GENERAL CONTINUING GUARANTY
THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of February 20,
2004, is executed and delivered by MONARCH CASINO & RESORT, INC., a Nevada
corporation (referred to as a "Guarantor"), in favor of the Beneficiaries,
referred to below, and in light of the following:
R_E_C_I_T_A_L_S:
WHEREAS:
A. Reference is made to that certain Credit Agreement, dated as of
February 20, 2004 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Golden Road Motor Inn, Inc., a
Nevada corporation (the "Borrower"), Guarantor, the Lenders therein named
(each, together with their respective successors and assigns, individually
being referred to as a "Lender" and collectively as the "Lenders"), Xxxxx Fargo
Bank, National Association, as the swingline lender (herein in such capacity,
together with its successors and assigns, the "Swingline Lender"), Xxxxx Fargo
Bank, National Association, as the issuer of letters of credit thereunder
(herein in such capacity, together with their successors and assigns, the "L/C
Issuer") and Xxxxx Fargo Bank, National Association, as administrative and
collateral agent for the Lenders, Swingline Lender and L/C Issuer (herein, in
such capacity, called the "Agent Bank" and, together with the Lenders,
Swingline Lender and L/C Issuer, collectively referred to as the "Banks").
B. For the purpose of this Guaranty, all capitalized terms not otherwise
specifically defined herein shall have the same meaning given them in Section
1.01 of the Credit Agreement as though fully restated verbatim.
C. In order to induce Beneficiaries to make Borrowings, loans, advances
and extend financial accommodations to Borrower pursuant to the Credit
Agreement, and in consideration thereof, and in consideration of any
Borrowings, Swingline Advances, loans, advances, or other financial
accommodations heretofore or hereafter extended by Beneficiaries to Borrower,
whether pursuant to the Credit Agreement or otherwise, Guarantor has agreed to
guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby
agrees, in favor of Beneficiaries, as follows:
1. Definitions and Construction.
a. Definitions. The following terms, as used in this Guaranty, shall
have the following meanings:
"Agent Bank" shall mean Xxxxx Fargo Bank, National Association, as the
administrative and collateral agent for each of the Lenders under the Credit
Agreement.
"Beneficiaries" shall mean a collective reference to Agent Bank and
Banks.
"Borrower" shall mean Golden Road Motor Inn, Inc., a Nevada corpora-
tion.
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"Credit Agreement" shall have the meaning set forth by Recital A of
this Guaranty.
"Guarantied Obligations" shall mean: (a) the due and punctual payment
of the principal of, and interest (including post petition interest and
including any and all interest which, but for the application of the provisions
of the Bankruptcy Code, would have accrued on such amounts) on, and premium, if
any, on the Revolving Credit Note and/or the Swingline Note; and (b) the due
and punctual payment of all present or future Indebtedness owing by Borrower.
"Guarantor" shall have the meaning set forth in the preamble to this
Guaranty.
"Guaranty" shall have the meaning set forth in the preamble to this
document.
"Indebtedness" shall mean any and all obligations, indebtedness, or
liabilities of any kind or character owed to Beneficiaries, or any of them, and
arising directly or indirectly out of or in connection with the Credit
Agreement, the Revolving Credit Note, the Swingline Note, L/C Exposure, the
Environmental Certificate, or any of the other Loan Documents, including all
such obligations, indebtedness, or liabilities, whether for principal, interest
(including post petition interest and including any and all interest which, but
for the application of the provisions of the Bankruptcy Code, would have
accrued on such amounts), premium, reimbursement obligations, fees, costs,
expenses (including attorneys' fees), or indemnity obligations, whether
heretofore, now, or hereafter made, incurred, or created, whether voluntarily
or involuntarily made, incurred, or created, whether secured or unsecured (and
if secured, regardless of the nature or extent of the security), whether
absolute or contingent, liquidated or unliquidated, or determined or
indeterminate, whether Borrower is liable individually or jointly with others,
and whether recovery is or hereafter becomes barred by any statute of
limitations or otherwise becomes unenforceable for any reason whatsoever,
including any act or failure to act by Beneficiaries.
"Lenders" shall have the meaning set forth by Recital A of this
Guaranty.
b. Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the part includes the whole, the term "including"
is not limiting, and the term "or" has the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and
other similar terms refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Any reference in this Guaranty to any of the
following documents includes any and all alterations, amendments, extensions,
modifications, renewals, or supplements thereto or thereof, as applicable: the
Loan Documents; the Credit Agreement; this Guaranty; the Environmental
Certificate; and the Revolving Credit Note.
2. Guarantied Obligations. Guarantor hereby irrevocably and
unconditionally guaranty to Beneficiaries, as and for its own debt, until final
and indefeasible payment thereof has been made, (a) the due and punctual
payment of the Guarantied Obligations, in each case when the same shall become
due and payable, whether at maturity, pursuant to a mandatory
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payment requirement, by acceleration, or otherwise; it being the intent of
Guarantor that the guaranty set forth herein shall be a guaranty of payment and
not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Borrower of all of the agreements,
conditions, covenants, and obligations of Borrower contained in the Credit
Agreement, the Revolving Credit Note, the Environmental Certificate and under
each of the other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that
(a) no such revocation shall be effective until written notice thereof has been
received and acknowledged by Beneficiaries, (b) no such revocation shall apply
to any Guarantied Obligations in existence on such date (including any
subsequent continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions thereof to the
extent permitted by law), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or created
pursuant to a legally binding commitment of Beneficiaries in existence on the
date of such revocation, (d) no payment by Guarantor, Borrower, or from any
other source, prior to the date of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrower or from any
source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which is not, therefore, guarantied hereunder.
4. Performance under this Guaranty. In the event that Borrower fails to
make any payment of any Guarantied Obligations on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligations referred to in clause (b) of Section 2 hereof in the manner
provided in the Credit Agreement, the Revolving Credit Note, the Swingline Note
or the other Loan Documents, as applicable, Guarantor immediately shall cause
such payment to be made or each of such obligations to be performed, kept,
observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions, including any change of law or any invalidity or
irregularity with respect to the issuance of the Notes. Guarantor agrees that
it is directly, jointly and severally with any other guarantor of the
Guarantied Obligations, liable to Beneficiaries, that the obligations of
Guarantor hereunder are independent of the obligations of Borrower or any other
guarantor, and that a separate action may be brought against Guarantor, whether
such action is brought against Borrower or any other guarantor whether Borrower
or any such other guarantor is joined in such action. Guarantor agrees that
its liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Beneficiaries of whatever remedies they may have
against Borrower or any other guarantor, or
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the enforcement of any lien or realization upon any security Beneficiaries may
at any time possess. Guarantor agrees that any release which may be given by
Beneficiaries to Borrower or any other guarantor shall not release Guarantor.
Guarantor consents and agrees that Beneficiaries shall be under no obligation
to marshal any property or assets of Borrower or any other guarantor in favor
of Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6. Waivers.
a. Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice
of any Borrowings, Swingline Advances, advances, loans or other financial
accommodations made or extended under the Credit Agreement, or the creation or
existence of any Guarantied Obligations; (iii) notice of the amount of the
Guarantied Obligations, subject, however, to Guarantor's right to make inquiry
of Agent Bank to ascertain the amount of the Guarantied Obligations at any
reasonable time; (iv) notice of any adverse change in the financial condition
of Borrower or of any other fact that might increase Guarantor's risk
hereunder; (v) notice of presentment for payment, demand, protest, and notice
thereof as to the Revolving Credit Note, the Swingline Note or any other
instrument; (vi) notice of any Default or Event of Default under the Credit
Agreement; and (vii) all other notices (except if such notice is specifically
required to be given to Guarantor under this Guaranty or any other Loan
Document to which Guarantor is party) and demands to which Guarantor might
otherwise be entitled.
b. To the fullest extent permitted by applicable law, Guarantor waives the
right by statute or otherwise to require Beneficiaries to institute suit
against Borrower or to exhaust any rights and remedies which Beneficiaries have
or may have against Borrower. In this regard, Guarantor agrees that it is
bound to the payment of each and all Guarantied Obligations, whether now
existing or hereafter accruing, as fully as if such Guarantied Obligations were
directly owing to Beneficiaries by Guarantor. Guarantor further waives any
defense arising by reason of any disability or other defense (other than the
defense that the Guarantied Obligations shall have been fully and finally
performed and indefeasibly paid) of Borrower or by reason of the cessation from
any cause whatsoever of the liability of Borrower in respect thereof.
c. To the maximum extent permitted by law, Guarantor hereby waives: (i)
any rights to assert against Beneficiaries any defense (legal or equitable),
set-off, counterclaim, or claim which Guarantor may now or at any time
hereafter have against Borrower or any other party liable to Beneficiaries;
(ii) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any defense arising by reason of any claim or defense
based upon an election of remedies by Beneficiaries; (iv) the benefit of any
statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of
any statute of limitations applicable to the Guarantied Obligations shall
similarly operate to defer or delay the operation of such statute of
limitations applicable to Guarantor's liability hereunder; and (v) any defense
or benefit that may be derived from or afforded by law which limits the
liability of or exonerates guaranties or sureties including, without
limitation, the benefits of Nevada Revised Statutes 40.430- 40.459, 40.475 and
40.485 as permitted by Nevada Revised Statutes 40.495.
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d. Guarantor agrees that if all or a portion of the Indebtedness or this
Guaranty is at any time secured by a deed of trust or mortgage covering
interests in real property, Beneficiaries, in their sole discretion, without
notice or demand and without affecting the liability of Guarantor under this
Guaranty, may foreclose (pursuant to the terms of the Credit Agreement or
otherwise) the deed of trust or mortgage and the interests in real property
secured thereby by non-judicial sale. Guarantor understands that the exercise
of Beneficiaries of certain rights and remedies contained in the Credit
Agreement and any such deed of trust or mortgage may affect or eliminate
Guarantor's right of subrogation against Borrower and that Guarantor may
therefore incur a partially or totally non-reimbursable liability hereunder.
Nevertheless, Guarantor hereby authorize and empower Beneficiaries to exercise,
in their sole discretion, any rights and remedies, or any combination thereof,
which may then be available, since it is the intent and purpose of Guarantor
that the obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances. Notwithstanding any foreclosure of the lien
of any deed of trust or security agreement with respect to any or all of any
real or personal property secured thereby, whether by the exercise of the power
of sale contained therein, by an action for judicial foreclosure or by an
acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound under
this Guaranty including its obligation to pay any deficiency following a non-
judicial foreclosure.
e. Guarantor also hereby waives any claim, right or remedy which Guarantor
may now have or hereafter acquire against the Borrower that arises hereunder
and/or from the performance by Guarantor hereunder including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim,
right or remedy of Beneficiaries against the Borrower or any security which
Beneficiaries now have or hereafter acquire, whether or not such claim, right
or remedy arises in equity, under contract, by statute, under common law or
otherwise.
7. Releases. Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Beneficiaries may, by action or inaction, compromise or settle,
extend the period of duration or the time for the payment, or discharge the
performance of, or may refuse to, or otherwise not enforce, or may, by action
or inaction, release all or any one or more parties to, any one or more of the
Credit Agreement, the Notes, or any of the other Loan Documents or may grant
other indulgences to Borrower in respect thereof, or may amend or modify in any
manner and at any time (or from time to time) any one or more of the Credit
Agreement, the Notes, or any of the other Loan Documents, or may, by action or
inaction, release or substitute any other guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or
inaction, any security for the Guarantied Obligations (including the
Collateral) or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No Election. Beneficiaries shall have the right to seek recourse
against Guarantor to the fullest extent provided for herein and no election by
Beneficiaries to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of Beneficiaries' right
to proceed in any other form of action or proceeding or against other parties
unless Beneficiaries have expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action
or proceeding by Beneficiaries under any document or instrument evidencing
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the Guarantied Obligations shall serve to diminish the liability of Guarantor
under this Guaranty except to the extent that Beneficiaries finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Beneficiaries are no longer subject to any right on the part of any
person whomsoever, including Borrower, Borrower as a debtor in possession, or
any trustee (whether appointed under the Bankruptcy Code or otherwise) of
Borrower's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to Beneficiaries is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and Guarantor
shall be liable for the full amount Beneficiaries are required to repay plus
any and all costs and expenses (including attorneys' fees) paid by
Beneficiaries in connection therewith.
10. Financial Condition of Borrower and Guarantor.
a. Guarantor represents and warrants to Beneficiaries that it is currently
informed of the financial condition of Borrower and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of
nonpayment of the Guarantied Obligations. Guarantor further represents and
warrant to Beneficiaries that it has read and understands the terms and
conditions of the Credit Agreement, the Notes and the other Loan Documents.
Guarantor hereby covenants that it will continue to keep itself informed of
Borrower's financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guarantied Obligations.
b. Guarantor shall deliver to Agent Bank within the time periods therein
described, the financial information and other reporting requirements set forth
in Section 5.08 of the Credit Agreement which are applicable to them.
11. Subordination. Any indebtedness of Borrower now or hereafter held by
Guarantor is hereby subordinated to the indebtedness of Borrower to
Beneficiaries; and from and after the occurrence of a Default or an Event of
Default under the Credit Agreement and for so long as such a Default or Event
of Default shall continue such indebtedness of Borrower to Guarantor shall be
collected, enforced and received by Guarantor as trustee for Borrower and paid
over to Beneficiaries on account of the indebtedness of Borrower to
Beneficiaries but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
12. Payments; Application. All payments to be made hereunder by Guarantor
shall be made in lawful money of the United States of America at the time of
payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments
made by Guarantor hereunder shall be applied as follows: first, to all
reasonable costs and expenses (including attorneys' fees) incurred by
Beneficiaries in enforcing this Guaranty or in collecting the Guarantied
Obligations; second, to all accrued and unpaid interest, premium, if any, and
fees owing to Beneficiaries constituting Guarantied Obligations; and third, to
the balance of the Guarantied Obligations.
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13. Costs and Expenses. Guarantor agrees to pay Beneficiaries' reasonable
out-of-pocket costs and expenses, including, but not limited to, legal fees and
disbursements, incurred in any effort (which shall include those incurred in
investigations of and advising on matters relating to the Beneficiaries' rights
and remedies) to collect or enforce any of sums owing under this Guaranty
whether or not any lawsuit is filed. Until paid to the Beneficiaries' such
sums will bear interest at the Default Rate set forth in the Credit Agreement.
14. Costs to Prevailing Party. If any action or proceeding is brought by
any party against any other party under this Guaranty, the prevailing party
shall be entitled to recover such costs and attorney's fees as the court in
such action or proceeding may adjudge reasonable.
15. Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in
writing and may be personally served, sent by telefacsimile, telexed, or sent
by courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a telefacsimile
or telex or five (5) Banking Business Days after deposit in the United States
mail (registered or certified, with postage prepaid and properly addressed).
For the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 15) shall be as set
forth below, or, as to each party, at such other address as may be designated
by such party in a written notice to all of the other parties:
If to Guarantor: Monarch Casino & Resort, Inc.
0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxx, XX 00000
Attn: Xxx Xxxxxx, Secretary
If to Beneficiaries
c/o Agent Bank: Xxxxx Fargo Bank, National Association
Commercial Banking Division
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx, V.P.
With a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Xxxxxx, LLC
000 Xxxxxxx Xxx, Xxxxx X
Xxxx, XX 00000
16. Cumulative Remedies. No remedy under this Guaranty, under the Credit
Agreement, the Revolving Credit Note, or any Loan Document is intended to be
exclusive of any other remedy, but each and every remedy shall be cumulative
and in addition to any and every other remedy given under this Guaranty, under
the Credit Agreement, the Revolving Credit Note, or any other Loan Document,
and those provided by law. No delay or omission by Beneficiaries to exercise
any right under this Guaranty shall impair any such right nor be construed to
be a waiver thereof. No failure on the part of Beneficiaries to exercise, and
no delay in exercising, any right under this Guaranty shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under this
Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
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17. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
18. Entire Agreement; Amendments. This Guaranty, together with the Credit
Agreement, constitutes the entire agreement between Guarantor and Beneficiaries
pertaining to the subject matter contained herein. This Guaranty may not be
altered, amended, or modified, nor may any provisions hereof be waived or
noncompliance therewith consented to, except by means of a writing executed by
Guarantor and Beneficiaries. Any such alteration, amendment, modification,
waiver, or consent shall be effective only to the extent specified therein and
for the specific purpose for which given. No course of dealing and no delay or
waiver of any right or default under this Guaranty shall be deemed a waiver of
any other, similar or dissimilar, right or default or otherwise prejudice the
rights and remedies hereunder.
19. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its respective successors and assigns and shall inure to the benefit of the
successors and assigns of Beneficiaries; provided, however, Guarantor shall not
assign this Guaranty or delegate any of its duties hereunder without
Beneficiaries' prior written consent and any unconsented to assignment shall be
absolutely void. In the event of any assignment or other transfer of rights by
Beneficiaries, the rights and benefits herein conferred upon Beneficiaries
shall automatically extend to and be vested in such assignee or other
transferee.
20. Choice of Law and Venue; Service of Process. THE VALIDITY OF THIS
GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF
GUARANTOR AND BENEFICIARIES, SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEVADA, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, GUARANTOR ACCEPTS, FOR ITSELF AND IN
CONNECTION WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY FROM WHICH NO
APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
21. Arbitration.
a. Upon the request of any party, whether made before or after the
institution of any legal proceeding, any action, dispute, claim or controversy
of any kind (e.g., whether in contract or in tort, statutory or common law,
legal or equitable) ("Dispute") now existing or hereafter arising between the
parties in any way arising out of, pertaining to or in connection with the
Credit Agreement, Loan Documents or any related agreements, documents, or
instruments (collectively the "Documents"), may, by summary proceedings (e.g.,
a plea in abatement or motion to stay further proceedings), bring an action in
court to compel arbitration of any Dispute.
b. All Disputes between the parties shall be resolved by binding
arbitration governed by the Commercial Arbitration Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction.
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c. No provision of, nor the exercise of any rights under this arbitration
clause shall limit the rights of any party, and the parties shall have the
right during any Dispute, to seek, use and employ ancillary or preliminary
remedies, judicial or otherwise, for the purposes of realizing upon,
preserving, protecting or foreclosing upon any property, real or personal,
which is involved in a Dispute, or which is subject to, or described in, the
Documents, including, without limitation, rights and remedies relating to: (i)
foreclosing against any real or personal property collateral or other security
by the exercise of a power of sale under the Security Documentation or other
security agreement or instrument, or applicable law, (ii) exercising self-help
remedies (including setoff rights) or (iii) obtaining provisional or ancillary
remedies such as injunctive relief, sequestration, attachment, garnishment or
the appointment of a receiver from a court having jurisdiction before, during
or after the pendency of any arbitration. The institution and maintenance of
an action for judicial relief or pursuit of provisional or ancillary remedies
or exercise of self-help remedies shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the Dispute to arbitration nor
render inapplicable the compulsory arbitration provision hereof.
22. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR AND EACH OF THE BENEFICIARIES EACH MUTUALLY HEREBY EXPRESSLY WAIVE
ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS GUARANTY, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND
BENEFICIARIES WITH RESPECT TO THIS GUARANTY, OR THE TRANSACTIONS RELATED
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR AND EACH OF THE BENEFICIARIES EACH
MUTUALLY HEREBY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT THE
DEFENDING PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT
OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING PARTY
TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty as of the day and year first written above.
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By:
Xxx Xxxxxx,
Secretary
