Exhibit 4.28
GUARANTY
THIS GUARANTY (this "Guaranty"), made as of the 12th day of July, 2002, by
Gold Dust West Casino, Inc., a Nevada corporation ("Gold West"), and Diversified
Opportunities Group, Ltd., an Ohio limited liability company ("Diversified")
(Gold West and Diversified each individually a "Guarantor" and collectively the
"Guarantors") in favor of Foothill Capital Corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan and Security Agreement of even date
herewith (as amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement", all capitalized terms not defined herein being
defined in the Loan Agreement) among Xxxxxx Entertainment, Inc., a Delaware
corporation, ("Parent"), and each of Parent's Subsidiaries identified on the
signature pages thereof (such Subsidiaries, together with Parent, referred to
thereinafter each individually as a "Borrower", and individually and
collectively, jointly and severally, as the "Borrowers"), and the Lender, the
Lender has agreed to make loans and other financial accommodations to the
Borrowers from time to time pursuant to the terms and conditions thereof;
WHEREAS, it is a condition precedent to the closing of the Loan Agreement
that the Guarantors execute and deliver this Guaranty in favor of the Lender in
order to secure the prompt and complete payment, observance and performance of
all of the Obligations of the Borrowers (including, without limitation, any
interest, fees and other charges in respect of the Loan Agreement and the other
Loan Documents that would accrue but for an Insolvency Proceeding, with respect
to the Borrower, whether or not such claim is allowed in such Insolvency
Proceeding); and
WHEREAS, each Guarantor is a direct Subsidiary (as defined in the Loan
Agreement) of certain of the Borrowers, and, in the case Diversified, a holder
of ownership interest in one or more of the Borrowers, and each Guarantor has
determined that its execution, delivery and performance of this Guaranty
directly or indirectly benefits, and is within the corporate or other purposes
and in the best interests of, such Guarantor;
NOW, THEREFORE, for and in consideration of the recitals made above, and
other good and valuable consideration, the receipt, sufficiency and adequacy of
which are hereby acknowledged, each Guarantor hereby agrees that capitalized
terms used herein and not otherwise defined herein are used as defined in the
Loan Agreement, and further agrees as follows:
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1. Each Guarantor hereby unconditionally guarantees, subject to the
limitations set forth in Section 7 hereof, to the Lender the full and prompt
payment of the Obligations (including, without limitation, interest, fees and
other charges, in respect of the Loan Agreement and the other Loan Documents
that would accrue but for an Insolvency Proceeding, with respect to the
Borrower, whether or not such claim is allowed in such Insolvency Proceeding),
plus reasonable attorneys' fees and expenses if the obligations represented by
this Guaranty are collected by law, through an attorney-at-law, or under advice
therefrom. Each Guarantor expressly agrees to pay to Lender, without demand, the
entire outstanding Obligations if at any time the Obligations are declared to be
immediately due and payable.
2. Regardless of whether any proposed guarantor or any other Person shall
become in any other way responsible to the Lender for or in respect of the
Obligations or any part thereof, and regardless of whether or not any Person now
or hereafter responsible to the Lender for the Obligations or any part thereof,
whether under this Guaranty or otherwise, shall cease to be so liable, each
Guarantor hereby declares and agrees that this Guaranty shall be a joint and
several obligation, shall be a continuing guaranty and shall be operative and
binding until the Obligations shall have been indefeasibly and fully and finally
paid or otherwise satisfied to the satisfaction of the Lender and all
obligations of the Lender to extend any additional credit under the Loan
Agreement (the "Commitments") shall be terminated.
3. Upon this Guaranty being executed and coming into the hands of the
Lender, this Guaranty shall be deemed to be finally executed and delivered by
each Guarantor and shall not be subject to or affected by any promise or
condition affecting or limiting any Guarantor's liability, except as stated in
the Loan Agreement, and no statement, representation, agreement or promise on
the part of the Lender, the Borrower, any Guarantor, or any of them, or any
officer, employee or agent thereof, unless contained herein, forms any part of
this Guaranty or has induced the making thereof or shall be deemed in any way to
affect any Guarantor's liability hereunder. Each Guarantor absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
set-off, counterclaim or cross-claim of any nature whatsoever (other than
absence of a Default or Event of Default or payment in full in cash) with
respect to this Guaranty or the obligations of any Guarantor under this Guaranty
or the obligations of any other Person or party (including, without limitation,
the Borrower) relating to this Guaranty or the obligations of any Guarantor
under this Guaranty or otherwise with respect to the Obligations in any action
or proceeding brought by the Lender hereof to collect the Obligations or any
portion thereof, or to enforce the obligations of any Guarantor under this
Guaranty.
4. The Lender may from time to time, without exonerating or releasing any
Guarantor in any way under this Guaranty, (i) take such further or other
security or securities for the Obligations or any part thereof as it may deem
proper, or (ii) release, discharge, abandon or otherwise deal with or fail to
deal with any Guarantor of the
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Obligations or any collateral, security or securities therefor or any part
thereof now or hereafter held by the Lender or (iii) amend, modify, extend,
accelerate or waive in any manner any of the provisions, terms, or conditions of
the Loan Documents, all as Lender may consider expedient or appropriate in its
sole discretion. Without limiting the generality of the foregoing, or of Section
5 hereof, it is understood that the Lender may, without exonerating or releasing
any Guarantor, relinquish, or modify or abstain from perfecting or taking
advantage of any security for the Obligations and accept or make any
compositions or arrangements and, subject to the Intercreditor Agreement,
realize upon any security for the Obligations when, and in such manner, and with
or without notice, all as such Person may deem expedient.
5. Each Guarantor acknowledges and agrees that no change in the nature or
terms of the Obligations or any of the Loan Documents, or other agreements,
instruments or contracts evidencing, related to or attendant with the
Obligations (including any novation), shall discharge all or any part of the
liabilities and obligations of such Guarantor pursuant to this Guaranty; it
being the purpose and intent of each Guarantor and the Lender that the
covenants, agreements and all liabilities and obligations of each Guarantor
hereunder are absolute, unconditional and irrevocable under any and all
circumstances. Without limiting the generality of the foregoing, each Guarantor
agrees that until each and every one of the covenants and agreements of this
Guaranty is fully performed, and without possibility of recourse, whether by
operation of law or otherwise, each Guarantor's undertakings hereunder shall not
be released, in whole or in part, by any action or thing which might, but for
this paragraph of this Guaranty, be deemed a legal or equitable discharge of a
surety or guarantor, or by reason of any waiver or omission by the Lender or its
failure to proceed promptly or otherwise, or by reason of any action taken or
omitted by the Lender whether or not such action or failure to act varies or
increases the risk of, or affects the rights or remedies of, Guarantor or by
reason of any further dealings between the Borrower on the one hand and the
Lender, on the other hand or any other guarantor or surety, and each Guarantor
hereby expressly waives and surrenders any defense to its liability hereunder,
or any right of counterclaim or offset of any nature or description which it may
have or may exist based upon, and shall be deemed to have consented to, any of
the foregoing acts, omissions, things, agreements or waivers.
6. Subject to the Intercreditor Agreement, the Lender may, without demand
or notice of any kind upon or to any Guarantor, at any time or from time to time
when any amount shall be due and payable hereunder by any Guarantor, if the
Borrower shall not have timely paid any of the Obligations, set-off and
appropriate and apply to any portion of the Obligations hereby guaranteed, and
in such order of application as the Lender may from time to time elect in
accordance with the Loan Agreement, any deposits, property, balances, credit
accounts or moneys of any Guarantor in the possession of the Lender, or under
its respective control for any purpose. The Lender shall endeavor to give notice
of such set-off to each Guarantor, but shall not be liable for the failure to do
so. If and to the extent that any guarantor makes any payment to the
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Lender or any other Person pursuant to or in respect of this Guaranty, any
claim which any Guarantor may have against the Borrower by reason thereof shall
be subject and subordinate to the prior payment in full of the Obligations to
the satisfaction of the Lender.
7. The creation or existence from time to time of Obligations in excess of
the amount committed to or outstanding on the date of this Guaranty is hereby
authorized, without notice to any Guarantor, and shall in no way impair or
affect this Guaranty or the rights of the Lender herein. It is the intention of
each Guarantor and the Lender that each Guarantor's obligations hereunder shall
be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The
"Maximum Guaranteed Amount" with respect to any Guarantor, shall mean the
maximum amount which could be paid by each Guarantor without rendering this
Guaranty void or voidable as would otherwise be held or determined by a court of
competent jurisdiction in any Insolvency Proceeding involving any state or
Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws relating to the insolvency of debtors.
8. Upon the bankruptcy or winding up or other distribution of assets of the
Borrower or of any surety or guarantor (other than any Guarantor) for any
Obligations of the Borrower to the Lender, the rights of the Lender against any
Guarantor shall not be affected or impaired by the omission of the Lender to
prove its claim, or to prove the full claim, as appropriate, and the Lender may
prove such claims as it sees fit and may refrain from proving any claim and in
its discretion may value as it sees fit or refrain from valuing any security
held by it without in any way releasing, reducing or otherwise affecting the
liability to the Lender of any Guarantor.
9. Any amount received by the Lender from whatsoever source and applied
toward the payment of the Obligations shall be applied consistent with the
provisions regarding the Obligations in accordance with the terms of the Loan
Agreement and Intercreditor Agreement.
10.
(a) Each Guarantor hereby unconditionally and irrevocably waives: (i)
notice of acceptance hereof, (ii) notice of any loans or other financial
accommodations made or extended under the Loan Agreement, or the creation or
existence of any of the additional Obligations, (iii) notice of the amount of
the Obligations, subject, however, to such Guarantor's right to make inquiry of
the Lender to ascertain the amount of the Obligations at any reasonable time;
(iv) notice of any adverse change in the financial condition of the Borrower or
of any other fact that might increase any Guarantor's risk hereunder; (v) notice
of presentment for payment, demand, protest, dishonor and notice thereof as to
any instrument among the Loan Documents; (vi) notice of any Default or Event of
Default under the Loan Agreement; (vii) all diligence in collection or
protection of or realization upon the Obligations or any part thereof, any
obligation hereunder, or
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any security for any of the foregoing, (viii) all rights to enforce any remedy
which the Lender may have against the Borrower or any other guarantor; and (ix)
all other notices (except if such notice is specifically required to be given to
a Borrower or Guarantor under this Guaranty or any other Loan Document) and
demands to which any Guarantor might otherwise be entitled;
(b) To the fullest extent permitted by applicable law, each Guarantor
hereby waives the right by statute or otherwise to require the Lender to
institute suit against the Borrower or any other guarantor or to exhaust any
rights and remedies which the Lender has or may have against the Borrower or any
other guarantor. Each Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that there has been no
Default or Event of Default or the Obligations shall have been indefeasibly and
fully and finally paid and the Commitments have been terminated) of the Borrower
or any other guarantor or by reason of the cessation from any cause (other than
that the Obligations shall have been fully and finally paid and the Commitments
have been terminated) whatsoever of the liability of the Borrower or any other
guarantor in respect thereof;
(c) No Guarantor shall be released or discharged, either in whole or
in part, by the Lender's failure or delay to (i) perfect or continue the
perfection of any lien or security interest in any collateral which secures the
obligations of the Borrower, any Guarantor, or any other guarantor, or (ii)
protect the property covered by such lien or security interest;
(d) To the maximum extent permitted by law, each Guarantor hereby
waives: (i) any rights to assert against the Lender any defense (legal or
equitable), set-off, counterclaim, or claim which each such Guarantor may now or
at any time hereafter have against the Borrower or any other party liable to the
Lender on account of or with respect to the Obligations (other than the defense
that there has been no Default or Event of Default or that the Obligations shall
have been fully and finally paid and the Commitments have been terminated); (ii)
any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future sufficiency, validity, or
enforceability of the Obligations (other than the defense there has been no
Default or Event of Default or that the Obligations shall have been fully and
finally paid and the Commitments have been terminated); (iii) any defense
arising by reason of any claim or defense based upon an election of remedies by
the Lender; and (iv) any right to assert against the Lender any claim or defense
in relation to any requirement upon Lender to marshal any collateral for the
benefit of any Guarantor or any other person;
(e) To the maximum extent permitted by law, each Guarantor hereby
waives, until such time as the Obligations are fully and finally paid and the
Commitments are terminated, any right of subrogation any such Guarantor has or
may have as against the Borrower or any other guarantor with respect to the
Obligations. In addition, each Guarantor hereby waives, until such time as the
Obligations are fully and finally paid and
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the Commitments are terminated, any right to proceed against the Borrower or
any other guarantor, now or hereafter, for contribution, indemnity,
reimbursement, or any other suretyship rights and claims (irrespective of
whether direct or indirect, liquidated or contingent), with respect to the
Obligations. Each Guarantor also hereby waives any right to proceed or to seek
recourse against or with respect to any property or asset of the Borrower or any
other guarantor. Each Guarantor hereby agrees that, in light of the waivers
contained in this Section, no Guarantor shall be deemed to be a "creditor" (as
that term is defined in the Bankruptcy Code or otherwise) of the Borrower or any
other guarantor, whether for purposes of the application of Sections 547 or 550
of the United States Bankruptcy Code or otherwise;
(f) No Guarantor shall be released or discharged, either in whole or
in part, by Lender's failure or delay to (i) perfect or continue the perfection
of any lien or security interest in any collateral which secures the obligations
of the Borrower, any Guarantor, or any other guarantor, or (ii) protect the
property covered by such lien or security interest;
(g) If any of the Obligations at any time are secured by a mortgage or
deed of trust upon real property, the Lender may elect, in its sole discretion,
upon the occurrence and during the continuance of an Event of Default, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of any Guarantor hereunder. Understanding
that each Guarantor is hereby relinquishing a defense to the enforceability of
this Guaranty, each Guarantor hereby waives any right to assert against the
Lender any defense to the enforcement of this Guaranty, whether denominated
"estoppel" or otherwise, based on or arising from an election by the Lender
nonjudicially to foreclose any such mortgage or deed of trust. Each Guarantor
understands that the effect of the foregoing waiver may be that each Guarantor
may have liability, hereunder for amounts with respect to which each Guarantor
may be left without rights of subrogation, reimbursement, contribution, or
indemnity against the Borrower or any other guarantor or sureties; and
(h) To the maximum extent permitted by law, each Guarantor waives any
duty on the part of the Lender to disclose to such Guarantor any facts the
Lender may now or hereafter know about any Borrower, regardless of whether the
Lender has reason to believe that any such facts materially increase the risk
beyond that which each Guarantor intends to assume, or has reason to believe
that such facts are unknown to any Guarantor, or has a reasonable opportunity to
communicate such facts to any Guarantor, since each Guarantor acknowledges that
such Guarantor is fully responsible for being and keeping informed of the
financial condition of the Borrower and all of the circumstances bearing on the
risk on nonpayment of any Obligations hereby guaranteed.
(i) Notwithstanding any reference herein to the Intercreditor
Agreement or Lender's obligations thereunder, each Guarantor waives, to the
maximum extent
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permitted by law, any claims or rights based on or relating to the
Intercreditor Agreement or compliance therewith by Lender, it being understood
that in no event shall (A) any Guarantor have any right to demand or require
compliance by Lender with the Intercreditor Agreement or (B) any such
obligations under the Intercreditor Agreement, or Lender's failure to comply
therewith, be a defense to the performance by any Guarantor of, or otherwise
limit any rights of Lender with respect to, any obligation of any Guarantor
hereunder.
11. The Lender may, to the extent permitted under the Loan Agreement, sell,
assign or transfer all or any part of the Obligations, and in such event each
and every permitted assignee, transferee, or holder of all or any of the
Obligations, shall have the right to enforce this Guaranty, by suit or
otherwise, for the benefit of such permitted assignee, transferee or holder as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits.
12. This Guaranty is a continuing guaranty of the Obligations and all
liabilities to which it applies or may apply under the terms hereof and shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay by the Lender in the exercise of any right, power, privilege or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Lender of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy and no course of dealing between
any Guarantor and the Lender shall operate as a waiver thereof. The obligations
of each Guarantor hereunder shall remain in full force and effect without regard
to, and shall not be affected or impaired by the following, any of which may be
taken without the consent of, or notice to, any Guarantor, nor shall any of the
following give any Guarantor any recourse or right of action against the Lender:
(a) Any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to any
Guarantor or any Borrower, or any guarantor (which term shall include any other
party at any time directly or contingently liable for any of the Borrower'
obligations under the Loan Documents) or any affiliate of the Borrower, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the Guarantor shall have had
notice or knowledge of any of the foregoing;
(b) Any release or discharge of the Borrower from its liability under
any of the Loan Documents or any release or discharge of any endorser or
guarantor or of any other party at any time directly or contingently liable for
the Obligations;
(c) Any subordination, compromise, release (by operation of law or
otherwise), discharge, compound, collection or liquidation of any or all of the
Collateral or other property described in any of the Loan Documents or otherwise
in any manner, or any substitution with respect thereto; and
(d) Any acceptance of partial performance of the Obligations.
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No action by the Lender permitted hereunder shall in any way impair or
affect this Guaranty. For the purpose of this Guaranty, the Obligations shall
include, without limitation, all Obligations of the Borrower to the Lender,
notwithstanding any right or power of any third party, individually or in the
name of the Borrower or the Lender to assert any claim or defense as to the
invalidity or unenforceability of any such Secured Obligation, and no such claim
or defense shall impair or affect the obligations of the Guarantor hereunder.
13. This Guaranty shall be binding upon each Guarantor, its successors and
permitted assigns and inure to the benefit of the successors and assigns of the
Lender. No Guarantor may assign its rights or obligations under this Guaranty
without the prior written consent of the Lender. No alteration or waiver of this
Guaranty or of any of its terms, provisions or conditions shall be binding upon
the parties against whom enforcement is sought unless made in writing and signed
by an authorized officer of such party.
14. This is a guaranty of payment and not of collection. In the event the
Lender makes a demand upon any Guarantor under this Guaranty, such Guarantor
shall be held and bound to the Lender directly as debtor in respect of the
payment of the amounts hereby guaranteed. All costs and expenses, including,
without limitation, actual and reasonable attorneys' fees and expenses, incurred
by the Lender in obtaining performance of or collecting payments due under this
Guaranty to the extent permitted by the Loan Agreement, shall be deemed part of
the Obligations guaranteed hereby. Any notice or demand given by the Lender
shall be served upon any Guarantor in the fashion prescribed for notices in the
Loan Agreement at the address for such Guarantor given on Exhibit A attached
hereto and the notice so sent shall be deemed to be served as set forth in the
Loan Agreement.
15. Each Guarantor expressly represents and acknowledges that any financial
accommodations by the Lender to the Borrower, including, without limitation, the
extension of the Loans, are and will be of direct interest, benefit and
advantage to such Guarantor.
16. Each Guarantor hereby covenants and agrees to comply with the
provisions of the Loan Agreement that are applicable to Subsidiaries of the
Borrower as if such covenants and agreements were specifically set forth herein.
17. Each Guarantor hereby represents and warrants that:
(a) such Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
power and authority and the legal right to own and operate property, to lease
the property that such Guarantor operates and to conduct the business in which
such Guarantor is currently engaged;
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(b) such Guarantor has the power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guaranty and the
other Loan Documents to which it is a party, and has taken all necessary action
to authorize the execution, delivery and performance of this Guaranty and each
of the other Loan Documents to which it is a party;
(c) this Guaranty and each of the other Loan Documents to which it is
a party constitutes a legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms;
(d) the execution, delivery and performance of this Guaranty and the
other Loan Documents to which it is a party will not materially violate any
provision of any governmental requirement applicable to such Guarantor, the
Governing Documents of such Guarantor or any contractual obligation of such
Guarantor and will not result in or require the creation or imposition of any
Lien on the properties or revenues of such Guarantor pursuant to any
governmental requirement or contractual obligation of such Guarantor;
(e) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any other
Person (including, without limitation, any partner, stockholder or creditor of
such Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty or (except as provided
in such other Loan Documents) any other Loan Document to which it is a party
except such consent as has already been obtained;
(f) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of such
Guarantor, threatened by or against such Guarantor or against any of such
Guarantor's properties or revenues (1) with respect to this Guaranty or any
other Loan Document to which it is a party or any of the transactions
contemplated hereby or thereby, or (2) which could reasonably be expected to
cause a Material Adverse Change; and
(g) the representations contained in the Loan Agreement, insofar as
such representations apply to such Guarantor, are true and correct.
Each Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by each Guarantor on the date of
each borrowing by the Borrower under the Loan Agreement on and as of such date
of borrowing as though made hereunder on and as of such date.
18. Each Guarantor hereby irrevocably and unconditionally:
(a) submits itself in any legal action or proceeding relating to this
Guaranty and the other Loan Documents to which it is a party, or for recognition
and
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enforcement of any judgment in respect thereof, to the exclusive jurisdiction of
the state and federal courts located in the City of New York or the Southern
District of New York;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that nothing herein shall affect the right for Lender to
effect service or process in any manner permitted by law or shall limit the
right of Lender to xxx in any other jurisdiction.
19. Notwithstanding anything herein to the contrary, to the extent that any
Guarantor makes any payment on the Obligations which, within twelve (12) months
of the date of such payment, is subsequently invalidated, declared to be
fraudulent, avoidable or preferential, set aside or is required to be repaid to
a trustee, receiver, the estate of such Guarantor or any other party under any
bankruptcy act, state or Federal law, common law or equitable cause (such
payment being hereinafter referred to as a "Voided Payment"), then to the extent
of such Voided Payment that portion of the Obligations which had been previously
satisfied by such Voided Payment shall be revived and continue in full force and
effect as if such Voided Payment had never been made. In the event that a Voided
Payment is sought to be recovered from the Lender, an "Event of Default" under
the Loan Agreement shall be deemed to have occurred and to be continuing from
the date of such recovery from the Lender of such Voided Payment until the full
amount of such Voided Payment is fully and finally restored to the Lender and
until such time the provisions of this Guaranty, and the guaranty provided
herein, shall be in full force and effect.
20. EACH PARTY HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY AND
UNCONDITIONALLY, TO THE EXTENT PERMITTED BY LAW, AGREES AS FOLLOWS:
(a) THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION,
AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL
MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) GUARANTORS AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. GUARANTORS AND LENDER
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REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
21. Upon payment in full of all the Obligations, termination of the
obligation of the Lender to make loans and other financial obligations under the
Loan Agreement and satisfaction in full of all other Obligations, this Guaranty
shall terminate and the Lender shall take all action reasonably requested by any
Guarantor (at the expense of the Borrower or the Guarantor) to evidence the
termination of this Guaranty.
22. This Guaranty may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. Delivery of a
counterpart hereof by facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.
23. Each Guarantor hereby agrees that any notices to it may be made to the
Guarantor at its address set forth on Exhibit A hereto in the manner set forth
in the Loan Agreement.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first above written.
GUARANTORS:
GOLD DUST WEST CASINO, INC.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
Vice President
DIVERSIFIED OPPORTUNITIES GROUP, LTD.
an Ohio Limited Liability Company
By: XXXXXX ENTERTAINMENT, INC.,
a Delaware corporation,
Its Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx,
Chief Financial Officer
Acknowledged and agreed to:
FOOTHILL CAPITAL CORPORATION
a California corporation,
as Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title: S.V.P.
-----------------------
EXHIBIT A
TO
GUARANTY
Notice Addresses
If to Lender: FOOTHILL CAPITAL CORPORATION
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Structured Finance Group
Fax No. 000.000.0000
If to Guarantor: GOLD DUST WEST CASINO, INC.
DIVERSIFIED OPPORTUNITIES GROUP, LTD.
x/x Xxx Xxxxx Xxxxxx
000 Xxxx Xxxxxx
P.O. Box 21
Black Hawk, Colorado 80422
Attn: Xxxxxxx X. Xxxxx
Fax No. 000.000.0000
