Exhibit 10.2
GUARANTY TO FORTRESS CREDIT CORP.
THIS GUARANTY, made as of this 12th f November, 2004, by ACE GAMING,
LLC, a New Jersey limited liability company (the "Guarantor"), with a principal
address of x/x Xxx Xxxxx Xxxxx & Xxxxxx, Xxxxxxx Xxxxxx & Xxxxxxxx Xxxx,
Xxxxxxxx Xxxx, XX 00000, to and for the benefit of FORTRESS CREDIT CORP., a
Delaware corporation (hereinafter, the "Lender").
BACKGROUND
A. Guarantor is a wholly owned subsidiary of and is related to Atlantic Coast
Entertainment Holdings, Inc., a Delaware corporation (the "Borrower"), and will
directly benefit from the Loan described below.
B. Borrower, Guarantor and Lender have entered into the Loan and Security
Agreement (the "Loan Agreement"), dated as of the date hereof, and other Loan
Documents to evidence and set forth the terms and conditions of the Loan, that
Lender is making available to Borrower, for up to the sum of TEN MILLION
($10,000,000.00) DOLLARS in accordance with a revolving credit facility which
shall be used by Guarantor as working capital in the operation of The Sands
Hotel and Casino ("The Sands"), located at South Indiana Avenue and Brighton
Park in Atlantic City New Jersey. Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Loan Agreement.
C. Borrower wholly owns all legal and beneficial right, title, and interest in
the equity of Guarantor and Guarantor is the casino licensee, owner and operator
of The Sands.
D. Lender has agreed to grant the Loan to Borrower upon the condition that
Guarantor guaranty as surety the payment and performance by the Borrower of all
of the obligations under the Note and the Loan Documents executed and delivered
by Borrower in connection with the Loan, and the payment of all amounts due
thereunder.
E. Guarantor acknowledges (i) that the actions of Lender pursuant to the
foregoing are for Guarantor's benefit, and that Guarantor will share in the
benefits of the Loan realized by the Borrower; (ii) that the granting of the
Loan therefore constitutes a direct, material benefit to Guarantor; and (iii)
that this Guaranty constitutes a material inducement to Lender to grant the
Loan, without which the Loan would not have been made.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, and to
induce Lender to grant the Loan, and with the foregoing Background incorporated
herein by this reference, Guarantor, intending to be legally bound hereby,
covenants and agrees as follows:
TERMS
1. The Guarantor unconditionally, absolutely, jointly, severally, and
in the alternative with Borrower and with all other guarantors, guaranties the
punctual payment when due of any and all existing and future indebtedness and
liability created, arising under, or evidenced by the Note and the Loan
Documents given by the Borrower to Lender, including but not limited to all
renewals, extensions, and modifications thereof, and the due and punctual
payment of the principal of the Note, the interest thereon, and any other
monies, costs, fees and expenses due or which may become due under the Note and
the Loan Documents, and the due and punctual performance and observance by the
Borrower of all of the other terms, covenants, and conditions of the Note and
the Loan Documents, whether according to the present terms thereof, at any
earlier or accelerated date or dates as provided therein, or pursuant to any
extension of time or to any change or changes in the terms, covenants, and
conditions thereof now or at the time hereafter made or granted. This Guaranty
shall be deemed a continuing guaranty of the Loan from Lender pursuant to the
Note and the Loan Documents. For such purposes, the terms and provisions of the
Note and the Loan Documents are incorporated herein by this reference as if set
forth in full.
2. Except as set forth in the Loan Agreement, Guarantor waives
diligence, presentment, protest, notice of dishonor, demand for payment,
extension of time for payment, notice of non-payment at maturity, and
indulgences and notices of every kind, and consents to any and all forbearances
and extensions of time of payment of the Note and other Loan Documents, and to
any and all changes in the terms, covenants, and conditions thereof, it being
the intention that the Guarantor shall remain liable as principal until the full
amount of all sums payable under the Note and other Loan Documents shall have
been fully paid and until the terms, covenants, and conditions thereof have been
performed and observed by the Borrower and notwithstanding any act, omission, or
thing which might otherwise operate as a legal or equitable discharge of the
Borrower.
3. The obligations of the Guarantor shall not be impaired, modified,
changed, released, or limited in any manner whatsoever by any impairment,
modification, change, release, or limitation of the liability of the Borrower,
or any other guarantors, except as may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, conservatorship,
rehabilitation, liquidation, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity (regardless of whether such principles are considered in a
proceeding in equity or at law).
4. Upon the mutual written agreement of Lender and Borrower, Lender
shall have full right, in its sole discretion and without any notice or consent
from any Guarantor, from time to time and at any time, and without affecting,
impairing, or discharging, in whole or in part, the liability of any Guarantor
hereunder: (a) to make any change, amendment, or modification whatsoever of any
of the terms and conditions of the Note, the Loan Documents; (b) to extend, in
whole or in part, by renewal or otherwise, and on one or any number of
occasions, the time for the payment of any principal or interest or any other
amount pursuant to the Note, Loan Documents or for the performance of any term
or condition thereof; (c) to settle, compromise, release, substitute, surrender,
modify, or impair, to enforce and exercise, or to fail or refuse to enforce or
exercise, any claims, rights, or remedies, of any kind or nature, which Lender
may at any time have against the Borrower whether under the Note, the Loan
Documents, or otherwise.
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5. The obligations of Guarantor hereunder are those of a primary
obligor, as surety, and are independent of the obligations of the Borrower, any
other guarantors, or its or their successors and assigns, and are irrevocable. A
separate action or actions may be brought and prosecuted against the Guarantor
regardless of whether any action is brought against the Borrower or any other
guarantors, or whether the Borrower or any other guarantors are joined in any
such action or actions.
6. In the event that the Lender has declared an Event of Default and
the Lender retains or engages an attorney or attorneys to enforce this Guaranty,
Guarantor will reimburse Lender for all expenses incurred, including reasonable
attorneys' fees and disbursements, and interest thereon at the Default Rate.
7. Guarantor irrevocably submits to the jurisdiction of the Superior
Court of New Jersey, Atlantic County, over any action or proceeding arising out
of or relating to this Guaranty; all claims in respect of such action or
proceeding shall be heard and determined in such court, to the extent permitted
by law. Guarantor further irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to the Guarantor at the address set forth in the introductory paragraph
of this Guaranty, to the attention of Xxxxxxxx Xxxx, Esq. Nothing in this
paragraph shall affect Lender's right to serve legal process in any other manner
permitted by law.
8. Guarantor shall have no right of subrogation whatsoever with respect
to any of the indebtedness guarantied hereby or to any of the collateral
securing any such indebtedness unless and until such indebtedness has been paid
in full.
9. This Guaranty shall inure to the benefit of and may be enforced by
Lender and its successors and assigns, and any subsequent holder of the Note,
the Loan Documents, and shall be binding upon and enforceable against the
Guarantor and its assigns.
10. This Guaranty shall be governed by, and construed under and in
accordance with, the substantive laws of the State of New Jersey, without giving
effect to choice of law rules thereof.
11. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN
ANY LITIGATION WITH RESPECT TO ANY ASPECT OF THE LOAN DOCUMENTS OR THIS
GUARANTY. THE GUARANTOR ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT
WITH INDEPENDENT COUNSEL WITH RESPECT TO THIS WAIVER.
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[Signature Page to follow]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written.
ACE GAMING, LLC., a New Jersey
limited liability company
By:/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: President
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