.3 Letter to Creditors from Debtors' Counsel,
dated March 3, 1997. (3)
Exhibit T3E.4 Letter to Creditors from The Official
Committee of Bondholders of Harrah's Jazz
Company, dated February 28, 1997. (3)
Exhibit T3E.5 Notices of Entry of Order and Order Approving
Debtors' Third Amended Joint Disclosure
Statement and of Plan Confirmation Hearing. (3)
Exhibit T3E.6 Voting Procedures Notice. (3)
Exhibit T3E.7 Ballots. (3)
Exhibit T3E.8 Debtors' Fourth Amended Joint Disclosure
Statement, dated July 24, 1997, and exhibits
thereto. (5)
Exhibit T3E.9 Debtors' Fourth Amended Joint Plan of
Reorganization, dated July 24, 1997, and
exhibits thereto. (5)
Exhibit T3E.10 Notice of Entry of Order Approving Debtors'
Fourth Amended Joint Disclosure Statement. (3)
Exhibit T3E.11 Ballots. (3)
Exhibit T3E.12 Form of Debtors' Fifth Amended Joint
Disclosure Statement dated December 10, 1997,
and exhibits thereto. (3)
Exhibit T3E.13 Form of Debtors' Third Amended Joint Plan of
Reorganization under Chapter 11 of the
Bankruptcy Code as modified through December
10, 1997, dated December 10, 1997, and
exhibits thereto. (3)
Exhibit T3E.14 Form of Ballots. (3)
Exhibit T3E.15 Form of Letter to Creditors from Debtors'
Counsel, dated December 10, 1997. (3)
Exhibit T3E.16 Form of Notices of Entry of Order Approving
Debtors' Fifth Amended Joint Disclosure
Statement and of Plan Confirmation Hearing. (3)
Exhibit T3E.17 Form of Modified Voting Procedures. (3)
Exhibit T3F See Exhibit T3C for cross reference sheet
showing the location in the Indenture of the
provisions inserted therein pursuant to
Section 310 through 318(a), inclusive, of the
TIA.
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(1) Pursuant to Rule 309(a) of Regulation S-T, requirements as to
sequential numbering shall not apply to this electronic format
document.
(2) To be filed by amendment.
(3) Incorporated by reference to the Company's Form T-3 with respect to
the Senior Subordinated Notes due 2009 with Contingent Payments,
filed with the Securities and Exchange Commission on December 16,
1997
(4) Incorporated by reference to HJC's Annual Report on Form 10-K for
the year ended December 31, 1996 filed with the Securities and
Exchange Commission on March 28, 1997, Registration No. 33-73370.
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(5) Incorporated by reference to Harrah's Jazz Company Quarterly Report
on Form 10-Q for the quarter ended June 30, 1997, filed with the
Securities and Exchange Commission on August 14, 1997, Registration
No. 33-73370.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Jazz Casino Company, L.L.C., a limited liability company organized
and existing under the laws of Louisiana, has duly caused this application to
be signed on its behalf by the undersigned, thereunto duly authorized, and
its seal to be hereunto affixed and attested, all in the City of Memphis and
State of Tennessee, on the 16th day of December, 1997.
JAZZ CASINO COMPANY, L.L.C.
By:JCC HOLDING COMPANY
Its:Sole Member
By: /s/ FREDERICK W. BURFORD
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Name: Frederick W. Burford
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Title: Vice President, Secretary
and Treasurer
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Attest: /s/ COLIN V. REED
---------------------------
Name: Colin V. Reed
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PRELIMINARY
WGM DRAFT
12/8/97
JAZZ CASINO COMPANY, L.L.C.
$26,637,000
Convertible Junior Subordinated Debentures
Due 2009
_______________
INDENTURE
Dated as of __________, 1998
_______________
[NAME OF TRUSTEE]
Trustee
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TABLE OF CONTENTS
<TABLE>
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE. . . . . . . . . . . . . . . . . 1
<S><C>
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.03. Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.04. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2
THE SECURITIES . . . . . . . . . . . . . . . . 9
Section 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . 9
Section 2.03. Registrar, Paying Agent and Conversion
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04. Paying Agent to Hold Money in Trust. . . . . . . . . . . . . . . . . 12
Section 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.10. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
REDEMPTION . . . . . . . . . . . . . . . . . 16
Section 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.02. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . 16
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . 18
Section 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . 18
Section 3.06. Securities Redeemed. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.07. Optional Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 4
COVENANTS. . . . . . . . . . . . . . . . . . 19
Section 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . 20
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Section 4.03. SEC Reports; Other Information . . . . . . . . . . . . . . . . . . . 20
Section 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.05. Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . 23
ARTICLE 5
SUCCESSORS . . . . . . . . . . . . . . . . . 23
Section 5.01. When Company and JCC Holding May Merge, Etc. . . . . . . . . . . . . 23
Section 5.02. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . 24
ARTICLE 6
DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . 24
Section 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.05. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . 28
Section 6.06. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . 28
Section 6.07. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.08. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.09. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . 29
Section 6.10. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . 29
Section 6.11. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 30
Section 6.12. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . 31
Section 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . 34
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . 35
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . 35
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.09. Successor Trustee by Merger, Etc.. . . . . . . . . . . . . . . . . . 38
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . 38
Section 7.11. Preferential Collection of Claims Against
the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 8
DISCHARGE OF INDENTURE . . . . . . . . . . . . . . 39
Section 8.01. Termination of the Company's Obligations . . . . . . . . . . . . . . 39
Section 8.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 41
ii
<PAGE>
Page
----
Section 8.03. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.04. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 9
AMENDMENTS . . . . . . . . . . . . . . . . . 42
Section 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . 42
Section 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . 43
Section 9.03. Compliance with Trust Indenture Act. . . . . . . . . . . . . . . . 44
Section 9.04. Revocation and Effect of Consents. . . . . . . . . . . . . . . . . 44
Section 9.05. Notation on or Exchange of Securities. . . . . . . . . . . . . . . 45
Section 9.06. Trustee to Sign Amendments, Etc. . . . . . . . . . . . . . . . . . 45
ARTICLE 10
SUBORDINATION . . . . . . . . . . . . . . . . 45
Section 10.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . 45
Section 10.02. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . 47
Section 10.04. Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . 49
Section 10.05. Acceleration of Securities . . . . . . . . . . . . . . . . . . . . 52
Section 10.06. When Distribution Must Be Paid Over. . . . . . . . . . . . . . . . 52
Section 10.07. Notice by Company. . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.08. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.09. Relative Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.10. Subordination May Not Be Impaired. . . . . . . . . . . . . . . . . 54
Section 10.11. Distribution or Notice to Representative . . . . . . . . . . . . . 56
Section 10.12. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . 56
Section 10.13. Authorization to Effect Subordination. . . . . . . . . . . . . . . 57
Section 10.14. No Suspension of Remedies. . . . . . . . . . . . . . . . . . . . . 57
Section 10.15. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 11
CONVERSION. . . . . . . . . . . . . . . . . . . 58
Section 11.01. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . 58
Section 11.02. Conversion Procedure . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.03. Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.04. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.05. JCC Holding to Provide Stock . . . . . . . . . . . . . . . . . . . 60
Section 11.06. Adjustment for Change in Capital Stock . . . . . . . . . . . . . . 60
Section 11.07. Adjustment for Rights Issue. . . . . . . . . . . . . . . . . . . . 61
Section 11.08. Adjustment for Other Distributions . . . . . . . . . . . . . . . . 62
Section 11.09. Adjustment for Common Stock Issue. . . . . . . . . . . . . . . . . 63
Section 11.10. Adjustment for Convertible Securities Issue. . . . . . . . . . . . 64
Section 11.11. Consideration Received . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.12. When Adjustment May Be Deferred. . . . . . . . . . . . . . . . . . 66
Section 11.13. When No Adjustment Required. . . . . . . . . . . . . . . . . . . . 66
iii
<PAGE>
Page
----
Section 11.14. Notice of Adjustment . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.15. Voluntary Reduction. . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.16. Notice of Certain Transactions . . . . . . . . . . . . . . . . . . 67
Section 11.17. Reorganization of JCC Holding. . . . . . . . . . . . . . . . . . . 68
Section 11.18. JCC Holding Determination Final. . . . . . . . . . . . . . . . . . 68
Section 11.19. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.20. Converted Securities . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.21. Joint and Several Obligation . . . . . . . . . . . . . . . . . . . 69
ARTICLE 12
MISCELLANEOUS. . . . . . . . . . . . . . . . . 69
Section 12.01. Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . 69
Section 12.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 12.03. Communication by Holders with Other
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 12.04. Certificate and Opinion as to Conditions Precedent. . . . . . . 71
Section 12.05. Statements Required in Certificate or
Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 12.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . 72
Section 12.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 12.08. No Recourse Against Others. . . . . . . . . . . . . . . . . . . 72
Section 12.09. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . 72
Section 12.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 12.11. No Adverse Interpretation of Other
Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 12.12. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.14. Counterpart Originals . . . . . . . . . . . . . . . . . . . . . 73
Section 12.15. Variable Provisions . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.16. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . . 73
Section 12.17. Gaming Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.18. Waiver and Release; CRGA. . . . . . . . . . . . . . . . . . . . 73
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
EXHIBIT A - FORM OF SECURITY
iv
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
- --------------- ---------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a). . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a). . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a). . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a). . . . . . . . . . . . . . . . . . . . . . . . . . 4.03; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a). . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(2)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(1)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(3)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
316(a) (last sentence). . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . 6.07
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 6.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a). . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture
<PAGE>
INDENTURE, dated as of _______________, 1998, between Jazz Casino
Company, L.L.C., a Louisiana limited liability company (the "Company"), and
[NAME OF TRUSTEE] (the "Trustee"), and AGREEMENT, dated as of ____________,
1998, between JCC Holding Company, a Delaware corporation, and [NAME OF
TRUSTEE].
Each of the Company and the Trustee agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the holders of the
Company's Convertible Junior Subordinated Debentures Due 2009 (the
"Securities"), and JCC Holding Company agrees solely for the purposes of the
provisions of Article 11 as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, beneficial
ownership of 10% or more of the voting common equity of a Person shall be deemed
to be control of such Person unless ownership of a lesser amount may be deemed
to be control under the TIA. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"BOARD OF DIRECTORS" means the Board of Directors of JCC Holding, the
sole member of the Company, or any committee of the Board of Directors duly
authorized to act hereunder.
"BUSINESS DAY" means any day other than a Legal Holiday.
<PAGE>
"CAPITAL LEASE" means, at the time any determination thereof is to be
made, any lease of property, real or personal, in respect of which the present
value of the minimum rental commitment would be capitalized on a balance sheet
of the lessee in accordance with generally accepted accounting principles.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be required to be capitalized on a balance sheet of the
lessee in accordance with generally accepted accounting principles.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's Capital Stock whether now outstanding or issued after the date of this
Indenture, including, without limitation, all Common Stock and Preferred Stock.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations and other equivalents (however designated, whether
voting or nonvoting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, and includes, without limitation, all
series and classes of such common stock; PROVIDED, HOWEVER, that Common Stock
does not include any Preferred Stock.
"COMPANY" means Jazz Casino Company, L.L.C., a Louisiana limited
liability company, until a successor replaces it in accordance with Article 5
hereof and thereafter means the successor, and shall include any and all other
obligors on the Securities.
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee
specified in Section 11.02 hereof or such other address as the Trustee may give
notice to the Company.
"CREDIT AGENT" means Bankers Trust Company, as Administrative Agent
under the Credit Agreement, or any successor thereto.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of
____________, 1998, among the Company, JCC Holding, various banks and Bankers
Trust Company as Administrative Agent, including any and all related notes,
collateral and security documents, instruments and agreements executed in
connection therewith (including, without limitation, all Loan Documents (as
defined in such Credit Agreement)) and all Obligations of the Company and its
Subsidiaries incurred thereunder or in respect
2
<PAGE>
thereof, and in each case as amended, supplemented, restructured or otherwise
modified, extended or renewed and as any or all of the foregoing may be refunded
or refinanced from time to time.
"CURRENT MARKET PRICE" means, with respect to the JCC Holding Class
A Common Stock, as of any date, the average with respect to the immediately
preceding ten Trading Days of the last reported sale price regular way (or,
if no such last reported sales price is available for any such Trading Day,
the last reported closing bid price regular way) of the JCC Holding Class A
Common Stock, as reported by NASDAQ or by the NASDAQ National Market System
(or if the JCC Holding Class A Common Stock is listed on a national
securities exchange, by such exchange); PROVIDED, HOWEVER, that, if the JCC
Holding Class A Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on NASDAQ or the NASDAQ National
Market System, the closing bid price in the over-the-counter market, as
furnished by any New York Stock Exchange member firm that is selected from
time to time by the Company for that purpose and is reasonably acceptable to
the Trustee, shall be used for such calculation. The Current Market Price
with respect to the Class B Common Stock of JCC Holding shall be deemed to be
the same as that of the JCC Holding Class A Common Stock at any time when
there is no public market for such shares of Class B Common Stock; at any
other times, the Current Market Price of such Class B Common Stock shall be
determined in the same manner as the Current Market Price with respect to the
JCC Holding Class A Common Stock.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTY" means a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HET/JCC AGREEMENT" means that certain HET/JCC Agreement, dated as of
________, 1998, by and among the Company, Harrah's Entertainment, Inc. and
Harrah's Operating Company, Inc. and, following the termination or non-renewal
thereof, any successor or substitute agreement pursuant to which any Person
agrees to provide the Minimum Payment Guaranty.
3
<PAGE>
"HOLDER" means a person in whose name a Security is registered.
"INDEBTEDNESS" means, with respect to any Person, at any date and
without duplication, (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments other than Interest Rate Agreements, (iii) all reimbursement
obligations and other liabilities of such Person with respect to letters of
credit issued for such Person's account, (iv) all obligations of such Person
having an original term of at least one year to pay the deferred purchase price
of property or services, except accounts payable arising in the ordinary course
of business, (v) all obligations of such Person as lessee in respect of the
capital lease obligations under capital leases and (vi) all obligations of
others of a nature described in any of clauses (i) through (v) above guaranteed
by such Person.
"INDENTURE" means this Indenture (including any exhibits, schedules,
annexes or appendices hereto) as amended from time to time.
"INDENTURES" means, collectively, this Indenture and the New
Indentures, each as amended from time to time.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement,
dated _______, 1998, by and among the Trustee, the New Indenture Trustee, the
Credit Agent, the Company, HET and HOCI.
"INTEREST RATE AGREEMENT" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge arrangement, to or under which
the Company or any of its Subsidiaries is or becomes a party or a beneficiary.
"JCC HOLDING" means JCC Holding Company, a Delaware corporation and
the sole member of the Company.
"JCC HOLDING CLASS A COMMON STOCK" means the Class A Common Stock,
$.01 par value per share of JCC Holding, or any security of JCC Holding which
may be exchanged or otherwise substituted therefor.
"LIEN" means, with respect to any asset, any mortgage, deed of trust,
lien (statutory or otherwise), pledge, charge, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference, priority or
other encumbrance
4
<PAGE>
of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any capital lease, any option or other
agreement to sell and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"NASDAQ" means the NASDAQ Stock Market operated by the National
Association of Securities Dealers, Inc.
"NEW BONDS" means the Senior Subordinated Notes with Contingent
Payments due 2009 of the Company.
"NEW CONTINGENT BONDS" means the Senior Subordinated Contingent Notes
due 2009 of the Company.
"NEW INDENTURES" means, collectively, (i) the Indenture, dated as
of ___________, 1998, among the Company, as obligor, JCC Holding, as
guarantor, and Norwest Bank Minnesota, National Association, as trustee in
connection with the New Bonds, and (ii) the Indenture, dated as of
__________, 1998, among the Company, as obligor, JCC Holding, as guarantor,
and Norwest Bank Minnesota, National Association, as trustee in connection
with the New Contingent Bonds, in each case as such Indentures may be amended
or supplemented from time to time.
"NEW INDENTURES TRUSTEE" means, collectively, the trustee under each
of the New Indentures from time to time.
"OBLIGATIONS" means, with respect to any Indebtedness or any Interest
Rate Agreement, any principal, premium, interest (including, without limitation,
interest, whether or not allowed, after the filing of a petition initiating any
proceeding referred to in Section 6.01(5), (6) or (7)), penalties, commissions,
charges, expenses, fees, indemnifications, reimbursements and other liabilities
or amounts payable under or in respect of the documentation governing such
Indebtedness or such Interest Rate Agreement.
"OFFICER" means the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Assistant Secretary of the Company.
5
<PAGE>
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers and
delivered to the Trustee, and which shall include the statements set forth in
Section 11.05 thereof.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
may be an employee of, or counsel to, the Company or who may be other counsel
reasonably acceptable to the Trustee.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's Capital Stock which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over the Capital Stock of
any other class in such Person, whether now outstanding or issued after the date
of this Indenture.
"PRINCIPAL" of a debt security means the principal of the security
plus the premium, if any, on the security.
"REGULATING AUTHORITY" means the Louisiana Gaming Control Board.
"SEC" means the Securities and Exchange Commission.
"SECONDARY SECURITIES" shall have the meaning set forth in Section
2.02 hereof.
"SECURITIES" means the securities described above issued under this
Indenture, including, without limitation, any Secondary Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor act.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Securities Act and the Exchange Act (as such Regulation is in effect on the date
hereof).
"SUBSIDIARY" of any Person means any entity of which shares of the
Capital Stock or other equity interests (including partnership interests)
entitled to cast at least a majority of
6
<PAGE>
the votes that may be cast by all shares or equity interests having ordinary
voting power for the election of directors or other governing body of such
entity is owned by such Person directly and/or through one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Sections 9.01 and 9.03 hereof.
"TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"TRUST OFFICER" means any officer within the Corporate Trust Group (or
any successor group) of the Trustee, including any Vice President, Assistant
Vice President, Secretary, Assistant Secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Trustee's Corporate
Trust Office because of his/her knowledge of and familiarity with the particular
subject.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor serving hereunder.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case under clause (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such obligation or a specific
payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt; PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the obligation or the
specific payment of interest on or principal of the obligation evidenced by such
depository receipt.
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SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Bankruptcy Law". . . . . . . . . . . . . . . 6.01
"Claim" . . . . . . . . . . . . . . . . . . . 10.02
"Claim" . . . . . . . . . . . . . . . . . . . 12.18
"Conversion Agent". . . . . . . . . . . . . . 2.03
"Converted Securities". . . . . . . . . . . . 11.20
"Custodian" . . . . . . . . . . . . . . . . . 6.01
"Debtor". . . . . . . . . . . . . . . . . . . 6.01
"Event of Default". . . . . . . . . . . . . . 6.01
"Guarantor" . . . . . . . . . . . . . . . . . 12.18
"Legal Holiday" . . . . . . . . . . . . . . . 12.07
"Minimum Payment Guaranty". . . . . . . . . . 12.18
"Outstanding Securities". . . . . . . . . . . 2.08
"Paying Agent". . . . . . . . . . . . . . . . 2.03
"Payment Blockage Period" . . . . . . . . . . 10.03
"Payment Default" . . . . . . . . . . . . . . 10.04
"Registrar" . . . . . . . . . . . . . . . . . 2.03
"Representative". . . . . . . . . . . . . . . 10.02
"Required Holders". . . . . . . . . . . . . . 10.03
"Required Lenders". . . . . . . . . . . . . . 10.03
"Senior Indebtedness" . . . . . . . . . . . . 10.02
"Specified Senior Indebtedness" . . . . . . . 10.02
"Unknown Claim" . . . . . . . . . . . . . . . 12.18
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company.
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All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the
United States;
(3) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect in the United
States as of the time when and for the period as to which such accounting
principles are to be applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rules, agreements to
which the Company is subject or usage. Each Security shall be dated the date of
its authentication. The Securities shall be in denominations of $1,000 and
integral multiples thereof, except that Secondary Securities may be in
denominations of other than $1,000 or any integral multiple thereof; PROVIDED,
HOWEVER, that the Company may at its option pay cash in lieu of issuing
Secondary Securities in any denominations of less than $1,000.
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Securities for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities (excluding Secondary
Securities) for original issue up to the aggregate principal amount stated in
paragraph 4 of the Securities, upon a written order of the Company signed by two
Officers, which order shall set forth the amount and the date of the Securities
to be authenticated. The aggregate principal amount of Securities outstanding
at any time may not exceed the amount set forth herein, except for any
Securities that may be issued pursuant to the immediately following paragraph
and except as provided in Sections 2.07 and 2.08.
The Company may, at its option and in its sole discretion, pay
interest in additional Securities ("Secondary Securities") in lieu of the
payment in whole or in part of interest in cash on the Securities as provided in
Paragraph 1 of the Securities, (i) on any stated due date of an installment of
interest on the Securities prior to __________, 2003 [the fifth anniversary
following issuance], and (ii) on any stated due date of an installment of
interest on the Securities after __________, 2003, if the Company did not make
"Contingent Payments" (as defined in the New Indenture in respect of the New
Contingent Bonds) with respect to the New Contingent Bonds on the immediately
preceding interest payment date for such New Contingent Bonds. The Company
shall give written notice to the Trustee of the amount of interest to be paid in
Secondary Securities not less than five Business Days prior to the relevant
stated due date of an installment of interest on the Securities, and the Trustee
or an authenticating agent (upon written order of the Company signed by an
Officer of the Company given not less than five nor more than 45 days prior to
such interest payment date) shall authenticate for original issue (pro rata to
each Holder of any Securities as of such record date) Secondary Securities in an
aggregate principal amount equal to the amount of cash interest not paid on such
interest payment date. Each
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issuance of Secondary Securities in lieu of the payment of interest in cash on
the Securities shall be made pro rata with respect to outstanding Securities,
and the Company shall have the right to aggregate amounts of interest payable in
the form of Secondary Securities to a Holder of outstanding Securities and issue
to such Holder a single Secondary Security in payment thereof. Secondary
Securities may be denominated a separate series if the Company deems it
necessary to do so in order to comply with any law or other applicable
regulations or requirements, with appropriate distinguishing designations.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the term of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to "authentication" by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain (i) an office or agency where Securities
may be presented for registration of transfer or for exchange ("Registrar") and
(ii) an office or agency where Securities may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company shall promptly notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent the Trustee shall act as such. The Company or any of
its subsidiaries may act as Paying Agent, Registrar or co-registrar.
JCC Holding shall maintain an office or agency where Securities may be
presented for conversion ("Conversion Agent"). The term "Conversion Agent"
includes any additional conversion agent. JCC Holding may change any Conversion
Agent without notice to any Holder. JCC Holding shall promptly notify the
Trustee in writing of the name and address of any Conversion Agent not a party
to this Indenture. If JCC Holding fails to appoint or maintain another entity
as Conversion Agent, the Trustee shall act as such. JCC Holding or any of its
subsidiaries may act as Conversion Agent.
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The Company or JCC Holding, as the case may be, shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, which
shall incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company or JCC
Holding, as the case may be, shall notify the Trustee of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent or
JCC Holding fails to maintain a Conversion Agent or the Company or JCC Holding,
as the case may be, fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Securities.
JCC Holding initially appoints the Trustee as Conversion Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets and/or Secondary Securities held by the Paying
Agent for the payment of principal of, or interest on, the Securities and shall
notify the Trustee in writing of any Default by the Company in making any such
payment. If the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund for the
benefit of the Holders or the Trustee. The Company at any time may require a
Paying Agent to distribute all assets and/or Secondary Securities held by it to
the Trustee and account for any assets disbursed, and the Trustee may at any
time during the continuance of any payment Default, upon written request to a
Paying Agent, require such Paying Agent to distribute all assets and/or
Secondary Securities held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets and/or Secondary
Securities that have been delivered by the Company to the Paying Agent, the
Paying Agent (if other than the Company) shall have no further liability for
such assets and/or Secondary Securities.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall cause to be furnished to the Trustee at
least seven
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Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-registrar with
a request to register, transfer or exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met;
PROVIDED, HOWEVER, that any Security presented or surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form reasonably satisfactory to the Registrar and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in
writing. To permit registrations of transfers and exchanges, the Company shall
issue and the Trustee shall authenticate Securities at the Registrar's request,
subject to such rules as the Trustee may reasonably require.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
on a Business Day 15 days before the day of any selection of Securities for
redemption under Section 3.02 hereof and ending at the close of business on the
day of selection, (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (iii) to register the transfer or
exchange of a Security between the record date and the next succeeding interest
payment date.
No service charge shall be made to the Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges (without a
transfer to another Person) pursuant to Section 2.10, 3.06 or 9.05 hereof, in
which event the Company will be responsible for the payment of any such taxes).
Prior to due presentment for registration of transfer of any Security,
the Trustee, any Agent and the Company may deem and treat the Person in whose
name any Security is registered as the absolute owner of such Security for the
purpose of receiving
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payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Trustees,
any Agent or the Company shall be affected by notice to the contrary.
SECTION 2.07. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers, shall
authenticate a replacement Security if the Trustee's requirements for
replacement of Securities are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent or any authenticating agent from any loss that any of them
may suffer if a Security is replaced. The Company and the Trustee may charge
for their reasonable expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities outstanding (the "Outstanding Securities") at any time
are all the Securities authenticated by the Trustee, including Secondary
Securities, except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If all of the principal amount of any Security is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
Subject to Section 2.09 hereof, a Security does not cease to be
outstanding because the Company or one of its Affiliates holds the Security.
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SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, JCC Holding or an Affiliate of the Company or JCC Holding shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Trust Officer knows are so
owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon
receipt of the written order of the Company signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled in all respects to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange, redemption, payment or conversion. The Trustee shall
promptly cancel all Securities surrendered for registration of transfer,
exchange, redemption, payment, replacement, cancellation or conversion and shall
destroy cancelled Securities (subject to the record-retention requirement of the
Exchange Act) and certification of their destruction delivered to the Company
unless the Company shall direct that cancelled Securities be returned to it.
The Company may not issue new Securities to replace Securities that it has
redeemed or paid or that have been delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article 11 hereof. The Trustee shall
provide the Company a list of all Securities that have been cancelled from time
to time as requested by the Company.
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SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at least five
Business Days prior to the payment date, in each case at the rate provided in
the Securities and in Section 4.01 hereof. The Company shall, with the consent
of the Trustee, fix or cause to be fixed each such special record date and
payment date. At least 15 days before a special record date, the Company (or
the Trustee in the name of and at the expense of the Company) shall mail to the
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities in whole or in part
pursuant to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 45 days but not more than 60 days (unless a
shorter period shall be agreed to in writing by the Trustee) before a redemption
date, an Officers' Certificate setting forth the Section of this Indenture
pursuant to which the redemption shall occur, the redemption date, the principal
amount of Securities to be redeemed and whether such Securities shall be
redeemed for cash or for shares of JCC Holding Class A Common Stock pursuant to
Section 3.07 hereof.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata or by a method that complies
with applicable legal and stock exchange requirements, if any, taking into
account the provisions of the next paragraph hereof. The particular Securities
to be redeemed shall be selected unless otherwise provided herein, not less than
45 or more than 60 days prior to the redemption date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the
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case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities and portions of them selected shall be in
amounts of $1,000 or whole multiples of $1,000; except that if all of the
Securities of a Holder are to be redeemed, the entire outstanding amount of
Securities held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder whose Securities
are to be redeemed and shall provide a copy of such notice to the Trustee.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price, including the amount of accrued and unpaid
interest to be paid upon such redemption;
(3) the current conversion price;
(4) whether the redemption price will be paid in cash, in shares of
JCC Holding Class A Common Stock or a combination thereof;
(5) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(6) the name and address of the Paying Agent and Conversion Agent;
(7) the procedures that a Holder must follow to surrender the
Securities to be redeemed;
(8) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price or received shares into which
such Securities will be converted;
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(9) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the redemption date;
(10) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
(11) that Holders have the right to convert their Securities at any
time up to and including the redemption date, and that Holders who want to
convert Securities must satisfy the requirements in paragraph 9 of the
Securities; and
(12) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; PROVIDED,
HOWEVER, that the Company shall deliver to the Trustee, at least 45 days prior
to the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph of this Section 3.03.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date in accordance with the terms set
forth in the Security.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
No later than the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent, (a) if (or to the extent that) such redemption
will be made in same-day funds sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date, or (b) if (or to
the extent that) such redemption will be made in shares of JCC Holding Class A
Common Stock, shares of such JCC Holding Class A Common Stock in a number equal
to the principal amount of the Securities to be so redeemed divided by the then
applicable conversion price as determined pursuant to Article 11 hereof (subject
to the provisions of Section 11.03 hereof). The Trustee or the Paying Agent
shall return to the Company any money or shares of JCC Holding Class A Common
Stock deposited with the
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Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all Securities to be
redeemed.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable redemption
date, whether or not such Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal from the redemption date until such
principal is paid and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities and in
Section 4.01 hereof.
SECTION 3.06. SECURITIES REDEEMED.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder, at the expense of
the Company and without charge to the surrendering Holder, a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Securities, upon the
terms set forth in paragraph 5 of the Securities. Any redemption pursuant to
this Section 3.07 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof and shall be subject to Article 10 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and in this Indenture.
Principal and interest shall be considered paid on the date due if the Paying
Agent holds on such date in trust for the benefit of the Persons entitled to
such principal and interest money, in immediately available funds, or, to the
extent permitted by Section 2.2 hereof, Secondary Securities, deposited by the
Company and designated for and sufficient to pay all principal and interest then
due; PROVIDED, HOWEVER, that money held by the Paying Agent for the benefit of
holders of Senior Indebtedness pursuant to the provisions of Article 10 hereof
shall not be considered paid within the meaning of this Section 4.01.
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The Company shall pay interest (including interest accruing after, or
that would accrue but for the occurrence of the commencement of, any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to the interest
rate on the Securities to the extent lawful; it shall pay interest on overdue
installments of interest (without regard to any applicable grace period) at the
same rate whether or not such interest is an allowable claim in any such
proceeding.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency (which may be an office of the Trustee,
Registrar or co-registrar) where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
(b) JCC Holding will maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee,
Registrar or Co-Registrar) where Securities may be presented for conversion.
JCC Holding will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time JCC
Holding should fail to maintain such required office or agency or shall fail to
furnish the Trustee with the address
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thereof, such presentments may be made at the Corporate Trust Office of the
Trustee.
JCC Holding hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of JCC Holding in accordance with Section
2.03 hereof.
SECTION 4.03. SEC REPORTS; OTHER INFORMATION.
(a) Whether or not the Company or JCC Holding is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
and JCC Holding shall file with the SEC (to the extent permitted under the
Exchange Act) on or prior to the date they are or would have been required to
file such with the SEC (the "Required Filing Date"), annual and quarterly
consolidated financial statements substantially equivalent to financial
statements that would have been included in reports filed with the SEC if the
Company and JCC Holding were subject to the requirements of Section 13 or 15(d)
of the Exchange Act, including with respect to annual information only, a report
thereon by the Company's or JCC Holding' certified independent public
accountants that such would be required in such reports to the SEC and, in each
case, together with a management's discussion and analysis of financial
condition and results of operations, that would be so required. The Company and
JCC Holding will also provide copies of such annual and quarterly reports to the
Trustee within 5 days after the Required Filing Date and to Holders of
Securities within 30 days after the Required Filing Date; PROVIDED, that the
Company and JCC Holding shall not be in default of the provisions of this
Section 4.03(a) for any failure to file reports with the SEC solely by refusal
by the SEC to accept the same for filing, it being understood that in such event
such reports shall be delivered to the Trustee and the Holders as described
herein as if they had been filed with the SEC.
(b) For so long as any of the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, (i) the Company will, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any
Holder or beneficial owner of a Security, to a prospective purchaser of a
Security who is a qualified institutional buyer within the meaning of Rule 144A
under the Securities Act, or to the Trustee for delivery to such Holder,
beneficial owner or prospective purchaser, as the case may be, in connection
with any sale thereof, in each case at the Holder's written request to the
Company, the information specified in, and meeting the requirements of, Rule
144A(d)(4) and/or Rule 144(c)(2), as
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applicable, under the Securities Act and (ii) the Company will take such further
action as is reasonably necessary to enable any such Holder to sell its
Securities without registration under the Securities Act, at the Holder's
written request to the Company.
(c) Upon the request of any Holder of a Security, the Company will
deliver to such Holder a written statement as to whether it has complied with
the requirements of this Section 4.03.
(d) The Company, JCC Holding and any Subsidiary of JCC Holding will
report the acquisition of, or any agreement to acquire, whether directly or
indirectly, any of the Securities or any interest therein to the Trustee in
writing within THREE DAYS of any such acquisition or agreement.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company and within 60 days after the end of
each quarterly period, an Officers' Certificate stating whether or not, after a
review of the activities of JCC Holding, the Company and its Subsidiaries during
the preceding fiscal year or quarter, as applicable, made under the supervision
of the signing Officers with a view to determining whether the Company and JCC
Holding have kept, observed, performed and fulfilled their respective
obligations under this Indenture and in the Securities, and further stating, as
to each such Officer signing such certificate, that to the best of his knowledge
the Company and JCC Holding have kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and in the Securities and are not
in default in the performance or observance of any of the terms, provisions and
conditions hereof or thereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have
knowledge and what action the Company or JCC Holding, as applicable, is taking
or proposes to take with respect thereto) and that to the best of his knowledge
no event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Securities are
prohibited by Article 10 hereof or otherwise or, if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual reports
delivered to the Trustee and the Holders pursuant to Section 4.03 shall be
accompanied by a
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written statement of the Company's independent public accountants that in making
the examination necessary for certification of such annual reports nothing has
come to their attention that would lead them to believe that the Company has
violated any provisions of Section 4.01 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable in the absence of bad
faith, gross negligence or willful misconduct directly or indirectly to any
Person for any failure to obtain knowledge of any such violation.
(c) The Company will, so long as any of the Securities are
outstanding, promptly deliver to the Trustee, forthwith upon any Officer
becoming aware of any Event of Default or Default, and, in any event within five
(5) Business Days of such awareness, an Officers' Certificate specifying such
Event of Default or Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company or any Guarantor from paying all or any portion of the principal of
or interest on the Securities contemplated herein or in the Securities or which
may affect the covenants or the performance of this Indenture, and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants (to the extent that it may lawfully
do so) that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN COMPANY AND JCC HOLDING MAY MERGE, ETC.
Neither the Company nor JCC Holding shall consolidate or merge with or
into, or sell, transfer, lease or convey all or substantially all of its assets
to, any person unless:
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(1) the Person formed by or surviving any such consolidation or
merger (if other than the Company or JCC Holding), or to which such sale,
transfer, lease or conveyance shall have been made, is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the corporation formed by or surviving any such consolidation or
merger (if other than the Company or JCC Holding), or to which such sale,
transfer, lease or conveyance shall have been made, assumes by supplemental
indenture in a form reasonably satisfactory to the Trustee all the
obligations of the Company or JCC Holding, as applicable, under the
Securities and this Indenture; and
(3) immediately after the transaction no Default or Event of Default
exists.
The Company or JCC Holding, as applicable, shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental Indenture comply with this Section
5.01. The Trustee shall be entitled to rely conclusively upon such Officers'
Certificate and Opinion of Counsel.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company or JCC Holding in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company or
JCC Holding is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or JCC Holding, as applicable, under this
Indenture and in the Securities with the same effect as if such successor Person
has been named as the Company or JCC Holding, as applicable, herein and
thereafter, except in the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" wherever used herein means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the Default continues for a
period of 30 days whether or not payment is prohibited by Article 10
hereof;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon redemption
or otherwise whether or not payment is prohibited by Article 10 hereof;
(3) the Company or JCC Holding fails to observe or perform any
covenant, condition or agreement on the part of the Company to be observed
or performed pursuant to Section 5.01 hereof;
(4) the Company or JCC Holding fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities or this
Indenture and the Default continues for the period and after the notice
specified in this Section 6.01;
(5) the Company or any Significant Subsidiary of the Company (in
either case, a "Debtor") files a petition commencing a voluntary case under
title 11 of the United States Code, or a Debtor commences a case or
proceeding under any other Bankruptcy Law seeking the adjustment,
restructuring or discharge of the debts of such Debtor, or the liquidation
of such Debtor, including, without limitation, the making by a Debtor of an
assignment for the benefit of creditors; or the taking of any corporate
action by a Debtor in furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing;
(6) a petition commencing an involuntary case against a Debtor is
filed under title 11 of the United States Code, with respect to which case
(a) such Debtor consents or fails to timely object to the entry of, or
fails to seek the stay
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and dismissal of, an order of relief, (b) an order for relief is entered
and is pending and unstayed on the 60th day after the filing of the
petition commencing such case, or if stayed, such stay is subsequently
lifted so that such order for relief is given full force and effect, or (c)
no order for relief is entered, but the court in which such petition was
filed has not entered an order dismissing such petition by the 60th day
after the filing thereof; or a case or proceeding is commenced under any
other Bankruptcy Law against a Debtor (or any substantial part of the
assets or properties of any Debtor) seeking the adjustment, restructuring
or discharge of the debts of such Debtor, or the liquidation of such
Debtor, which case or proceeding is pending without having been dismissed
on the 60th day after the commencement thereof; or
(7) a court of competent jurisdiction or the Regulating Authority
enters a judgment, decree or order appointing a Custodian (as defined
below) of a Debtor or of the property of a Debtor, or directing the
winding-up or liquidation of the affairs or property of a Debtor, and (a)
such Debtor consents or fails to timely object to the entry of, or fails to
seek the stay and dismissal of, such judgment, decree or order, or (b) such
judgment, decree or order is in full force and effect and is not stayed on
the 60th day after the entry thereof, or, if stayed, such stay is
thereafter lifted so that such judgment, decree or order is given full
force and effect.
The term "Bankruptcy Law" means title 11 of the United States Code or
any similar Federal or state law relating to bankruptcy, insolvency,
receivership, winding up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 30% in principal amount
of the then Outstanding Securities notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
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If an Event of Default (other than an Event of Default specified in
clause (5), (6) or (7) of Section 6.01 hereof) occurs and is continuing, the
Trustee may, by written notice to the Company, or the Holders of at least 30%
(or 25% in the case of an Event of Default specified in Section 6.01(1) or (2)
hereof) in principal amount of the then Outstanding Securities may, by written
notice to the Company and the Trustee, and the Trustee shall, upon the request
of such Holders, declare the unpaid principal of and any accrued but unpaid
interest on all the Securities to be due and payable. Upon such declaration the
principal and interest shall be due and payable immediately; PROVIDED, HOWEVER,
that if any Indebtedness is outstanding pursuant to the Credit Agreement or the
New Indentures, upon a declaration of acceleration, such principal and interest
shall be due and payable upon the earlier of (x) the day that is five Business
Days after the provision to the Company, the Credit Agent and the New Indentures
Trustee of such written notice, unless such Event of Default is cured or waived
prior to such date and (y) the date of acceleration of any Indebtedness under
the Credit Agreement or the New Indentures. If an Event of Default specified in
clause (5), (6) or (7) of Section 6.01 hereof occurs, the unpaid principal of
and any accrued but unpaid interest on all the Securities shall IPSO FACTO
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of a majority in
principal amount of the then Outstanding Securities by written notice to the
Company and to the Trustee may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal or interest that has
become due solely because of the acceleration) have been cured or waived. No
such rescission shall affect any subsequent Default or Event of Default or
impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
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Subject to Section 9.02 hereof, the Holders of 66-2/3% in principal
amount of the then outstanding Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except a continuing
Default or Event of Default in the payment of the principal of or interest on
any Security. Upon any such waiver (and except as may be otherwise provided
therein), such Default or Event of Default shall cease to exist and, together
with any Event of Default arising therefrom, shall be deemed to have been cured
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
SECTION 6.05. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.06. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 6.07. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the then Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or for
exercising any trust or power conferred on it. However, the Trustee may (i)
refuse to follow any direction that conflicts with law or this Indenture, that
the Trustee reasonably determines may be unduly prejudicial to the rights of
other Holders or that the Trustee reasonably believes may subject the Trustee to
personal liability or (ii) take any other action that it deems proper that is
not inconsistent with such decision. The Trustee shall be entitled
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to indemnification reasonably satisfactory to it against losses or expenses
caused by the taking or not taking of such action.
SECTION 6.08. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 30% (or 25% in the case of an Event of
Default specified in Section 6.01(1) or (2) hereof) in principal amount of
the then Outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide, to the
Trustee indemnity reasonably satisfactory to the Trustee against any of the
costs, expenses and liabilities reasonably expected to be incurred in
compliance with such request;
(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer and, if requested,the provision of
indemnity; and
(5) during such 45-day period the Holders of a majority in principal
amount of the then outstanding Securities do not give the Trustee a
direction that, in the reasonable opinion of the Trustee, is inconsistent
with the request.
A Holder may not use this Indenture or the Securities to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.09. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture or the
Securities, but subject to Article 10 hereof, the right of any Holder to receive
payment of principal of and interest on the Security, on or after the respective
due dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
SECTION 6.10. COLLECTION SUIT BY TRUSTEE.
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If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal and interest remaining unpaid on the Securities and interest
on overdue principal and, to the extent lawful, interest and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.11. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding. If the Trustee does not file a proper claim or proof of debt in the
form required in any such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the Credit Agent shall have the
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right to file and is hereby authorized to file an appropriate claim for and on
behalf of the Holders.
SECTION 6.12. PRIORITIES.
If the Trustee collects any money pursuant to this Article or through
any proceeding or any arrangement or restructuring in anticipation of or in lieu
of any proceeding contemplated by this Article, it shall, subject to the
provisions of Article 10 hereof [and the Intercreditor Agreement], pay out the
money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the
reasonable costs and expenses of collection;
Second: to the holders of Senior Indebtedness to the extent required
by Article 10 hereof;
Third: to the Holders for amounts due and unpaid on the Securities
for principal and interest, ratably and without preference or priority of
any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this
Indenture.
The Trustee may fix a record date and a payment date for any payment
to Holders.
SECTION 6.13. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or the Securities or in any suit against the Trustee for any action
taken or omitted to be taken by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.09 hereof, or a suit by
Holders of more than 10% in principal amount of the then Outstanding Securities.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(1) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(2) Except during the continuance of a Default or an Event of Default
known to the Trustee:
(a) The duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) In the absence of bad faith or willful misconduct on its part,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph (2) of this
Section.
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
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(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(1), (2), (3) and (5) of this Section.
(5) Notwithstanding anything to the contrary set forth herein, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any financial liability. The Trustee may refuse to perform any
duty or exercise, or any right or power unless it receives indemnity or security
satisfactory to it against any such risk, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(1) In the absence of bad faith or willful misconduct, the Trustee
may conclusively rely upon and shall be protected from acting or refraining from
acting based upon any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in such document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate (which shall conform to the provisions of Section 12.05
hereof) or an Opinion of Counsel or both. In the absence of bad faith or
willful misconduct, the Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel. The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(3) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(4) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution,
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certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, unless requested in writing to do so by the Holders of not
less than a two-thirds majority in aggregate principal amount of the then
Outstanding Securities; PROVIDED, HOWEVER, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; PROVIDED,
FURTHER, the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney.
(5) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(6) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture other than any liabilities arising
out of the negligence, bad faith or willful misconduct of the Trustee.
(7) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities or any Paying
Agent other than the Trustee; it shall not be accountable for the Company's use
of the proceeds from the Securities or any money paid to the Company or upon the
Company's direction under any provision hereof; it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee; and it shall not be responsible for any statement or recital herein or
any statement in the Securities or any other document in connection with the
sale of the Securities or pursuant to this Indenture other than its certificate
of authentication on the Securities.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Trust Officer of the Trustee, the Trustee shall mail to the
Holders a notice of the Default or Event of Default within 30 days after
obtaining such knowledge of the occurrence thereof and so long as any
Indebtedness is outstanding pursuant to the Credit Agreement or the New
Indentures, shall mail a copy thereof to the Credit Agent and the New Indentures
Trustee. Except in the case of a Default or Event of Default in payment of
interest or principal on any Security, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders. The Trustee shall
not be deemed to owe any fiduciary duty to the Credit Agent or the New
Indentures Trustee.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each stock exchange on which the Securities are listed. The Company
shall promptly notify the Trustee when the Securities are listed on any stock
exchange.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee (in its individual capacity
and as Trustee) and each of its officers, directors, attorneys-in-fact and
agents for and against any loss, liability or expense incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. The obligation of the Company under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or any of its officers, directors,
attorneys-in-fact or agents through its or their own negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of the Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company in writing. The Holders of a
majority in principal amount of the then Outstanding Securities may remove the
Trustee at any time, with or without cause, by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee that is eligible under Section 7.10 hereof. Within one year
after the successor Trustee takes office, the Holders of a majority in principal
amount of the then Outstanding Securities may appoint a successor Trustee that
is eligible under Section 7.10 hereof to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then Outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee, provided such successor is eligible and qualified under Section 7.10
hereof.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
Federal or state authority and shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report
of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee is subject to TIA Section
310(b), including the optional provision permitted by the second sentence of
TIA Section 310(b)(9); PROVIDED that there shall be excluded from the
operation of TIA Section 310(b) (1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements of such
exclusions set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
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resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 hereof and the Company's, Trustee's
and Paying Agent's obligations under Sections 8.03 and 8.04 hereof shall
survive) when all outstanding Securities (including any Secondary Securities)
theretofore authenticated and issued have been delivered (other than
destroyed, lost or stolen Securities that have been replaced or paid) to the
Trustee for cancellation and the Company has paid all sums payable hereunder.
In addition, the Company may terminate all of its obligations under this
Indenture if:
(1) the Company irrevocably deposits in trust with the Trustee or, at
the option of the Trustee, with a trustee reasonably satisfactory to the
Trustee and the Company under the terms of an irrevocable trust agreement
in form and substance satisfactory to the Trustee, money or U.S. Government
Obligations sufficient (in the reasonable opinion of a nationally
recognized firm of independent accountants) to pay principal of and
interest on the Securities to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder; provided that (i) the
trustee of the irrevocable trust shall have been irrevocably instructed to
pay such money or the proceeds of such U.S. Government Obligations to the
Trustee and (ii) the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations to the
payment of said principal and interest with respect to the Securities;
(2) the Company delivers to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or before 90 days after the date of
such deposit;
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(4) the Company has paid or caused to be paid all sums then payable
by the Company hereunder and under the Securities;
(5) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other instrument to which
the Company is a party or by which the Company or any of its assets or
properties are bound; and
(6) the Holders shall have a perfected security interest, under
applicable law, in the U.S. legal tender or U.S. Government Obligations
deposited pursuant to this Section 8.01.
Then, this Indenture shall cease to be of further effect (except as
provided in this paragraph), and the Trustee, on demand of the Company, shall
execute proper instruments acknowledging confirmation of and discharge under
this Indenture. The Company may make the deposit only if Article 10 hereof does
not prohibit such payment and, in the event there is Indebtedness outstanding
under the Credit Agreement, the New Bonds or the New Contingent Bonds on the
date the deposit is made, the Company has delivered to the Trustee a written
consent of the Credit Agent and the New Indentures Trustee to such deposit and
the satisfaction and discharge of this Indenture. However, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.02, 4.05, 7.07,
7.08, 7.10, 8.03 and 8.04 hereof and in Article 11 hereof and the Trustee's and
the Paying Agent's obligations in Section 8.03 hereof shall survive until the
Securities are no longer outstanding. Thereafter, only the Company's
obligations in Section 7.07 hereof and the Company's, the Trustee's and the
Paying Agent's obligations in Section 8.03 hereof shall survive.
In the event that all or any portion of the Securities are to be
redeemed pursuant to Article 3 of this Indenture, the Company must make
arrangements satisfactory to the Trustee, at the time of such deposit, for the
giving of the notice of such redemption or redemptions by the Trustee in the
name and at the expense of the Company.
After such irrevocable deposit made pursuant to this Section 8.01 and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
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In order to have money available on a payment date to pay principal of
or interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest at least one Business Day before such payment date
in such amounts as will provide the necessary money. U.S. Government
Obligations shall not be callable at the issuer's option.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust for the benefit of the Holders money or U.S. Government
Obligations redeposited with it pursuant to Section 8.01 hereof. It shall apply
the deposited money and the money from the sale of U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities.
SECTION 8.03. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company
upon written request therefor any excess money or securities held by them.
The Trustee and the Paying Agent shall pay to the Company upon written
request therefor any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date upon which such payment
shall have become due; PROVIDED, HOWEVER, that the Company shall have either
caused notice of such payment to be mailed to each Holder entitled thereto not
less than 30 days prior to such repayment or within such period shall have
published such notice in a financial newspaper of widespread circulation
published in The City of New York. After payment to the Company, the Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.02 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court of competent
jurisdiction or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section
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8.01 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 8.02
hereof; PROVIDED, HOWEVER, that if the Company has made any payment of interest
on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Holder, PROVIDED that such amendment is in form and
substance reasonably satisfactory to the Trustee and PROVIDED, FURTHER that any
amendment to the provisions of Article 11 shall require the consent of JCC
Holding:
(1) to cure any ambiguity, defect or inconsistency in a manner that
does not adversely affect the rights or interests of any Holder;
(2) to comply with Section 5.01 hereof;
(3) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA as then in effect;
(4) to provide for uncertificated Securities in addition to
certificated Securities;
(5) to provide for Securities in bearer form in addition to
Securities in registered form; or
(6) to make any change that does not adversely affect the legal
rights hereunder of any Holder.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors authorizing the execution of any such supplemental Indenture,
and upon receipt by the Trustee of the documents described in Section 9.06
hereof, which documents are in form and substance reasonably satisfactory to the
Trustee, the Trustee shall join with the Company in the execution of any
supplemental Indenture authorized or permitted
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by the terms of this Indenture and to make any further appropriate agreements
and stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental Indenture which affects its own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such supplemental Indenture.
SECTION 9.02. WITH CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Securities
with the written consent of the Holders of at least 66-2/3% in principal amount
of the then outstanding Securities and PROVIDED, FURTHER that any amendment to
the provisions of Article 11 shall require the consent of JCC Holding.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall (if the form of
the amendment complies to the Trustee's reasonable satisfaction with the
substance of the approval by the Holders) join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental Indenture or waiver.
The Holders of 66-2/3% in principal amount of the Securities then outstanding
may waive compliance in a particular instance by the Company with any provision
of this Indenture or the Securities. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not:
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(1) reduce the principal amount of Securities the Holders of which
must consent to an amendment or waiver;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security;
(4) make any Security payable other than as stated in the Security;
(5) make any change in Section 6.04 or 6.07 hereof or in this
sentence of this Section 9.02;
(6) make any change in Article 10 that adversely affects the rights
and interests of any Holders; or
(7) waive a Default in the payment of principal of or interest on, or
redemption payment with respect to, any Security.
No amendment or waiver under this Section 9.02 or Section 9.01 hereof
shall make any change that adversely affects the rights under Article 10 of any
holder of an issue of Senior Indebtedness unless the holders of such issue,
pursuant to the terms of such Senior Indebtedness, consent to the change. No
amendment or waiver under this Section 9.02 or Section 9.01 hereof shall make
any change that adversely affects the rights under this Indenture of the Credit
Agent or the New Indentures Trustee, the financial institutions party to the
Credit Agreement or the holders of the New Bonds or the New Contingent Bonds
unless the Credit Agent or the New Indentures Trustee, as applicable, consents
to the change. The Company shall give the Holders of the Securities notice of
the effectiveness of any amendment under this Section 9.02.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities at a time when
this Indenture shall be qualified under the TIA shall be set forth in a
supplemental Indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a
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Security that evidences the same Indebtedness as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective in accordance with its terms and thereafter binds every
Holder. The Company may fix a record date for determining which Holders must
consent to such amendment or waiver.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company in exchange for
all Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver. Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such amendment
or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental Indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental Indenture, the Trustee shall be entitled to receive,
if requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 7.01 hereof, shall, absent willful misconduct or bad faith,
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental Indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company in accordance with its
terms. The Company may not sign an amendment or supplemental Indenture until
the Board of Directors approves it.
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ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Security consents
and agrees, that the Indebtedness evidenced by the Security and all Obligations
of the Company under this Indenture and the payment of any claims are
subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full of all Senior Indebtedness, and
that this subordination is for the benefit of the holders of Senior Indebtedness
and they and/or each of them may enforce such subordination.
SECTION 10.02. CERTAIN DEFINITIONS.
"CLAIM", for purpose of this Article 10, means any claim arising for
the rescission of the purchase of the Securities, for damages arising from the
purchase of the Securities or for reimbursement or contribution on account of
such a claim.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness and, in the case of Senior
Indebtedness outstanding under the Credit Agreement, the Credit Agent.
"SENIOR INDEBTEDNESS" means (i) all Indebtedness of the Company now or
hereafter existing under or in respect of the Credit Agreement, the New Bonds,
the New Contingent Bonds or the HET/JCC Agreement, whether for principal,
interest (including, without limitation, interest accruing after the filing of a
petition initiating any proceeding referred to in Section 6.01(5) or Section
6.01(6) hereof, whether or not such interest is an allowable claim under such
proceedings), reimbursement of amounts drawn under letters of credit issued
pursuant to the Credit Agreement, fees, expenses or otherwise and all
Obligations and claims relating thereto and (ii) all Obligations of the Company
that, by the terms of the Credit Agreement, the HET/JCC Agreement or either of
the New Indentures, are expressly senior in right of payment to, or parri passu
in right of payment with, the Credit Agreement, the New Bonds and the New
Contingent Bonds. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include (A) any Indebtedness of the Company to any
of its Subsidiaries, (B) Indebtedness incurred for the purchase of goods or
materials or for services (other than services provided by the Credit Agent, the
New Indentures Trustee or any other financial institution which is a party to an
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agreement evidencing Senior Indebtedness pursuant to or related to such
agreement) obtained in the ordinary course of business, (C) Indebtedness under
that certain Completion Loan Agreement, dated as of ________, 1998, by and among
the Company, Harrah's Entertainment, Inc. ("HET") and Harrah's Operating
Company, Inc. ("HOCI") and any other indebtedness with respect to amounts
advanced to the Company by HET, HOCI or any of their respective Affiliates with
respect to the obligations of HET or HOCI (or their respective assignees) under
that certain Completion Guaranty, dated as of _________, 1998, made by HET and
HOCI, (D) Indebtedness under that certain credit agreement (the "Subordinated
Credit Agreement"), dated as of __________, 1998, among the Company, JCC
Holding, JCC Intermediary, HET and HOCI, together with any related agreements,
and (E) any Indebtedness that, by its terms, or the terms of the instrument
creating or evidencing such Indebtedness, is PARI PASSU with, or expressly
subordinate in right of payment to, the Securities. Senior Indebtedness under
or in respect of the Credit Agreement, the New Bonds and the New Contingent
Bonds shall continue to constitute Senior Indebtedness for all purposes of this
Indenture, and the provisions of this Article 10 shall continue to apply to such
Senior Indebtedness, notwithstanding that such Senior Indebtedness or any
Obligations or claims in respect thereof may be disallowed, avoided or
subordinated pursuant to any Bankruptcy Law or other applicable insolvency law
or equitable principles.
"SPECIFIED SENIOR INDEBTEDNESS" means (i) Indebtedness under or in
respect of the Credit Agreement, (ii) Indebtedness outstanding pursuant to the
New Bonds or (iii) Indebtedness outstanding pursuant to the New Contingent
Bonds.
A distribution may consist of cash, securities or other property, by
set-off or otherwise, and a payment or distribution on account of any
Obligations or any claims with respect to the Securities shall include any
redemption, purchase or other acquisition of the Securities.
For the purposes of this Article 10, all Indebtedness now or hereafter
existing under the Credit Agreement and the New Indentures shall not be deemed
to have been paid in full unless the holders or owners thereof shall have
received payment in full in cash of such Indebtedness and all Obligations and
claims relating thereto.
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SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a total or
partial liquidation or dissolution of the Company or in bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property or in an assignment for the benefit of creditors, or an
arrangement, adjustment, composition or relief of the Company or its debts or
any marshalling of the assets and liabilities of the Company:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full of all Obligations due or to become due with respect to the
Senior Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness,
whether or not such interest is an allowable claim under each such
proceeding) and all claims relating thereto before Holders shall be
entitled to receive any payment or distribution on account of any
Obligations with respect to the Securities or on account of any Claim other
than amounts previously set aside with the Trustee, or payments previously
made; and
(2) until all Obligations with respect to Senior Indebtedness (as
provided in subsection (1) above) and all claims relating thereto are paid
in full, any payment or distribution, including, without limitation, any
payment or distribution which may be payable or deliverable by reason of
the payment of any other Indebtedness of the Company being subordinated to
the payment of the Securities to which Holders would be entitled but for
this Article shall be made to holders of Senior Indebtedness, as their
interests may appear, for application (in the case of cash) to, or as
collateral (in the case of non-cash property or securities) for the payment
or prepayment of, the Senior Indebtedness to the extent necessary to pay in
full all such Senior Indebtedness and all Obligations and claims relating
thereto in accordance with the terms thereof, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness,
except that under either (1) or (2) above pursuant to a plan of reorganization
under any applicable Bankruptcy Law (a "Bankruptcy Plan") and, if any
Indebtedness is outstanding pursuant to the Credit Agreement, the New Bonds or
the New Contingent Bonds, in the event that each of the respective creditor
classes under the Bankruptcy Plan which consists of the claims arising from the
Credit Agreement, the New Bonds and the New Contingent Bonds has voted in favor
of the Bankruptcy Plan (as determined by the
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applicable Bankruptcy Law), Holders may receive securities that are subordinated
to at least the same extent as the Securities to (a) Senior Indebtedness and (b)
any securities issued in exchange for Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the sale, assignment, conveyance, transfer, lease or other disposal of
its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article 8 shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section.
SECTION 10.04. DEFAULT ON SENIOR INDEBTEDNESS.
Unless Section 10.03 shall be applicable,
(a) In the event that any default in the payment of any Senior
Indebtedness or any Obligation or claim relating thereto shall have
occurred and be continuing, whether at maturity (by lapse of time,
acceleration or otherwise), upon redemption or otherwise (a "Payment
Default") and upon receipt by the Company and the Trustee of written notice
from the Credit Agent or New Indenture Trustee of such default in payment
unless and until such Payment Default shall have been cured or waived in
writing by the holders of such Senior Indebtedness, no direct or indirect
payment or distribution (including, without limitation, any payment or
distribution which may be payable or deliverable by reason of the payment
of any other Indebtedness of the Company being subordinated to payment of
the Securities) shall be made by or on behalf of the Company for or on
account of any Obligations with respect to the Securities or on account of
any Claim, and neither the Trustee nor any Holders shall receive from the
Company, directly or indirectly, any payment or distribution, including,
without limitation, from or by way of collateral, on account of any
Obligations with respect to the Securities or on account of any Claim.
(b) Upon receipt by the Company and the Trustee of written notice
from the Credit Agent of any default (including an unmatured event of
default) under the Credit Agreement, other than a Payment Default, or that
a payment or distribution by the Company with respect to any Security
would, immediately after giving effect thereto, result in such a default,
and unless such default shall have been cured or waived in writing in
accordance with the terms of
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the Credit Agreement and written notice thereof is delivered to the
Trustee, no direct or indirect payment or distribution (including, without
limitation, any payment or distribution which may be payable or deliverable
by reason of the payment of any other Indebtedness of the Company being
subordinated to payment of the Securities), except for the issuance of
Secondary Securities in lieu of cash interest on the Securities in
accordance with Paragraph 2 thereof, may be made by or on behalf of the
Company for or on account of the Obligations with respect to the Securities
or on account of any Claim and neither the Trustee nor any Holder shall
receive from the Company, directly or indirectly, any payment or
distribution, including, without limitation, from or by way of collateral,
in respect of the Obligations with respect to the Securities or on account
of any Claim during a period (the "Payment Blockage Period") commencing on
the receipt by the Company and the Trustee of such notice and ending on the
earlier of (i) 179 days thereafter or (ii) the day on which such default
shall have been cured or waived or on which such Specified Senior
Indebtedness is discharged or paid in full or, as acceptable to the holders
of Senior Indebtedness, in any other manner, after which, in the case of
clauses (i) and (ii), the Company shall promptly resume making any and all
required payments in respect of the Securities, including any missed
payments. Only one such Payment Blockage Period may commence within any
360 consecutive day period. In no event will any such Payment Blockage
Period extend beyond 179 days from the date the payment on the Securities
was due, and there must be 180 days in any 360-day period in which no
Payment Blockage Period is in effect under this clause (b) or clauses (c)
and (d).
(c) Upon receipt by the Company and the Trustee of written notice
from the New Indenture Trustee of any default (including an unmatured event
of default) under the New Indentures, other than a Payment Default, or that
a payment or distribution by the Company with respect to any Security
would, immediately after giving effect thereto, result in such a default,
and unless such default shall have been cured or waived in writing in
accordance with the terms of the applicable New Indenture and written
notice thereof is delivered to the Trustee, no direct or indirect payment
or distribution (including, without limitation, any payment or distribution
which may be payable or deliverable by reason of the payment of any other
Indebtedness of the Company being subordinated to payment of the
Securities), except for the issuance of Secondary Securities in lieu of
cash interest on the Securities in accordance with Paragraph 2
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thereof, may be made by or on behalf of the Company for or on account of
the Obligations with respect to the Securities or on account of any Claim
and neither the Trustee nor any Holder shall receive from the Company,
directly or indirectly, any payment or distribution, including, without
limitation, from or by way of collateral, in respect of the Obligations
with respect to the Securities or on account of any Claim during a Payment
Blockage Period commencing on the receipt by the Company and the Trustee of
such notice and ending on the earlier of (i) 179 days thereafter or (ii)
the day on which such default shall have been cured or waived or on which
such Specified Senior Indebtedness is discharged or paid in full or, as
acceptable to the holders of Senior Indebtedness, in any other manner,
after which, in the case of clauses (i) and (ii), the Company shall
promptly resume making any and all required payments in respect of the
Securities, including any missed payments. Only one such Payment Blockage
Period may commence within any 360 consecutive day period. In no event
will any such Payment Blockage Period extend beyond 179 days from the date
the payment on the Securities was due, and there must be 180 days in any
360-day period in which no Payment Blockage Period is in effect under any
of this clause (c) or clauses (b) and (d).
(d) Upon receipt by the Company and the Trustee of written notice
from any other Representative of Specified Senior Indebtedness (other than
the Credit Agent under the Credit Agreement or the New Indentures Trustee
under either of the New Indentures) of any default thereunder (including an
unmatured event of default) other than a Payment Default, or that a payment
or distribution by the Company with respect to any Security would,
immediately after giving effect thereto, result in such a default, and
unless such default shall have been cured or waived in writing in
accordance with the terms of the instrument governing such Specified Senior
Indebtedness and written notice thereof is delivered to the Trustee, no
direct or indirect payment or distribution (including, without limitation,
any payment or distribution which may be payable or deliverable by reason
of the payment of any other Indebtedness of the Company being subordinated
to payment of the Securities) may be made by or on behalf of the Company
for or on account of the Obligations with respect to the Securities or on
account of any Claim and neither the Trustee nor any Holder shall receive
from the Company, directly or indirectly, any payment or distribution,
including, without limitation, from or by way of collateral, in respect of
the Obligations with respect to the Securities or on account of any Claim
during
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the Payment Blockage Period commencing on the receipt by the Company and
the Trustee of such notice and ending on the earlier of (i) 119 days
thereafter or (ii) the day on which such default shall have been cured or
waived or on which such Specified Senior Indebtedness is discharged or paid
in full or, as acceptable to the holders of Senior Indebtedness, in any
other manner, after which, in the case of clauses (i) and (ii), the Company
shall promptly resume making any and all required payments in respect of
the Securities, including any missed payments. Only one such Payment
Blockage Period may commence within any 360 consecutive day period. In no
event will any such Payment Blockage Period extend beyond 179 days from the
date the payment on the Securities was due, and there must be 180 days in
any 360-day period in which no Payment Blockage Period is in effect under
any of this clause (d) or clauses (b) and (c).
(e) For all purposes of Sections 10.04(b), (c) and (d), no default
which, to the knowledge of the Representative of Specified Senior
Indebtedness existed or was continuing on the date of the commencement of
any Payment Blockage Period by such Representative shall be, or be made,
the basis for the commencement of a second Payment Blockage Period by such
Representative, whether or not within a period of 360 consecutive days,
unless such default shall have been cured or waived for a period of not
less than 90 consecutive days during which no Payment Blockage Period was
in effect.
(f) The Company shall deliver a notice to the Trustee promptly after
the date on which any non-payment Default is cured or waived or ceases to
exist or on which the Specified Senior Indebtedness related thereto is
discharged or paid in full, in cash or Cash Equivalents or, as acceptable
to the holders of Senior Indebtedness, in any other manner, and the Trustee
is authorized to act in reliance on such notice.
SECTION 10.05. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to the Trustee, any Paying Agent or any
Holder that because of this Article 10 should not have been made to it, the
Trustee, such Paying Agent or such
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Holder who receives the distribution shall segregate such distribution from its
other funds and property and hold it in trust for the benefit of, and, upon
written request, pay it over (in the same form as received, with any necessary
endorsement but without recourse, representation on warranty) to, the holders of
Senior Indebtedness as their interests may appear, or their agent or
representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application (in the case of cash) to, or as collateral
(in the case of non-cash property or securities) for the payment or prepayment
of, Senior Indebtedness remaining unpaid to the extent necessary to pay in full
such Senior Indebtedness and all Obligations and claims relating thereto in
accordance with the terms thereof, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness (it being
understood, in the event such a distribution is made to the Trustee, that the
Trustee's obligation so to segregate such distribution and hold it in trust
shall be subject to the Trustee's knowledge determined in accordance with
Section 10.12 hereof). In the event the Trustee is uncertain as to whom payment
should be made pursuant this paragraph, the Trustee shall be permitted to bring
an interpleader action.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other person money or assets to which
any holders of Senior Indebtedness are entitled by virtue of this Article 10,
except if such payment is made as a result of the negligence or willful
misconduct of the Trustee.
SECTION 10.07. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Securities or of any Claim to violate this Article, but
failure to give such notice shall not affect the subordination of the Securities
and all Claims to the Senior Indebtedness provided in this Article.
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SECTION 10.08. SUBROGATION.
After all Senior Indebtedness and all such Obligations and claims
relating thereto are paid in full and until the Securities are paid in full in
cash, Holders shall be subrogated (equally and ratably with all other
Indebtedness PARI PASSU with the Securities) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article 10
to holders of Senior Indebtedness which otherwise would have been made to
Holders is not, as between the Company and Holders, a payment by the Company on
the Securities.
SECTION 10.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article 10, to pay principal of
or interest on a Security on the due date, the failure may still become a
Default or Event of Default.
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness or
any Obligation or claims relating thereto to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act in good faith by any such holder, or by any act, failure to act
or noncompliance by the Company, the Trustee or any Agent with the terms and
provisions and covenants herein, regardless of any
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knowledge thereof any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders or owners of Senior Indebtedness or any Obligation or claim relating
thereto may at any time and from time to time, without the consent of or notice
to the Trustee or any Holder, without incurring responsibility to any Holder and
without impairing or releasing the subordination provided in this Article 10 or
the obligations hereunder of the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, all or any of the
Senior Indebtedness (including any change in the rate of interest thereon), or
otherwise amend or supplement in any manner, or grant any waiver or release with
respect to, Senior Indebtedness or any Obligation or claim relating thereto or
any instrument evidencing the same or any agreement under which Senior
Indebtedness or any Obligation or claim relating thereto is outstanding; (ii)
sell, exchange, release, not perfect or otherwise deal with any property at any
time pledged, assigned or mortgaged to secure or otherwise securing, Senior
Indebtedness or any Obligation or claim relating thereto, or amend, or grant any
waiver or release with respect to, or consent to any departure from any
guarantee for all or any of the Senior Indebtedness or any Obligation or claim
relating thereto; (iii) release any person liable in any manner under or in
respect of Senior Indebtedness or any Obligation or claim relating thereto; (iv)
exercise or refrain from exercising any rights against, and release from
obligations of any type, the Company and any other person; and (v) apply any
sums from time to time received to the Senior Indebtedness or any Obligation or
claim relating thereto; PROVIDED, HOWEVER, that in no event shall any such
actions limit the right of the Holders of the Securities to take any action to
accelerate the maturity of the Securities pursuant to Article 6 of this
Indenture or to pursue any rights or remedies hereunder, under the Securities or
under applicable laws if the taking of such action does not otherwise violate
the terms of this Article.
All rights and interests under this Indenture of the Credit Agent, the
New Indentures Trustee and the other holders of Senior Indebtedness or any
Obligation or claim relating thereto, and all agreements and obligations of the
Trustee, the Holders and the Company under Sections 6.02, 6.03 and 6.09 hereof
and under this Article 10 shall remain in full force and effect irrespective of
(i) any lack of validity or enforceability of the Credit Agreement or the New
Indentures, any promissory notes evidencing the Indebtedness thereunder, or any
other agreement or
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instrument relating thereto or to any other Senior Indebtedness or any
Obligation or claim relating thereto, including, without limitation, any
agreement referred to in the definition of Credit Agreement, or (ii) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Trustee, any Holder or the Company.
The provisions set forth in Sections 6.02, 6.03 and 6.09 hereof and in
this Article 10 constitute a continuing agreement and shall (i) be and remain in
full force and effect until payment in full of all Senior Indebtedness and all
Obligations and claims relating thereto at such time as no lender shall have any
commitment to make any advances in respect of Senior Indebtedness, (ii) be
binding upon the Trustee, the Holders and the Company and their respective
successors, transferees and assigns, and (iii) inure to the benefit of, and be
enforceable directly by, each of the Holders and their respective successors,
transferees and assigns.
Each of the Credit Agent and the New Indentures Trustee is hereby
authorized to demand specific performance of the provisions of this Article 10,
whether or not the Company shall have complied with any of the provisions of
Article 10 applicable to it, at any time when the Trustee or any Holder shall
have failed to comply with any of these provisions. The Trustee and the Holders
hereby irrevocably waive any defense based on the adequacy of a remedy at law
that might be asserted as a bar to such remedy of specific performance.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative, if any.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely in
good faith upon any order or decree made by any court of competent jurisdiction
or upon any certificate of such Representative or of the liquidating trustee or
agent or other person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
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Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment or
distribution by the Trustee, or the taking of any action by the Trustee pursuant
to this Article 10, and the Trustee or Paying Agent may continue to make
payments on the Securities unless it shall have received at its Corporate Trust
Office at least two Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Securities to violate this Article. Only the Company, a Representative, the
Conversion Agent or a holder of an issue of Senior Indebtedness that has no
Representative may give the notice. Nothing in this Article 10 shall apply to
amounts due to, or impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate as between the Holders of the Securities and the
holders of Senior Indebtedness the subordination as provided in this Article 10,
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.14. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to Article 6 of this Indenture or to pursue any rights
or remedies hereunder, under the Securities or under applicable law, subject to
the rights, if any, under this Article of the holders, from time to time, of
Senior Indebtedness to receive the cash, property or securities receivable upon
the exercise of such rights or remedies.
SECTION 10.15. MISCELLANEOUS.
(a) Each Holder and the Company hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Senior
Indebtedness and any Obligation or claim relating thereto, and any
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requirement that the Credit Agent or any other holder of Senior
Indebtedness and any Obligation or claim relating thereto protect, secure,
perfect or insure any security interest or Lien or any property subject
thereto or exhaust any right or take any action against the Company or any
other person or entity or any collateral.
(b) The agreement contained in this Article 10 shall continue to be
effective or be reinstated, as the case may be, if at any time any payment
of any of the Senior Indebtedness or any Obligation or claim relating
thereto is rescinded or must otherwise be returned by any holder of Senior
Indebtedness or any Obligation or claim relating thereto upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all
as though such payment had not been made.
(c) Unless and until written notice shall be given by the Company and
the Credit Agent to the Trustee at its Corporate Trust Office notifying the
Trustee that Indebtedness is no longer outstanding under the Credit
Agreement, the Trustee shall assume that such Indebtedness is outstanding.
The Company agrees to give, and to cause the Credit Agent to give, such
notice to the Trustee promptly after the first date on which no
Indebtedness shall be outstanding under the Credit Agreement. For the
purposes of this Indenture, Indebtedness shall be outstanding under the
Credit Agreement whenever either (i) such Indebtedness and all Obligations
and claims relating thereto shall not have been paid in full or (ii)
commitments to lend under the Credit Agreement shall not have expired or
been cancelled or terminated.
(d) Unless and until written notice shall be given by the Company and
the New Indentures Trustee to the Trustee at its Corporate Trust Office
notifying the Trustee that Indebtedness is no longer outstanding under
either of the New Indentures, the Trustee shall assume that such
Indebtedness is outstanding. The Company agrees to give, and to cause the
New Indentures Trustee to give, such notice to the Trustee promptly after
the first date on which no Indebtedness shall be outstanding under either
of the New Indentures. For the purposes of this Indenture, Indebtedness
shall be outstanding under the New Indentures whenever either (i) such
Indebtedness and all Obligations and claims relating thereto shall not have
been paid in full or (ii) "Contingent Payments" may be earned under either
of such New Indentures with respect to the then current or any future
interest period.
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ARTICLE 11
CONVERSION
SECTION 11.01. CONVERSION PRIVILEGE.
A Holder of a Security may convert it or any portion specified below
into JCC Holding Class A Common Stock at any time after October 1, 2002. The
number of shares issuable upon conversion of a Security is determined as
follows: Divide the principal amount to be converted by the conversion price in
effect on the conversion date. Round the result to the nearest 1/100th of a
share.
The initial conversion price shall be $25.00 per share. The
conversion price is subject to adjustment as provided in this Article 11.
A Holder may convert a portion of a Security if the portion is $1,000
or an integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of it.
SECTION 11.02. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy the requirements in
paragraph 7 of the Securities. The date on which the Holder satisfies all those
requirements is the conversion date. As soon as reasonably practicable, but in
no event later than 30 days after the conversion date, JCC Holding shall deliver
through the Conversion Agent a certificate for the number of full shares of JCC
Holding Class A Common Stock issuable upon the conversion and a check for any
fractional share. The person in whose name the certificate is registered shall
be treated as a stockholder of record on and after the conversion date.
No payment or adjustment will be made for accrued interest on a
converted Security or dividends on any JCC Holding Class A Common Stock issued.
However, interest will be paid on any interest payment date with respect to
Securities surrendered for conversion after a record date for the payment of
interest to the registered Holder on such record date.
If a Holder converts more than one Security at the same time, the
number of full shares issuable upon the conversion shall be based on the total
principal amount of the Securities converted.
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Upon surrender of a Security that is converted in part, JCC Holding
shall issue and the Trustee shall authenticate for the Holder a new Security
equal in principal amount to the unconverted portion of the Security
surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
SECTION 11.03. FRACTIONAL SHARES.
JCC Holding will not issue a fractional share of JCC Holding Class A
Common Stock upon conversion of a Security. Instead, JCC Holding will deliver
its check for the current market value of the fractional share. The current
market value of a fraction of a share is determined as follows: Multiply the
current market price of a full share by the fraction. Round the result to the
nearest cent.
The current market price of a share of JCC Holding Class A Common
Stock is the Current Market Price of the JCC Holding Class A Common Stock
determined as of the last trading day prior to the conversion date.
SECTION 11.04. TAXES ON CONVERSION.
If a Holder of a Security converts it, JCC Holding shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of JCC Holding Class A Common Stock upon the conversion. However, the Holder
shall pay any such tax which is due because the shares are issued in a name
other than the Holder's or its nominee's name.
SECTION 11.05. JCC HOLDING TO PROVIDE STOCK.
JCC Holding has reserved and shall continue to reserve out of its
authorized but unissued JCC Holding Class A Common Stock enough shares of such
JCC Holding Class A Common Stock to permit the conversion of the Securities in
full.
All shares of JCC Holding Class A Common Stock which may be issued
upon conversion of the Securities shall be fully paid and non-assessable.
JCC Holding will endeavor to comply in good faith and in a reasonably
expeditious manner with all securities laws regulating the offer and delivery of
shares of JCC Holding Class A Common Stock upon conversion of Securities and
will endeavor to
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list such shares on each national securities exchange on which the JCC Holding
Class A Common Stock is listed.
SECTION 11.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
If JCC Holding:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides the outstanding shares of its Common Stock into a
greater number of shares;
(3) combines the outstanding shares of its Common Stock into a
smaller number of shares;
(4) makes a distribution on its Common Stock in shares of its Capital
Stock other than its Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock,
then the conversion privilege and the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of JCC
Holding which he would have owned immediately following such action if he had
converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of it
may receive shares of two or more classes of Capital Stock of JCC Holding, JCC
Holding shall determine in good faith the equitable allocation of the adjusted
conversion price between the classes of Capital Stock (taking into account the
rights which would have been obtained by such Holder through conversion into JCC
Holding Class A Common Stock). After such allocation, the conversion privilege
and the conversion price of each class of Capital Stock shall thereafter be
subject to adjustment on terms comparable to those applicable to the Common
Stock of JCC Holding in this Article.
SECTION 11.07. ADJUSTMENT FOR RIGHTS ISSUE.
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If JCC Holding distributes any rights or warrants to all holders of
its Common Stock entitling them for a period expiring within 60 days after the
record date mentioned below to purchase shares of JCC Holding Common Stock at a
price per share less than the Current Market Price per share determined as of
that record date, the conversion price shall be adjusted in accordance with the
formula:
N X P
-----
0 + M
------------
C' = C x 0 + N
where:
C' = the adjusted conversion price;
C = the current conversion price;
O = the number of shares of JCC Holding Common Stock outstanding on the
record date;
N = the number of additional shares of JCC Holding Common Stock offered;
P = the offering price per share of the additional shares; and
M = the Current Market Price per share of JCC Holding Common Stock on the
record date.
The adjustment shall be made successively whenever any such rights or
warrants are issued and shall become effective immediately after the record date
for the determination of stockholders entitled to receive the rights or
warrants. If, at the end of the period during which such warrants or rights are
exercisable, not all warrants or rights shall have been exercised, the
conversion price shall be immediately readjusted to what it would have been if
"N" in the above formula had been the number of shares actually issued.
SECTION 11.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If JCC Holding distributes to all Holders of its Common Stock any of
its (or its Subsidiaries') assets or debt securities or any rights or warrants
to purchase assets, debt securities, equity securities (other than distributions
covered by Section 11.06 of this Indenture) or other securities of JCC Holding,
the conversion price shall be adjusted in accordance with the formula:
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M - F
-----
C' = C x M
where:
C' = the adjusted conversion price;
C = the current conversion price;
M = the Current Market Price per share of JCC Holding Common Stock on the
record date mentioned below; and
F = the fair market value on the record date of the assets, securities,
rights or warrants applicable to one share of JCC Holding Common Stock. The
Board of Directors shall determine the fair market value in a resolution filed
with the Trustee, which determination, if made in good faith, shall be
conclusive.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This Section 11.08 does not apply to (a) cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of JCC Holding, or
(b) rights or warrants referred to in Section 11.07.
SECTION 11.09. ADJUSTMENT FOR COMMON STOCK ISSUE.
If JCC Holding issues shares of JCC Holding Common Stock for a
consideration per share less than the current market price per share on the date
JCC Holding fixes the offering price of such additional shares, the conversion
price shall be adjusted in accordance with the formula:
0 + P
-
M
-----
C' = C x A
where:
C' = the adjusted conversion price;
C = the then current conversion price;
O = the number of shares outstanding immediately prior to the issuance of
such additional shares;
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P = the aggregate consideration received for the issuance of such
additional shares;
M = the Current Market Price per share on the date of issuance of such
additional shares; and
A = the number of shares outstanding immediately after the issuance of
such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This Section does not apply to (i) any of the transactions described
in Sections 11.07 and 11.08, (ii) the conversion of Securities, or the
conversion or exchange of other securities convertible or exchangeable for JCC
Holding Class A Common Stock, (iii) JCC Holding Common Stock issued to JCC
Holding's or the Company's employees under bona fide employee benefit plans
adopted by the Board of Directors and approved by the holders of JCC Holding
Common Stock when required by law, if such JCC Holding Common Stock would
otherwise be covered by this Section (but only to the extent that the aggregate
number of shares excluded hereby and issued after the date of this Indenture
shall not exceed 5% of the JCC Holding Common Stock outstanding at the time of
the adoption of each such plan, exclusive of antidilution adjustments
thereunder), (iv) JCC Holding Common Stock issued to acquire, or in the
acquisition of, all or any portion of a business as a going concern in an
arm's-length transaction between JCC Holding and an unaffiliated third party,
whether such acquisition shall be effected by purchase of assets, exchange of
securities, merger, consolidation or otherwise, (v) JCC Holding Common Stock
issued in a bona fide public offering pursuant to a firm commitment
underwriting, (vi) JCC Holding Common Stock issued on exercise of rights if and
to the extent Holders of Securities have received or are entitled to receive
such rights upon conversion or (vii) JCC Holding Common Stock issued pursuant to
that certain Warrant, dated as of _______, 1998, issued by JCC Holding and
registered as of the date of this Indenture in the name of Harrah's
Entertainment, Inc.
SECTION 11.10. ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE.
If JCC Holding issues any securities convertible into or exchangeable
for JCC Holding Common Stock (other than the Securities or securities issued in
transactions described in Sections 11.07 and 11.08) for a consideration per
share of JCC Holding Common Stock initially deliverable upon conversion or
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exchange of such securities less than the current market price per share on the
date of issuance of such securities, the conversion price shall be adjusted in
accordance with this formula:
O + P
-
M
-----
C' = C x 0 + D
where:
C' = the adjusted conversion price;
C = the then current conversion price;
O = the number of shares outstanding immediately prior to the issuance of
such securities;
P = the aggregate consideration received for the issuance of such
securities;
M = the Current Market Price per share on the date of issuance of such
securities;
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or exchange
rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance. If all of
the JCC Holding Common Stock deliverable upon conversion or exchange of such
securities has not been issued when such securities are no longer outstanding,
then the conversion price shall promptly be readjusted to the conversion price
which would then be in effect had the adjustment upon the issuance of such
securities been made on the basis of the actual number of shares of JCC Holding
Common Stock issued upon conversion or exchange of such securities.
This Section 11.10 does not apply to (i) convertible securities issued
to acquire, or in the acquisition of, all or any portion of a business as a
going concern or of developed, undeveloped or mixed real property, in an
arm's-length transaction between JCC Holding and an unaffiliated third party,
whether such acquisition shall be effected by purchase of assets, exchange of
securities, merger, consolidation or otherwise, or (ii) convertible securities
issued in a bona fide public offering pursuant to a firm commitment
underwriting.
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SECTION 11.11. CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received
pursuant to Sections 11.09 and 11.10, the following shall apply:
(1) in the case of the issuance of shares of JCC Holding Common Stock
for cash, the consideration shall be the amount of such cash, provided that
in no case shall any deduction be made for any commissions, discounts or
other expenses incurred by JCC Holding for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the issuance of shares of JCC Holding Common Stock
for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive, and
described in a Board resolution which shall be filed with the Trustee; and
(3) in the case of the issuance of securities convertible into or
exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by JCC Holding for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by JCC Holding upon the conversion or exchange thereof
(the consideration in each case to be determined in the same manner as
provided in clauses (1) and (2) of this Section 11.11).
SECTION 11.12. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the conversion price need be made unless the
adjustment would require an increase or decrease of at least 1% in the
conversion price. Any adjustments that are not made shall be carried forward
and taken into account in any subsequent adjustment.
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
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SECTION 11.13. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in Section
11.06, 11.07, 11.08, 11.09 or 11.10 if all Holders are entitled to participate
in the transaction on a basis and with notice that the Board of Directors
determines in good faith to be fair and appropriate in light of the basis and
notice on which holders of JCC Holding Common Stock participate in the
transaction.
No adjustment need be made for rights to purchase JCC Holding Common
Stock pursuant to a JCC Holding plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the JCC Holding Common Stock.
To the extent the Securities become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
Notwithstanding anything herein to the contrary, the conversion price
per share shall not be less than the par value per share. In the event an
adjustment provided for herein would result in a conversion price of less than
the par value per share, such adjusted conversion price shall be the par value
per share.
SECTION 11.14. NOTICE OF ADJUSTMENT.
Whenever the conversion price is adjusted, JCC Holding shall promptly
mail to Holders a notice of the adjustment. JCC Holding shall file with the
Trustee a certificate from JCC Holding's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
manifest error.
SECTION 11.15. VOLUNTARY REDUCTION.
JCC Holding from time to time may reduce the conversion price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period, PROVIDED that in no event may the
conversion price be less than the par value of a share of JCC Holding Common
Stock.
Whenever the conversion price is reduced, JCC Holding shall mail to
Holders a notice of the reduction. JCC Holding shall mail the notice at least
15 days before the date the
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reduced conversion price takes effect. The notice shall state the reduced
conversion price and the period it will be in effect.
A reduction of the conversion price does not change or adjust the
conversion price otherwise in effect for purposes of Sections 11.06, 11.07,
11.08, 11.09 and 11.10.
SECTION 11.16. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) JCC Holding takes any action that would require an adjustment in
the conversion price pursuant to Section 11.06, 11.07, 11.08, 11.09 or
11.10 and JCC Holding does not let Holders participate pursuant to Section
11.13;
(2) JCC Holding takes any action that would require a supplemental
indenture pursuant to Section 11.17; or
(3) there is a liquidation or dissolution of JCC Holding,
JCC Holding shall mail to Holders a notice stating the proposed record date for
a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, transfer, lease,
liquidation or dissolution. JCC Holding shall mail the notice at least 15 days
before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
SECTION 11.17. REORGANIZATION OF JCC HOLDING.
If JCC Holding is a party to a transaction subject to Section 5.01, or
a merger which reclassifies or changes the outstanding JCC Holding Common Stock,
upon consummation of such transaction the Securities shall automatically become
convertible into the kind and amount of securities, cash or other assets which
the Holder of a Security would have owned immediately after the consolidation,
merger, transfer or lease if the Holder had converted the Security immediately
before the effective date of the transaction. Concurrently with the
consummation of such transaction, the Person obligated to issue securities or
deliver cash or other assets upon conversion of the Securities shall enter into
a supplemental indenture so providing and further providing for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article. The successor company shall mail to Holders a
notice describing the transaction and the supplemental indenture.
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If securities deliverable upon conversion of Securities, as provided
above, are themselves convertible into the securities of an affiliate of the
formed, surviving, transferee or lessee corporation, that issuer shall join in
the supplemental indenture which shall so provide.
If this Section 11.17 applies, Section 11.06 does not apply.
SECTION 11.18. JCC HOLDING DETERMINATION FINAL.
Any determination that JCC Holding or the Board of Directors must make
pursuant to Section 11.03, 11.06, 11.08, 11.09, 11.10, 11.11 or 11.13, or with
respect to the Current Market Price of JCC Holding Common Stock, is conclusive.
SECTION 11.19. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
has no duty to determine whether any provisions of a supplemental indenture
under Section 11.17 are correct. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for JCC Holding's failure to
comply with this Article. Each Conversion Agent other than JCC Holding shall
have the same protection under this Section as the Trustee.
SECTION 11.20. CONVERTED SECURITIES.
All Securities delivered to the Conversion Agent pursuant to this
Article (hereinafter in this Section called "Converted Securities") shall be
imprinted or otherwise marked by the Conversion Agent with a legend indicating
such conversion and shall be delivered by the Conversion Agent to JCC Holding in
exchange for JCC Holding Class A Common Stock and cash, if any, delivered by JCC
Holding to the Conversion Agent pursuant to Section 11.02. Such Securities
shall thereafter be held by JCC Holding or, if transferred by JCC Holding to the
Company, the Company, and may, at any time at the direction of JCC Holding or
the Company, whichever is the holder, be delivered to the Trustee for
cancellation. Converted Securities shall not be transferred except to the
Company or to any Subsidiary of JCC Holding. Converted Securities shall not be
further convertible into JCC Holding Class A Common Stock, and shall not be
redeemable unless all Securities at the time outstanding shall be redeemed at
the same time.
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SECTION 11.21. JOINT AND SEVERAL OBLIGATION.
The obligations to deliver JCC Holding Class A Common Stock on
conversion of the Securities shall constitute a joint and several obligation of
the Company and JCC Holding.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA the required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.
SECTION 12.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company or JCC Holding:
Jazz Casino Company, L.L.C.
512 South Peters Street
New Orleans, Louisiana 70130
Attention: Secretary
If to the Trustee:
[ADD NAME AND ADDRESS OF TRUSTEE]
If to the Credit Agent:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
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New York, New York 10006
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Chaim J. Fortgang
If to the New Indentures Trustee:
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Gavin Wilkinson
The Company, the Trustee or the Credit Agent by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) if customary or reasonably requested by the Trustee, an Opinion
of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof)
stating
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that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions or trust companies in The City of New York or at a place of payment
are authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 12.08. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder of the Company, as such,
shall not have any liability for any obligations of the Company or Trustee under
the Securities or the
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Indenture or for any claim based on, in respect of or by reason of such
obligations. Each Holder by accepting a Security waives and releases all such
liability.
SECTION 12.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 12.10. GOVERNING LAW.
The laws of the State of New York, without giving effect to the
conflicts of laws principles thereof, shall govern and be used to construe this
Indenture and the Securities.
SECTION 12.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of JCC Holding on this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.14. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 12.15. VARIABLE PROVISIONS.
The Company initially appoints the Trustee as Paying Agent, Conversion
Agent and Registrar.
SECTION 12.16. TABLE OF CONTENTS, HEADINGS, ETC.
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The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.17. GAMING LAWS.
This Indenture and the Securities are subject to the Louisiana
Economic Development and Gaming Corporation Act, La. R.S. 4:601 ET SEQ., and the
rules and regulations thereunder (the "Gaming Regulations"), and the Company
represents and warrants that all requisite approvals thereunder have been
obtained.
SECTION 12.18. WAIVER AND RELEASE;CRGA.
(a) (i) As a condition to the effectiveness of the confirmation of
the Plan of Reorganization of Harrah's Jazz Company ("HJC"), the predecessor of
the Company, HET and HOCI (collectively, the "Guarantors) have entered into that
certain Conditional Renewable Guaranty Agreement (the "CRGA") in favor of the
Louisiana Gaming Control Board (the "LGCB"). The CRGA provides that the
Guarantors will guarantee the Company's payment to the LGCB of the Minimum
Payments required under the Casino Operating Contract (the "COC") between the
Company and State of Louisiana (by and through the LGCB) for the Fiscal Years
(as defined in the COC) ending March 31, 1999 and March 31, 2000, renewable for
the four Fiscal Years thereafter through March 31, 2004, subject to termination
or non-renewal in accordance with the terms of the CRGA (any such Guaranty as so
provided by HET and HOCI is hereinafter referred to as a "Guaranty"). As a
prerequisite to maintaining the effectiveness of the COC, the COC requires that
the Company annually provide to the LGCB a Minimum Payment Guaranty (as defined
in the COC). In entering into the CRGA, the Guarantors have no obligation to
provide a Minimum Payment Guaranty for the entire term of the COC, but rather
have agreed only to provide it for the period and on terms and conditions
specified therein. The Guarantors have expressly informed the Company and the
Trustee (acting on behalf of the Holders) that they have not agreed to renew the
CRGA beyond March 31, 2004, or in any prior year where the Guarantors'
obligation to furnish a Guaranty does not renew by the express terms of Section
1(b) of the CRGA. The Guarantors have informed the Company and the Trustee
(acting on behalf of the Holders) that any decision they make concerning whether
to renew any Guaranty or the CRGA will be made in their sole discretion, acting
only in their best interests. Each of the Company and the Trustee (acting on
behalf of the Holders) hereby acknowledges that (A) the Guarantors are not
obligated to and have not given it any
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assistances that they will renew the CRGA beyond March 31, 2004, or renew any
Guaranty for any earlier Fiscal Year in which the Guarantors' obligation to
furnish a Guaranty does not renew under the express terms of Section 1(b)
thereof, (B) the Guarantors have the right to make any such renewal decision by
considering only their best interests, and (C) the Guarantors need not consider
the interests of any other parties in making any such renewal decision,
notwithstanding that the Guarantors are involved in a number of capacities in
respect of the Company.
(ii) Each of the Company and the Trustee (acting on behalf
of the Holders) hereby agrees that by entering into the CRGA or providing a
Guaranty or otherwise, the Guarantors are not now, and in the past have not,
made any assurances or guarantees concerning the financial results of the Casino
(as defined in the New Indentures), nor are or have the Guarantors made any
assurances or guarantees that the Casino will be financially successful or will
perform as projected in the projections and/or feasibility studies included in
HJC's (and certain other parties') Third Amended Joint Plan or Reorganization
(the "Plan") and the Disclosure Statement distributed in connection with the
Plan confirmation process.
(iii) Each of the Company and the Trustee (acting on behalf
of the Holders) hereby agrees and acknowledges that any future representation,
warranty, assurance or other guaranty by the Guarantors or any of their
subsidiaries or other affiliates to the Company or the Trustee concerning the
renewal of any Guaranty or the CRGA, the operation of the Casino, the financial
results of the Casino, or any other matter concerning the Casino or the Plan
shall only be effective if set forth in writing and properly executed by the
party to be charged.
(b) (i) Each of the Company and the Trustee (acting on behalf
of the Holders) hereby releases and waives and agrees not to bring any Claims
against the Guarantors, whether a known Claim or an Unknown Claim, that may
arise in any way, in whole or in part, out of (A) the Guarantors' decision
either to renew or not renew any Guaranty or the CRGA, (B) the Guarantors acting
in their own best interests in connection with the execution, renewal or failure
to renew any Guaranty or the CRGA, and/or (C) any alleged assurance or guarantee
by the Guarantors concerning the operation of the Casino, the financial results
of the Casino or any other matter concerning the Casino or the Plan, unless such
Claim is based on a writing (but in any event cannot be based on the CRGA or any
Guaranty) properly executed by the party against whom such a claim is being
made.
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(ii) Each of the Company and the Trustee also hereby
specifically waives any rights it might have under Louisiana Civil Code Article
3083 and all other applicable or similar law to this same or similar effect as
the matters described in Section 12.18(b)(i) hereof, including but not limited
to, any purported right to challenge the validity or seek rescission of, or to
vitiate, the releases set forth above in Section 12.18(b)(i) hereof on the
ground that any information was kept concealed from it and agrees that no remedy
shall be available for any such alleged non-disclosure, and that the right to
rescind the above release on any such ground is hereby expressly waived.
(c) For the purposes of Section 12.18(b)(i) and (ii) hereof:
(i) "CLAIM" or "CLAIMS" shall mean, for purposes only of
this Section 12.18, any action or actions, cause or causes of action, in law or
equity, suits, debts, liens, liabilities, claims, demands, damages, punitive
damages, losses, costs or expenses, and/or reasonable attorneys' fees of any
nature whatsoever.
(ii) "GUARANTOR" shall include HET, HOCI, Harrah's New
Orleans Investment Company, Harrah's Crescent Investment Company, Harrah's New
Orleans Management Company, their successors and assigns, and all direct or
indirect subsidiaries, and each of their parents, subsidiaries, officers,
directors, corporate representatives, employees, agents, lawyers and accountants
and all persons acting or claiming through, under or in concert with any of
them.
(iii) "UNKNOWN CLAIM" or "UNKNOWN CLAIMS" means any and all
Claims, including without limitation, any Claim which any of the parties hereto
does not know or even suspect to exist in his, her, or its favor at the time of
the giving of the releases and waivers set forth in Section 12.18(b) hereof
which, if known by him, her or it might have affected his, her or its decision
regarding the releases and waivers. Each of the parties acknowledges that he,
she or it might hereafter discover facts in addition to or different from those
which he, she, or its now knows or believes to be true with respect to the
matters herein released and waived, but each shall be deemed to have fully,
finally and forever released any and all Claims.
(d) Each of the Company and the Trustee (acting on behalf of the
Holders) hereby acknowledges that each Guaranty and the CRGA provide that there
shall be no third party beneficiaries thereof. Each of the Company and the
Trustee also agrees that it
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shall not claim or assert it is a third party beneficiary or possesses any
derivative claims under any Guaranty or the CRGA.
(e) Each of the Company and the Trustee (acting on behalf of the
Holders) hereby acknowledges that the Guarantors have informed it (i) not to
infer or assume that the Guarantors will renew any Guaranty or the CRGA; (ii)
that the Guarantors will consider only their own best interests in determining
whether to renew any Guaranty or the CRGA; (iii) that the Guarantors are
involved in a number of different capacities in connection with the
reorganization of HJC, the governance of the Company and JCC Holding, and the
operation of the Casino; and (iv) that there can be no assurance that the Casino
will perform as set forth in the projections and/or feasibility study set forth
in the Plan and Disclosure Statement circulated therewith.
(f) Each Guaranty is provided on the express condition that the
Company shall not amend or modify the COC in any way to increase the obligations
under any Guarantor or adversely affect the Guarantors without the prior written
agreement of the Guarantors, and any such amendment or modification shall have
no force or effect in respect of the Guarantors or any Guaranty.
(g) The CRGA is independent of and shall survive any cancellation or
termination of the COC.
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SIGNATURES
Dated as of __________, 1997 JAZZ CASINO COMPANY, L.L.C.
By
----------------------------
Attest:
- ----------------------------
(SEAL)
Dated as of __________, 1997 JCC HOLDING COMPANY
By
----------------------------
Attest:
- ----------------------------
(SEAL)
Dated as of __________, 1997 [NAME OF TRUSTEE],
as Trustee
By
-----------------------------
Attest:
- ----------------------------
(SEAL)
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EXHIBIT A
(Face of Debenture)
No.
Jazz Casino Company, L.L.C.
Convertible Junior Subordinated Debenture Due 2007
Jazz Casino Company, L.L.C., a limited liability
company organized and existing under the laws of the State
of Louisiana, promises to pay to _______
____________________ or registered assigns, the principal
sum of _________ Dollars on ___________, 2009 [six months
after maturity of New Bonds] as set forth herein.
Interest Payment Dates: [June 15] and [December 15]
Record Dates: [June 1 and December 1]
Jazz Casino Company, L.L.C.
By:
-----------------------------
[SEAL)
By:
-----------------------------
Dated:
Certificate of Authentication: This is one
of the Securities referred to in the within
mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By:
------------------------------
Authorized Officer
A-1
<PAGE>
(Back of Debenture)
Jazz Casino Company, L.L.C.
Convertible Junior Subordinated Debenture Due 2009
1. INTEREST. Jazz Casino Company, L.L.C., a Louisiana corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at the interest rate of 8% per annum.
The Company shall pay interest semi-annually in arrears on each [June
15 and December 15] to the holders of record of this Security ("Holders") at the
close of business on the [June 1 and December 1] next preceding the interest
payment date commencing ________, 1998. Interest shall initially accrue from
the date of issuance and the first interest payment date will be [December 15,
1998]. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Securities (except defaulted interest) to the persons who are registered Holders
of Securities at the close of business on the record date for the next interest
payment date even though Securities are cancelled after the record date and on
or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company may, in its sole
discretion, issue additional Securities ("Secondary Securities") in lieu of a
cash payment of any or all of the interest due on any interest payment date
occurring (i) at any time on or prior to ___________, 2003 [the fifth
anniversary of issuance] and (ii) at any time after ________, 2003 if the
Company did not make "Contingent Payments" (as defined therein) on the
immediately preceding interest payment date with respect to the Company's Senior
Subordinated Contingent Notes due 2009 (the "New Contingent Bonds"). This
Security may be redeemed for cash or for shares of Class A Common Stock, par
value $.01 per share (the "Common Stock"), of JCC Holding Company, a Delaware
corporation ("JCC Holding"), as set forth in Paragraph 5. With respect to cash
principal payments at maturity or upon redemption or cash interest payments, the
Company may pay such principal and interest by check. The Company may mail an
interest check, any Secondary Securities or certificates for Common Stock to a
Holder's registered address.
A-2
<PAGE>
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT. [NAME OF TRUSTEE],
as Trustee (the "Trustee"), shall act as Paying Agent, Registrar and Conversion
Agent. The Company may change any Paying Agent, Registrar, Conversion Agent or
Co-Registrar without prior notice. The Company or any of its subsidiaries may
act in any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture
dated as of [_________, 1998] (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture.
The Securities are subject to, and qualified by, all such terms, certain of
which are summarized herein, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Securities are unsecured general
obligations of the Company limited to $_________ in initial aggregate principal
amount, as such amount may be increased from time to time by the issuance of
Secondary Securities.
5. OPTIONAL REDEMPTION. The Company may redeem all or any of the
Securities (a) at any time at par value plus accrued interest to the redemption
date, payable in cash or (b) at any time during the twelve-month period
immediately preceding ________, 2009 at par value plus accrued interest to the
redemption date, payable (i) in shares of Common Stock of JCC Holding (the
number of such shares to be determined according to the conversion price then in
effect pursuant to Paragraph 7 of the Security and Article 11 of the Indenture
as if the Holder had converted such Securities in accordance therewith), or (ii)
in a combination of cash and shares of Common Stock, in either case only if the
then applicable conversion price is greater than the Current Market Price (as
defined in the Indenture) per share of Common Stock on the redemption date.
6. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but no more than 60 days before the redemption date to each Holder
to be redeemed at his registered address. Securities in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. In
the event of a redemption of less than all of the Securities, the Securities
shall be chosen for redemption by the Trustee, generally pro rata or by lot. On
and after the redemption date, if the Company has complied with Section 3.05 of
the Indenture interest ceases to accrue on Securities or portions of them called
for redemption.
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If this Security is redeemed subsequent to a record date with respect
to any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest shall be paid to the person in whose
name this Security is registered at the close of business on such record date.
7. CONVERSION. A Holder of a Security may convert it into Common
Stock of JCC Holding at any time after the close of business on October 1, 2002.
In addition, if the Security is called for redemption at any time (whether prior
to or following October 1, 2002), the holder may convert it at any time before
the close of business on the redemption date (but not later, unless the Company
shall default in payment due upon redemption thereof). The initial conversion
price of $25.00 per share is subject to adjustment in certain events. To
determine the number of shares issuable upon conversion of a Security, divide
the principal amount to be converted by the conversion price in effect on the
conversion date. On conversion, no payment or adjustment for interest will be
made. However, interest will be paid on any interest payment date with respect
to Securities surrendered for conversion after a record date for the payment of
interest to the registered holder on such record date. JCC Holding will deliver
a check or any fractional share issuable upon conversion.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion Agent, and (4) pay any transfer or
similar tax if required. A Holder may convert a portion of a Security if the
portion is $1,000 or an integral multiple of $1,000.
The conversion price is subject to adjustment as set forth in the
Indenture in certain events, including: the issuance of stock of JCC Holding as
a dividend or distribution on the Common Stock; subdivisions and combinations of
the Common Stock; certain reclassifications, consolidations, mergers and sales
of property of JCC Holding; the issuance to all holders of Common Stock of
certain rights or warrants entitling them to subscribe for Common Stock at less
than the current market price (as defined in the Indenture); the distribution to
all holders of Common Stock of debt securities or assets of JCC Holding or
rights or warrants to purchase assets, debt securities or other securities of
JCC Holding (excluding cash dividends or distributions from retained earnings);
the issuance of shares of Common Stock, in certain circumstances, for less
consideration
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than the current market price; and the issuance, in certain circumstances, of
securities convertible into or exchangeable for shares of Common Stock (other
than pursuant to transactions described above) for a consideration per share of
Common Stock deliverable on such conversion or exchange that is less than the
current market price of the Common Stock on the date of issuance of such
security. No adjustment in the conversion price will be required unless such
adjustment would require a change of at least 1% in the price then in effect;
but any adjustment that would otherwise be required to be made shall be carried
forward and taken into account in any subsequent adjustment. No adjustment need
be made for rights to purchase Common Stock pursuant to a JCC Holding dividend
or interest reinvestment plan.
JCC Holding from time to time may voluntarily reduce the conversion
price for a period of time, provided that the conversion price is not less than
the par value of a share of Common Stock.
If JCC Holding is a party to a consolidation or merger or a transfer
or lease of all or substantially all of its assets, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of JCC Holding or another.
8. SUBORDINATION. The Securities are subordinated to Senior
Indebtedness (as defined in the Indenture), which includes (a) any Indebtedness
(as defined in the Indenture) of the Company arising under or in connection with
the Credit Agreement, the New Bonds, the New Contingent Bonds and the HET/JCC
Agreement (each as defined in the Indenture) and all Obligations and Claims
(each as defined in the Indenture) with respect thereto, (b) all Obligations of
the Company that, by the terms of the Credit Agreement, the HET/JCC Agreement or
the New Indentures, as expressly senior in right of payment to the Credit
Agreement, the New Bonds, and the New Contingent Bonds. Indebtedness is defined
in the Indenture to include all obligations, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), or representing the
balance deferred and unpaid of the purchase price of any property or services
(including pursuant to capital leases), and includes, to the extent not
otherwise included, the guaranty of items which would be included in the
definition of Indebtedness. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company
agrees, and each Holder by accepting a Security agrees, to the subordination
provided in the Indenture and authorizes the Trustee to give it effect.
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9. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000, except as provided in Section 2.02 of the Indenture. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the Transfer of any Security or portion of a
Security selected for redemption. Also, it need not exchange or register the
transfer of any Securities for a period of 15 days before a selection of
Securities to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a Security shall
be treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the Holders of at
least 66-2/3% in principal amount of the then outstanding Securities, and any
existing Default may be waived with the consent of the Holders of 66-2/3% in
principal amount of the then outstanding Securities. Without the consent of any
Holder, the Indenture or the Securities may be amended to cure any ambiguity,
defect or inconsistency, to provide for assumption of the Company's obligations
to Holders or to make any change that does not adversely affect the rights of
any Holder.
12. DEFAULTS AND REMEDIES. An Event of Default is: default for 30
days in payment of interest on the Securities; default in payment of principal
on the Securities; failure by the Company or JCC Holding after notice to it to
comply with certain of its agreements in the Indenture or the Securities;
failure by the Company or JCC Holding for 30 days after notice to it to comply
with any of its other agreements in the Indenture or the Securities; and certain
events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 30% (or 25% in the case of a
default with respect to payment of principal of or interest on the Securities)
in principal amount of the then Outstanding Securities (as defined in the
Indenture) may declare the principal amount of the Securities to be due and
payable immediately; PROVIDED, HOWEVER, that if any Indebtedness is outstanding
pursuant to the Credit Agreement or the New Indentures (as defined in the
Indenture), upon a declaration of acceleration, such principal and interest
shall be payable upon the earlier of (x) the day that is five Business Days
after the provision to the Company, the Credit
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Agent and the New Indentures Trustee of such written notice unless such an Event
of Default has been cured or waived prior to such date and (y) the date of
acceleration of any Indebtedness under the Credit Agreement or the New
Indentures. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all Outstanding Securities become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the Indenture or
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the then Outstanding Securities may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
15. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT Ten (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
17. INDENTURE. Each Holder, by accepting a Security, agrees to be
bound by all the terms and provisions of the Indenture, as the same may be
amended from time to time.
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18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed hereon.
19. GAMING LAWS. The rights of the Holder of this Security and any
owner of any beneficial interest herein are subject to the gaming laws and
regulations, and the jurisdiction and requirements, of the governmental
authorities with the power to regulate gaming in any jurisdiction where the
Company is subject to such regulation, and any corresponding governmental
authorities with responsibility to interpret and enforce the laws and
regulations applicable to gaming in any such jurisdiction, as well as the
further limitations and requirements set forth in the Indenture.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to: Jazz Casino
Company, L.L.C., One Canal Place, Suite 2800, 365 Canal Street, New Orleans,
Louisiana 70130, Attention: Secretary.
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ASSIGNMENT FORM CONVERSION NOTICE
To Assign this Security, fill To convert this security
in the form below: into Class A Common Stock of
JCC Holding, check the box:
I, or we, assign and transfer
this Security to
$
To convert only part of
(Insert assignee's Soc. this Security, state the
Sec. or tax I.D. No.) amount:
- ---------------------------
$
- ---------------------------
If you want the stock
- --------------------------- certificate made out in
another person's name, fill
- --------------------------- in the form below:
(Print or type assignee's
name, address and zip code)
(Insert other person's
Sec. or tax I.D. No.)
and irrevocably appoint
- --------------------------- -------------------------
agent to transfer this
Security on the books of the -------------------------
Company. The agent may
substitute another to act for -------------------------
him.
-------------------------
(Print or type other
person's name, address
and zip code)
Date: Your Signature:
--------------------- ---------------------------
- --------------------------------------------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
------------------------------------------------------
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