GUARANTY
THIS GUARANTY (“Guaranty”) is made as
of July 23, 2010, by NG
WASHINGTON, LLC, a Washington limited liability company and XX XXXXXXXXXX XX, LLC, a
Washington limited liability company (each a “Guarantor”, and
collectively “Guarantors”), in
favor of FORTRESS CREDIT
CORP., as agent to Lenders (as defined in the Credit Agreement referred
to below) (“Agent”). Capitalized
terms used but not otherwise defined herein shall have the meanings set forth in
the Credit Agreement (as defined below).
RECITALS
A. Pursuant
to the terms of that certain Credit Agreement of even date herewith (as amended,
amended and restated, supplemented and otherwise modified and in effect from
time to time, the “Credit Agreement”),
among Agent, the financial and banking institutions from time to time party
thereto as “Lenders” and XX Xxxxxxxxxx XX Holdings, LLC, a Delaware limited
liability company (“Borrower”), each
Lender has agreed to provide extensions of credit and other financial
accommodations to Borrower, referred to therein as the “Loans”.
B. The
Loans will be evidenced by Notes and secured by the Collateral
Documents.
C. Each
Guarantor acknowledges that such Guarantor is an Affiliate of Borrower and will
receive substantial benefit from the Loans.
D. As
a condition precedent to the initial extension of credit under the Credit
Agreement and the effectiveness of the Credit Agreement, Agent and Lenders have
required that each Guarantor enter into this Guaranty.
E. In
consideration of the foregoing, and in order to induce Lenders and Agent to
enter into the Credit Agreement, each Guarantor is willing to guarantee the
Obligations of Borrower under the Credit Agreement and the other Loan Documents
on the terms set forth herein.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Guaranty. Each
Guarantor hereby unconditionally and irrevocably guarantees, separately, and not
jointly or jointly and severally, to Agent and each Lender, the prompt, full,
punctual, unconditional and irrevocable payment and performance in full when due
(whether at stated maturity, upon acceleration or otherwise) of the Obligations,
including, without limitation, (i) the aggregate principal amount outstanding
of, and interest accrued and unpaid on (including at the default rate, if
applicable), and late charges, repayment fees and make-whole payments in respect
of, the Loans made to Borrower pursuant to the Credit Agreement, and (ii) all
other amounts payable by Borrower, any other Guarantor or any other Credit Party
under the Credit Agreement and the other Loan Documents (all of the foregoing
being referred to collectively as the “Guaranteed
Obligations”). Upon failure by Borrower to pay punctually any such
amount, each Guarantor agrees that it shall forthwith on demand pay such amount
at the place and in the manner specified in the Credit Agreement or the relevant
Loan Document, as the case may be. Each Guarantor hereby agrees that this
Guaranty is an absolute, irrevocable and unconditional guaranty of payment and
performance and is not a guaranty of collection.
2. Remedies. If
any Guarantor fails to promptly pay and perform, after taking into consideration
any notice and cure period applicable to Borrower, it being understood that no
Guarantor is entitled to any additional notice and cure periods, any of the
Guaranteed Obligations, Agent may from time to time, and without first requiring
payment or performance by Borrower, any other Guarantor or any other Credit
Party (as such payment or performance may be required pursuant to the terms of
the Credit Agreement or any other Loan Document), bring any action at law or in
equity or both to compel any Guarantor to pay and perform the Guaranteed
Obligations, and to collect in any such action compensation for all loss, cost,
damage, injury and expense sustained or incurred by Agent or any Lender as a
consequence of the failure of any Guarantor to pay and perform the Guaranteed
Obligations, together with interest thereon at the rate of interest applicable
to the principal balance of the Notes.
3. Rights Of Agent and
Lenders. Each Guarantor authorizes Agent and Lenders, without
giving notice to any Guarantor or obtaining any Guarantor’s consent and without
affecting the liability of any Guarantor (provided that if addressed in the
Credit Agreement, in accordance therewith) from time to time to:
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(a) renew
or extend all or any portion of the Guaranteed Obligations under the Credit
Agreement, the Notes or any of the other Loan Documents;
(b) declare
all sums owing to Agent or any Lender under the Credit Agreement, the Notes and
the other Loan Documents due and payable upon the occurrence and continuance of
a Default under the Loan Documents;
(c) make
changes in the dates specified for payments of any sums payable in periodic
installments under the Credit Agreement, the Notes or any of the other Loan
Documents;
(d) otherwise
modify the terms of any of the Loan Documents except to the extent that any such
modification will materially increase the Guaranteed Obligations;
(e) take
and hold security for the performance of the Guaranteed Obligations (provided
that if addressed in the Credit Agreement, the Notes or the other Loan
Documents, in accordance therewith) and exchange, enforce, waive and release any
such security (provided that if addressed in the Credit Agreement, the Notes or
the other Loan Documents, in accordance therewith);
(f) apply
such security and direct the order or manner of sale thereof as Agent or any
Lender in its discretion may determine (provided that if addressed in the Credit
Agreement, the Notes or the other Loan Documents, in accordance
therewith);
(g) release,
substitute or add any one or more endorsers of the Notes or guarantors of
Borrower’s Obligations under the Notes or the other Loan Documents;
(h) apply
payments received by Agent or any Lender from Borrower to any Obligations of
Borrower to Agent or any Lender, in such order as Agent or any Lender shall
determine in its sole discretion;
(i) subject
to the prior approval of all applicable Gaming Authorities to the extent
required by applicable Gaming Laws, assign this Guaranty in whole or in part;
and
(j) subject
to the prior approval of all applicable Gaming Authorities to the extent
required by applicable Gaming Laws, assign, transfer or negotiate all or any
part of the Guaranteed Obligations.
4. Guarantor’s
Waivers. Each Guarantor waives:
(a) any
defense based upon any legal disability or other defense of Borrower, any other
guarantor or other Person, or by reason of the cessation or limitation of the
liability of Borrower from any cause other than full payment of all sums payable
under the Notes or any of the other Loan Documents;
(b) any
defense based upon any lack of authority of the officers, directors, partners or
agents acting or purporting to act on behalf of Borrower or any principal of
Borrower or any defect in the formation of Borrower or any principal of
Borrower;
(c) any
defense based upon the application by Borrower of the proceeds of the Loans for
purposes other than the purposes represented by Borrower to Agent or any Lender
or intended or understood by Agent or any Lender or any Guarantor;
(d) any
defense of any Guarantor based upon Agent’s or any Lender’s election of any
remedy against any Guarantor or Borrower or both;
(e) any
defense based upon Agent’s or any Lender’s failure to disclose to any Guarantor
any information concerning Borrower’s financial condition or any other
circumstances bearing on Borrower’s ability to pay all sums payable under the
Notes or any of the other Loan Documents;
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(f) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in any other respects more
burdensome than that of a principal;
(g) any
defense based upon Agent’s or any Lender’s election, in any proceeding
instituted under Title 11 U.S.C.A. § 101 et seq. and the regulations
adopted and promulgated thereto (as the same may be amended from time to time
(the “Bankruptcy
Code”) of the application of Section 1111(b)(2) of the Bankruptcy Code or
any successor statute;
(h) any
defense based upon any borrowing or any grant of a security interest under
Section 364 of the Bankruptcy Code;
(i) any
and all rights and defenses, including, without limitation, any rights of
subrogation, reimbursement, indemnification and contribution, which might
otherwise be available to any Guarantor under any applicable laws, any right to
enforce any remedy which Agent or any Lender may have against Borrower and any
right to participate in, or benefit from, any security for the Notes or the
other Loan Documents now or hereafter held by Agent or any Lender;
(j) presentment,
demand, protest and notice of any kind; and
(k) the
benefit of any statute of limitations affecting the liability of any Guarantor
hereunder or the enforcement hereof. Each Guarantor agrees that the payment of
all sums payable under the Credit Agreement, the Notes or any of the other Loan
Documents or any part thereof or other act which tolls any statute of
limitations applicable to the Credit Agreement, the Notes or the other Loan
Documents shall similarly operate to toll the statute of limitations applicable
to the Guaranteed Obligations of Borrower.
Each
Guarantor agrees that the payment of all sums payable under the Credit
Agreement, the Notes or any of the other Loan Documents or any part thereof or
other act which tolls any statute of limitations applicable to the Credit
Agreement, the Notes or the other Loan Documents shall similarly operate to toll
any statute of limitations applicable to the Guaranteed
Obligations.
5. Guarantor’s Warranties,
Representations, Agreements and Covenants. Each Guarantor
warrants and represents and agrees that:
(a) each
Guarantor has the legal capacity to execute and deliver this Guaranty and to
perform in accordance with the terms hereof; and this Guaranty constitutes the
legal, valid and binding Obligation of each Guarantor, enforceable in accordance
with the terms hereof;
(b) there
are no conditions precedent to the effectiveness of this Guaranty, and this
Guaranty shall be in full force and effect and binding on each Guarantor
regardless of whether Agent or any Lender obtains other collateral or any
guaranties from others or takes any other action contemplated by any
Guarantor;
(c) each
Guarantor has established adequate means of obtaining from sources other than
Agent and Lenders, on a continuing basis, financial and other information
pertaining to each Credit Party’s financial condition, and the status of
Borrower’s and each other Persons performance of its Obligations imposed by the
Loan Documents, and each Guarantor agrees to keep adequately informed from such
means of any facts, events or circumstances which might in any way affect any
Guarantor’s risks hereunder and neither Agent nor any Lender has made any
representation to any Guarantor as to any such matters;
(d) no
Guarantor has and no Guarantor shall, without the prior written consent of
Agent, sell, lease, assign, encumber, hypothecate, transfer or otherwise dispose
of all or substantially all of such Guarantor’s assets, or all or substantially
all of such Guarantor’s interest therein;
(e) Lenders
would not make the Loans but for this Guaranty and Agent would not serve as
“Agent” but for this Guaranty; and
(f) each
Guarantor shall, promptly upon its receipt of any Net Cash Proceeds of Sale or
Insurance Proceeds, or calculation of Excess Cash Flow on each Excess Cash Flow
Calculation Date after the Extension Effective Date or upon the occurrence and
during the continuance a Default (as described in Sections 2.3(a), 2.3(b),
2.3(c) or 2.3(d), respectively, of the Credit Agreement) remit such proceeds or
Excess Cash Flow (as the case may be) to Borrower for application pursuant to
the applicable Section of the Credit Agreement referenced immediately above, to
the extent any such prepayment of the Loans is required under such Sections of
the Credit Agreement.
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6. Subordination of
Subrogation. Until the Guaranteed Obligations have been Paid
In Full, Guarantors (a) shall have no right of subrogation with respect to such
Guaranteed Obligations and (b) waive any right to enforce any remedy which
Lenders or Agent now have or may hereafter have against Borrower, any other
Guarantor or any other Credit Party, any endorser or any guarantor of all or any
part of the Guaranteed Obligations or any other Person, and Guarantors waive any
benefit of, and any right to participate in, any security or collateral given to
the Lenders and Agent to secure the payment or performance of all or any part of
the Guaranteed Obligations or any other liability of Borrower or any other
Credit Party to Lenders or Agent. Should any Guarantor have the
right, notwithstanding the foregoing, to exercise its subrogation rights, each
Guarantor hereby expressly and irrevocably (i) subordinates any and all rights
at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that such Guarantor may have to the indefeasible
payment in full in cash of the Guaranteed Obligations and (ii) waives any and
all defenses available to a surety, guarantor or accommodation co-obligor until
the Guaranteed Obligations are Paid In Full. Each Guarantor acknowledges and
agrees that this subordination is intended to benefit Agent and Lenders and
shall not limit or otherwise affect such Guarantor’s liability hereunder or the
enforceability of this Guaranty, and that Agent, Lenders and their respective
successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section
6.
7. Subordination of Insider
Indebtedness. Each Guarantor agrees that any and all claims of
such Guarantor against Borrower or any other Guarantor hereunder (each an “Obligor”) with
respect to any “Insider Indebtedness” (as hereinafter defined), any endorser,
obligor or any other guarantor of all or any part of the Guaranteed Obligations,
or against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed
Obligations. Notwithstanding any right of any Guarantor to ask,
demand, xxx for, take or receive any payment from any Obligor, all rights, liens
and security interests of such Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor shall be and are
subordinated to the rights of Agent and Lenders in those assets. No Guarantor
shall have any right to possession of any such asset or to foreclose upon any
such asset, whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than contingent indemnity obligations that have
not yet arisen) shall have been Paid In Full. If all or any part of
the assets of any Obligor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Obligor, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of any such
Obligor is dissolved or if substantially all of the assets of any such Obligor
are sold, then, and in any such event (such events being herein referred to as
an “Insolvency
Event”), any payment or distribution of any kind or character, either in
cash, securities or other property, which shall be payable or deliverable upon
or with respect to any indebtedness of any Obligor to any Guarantor (“Insider
Indebtedness”) shall be paid or delivered directly to Agent for
application on any of the Guaranteed Obligations, due or to become due, until
such Guaranteed Obligations (other than contingent indemnity obligations that
have not yet arisen) shall have first been Paid In Full. Should any
payment, distribution, security or instrument or proceeds thereof be received by
the applicable Guarantor upon or with respect to the Insider Indebtedness after
any Insolvency Event and prior to the Guaranteed Obligations being Paid in Full,
such Guarantor shall receive and hold the same in trust, as trustee, for the
benefit of Agent and Lenders and shall forthwith deliver the same to Agent, for
the benefit of Agent and Lenders, in precisely the form received (except for the
endorsement or assignment of any Guarantor where necessary), for application to
any of the Guaranteed Obligations, due or not due, and, until so delivered, the
same shall be held in trust by such Guarantor as the property of Agent and
Lenders. If any such Guarantor fails to make any such endorsement or
assignment to Agent, Agent or any of its officers or employees is irrevocably
authorized to make the same in the name of such Guarantor as such Guarantor’s
attorney in fact. The foregoing power of attorney is coupled with an
interest and cannot be revoked. Each Guarantor agrees that until the Guaranteed
Obligations have been Paid In Full, no Guarantor will assign or transfer to any
Person (other than Agent) any claim any such Guarantor has or may have against
any Obligor.
8. Bankruptcy of
Borrower. In any bankruptcy or other proceeding in which the
filing of claims is required by law, each Guarantor shall file all claims which
such Guarantor may have against Borrower relating to any indebtedness of
Borrower to such Guarantor and shall assign to Agent all rights of such
Guarantor thereunder. If any Guarantor does not file any such claim, Agent, as
attorney-in-fact for such Guarantor, is hereby authorized to do so in the name
of such Guarantor or, in Agent’s discretion, to assign the claim to a nominee
and to cause proof of claim to be filed in the name of Agent’s nominee. The
foregoing power of attorney is coupled with an interest and cannot be revoked.
Agent or its nominee shall have the right, in its reasonable discretion, to
accept or reject any plan proposed in such proceeding and to take any other
action which a party filing a claim is entitled to do. In all such cases,
whether in administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to Agent the amount payable on such claim
and, to the full extent necessary for that purpose, each Guarantor hereby
assigns to Agent, for the benefit of itself and Lenders, all of such Guarantor’s
rights to any such payments or distributions; provided, however, Guarantor’s
obligations hereunder shall not be satisfied except to the extent that Agent
receives cash by reason of any such payment or distribution. If Agent
receives anything hereunder other than cash, the same shall be held as
collateral for amounts due under this Guaranty. If all or any portion
of the Guaranteed Obligations are paid or performed, the obligations of each
Guarantor hereunder shall continue and shall remain in full force and effect in
the event that all or any part of such payment or performance is avoided or
recovered directly or indirectly from Agent as a preference, fraudulent transfer
or otherwise under the Federal Bankruptcy Code or other similar laws,
irrespective of (a) any notice of revocation given by any Guarantor prior to
such avoidance or recovery, or (b) full payment and performance of all of the
indebtedness and Obligations evidenced and secured by the Loan
Documents.
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9. Loan Sales and
Participations; Disclosure Of Information. Subject to the
prior approval of all applicable Gaming Authorities, to the extent required by
applicable Gaming Laws, each Guarantor agrees that each Lender may elect, at any
time, to sell, assign, or grant participations in all or any portion of its
rights and Obligations under the Loan Documents and this Guaranty, and that any
such sale, assignment or participation may be to one or more financial
institutions, private investors, and/or other entities, at such Lender’s sole
discretion. Each Guarantor further agrees that each Lender may disseminate to
any such actual or potential purchaser(s), Lender(s) or participant(s) all
documents and information (including, without limitation, all financial
information) which has been or is hereafter provided to or known to such Lender
with respect to any Person connected with the Loans (including, without
limitation, each Guarantor, Credit Party, Borrower, and any other guarantor);
provided, however, that prior to any such dissemination, any such actual or
potential purchaser(s), Lender(s) or participant(s) shall agree to be bound by
Section 10.11 of the Credit Agreement. In the event of any such sale, assignment
or participation, Agent, each Lender and the parties to such transaction shall
share in the rights and obligations of Agent and Lenders as set forth in the
Loan Documents only as and to the extent they agree among
themselves.
10. Additional and Independent
Obligations. This Guaranty is a continuing guaranty of payment
and performance and not of collection and cannot be revoked by any Guarantor and
shall continue to be effective with respect to the Guaranteed Obligations
arising or created after any attempted revocation hereof. The
Guaranteed Obligations shall be in addition to and shall not limit or in any way
affect the Obligations of any Guarantor under any other existing or future
guaranties unless said other guaranties are expressly modified or revoked in
writing. This Guaranty is independent of the Obligations of Borrower under the
Credit Agreement, the Notes and the other Loan Documents. Agent and
each Lender may bring a separate action to enforce the provisions hereof against
any Guarantor without taking action against Borrower or any other party or
joining Borrower or any other party as a party to such
action. Lenders’ rights under this Agreement shall be in addition to
the rights and benefits Lenders may have under the Credit Agreement, the Notes,
the Collateral Documents and the other Loan Documents.
11. Attorneys’ Fees;
Enforcement. Each Guarantor shall reimburse Agent and Lenders
for all reasonable attorneys’ fees, costs and expenses, arising from and after
the date hereof, incurred by Agent or any Lender in connection with the
enforcement of Agent’s or any Lender’s rights under this Guaranty and each of
the other Loan Documents relating to the Guaranteed Obligations, including,
without limitation, reasonable attorneys’ fees, costs and expenses for trial,
appellate proceedings, out-of-court negotiations, workouts and settlements, and
for enforcement of rights under any state or federal statute, including, without
limitation, reasonable attorneys’ fees, costs and expenses incurred in
bankruptcy and insolvency proceedings such as (but not limited to) in connection
with seeking relief from stay in a bankruptcy proceeding. The term
“expenses” means any expenses incurred by Agent or any Lender in connection with
any of the out-of-court, or state, or federal or bankruptcy proceedings
referenced above, including but not limited to the fees and expenses of any
appraisers, consultants and expert witnesses retained or consulted by Agent or
any Lender in connection with any of those proceedings. Agent and each Lender
shall also be entitled to its reasonable attorneys’ fees, costs and expenses
incurred in any post-judgment proceedings to collect and enforce the judgment.
This provision is separate and several and shall survive the merger of this
agreement into any judgment on this Guaranty.
12. Rules of
Construction. The word “Borrower” as used herein shall include
both the named Borrower and any other person at any time assuming or otherwise
becoming primarily liable for all or any part of the Obligations of the named
Borrower under the Notes and the other Loan Documents. When the context and
construction so require, all words used in the singular herein shall be deemed
to have been used in the plural and vice versa. All headings appearing in this
Guaranty are for convenience only and shall be disregarded in construing this
Guaranty.
13. Credit
Reports. Each Guarantor hereby authorizes Agent to order and
obtain, from a credit reporting agency of Agent’s choice, a third party credit
report with respect to such Guarantor.
14. GOVERNING
LAW. THIS GUARANTY
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS.
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15. Nature of Guarantor’s
Obligations. Each Guarantor’s Obligations hereunder shall not
be in any way reduced or offset and no Guarantor shall have any rights against
Agent or any Lender by reason of any action Agent or any Lender may take or omit
to take with respect to the Guaranteed Obligations, under this Guaranty, under
the Loan Documents or with respect to the security and collateral therefor,
whether or not such action or omission prejudices any Guarantor or increases the
likelihood that any Guarantor will be required to pay and perform the Guaranteed
Obligations pursuant to the terms hereof. It is the unambiguous and
unequivocal intention of each Guarantor that each Guarantor shall be obligated
to pay and perform the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or not contemplated, and whether or not otherwise or particularly
described herein, which obligation shall be deemed satisfied only upon the full
and final payment, performance and satisfaction of such Guaranteed Obligations.
Notwithstanding the foregoing, Guarantor’s obligations hereunder shall
automatically terminate from and after such time as all amounts due and payable
under the Loan Documents have been fully and finally paid and any and all other
Obligations under the Loan Documents have been fully, finally and indefeasibly
satisfied and performed.
16. Miscellaneous. The
provisions of this Guaranty will bind and benefit the heirs, executors,
administrators, legal representatives, nominees, successors and assigns of each
Guarantor, Agent and each Lender. The liability of all persons and entities who
are in any manner obligated hereunder or under any other guaranty with respect
to the Guaranteed Obligations, shall be joint and several. If any
provision of this Guaranty, or the applicability of any such provision to a
specific situation, shall be determined by a court of competent jurisdiction to
be invalid illegal or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Guaranty and
all other applications of any such provision shall not be affected
thereby.
17. Enforceability. Each
Guarantor hereby acknowledges that: (a) the Guaranteed Obligations are complex
in nature, and (b) numerous possible defenses to the enforceability of the
Guaranteed Obligations may presently exist and/or may arise hereafter, and (c)
as part of Agent’s and each Lender’s consideration for entering into this
transaction, Agent and each Lender has specifically bargained for the waiver and
relinquishment by each Guarantor of all such defenses, and (d) each Guarantor
has had the opportunity to seek and receive legal advice from skilled legal
counsel in the area of financial transactions of the type contemplated herein.
Given all of the above, each Guarantor does hereby represent and confirm to
Lenders that each Guarantor is fully informed regarding, and that each Guarantor
does thoroughly understand: (i) the nature of all such possible defenses, and
(ii) the circumstances under which such defenses may arise, and (iii) the
benefits which such defenses might confer upon each Guarantor, and (iv) the
legal consequences to each Guarantor of waiving such defenses. Each Guarantor
acknowledges that each Guarantor makes this Guaranty with the intent that this
Guaranty and all of the informed waivers herein shall each and all be fully
enforceable by Agent and each Lender, and that Agent and each Lender is induced
to enter into this transaction in material reliance upon the presumed full
enforceability thereof.
18. Entirety. THIS
GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF EACH GUARANTOR AND AGENT WITH
RESPECT TO EACH GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF.
THIS GUARANTY IS INTENDED BY EACH GUARANTOR AND AGENT AS A FINAL AND COMPLETE
EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN ANY
GUARANTOR AND AGENT OR ANY LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES,
AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO
CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS
GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN ANY GUARANTOR AND
AGENT OR ANY LENDER.
19. Headings. The
headings of the several paragraphs hereof are included only for the convenience
of reference and are not intended to govern, construe or modify any provisions
of the several paragraphs hereof.
20. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including electronic transmission, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of Borrower, Agent or
any Lender, at its address or facsimile number set forth on Schedule 14.1 of the
Credit Agreement, and (y) in the case of any Guarantor, at its address or
facsimile number set forth on Schedule A attached
hereto. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section 20 and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section
20. Any Guarantor may change the address for service of notice upon it by
a notice in writing to Agent, Agent may change the address for service of notice
upon it by a notice in writing to Guarantors, and each other party to the Loan
Documents may change the address for service of notice in accordance with the
terms of the other Loan Documents.
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21. Counterparts;
Execution. This Guaranty may be executed in any number of
counterparts and by a different party on separate counterparts, each of which,
when executed and delivered, will be deemed an original, and all of which, when
taken together, shall constitute one and the same agreement. Delivery
of an executed counterpart of this Guaranty via facsimile transmission or in
Adobe .pdf format by electronic mail shall be binding, and as effective as
delivery of a manually executed counterpart, and may be used as admissible
evidence that the party so transmitting intends to be bound by the terms set
forth herein.
22. CONSENT
TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENTS AND EACH GUARANTOR HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY GUARANTOR AGAINST AGENT OR ANY LENDER OR ANY AFFILIATE OF AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN NEW YORK, NEW YORK.
23. Waiver
of Venue. EACH
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION
22. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
24. WAIVER OF
JURY TRIAL. EACH GUARANTOR AND AGENT HEREBY WAIVES TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS GUARANTY, ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
25. Changes in
Writing. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated orally, but only in writing signed by
each Guarantor and Agent.
26. Successors
and Assigns. This Guaranty is for the benefit of the Agent and
Lenders and their respective successors and permitted assigns, provided, that no
Guarantor shall have any right to assign its rights or obligations hereunder
without the consent of all Lenders, and any such assignment in violation of this
Section
26 shall be null and void; and in the event of an assignment of any
amounts payable under the Credit Agreement or the other Loan Documents in
accordance with the respective terms thereof, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty shall be binding upon each Guarantor and their
respective successors and assigns.
27. Severability. Wherever
possible, each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
* * *
[Remainder of Page left intentionally
blank.]
Fortress/NG
Washington Guaranty
7
IN WITNESS WHEREOF, each Guarantor has
executed this Guaranty as of the date appearing on the first page of this
Guaranty.
|
GUARANTORS:
|
|
NG
Washington, LLC
|
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
Title:
Manager
|
|
XX
Xxxxxxxxxx XX, LLC
|
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
Title:
Manager
|
Signature
Page to Fortress/NG Washington Guaranty
SCHEDULE
A
NOTICE
INFORMATION
|
Guarantor
|
Address
|
Telephone
|
Facsimile
|
Email
|
||||
|
NG
Washington, LLC
|
00
Xxxxx Xxxxxx Xxxx
Xxxxx
000X
Xxxxxxx,
XX 00000
|
(713)
621-2245
|
(000)
000-0000
|
rsturges@nevada
xxxx.xxx
xxxxxxxxxx@xxxxxxxxxx.xxx
|
||||
|
XX
Xxxxxxxxxx XX, LLC
|
|
00
Xxxxx Xxxxxx Xxxx
Xxxxx
000X
Xxxxxxx,
XX 00000
|
|
(713)
621-2245
|
|
(000)
000-0000
|
|
rsturges@nevada
xxxx.xxx
xxxxxxxxxx@xxxxxxxxxx.xxx
|
All
notices to any of the Guarantors under this Guaranty shall be sent with a copy
to:
Nevada
Gold & Casinos, Inc.
00 Xxxxx
Xxxxxx Xxxx, Xxxxx 000X
Xxxxxxx,
XX 00000
Attention:
Xxxxxx B, Xxxxxxx, CEO
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxxxxx@xxxxxxxxxx.xxx and xxxxxxxxxx@xxxxxxxxxx.xxx
and
Xxxxx
& Samson PC
Xxx
Xxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
Attention:
Xxxxx Xxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxxx@xxxxxxxxxxx.xxx
Schedule
A to Fortress/NG Washington Guaranty
