Exhibit 10.1
GUARANTY AND LOAN PURCHASE AGREEMENT
GUARANTY AND LOAN PURCHASE AGREEMENT, dated as of May 1, 2001
(as amended, restated, modified and/or supplemented from time to time, this
"Guaranty"), made by each of the undersigned guarantors (each a "Guarantor" and,
together with any entity that becomes a guarantor hereunder pursuant to Section
13(c) or (d) hereof, the "Guarantors"). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined. In addition, capitalized terms
used in Sections 12, 13, and 14 of this Guaranty shall, except to the extent
that such terms are otherwise defined herein or in the Credit Agreement, have
the respective meanings set forth in the Xxxxxx'x Loan Agreement (as defined in
Section 14 hereof).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Tribal Casino Gaming Enterprise (the "Borrower"),
various lenders from time to time party thereto (the "Banks"), and Bankers Trust
Company, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of May 1, 2001, providing for the making of Loans to the Borrower as
contemplated therein (as used herein, the term "Credit Agreement" means the
Credit Agreement described above in this paragraph, as the same may be amended,
restated, modified, extended, renewed, replaced or supplemented from time to
time, and including any agreement extending the maturity of, or restructuring
all or any portion of, the Indebtedness under such agreement or any successor
agreement) (the Banks and the Administrative Agent are herein called the "Bank
Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements with one or more
Banks or any affiliate thereof (each such Bank or affiliate, even if the
respective Bank subsequently ceases to be a Bank under the Credit Agreement for
any reason, together with such Bank's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors," and together with the Bank Creditors,
the "Creditors");
WHEREAS, the Borrower is an instrumentality of, and is
controlled by, the Eastern Band of Cherokee Indians, a federally recognized
Indian tribe (the "Tribe");
WHEREAS, Xxxxxx'x NC Casino Company (the "Manager"), the
Borrower (as successor-in-interest to the Tribe) have entered into a Management
Agreement dated as of June 19, 1996 (as amended, restated, modified and/or
supplemented from time to time, the "Management Agreement"), pursuant to which
the Manager will manage the Casino and the Hotel;
WHEREAS, the Manager is a wholly-owned Subsidiary of HET and
HOC;
Page 2
WHEREAS, it is a condition to the making of the Loans to the
Borrower under the Credit Agreement that each Guarantor shall have executed and
delivered to the Administrative Agent this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of the Loans by the Borrower under the Credit Agreement and the
entering into by the Borrower of Interest Rate Protection Agreements and,
accordingly, desires to execute this Guaranty in order to satisfy the conditions
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Creditors and hereby covenants and agrees with each
Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably and
unconditionally guarantees: (i) to the Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Notes issued by, and the Loans made
to, the Borrower under the Credit Agreement and (y) all other obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness owing by
the Borrower to the Bank Creditors under the Credit Agreement and each other
Credit Document to which the Borrower is a party (including, without limitation,
indemnities, Fees and interest thereon (including, in each case in respect of
the foregoing obligations, any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the Credit Agreement, whether or not such interest is an allowed claim in
any such proceeding)), whether now existing or hereafter incurred under, arising
out of or in connection with the Credit Agreement and each such other Credit
Document and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in the Credit Documents (all such
principal, interest, liabilities, obligations and indebtedness being herein
collectively called the "Credit Document Obligations"); and (ii) to the Other
Creditors the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of all obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness (including, in each case in respect of
the foregoing obligations, any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the respective Interest Rate Protection Agreements, whether or not such
interest is an allowed claim in any such proceeding) owing by the Borrower under
each Interest Rate Protection Agreement, whether now in existence or hereafter
arising, and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in such Interest Rate Protection
Agreements (all such obligations and liabilities being herein collectively
called the "Other Obligations" and, together with the Credit Document
Obligations, are herein collectively called the "Guaranteed Obligations"). Each
Guarantor understands, agrees and confirms that the Creditors may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, the Borrower, against
any security for the Guaranteed Obligations, or under any other guaranty
covering all or a portion of the Guaranteed Obligations.
Page 3
2. Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Creditors whether or not due or payable by the
Borrower upon the occurrence in respect of the Borrower of any of the events
specified in Section 9.05 of the Credit Agreement, and unconditionally and
irrevocably, jointly and severally, promises to pay such Guaranteed Obligations
to the Creditors, or order, on demand, in lawful money of the United States.
This Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
of the Borrower whether executed by such Guarantor, any other Guarantor, any
other guarantor of the Guaranteed Obligations or by any other party, and the
liability of each Guarantor hereunder shall not be affected or impaired by any
circumstance or occurrence whatsoever, including, without limitation: (a) any
direction as to application of payment by the Borrower or by any other party,
(b) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the Guaranteed Obligations, (c) any
payment on or in reduction of any such other guaranty or undertaking, (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, (e) any payment made to any Creditor on the indebtedness which any
Creditor repays the Borrower or any trustee or similar person pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding, (f)
any action or inaction by the Creditors as contemplated in Section 6 hereof, or
(g) any invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor of the Guaranteed
Obligations or the Borrower, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not any action is brought against
any other Guarantor, any such other guarantor or the Borrower and whether or not
any other Guarantor, any such other guarantor of the Borrower or the Borrower be
joined in any such action or actions. Each Guarantor expressly acknowledges and
agrees that any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Creditor against, and any other notice
to, any party liable thereon (including such Guarantor, any other Guarantor or
any other guarantor of the Guaranteed Obligations or the Borrower).
6. Any Creditor may at any time and from time to time without
the consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, without impairing or releasing the obligations of such Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
Page 4
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) take and hold security for the payment of all or any part
of the Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Creditors
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements, the
Credit Documents or any of the instruments or agreements referred to
therein, or otherwise amend, modify or supplement any of the Interest
Rate Protection Agreements, the Credit Documents or any of such other
instruments or agreements; and/or
(h) act or fail to act in any manner which may deprive such
Guarantor of its right to subrogation against the Borrower to recover
full indemnity for any payments made pursuant to this Guaranty.
7. No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations or of any security therefor shall (nor
shall the Guarantors' failure to acknowledge any Notice of Borrowing) affect,
impair or be a defense to this Guaranty, and this Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full in cash of the
Guaranteed Obligations.
Page 5
8. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which any Creditor would otherwise have. No notice to or
demand on any Guarantor in any case shall entitle such Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Creditor to any other or further action in any
circumstances without notice or demand. It is not necessary for any Creditor to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
9. (a) Without xxxxxx the provisions of clause (b) of this
Section 9, any indebtedness or other liabilities of the Borrower now or
hereafter held by or owing to any Guarantor (whether owing under the Management
Agreement or otherwise (including all such obligations that may be owing under
Sections 8.04(vii) and (viii) of the Credit Agreement) and whether secured or
unsecured) is hereby subordinated to the indebtedness and other liabilities of
the Borrower to the Creditors, and such indebtedness and other liabilities of
the Borrower to any Guarantor, if the Administrative Agent, after an Event of
Default has occurred, so requests, shall be collected, enforced and received by
such Guarantor as trustee for the Creditors and be paid over to the Creditors on
account of the indebtedness and other liabilities of the Borrower to the
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Prior to the
transfer by any Guarantor of any note or negotiable instrument evidencing any
indebtedness or other liabilities of the Borrower to such Guarantor, such
Guarantor shall xxxx such note or negotiable instrument with a legend that the
same is subject to this subordination. Without limiting the generality of the
foregoing, each Guarantor hereby agrees with the Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
(b) Each Guarantor hereby acknowledges, covenants and agrees,
for itself and its successors and assigns, (i) that the payment of Management
Fees is limited as and to the extent provided in Section 8.03 of the Credit
Agreement, (ii) that all obligations and liabilities (including the payment of
Management Fees) of the Borrower and the Tribe under the Management Agreement
and all other obligations and liabilities of the Borrower to any Guarantor
(collectively, the "Junior Obligations") shall (in each case) be subordinated
and junior in right of payment to the prior payment in full in cash of all
obligations, indebtedness and liabilities of the Borrower and the Tribe in
respect of the Guaranteed Obligations (all such obligations, indebtedness and
liabilities shall be referred to as the "Senior Obligations"), and (iii) that
this subordination is for the benefit of, and shall be enforceable directly by,
the Creditors and that each such Creditor shall be deemed to have acquired such
Senior Obligations in reliance upon the covenants and provisions contained in
this Section 9. Upon any payment or distribution
Page 6
of assets of the Borrower or the Tribe of any kind or character, whether in
cash, property or securities, to creditors upon any total or partial
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors or marshaling of assets of the Borrower or the Tribe or in any
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to the Borrower or the Tribe or its respective property, whether
voluntary or involuntary, all Senior Obligations shall first be paid in full in
cash before any payment or distribution of any kind or character is made on
account of any Junior Obligations. In addition, to the extent that any payment
by the Borrower or the Tribe under the Management Agreement or on account of any
other Junior Obligation is prohibited at such time pursuant to the terms of the
Credit Agreement, neither the Borrower nor the Tribe shall be required to make
such payment (and may defer same) until such time as such payment is permitted
to be made pursuant to the terms of the Credit Agreement. In the event that,
notwithstanding the foregoing, any payment shall be received by any Guarantor
(or any affiliate thereof) at a time when such payment is prohibited by this
Section 9 or the Credit Agreement, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the Creditors (pro rata to
such Creditors on the basis of the respective amount of Senior Obligations held
by such holders), as their respective interests may appear.
10. (a) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the Creditors
to: (i) proceed against the Borrower, any other Guarantor, any other guarantor
of the Guaranteed Obligations or any other party; (ii) proceed against or
exhaust any security held from the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Creditors' power whatsoever. Each Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any other party
other than payment in full of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of the
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
the Borrower other than payment in full of the Guaranteed Obligations. The
Creditors may, at their election, foreclose on any security held by the
Administrative Agent or the other Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy the Creditors may have against the Borrower or any
other party, or any security, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid in full. Each Guarantor waives any defense arising
out of any such election by the Creditors, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of such Guarantor against the Borrower or any other party or any
security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other
Page 7
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and agrees that the Creditors shall have no duty to advise any
Guarantor of information known to them regarding such circumstances or risks.
11. The Creditors agree that this Guaranty may be enforced
only by the action of the Administrative Agent acting upon the instructions of
(x) the Required Banks (or, to the extent required by Section 12.12 of the
Credit Agreement, each Bank) at all times prior to the time at which all Credit
Document Obligations have been paid in full, or (y) the holders of at least a
majority of the outstanding Other Obligations at all times after the time at
which all Credit Document Obligations have been paid in full, and that no other
Creditors shall have any right individually to seek to enforce or to enforce
this Guaranty, it being understood and agreed that such rights and remedies may
be exercised by the Administrative Agent or the holders of at least a majority
of the outstanding Other Obligations, as the case may be, for the benefit of the
Creditors upon the terms of this Guaranty.
12. In order to induce the Banks to enter into the Credit
Agreement and to make the Loans as provided therein, and to induce the Other
Creditors to enter into the Interest Rate Protection Agreements, each Guarantor
makes the following representations, warranties and agreements to and for the
benefit of the Creditors, all of which shall survive the execution and delivery
of this Guaranty and the Notes and the making of the Loans, with the occurrence
of the Effective Date and the incurrence of each Loan on or after the Effective
Date being deemed to constitute a representation and warranty that the matters
specified in this Section 12 are true and correct on and as of the Effective
Date and on the date of the Borrowing of each such Loan (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects
only as of such specified date):
(a) EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Each Guarantor is duly formed, validly existing and in good standing
under the laws of its jurisdiction of formation. Each Guarantor is duly
qualified or registered to transact business and is in good standing in
each other jurisdiction in which the conduct of its business or the
ownership or operation of its Properties makes such qualification or
registration necessary, except where the failure so to qualify or
register and be in good standing would not constitute a Material
Adverse Effect. Each of the Guarantors has all requisite corporate or
limited liability company power (as applicable) and authority to
conduct its respective business, to own and operate its respective
Properties and to execute and deliver each Credit Document to which it
is a party and to perform its obligations under each Credit Document to
which it is a party. Each Guarantor is in compliance with all Laws and
other legal requirements applicable to its respective business, has
obtained all authorizations, consents, approvals, orders, licenses and
permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing
from, any Governmental Agency that are necessary for the transaction of
its business, except where the failure so to comply, file, register,
qualify or obtain exemptions does not constitute a Material Adverse
Effect.
Page 8
(b) AUTHORITY, COMPLIANCE WITH OTHER AGREEMENTS AND
INSTRUMENTS AND GOVERNMENT REGULATIONS. The execution, delivery and
performance by each Guarantor of each of the Credit Documents to which
it is a party have been duly authorized by all necessary corporate or
limited liability company action, as applicable, and do not and will
not:
(i) require any consent or approval not heretofore
obtained of any member, director, stockholder, security holder
or creditor of such Guarantor;
(ii) violate or conflict with any provision of such
Guarantor's charter, articles of incorporation, bylaws or
certificate of formation or operating agreement, as
applicable;
(iii) result in or require the creation or imposition of
any Lien or Right of Others upon or with respect to any
Property now owned or leased or hereafter acquired by such
Guarantor;
(iv) violate any Requirement of Law applicable to such
Guarantor; or
(v) result in a breach by such Guarantor of, or
constitute a default by such Guarantor under, or cause or
permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual
Obligation to which such Guarantor is a party or by which such
Guarantor or any of its Property is bound or affected;
and no Guarantor nor any Significant Subsidiary thereof is in violation
of, or default under, any Requirement of Law or Contractual Obligation,
or any indenture, loan or credit agreement described in Section
12(b)(v) of this Guaranty, in any respect that constitutes a Material
Adverse Effect.
(c) NO GOVERNMENTAL APPROVALS REQUIRED. Except as previously
obtained or made, no authorization, consent, approval, order, license
or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by the
Guarantors of the Credit Documents to which any of them is a party.
(d) SIGNIFICANT SUBSIDIARIES. (i) Each Significant Subsidiary
of HET is duly formed, validly existing and in good standing under the
Laws of its jurisdiction of organization, is duly qualified to do
business as a foreign organization and is in good standing as such in
each jurisdiction in which the conduct of its business or the ownership
or leasing of its properties makes such qualification necessary (except
where the failure to be so duly qualified and in good standing does not
constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(ii) Each Significant Subsidiary of HET is in compliance with
all Laws and other requirements applicable to its business and has
obtained all authorizations, consents,
Page 9
approvals, orders, licenses, and permits from, and each such
Significant Subsidiary has accomplished all filings, registrations,
and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the
transaction of its business, except where the failure to be in such
compliance, obtain such authorizations, consents, approvals, orders,
licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not constitute a
Material Adverse Effect.
(e) FINANCIAL STATEMENTS. The Guarantors have furnished to the
Banks the audited consolidated financial statements of HET and its
Subsidiaries for the Fiscal Year ended December 31, 2000. The financial
statements described above fairly present in all material respects the
financial condition, results of operations and changes in financial
position of HET and its Subsidiaries as of such dates and for such
periods, in conformity with Generally Accepted Accounting Principles,
consistently applied.
(f) NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of
the Effective Date, HET and its Subsidiaries do not have any material
liability or material contingent liability not reflected or disclosed
in the financial statements described in Section 12(e) hereof, other
than liabilities and contingent liabilities arising in the ordinary
course of business since the date of such financial statements. Since
December 31, 2000, no circumstance or event has occurred that
constitutes a Material Adverse Effect.
(g) TITLE TO PROPERTY. HET and its Subsidiaries have valid
title to the Property reflected in the financial statements described
in Section 12(e) hereof, other than immaterial items of Property and
Property subsequently sold or disposed of in the ordinary course of
business, free and clear of all Liens and Rights of Others, other than
as permitted by Section 6.4 of the Xxxxxx'x Loan Agreement (as
incorporated herein by reference), and any other matters which do not
have a Material Adverse Effect.
(h) LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which HET or any of its Subsidiaries has
been served or has received notice or, to the knowledge of any
Guarantor, threatened against or affecting HET or any of its
Subsidiaries or any Property of any of them before any Governmental
Agency in which there is any reasonable possibility of an adverse
decision which could materially adversely affect the business,
consolidated financial position or results of operations of HET and its
Subsidiaries, taken as a whole, or which in any manner draws into
question the validity or enforceability of the Credit Documents.
(i) BINDING OBLIGATIONS. Each of the Credit Documents will,
when executed and delivered by each of the Guarantors party thereto,
constitute the legal, valid and binding obligation of each such
Guarantor, enforceable against each such Guarantor in accordance with
its terms, except as enforcement may be limited by Debtor Relief Laws
or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial
discretion.
Page 10
(j) NO DEFAULT. No event has occurred and is continuing that
is a Guarantor Default or a Guarantor Event of Default.
(k) ERISA. (i) With respect to each Pension Plan:
(A) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the
extent that noncompliance could reasonably be expected to have
a Material Adverse Effect;
(B) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that could reasonably be expected to have a Material
Adverse Effect;
(C) no "reportable event" (as defined in Section 4043
of ERISA) has occurred that could reasonably be expected to
have a Material Adverse Effect; and
(D) neither HET nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code) that could reasonably
be expected to have a Material Adverse Effect.
(ii) Neither HET nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
(l) DISCLOSURE. No written statement made by a Senior Officer
of any Guarantor to any Creditor in connection with this Guaranty or
any other Credit Document, or in connection with any Loan as of the
date thereof contained any untrue statement of a material fact or
omitted a material fact necessary to make the statement made not
misleading in light of all the circumstances existing at the date the
statement was made.
(m) TAX LIABILITY. HET and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made
provision for the payment of, all taxes with respect to the periods,
Property or transactions covered by said returns, or pursuant to any
assessment received by HET and its Subsidiaries, except (a) such taxes,
if any, as are being contested in good faith by appropriate proceedings
and as to which adequate reserves have been established and maintained
and (b) immaterial taxes and tax returns so long as no material item or
portion of Property of HET or any of its Subsidiaries is in jeopardy of
being seized, levied upon or forfeited.
(n) PROJECTIONS. As of the Effective Date, to the best
knowledge of the Guarantors, the assumptions set forth in the
projections contained in the Confidential Information Memorandum dated
March 2001 that was prepared in connection with the Credit Agreement
(the "Projections") are reasonable and consistent with each other and
with all facts known to the Guarantors, and the Projections are (a)
reasonably based on such assumptions and (b) although a range of
possible different assumptions and estimates might also be reasonable,
none of the Guarantors are aware of any facts which would lead them to
believe that the assumptions and estimates on which the Projections
Page 11
were based are not reasonable, provided that no representation or
warranty can be given that the projected results will be realized or
with respect to the ability of HET and its Subsidiaries and the
Borrower to achieve the projected results and, while the Projections
are necessarily presented with numerical specificity, the actual
results achieved during the periods presented may differ from the
projected results, and such differences may be material.
(o) HAZARDOUS MATERIALS. Each Guarantor has reasonably
concluded that Environmental Laws are unlikely to have a material
adverse effect on the business, financial position, results of
operations or prospects of HET and its Subsidiaries, considered as a
whole.
(p) GAMING LAWS. HET and each of its Subsidiaries are in
compliance in all material respects with all Gaming Laws that are
applicable to them and their businesses.
(q) SOLVENCY. As of the Effective Date, and giving effect to
the transactions contemplated to occur on the Effective Date, HET and
each of its Subsidiaries are Solvent.
(r) SUBORDINATED DEBT. The subordination provisions of the
Subordinated Debt are enforceable against the respective borrower or
guarantor thereunder, as the case may be, and all obligations of the
Guarantors hereunder are within the definition of "Senior Debt,"
"Guarantor Senior Debt" or any equivalent term included in such
subordination provisions, as the case may be.
13. Each Guarantor covenants and agrees that on and after the
Effective Date and until the Total Commitment and each Interest Rate Protection
Agreement has been terminated and the Loans and Notes, together with interest
and all other obligations incurred under the Credit Agreement, the other Credit
Documents and the Interest Rate Protection Agreements, are paid in full:
(a) INCORPORATION BY REFERENCE. Each Guarantor will, and will
cause each of their respective Subsidiaries to, comply with each of the
covenants and requirements contained in Articles 5 (other than Sections
5.7(a), 5.8 and 5.9), 6 and 7 of the Xxxxxx'x Loan Agreement (as
defined in Section 14 of this Guaranty), which Articles, together with
all definitions in the Xxxxxx'x Loan Agreement applicable to such
Articles, are hereby incorporated by reference as if set forth herein
in their entirety, provided that:
(i) all references to "Parent" or "the Parent" therein
shall mean and be a reference to "HET" herein;
(ii) all references to "Parent and each Borrower" or
"Parent and the Borrowers" or "Parent's and Borrowers'"
therein shall mean and be a reference to "each Guarantor"
herein;
(iii) all references to the "Borrower" or "Borrowers" or
a "Borrower" therein shall mean and be a reference to "HOC,
Marina (as defined in the Xxxxxx'x
Page 12
Loan Agreement) or such other Subsidiaries of HET that
become borrowers under the Xxxxxx'x Loan Agreement pursuant
to Section 2.10 of the Xxxxxx'x Loan Agreement" herein;
(iv) all references to "Obligation" or "Obligations"
therein shall mean and be a reference to any "Guaranteed
Obligation" or the "Guaranteed Obligations" herein;
(v) all references to "this Agreement" therein shall
mean and be a reference to "this Guaranty" herein;
(vi) all references to an "Advance" therein shall mean
and be a reference to a "Loan" under the Credit Agreement;
(vii) all references to either the "Commitment" or the
"Short Term Commitment" therein shall mean and be a reference
to the "Total Commitment" under the Credit Agreement;
(viii) all references to a "Creditor" therein shall mean
and be a reference to a "Creditor" herein;
(ix) all references to the "Administrative Agent"
therein shall mean and be a reference to the "Administrative
Agent" herein;
(x) all references to any "Lender" or the "Lenders"
therein shall mean and be a reference to any "Creditor" or the
"Creditors" herein;
(xi) all references to the "Requisite Lenders" therein
shall mean and be a reference to the "Required Banks (or,
after the date on which all Credit Document Obligations have
been paid in full, the holders of at least a majority of the
outstanding Other Obligations)" herein;
(xii) all references to a "Default" therein shall mean
and be a reference to a "Guarantor Default or Guarantor Event
of Default" herein and as defined below;
(xiii) the text "or the Credit Documents" shall be
inserted immediately after the words "the Loan Documents"
appearing in Section 7.1(i) thereof;
(xiv) in any event, any merger or consolidation pursuant
to Section 6.1(a) or (b) of the Xxxxxx'x Loan Agreement (as
incorporated herein by reference) involving HOC shall result
in HOC being the surviving entity;
(xv) the reference to "Sections 6.5 and 6.6" in
Sections 6.1(b) and 7.1(c) of the Xxxxxx'x Loan Agreement
shall mean and be a reference to "Sections 6.5 and 6.6 of the
Xxxxxx'x Loan Agreement (as incorporated herein by
reference)"; and
Page 13
(xvi) Section 6.4 of the Xxxxxx'x Loan Agreement (as
incorporated herein by reference) shall include the following
additional clause (l):
"(l) Liens and Negative Pledges under this
Guaranty."
As used herein, the term "Guarantor Default" shall mean any
event, act or condition which with notice or lapse of time, or both, would
constitute a Guarantor Event of Default.
(b) FINANCIAL COVENANTS. Without limiting the provisions of
clause (a) of this Section 13, HET and HOC will not permit:
(i) the Total Debt Ratio (as such term, and the
component defined terms thereof, are defined in the Xxxxxx'x
Loan Agreement) to exceed 4.50:1.00 as of the last day of any
Fiscal Quarter; and
(ii) the Interest Coverage Ratio (as such term, and the
component defined terms thereof, are defined in the Xxxxxx'x
Loan Agreement) to be less than 3.00:1.00 as of the last day
of any Fiscal Quarter.
(c) EQUAL AND RATABLE PROVISIONS; ETC. In the event that (i)
HET or any of its Subsidiaries creates or grants a Lien on any of their
respective Properties securing any obligations under, or in respect of,
the Xxxxxx'x Loan Agreement (or any successor, replacement or
substitute credit facility) or the Short Term Loan Agreement (or any
successor, replacement or substitute credit facility), then the
Guarantors shall, or shall cause their respective Subsidiaries to,
concurrently therewith grant to the Administrative Agent for the
benefit of the Creditors a pari passu Lien covering such Properties and
securing the obligations under this Guaranty, and (ii) any Subsidiary
of HET directly or indirectly (including by way of a pledge of an
intercompany note or other Property), guarantees any obligation of HET
or any other obligor under, or in respect of, or otherwise becomes a
borrower under, the Xxxxxx'x Loan Agreement (or any successor,
replacement or substitute credit facility) or the Short Term Loan
Agreement (or any successor, replacement or substitute credit facility)
(other than, in the case of preceding clause (ii), any such Subsidiary
that becomes a borrower under the Xxxxxx'x Loan Agreement (or any
successor, replacement or substitute credit facility) or the Short Term
Loan Agreement (or any successor, replacement or substitute credit
facility) but only so long as such Subsidiary is only liable for the
loans directly incurred by it as opposed to being jointly and severally
liable for all loans incurred thereunder), then the Guarantors shall
cause such Subsidiary to concurrently therewith execute and deliver to
the Administrative Agent a counterpart of this Guaranty pursuant to
which such Subsidiary shall become a "Guarantor" hereunder.
(d) AMENDMENTS AND WAIVERS UNDER THE XXXXXX'X LOAN AGREEMENT.
HET and HOC shall promptly notify the Administrative Agent and each
other Creditor of any proposed amendment, modification or waiver to the
Xxxxxx'x Loan Agreement and shall deliver with such notice a copy of
the proposed amendment, modification or waiver.
Page 14
14. The existence or the occurrence of one or more of the
following events whatever the reason therefor and under any circumstances
whatsoever shall constitute a "Guarantor Event of Default" under this Guaranty
and the Credit Agreement:
(a) Any Guarantor fails to comply with (i) any of the
covenants contained in Article 6 of the Xxxxxx'x Loan Agreement (other
than the covenant contained in Section 6.3 of the Xxxxxx'x Loan
Agreement) as such covenants are incorporated herein by reference or
(ii) any of the covenants contained in Section 13(b) or (c) of this
Guaranty; or
(b) Any Guarantor fails to comply with Section 7.1(h) of the
Xxxxxx'x Loan Agreement (as such Section is incorporated herein by
reference) in any respect that is materially adverse to the interests
of the Creditors;
(c) Any Guarantor fails to perform or observe any other
covenant or requirement (not specified in clauses (a) or (b) above)
contained in the Xxxxxx'x Loan Agreement as incorporated herein by
reference on its part to be performed or observed within thirty
Business Days after the giving of notice by the Administrative Agent on
behalf of the Required Banks of such Guarantor Default; or
(d) Any representation or warranty of any Guarantor made (or
deemed made) herein, or in any certificate or other writing delivered
by any Guarantor pursuant hereto proves to have been incorrect when
made (or deemed made) or reaffirmed; or
(e) Any Guarantor or any of their respective Significant
Subsidiaries (i) fails to pay the principal, or any principal
installment, of any present or future indebtedness for borrowed money
in an aggregate of $100,000,000 or more (including without limitation
the Xxxxxx'x Loan Agreement and the Short Term Loan Agreement), or any
guaranty of present or future indebtedness for borrowed money of
$100,000,000 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 to occur, in
connection with any present or future indebtedness for borrowed money
of $100,000,000 or more (including, without limitation, the Xxxxxx'x
Loan Agreement and the Short Term Loan Agreement), or of any guaranty
of present or future indebtedness for borrowed money of $100,000,000 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
(f) Any event occurs which gives the holder or holders of any
Subordinated Debt (or an agent or trustee on its or their behalf) the
right to declare such indebtedness due before the date on which it
otherwise would become due, or the right to require the issuer thereof
to redeem or purchase, or offer to redeem or purchase, all or any
portion of any Subordinated Debt; or
Page 15
(g) A final judgment against any Guarantor or any of their
respective Significant Subsidiaries is entered for the payment of money
in excess of $25,000,000 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
(h) Any Guarantor or any of their respective Significant
Subsidiaries institutes or consents to the institution of any
proceeding under a Debtor Relief Law relating to it or to all or any
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 part of its Property; or is
appointed without the application or consent of that Person and the
appointment continues undischarged or unstayed for 60 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 60 calendar days;
or
(i) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any Loan Document) under any
Loan Document; or
(j) Any determination is made by a court of competent
jurisdiction that any Subordinated Debt is not subordinated in
accordance with its terms to the obligations of the Guarantors under
this Guaranty, provided that for so long as such determination is
effectively stayed during any pending appeal the same shall not
constitute a Guarantor Event of Default; or
(k) Any Pension Plan maintained by HET or any of its
Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect; or
(l) The occurrence of a License Revocation with respect to a
license issued to HET or any of its Subsidiaries by any Gaming Board of
the States of New Jersey or Nevada with respect to gaming operations at
any gaming facility accounting for 5% or more of the consolidated gross
revenues of HET and its Subsidiaries that continues for thirty calendar
days.
For purposes of Sections 12, 13 and 14 of this Guaranty, the
term "Xxxxxx'x Loan Agreement" shall mean the Xxxxxx'x Loan Agreement as defined
in the Credit Agreement but only as such Xxxxxx'x Loan Agreement is in effect on
the Effective Date and without giving effect to any amendments, modifications,
supplements or terminations thereof or thereto after the Effective Date
(including, without limitation, any such amendments, modifications or
supplements to the defined terms used therein) unless, and to the extent, the
Required Banks specifically agree that the respective change will be given
effect to for purposes of this Guaranty
Page 16
(although amendments, waivers and modifications thereto will be given effect for
purposes of Sections 13(c), 14(e) and 14(i) of this Guaranty). Notwithstanding
anything to the contrary contained above, for purposes of determining whether
the Xxxxxx'x Loan Agreement remains in effect or has been terminated,
amendments, modifications, supplements or terminations thereof shall be given
effect to.
15. (a) HET and HOC shall have the option at any time after
the one year anniversary of the Effective Date or at any time following a
Default or an Event of Default to (x) purchase the Loans and Commitments of all
of the Banks, on a joint and several basis, pursuant to the Credit Agreement by
paying the Banks in cash an amount equal to all outstanding principal, interest,
fees and other amounts pursuant to the Credit Agreement and the other Credit
Documents and (y) pay to the Administrative Agent and the Banks in cash any
amounts then owed to them, on a joint and several basis, pursuant to the terms
of this Guaranty so long as at the time of such purchase and payment (i) such
Guarantors shall have assumed all rights and obligations of the Other Creditors
under any outstanding Interest Rate Protection Agreements pursuant to
documentation that is reasonably satisfactory to such Guarantors and such Other
Creditors, (ii) such Guarantors or the Borrower shall have terminated all
outstanding Interest Rate Protection Agreements and shall have paid to the Other
Creditors in cash all amounts owing thereunder or (iii) such Guarantors shall
have obtained the written consent of the Other Creditors (which consent may be
given or withheld in each such Other Creditor's sole discretion) for such
Guarantors to assume all rights and obligations of the Borrower under such
Interest Rate Protection Agreements. Until any repayment and purchase as
described in the immediately preceding sentence is actually effected, the
Guarantors shall be liable to perform all obligations under this Guaranty
strictly in accordance with the terms hereof.
(b) Upon the occurrence and during the continuance of any
Event of Default, the Required Banks shall have the right to require HET and HOC
to (x) purchase (and in which case HET and HOC shall purchase) all of the Loans
and Commitments of all of the Banks, on a joint and several basis, pursuant to
the Credit Agreement by paying the Banks within three Business Days of such
demand by the Required Banks in cash an amount equal to all outstanding
principal, interest, fees and other amounts pursuant to the Credit Agreement and
the other Credit Documents and (y) pay to the Administrative Agent and the Banks
in cash any amounts then owed to them, on a joint and several basis, pursuant to
the terms of this Guaranty; provided that if an Event of Default specified in
Section 9.05 of the Credit Agreement or a Guarantor Event of Default specified
in Section 14(h) hereof shall occur, the result which would occur upon the
demand of the Required Banks as specified above in this sentence shall occur
automatically without the demand of the Required Banks and (ii) the amounts
payable by HET and HOC under this Section 15(b) shall be calculated without
giving effect to any reductions to such amounts (except to the extent such
reductions resulted from the payment thereof in cash), whether such reductions
resulted from any event of the type described in Section 9.05 of the Credit
Agreement or otherwise; provided further, that at the time of such purchase and
payment (i) such Guarantors also shall be obligated to (and such Guarantors
shall) assume all rights and obligations of the Other Creditors under any
outstanding Interest Rate Protection Agreements pursuant to documentation that
is reasonably satisfactory to such Guarantors and such Other Creditors, (ii)
such Guarantors or the Borrower shall have terminated all outstanding Interest
Rate Protection Agreements and shall have paid to the Other Creditors all
amounts owing thereunder or (iii) such
Page 17
Guarantors shall have obtained the written consent of the Other Creditors (which
consent may be given or withheld in each such Other Creditor's sole discretion)
for such Guarantors to assume all rights and obligations of the Borrower under
such Interest Rate Protection Agreements. Until any repayment and repurchase
described in the immediately preceding sentences is actually effected, the
Guarantors shall be liable to perform all obligations under this Guaranty
strictly in accordance with the terms hereof.
16. The Guarantors hereby jointly and severally agree to pay
all out-of-pocket costs and expenses of the Administrative Agent in connection
with any amendment, waiver or consent relating hereto and of the Administrative
Agent and each of the other Creditors in connection with any enforcement of this
Guaranty or in connection with any refinancing or restructuring of the credit
arrangements of the Guarantors as it relates to the Creditors' claims under this
Guaranty in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings (including in each case, without limitation, the fees and
disbursements of counsel and consultants employed by the Administrative Agent
and, after the occurrence of an Event of Default, counsel for each other
Creditor).
17. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and their
successors and assigns.
18. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Banks (or to the extent required by Section 12.12 of the Credit
Agreement, with the written consent of each Bank) at all times prior to the time
on which all Credit Document Obligations have been paid in full or (y) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations have been paid in full;
provided that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Creditors (and not all
Creditors in a like or similar manner) shall also require the written consent of
the Requisite Creditors (as defined below) of such Class of Creditors. For the
purpose of this Guaranty the term "Class" shall mean each class of Creditors,
i.e., whether (x) the Bank Creditors as holders of the Credit Document
Obligations or (y) the Other Creditors as the holders of the Other Obligations.
For the purpose of this Guaranty, the term "Requisite Creditors" of any Class
shall mean (x) with respect to the Credit Document Obligations, the Required
Banks (or to the extent required by Section 12.12 of the Credit Agreement, each
Bank) and (y) with respect to the Other Obligations, the holders of at least a
majority of all obligations outstanding from time to time under the Interest
Rate Protection Agreements.
19. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and the Interest Rate Protection
Agreements has been made available to its principal executive officers and such
officers are familiar with the contents thereof.
20. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the
Page 18
Credit Agreement or any payment default under any Interest Rate Protection
Agreement continuing after any applicable grace period), each Creditor is hereby
authorized at any time or from time to time, without notice to any Guarantor or
to any other Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Creditor to or for the credit or
the account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Creditor under this Guaranty, irrespective
of whether or not such Creditor shall have made any demand hereunder and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured. Each Creditor acknowledges and agrees that the
provisions of this Section 20 are subject to the sharing provisions set forth in
Section 12.06(b) of the Credit Agreement.
21. All notices, requests, demands or other communications
pursuant hereto shall be deemed to have been duly given or made when delivered
to the Person to which such notice, request, demand or other communication is
required or permitted to be given or made under this Guaranty, addressed to such
party at (i) in the case of any Bank Creditor, as provided in the Credit
Agreement, (ii) in the case of any Guarantor, at its address set forth opposite
its signature below and (iii) in the case of any Other Creditor, at such address
as such Other Creditor shall have specified in writing to the Guarantors; or in
any case at such other address as any of the Persons listed above may hereafter
notify the others in writing.
22. If claim is ever made upon any Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
23. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
in each case which are located in the City of New York, and, by execution and
delivery of this Guaranty, each Guarantor hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each Guarantor hereby further irrevocably waives any
claim that any such courts lack jurisdiction over such Guarantor, and agrees not
to plead or claim, in any legal action or proceeding with respect to this
Guaranty brought in any of the aforesaid courts, that any such court lacks
jurisdiction over such Guarantor. Each Guarantor further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies
Page 19
thereof by registered or certified mail, postage prepaid, to such Guarantor at
its address set forth opposite its signature below, such service to become
effective 30 days after such mailing. Each Guarantor hereby irrevocably waives
any objection to such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding commenced under this
Guaranty that service of process was in any way invalid or ineffective. Nothing
herein shall affect the right of any of the Creditors to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Guaranty brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) EACH GUARANTOR AND EACH CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
24. It is the desire and intent of each Guarantor and the
Creditors that this Guaranty shall be enforced against each Guarantor to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of any Guarantor under this Guaranty shall be adjudicated
to be invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers), then the amount of the Guaranteed Obligations of such
Guarantor shall be deemed to be reduced and such Guarantor shall pay the maximum
amount of the Guaranteed Obligations which would be permissible under applicable
law.
25. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered (including by way of facsimile
transmission) shall be an original, but all of which shall together constitute
one and the same instrument. A set of counterparts executed by all the parties
hereto shall be lodged with the Guarantors and the Administrative Agent.
26. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the Borrower under Sections 3.03 and 3.04 of the Credit Agreement.
* * *
Page 20
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
ADDRESSES
One Xxxxxx'x Court XXXXXX'X ENTERTAINMENT, INC.
Xxx Xxxxx, Xxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Treasurer By______________________________
(with a copy at the Name:
same address to the Title:
General Counsel)
One Xxxxxx'x Court XXXXXX'X OPERATING COMPANY, INC.
Xxx Xxxxx, Xxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Treasurer By______________________________
(with a copy at the Name:
same address to the Title:
General Counsel)
Page 00
Xxx Xxxxxx'x Xxxxx XXXXXX'X XX CASINO COMPANY, L.L.C.
Xxx Xxxxx, Xxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Treasurer (with a copy By _______________________________
at the same address to the Name:
General Counsel) Title:
Acknowledged and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent
By________________________________
Name:
Title:
