Exhibit 10.24
GUARANTY
This Guaranty, dated as of June 15, 2000, is made by Anchor Gaming, a
Nevada corporation ("Guarantor") in favor of Bank of America, N.A., as
Administrative Agent for the benefit of the Lenders that are party to the
Loan Agreement referred to below (the Administrative Agent and the Lenders
being collectively referred to herein as the "Beneficiaries"), with reference
to the following facts:
RECITALS
A. Pursuant to the Loan Agreement of even date herewith among The Pala
Band of Mission Indians, a federally recognized Indian tribe ("Borrower"),
the Lenders therein named and Bank of America, N.A., as Administrative Agent
(as it may hereafter be amended, extended, renewed, supplemented, or
otherwise modified from time to time, being the "Loan Agreement"), the
Lenders have agreed to make certain credit facilities available to Borrower.
B. As a condition to the availability of such credit facilities,
Guarantor is required to enter into this Guaranty and to guaranty the
Guaranteed Obligations as hereinafter provided.
C. Guarantor expects to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facilities to
Borrower, and as the result of financial or business support which will be
provided to Guarantor by Borrower.
D. This Guaranty is subject to release in the manner described in
Section 19 hereof.
NOW, THEREFORE, in order to induce the Lender to continue to extend the
aforementioned credit facilities, and for other good and valuable
consideration, the receipt and adequacy of which hereby are acknowledged,
Guarantor hereby represents, warrants, covenants, agrees and guaranties as
follows:
1. DEFINITIONS. This Guaranty is the Anchor Guaranty referred to in the
Loan Agreement and is one of the Loan Documents. Certain terms used herein
are defined on Schedule A attached hereto and made a part hereof. Capitalized
terms used but not defined herein have the meanings given those terms in the
Loan Agreement.
2. GUARANTY OF GUARANTIED OBLIGATIONS. Guarantor hereby irrevocably,
unconditionally guaranties and promises to pay and perform on demand the
Guarantied Obligations and each and every one of them, INCLUDING all
amendments, modifications, supplements, renewals or extensions of any of
them, whether such amendments, modifications, supplements, renewals or
extensions are evidenced by new or additional instruments, documents or
agreements or change the rate of interest on any Guarantied Obligation or the
security therefor, or otherwise. As used herein, "GUARANTIED OBLIGATIONS"
means all Obligations of Borrower or any other Party at any time and from
time to time owed to the Beneficiaries under any of the Loan Documents (but
not including Obligations owed to the
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Administrative Agent and the Lenders under this Guaranty), whether due or to
become due, matured or unmatured, liquidated or unliquidated, or contingent
or noncontingent, INCLUDING obligations of performance as well as obligations
of payment, obligations of Borrower with respect to indemnifications and
INCLUDING interest that accrues after the commencement of any bankruptcy or
insolvency proceeding by or against Borrower, Guarantor or any other Person,
but EXCLUDING any increase to the principal amount of the Commitment without
the written consent of the Guarantor.
3. NATURE OF GUARANTY. This Guaranty is irrevocable and continuing in
nature and relates to any Guarantied Obligations now existing or hereafter
arising. This Guaranty is a guaranty of prompt and punctual payment and
performance and is not merely a guaranty of collection.
4. CERTAIN COVENANTS OF GUARANTOR. (a) So long as this Guaranty is in
effect, Guarantor shall not, unless the Administrative Agent (with the
written approval of the Requisite Lenders or, if required by Section 13.2 of
the Loan Agreement, of all of the Lenders) otherwise consents:
(i) Permit the Fixed Charge Coverage Ratio, as of the last day of
any Anchor Fiscal Quarter, to be less than 1.50:1.00.
(ii) Permit the Leverage Ratio, as of the last day of any Anchor
Fiscal Quarter, to be greater than 2.50:1.00.
(b) Guarantor further covenants and agrees that it shall cause the
Commencement of Gaming to occur by June 30, 2001 (and in any event prior to
the forfeiture by Borrower of its right to operate of any portion of the
gaming units allocated to Borrower by the State of California) and that it
shall cause the Completion Date to occur by September 30, 2001, PROVIDED that
each of these dates may be extended during the pendency of any Force Majeure
to the extent that no forfeiture of Borrower's right to operate any portion
of its allocated gaming units results from such extension.
5. INFORMATION REQUIREMENTS. So long as this Guaranty is in effect,
Guarantor shall, unless the Administrative Agent (with the written approval of
the Requisite Lenders or, if required by Section 13.2 of the Loan Agreement,
of all of the Lenders), otherwise consents, at Guarantor's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders, a
sufficient number of copies for all of the Lenders of the following:
(a) As soon as practicable, and in any event within 45 days after the
end of each Anchor Fiscal Quarter (OTHER THAN the fourth Anchor Fiscal
Quarter in any Anchor Fiscal Year), the consolidated and consolidating
balance sheet of Guarantor and its Subsidiaries as at the end of such Anchor
Fiscal Quarter and the consolidated and consolidating statement of operations
for such Anchor Fiscal Quarter, and its statement of cash flows for the
portion of the Anchor Fiscal Year ended with such Anchor Fiscal Quarter, all
in reasonable detail, and with comparisons to the combined results of
operations, on a pro forma basis for the same Anchor Fiscal Quarter in the
prior year. Such financial statements shall be certified by a senior officer
of Guarantor as fairly presenting the financial condition, results of
operations and cash flows of Guarantor and its Subsidiaries in accordance
with Generally Accepted Accounting Principles (OTHER THAN footnote
disclosures) consistently applied, as at such date and for such periods,
subject only to normal year-end accruals and audit adjustments; and
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(b) As soon as practicable, and in any event within 105 days after the
end of each Anchor Fiscal Year, (i) the consolidated and consolidating
balance sheet of Guarantor and its Subsidiaries as at the end of such Anchor
Fiscal Year and the consolidated and consolidating statements of operations,
shareholders' equity and cash flows, in each case of Guarantor and its
Subsidiaries for such Anchor Fiscal Year, in each case as at the end of and
for the Anchor Fiscal Year, all in reasonable detail. Such financial
statements shall be prepared in accordance with Generally Accepted Accounting
Principles, consistently applied, and such consolidated balance sheet and
consolidated statements shall be accompanied by a report of one of the six
largest public accounting firms in the United States of America or other
independent public accountants of recognized standing selected by Guarantor
and reasonably satisfactory to the Requisite Lenders, which report shall be
prepared in accordance with generally accepted auditing standards as at such
date, and shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any other qualification or exception determined by
the Requisite Lenders in their good faith business judgment to be adverse to
the interests of the Lenders.
6. RELATIONSHIP TO OTHER AGREEMENTS. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor or in connection with
the Guarantied Obligations, but each and every term and condition hereof
shall be in addition thereto. All provisions contained in the Loan Agreement
or any other Loan Document that apply to Loan Documents generally are fully
applicable to this Guaranty and are incorporated herein by this reference.
7. SUBORDINATION OF INDEBTEDNESS OF BORROWER TO GUARANTOR TO THE
GUARANTIED OBLIGATIONS. Guarantor agrees all obligations and Indebtedness of
Borrower and its Affiliates now or hereafter owed to Guarantor hereby is
subordinated to the Guarantied Obligations in the manner, and to the extent,
set forth in the Subordination Agreement.
8. STATUTES OF LIMITATIONS AND OTHER LAWS. Until the Guarantied
Obligations shall have been paid and performed in full, all the rights,
privileges, powers and remedies granted to the Administrative Agent hereunder
shall continue to exist and may be exercised by the Administrative Agent at
any time and from time to time irrespective of the fact that any of the
Guarantied Obligations may have become barred by any statute of limitations.
Guarantor expressly waives the benefit of any and all statutes of
limitations, and any and all Laws providing for exemption of property from
execution or for evaluation and appraisal upon foreclosure, to the maximum
extent permitted by applicable Laws.
9. WAIVERS AND CONSENTS. Guarantor acknowledges that the obligations
undertaken herein involve the guaranty of obligations of Persons other than
Guarantor and, in full recognition of that fact, consents and agrees that the
Administrative Agent may, at any time and from time to time, without notice
or demand, and without affecting the enforceability or continuing
effectiveness hereof: (a) supplement, modify, amend, extend, renew,
accelerate or otherwise change the time for payment or the terms of the
Guarantied Obligations or any part thereof, INCLUDING any increase or
decrease of the rate(s) of interest thereon; (b) supplement, modify, amend or
waive, or enter into or give any agreement, approval or consent with respect
to, the Guarantied Obligations or any part thereof, or any of the Loan
Documents to which Guarantor is not a party or any additional security or
guaranties, or any condition, covenant, default, remedy, right,
representation or term thereof or thereunder; (c) accept new or
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additional instruments, documents or agreements in exchange for or relative
to any of the Loan Documents or the Guarantied Obligations or any part
thereof; (d) accept partial payments on the Guarantied Obligations; (e)
receive and hold additional security or guaranties for the Guarantied
Obligations or any part thereof; (f) release, reconvey, terminate, waive,
abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or
enforce any security or guaranties, and apply any security and direct the
order or manner of sale thereof as the Administrative Agent in its sole and
absolute discretion may determine; (g) release any Person from any personal
liability with respect to the Guarantied Obligations or any part thereof; (h)
settle, release on terms satisfactory to the Administrative Agent or by
operation of applicable Laws or otherwise liquidate or enforce any Guarantied
Obligations and any security or guaranty therefor in any manner, consent to
the transfer of any security and bid and purchase at any sale; and/or (i)
consent to the merger, change or any other restructuring or termination of
the existence of Borrower or any other Person, and correspondingly
restructure the Guarantied Obligations, and any such merger, change,
restructuring or termination shall not affect the liability of Guarantor or
the continuing effectiveness hereof, or the enforceability hereof with
respect to all or any part of the Guarantied Obligations, PROVIDED that the
Administrative Agent and the Lenders shall not increase the Commitments under
the Loan Agreement pursuant to Section 2.7 thereof without the prior written
consent of the Guarantor.
Upon the occurrence and during the continuance of any Event of Default,
the Administrative Agent may enforce this Guaranty independently of any other
remedy or security the Administrative Agent at any time may have or hold in
connection with the Guarantied Obligations. Guarantor expressly waives any
right to require the Beneficiaries to marshal assets in favor of Borrower and
agrees that the Beneficiaries may proceed against Borrower or upon or against
any security or remedy, before proceeding to enforce this Guaranty, in such
order as they shall determine in their sole and absolute discretion. The
Beneficiaries may file a separate action or actions against Borrower and/or
Guarantor without respect to whether action is brought or prosecuted with
respect to any security or against any other Person, or whether any other
Person is joined in any such action or actions. Guarantor agrees that the
Beneficiaries and Borrower and any Affiliates of Borrower may deal with each
other in connection with the Guarantied Obligations or otherwise, or alter
any contracts or agreements now or hereafter existing between any of them, in
any manner whatsoever (except to the extent expressly limited herein), all
without in any way altering or affecting the security of this Guaranty.
Beneficiaries' rights hereunder shall be reinstated and revived, and the
enforceability of this Guaranty shall continue, with respect to any amount at
any time paid on account of the Guarantied Obligations which thereafter shall
be required to be restored or returned by the Beneficiaries upon the
bankruptcy, insolvency or reorganization of Borrower or any other Person, or
otherwise, all as though such amount had not been paid. The rights of the
Beneficiaries created or granted herein and the enforceability of this
Guaranty with respect to Guarantor at all times shall remain effective to
guaranty the full amount of all the Guarantied Obligations even though the
Guarantied Obligations, or any part thereof, or any security or guaranty
therefor, may be or hereafter may become invalid or otherwise unenforceable
as against Borrower or any other guarantor or surety and whether or not
Borrower or any other Person shall have any personal liability with respect
thereto. Guarantor expressly waives any and all defenses now or hereafter
arising or asserted by reason of (a) any disability or other defense of
Borrower or its Affiliates with respect to the Guarantied Obligations, (b)
the unenforceability or invalidity of any security or guaranty for the
Guarantied Obligations or the lack of perfection or continuing perfection or
failure of priority of any security for the Guarantied Obligations, (c) the
cessation for any cause whatsoever of the liability of Borrower (other than
by reason of the full payment
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and performance of all Guarantied Obligations), (d) any failure of the
Beneficiaries to marshal assets in favor of Borrower or any other Person, (e)
any act or omission of the Beneficiaries or others that directly or
indirectly results in or aids the discharge or release of Borrower or the
Guarantied Obligations or any security or guaranty therefor by operation of
law or otherwise, (f) any Law which provides that the obligation of a surety
or guarantor must neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligation, (g) any
failure of the Beneficiaries to file or enforce a claim in any bankruptcy or
other proceeding with respect to any Person, (h) the election by the
Beneficiaries, in any bankruptcy proceeding of any Person, of the application
or non-application of Section 1111(b)(2) of the United States Bankruptcy
Code, (i) any extension of credit or the grant of any Lien under Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code, (j) any use of cash collateral under
Section 363 of the United States Bankruptcy Code, (k) any agreement or
stipulation with respect to the provision of adequate protection in any
bankruptcy proceeding of any Person, (l) the avoidance of any Lien in favor
of the Beneficiaries for any reason, (m) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, INCLUDING any discharge of, or
bar or stay against collecting, all or any of the Guarantied Obligations (or
any interest thereon) in or as a result of any such proceeding, (n) to the
extent permitted, the benefits of any form of one-action rule under any
applicable Law, or (o) any action taken by the Beneficiaries that is
authorized by this Section or any other provision of any Loan Document.
Guarantor expressly waives all setoffs and counterclaims and all presentments,
demands for payments or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guarantied
Obligations, and all notices of acceptance of this Guaranty or of the
existence, creation or incurrence of new or additional Guarantied Obligations
(except as expressly limited herein).
10. CONDITION OF BORROWER AND ITS AFFILIATES. Guarantor represents and
warrants to the Beneficiaries that Guarantor has established adequate means
of obtaining from Borrower and its Affiliates, on a continuing basis,
financial and other information pertaining to the businesses, operations and
condition (financial and otherwise) of Borrower and its Affiliates and their
Properties, and Guarantor now is and hereafter will be completely familiar
with the businesses, operations and condition (financial and otherwise) of
Borrower and its Affiliates and their Properties. Guarantor hereby expressly
waives and relinquishes any duty on the part of the Beneficiaries (should any
such duty exist) to disclose to Guarantor any matter, fact or thing related
to the businesses, operations or condition (financial or otherwise) of
Borrower or its Affiliates or their Properties, whether now known or
hereafter known by the Beneficiaries during the life of this Guaranty. With
respect to any of the Guarantied Obligations, the Beneficiaries need not
inquire into the powers of Borrower or any Affiliates thereof or the officers
or employees acting or purporting to act on their behalf, and all Guarantied
Obligations made or created in good faith reliance upon the professed
exercise of such powers shall be secured hereby.
11. LIENS ON REAL PROPERTY. In the event that all or any part of the
Guaranteed Obligations at any time are secured by any one or more deeds of
trust or mortgages or other instruments creating or granting Liens on any
interests in real Property, Guarantor authorizes the Beneficiaries, upon the
occurrence of and during the continuance of any Event or Default, on their
sole option, without notice or demand and without affecting any Guaranteed
Obligations of Guarantor, or the enforceability of this Guaranty, to
foreclose any or all of such deeds of trust or mortgages or other instruments
by judicial or
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nonjudicial sale. Guarantor expressly waives any defenses to the enforcement
of this Guaranty or any rights of the Beneficiaries created or granted hereby
or to the recovery by the Beneficiaries against Borrower, Guarantor or any
other Person liable therefor of any deficiency after a judicial or
nonjudicial foreclosure or sale, even though such a foreclosure or sale may
impair the subrogation rights of Guarantor or may preclude Guarantor from
obtaining reimbursement or contribution from Borrower or any other Person.
Guarantor expressly waives any defenses or benefits that may be derived from
California Code of Civil Procedure Sections 580a, 580b, 580d or 726, or
comparable provisions of the Laws of any other jurisdiction, and all other
suretyship defenses it otherwise might or would have under California Law or
other applicable Law. Guarantor expressly waives any right to receive notice
of any judicial or nonjudicial foreclosure or sale of any real Property or
interest therein subject to any such deeds of trust or mortgages or other
instruments and Guarantor's or any other Person's failure to receive any such
notice shall not impair or affect Guarantor's Obligations or the
enforceability of this Guaranty or any rights of the Beneficiaries created or
granted hereby.
12. RIGHTS OF SUBROGATION.
(a) Guarantor expressly agrees that any and all rights at Law or in
equity to which Guarantor now has or may hereafter acquire to proceed
against:
(i) Borrower, its Affiliates and their respective successors and
assigns (INCLUDING any surety); or
(ii) any other Person which is now or may hereafter be, directly
or indirectly, a creditor of or surety for Borrower or its Affiliates;
arising out of any claim of subrogation to the rights of the Beneficiaries
by reason of a payment made hereunder, or under the rights of
reimbursement, exoneration, contribution, setoff or to any other rights
which accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated,
or to a holder or transferee against a maker, and which Guarantor may have
or hereafter acquire against any such Person in connection with or as a
result of Guarantor's execution, delivery and/or performance of this
Guaranty or any other Loan Document to which Guarantor is a party, are
expressly subordinate and junior to the rights of the Beneficiaries under
the Loan Documents, in the same manner and to the same extent as set forth
in the Subordination Agreement.
(b) Guarantor agrees that it shall not assert any such rights
against Borrower, its Affiliates or their successors and assigns or any
other Person, either directly or as an attempted setoff to any action
commenced against Guarantor by any such Person, unless and until the
Obligations are fully, finally and indefeasibly paid in Cash (or otherwise
permitted by the Subordination Agreement). By executing this Guaranty in
the space provided below, the Administrative Agent agrees on behalf of the
other Beneficiaries that, upon such payment and to the extent that the
Guarantor has made any payment hereunder on account of the Obligations, the
Administrative Agent shall execute such instruments as shall be required to
assign of record, without recourse representation or warranty of any kind
and at the sole expense of Guarantor, the rights of the Creditors under the
Loan Documents to the Guarantor, PROVIDED that the Guarantor shall provide
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indemnifications to the Creditors reasonably acceptable to the
Administrative Agent in connection with such assignments.
(c) Guarantor hereby acknowledges and agrees that this
subordination is intended to benefit Borrower, its Affiliates and the
Beneficiaries and shall not limit or otherwise affect Guarantor's liability
hereunder, under any other Loan Document to which Guarantor is a party, or
the enforceability hereof and thereof.
13. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Guarantor
warrants and agrees that each of the waivers and consents set forth herein is
made with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or rights waived may
diminish, destroy or otherwise adversely affect rights which Guarantor
otherwise may have against Borrower, the Beneficiaries or others, and that,
under the circumstances, the waivers and consents herein given are reasonable
and not contrary to public policy or Law. Guarantor acknowledges that it has
either consulted with legal counsel regarding the effect of this Guaranty and
the waivers and consents set forth herein, or has made an informed decision
not to do so. If this Guaranty or any of the waivers or consents herein are
determined to be unenforceable under or in violation of applicable Law, this
Guaranty and such waivers and consents shall be effective to the maximum
extent permitted by Law.
14. REPRESENTATIONS AND WARRANTIES IN THE BORROWER'S LOAN AGREEMENT.
Guarantor represents and warrants that each of the representations and
warranties of Borrower as to the condition or status of Guarantor set forth
in Article 4 of the Loan Agreement is true and correct.
15. COSTS AND EXPENSES. Guarantor agrees to pay to the Beneficiaries all
costs and expenses (INCLUDING, without limitation, reasonable attorneys' fees
and disbursements) incurred by the Beneficiaries in the enforcement or
attempted enforcement of this Guaranty, whether or not an action is filed in
connection therewith, and in connection with any waiver or amendment of any
term or provision hereof. All advances, charges, costs and expenses,
INCLUDING reasonable attorneys' fees and disbursements (including the
reasonably allocated cost of legal counsel employed by the Beneficiaries),
incurred or paid by the Beneficiaries in exercising any right, privilege,
power or remedy conferred by this Guaranty, or in the enforcement or
attempted enforcement thereof, shall be subject hereto and shall become a
part of the Guaranteed Obligations and shall be paid to the Beneficiaries by
Guarantor, immediately upon demand, together with interest thereon at the
rate(s) provided for under the Loan Agreement.
16. CONSTRUCTION OF THIS GUARANTY. This Guaranty is intended to give
rise to ABSOLUTE AND UNCONDITIONAL obligations on the part of the Guarantor;
hence, in any construction hereof, NOTWITHSTANDING ANY PROVISION OF ANY LOAN
DOCUMENT TO THE CONTRARY, this Guaranty shall be constructed strictly in
favor of the Beneficiaries in order to accomplish its stated purpose.
17. ANCHOR DEFAULT. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute a default under this Guaranty
(each, an "ANCHOR DEFAULT"):
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(a) Guarantor fails to comply with any of the covenants contained
in this Guaranty or Guarantor fails to honor any demand by the
Administrative Agent for payment hereunder; or
(b) Guarantor or any of its Significant Subsidiaries (i) fails to
pay the principal, or any principal installment, of any present or future
Indebtedness of $10,000,000 or more (including without limitation under the
Anchor Loan Agreement), or any guaranty of present or future Indebtedness
of $10,000,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails to perform or
observe any other term, covenant or agreement on its part to be performed
or observed, or suffers any event of default to occur, in connection with
any present or future Indebtedness of $10,000,000 or more, or of any
guaranty of present or future Indebtedness of $10,000,000 or more, if as a
result of such failure or sufferance any holder or holders thereof (or an
agent or trustee on its or their behalf) has the right to declare such
Indebtedness due before the date on which it otherwise would become due or
the right to require Guarantor or any of its Subsidiaries to redeem or
purchase, or offer to redeem or purchase, all or any portion of such
Indebtedness; or
(c) A final judgment against Guarantor or any of its Significant
Subsidiaries is entered for the payment of money in excess of $5,000,000
and, absent procurement of a stay of execution, such judgment remains
unsatisfied for thirty calendar days after the date of entry of judgment,
or in any event later than five days prior to the date of any proposed
sale thereunder; or any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of
the Property of any such Person and is not released, vacated or fully
bonded within thirty calendar days after its issue or levy; or
(d) Guarantor or any of its Significant Subsidiaries institutes or
consents to the institution of any proceeding under a Debtor Relief Law
relating to it or to all or any material part of its Property, or is unable
or admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all
or any material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for ninety calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to all
or any part of its Property is instituted without the consent of that
Person and continues undismissed or unstayed for ninety calendar days; or
(e) Subject to Section 20, the occurrence of any Change in Control.
18. REMEDIES. Without limitation upon their other legal, contractual and
equitable rights, if any Event of Default has occurred and remains continuing
under the Loan Agreement, the Beneficiaries may demand the immediate full
payment in cash by Guarantor of the then outstanding Obligations under the
Loan Agreement. In addition thereto, upon the occurrence of any Anchor
Default at any time prior to the Completion Date (without the requirement
that any Default or Event of Default exist under the Loan Agreement), and
without limitation as to any other remedies which may then be available
to the Administrative Agent at law, in equity or by contract, the
Administrative Agent shall be entitled INTER
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ALTA to demand that the Guarantor immediately deposit with the Administrative
Agent, in immediately available funds, an amount (the "Required Amount")
equal to the least of (A) the principal amount of the outstanding Obligations
of Borrower under the Loan Documents, together with any interest, fees and
other amounts payable with respect thereto, (B) $25,000,000, or (C) the
difference between (x) the then unexpended portion of the Approved Budget
PLUS the net aggregate amount of all cost over-runs with respect to any line
items then completed, and (y) the principal amount of the then available
Loans under the Loan Agreement, or may require that Anchor make Sub Debt
Contributions to Borrower in the Required Amount. The Administrative Agent
shall either (a) if and to the extent that any of the Obligations of Borrower
are then due, apply the amount so deposited to the payment of the
Obligations, and/or (b) hold any amount so deposited in an interest bearing
account as cash collateral for the Obligations, PROVIDED THAT until a Default
or Event of Default occurs, any amount not so applied shall be disbursed by
the Administrative Agent to the Borrower for the completion of the Pala
Casino subject to such reasonable construction disbursement requirements as
the Administrative Agent may require.
19. RELEASE OF GUARANTY. Guarantor may request that the Administrative
Agent release Guarantor from its obligations under this Guaranty in
accordance with the provisions of this Section and, upon the passage of the
time periods set forth in and the fulfillment of the Guaranty Release
Conditions, the Administrative Agent shall promptly release this Guaranty by
a writing issued to the Guarantor, PROVIDED that no release of this Guaranty
shall be effective until the issuance of such a writing by the Administrative
Agent. In the event that the Guaranty Release Conditions are satisfied, the
Guarantor may, but shall not be obligated to, deliver a written request for
the release of this Guaranty to the Administrative Agent (a "RELEASE
REQUEST"). A Release Request shall certify that the Guaranty Release
Conditions have been satisfied, shall include any supporting materials
reasonably requested by the Administrative Agent, and shall be executed by
the chief financial officer of Guarantor.
Upon the Administrative Agent's receipt of a Release Request, the
Administrative Agent shall within 10 Business Days either (a) provide the
Release Request and its supporting materials to the Lenders, or (b) inform
the Guarantor of any additional information required to process the Release
Request (in which case the Guarantor may resubmit its Release Request with
the requested materials for submission to the Lenders within 10 Business Days
following its acceptable resubmission to the Administrative Agent). Upon the
expiration of the 10 Business Day period following the submission of the
Release Request to the Lenders by the Administrative Agent, provided that
Lenders constituting Requisite Lenders have not objected to the requested
release hereof, the Administrative Agent shall within 5 Business Days provide
written notice to Guarantor of Guarantor's release from its obligations under
this Guaranty, which release shall be effective upon Guarantor's receipt of
such written notice.
This Guaranty shall also be released on the date which is 60 days
following the date upon which the Administrative Agent receives written
notice from Anchor (i) containing a specific reference to this Section, (ii)
requesting release of this Guaranty and (iii) stating that Anchor Pala
Management has ceased to be the manager of the Pala Casino UNLESS during that
period the Lenders have made demand upon Borrower for payment of the
Outstanding Obligations under the Loan Agreement (with such period to be
tolled during the effectiveness of any legal prohibition upon the ability of
the Lenders to make any such demand) and have accelerated the maturity of the
Outstanding Obligations (or are legally prohibited from doing so).
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20. APPROVAL PROCESS FOR CHANGE IN CONTROL.
(a) In the event that any transaction is proposed or other
circumstances are contemplated which shall result in a Change of Control,
Guarantor may elect, in its sole discretion, to notify the Administrative
Agent in advance of the proposed transaction (a "Transaction Notice") not
more than 180 days nor less than 60 days prior to the consummation of the
proposed transaction of in accordance with the provisions of this clause (a).
Each Transaction Notice shall be in writing and shall set forth, in detail
reasonably satisfactory to the Administrative Agent, the nature of the
proposed transaction, in any event describing any Person or Persons who will
directly or indirectly acquire any interest in Guarantor as a result thereof
and any affect upon the membership of the board of directors of Guarantor or
its senior management. Promptly following its receipt of any Transaction
Notice satisfying the requirements of this clause (a), the Administrative
Agent shall distribute a copy thereof to each of the Lenders.
(b) If Guarantor delivers a Transaction Notice and, during the
sixty day period immediately following the delivery of the Transaction Notice
to the Lenders by the Administrative Agent, the Requisite Lenders do not
object in writing to the proposed transaction (which the Requisite Lenders
may do in their sole discretion), then Guarantor may proceed with the
proposed transaction (or allow the contemplated circumstances to occur) to
the extent conforming to the Transaction Notice in all material respects, and
the transaction shall not constitute a Change in Control (any failure of the
Requisite Lenders to so respond during the prescribed period constituting a
waiver of any such objections). In the event that the Requisite Lenders
object in writing to the proposed transaction during the prescribed period,
then consummation of the transaction shall constitute a Change of Control and
an Anchor Default hereunder.
21. ARBITRATION REFERENCE.
(a) MANDATORY ARBITRATION. At the option of the Administrative Agent
(exercised in accordance with the consent of the Requisite Lenders) or
Guarantor, any controversy or claim between or among the parties arising out
of or relating to this Guaranty or any agreements or instruments relating
hereto or delivered in connection herewith and any claim based on or arising
from an alleged tort, shall be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act
(Title 9, U.S. Code), notwithstanding any choice of law provision in this
Guaranty, and under the Commercial Rules of the American Arbitration
Association ("AAA"). The arbitrators shall give effect to statutes of
limitation in determining any claim. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrators. Judgements upon
the arbitration award may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(b) PROVISIONAL REMEDIES, SELF-HELP AND FORCLOSURE. No provision of
this section shall limit the right of the Beneficiaries to exercise self-help
remedies such as setoff, to foreclosure against or sell any real or personal
property collateral or security or to obtain provisional or ancillary remedies
from a court of competent jurisdiction before, after, or during the pendency of
any arbitration or other proceeding. The exercise of a remedy does not waive
the right of the
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Beneficiaries to resort to arbitration or reference. At the Requisite
Lenders' option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of trust or
mortgage or by judicial foreclosure.
(c) LIMITATION. This Section shall not be construed to require
arbitration by the Creditors of any disputes which now exist or hereafter
arise amongst themselves which do not involve the Guarantor and are not related
to this Guaranty and the Loan Documents.
22. WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR AND THE BENEFICIARIES
HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTY, ANY OTHER LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND THE BENEFICIARIES WITH RESPECT TO THIS GUARANTY AND
ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND GUARANTOR AND THE BENEFICIARIES HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT GUARANTOR AND THE
BENEFICIARIES MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR AND THE
BENEFICIARIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
23. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO THE CONFLICT OF LAWS OR CHOICE OF LAW PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the parties hereto have executed this Guaranty by
their respective duly authorized officers as of the data first written above.
ANCHOR GAMING, a Nevada corporation
By: /s/ Xxxxxx Xxxxxx
-----------------------------
V.P
-----------------------------
(Printed name and title)
Address for notices for Guarantor:
Anchor Gaming
000 Xxxxx Xxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
By:
/s/ Xxxxxx Xxxxxxx
-----------------------------
Xxxxxx Xxxxxxx
Vice President
-----------------------------
(Printed name and title)
Address for notices for Administrative
Agent and the Lenders:
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
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SCHEDULE A
TO
GUARANTY
CERTAIN DEFINITIONS
"ANCHOR AVERAGE TOTAL FUNDED DEBT" means, as of the last day of each Anchor
Fiscal Quarter, the average principal amount of Total Funded Debt as of the
last day of the three constituent calendar months in that Anchor Fiscal
Quarter.
"ANCHOR CREDITORS" means the administrative agent and the lenders under the
Anchor Loan Agreement, and each other person (other than Anchor and its
Subsidiaries) entitled to the benefits thereof.
"ANCHOR FISCAL QUARTER" means each fiscal quarter of Guarantor consisting of
the three calendar month periods ending on each March 31, June 30, September
30 and December 31.
"ANCHOR FISCAL YEAR" means the fiscal year of Guarantor consisting of the
twelve month period ending on each June 30.
"ANCHOR LOAN AGREEMENT" means the Loan Agreement dated as of June 29, 1999
among Guarantor, as borrower, the lenders therein named (the "Anchor
Lenders"), Bank of America National Trust and Savings Association, as
Administrative Agent and Banc of America Securities, LLC, as Lead Arranger
and Sole Book Manager, as supplemented, amended or otherwise modified as of
the date of this Guaranty.
"CHANGE IN CONTROL" means, subject to Section 2.8(b), (a) any transaction or
series of related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership (within the
meaning of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of 25% or more of the outstanding common
stock of Guarantor, (b) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted the board of
directors of Guarantor (together with any new or replacement directors whose
election by the board of directors, or whose nomination for election, was
approved by a vote of at least a majority of the directors then still
in office who were either directors at the beginning of such period or whose
election or nomination for reelection was previously so approved) cease for
any reason to constitute a majority of the directors then in office, or (c)
more than three of the persons listed in a side letter delivered to the Bank
of America and certain other lenders to Guarantor as of June 29, 1999, fail
for any reason to be actively involved in the management of Guarantor in a
senior executive capacity and are not replaced with persons acceptable to
Guarantor's board of directors within six months following their departure
date.
"DISTRIBUTION" means, with respect to any shares of capital stock or any
warrant or option to purchase an equity security or other equity security
issued by a Person, (a) the retirement, redemption, purchase or other
acquisition for Cash or for Property (other than capital stock, or any
warrants or options to purchase an equity security or other security of such
Person) by such Person of any such security, (b) the declaration or (without
duplication) payment by such Person of any dividend in
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Cash or in Property (other than capital stock, or any warrants or options to
purchase an equity security or other security of such Person) on or with
respect to any such security, (c) any Investment by such Person in the holder
of 5% or more of any such security if a purpose of such Investment is to
avoid characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property (other than capital stock, or any warrants or
options to purchase an equity security or other security of such Person) by
such Person constituting a distribution under applicable Laws with respect to
such security.
"EBITDA" means, with respect to any fiscal period and with respect to
Guarantor and its Subsidiaries, the SUM OF (a) Net Income of Guarantor and
its Subsidiaries for that period, PLUS (b) any extraordinary loss reflected
in such Net Income, MINUS (c) any extraordinary gain reflected in such Net
Income, PLUS (d) Interest Charges of Guarantor and its Subsidiaries for that
period to the extent deducted in arriving at Net Income of Guarantor and its
Subsidiaries for that period, PLUS (e) the aggregate amount of federal, state
and local taxes on or measured by income of Guarantor and its Subsidiaries
for that period (whether or not payable during that period) to the extent
deducted in arriving at Net Income of Guarantor and its Subsidiaries for that
period PLUS (f) depreciation, amortization and all other non-cash expenses
for that period, in each case as determined in accordance with Generally
Accepted Account Principles, PROVIDED that (i) for each Fiscal Quarter
containing any period prior to June 29, 1999, EBITDA shall be calculated with
reference to the combined financial results of Guarantor and Powerhouse and
their Subsidiaries, (ii) the Net Income and other financial results of the
IGT Joint Venture for any Anchor Fiscal Quarter shall be included in EBITDA
of Guarantor and its Subsidiaries for that Anchor Fiscal Quarter only to the
extent that such Net Income is actually received in Cash by Guarantor and
its Subsidiaries prior to the date which is thirty days following the last
day of such Anchor Fiscal Quarter, and (iii) EBITDA of Guarantor and its
Subsidiaries for any fiscal period shall be adjusted to include, on a pro
forma basis, the financial results of any new Subsidiary (or operating
assets) acquired by Guarantor and its Subsidiaries during that fiscal period
for a consideration in excess of $10,000,000 and to exclude, on a pro forma
basis, the financial results of any Subsidiary (or operating assets) sold,
transferred or otherwise disposed of by Guarantor and its Subsidiaries for a
consideration in excess of $10,000,000, during that fiscal period.
"FIXED CHARGE COVERAGE RATIO" means, as of the last day of each Anchor Fiscal
Quarter, the ratio of (a) EBITDA for the four Anchor Fiscal Quarter period
ending on such date to (b) Fixed Charges for the same period.
"FIXED CHARGES" means, for any fiscal period, the SUM OF (a) all Interest
Charges of Guarantor and its Subsidiaries paid in cash during that fiscal
period, PLUS (b) all payments of principal required to be paid during that
fiscal period by Guarantor and its Subsidiaries to lenders in connection with
borrowed money or Capital Lease Obligations, PLUS (c) all Maintenance Capital
Expenditures incurred by Guarantor and its Subsidiaries during that fiscal
period, PLUS (d) all taxes paid in Cash by Guarantor and its Subsidiaries
during that fiscal period, PLUS (e) all Distributions made by Guarantor and
its Subsidiaries OTHER THAN (i) Distributions consisting of stock redemptions
permitted by the Anchor Loan Agreement and (ii) Distributions permitted by
the Anchor Loan Agreement, PROVIDED that the Fixed Charges of Guarantor and
its Subsidiaries for any fiscal period shall be adjusted to include, on a pro
forma basis, the financial results of any new Subsidiary (or operating
assets) acquired by Guarantor and its Subsidiaries during that fiscal period
for a consideration in
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excess of $10,000,000, and to exclude, on a pro forma basis, the financial
results of any Subsidiary (or operating assets) sold, transferred or otherwise
disposed of by Guarantor and its Subsidiaries for a consideration in excess
of $10,000,000 during that fiscal period.
"GAMING BOARD" means, collectively, (a) the Nevada Gaming Commission, (b) the
Nevada State Gaming Control Board, and (c) any other Governmental Agency that
holds regulatory, licensing or permit authority over gambling, gaming,
lottery or casino activities conducted by Guarantor or any Subsidiary of
Guarantor within its jurisdiction.
"GUARANTY" means this Guaranty, and any extensions, modifications, renewals,
restatements, reaffirmations, supplements or amendments hereof.
"GUARANTY RELEASE CONDITIONS" has the meaning set forth in the Loan Agreement
(as in effect on the date hereof).
"IGT JOINT VENTURE" means the Nevada general partnership formed pursuant to
that certain Joint Venture Agreement, dated December 3, 1996, by and between
IGT, a Nevada corporation, and Anchor Games d/b/a Anchor Coin, a Nevada
corporation, as the same may be amended from time to time, pursuant to which
Guarantor and International Game Technology develop, integrate, and
distribute proprietary game concepts, primarily on wide area progressive
systems.
"LEVERAGE RATIO" means, as of the last day of each Anchor Fiscal Quarter, the
ratio of (a) Anchor Average Total Funded Debt as of that date, to (b) EBITDA
for the four Anchor Fiscal Quarter period ending on that date, PROVIDED that
to the extent that any pro forma adjustment to EBITDA has been made to
reflect the financial results of any new Subsidiary (or operating assets)
acquired or sold, transferred or otherwise disposed of by Guarantor and its
Subsidiaries during that fiscal period, then Anchor Average Total Funded Debt
shall be adjusted, on a pro forma basis, to include (or exclude) any portion
of Total Funded Debt which was incurred in connection with the acquisition of
the Subsidiary (or operating assets) so acquired, sold, transferred or
otherwise disposed of.
"MAINTENANCE CAPITAL EXPENDITURE" means a Capital Expenditure for the
maintenance, repair, restoration or refurbishment of tangible Property of
Guarantor or its Subsidiaries, but EXCLUDING any Capital Expenditure which
adds to or further improves any such Property. In any event, replacement of
lottery equipment in any jurisdiction if required or requested by any Gaming
Board in connection with the award by the Gaming Boards of such jurisdiction
of any extension, renewal or replacement of a lottery contract will not
constitute Maintenance Capital Expenditures.
"POWERHOUSE" means Powerhouse Technologies, Inc., a Delaware corporation.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of Anchor having, as of the
Closing Date or any subsequent date having assets in excess of $10,000,000.
"TOTAL FUNDED DEBT" means, as of any date of determination, the SUM (without
duplication) OF (a) the outstanding principal Indebtedness of Guarantor and
its Subsidiaries for borrowed money (including debt securities issued by
Guarantor or any of its Subsidiaries) on that date, PLUS (b) the aggregate
amount of all Capital Lease Obligations of Guarantor and its Subsidiaries on
that date, PLUS (c) all
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obligations in respect of letters of credit or other similar instruments for
which Guarantor or any of its Subsidiaries are account parties or are
otherwise obligated, PLUS (d) the aggregate amount of all Contingent
Obligations and other similar contingent obligations of Guarantor and its
Subsidiaries with respect to any of the foregoing, PLUS (e) any obligations
of Guarantor or any of its Subsidiaries to the extent that the same are
secured by a Lien on any of the assets of Guarantor or its Subsidiaries,
other than Liens permitted under the Anchor Loan Agreement as of the date
hereof.
"UNRELATED PERSON" means any Person OTHER THAN (i) an employee stock
ownership plan or other employee benefit plan covering the employees of
Guarantor and its Subsidiaries or (ii) an Affiliate of any Person or group of
related Persons which as of the date of this Agreement is the beneficial
owner of 25% or more (in the aggregate) of the outstanding common stock of
Guarantor.
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