Exhibit 10.27
GUARANTY AND LOAN PURCHASE AGREEMENT
GUARANTY AND LOAN PURCHASE AGREEMENT, dated as of October 29,
1998 (as amended, modified or supplemented from time to time, this "Guaranty"),
made by each of the undersigned (each a "Guarantor" and, collectively, 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.
W I T N E S S E T H :
WHEREAS, JCC Holding Company ("JCC Holding"), Jazz Casino
Company, L.L.C. (the "Borrower"), various lenders from time to time party
thereto (the "Banks"), and Bankers Trust Company, as Administrative Agent
(together with any successor agent, the "Administrative Agent"), have entered
into a Credit Agreement, dated as of October 29, 1998, providing for the making
of Loans and the issuance of, and participation in, Letters of Credit 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,
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 "Creditors");
WHEREAS, the proceeds of the Loans will be used, in part, to
finance the construction of the Casino and to provide for the Borrower's working
capital and general corporate requirements;
WHEREAS, the Guarantors own a substantial beneficial interest
in the parent of the Borrower and will obtain substantial economic and other
benefits as a result of the completion and operation of the Casino;
WHEREAS, it is a condition precedent to the making of Loans
and the issuance of Letters of Credit under the Credit Agreement that each
Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans and the issuance of Letters of Credit under the Credit
Agreement and, accordingly, desires to execute this Guaranty in order to satisfy
the condition 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: to the Creditors the entire payment when due
(whether at the stated maturity, by acceleration or otherwise) of (w) all
principal of, and interest (including any interest payable on such interest) on,
all Tranche A-2 Term Loans, Tranche B-2 Term Loans, Revolving Loans and
Swingline Loans, (x) all Unpaid Drawings and all interest (including interest
payable on interest) thereon, (y) all regularly accruing fees payable with
respect to the foregoing outstandings or related Commitments (which includes the
Fees payable pursuant to Sections 3.01(a), (b), (c) and (d)) and (z) all
increased cost payments, tax payments, indemnification obligations and other
amounts payable pursuant to the Credit Agreement or the other Credit Documents
(as defined in the Credit Agreement), in each case to the extent (and only to
the extent) relating to the Tranche A-2 Term Loans, Tranche B-2 Term Loans,
Revolving Loans, Swingline Loans, Letters of Credit or the Commitments relating
thereto (all such principal, unpaid drawings, interest, fees and other amounts
described above in this Section 1 being collectively herein 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.
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 10.06 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 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 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 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 Guaranteed Obligations 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
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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:
(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 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, 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 Credit Documents or any of the instruments or
agreements referred to therein, or
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otherwise amend, modify or supplement any of 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.
[Notwithstanding anything to the contrary contained above, to
the extent any modification or amendment to the Credit Agreement or related
Credit Documents, in accordance with the express terms of Section 16.12 of the
Credit Agreement, requires the consent of the Guarantors hereunder, then, for
purposes of this Guaranty, if such consent from any Guarantor is not obtained,
such modifications to the Credit Agreement shall be given no effect (as to such
Guarantor) for purposes of this Guaranty. Except to the extent expressly
provided in the immediately preceding sentence, any such amendment or waiver
which in contravention of the provisions of Section 16.12 of the Credit
Agreement is made without the consent of one or more Guarantors (in
circumstances where such consent is required) shall not otherwise release,
discharge or affect such Guarantor's obligations hereunder.]
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.
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. Any indebtedness or other liabilities of the Borrower now
or hereafter held by or owing to any Guarantor (other than in connection with
the Minimum Payment Guaranty) 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
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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
(other than in connection with the Minimum Payment Guaranty) of the Borrower to
such Guarantor, such Guarantor shall ▇▇▇▇ 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.
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, the Collateral 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 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 or Collateral Agent acting upon
the instructions of the Majority Tranche ▇-▇, ▇-▇ and Revolving Banks and that
no other Creditors shall have any right individually to
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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
Collateral Agent, 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 Revolving Loans, Swingline Loans, Tranche A-2 Term
Loans and Tranche B-2 Term Loans and issue or participate in Letters of Credit
as provided therein, 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 Revolving
Notes, Swingline Note, Tranche A-2 Term Notes and Tranche B-2 Term Notes and the
making of the Revolving Loans, Swingline Loans, Tranche A-2 Term Loans and
Tranche B-2 Term Loans, with the occurrence of the Initial Borrowing Date and
the incurrence of each Revolving Loan, Swingline Loan, Tranche A-2 Term Loan and
Tranche B-2 Term Loan, or the issuance of each Letter of Credit, on or after the
Initial Borrowing 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 Initial Borrowing Date and on the date of each such Credit Event (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) Corporate Status. Each Guarantor and each of its
Subsidiaries (i) is a duly organized and validly existing corporation,
limited liability company or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its organization, (ii)
has the power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and
is in good standing in each jurisdiction where the ownership, leasing
or operation of its property or the conduct of its business requires
such qualifications except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
HET and its Subsidiaries taken as a whole.
(b) Power and Authority. Each Guarantor has the power
and authority to execute, deliver and perform the terms and
provisions of this Guaranty and each other Document to which it is a
party and has taken all necessary action to authorize the execution,
delivery and performance by it of this Guaranty and each such other
Document. Each Guarantor has duly executed and delivered this Guaranty
and each other Document to which it is a party, and this Guaranty and
each such other Document constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except to the
extent that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law).
(c) No Violation. Neither the execution, delivery or
performance by any Guarantor of this Guaranty or any other Document to
which it is a party, nor compliance
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by it with the terms and provisions hereof or thereof, (i) will
contravene any provision of any law, statute, rule or regulation or any
order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or
assets of any Guarantor or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement or
loan agreement, or any other material agreement, contract or
instrument, to which any Guarantor or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to
which it may be subject or (iii) will violate any provision of the
certificate of incorporation, partnership agreement, by-laws or
equivalent organizational or charter documents of any Guarantor or any
of its Subsidiaries.
(d) Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior to the
Initial Borrowing Date), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution,
delivery and performance of this Guaranty or any other Document to
which any Guarantor is a party or (ii) the legality, validity, binding
effect or enforceability of this Guaranty or any such other Document.
(e) Financial Statements; Financial Condition; Undisclosed
Liabilities; Financial Projections. (i) The statements of financial
condition of HET and its Subsidiaries at December 31, 1997, and the
related statements of income and cash flow and changes in shareholders'
equity of HET and its Subsidiaries for the fiscal year ended on such
date, copies of which were furnished to the Banks prior to the Initial
Borrowing Date, present fairly the financial condition of HET and its
Subsidiaries at the date of such statements of financial condition and
the results of the operations of HET and its Subsidiaries for such
fiscal year. All such financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied. Since December 31, 1997, there has been no
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of HET and
its Subsidiaries taken as a whole.
(ii) On and as of the Initial Borrowing Date, after giving effect
to all Indebtedness (including the Revolving Loans, Swingline Loans,
Tranche A-2 Term Loans and Tranche B-2 Term Loans) being guaranteed by
the Guarantors hereunder, (a) the sum of the assets, at a fair
valuation, of HET and its Subsidiaries taken as a whole will exceed
their respective debts; (b) HET and its Subsidiaries taken as a whole
have not incurred, nor do they intend to incur or believe that they
will incur, debts beyond their ability to pay such debts as such debts
mature; and (c) HET and its Subsidiaries taken as a whole will have
sufficient capital with which to conduct its respective business. For
purposes of this Section 12(e)(ii), "debt" means any liability on a
claim, and "claim" means (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured or (y) right to an equitable remedy for breach of
performance if such breach
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gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
(iii) Except as fully disclosed in the financial statements
delivered pursuant to Section 12(e)(i), there were as of the Initial
Borrowing Date no liabilities or obligations with respect to HET or any
of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to HET and its
Subsidiaries taken as a whole. As of the Initial Borrowing Date, no
Guarantor knows of any basis for the assertion against HET or any of
its Subsidiaries of any liability or obligation of any nature
whatsoever that is not fully disclosed in the financial statements
delivered pursuant to Section 12(e)(i) which, either individually or in
the aggregate, is material to HET and its Subsidiaries taken as a
whole.
(f) Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of any Guarantor, threatened (i) with
respect to this Guaranty or any other Document to which any Guarantor
is a party, (ii) with respect to any material Indebtedness of any
Guarantor or any of its Subsidiaries or (iii) except as set forth on
Schedule I hereto, that could reasonably be expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of HET and
its Subsidiaries taken as a whole.
(g) True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of any Guarantor in
writing to the Administrative Agent or any Bank for purposes of or in
connection with this Guaranty, the other Documents or any transaction
contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of
any Guarantor in writing to the Administrative Agent or any Bank will
be, true and accurate in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting
to state any fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
(h) Tax Returns and Payments. Each of HET and its Subsidiaries
and each Person for whose tax HET or any of its Subsidiaries could be
liable has filed or caused to be filed with the appropriate taxing
authority, all Federal and all other material returns, statements,
forms and reports for all taxes (the "Returns") required to be filed by
it and has paid or caused to be paid (i) all material taxes due for the
periods covered thereby and (ii) all taxes pursuant to any assessment
received by HET, any of its Subsidiaries or any such Person, excluding,
in each case, any such taxes that have been contested in good faith and
for which adequate reserves have been established in accordance with
generally accepted accounting principles. Except as disclosed on
Schedule II hereto, as of the Initial Borrowing Date, there is no
action, suit, proceeding, investigation, audit, or claim now pending
or, to the knowledge of HET or any of its Subsidiaries, threatened by
any governmental or taxing authority regarding any material taxes
relating to HET or any of
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its Subsidiaries. Except as disclosed on Schedule II hereto, as of the
Initial Borrowing Date, neither HET nor any of its Subsidiaries has
entered into an agreement or waiver extending any statute of
limitations relating to the payment or collection of any material taxes
of HET or any of its Subsidiaries.
(i) Compliance with ERISA. Each Plan (as defined in the HET
Credit Agreement) is in substantial compliance with ERISA (as defined
in the HET Credit Agreement) and the Code; no Reportable Event (as
defined in the HET Credit Agreement) has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability (as defined in the HET Credit Agreement); no
Plan has an accumulated or waived funding deficiency, has permitted
decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412
of the Code; neither HET nor any Subsidiary of HET nor any ERISA
Affiliate (as defined in the HET Credit Agreement) has incurred any
material liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to
incur any liability under any of the foregoing Sections with respect to
any Plan; no proceedings have been instituted by the PBGC (as defined
in the HET Credit Agreement) to terminate or appoint a trustee to
administer any Plan; no condition exists which presents a material risk
to HET or any Subsidiary of HET or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; no lien imposed under the Code or
ERISA on the assets of HET or any Subsidiary of HET or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and HET
and its Subsidiaries may cease contributions to or terminate any
employee benefit plan maintained by any of them without incurring any
material liability to any person interested therein other than accrued
benefits; it being understood that any representation or warranty made
in this Section 12(i) with respect to any multiemployer plan (labor
union) is to the best knowledge of each Guarantor.
(j) Properties. HET and each of its Subsidiaries have good
title to all material properties owned by them, free and clear of all
Liens, other than Liens permitted by Section 9.01 of the HET Credit
Agreement (which Section is incorporated herein by reference).
(k) Compliance with Statutes, etc. Each of HET and each of its
Subsidiaries is in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property (including applicable
statutes, regulations, orders and restrictions relating to
environmental standards and controls), except such noncompliances as
could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
HET and its Subsidiaries taken as a whole.
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(l) Investment Company Act. Neither HET nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act
of 1940, as amended.
(m) Public Utility Holding Company Act. Neither HET nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(n) Environmental Matters. (i) HET and each of its
Subsidiaries have complied with, and on the date of each Borrowing are
in compliance with, all applicable Environmental Laws (as defined in
the HET Credit Agreement) and the requirements of any permits issued
under such Environmental Laws. There are no pending or, to the best
knowledge of any Guarantor after due inquiry, past or threatened
Environmental Claims (as defined in the HET Credit Agreement) against
HET or any of its Subsidiaries or any real property owned or operated
by HET or any of its Subsidiaries that individually or in the aggregate
could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of HET and its Subsidiaries taken
as a whole. There are no facts, circumstances, conditions or
occurrences on any real property owned or operated by HET or any of its
Subsidiaries or, to the best knowledge of any Guarantor after due
inquiry, on any property adjoining or in the vicinity of any such real
property that, to the best knowledge of any Guarantor after due
inquiry, could reasonably be expected (x) to form the basis of an
Environmental Claim against HET or any of its Subsidiaries or any such
real property that individually or in the aggregate could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of HET and its Subsidiaries taken as a whole, or (y) to cause
any such real property to be subject to any restrictions on the
ownership, occupancy, use or transferability of such real property by
HET or any of its Subsidiaries under any applicable Environmental Law.
(ii) Hazardous Materials (as defined in the HET Credit Agreement)
have not at any time been generated, used, treated or stored on, or
transported to or from, any real property owned or operated by HET or
any of its Subsidiaries where such generation, use, treatment or
storage has violated or could reasonably be expected to violate any
Environmental Law. Hazardous Materials have not at any time been
Released (as defined in the HET Credit Agreement) on or from any real
property owned or operated by HET or any of its Subsidiaries where such
Release has violated or could reasonably be expected to violate any
applicable Environmental Law. There are not now any underground storage
tanks located on any real property owned or operated by HET or any of
its Subsidiaries which are not in compliance with all Environmental
Laws.
(iii) Notwithstanding anything to the contrary in this Section
12(n), the representations made in this Section 12(n) shall only be
untrue if the aggregate effect of all failures and noncompliances of
the types described above could reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of HET and
its Subsidiaries taken as a whole.
10
(o) Labor Relations. Neither HET nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on HET and its Subsidiaries
taken as a whole. There is (i) no unfair labor practice complaint
pending against HET or any of its Subsidiaries or, to the best
knowledge of any Guarantor, threatened against any of them, before the
National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against HET or any of its Subsidiaries or, to the best
knowledge of any Guarantor, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against HET or any
of its Subsidiaries or, to the best knowledge of any Guarantor,
threatened against HET or any of its Subsidiaries and (iii) to the best
knowledge of any Guarantor, no union representation question existing
with respect to the employees of HET or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii)
above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of HET and its Subsidiaries taken
as a whole.
(p) Patents, Licenses, Franchises and Formulas. Each of HET
and each of its Subsidiaries owns all the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and
formulas, or rights with respect to the foregoing, and has obtained
assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to obtain
which, as the case may be, either individually or in the aggregate,
could reasonably be expected to result in a material adverse effect on
the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of HET and its Subsidiaries taken
as a whole.
(q) Existing Indebtedness. Schedule III hereto sets forth a
true and complete list of all Indebtedness of HET and its Subsidiaries
as of the Initial Borrowing Date, in each case showing the respective
borrower thereof. The subordination provisions of the Subordinated Debt
(as defined in the HET Credit Agreement), if any is outstanding on the
respective Borrowing Date, are enforceable against the respective
borrower or guarantor thereunder, as the case may be, and the holders
of such Subordinated Debt and all obligations of the Guarantors
hereunder are within the definition of "Senior Debt," "Guarantor Senior
Debt," "Designated Senior Debt" and "Designated Senior Debt of the
Guarantor" 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 Revolving Loan Commitment, the Total
Tranche A-2 Term Loan Commitment and the Total Tranche B-2 Term Loan
Commitment have terminated, no Revolving Note, Swingline Note, Tranche
A-2 Term Note or Tranche B-2 Term Note remains outstanding and all
Guaranteed Obligations are indefeasibly paid in full:
(a) Incorporation by Reference. Each Guarantor will comply
with each of the covenants contained in Sections 8.01 through 8.10,
8.13 and 8.14 of the HET Credit Agreement and Sections 9.01 through
9.15 of the HET Credit Agreement, which
11
Sections, together with all definitions in the HET Credit Agreement
applicable to such Sections, are hereby incorporated by reference as if
set forth herein in their entirety, provided that:
(i) all references to "Parent" therein shall
mean and be a reference to "HET" herein;
(ii) all references to "the Company" therein shall
mean and be a reference to "HOC" herein;
(iii) all references to the "Borrower" or
"Borrowers" therein shall mean and be a reference to "HOC"
herein or any "Subsidiary Borrower" (as defined in the HET
Credit Agreement), as the case may be;
(iv) all references to "this Agreement," "herein,"
"hereunder" and words of similar import therein shall mean and
be a reference to this "Guaranty";
(v) all references to "Parent and the Borrowers"
therein shall mean and be a reference to "HET, HOC and the
Subsidiary Borrowers" herein;
(vi) all references to "Parent or any Borrower"
therein shall mean and be a reference to "HET, HOC or any
Subsidiary Borrower" herein;
(vii) all references to the "Administrative Agent"
therein shall mean and be a reference to the "Administrative
Agent" herein;
(viii) all references to any "Bank" or the "Banks"
therein shall mean and be a reference to any "Creditor" or the
"Creditors" herein;
(ix) all references to the "Required Banks" therein
shall mean and be a reference to the "Required Banks" herein;
(x) all references to a "Default" therein shall
mean and be a reference to a "Guarantor Default"
herein and as defined below;
(xi) all references to an "Event of Default"
therein shall mean and be a reference to a "Guarantor Event of
Default" herein and as defined below; and
(xii) if, and for so long as, the HET Credit
Agreement remains in effect, any provision of Section 9.02 or
9.05 of the HET Credit Agreement as incorporated herein by
reference which would give rise to a violation of Section 9.11
of the HET Credit Agreement shall be deemed modified to the
extent (but only to the extent) that the incorporation by
reference of such Sections herein would not give rise to such
a violation.
12
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.
14. As used herein, the term "Guarantor Event of Default"
shall mean the occurrence of any of the following specified events:
(a) Representations, etc. Any representation, warranty or
statement made by any Guarantor herein or in any certificate delivered
pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
(b) Covenants. Any Guarantor shall (i) default in the due
performance or observance by it of any term, covenant or agreement
contained in Section 8.01(e)(i), 8.08 or 9 of the HET Credit Agreement
as such Sections are incorporated herein by reference or (ii) default
in the due performance or observance by it of any other term, covenant
or agreement contained in the HET Credit Agreement as incorporated
herein by reference and such default shall continue unremedied for a
period of 30 days after written notice to such Guarantor by the
Administrative Agent or any Creditor; or
(c) Default Under Other Agreements. (i) HET or any Subsidiary
of HET shall (x) default in any payment of any Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created or (y) default in the observance or
performance of any agreement or condition relating to any Indebtedness
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without
regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness of
HET or any Subsidiary of HET shall be declared to be due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof, provided that it
shall not be a Guarantor Default or a Guarantor Event of Default under
this Section 14(c) unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) and (ii) is at least
$25,000,000; or
(d) Bankruptcy, etc. HET or any Subsidiary of HET shall
commence a voluntary case concerning itself under the Bankruptcy Code;
or an involuntary case is commenced against HET or any Subsidiary of
HET, and the petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of HET or any
Subsidiary of HET, or HET or any Subsidiary of HET commences any other
proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to
HET or any Subsidiary of HET, or there is commenced against HET or any
Subsidiary of HET any such proceeding which remains undismissed for a
period of 60 days, or HET or any
13
Subsidiary of HET is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered;
or HET or any Subsidiary of HET suffers any appointment of any
custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or HET or
any Subsidiary of HET makes a general assignment for the benefit of
creditors; or any corporate action is taken by HET or any Subsidiary of
HET for the purpose of effecting any of the foregoing; or
(e) ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or
granted under Section 412 of the Code, any Plan shall have had a
trustee appointed by the PBGC to administer such Plan, any Plan is,
shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, HET or any Subsidiary of HET or any ERISA Affiliate
has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code, or HET or any Subsidiary of HET has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) which provide benefits to
retired employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA);
(b) there shall result from any such event or events the imposition of
a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) which lien, security
interest or liability, in the opinion of the Required Banks, could
reasonably be expected to have a material adverse effect upon the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of HET and its Subsidiaries taken
as a whole; or
(f) Judgments. One or more judgments or decrees shall be
entered against HET or any Subsidiary of HET involving in the aggregate
for HET and its Subsidiaries a liability (not paid or fully covered by
a reputable insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged
or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments exceeds
$10,000,000; or
(g) Gaming Authority. Any Gaming Authority having jurisdiction
over HET or any Subsidiary of HET or the Casino (as defined in the HET
Credit Agreement) shall determine that HET or any Subsidiary of HET
that is required to be qualified under the applicable Gaming
Regulations does not qualify, or that the qualification or license of
any of them with respect to HET or any Subsidiary of HET or the Casino
should be revoked, not renewed or suspended for more than 30 days, or
any such Gaming Authority shall have appointed a conservator,
supervisor or trustee to oversee any of the operations of any of them;
or
14
(h) Guarantor Changes of Control. Any Guarantor Change of
Control (which, for purposes of this Guaranty, shall mean any "Change
of Control" as defined in the HET Credit Agreement) shall have
occurred.
15. (a) HET and HOC shall have the option at any time
after the one year anniversary of the Initial Borrowing Date or at any time
following a Default or an Event of Default to (x) purchase the Guaranteed
Obligations and the related Commitments of all 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 and other amounts owing in respect
of the Guaranteed Obligations and related Commitments 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. 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 or any Guarantor Event of Default, the Majority Tranche ▇-▇,
▇-▇ and Revolving Banks shall have the right to require HET and HOC to (x)
purchase (and in which case HET and HOC shall purchase) the outstanding
Guaranteed Obligations and related Commitments of all 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 Majority Tranche ▇-▇, ▇-▇ and Revolving
Banks in cash an amount equal to all principal, interest and other amounts owing
in respect of the Guaranteed Obligations and related Commitments 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. In addition,
upon the occurrence and during the continuance of a Guarantor Event of Default,
the Majority Tranche ▇-▇, ▇-▇ and Revolving Banks shall have the right to
require HET and HOC to (x) pay within three Business Days of such demand by the
Majority Tranche ▇-▇, ▇-▇ and Revolving Banks to the Collateral Agent such
additional amount of cash, to be held as security by the Collateral Agent for
the Borrower's reimbursement obligations in respect of Letters of Credit then
outstanding, as is equal to the Stated Amount of all Letters of Credit then
outstanding and (y) immediately fund within three Business Days of such demand
by the Majority Tranche ▇-▇, ▇-▇ and Revolving Banks all outstanding Swingline
Loans with Mandatory Borrowings pursuant to their Revolving Loan Commitments.
Notwithstanding anything to the contrary contained herein, if an Event of
Default specified in Section 10.06 of the Credit Agreement or a Guarantor Event
of Default specified in Section 14(d) hereof shall occur, the result which would
occur upon the demand of the Majority Tranche ▇-▇, ▇-▇ and Revolving Banks as
specified in the immediately preceding two sentences shall occur automatically
without the demand of the Required Banks; provided that 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 10.06 of the Credit Agreement or
otherwise. 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.
15
16. It is understood and agreed by the parties hereto that
payments made pursuant to this Guaranty shall not be subject to the
subordination or lien priority provisions set forth in Sections 13, 14 and 15 of
the Credit Agreement.
17. (a) If HET and/or HOC purchase Guaranteed Obligations in
accordance with preceding Section 15, then HET and HOC shall have the rights
provided pursuant to the Credit Agreement in respect of the Guaranteed
Obligations so purchased. Such purchased Guaranteed Obligations, in accordance
with the terms of the Credit Agreement, shall be subject to the subordination
and lien priority provisions (in accordance with the terms thereof) set forth in
Sections 13, 14 and 15 of the Credit Agreement. Furthermore, HET and HOC
acknowledge the limitation on voting rights provided in the last sentence of the
definition of "Required Banks" contained in the Credit Agreement.
(b) If HET and/or HOC make any other payments pursuant to this
Guaranty in respect of the Guaranteed Obligations, HET and/or HOC, as the case
may be, shall be subrogated to the rights of the holders of the respective
Guaranteed Obligations so paid; provided that, except to the extent otherwise
provided in the immediately succeeding sentence, no payments may be made in
respect of such subrogation claims until all Guaranteed Obligations have been
indefeasibly paid in full. Notwithstanding anything to the contrary contained in
the immediately preceding sentence, to the extent HET and/or HOC have made
payments in respect of Guaranteed Obligations, the respective such Guarantors
shall be subrogated to the rights of the holders of such Guaranteed Obligations
and thereby entitled to receive payments or distributions of proceeds of
Collateral pursuant to, and in accordance with the terms of, the Security
Documents and the Intercreditor Agreement; provided that all such payments or
distributions (i) shall be subject, first, to the express subordination
provisions contained in the Credit Agreement and (ii) to the extent not required
to be applied pursuant to said subordination provisions, shall be turned over
and applied to the repayment of Guaranteed Obligations until such time, if any,
as all Guaranteed Obligations have been indefeasibly paid in full.
18. 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 (including in each case, without limitation, the fees and disbursements
of counsel employed by the Administrative Agent and each other Creditor).
19. 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.
20. 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 the
Required Banks and the Majority Tranche ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Revolving Banks
(and, to the extent required by Section 16.12 of the Credit Agreement, with the
written consent of each Bank (other than Banks holding solely Tranche A-1 Term
Loans, Tranche A-3 Term Loans and/or Tranche B-1 Term Loans).
16
21. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents has been made available to its
principal executive officers and such officers are familiar with the contents
thereof.
22. 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 Credit
Agreement), 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 22 are subject to
the sharing provisions set forth in Section 16.06(b) of the Credit Agreement.
23. 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 and (ii) in the case of any Guarantor, at its address set forth
opposite its signature below; or in any case at such other address as any of the
Persons listed above may hereafter notify the others in writing.
24. 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.
25. (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,
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
17
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 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 hereby irrevocably designates, appoints and
empowers CT Corporation System, with offices on a date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its designee, appointee and agent to receive, accept
and acknowledge for and on its behalf, and in respect of its property, service
of any and all legal process, summons, notices and documents which may be served
in any such action or proceeding. If for any reason such designee, appointee and
agent shall cease to be available to act as such, each Guarantor agrees to
designate a new designee, appointee and agent in New York City on the terms and
for the purposes of this provision satisfactory to the Administrative Agent.
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 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.
26. 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.
18
27. 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 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
Agent.
28. 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 4.03 and 4.04 of the Credit Agreement.
* * * *
19
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
ADDRESSES
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as a Guarantor
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel By /s/▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇
--------------------------
Title: Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇'▇ OPERATING COMPANY, INC.,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as a Guarantor
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel By /s/▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇
--------------------------
Title: Vice President
Acknowledged and Agreed to:
BANKERS TRUST COMPANY, as Administrative Agent
By /s/▇▇▇▇ ▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Managing Director
