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EXHIBIT 10.31
GUARANTY OF PERFORMANCE AND COMPLETION
THIS GUARANTY OF PERFORMANCE AND COMPLETION (this "Completion Guaranty"),
dated as of December 13, 2000, is made by XXXX GAMING CORPORATION, a Nevada
corporation (the "Guarantor"), in favor of each of the Administrative Agent and
the Lenders and their respective successors, transferees and assigns.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of even date herewith
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among Marina District Finance
Company, Inc., a New Jersey corporation (the "Borrower"), Marina District
Development Company, LLC, a New Jersey limited liability company ("MDDC"), the
various lending institutions (individually a "Lender" and collectively the
"Lenders") as are, or may from time to time become, parties thereto, the Issuing
Bank and Canadian Imperial Bank of Commerce, as administrative agent (together
with any successor(s) thereto in such capacity, the "Administrative Agent") for
the Lenders, the Lenders have extended Commitments to make Loans to the Borrower
and the Issuer has agreed to issue Letters of Credit for the account of the
Borrower; and
WHEREAS, as a condition precedent to the effectiveness of the Credit
Agreement, the Guarantor is required to execute and deliver this Completion
Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Completion Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Completion Guaranty inasmuch as the Guarantor will derive substantial direct and
indirect benefits from the Loans made to the Borrower by the Lenders pursuant to
the Credit Agreement and the Letters of Credit issued for the account of the
Borrower under the Credit Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to induce the Lenders to make Loans to the
Borrower and the Issuer to issue Letters of Credit for the account of the
Borrower pursuant to the Credit Agreement, the Guarantor agrees, for the benefit
of the Administrative Agent and each Lender, as follows:
1. Definitions. Terms defined in the Credit Agreement and not otherwise
defined in this Completion Guaranty shall have the meanings ascribed to
them in the Credit Agreement. As used in this Completion Guaranty, the
following terms shall have the meanings respectively set forth after each:
"Bankruptcy Code" shall mean Title 11 of the United States Code as amended
from time to time.
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"Enforcement Costs" means all out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with the enforcement of
their rights and remedies under this Completion Guaranty and any amendment,
waiver or consent relating hereto including, without limitation, reasonable
attorneys' fees and costs and expenses, court costs and filing fees in
addition to all other amounts due hereunder whether or not such Enforcement
Costs are incurred in one or more proceedings.
"Existing Senior Facility" shall mean that certain credit facility pursuant
to that certain First Amended and Restated Credit Agreement dated as of
June 30, 1999, among the Guarantor, as Borrower, certain commercial lending
institutions set forth therein, as the Lenders, Administrative Agent, as
the L/C Issuer and administrative agent, Xxxxx Fargo Bank, N.A. as
Swingline Lender and Syndication Agent, and Bank of America, N.A., as
Documentation Agent as such agreement may be modified, amended, restated,
amended and restated, supplemented, replaced, refinanced or any provision
thereof waived. All terms of the Existing Senior Facility to which
reference is made herein, together with all related definitions, ancillary
provisions and related schedules, are hereby incorporated into this
Completion Guaranty by reference as though specifically set forth in this
Completion Guaranty. To the extent that the First Amended and Restated
Credit Agreement described above is replaced or refinanced, any reference
herein to a Section or Article of such First Amended and Restated Credit
Agreement shall refer to the corresponding Section or Article of such
replacement agreement. If the First Amended and Restated Credit Agreement
shall be terminated and not replaced or refinanced, the term "Existing
Senior Facility" shall refer to the First Amended and Restated Credit
Agreement or successor Existing Senior Facility as in effect on the date of
such termination.
"GAAP" shall mean the generally accepted accounting principles as in effect
from time to time in the United States.
"Guaranteed Obligations" means the obligations of the Guarantor under
Section 2 of this Completion Guaranty.
"Insolvency Proceeding" shall mean any case or proceeding, voluntary or
involuntary, under the Bankruptcy Code, or any similar existing or future
law of any jurisdiction, foreign, state or federal, relating to bankruptcy,
insolvency, reorganization or relief of debtors.
"Material Adverse Effect" means (x) a material adverse effect on the
financial condition, business or property of the Guarantor or on its
ability to perform in all material respects its obligations under any Loan
Document to which it is a party, (y) a material adverse effect on the
financial condition, business, property and ability of any other Project
Party to perform in all material respects its obligations under any Loan
Document to which it is a party or (z) a material impairment of the
validity or enforceability of, or a material impairment of the rights,
remedies or benefits available to the Administrative Agent, the Issuer or
the Lenders under any of the Loan Documents.
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2. Guaranty of Completion and Performance. The Guarantor absolutely,
unconditionally and irrevocably, on the terms and subject to the conditions
set forth herein, guarantees to the Administrative Agent and the Lenders
that:
(a) until terminated as provided in Section 3 hereof, promptly after
receipt by the Guarantor of any written notice from the Administrative
Agent specifying any of the obligations of the Credit Parties
specified in this clause that are not being complied with by the
Credit Parties, the Guarantor will perform or shall cause the Credit
Parties to perform the obligations set forth in Sections 7.1.10
[Project Costs], 7.1.12 [Diligent Construction of the Project], 7.1.13
[Compliance with Legal Requirements], 7.1.14 [In Balance; Borrower
Equity], 7.1.16 [Plans and Specifications], 7.1.17 [Construction
Consultant], 7.1.20 [Application of Insurance and Condemnation
Proceeds], 7.1.23 [Compliance with Material Project Documents] and
7.1.25 [Further Construction Undertakings] of the Credit Agreement;
(b) until terminated as provided in Section 3 hereof, promptly after
receipt by the Guarantor of any written notice from the Administrative
Agent specifying any of the obligations of the Credit Parties
specified in this clause that are not being complied with by the
Credit Parties, the Guarantor will perform or shall cause the Credit
Parties to perform the obligations set forth in Sections 7.2.16 [Scope
Changes] and 7.2.17 [Scope Changes and Amendments of Project Budget
and Construction Benchmark Schedule] of the Credit Agreement;
(c) in the event the Guarantor shall fail or refuse to pay or perform the
Guaranteed Obligations under this Completion Guaranty, the
Administrative Agent may pay or perform or cause the payment and
performance of the Guaranteed Obligations of the Guarantor hereunder
in which case the Guarantor, upon demand by the Administrative Agent,
shall pay any and all costs, expenses and liabilities for such costs
and expenses in connection with the Completion of the Project as
contemplated by the Credit Agreement, or cause any Lien in connection
with the Completion thereof or any claim or demand for the payment of
the cost of the Completion of the Project to be bonded, discharged,
released or paid as contemplated by the Credit Agreement, shall
reimburse the Administrative Agent for all sums paid and all
reasonable costs, expenses or liabilities incurred by the
Administrative Agent in connection therewith; and
(d) the Guarantor shall pay the Enforcement Costs.
3. Continuation of Guaranty. Subject to the following sentence, this
Completion Guaranty shall continue to be in full force and effect whether
or not the Obligations of the Borrower under the Credit Agreement have been
accelerated pursuant to the provisions of Section 8.2 or 8.3 thereof.
Subject to the provisions of Section 9 hereof, provided that any
Enforcement Costs owing hereunder have been paid, this Completion Guaranty
shall terminate upon submission by the Guarantor of a Final Completion
Certificate substantially in the form of Exhibit A hereto on or after the
earliest of the following dates: (i) the Final Completion Date, so long as
no Event of Default under and as defined
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in the Credit Agreement has occurred and is continuing, (ii) if an Event of
Default under and as defined in the Credit Agreement exists on the Final
Completion Date, the earlier of (x) the date of the cure or waiver of such
Event of Default, and (y) the date six months after the Final Completion
Date; provided, however, that if on such date an enforcement of a warranty
is being pursued, then the Completion Guaranty shall continue in effect but
only with respect to the enforcement action being pursued, and this
Completion Guaranty shall terminate with respect to such enforcement action
on the earlier of (A) the date of the cure of waiver of the Event of
Default existing on the Final Completion Date and not cured or waived on
the date six months after the Final Completion Date, and (B) the date of
the settlement or termination of the enforcement action being pursued as of
the date six months after the Final Completion Date, and (iii) the date on
which all Obligations are paid in full and the Commitments have been
terminated. Notwithstanding any other provision of this Completion
Guaranty, from and after the Final Completion Date and payment of any
Guaranteed Obligations owing as of such date, the Guarantor shall have no
further obligations hereunder except for the obligation to cause MDDC to
enforce its rights under construction warranties with respect to any
construction defects. All amounts received by the Administrative Agent
hereunder shall be applied by it to the satisfaction of the Guaranteed
Obligations and in accordance with the Loan Documents.
4. Proof of Damages. If the Guarantor shall at any time or from time to time
fail to perform or comply with any of the Guaranteed Obligations contained
herein and if for any reason the Administrative Agent has failed to receive
when due and payable the payment of any amount payable by the Guarantor
under this Completion Guaranty, then (i) it shall be assumed conclusively
without necessity of proof that such failure by the Guarantor was the sole
and direct cause of the Lenders failing to receive such payment when due
irrespective of any other contributing or intervening cause whatsoever, and
(ii) the Guarantor further irrevocably waives to the fullest extent
permitted by law any right or defense the Guarantor may have to cause the
Lenders to prove the cause or amount of such damages.
5. Rights of the Administrative Agent. The Guarantor authorizes the
Administrative Agent, on behalf of the Lenders, to perform any or all of
the following acts at any time in its sole discretion, all without notice
to the Guarantor and without affecting the payment and performance of the
Guaranteed Obligations by the Guarantor:
(a) The Administrative Agent and the Lenders may alter any terms of the
Loan Documents to which the Guarantor is not a party, including
renewing, compromising, extending, enforcing or accelerating, or
otherwise changing the time for payment of, or increasing or
decreasing the rate of interest on, the Loans or any part of them or
increasing or decreasing the amount of the Loans or any other fees
payable under the Loan Documents.
(b) The Administrative Agent and the Lenders may take and hold security
for the Loans, the Letters of Credit and the Borrower's other
obligations under the Credit Agreement, and the Guaranteed Obligations
under this Completion Guaranty, accept additional or substituted
security for any of the foregoing, and subordinate, exchange, enforce,
waive, release, compromise, fail to perfect and sell or otherwise
dispose of any such security.
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(c) The Administrative Agent and the Lenders may direct the order and
manner of any sale of all or any part of any security now or later to
be held for the Loans, the Letters of Credit, this Completion Guaranty
or any of the other Loan Documents, and may also bid at any such sale.
(d) The Administrative Agent and the Lenders may apply any payments or
recoveries from the Borrower, or any other source (other than the
Guarantor), and any proceeds of any security, to the Borrower's
obligations under the Loan Documents in such manner, order and
priority as they may elect, whether or not those Obligations are
supported by this Completion Guaranty or secured at the time of the
application.
(e) The Administrative Agent and the Lenders may release the Borrower of
its liability for the Obligations under the Credit Agreement or any
portion thereof.
(f) The Administrative Agent and the Lenders may substitute, add or
release any one or more guarantors or endorsers.
(g) In addition to the Obligations under the Credit Agreement, the
Administrative Agent and the Lenders may extend other credit to the
Borrower, its Affiliates and the Guarantor or their respective
Affiliates and may take and hold security for the credit so extended,
all without affecting the Guarantor's liability under this Completion
Guaranty.
(h) The Administrative Agent and the Lenders may change the terms or
conditions of disbursement of the Loans or the issuance of the Letters
of Credit.
(i) The Administrative Agent and the Lenders may advance additional funds
to the Borrower for any purpose.
6. Completion Guaranty to be Absolute. The Guarantor expressly agrees that
until the Final Completion Date the Guarantor shall not be released from
the Guaranteed Obligations hereunder by or because of:
(a) Any act or event which might otherwise discharge, reduce, limit or
modify the Guaranteed Obligations;
(b) Any waiver, extension, modification, forbearance, delay or other act
or omission of the Administrative Agent or the Lenders, or any failure
to proceed promptly or otherwise as against the Borrower, the
Guarantor, MDDC or any security,
(c) Any action, omission or circumstance which might increase the
likelihood that the Guarantor may be called upon to perform under this
Completion Guaranty or which might affect the rights or remedies of
the Guarantor as against the Borrower or MDDC; or
(d) Any dealings occurring at any time between the Borrower, MDDC, the
Guarantor, the Administrative Agent or any Lender, whether relating to
the Loans, the Letters of Credit or otherwise.
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The Guarantor hereby expressly waives and surrenders any defense to its
liability under this Completion Guaranty based upon any of the foregoing
acts, omissions, agreements, waivers or matters. It is the purpose and
intent of this Completion Guaranty that the Guaranteed Obligations shall be
absolute and unconditional under any and all circumstances.
7. Guarantor's Waivers. The Guarantor waives:
(a) Any right it may have to require the Administrative Agent or the
Lenders to proceed against the Borrower or MDDC, proceed against or
exhaust any security held from the Borrower, or MDDC, or pursue any
other remedy in their power to pursue;
(b) Any defense based on any claim that the Guaranteed Obligations exceed
or are more burdensome than those of the Borrower or MDDC;
(c) Any defense based on: (i) any legal disability of the Borrower or
MDDC, (ii) any release, discharge, modification, impairment or
limitation of the liability of the Borrower and/or MDDC under the Loan
Documents from any cause, whether consented to by the Administrative
Agent or any Lender or arising by operation of law or from any
Insolvency Proceeding, (iii) any rejection or disaffirmance of the
Loans or any security held for the Loans, in any Insolvency Proceeding
and (iv) the Guarantor's rights under applicable New Jersey law, the
Guarantor specifically agreeing that this clause (iv) shall constitute
a waiver of discharge under applicable New Jersey law;
(d) Any defense based on any action taken or omitted by the Administrative
Agent or any Lender in any Insolvency Proceeding involving the
Borrower or MDDC, including any election to have a claim allowed as
being secured, partially secured or unsecured, any extension of credit
by the Administrative Agent or any Lender to the Borrower in any
Insolvency Proceeding, and the taking and holding by the
Administrative Agent or any Lender of any security for any such
extension of credit;
(e) All presentments, demands for performance, protests, notices of
protest, notices of dishonor, notices of acceptance of this Completion
Guaranty and of the existence, creation, or incurring of new or
additional indebtedness, and demands and notices of every kind;
(f) Any defense based on or arising out of any defense that the Borrower
or MDDC may have to the payment or performance of the Obligations
under the Credit Agreement or any portion of such Obligations; and
(g) Any defense or benefit based on applicable New Jersey law and judicial
decisions relating thereto and applicable New Jersey law and judicial
decisions relating thereto.
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8. Waivers of Subrogation and Other Rights.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent in its sole discretion (except where
the consent of all Lenders or Required Lenders is otherwise required
pursuant to the Loan Documents), without prior notice to or consent of
the Guarantor, may elect to: (i) foreclose either judicially or
nonjudicially against any real or personal property security for the
Obligations under the Loan Documents, (ii) accept a transfer of any
such security in lieu of foreclosure, (iii) compromise or adjust the
Loans or any part thereof or any of the Letters of Credit or make any
other accommodation with the Borrower, MDDC or the Guarantor, or (iv)
exercise any other remedy against the Borrower, MDDC or any security.
No such action by the Administrative Agent or any Lender shall release
or limit the liability of the Guarantor, who shall remain liable under
this Completion Guaranty after the action, even if the effect of the
action is to deprive the Guarantor of any subrogation rights, rights
of indemnity, or other rights to collect reimbursement from the
Borrower or MDDC for any sums paid to the Administrative Agent or the
Lenders, whether contractual or arising by operation of law or
otherwise. The Guarantor expressly waives any defenses or benefits
that may be derived from applicable New Jersey law and judicial
decisions relating thereto, or provisions of New Jersey law which are
comparable to California Civil Procedure Sections 580a, 590b, 580d, or
726 or comparable provisions of the laws of any other jurisdiction,
and all other suretyship defenses they otherwise might or would have
under New Jersey law or other applicable law. The Guarantor expressly
agrees that under no circumstances shall it be deemed to have any
right, title, interest or claim in or to any real or personal property
to be held by the Administrative Agent or any Lender or any third
party after any foreclosure or transfer in lieu of foreclosure of any
security for the Obligations under the Credit Agreement.
(b) Regardless of whether the Guarantor may have made any payments to the
Administrative Agent or any Lender, the Guarantor hereby waives: (i)
all rights of subrogation, all rights of indemnity; and any other
rights to collect reimbursement from the Borrower or MDDC for any sums
paid to the Administrative Agent or any Lender, whether contractual or
arising by operation of law (including the Bankruptcy Code) or
otherwise, (ii) all rights to enforce any remedy that the
Administrative Agent or any Lender may have against the Borrower or
MDDC or any other Person, and (ii) all rights to participate in any
security now or later to be held by the Administrative Agent or any
Lender for the Obligations under the Credit Agreement. The waivers
given in this Section 8(b) shall be effective until the Loans and all
other Obligations under the Credit Agreement have been indefeasibly
paid and performed in full and all Commitments have been terminated.
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(c) The Guarantor understands and acknowledges that if the Administrative
Agent or any Lender forecloses judicially or nonjudicially against any
real property security for the Obligations under the Loan Documents,
that foreclosure could impair or destroy any ability that the
Guarantor may have to seek reimbursement, contribution or
indemnification from the Borrower, or MDDC, or others based on any
right the Guarantor may have of subrogation, reimbursement,
contribution or indemnification for any amounts paid by the Guarantor
under this Completion Guaranty. The Guarantor further understands and
acknowledges that in the absence of this Section 8, such potential
impairment or destruction of the Guarantor's rights, if any, may
entitle the Guarantor to assert a defense to this Completion Guaranty.
By executing this Completion Guaranty, the Guarantor freely,
irrevocably and unconditionally: (i) waives and relinquishes that
defense and agrees that the Guarantor will be fully liable under this
Completion Guaranty even though the Administrative Agent or the
Lenders may foreclose judicially or nonjudicially against any real
property security for the Obligations under the Loan Documents; (ii)
agrees that the Guarantor will not assert that defense in any action
or proceeding which the Administrative Agent or the Lenders may
commence to enforce this Completion Guaranty; and (iii) acknowledges
and agrees that the Administrative Agent and the Lenders are relying
on this waiver in making the Loans and issuing the Letters of Credit,
and that this waiver is a material part of the consideration which
they are receiving for making the Loans and issuing the Letters of
Credit.
9. Revival and Reinstatement. If the Lenders are required to pay, return or
restore to the Guarantor any amounts previously paid with respect to the
Guaranteed Obligations because of any Insolvency Proceeding of the
Guarantor, any stop notice or any other reason, the Guaranteed Obligations
shall be reinstated and revived and the rights of the Administrative Agent
and the Lenders shall continue with regard to such amounts, as though they
had never been paid. This provision shall survive any termination of this
Completion Guaranty.
10. Representations and Warranties. The Guarantor hereby represents and
warrants unto the Administrative Agent and each Lender as follows:
(a) The execution, delivery and performance by the Guarantor of this
Completion Guaranty are within the Guarantor's corporate powers, have
been duly authorized by all necessary corporate action, and do not
(i) contravene the Guarantor's Organizational Documents;
(ii) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the
Guarantor or any of its properties; or
(iii) result in, or require the creation or imposition of, any Lien on
any of the Guarantor's properties.
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(b) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or other
Person is required for the due execution, delivery or performance by
the Guarantor of this Completion Guaranty.
(c) This Completion Guaranty constitutes the legal, valid and binding
obligations of the Guarantor enforceable in accordance with its terms
except as enforceability may be subject applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors rights generally, and/or
general principles of equity.
(d) By its execution hereof, the Guarantor hereby also represents and
warrants that as of the date hereof:
(i) the representations and warranties set forth in Article VI of
the Existing Senior Facility (excluding, however, those
contained in Section 6.7) are true and correct in all material
respects with the same effect as if now made (unless stated to
relate solely to an early date, in which case such
representations and warranties were true and correct as of such
earlier date);
(ii) no labor controversy, litigation, action, arbitration or
governmental investigation or proceeding is pending or, to the
knowledge of the Guarantor, threatened against the Guarantor or
any of its Subsidiaries which if adversely determined may
reasonably be expected to have a Material Adverse Effect; and
(iii) no Default (as defined in the Existing Senior Facility) has
occurred and is continuing under the Existing Senior Facility.
11. Affirmative Covenants. Subject to Section 3, until the Final Completion
Date, the Guarantor agrees as follows:
(a) The Guarantor will furnish to the Administrative Agent copies of the
following financial statements, reports, notices and information:
(i) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal
Year of the Guarantor, consolidated balance sheets of the
Guarantor and its Subsidiaries as of the end of such Fiscal
Quarter and consolidated statements of income and cash flow of
the Guarantor and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified
by the chief financial officer of the Guarantor;
(ii) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Guarantor, a copy of the annual
audit report for such Fiscal Year for the Guarantor and its
Subsidiaries, including therein
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consolidated balance sheets of the Guarantor and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of income and cash flow of the Guarantor and its
Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification, as such term is
defined in the Existing Senior Facility) in a manner acceptable
to the Administrative Agent by Deloitte & Touche or other
independent public accountants reasonably acceptable to the
Administrative Agent (as such term is defined in the Existing
Senior Facility);
(iii) promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of the
Guarantor by independent accountants in connection with the
accounts or books of the Guarantor or any of its Subsidiaries,
or any audit of any of them;
(iv) as soon as possible and in any event within five days after the
Guarantor obtains knowledge of the occurrence of any Default
under the Existing Senior Facility, a statement of an
Authorized Officer of the Guarantor setting forth details of
such Default and the action which the Guarantor has taken and
proposes to take with respect thereto;
(v) as soon as possible and in any event within five days after the
Guarantor obtains knowledge of the (x) occurrence of any
material adverse development with respect to any labor
controversy, litigation, action or proceeding described in
Section 6.7 of the Existing Senior Facility (including, without
limitation, the entry against the Guarantor or any of its
Subsidiaries of a judgment in excess of $1,000,000) or (y)
commencement of any material labor controversy, litigation,
action or proceeding of the type described in Section 6.7 of
the Existing Senior Facility, notice thereof and, as promptly
as possible, but in no event later than ten Business Days after
such event, copies of all documentation relating thereto;
(vi) promptly after the sending or filing thereof, copies of all
reports which the Guarantor sends to any of its security
holders and copies of all material filings that the Guarantor
makes with any regulatory commission having jurisdiction over
the Guarantor (except to the extent that such reports are
restricted from disclosure by the particular regulatory
agency), and all reports and registration statements which the
Guarantor or any of its Subsidiaries files with the Securities
and Exchange Commission or any national securities exchange;
(vii) promptly upon becoming aware of the institution of any steps by
the Guarantor or any other Person to terminate any Pension
Plan, or the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a
Lien under section 302(f) of ERISA, or the taking of any action
with respect to a Pension Plan which is reasonably
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likely to result in the requirement that the Guarantor furnish
a bond or other security to the PBGC or such Pension Plan, or
the occurrence of any event with respect to any Pension Plan
which is reasonably likely to result in the incurrence by the
Guarantor of any material liability, fine or penalty, or any
material increase in the contingent liability of the Guarantor
with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating
thereto; and
(viii) such other information respecting the condition or operations,
financial or otherwise, of the Guarantor or any of its
Subsidiaries as any Lender or the Administrative Agent may from
time to time reasonably request.
(b) The Guarantor agrees that it will perform, comply with and be bound by
all of its agreements, covenants and obligations contained in Article
VII of the Existing Senior Facility (other than Section 7.1 thereof).
(c) The Guarantor agrees that it will maintain a minimum of $50,000,000 of
unused and available commitments under its Existing Senior Facility
that it can borrow in accordance with the terms thereof.
12. Negative Covenants. Subject to Section 3, until the Final Completion Date,
the Guarantor agrees that the Guarantor will perform, comply with and be
bound by all of its agreements, covenants and obligations contained in
Article VIII of the Existing Senior Facility.
13. Payments. All payments to be made hereunder by the Guarantor shall be made
in lawful money of the United States of America at the time of payment,
shall be made in immediately available funds, and shall be made without
setoff, deduction (whether for Taxes, excluding taxes imposed on or
measured by net income or receipts, or otherwise) or counterclaim.
14. Consequences of Specified Events. Subject to Section 3, if at any time
prior to the Final Completion Date (each of the following, a "Specified
Event"),
(a) The Guarantor shall fail to pay within three days of the date when due
any payment required to be made under this Completion Guaranty.
(b) Any representation or warranty of the Guarantor made hereunder or in
any other Loan Document or any other writing or certificate furnished
by or on behalf of the Guarantor to the Administrative Agent of any
Lender for the purposes of or in connection with the Completion
Guaranty is or shall be incorrect when made in any material respect.
(c) The Guarantor shall default in the due performance and observance of
any of its obligations under Section 11(a) and such default shall
continue unremedied for a period of thirty days after notice thereof
shall have been given to the Guarantor by the Administrative Agent;
provided, however, that the cure or waiver of Event of Default under
the Existing Senior Facility shall result in automatic cure of the
corresponding Event of Default under this Section 14(c) without any
action by any party hereto.
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(d) The Guarantor shall default in the due performance and observance of
any of its obligations under Section 11(b) or Section 12 and such
default shall continue unremedied for the applicable cure period
therefor; provided, however, that the cure or waiver of Event of
Default under the Existing Senior Facility shall result in automatic
cure of the corresponding Event of Default under this Section 14(d)
without any action by any party hereto.
(e) The Guarantor shall default in the due performance and observance of
its obligations under Section 11(c) and such default shall continue
unremedied for a period of two Business Days.
(f) An Event of Default shall have occurred and be continuing under the
Existing Senior Facility provided, however, that the cure or waiver of
Event of Default under the Existing Senior Facility shall result in
automatic cure of the corresponding Event of Default under this
Section 14(f) without any action by any party hereto;
Then, at the option of the Required Lenders, an Event of Default shall
exist under this Completion Guaranty and the Lenders, without any further
notice to the Guarantor or any other Person, shall be entitled to exercise
all rights and remedies available hereunder, under the other Loan Documents
and at law and equity; provided, however, the Required Lenders may, at
their option, demand performance by the Guarantor of the Guaranteed
Obligations without declaring an Event of Default under the other Loan
Documents.
15. Miscellaneous Provisions.
(a) This Completion Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
(b) This Completion Guaranty shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns; provided, however, that the Guarantor may not assign or
transfer its obligations hereunder without the prior written consent
of the Administrative Agent and all Lenders, which consent shall be
determined in good faith in their sole discretion.
(c) The provisions of this Completion Guaranty may from time to time be
amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Guarantor and the Required
Lenders (unless the other Loan Documents would require such amendment
to be consented to by all Lenders).
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(d) All notices and other communications provided to any party hereto
under this Completion Guaranty shall be in writing and addressed,
delivered or transmitted to such party at its address or facsimile
number set forth below its signature hereto or set forth in the Lender
Assignment Agreement or Term Lender Joinder Agreement or at such other
address or facsimile number as may be designated by such party in a
notice to the other parties. All such notices and communications shall
be deemed to have been properly given if (i) hand delivered with
receipt acknowledged by the recipient; (ii) if mailed, upon the fifth
Business Day after the date on which it is deposited in registered or
certified mail, postage prepaid, return receipt requested or (iii) if
by Federal Express or other nationally-recognized express courier
service with instructions to deliver on the following Business Day, on
the next Business Day after delivery to such express courier service.
Notices and other communications may also be properly given by
facsimile but shall be deemed to be received upon automatic facsimile
confirmation of receipt thereof by the intended recipient's machine
with the original of such notice or communication to be given in the
manner provided in the second sentence of this Section; provided,
however, that the failure to deliver a copy in accordance with the
second sentence of this Section shall not invalidate the effectiveness
of such facsimile notice.
If to the Administrative Agent: Canadian Imperial Bank of Commerce
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Attn: Xx. Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: CIBC World Markets Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Guarantor Xxxx Gaming Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Xxxx Gaming Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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(e) No failure or delay on the part of the Administrative Agent or any
Lender in exercising any power or right under this Completion Guaranty
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No
notice to or demand on the Guarantor in any case shall entitle it to
any notice or demand in similar or other circumstances. No waiver or
approval by the Administrative Agent or any Lender under this
Completion Guaranty shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
(f) The various headings of this Completion Guaranty are inserted for
convenience only and shall not affect the meaning or interpretation of
this Completion Guaranty or any provisions hereof.
(g) Any provision of this Completion Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Completion Guaranty or affecting the validity or enforceability of
such provision in any other jurisdiction.
(h) THIS COMPLETION GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK). THIS COMPLETION GUARANTY AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO AND THERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND SUPERSEDE ANY AND ALL PRIOR AGREEMENTS, WRITTEN OR ORAL,
WITH RESPECT THERETO.
(i) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS COMPLETION GUARANTY, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUER OR THE GUARANTOR IN
CONNECTION HEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK, IN NEW YORK COUNTY OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE
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OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR
HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM (THE "PROCESS
AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX,
XXX XXXX 00000, XXXXXX XXXXXX, AS ITS AGENT TO RECEIVE, ON THE
GUARANTOR'S BEHALF AND ON BEHALF OF THE GUARANTOR'S PROPERTY, SERVICE
OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE
BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE GUARANTOR IN
CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND
THE GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS
AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD
OF SERVICE, THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 15(D). THE GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS COMPLETION GUARANTY.
(j) BY THEIR ACCEPTANCE OF THIS COMPLETION GUARANTY THE ADMINISTRATIVE
AGENT, THE LENDERS, THE ISSUER AND THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS COMPLETION GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE
ISSUER OR THE GUARANTOR IN CONNECTION HEREWITH OR THEREWITH. THE
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND
THE LENDERS ENTERING INTO EACH LOAN DOCUMENT TO WHICH SUCH PERSON IS A
PARTY.
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IN WITNESS WHEREOF, the Guarantor has caused this Completion Guaranty to be
duly executed and delivered by its officers thereunto duly authorized as of the
date first above written.
XXXX GAMING CORPORATION,
a Nevada corporation
By:
-------------------------------
Title: Executive Vice President
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