EXHIBIT 10.28
MASTER AGREEMENT
P A R T I E S :
This Master Agreement (this "Agreement") is entered into effective as of
the 27th day of February, 1998, by and among the following parties:
a. Redwood Gaming Limited Liability Company (formerly known as Golden
Gate Gaming, limited liability company) ("Redwood");
b. Xxxxxx X. XxXxxxxxx, Xx. ("EJD");
c. Xxxxxxx X. XxXxxxxxx ("CRD"); and
d. Hollywood Casino Corporation ("Hollywood").
R E F E R E N C E S :
Reference is made to the following:
a. Note and Warrant Purchase Agreement (including any and all further
amendments thereto, the "Warrant Agreement"), dated as of November
16, 1995, executed by and among Redwood, EJD, CRD and Hollywood;
b. Promissory Note (Series A) (the "Series A Note"), dated November 16,
1995, in the original principal sum of $5,000,000, executed by
Redwood, payable to the order of Hollywood;
c. Promissory Note (Series B-Subject to Mandatory Exercise Right) (the
"Series B Note"), dated November 16, 1995, in the original principal
sum of $5,000,000, executed by Redwood, payable to the order of
Hollywood;
d. Letter (the "Default Notice") dated February 2, 1998, from Hollywood
to Redwood, EJD, CRD, and others, giving notice of the Event of
Default referenced below;
e. Letter (the "Acceleration Notice") dated February 14, 1998, from
Hollywood to Redwood, EJD, CRD, and others, giving notice of the
acceleration of the maturities of the Series A Note and the Series B
Note (the "Notes"); and
f. All other documents executed in connection with or as security for
the Warrant Agreement, the Series A Note and the Series B Note
(together, and including any and all further renewals, extensions,
amendments and modifications thereto, the "Loan Documents").
MASTER AGREEMENT - Page 1
Capitalized terms used in this Agreement and not defined in this Agreement
shall have the meanings given such terms in the Warrant Agreement.
R E C I T A L S :
a. Default has occurred under the Warrant Agreement by reason of the
failure by Redwood to pay the portion of the Unpaid Balance under the Notes, as
it became due and payable on February 1, 1998, and the continuation of such
failure for a period of ten (10) days following the notice thereof, as given by
the Default Notice, which constitutes an Event of Default under Section 2.4(i)
of the Warrant Agreement.
b. As of the date hereof, the Event of Default identified in Recital a
remains uncured; and Hollywood has accelerated the maturities of the Notes, as
evidenced by the Acceleration Notice.
c. Redwood has requested that Hollywood forbear from demanding immediate
payment in full of the Notes, that Hollywood forbear from exercising Hollywood's
rights under the Warrant Agreement, and that Hollywood rearrange and restructure
the indebtedness evidenced by the Notes, under certain terms and conditions,
which are set forth in this Agreement.
d. Hollywood has agreed to forebear and to restructure the Notes, as
requested above by Redwood, subject to the terms and conditions of this
Agreement.
A G R E E M E N T S :
Now, therefore, in consideration of the premises stated above and other
good and valuable consideration, the receipt and adequacy of which are
acknowledged and confessed hereby, the parties agree as follows:
1. Present Balance. As of the 27th day of February, 1998, the outstanding
principal balance of the Series A Note (exclusive of interest, costs, fees, and
expenses of Hollywood) is $5,000,000, and the outstanding principal balance of
the Series B Note (exclusive of interest, costs, fees, and expenses of
Hollywood) is $5,000,000.
2. Exchange of Series A Note. Subject to the terms and conditions set
forth in this Agreement and expressly conditioned upon satisfaction and
fulfillment of each of the conditions precedent set forth in Sections 3 and 6
below, Hollywood agrees to surrender the Series A Note to Redwood in exchange
for the payments and documents described in Section 3 below.
3. Specific Conditions Precedent to Exchange of Series A Note. The
following are conditions precedent to Hollywood's agreement as set forth in
Section 2, above, each of which must be satisfied not later than 5:00 p.m.,
Dallas, Texas time, February 27, 1998, unless a different time is specified
below for a particular condition precedent:
MASTER AGREEMENT - Page 2
a. Cash Payment. Redwood shall have paid to Hollywood, in
immediately available funds, by wire transfer, not later than 12:00 Noon,
Dallas, Texas time, February 27, 1998, the sum of Four Million Four
Hundred Thousand and No/100 Dollars ($4,400,000.00), in accordance with
the following wiring instructions:
Xxxxx Fargo Bank
ABA #000000000
to credit:
Hollywood Casino Corporation
Account #4159754662.
b. $600,000 Note. Redwood shall have executed and delivered to
Hollywood a Promissory Note (the "$600,000 Note") in the principal amount
of Six Hundred Thousand and No/100 Dollars, which $600,000 Note shall be
in the form attached to this Agreement as Exhibit A, and shall bear
interest and be payable as provided for therein.
c. Shearwater Obligation. As security for the $600,000 Note,
XxXxxxxxx Entertainment, Limited Liability Company shall have executed and
delivered to Hollywood a Security Agreement (the "Shearwater Security
Agreement") granting to Hollywood a security interest in and to that
certain reimbursement obligation of BPMP Family Partners, Ltd. ("BPMP") to
XxXxxxxxx Entertainment, Limited Liability Company (the "Shearwater
Obligation"). The Shearwater Security Agreement shall be in the form
attached to this Agreement as Exhibit B. Redwood shall have delivered to
Hollywood true and complete copies of the documentation evidencing
Shearwater Obligation.
d. EJD Guaranty. EJD shall have executed and delivered to Hollywood
a personal guaranty of payment (the "$600,000 Springing Guaranty") of the
$600,000 Note. The $600,000 Springing Guaranty shall be in the form
attached to this Agreement as Exhibit C and automatically will take
effect, without the necessity of any further action by Hollywood, Redwood
or EJD, upon the consummation of the refinancing, repayment or
restructuring (the "Existing Bank Debt Restructure") of certain
obligations of XxXxxxxxx, Inc. and The Xxxxxx X. XxXxxxxxx Corporation, as
borrowers (the "Borrowers"), under the following:
(i) Second Amended and Restated Restructuring Facility
Agreement dated as of March 31, 1994, among the Borrowers, Xxxxx
Fargo Realty Advisors Funding, Incorporated, as the Administrative
Agent, and certain Co-Lenders; and
(ii) Second Amended and Restated New Facility Credit Agreement
dated as of March 31, 1994, among the Borrowers, Xxxxx Fargo Bank,
N.A., as the Issuing Bank, certain Co-Lenders, and Xxxxx Fargo
Realty Advisors Funding, Incorporated, as the Administrative Agent.
x. Xxxxxxxx Guaranty. Xxxxxx Xxxxxxxx, Xx. shall have executed and
delivered to Hollywood a personal guaranty of payment (the "$600,000
Muransky Guaranty") of the
MASTER AGREEMENT - Page 3
$600,000 Note. The $600,000 Muransky Guaranty shall be in the form
attached to this Agreement as Exhibit D.
If all of the terms of this Section 3 are not satisfied and fulfilled in a
timely manner, then the surrender of the Series A Note referred to in Section 2
is void ab initio and shall be of no force or effect; and the parties shall be
relegated to their respective positions they occupied prior to the execution of
this Agreement; EXCEPT THAT the $4,400,000 cash payment described in Section 3a
above shall be retained by Hollywood and re-characterized as a voluntary partial
payment of the Unpaid Balance.
4. Exchange of Series B Note. Subject to the terms and conditions set
forth in this Agreement and expressly conditioned upon satisfaction and
fulfillment of each of the conditions precedent set forth in Sections 5 and 6
below, Hollywood agrees to surrender the Series B Note to Redwood in exchange
for a five percent (5%) membership interest in Redwood (the "Redwood Interest")
and the payments and documents described in Section 5 below.
5. Conditions Precedent to Exchange of Series B Note. The following are
conditions precedent to Hollywood's agreement as set forth in Section 5, above,
each of which must be satisfied not later than 5:00 p.m., Dallas, Texas time,
February 27, 1998, unless a different time is specified below for a particular
condition precedent:
a. Membership Interest. Redwood shall have delivered to Hollywood a
certificate representing the Redwood Interest, as having been registered
in the name of Hollywood.
b. Put Agreement. Redwood shall have executed and delivered to
Hollywood an option agreement (the "Put Option") granting Hollywood the
right, at Hollywood's option, commencing 3 days after Hollywood's receipt
of the Redwood Interest and at any time thereafter so long as Hollywood,
its successors and assigns holds the Redwood Interest, to "put" the
Redwood Interest in exchange for a promissory note in the principal amount
of $ 1,000,000 executed by Redwood and payable to the order of Hollywood
(the "$1,000,000 A Note"), which $1,000,000 A Note will accrue interest
from the date of issuance at an annual rate of 13% and will be due and
payable one year after its execution. The Put Option shall be in the form
attached to this Agreement as Exhibit E. The $1,000,000 A Note shall be in
the form attached to this Agreement as Exhibit F. The $1,000,000 A Note
shall be supported by EJD's personal guaranty of payment (the "$1,000,000
Springing A Guaranty"). The $1,000,000 Springing A Guaranty shall be in
the form attached to this Agreement as Exhibit G and automatically will
take effect, without the necessity of any further action by Hollywood,
Redwood, or EJD, upon the consummation of the Existing Bank Debt
Restructure.
c. Additional Note and Guaranty. Redwood shall have executed and
delivered to Hollywood, subject to the provisions of Section 5e below, an
additional promissory note in the principal amount of $ 1,000,000 payable
to the order of Hollywood (the "$1,000,000 B Note"), which $1,000,000 B
Note will accrue interest from the date of issuance at an
MASTER AGREEMENT - Page 4
annual rate of 13% and will be due and payable one year after its
execution. The $1,000,000 B Note shall be in the form attached to this
Agreement as Exhibit H. The $1,000,000 B Note shall be supported by EJD's
personal guaranty of payment (the "$1,000,000 Springing B Guaranty"). The
$1,000,000 Springing B Guaranty shall be in the form attached to this
Agreement as Exhibit I and automatically will take effect, without the
necessity of any further action by Hollywood, Redwood, or EJD, upon the
consummation of the Existing Bank Debt Restructure.
d. Escrow Agreement. Redwood and EJD shall have executed and
delivered to Hollywood an escrow agreement (the "Escrow Agreement"),
placing the $1,000,000 A Note and the $1,000,000 Springing A Guaranty in
escrow pending exercise of the Put Option, and placing the $1,000,000 B
Note and the $1,000,000 Springing B Guaranty in escrow pending the earlier
of (i) delivery to Hollywood of the $600,000 Letter of Credit and the
$1,000,000 Letter of Credit (as such terms are defined in Section 6,
below, and together, the "Letters of Credit"), if the Letters of Credit
are not delivered to Hollywood at the Closing, or (ii) sixty (60) days
from the date of the Closing. The Escrow Agreement shall be in the form
attached to this Agreement as Exhibit H.
e. Additional Escrow Provisions. In the event that both of the
Letters of Credit are delivered to Hollywood at the Closing, then the
$1,000,000 B Note and the $1,000,000 Springing B Guaranty shall be
returned to Redwood. In the event that either of the Letters of Credit is
not delivered to Hollywood at the Closing, then the $1,000,000 B Note and
the $1,000,000 Springing B Guaranty shall be placed in escrow, under the
Escrow Agreement, pending the earlier to occur of (i) delivery of both of
the Letters of Credit, or (ii) sixty (60) days from the Closing. If the
Letters of Credit are not delivered to Hollywood as provided in this
Agreement or in the Escrow Agreement within sixty (60) days after the
Closing, then the $1,000,000 B Note and the $1,000,000 Springing B
Guaranty described in Section 5c above shall be released from the escrow
and delivered to Hollywood.
6. General Conditions Precedent to Exchange of Notes. The following are
conditions precedent to Hollywood's agreements as set forth in Sections 2 and 4
above, each of which must be satisfied not later than 5:00 p.m., Dallas, Texas
time, February 27, 1998, unless a different time is specified below for a
particular condition precedent:
a. Master Agreement. Redwood, EJD and CRD shall have executed and
delivered this Agreement to Hollywood not later than 12:00 Noon, Dallas,
Texas time, February 27, 1998.
b. Resolutions of Redwood. Redwood shall deliver to Hollywood
appropriate resolutions or consents in connection with the execution and
delivery of this Agreement.
c. Resolutions of XxXxxxxxx Entertainment, Limited Liability
Company. XxXxxxxxx Entertainment, Limited Liability Company shall deliver
to Hollywood appropriate resolutions or consents in connection with the
execution and delivery of this Agreement.
MASTER AGREEMENT - Page 5
d. No Breach. Redwood shall not have breached any of the terms,
conditions, representations, warranties, or agreements of Redwood under
this Agreement.
e. No Default. Other than the default described in the Default
Notice and Acceleration Notice, no default under the Warrant Agreement
shall have occurred and be continuing, unless such default has been waived
expressly by this Agreement.
f. Attorneys' Fees. Redwood shall have reimbursed Hollywood for
Hollywood's attorneys' fees incurred in connection with preparing this
Agreement and other documents contemplated by this Agreement, not to
exceed $20,000.
g. $600,000 Letter of Credit. Xxxxxx Xxxxxxxx, Xx. shall provide
Hollywood with a letter of credit (the "$600,000 Letter of Credit"),
issued by a reputable financial institution reasonably satisfactory to
Hollywood securing payment of the $600,000 Note. The $600,000 Letter of
Credit shall be in the form attached to this Agreement as Exhibit K, and
shall be drawable if the Existing Bank Debt Restructure fails to occur by
June 30, 1998.
h. $1,000,000 Letter of Credit. CRD shall provide Hollywood with a
letter of credit (the "$1,000,000 Letter of Credit"), issued by a
reputable financial institution reasonably satisfactory to Hollywood
securing payment of the $1,000,000 Note. The $1,000,000 Letter of Credit
shall be in the form attached to this Agreement as Exhibit L, and shall be
drawable if the Existing Bank Debt Restructure fails to occur by June 30,
1998.
7. Covenant Regarding Existing Bank Debt Restructure. Redwood and EJD
agree to promptly notify Hollywood of the completion of the Existing Bank Debt
Restructure, and, prior to completion of the Existing Bank Debt Restructure, to
provide Hollywood such information as Hollywood reasonably may request from time
to time regarding the status of the negotiations and documentation pertaining to
the Existing Bank Debt Restructure.
8. Representations and Warranties. Redwood, CRD and EJD hereby represent
and warrant to Hollywood as follows:
a. Each of Redwood, CRD and EJD has the power and authority to
execute and deliver this Agreement and each of the other documents and
instruments to which each is a party and to consummate the transactions
and perform its obligations contemplated hereby and thereby.
b. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary actions of Redwood. This Agreement constitutes the legal, valid
and binding obligation of Redwood, CRD and EJD, enforceable against each
of them in accordance with its terms.
c. The consummation of the transactions contemplated hereby will not
(i) violate any provision of the organizational documents or governing
instruments of Redwood, (ii) violate any judgment, order, ruling,
injunction, degree or award of any court, administrative
MASTER AGREEMENT - Page 6
agency or governmental body against, or binding upon, Redwood, CRD or EJD,
or (iii) constitute a violation by Redwood, CRD or EJD of any law or
regulation of any jurisdiction applicable to Redwood, CRD or EJD.
d. This Agreement was reviewed by EJD, CRD and Redwood (or its
authorized officer), each of whom acknowledges and agrees that he or she,
as the case may be, (i) understands fully the terms of this Agreement and
the consequences of the issuance hereof, (ii) has been afforded an
opportunity to have this Agreement reviewed by, and to discuss this
Agreement with, such attorneys and other persons as he or she, as the case
may be, may wish, and (iii) has entered into this Agreement of his or her
own free will and accord and without threat or duress.
e. This Agreement and all information furnished to Hollywood is made
and furnished in good faith, for value and valuable consideration, and has
not been made or induced by any fraud, duress or undue influence exercised
by Hollywood or any other person.
9. Misrepresentation. Redwood, CRD and EJD shall jointly and severally
indemnify and hold Hollywood harmless from and against any losses, damages,
costs and expenses (including attorneys' fees) incurred by Hollywood as a direct
or indirect result of (i) breach of any representation or warranty contained in
this Agreement, or (ii) any breach or default under any of the covenants or
agreements contained in this Agreement.
10. Subordination and Waiver of Subrogation. Notwithstanding any payment
or payments made by EJD on behalf of or for the account of Redwood, EJD shall
not be subrogated to any rights of Hollywood until all of the indebtedness of
Redwood to Hollywood shall have been paid and performed in full. Any claim of
EJD against Redwood arising from any payment or payments made by EJD by reason
of this Agreement or otherwise shall be in all respects subordinated to the full
and complete payment and discharge of the indebtedness of Redwood to Hollywood;
and no payment by EJD by reason of this Agreement or otherwise shall give rise
to any claim of EJD against Hollywood. Unless and until the indebtedness shall
have been paid and discharged in full, EJD will not assign or otherwise transfer
any such claim against Redwood to any other person or entity.
11. No Counterclaims.
a. Redwood Counterclaims. Each of Redwood, CRD and EJD declares that
neither Redwood, CRD nor EJD has any set-off, counterclaim, defense or
other causes of action (together, the "Redwood Counterclaims") against
Hollywood arising out of the transactions evidenced by the Notes, the
Warrant Agreement and the Loan Documents, and any transactions that were
renewed or extended by the Loan Documents. To the extent any Redwood
Counterclaims may exist, whether known or unknown, such are waived and
released hereby by Redwood, CRD and EJD.
MASTER AGREEMENT - Page 7
b. Hollywood Counterclaims. Hollywood declares that Hollywood does
not have any set-off, counterclaim, defense or other causes of action
(together, the "Hollywood Counterclaims") against Redwood, CRD or EJD
arising out of the transactions evidenced by the Notes, the Warrant
Agreement and the Loan Documents, and any transactions that were renewed
or extended by the Loan Documents, EXCEPT FOR claims existing under the
Notes, the Warrant Agreement and the Loan Documents pursuant to the terms
thereof. To the extent any Hollywood Counterclaims may exist, whether
known or unknown, such are waived and released hereby by Hollywood.
Notwithstanding the foregoing, this waiver and release shall not be
construed to waive or release any rights of Hollywood existing or arising
under the Notes, the Warrant Agreement and the Loan Documents pursuant to
the terms thereof or under this Agreement or the documents executed in
connection with or as security for this Agreement.
12. Hold Harmless. Redwood, CRD and EJD agree to indemnify and hold
Hollywood harmless from any and all Redwood Counterclaims that Redwood, CRD, EJD
or any other person or entity claiming by, through, or under Redwood, CRD or EJD
may at any time assert against Hollywood. Likewise, Hollywood agrees to
indemnify and hold Redwood, CRD and EJD harmless from any and all Hollywood
Counterclaims that Hollywood or any other person or entity claiming by, through,
or under Hollywood may at any time assert against Redwood, CRD and EJD.
Notwithstanding the foregoing, Hollywood's indemnification and agreement to hold
harmless shall not be construed to indemnify against or hold harmless from
Hollywood Counterclaims existing or arising under the Notes, the Warrant
Agreement and the Loan Documents pursuant to the terms thereof or under this
Agreement or the documents executed in connection with or as security for this
Agreement.
13. Costs and Expenses. Redwood agrees to pay to Hollywood the reasonable
attorneys' fees and expenses of Hollywood's counsel, filing and recording fees
and other reasonable expenses incurred by Hollywood in connection with this
Agreement and the transactions contemplated hereby, up to a maximum amount of
$20,000.
14. No Commitment. Redwood, CRD and EJD agree that Hollywood has made no
commitment or other agreement regarding the Notes, the Warrant Agreement, or the
Loan Documents, except as expressly set forth in this Agreement. Redwood, CRD
and EJD warrant and represent that neither Redwood, CRD nor EJD will rely on any
commitment, further agreement to forbear or other agreement on the part of
Hollywood unless such commitment or agreement is in writing and signed by
Hollywood.
15. Survival. All representations, warranties, covenants and agreements of
the parties made in this Agreement shall survive the execution and delivery
hereof, until such time as all of the obligations of the parties hereto shall
have lapsed in accordance with their respective terms or shall have been
discharged in full.
16. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
MASTER AGREEMENT - Page 8
17. Modifications and Waivers. No delay on the part of Hollywood in
exercising any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any waiver of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder, 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 hereunder. All rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity. No waiver or modification, discharge or
amendment of this Agreement will be valid in the absence of the written and
signed consent of the party against which enforcement of such is sought.
18. Entire Agreement. This Agreement, together with the other documents
and instruments referenced herein, contains the entire agreement between the
parties relating to the transaction contemplated hereby. All prior agreements,
understandings, representations and statements, whether written or oral
(including specifically, but without limitation, the letter from Hollywood to
Redwood, dated February 12, 1998), are merged herein.
19. Governing Law. This Agreement shall be construed in accordance with
the applicable laws of the State of Texas and applicable federal law. In the
event of a dispute involving this Agreement or any other instruments executed in
connection herewith, the undersigned irrevocably agrees that venue for such
dispute shall lie in any court of competent jurisdiction in Dallas County,
Texas.
20. Counterparts. This Agreement may be executed in one or more
counterparts, all of which when taken together shall be deemed to be one
original.
21. Time of Essence. The parties to this Agreement have agreed
specifically with regard to the times for performance set forth in this
Agreement. Further, the parties to this Agreement acknowledge that the
agreements with regard to the times for performance are material to this
Agreement. Therefore, the parties agree and acknowledge that time is of the
essence to this Agreement.
MASTER AGREEMENT - Page 9
Executed effective the 27th day of February, 1998.
REDWOOD:
REDWOOD GAMING LIMITED LIABILITY COMPANY
(formerly known as Golden Gate Gaming,
limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
EJD:
/s/ Xxxxxx X. XxXxxxxxx, Xx.
---------------------------------
Xxxxxx X. XxXxxxxxx, Xx.
CRD:
/s/ Xxxxxxx X. XxXxxxxxx
---------------------------------
Xxxxxxx X. XxXxxxxxx
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
MASTER AGREEMENT - Page 10
Exhibits:
A - $600,000 Note
B - Shearwater Security Agreement
C - $600,000 Springing Guaranty
D - $600,000 Muransky Guaranty
E - Put Option
F - $1,000,000 A Note
G - $1,000,000 Springing A Guaranty
H - $1,000,000 B Note
I - $1,000,000 Springing B Guaranty
J - Escrow Agreement
K - $600,000 Letter of Credit
L - $1,000,000 Letter of Credit
MASTER AGREEMENT - Page 11
EXHIBIT A
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. IT
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITY UNDER
SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MAKER (AND ANY
PERSON THAT SUCCEEDS TO OR ASSUMES ITS OBLIGATIONS UNDER THIS SECURITY)
THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUIT TO RULE 144
OF SUCH ACT.
PROMISSORY NOTE
$600,000.00 Dallas, Texas February 27, 1998
FOR VALUE RECEIVED, the undersigned, Redwood Gaming Limited Liability
Company, an Ohio limited liability company (formerly known as Golden Gate
Gaming, limited liability company) ("Maker"), hereby unconditionally promises to
pay to the order of Hollywood Casino Corporation, a Delaware corporation
("Payee"), the principal sum of Six Hundred Thousand and No/100 Dollars
($600,000.00), in lawful money of the United States of America, together with
interest (calculated on the basis of a 365 or 366-day year, as appropriate), on
the unpaid principal balance from day-to-day remaining, computed from the date
hereof until maturity at the rate per annum which shall from day-to-day be equal
to thirteen percent (13%); provided, however, all past due principal of and, to
the extent permitted by applicable law, interest on this Note shall bear
interest at the rate per annum which shall from day-to-day be equal to the
lesser of (a) the Maximum Rate, or (b) eighteen percent (18%).
The term "Maximum Rate," as used herein, shall mean, with respect to the
holder hereof, the maximum nonusurious interest rate, if any, that at any time,
or from time to time, may be contracted for, taken, reserved, charged, or
received on the indebtedness evidenced by this Note. To the extent that Chapter
303 of the Texas Finance Code, as amended, is relevant to any holder of this
Note for the purposes of determining the Maximum Rate, the Payee hereby notifies
Maker that the "applicable ceiling" shall be the "weekly ceiling" referred to in
Chapter 303 of the Texas Finance Code from time to time in effect, as limited
therein; provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable ceiling" from time to time by
further notice and disclosure to Maker; and, provided further, that the "Maximum
Rate" for purposes of this Note shall not be limited to the applicable ceiling
under Chapter 303 of the Texas Finance Code if federal laws or other state laws
now or hereafter in effect and applicable to this Note (and the interest
contracted for, charged and collected hereunder) shall permit a higher rate of
interest.
This Note has been executed and delivered pursuant to, and is subject to
certain terms and conditions set forth in, that certain Master Agreement (the
"Agreement") among Maker, Xxxxxx X. XxXxxxxxx, Xx., Xxxxxxx X. XxXxxxxxx and
Payee, executed as of the date hereof, and is the "600,000 Note" referred to
therein.
PROMISSORY NOTE ($600,000) - Page 1
Payment for all amounts due hereunder shall be made by wire transfer of
federal funds to Payee to the account designated by Payee from time to time so
that such funds are available to Payee on or before the date such funds are due
hereunder or by any other means agreed to, in writing, by Payee.
The principal of and interest upon the Note shall be due and payable on
August 31, 1998.
Maker and each surety, endorser, guarantor and other party ever liable for
payment of any sums of money payable on this Note, jointly and severally waive
presentment, protest, notice of protest and non-payment, or other notice of
default, notice of acceleration and intention to accelerate, and agree that
their liability under this Note shall not be affected by any renewal or
extension in the time of payment hereof, or in any indulgences, or by any
release or change in any security for the payment of this Note, and hereby
consent to any and all renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions, indulgences, releases or
changes.
No waiver by Payee of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise shall be considered
a waiver of any other subsequent right or remedy of Payee; no delay or omission
in the exercise or enforcement by Payee of any rights or remedies shall ever be
construed as a waiver of any right or remedy of Payee; and no exercise or
enforcement of any such rights or remedies shall ever be held to exhaust any
right or remedy of Payee.
Regardless of any provisions contained in this Note, the Agreement or any
other document executed or delivered in connection therewith, Payee shall never
be deemed to have contracted for or be entitled to receive, collect or apply as
interest on this Note, any amount in excess of the Maximum Rate, and, in the
event that Payee ever receives, collects or applies as interest any such excess,
such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance of this Note, and, if the principal balance of
this Note is paid in full, any remaining excess shall forthwith be paid to
Maker. In determining whether or not the interest paid or payable under any
specific contingency exceeds the Maximum Rate, Maker and Payee shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest,
(ii) exclude voluntary pre-payments and the effect thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout such term; provided, that if this
Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, if any, Payee or any holder hereof shall
refund to Maker the amount of such excess.
This Note is being executed and delivered, and is intended to be performed
in the State of Texas. Except to the extent that the laws of the United States
may apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this Note.
In the event of a dispute involving this Note or any other instruments executed
in connection herewith, the undersigned irrevocably agrees that venue for such
dispute shall lie in any court of competent jurisdiction in Dallas County,
Texas.
PROMISSORY NOTE ($600,000) - Page 2
This Note is given in renewal, extension, modification and amendment (and
not in novation or extinguishment), in part, of that certain Promissory Note
(Series A) in the stated principal amount of $5,000,000.00, dated November 16,
1995, executed by Maker and payable to the order of Payee.
MAKER:
REDWOOD GAMING LIMITED LIABILITY
COMPANY
(formerly known as Golden Gate Gaming,
limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
Address:
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
PROMISSORY NOTE ($600,000) - Page 3
EXHIBIT B
SECURITY AGREEMENT
Collateral Assignment of
Reimbursement Obligation
This Security Agreement (Collateral Assignment of Reimbursement
Obligation) (this "Agreement") is entered into effective the 27th day of
February, 1998.
I. Parties, Collateral and Obligations.
XxXxxxxxx Entertainment, Limited Liability Company, a Ohio limited
liability company (the "Debtor"), whose address is 0000 Xxxxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxxxxx, Xxxx 00000-0000, for valuable consideration, receipt of which
is hereby acknowledged, hereby grants to Hollywood Casino Corporation (the
"Secured Party"), whose address is Two Galleria Tower, LB48, 00000 Xxxx Xxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, a security interest in the following described
reimbursement obligation (the "Reimbursement Obligation"):
that certain Reimbursement Obligation of BPMP Family Partners, Ltd.
("BPMP") pursuant to Section 5.2 of that certain Contribution & Assignment
Agreement, dated July 28, 1995, by and between BPMP and Debtor;
and together with all proceeds, moneys, payments, income, collections and
benefits attributable or accruing to the Reimbursement Obligation; and in the
event that Debtor shall receive any such, Debtor will hold same in trust for
Secured Party and will not commingle same with other moneys or property of
Debtor and will deliver promptly same to Secured Party to be held by Secured
Party hereunder in the same manner as the Reimbursement Obligation is held
hereunder. The Reimbursement Obligation and all other collateral of all kinds in
which Secured Party is herein granted a security interest or acquires a security
interest hereunder shall hereinafter be called the "Collateral."
The security interest granted herein secures the payment of all
liabilities of Redwood Gaming Limited Liability Company (formerly known as
Golden Gate Gaming, limited liability company) ("Redwood") to Secured Party
pursuant to that certain Promissory Note (the "Principal Note"), dated February
27, 1998, in the original principal amount of Six Hundred Thousand and No/100
Dollars ($600,000.00), executed by Redwood and payable to the order of Secured
Party, and including costs and expenses and attorneys' fees and legal expenses,
all in accordance with the terms of the Principal Note and this Agreement
(collectively, the "Obligations") and all renewals, extensions and
rearrangements of the Obligations. Unless otherwise agreed, all of the
Obligations shall be payable at the offices of Secured Party in the City of
Dallas, Dallas County, Texas.
Debtor hereby assigns, transfers, delivers and grants a security interest
in the Collateral to Secured Party to secure payment of all of the Obligations.
II. Warranties, Covenants and Agreements of Debtor.
Debtor hereby warrants, covenants and agrees as follows.
(1) Except for the security interest granted by this Agreement, Debtor is
the owner and holder of the Collateral free of any adverse claim, security
interest or encumbrance and has full power and lawful authority to sell and
assign the same; and Debtor will defend the Collateral against all claims and
demands of all persons at any time claiming the Collateral or any interest in
the Collateral.
(2) The Reimbursement Obligation is not subject to any set-offs,
counterclaims or credit.
(3) Debtor has not heretofore signed any financing statement, and no
financing statement is now on file in any public office covering any property of
Debtor of any kind, real or personal, tangible or intangible, or in which Debtor
is named as or has signed as "debtor," (other than such financing statements, if
any, of which written notice, together with true and correct copies thereof,
have heretofore been given by Debtor to Secured Party), and so long as any
amount remains unpaid on any indebtedness or liabilities of Redwood to Secured
Party or any credit from Secured Party to Redwood is in use by or available to
Redwood, Debtor will not execute and there will not be on file in any public
office any such financing statement or statements other than financing
statements in favor of Secured Party hereunder, unless the prior written
specific consent and approval of Secured Party shall have first been obtained.
Debtor authorizes Secured Party to file, in jurisdictions where this
authorization will be given effect, a financing statement signed only by Secured
Party covering the Collateral. At the request of Secured Party, Debtor will join
Secured Party in executing one or more financing statements, pursuant to the
Uniform Commercial Code, in form satisfactory to Secured Party, and will pay the
cost of filing the same of filing or recording this Agreement in all public
offices at anytime and from time to time whenever filing or recording of any
such financing statement or of this Security Agreement is deemed by Secured
Party to be necessary or desirable, it being further stipulated in this regard
that Secured Party may also at any time or times sign any counterpart of this
Agreement singed by Debtor and file this Agreement as a financing statement if
Secured Party shall elect so to do.
(4) Debtor will not sell or offer to sell or otherwise transfer or
encumber of dispose of the Collateral or any interest therein without the
written consent of Secured Party.
(5) Debtor will keep the Collateral free from any adverse lien, security
interest or encumbrance.
III. Further Agreements Between Debtor and Secured Party.
(1) Secured Party shall never be under any obligation to collect, attempt
to collect, protect or enforce the Reimbursement Obligation, which Debtor agrees
and undertakes to do at Debtor's expense; but Secured Party may do so in its
discretion at any time or times. Secured Party shall have the right to take any
steps by judicial process or otherwise it may deem proper from time to time to
effect the collection of all or any portion of the Reimbursement Obligation. All
expenses (including, without limitation, attorneys' fees and legal expenses)
actually incurred or paid by Secured Party in connection with or incident to any
such collection or attempt to collect the
Reimbursement Obligation shall be borne by Debtor or reimbursed by Debtor to
Secured Party upon demand. The proceeds of collection of the Reimbursement
Obligation shall be held by Secured Party without liability for interest thereon
and may be applied by Secured Party as Secured Party may deem appropriate toward
payment of the Principal Note or any other of the Obligations secured hereby,
whether or not then due, in such order or manner as Secured Party may elect.
(2) If any taxes or governmental assessments of any kind or character
shall be levied upon or against the Reimbursement Obligation, the same shall be
promptly paid before delinquency by Debtor. If any of such taxes or governmental
assessments are not paid by Debtor prior to delinquency thereof, Secured Party
may, at its option, pay and discharge such taxes or assessments and any
interest, costs or penalties in connection therewith, or any part thereof, and
shall be the sole judge as to the validity and effect thereof and as to the
amount necessary to pay and discharge same.
(3) In the event Secured Party shall pay any such taxes, assessments,
interest, costs, penalties or expenses incident to or in connection with the
collection of the Reimbursement Obligation, Debtor, upon demand of Secured
Party, shall pay to Secured Party the full amount thereof with interest at the
maximum rate permitted by law from their respective dates of payment by Secured
Party until repaid to Secured Party in full. So long as Secured Party shall be
entitled to any such payment, this Security Agreement shall operate as security
therefor as fully and to the same extent as it operates as security for payment
of the Principal Note; and for the enforcement of such repayment, Secured Party
shall have every right and remedy provided for enforcement of payment of the
Principal Note.
(4) When the Principal Note and all other of the Obligations shall have
been paid in full, if this Security Agreement has not theretofore been
foreclosed, Secured Party or other holder of the Obligations shall reassign to
Debtor, without recourse or warranty, express or implied, the then existing
rights, titles and interests of Secured Party in and to the Reimbursement
Obligation, the costs of such reassignment to be borne by Debtor. Secured Party
shall pay to Debtor the surplus money, if any, then in the possession of Secured
Party representing collections on or proceeds of the Reimbursement Obligation
not theretofore applied toward payment of the Obligations.
IV. Default.
Debtor shall be in default under this Agreement upon the happening of any
of the following events or conditions:
(1) Default in the payment when due of the principal of or interest on the
Principal Note or on any other of the Obligations;
(2) Failure or refusal of Debtor to perform or observe any of the
covenants, duties or agreements herein imposed upon or agreed to be performed or
observed by Debtor;
(3) Default in the performance of any agreement or obligation of Debtor or
of Redwood, any maker, endorser, guarantor or surety of any liability or
obligation of Debtor to the holder of the Obligations;
(4) Default in the payment of the Reimbursement Obligation or any part
thereof, when due;
(5) The levy of any attachment, execution or other process against Debtor
or any of the Collateral;
(6) Dissolution, termination of existence, insolvency or business failure
of Debtor or any endorser, guarantor or surety of any of the Obligations,
commission of an act of bankruptcy by, or appointment of receiver or other legal
representative for any part of the property of, assignment for the benefit of
creditors by, or the commencement of any proceedings under any bankruptcy or
insolvency law by or against, Debtor or any endorser, guarantor or surety for
any of the Obligations;
(7) Any warranty, representation or statement made in this Agreement or
made or furnished to Secured Party by or on behalf of Redwood in connection with
this Agreement or to induce Secured Party to make any loan to Redwood proves to
have been false in any material respect when made or furnished, or any financial
statement of Redwood or of any endorser, guarantor or surety on any of the
Obligations which has been or may be furnished to Secured Party by or on behalf
of Redwood or such guarantor, endorser or surety shall prove to be false in any
materially detrimental respect.
V. Remedies.
In the event of default in the payment of any of the Obligations or any
principal, interest or other amount payable thereunder when due, or upon the
happening of any default specified above, and at any time thereafter, at the
option of the holder thereof, any or all of the Obligations shall become
immediately due and payable without presentment or demand or any notice to
Debtor or any other person obligated thereon. Secured Party shall have and may
exercise with reference to the Collateral and Obligations any or all of the
rights and remedies of a secured party under the Uniform Commercial Code as
adopted in the State of Texas, and as otherwise granted herein or under any
other applicable law or under any other agreement executed by Debtor or Redwood,
including, without limitation, the right and power to sell, at public or private
sale or sales, or otherwise dispose of, lease or utilize the Collateral and any
part or parts thereof in any manner authorized or permitted under said Uniform
Commercial Code after default by a debtor, and to apply the proceeds thereof
toward payment of any costs and expenses and attorneys' fees and legal expenses
thereby incurred by Secured Party and toward payment of the Obligations in such
order or manner as Secured Party may elect. To the extent permitted by law,
Debtor expressly waives any notice of sale or other disposition of the
Collateral and any other rights or remedies of Debtor or formalities prescribed
by law relative to sale or disposition of the Collateral or exercise of any
other right or remedy of Secured Party existing after default hereunder. To the
extent any such notice is required and cannot be waived, Debtor agrees that if
such notice is mailed postage prepaid, to Debtor at the address shown herein at
least five (5) days before the time of the sale or disposition, such notice
shall be deemed reasonable and shall fully satisfy any requirement for giving of
said notice.
Secured Party is expressly granted the right, at its option, to transfer
at any time to itself or to its nominee the Collateral, or any part thereof, and
to receive the proceeds, payments, collections, moneys, income or benefits
attributable or accruing thereto and to hold the same as security for the
Obligations or to apply it to the principal and interest or other amounts owing
on any of the Obligations, whether or not then due, in such order or manner as
Secured Party may elect.
All rights to marshaling of assets of Debtor, including any such right
with respect to the Reimbursement Obligation, are waived hereby.
All recitals in any instrument of assignment or any other instrument
executed by Secured Party incident to sale, transfer, assignment or other
disposition or utilization of the Collateral or any part thereof hereunder shall
be full proof of the matters stated therein. No other proof shall be requisite
to establish full legal propriety of the sale or other action taken by Secured
Party or of any fact, condition or thing incident thereto. All prerequisites of
such sale or other action or of any fact, condition or thing incident thereto
shall be presumed conclusively to have been performed or to have occurred.
VI. General.
The execution and delivery of this Agreement in no manner shall impair or
affect any other security (by endorsement or otherwise) for the payment of the
Principal Note or any other of the Obligations. No security taken hereafter as
security for payment of the Principal Note or any other of the Obligations shall
impair in any manner or affect this Agreement, all such present and future
additional security to be considered as cumulative security. Any of the
Reimbursement Obligation or Collateral may be released from this Agreement
without altering, varying of diminishing in any way the force, effect, lien,
security interest or charge of this Agreement as to Reimbursement Obligation and
Collateral not expressly released. This Agreement shall continue as a first
lien, security interest and charge on all of the Reimbursement Obligation and
Collateral not expressly released until all sums and indebtedness secured hereby
have been paid in full. Any future assignment of the interest of Debtor in and
to any of the Reimbursement Obligation shall not deprive Secured Party of the
right to sell or otherwise dispose of or use all of the Reimbursement Obligation
as above provided or necessitate the sale or disposition thereof in parcels or
in severalty.
If maturity of the Obligations shall be accelerated for any reason, the
Obligations thereupon shall be credited for the full amount of any interest then
unearned which has been collected theretofore by Secured Party. Notwithstanding
any other provision in this Security Agreement or in the Obligations, Debtor
shall never be liable for unearned interest on the Obligations and shall never
be required to pay interest thereon at a rate in excess of the maximum rate
permitted by law.
Any deposit or other sums at any time credited by or due from the holder
of the Obligations to Debtor or any endorser, guarantor or surety of any of the
Obligations and any securities or other property of Debtor or any endorser,
guarantor or surety of any of the Obligations in the possession of the holder of
the Obligations may at all times be held and treated as additional and
cumulative collateral security for the payment of the Obligations. Debtor grants
Secured Party a security interest in all such deposits, sums, securities and
other property as additional and cumulative security for payment of the
Obligations. The holder of the Obligations may apply or set-off such deposits or
other sums against the Obligations at any time in the case of Debtor but only
with respect to matured liabilities in the case of the endorsers, guarantors or
sureties of any of the Obligations.
Secured Party may, at its option, whether or not Obligations are due,
demand, xxx for, collect or make any compromise or settlement it deems desirable
with reference to the Collateral. Secured Party shall not be obligated to take
any steps necessary to preserve any rights in the Collateral against other
parties, which Debtor hereby assumes to do.
No delay or omission on the part of Secured Party in exercising any right
hereunder shall operate as a waiver of any such right or any other right. A
waiver on anyone or more occasions shall not be construed as a bar to or waiver
of any right or remedy on any future occasion.
Any notice or demand to Debtor hereunder or in connection herewith may be
given and shall conclusively be deemed and considered to have been given and
received upon the deposit thereof, in writing, duly stamped and addressed to
Debtor at the address first shown hereinabove, in the U.S. Mails; but actual
notice, however given or received, shall always be effective.
All rights of Secured Party hereunder shall inure to the benefit of its
successors and assigns. All obligations of Debtor shall bind its successors or
assigns.
As used in this Agreement and when required by the context, each number
(singular and plural) shall include all numbers. Each gender shall include all
genders. Unless the context otherwise requires, the word "person" shall include
"corporation, firm or association."
SIGNED and delivered on the day and year first above written.
XXXXXXXXX ENTERTAINMENT, LIMITED
LIABILITY COMPANY
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
EXHIBIT C
SPRINGING GUARANTY
($600,000 Note)
This Springing Guaranty (the "Guaranty"), effective as of February 27,
1998, is made by Xxxxxx X. XxXxxxxxx, Xx. (the "Guarantor"), in favor of
Hollywood Casino Corporation (the "Lender").
WHEREAS, the Lender has entered into a Master Agreement dated as of
February 27, 1998 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time being the "Master Agreement") with Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company) (the "Borrower") and the Guarantor. It is a condition
precedent to the effectiveness of the Master Agreement that the Guarantor shall
have entered into this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lender to extend certain financial accommodations to Borrower pursuant to
the Master Agreement, and recognizing that Guarantor has benefited or shall
benefit directly or indirectly from such financial accommodations, and that but
for this Guaranty, Lender would not make such financial accommodations available
to Borrower, the Guarantor hereby agrees with the Lender as follows:
1. Guaranty. (a) Subject to the provisions of Section 2, below, the
Guarantor hereby, unconditionally and irrevocably, guarantees to the Lender the
prompt and complete payment and performance by the Borrower when due of its
obligations to the Lender under that certain Promissory Note (the "Note"), dated
February 27, 1998, in the original principal amount of Six Hundred Thousand and
No/100 Dollars ($600,000.00) (including, without limitation, all interest
thereon, whether accruing prior or subsequent to the commencement of a
bankruptcy or similar proceeding involving the Borrower as a debtor)
(collectively, the "Obligations"), and the Guarantor further agrees to pay any
and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantor under this Guaranty.
(b) No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other person or received or collected by the Lender from
the Borrower, the Guarantor, any other guarantor or any other person by virtue
of any action or proceeding or any setoff or appropriation or application at any
time or from time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the Obligations,
remain liable for the Obligations, subject to the conditions under Section 2(a)
above, until the Obligations are paid in full.
(c) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
2. Springing Nature of Guaranty. Notwithstanding anything herein to the
contrary, the Guarantor shall have no liability under this Guaranty unless and
until the Existing Bank Debt Restructure (as defined in the Master Agreement) is
consummated, at which time this Guaranty will automatically become valid,
binding and enforceable, in accordance with its terms, without any further
action by either the Lender, the Borrower or the Guarantor.
3. No Subrogation. Notwithstanding any payment or payments made by the
Guarantor hereunder, or any application of funds of the Guarantor by the Lender,
the Guarantor shall not be entitled to be subrogated to any of the rights of the
Lender against the Borrower nor shall the Guarantor have any rights of
reimbursement, assignment, indemnification or implied contract or any similar
rights against the Borrower or against any endorser or other guarantor of all or
any part of the Obligations, until all amounts owing to the Lender by the
Borrower for or on account of the Obligations or otherwise under this Guaranty
are paid in full. If, notwithstanding the foregoing, any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Lender, segregated from other funds of the Guarantor,
and shall, forthwith upon (and in any event within two (2) Business Days of)
receipt by the Guarantor, be turned over to the Lender, if required, in the
exact form received by the Guarantor (duly endorsed by the Guarantor to the
Lender, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Lender may determine.
4. Amendments, etc., With Respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lender, and the Note, and any other document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Lender may deem advisable from time to time, and any guaranty at any time held
by the Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. When making any demand hereunder against the Guarantor,
the Lender may, but shall be under no obligation to, make a similar demand on
the Borrower or the Guarantor or any other guarantor, and any failure by the
Lender to make any such demand or to collect any payments from the Borrower or
the Guarantor or any such other guarantor or any release of the Borrower or the
Guarantor or guarantor shall not relieve the Guarantor in respect of which a
demand or collection is not made or the Guarantor not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the Lender
against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
5. Guaranty Absolute and Unconditional; Termination. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Lender upon this Guaranty
or acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in
reliance upon this Guaranty; and all dealings between the Borrower or the
Guarantor, on the one hand, and the Lender, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. The Guarantor waives diligence, presentment, protest, demand for
payment, notice of intent to accelerate, notice of acceleration, and notice of
default or nonpayment to or upon the Borrower or itself with respect to the
Obligations. This Guaranty shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Note, any of the Obligations or guaranty, or (b) any
defense, setoff or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by the Borrower against the
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Borrower or any other person or
guaranty for the Obligations or any right of offset with respect thereto, and
any failure by the Lender to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other person or to realize upon any
such guarantee or to exercise any such right of offset, or any release of the
Borrower or any sch other person or any guaranty or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Lender against the Guarantor. This Guaranty shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and the successors and assigns thereof, and shall inure
to the benefit of the Lender, and its successors, endorsees, transferees and
assigns, until all the Obligations and the obligations of the Guarantor under
this Guaranty shall have been satisfied by payment in full, upon the occurrence
of all of which this Guaranty shall, subject to Section 5 hereof, terminate.
6. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
7. Payments. The Guarantor hereby agrees that the Obligations will be paid
to the Lender without setoff or counterclaim in U.S. dollars at the office of
the Lender located at Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX00,
Xxxxxx, Xxxxx 00000.
8. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Interest. All amounts payable from time to time by the Guarantor
hereunder shall bear interest at the per annum rate which shall from day-to-day
be equal to the lesser of (a) the Maximum Rate (as defined in the Note), or
(b) eighteen percent (18%).
10. Paragraph Headings. The paragraph headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
11. No Waiver; Cumulative Remedies. The Lender shall not by an act (except
by a written instrument pursuant to Paragraph 11 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
12. Waivers and Amendments; Successors and Assigns; Governing Law. None of
the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Guarantor and
the Lender, provided that any provision of this Guaranty may be waived by the
Lender in a letter or agreement executed by the Lender or by telex or facsimile
transmission from the Lender. This Guaranty shall be binding upon the heirs,
executors, administrators and personal representatives of the Guarantor and
shall inure to the benefit of the Lender and its successors and assigns. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS.
13. Notices. Notices by the Lender to the Guarantor may be given by mail,
by telex or by facsimile transmission, addressed to the Guarantor at its address
or transmission number set forth under its signature below and shall be
effective (a) if by registered or certified mail, return receipt requested,
three (3) Business Days following the date when sent, (b) if by telex, when sent
and answerback received, (c) if by overnight courier, when received, (d) if by
telecopier, when sent, or (e) if personally delivered or delivered by messenger,
when receipted for. The Guarantor may change its address and transmission
numbers by written notice to the Lender.
14. Submission to Jurisdiction; Waivers. (a) THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH
HE IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE
OF TEXAS, THE COURTS OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES TRIAL BY JURY AND ANY OBJECTION THAT HE MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HIM HIS ADDRESS SET FORTH UNDER HIS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
(b) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a)
ABOVE.
(c) THE GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE, IRRESPECTIVE OF THE NATURE OF
SUCH SETOFF, RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM, UNLESS SUCH SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF ANY APPLICABLE
FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER
ACTION.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
/s/ Xxxxxx X. XxXxxxxxx, Xx.
----------------------------
Xxxxxx X. XxXxxxxxx, Xx.
Address for Notices:
c/o Xxxxxx X. XxXxxxxxx Corporation
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT D
GUARANTY
($600,000 Note)
This Guaranty (the "Guaranty"), effective as of February 27, 1998, is made
by Xxxxxx X. Xxxxxxxx (the "Guarantor"), in favor of Hollywood Casino
Corporation (the "Lender").
WHEREAS, the Lender has entered into a Master Agreement dated as of
February 27, 1998 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time being the "Master Agreement") with Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company) (the "Borrower"). It is a condition precedent to the
effectiveness of the Master Agreement that the Guarantor shall have entered into
this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lender to extend certain financial accommodations to Borrower pursuant to
the Master Agreement, and recognizing that Guarantor has benefited or shall
benefit directly or indirectly from such financial accommodations, and that but
for this Guaranty, Lender would not make such financial accommodations available
to Borrower, the Guarantor hereby agrees with the Lender as follows:
1. Guaranty. (a) The Guarantor hereby, unconditionally and irrevocably,
guarantees to the Lender the prompt and complete payment and performance by the
Borrower when due of its obligations to the Lender under that certain Promissory
Note (the "Note"), dated February 27, 1998, in the original principal amount of
Six Hundred Thousand and No/100 Dollars ($600,000.00) (including, without
limitation, all interest thereon, whether accruing prior or subsequent to the
commencement of a bankruptcy or similar proceeding involving the Borrower as a
debtor) (collectively, the "Obligations"), and the Guarantor further agrees to
pay any and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantor under this Guaranty.
(b) No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other person or received or collected by the Lender from
the Borrower, the Guarantor, any other guarantor or any other person by virtue
of any action or proceeding or any setoff or appropriation or application at any
time or from time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the Obligations,
remain liable for the Obligations, subject to the conditions under Section 2(a)
above, until the Obligations are paid in full.
(c) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
2. No Subrogation. Notwithstanding any payment or payments made by the
Guarantor hereunder, or any application of funds of the Guarantor by the Lender,
the Guarantor shall not be entitled to be subrogated to any of the rights of the
Lender against the Borrower nor shall the Guarantor have any rights of
reimbursement, assignment, indemnification or implied contract or any similar
rights against the Borrower or against any endorser or other guarantor of all or
any part of the Obligations, until all amounts owing to the Lender by the
Borrower for or on account of the Obligations or otherwise under this Guaranty
are paid in full. If, notwithstanding the foregoing, any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Lender, segregated from other funds of the Guarantor,
and shall, forthwith upon (and in any event within two (2) Business Days of)
receipt by the Guarantor, be turned over to the Lender, if required, in the
exact form received by the Guarantor (duly endorsed by the Guarantor to the
Lender, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Lender may determine.
3. Amendments, etc., With Respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lender, and the Note, and any other document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Lender may deem advisable from time to time, and any guaranty at any time held
by the Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. When making any demand hereunder against the Guarantor,
the Lender may, but shall be under no obligation to, make a similar demand on
the Borrower or the Guarantor or any other guarantor, and any failure by the
Lender to make any such demand or to collect any payments from the Borrower or
the Guarantor or any such other guarantor or any release of the Borrower or the
Guarantor or guarantor shall not relieve the Guarantor in respect of which a
demand or collection is not made or the Guarantor not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the Lender
against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
4. Guaranty Absolute and Unconditional; Termination. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Lender upon this Guaranty
or acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Guaranty; and all dealings between the Borrower or the Guarantor, on
the one hand, and the Lender, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guaranty. The
Guarantor waives diligence, presentment, protest, demand for payment, notice of
intent to accelerate, notice of acceleration, and notice of default or
nonpayment to or upon the Borrower or itself with respect to the Obligations.
This Guaranty shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Note, any of the Obligations or guaranty, or (b) any defense,
setoff or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower against the
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Borrower or any other person or
guaranty for the Obligations or any right of offset with respect thereto, and
any failure by the Lender to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other person or to realize upon any
such guarantee or to exercise any such right of offset, or any release of the
Borrower or any sch other person or any guaranty or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Lender against the Guarantor. This Guaranty shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and the successors and assigns thereof, and shall inure
to the benefit of the Lender, and its successors, endorsees, transferees and
assigns, until all the Obligations and the obligations of the Guarantor under
this Guaranty shall have been satisfied by payment in full, upon the occurrence
of all of which this Guaranty shall, subject to Section 5 hereof, terminate.
5. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
6. Payments. The Guarantor hereby agrees that the Obligations will be paid
to the Lender without setoff or counterclaim in U.S. dollars at the office of
the Lender located at Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX00,
Xxxxxx, Xxxxx 00000.
7. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8. Interest. All amounts payable from time to time by the Guarantor
hereunder shall bear interest at the per annum rate which shall from day-to-day
be equal to the lesser of (a) the Maximum Rate (as defined in the Note), or
(b) eighteen percent (18%).
9. Paragraph Headings. The paragraph headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
10. No Waiver; Cumulative Remedies. The Lender shall not by an act (except
by a written instrument pursuant to Paragraph 11 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
11. Waivers and Amendments; Successors and Assigns; Governing Law. None of
the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Guarantor and
the Lender, provided that any provision of this Guaranty may be waived by the
Lender in a letter or agreement executed by the Lender or by telex or facsimile
transmission from the Lender. This Guaranty shall be binding upon the heirs,
executors, administrators and personal representatives of the Guarantor and
shall inure to the benefit of the Lender and its successors and assigns. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS.
12. Notices. Notices by the Lender to the Guarantor may be given by mail,
by telex or by facsimile transmission, addressed to the Guarantor at its address
or transmission number set forth under its signature below and shall be
effective (a) if by registered or certified mail, return receipt requested,
three (3) Business Days following the date when sent, (b) if by telex, when sent
and answerback received, (c) if by overnight courier, when received, (d) if by
telecopier, when sent, or (e) if personally delivered or delivered by messenger,
when receipted for. The Guarantor may change its address and transmission
numbers by written notice to the Lender.
13. Submission to Jurisdiction; Waivers. (a) THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH
HE IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF TEXAS, THE COURTS OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES TRIAL BY JURY AND ANY OBJECTION THAT HE MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HIM HIS ADDRESS SET FORTH UNDER HIS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
(b) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a)
ABOVE.
(c) THE GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE, IRRESPECTIVE OF THE NATURE OF
SUCH SETOFF, RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM, UNLESS SUCH SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF ANY APPLICABLE
FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER
ACTION.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Address for Notices:
c/x XxXxxxxxx Entertainment, Limited
Liability Company
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT E
PUT OPTION AGREEMENT
PUT OPTION AGREEMENT dated as of February 27, 1998 (the "Agreement") by
and between Hollywood Casino Corporation, a Delaware corporation ("Hollywood"),
and Redwood Gaming Limited Liability Company, an Ohio limited liability company
("Redwood").
RECITALS:
A. Hollywood has been issued a 5% membership interest in Redwood (the
"Redwood Interest"), and all members of Redwood have consented to the admission
of Hollywood as a Member in Redwood within the meaning of the Operating
Agreement of Redwood.
B. Redwood desires to grant to Hollywood the right to require Redwood to
purchase Redwood Interest on the terms set forth in this Agreement.
AGREEMENT:
1. Grant of Option. The Company hereby grants to Hollywood and each holder
of the Redwood Interest (the "Holder") an option to sell to Redwood, and Redwood
is obligated to purchase from the Holder under such option (the "Put Option"),
all of the Redwood Interest. The Put Option may be exercised at any time or
times after the third (3rd) full day after the date of this Agreement through
the first (1st) anniversary of this Agreement (the "Put Option Period").
2. Put Price. In the event that the Holder exercises the Put Option, the
price to be paid to the Holder pursuant to this Agreement will be a promissory
note in the form attached to this Agreement as Exhibit A in the original
principal amount of $1,000,000.00 (the "Note") and the springing guaranty of
Xxxxxx X. XxXxxxxxx, Xx. with respect thereto attached to this Agreement as
Exhibit B (the "Springing Guaranty").
3. Exercise of Put Option. The Put Option may be exercised during the Put
Option Period with respect to all, but not less than all, of the Redwood
Interest, by the Holder giving notice to Redwood during the Put Option Period
stating the Holder's election to exercise the Put Option and the date of the Put
Option Closing, which will be not sooner than the next business day after the
Put Option Notice is delivered to Redwood nor more than thirty (30) days after
the date of such notice.
4. Put Option Closing. The closing for the purchase and sale of the
Redwood Interest on exercise of the Put Option will be held at the office of
Hollywood on the date specified in such notice of exercise (a "Put Option
Closing"). At the Put Option Closing, the Holder will deliver documentation
sufficient to transfer the Redwood Interest to Redwood against payment therefor
by Redwood by issuance of the duly executed Note, which will be payable in the
manner designated by the Holder and the delivery of the duly executed Guaranty.
PUT OPTION AGREEMENT - Page 1
5. Representations and Covenants. Redwood represents and warrants to, and
covenants with, with Hollywood as follows:
a. Redwood has the power and authority to execute and deliver this
Agreement and to consummate the transactions and perform its obligations
contemplated by this Agreement.
b. The execution and delivery of this Agreement and the consummation
of the transactions contemplated by this Agreement have been duly
authorized by all necessary actions of Redwood. This Agreement constitutes
the legal, valid, and binding obligation of Redwood enforceable against it
in accordance with its terms.
c. The consummation of the transactions contemplated by this
Agreement will not (i) violate any provision of the organizational
documents or governing instruments of Redwood, (ii) violate any judgment,
order, ruling, injunction, degree, or award of any court, administrative
agency or governmental body against, or binding upon, Redwood or its
assets, or (iii) constitute a violation by Redwood of any law or
regulation of any jurisdiction applicable to Redwood.
d. This Agreement was reviewed by Redwood (or its authorized
representatives), and Redwood acknowledges that it (i) understands fully
the terms of this Agreement and the consequences of the execution of this
Agreement, (ii) has been afforded an opportunity to have this Agreement
reviewed by, and to discuss this Agreement with, such attorneys and other
persons Redwood may wish, and (iii) has entered into this Agreement of its
own free will and accord and with out threat or duress.
e. This Agreement and all information furnished to Hollywood is made
and furnished in good faith, for value and valuable consideration, and has
not been made or induced by any fraud, duress, or undue influence
exercised by Hollywood or any other person.
f. Redwood will not take, omit to take, or allow any person or
entity to take or omit to take any action that would impair in any respect
its ability to issue the Note on exercise of the Put Option or to make
payment thereon in accordance with its terms.
6. Survival. All representations, warranties, covenants, and agreements of
the parties made in this Agreement will survive the execution and delivery of
this Agreement, until such time as all of the obligations of the parties to this
Agreement have lapsed in accordance with their respective terms or have been
discharged in full.
7. Successors and Assigns. This Agreement will be binding upon and will
inure to the benefit of the parties to this Agreement and their respective
heirs, successors, and assigns.
8. Modifications and Waivers. No delay on the part of Hollywood in
exercising any right, power, or privilege under this Agreement will operate as a
waiver thereof, nor will any waiver
PUT OPTION AGREEMENT - Page 2
of any right, power, or privilege under this Agreement operate as a waiver of
any other right, power, or privilege under this Agreement, nor will any single
or partial exercise of any right, power, or privilege under this Agreement
preclude any other or further exercise thereof, or the exercise of any other
right, power, or privilege under this Agreement. All rights and remedies
provided in this Agreement are cumulative and are not exclusive of any rights or
remedies that the parties to this Agreement may otherwise have at law or in
equity. No waiver or modification, discharge, or amendment of this Agreement
will be valid in the absence of the written and signed consent of the party
against which enforcement of such is sought.
9. Governing Law. This Agreement will be construed in accordance with the
applicable substantive laws of the State of Texas and applicable federal law. In
the event of a dispute involving this Agreement or any other instruments
executed in connection with this Agreement, the undersigned irrevocably agrees
that venue for such dispute shall lie in any court of competent jurisdiction in
Dallas County, Texas.
10. Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together will be deemed to be one
original.
11. Time of Essence. The parties to this Agreement have agreed
specifically with regard to the times for performance set forth in this
Agreement. Further, the parties to this Agreement acknowledge that the
agreements with regard to the times for performance are material to this
Agreement. Therefore, the parties agree and acknowledge that time is of the
essence to this Agreement.
PUT OPTION AGREEMENT - Page 3
Executed effective the 27th day of February, 1998.
REDWOOD:
REDWOOD GAMING LIMITED LIABILITY COMPANY
(formerly known as Golden Gate Gaming,
limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
-------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
Exhibits:
A Form of Note
B Form of Guaranty
PUT OPTION AGREEMENT - Page 4
EXHIBIT A
FORM OF NOTE
[SEE EXHIBIT F]
PUT OPTION AGREEMENT - Page 5
EXHIBIT B
FORM OF NOTE
[SEE EXHIBIT G]
PUT OPTION AGREEMENT - Page 6
EXHIBIT F
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. IT MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITY UNDER SUCH ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MAKER (AND ANY PERSON THAT SUCCEEDS TO
OR ASSUMES ITS OBLIGATIONS UNDER THIS SECURITY) THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUIT TO RULE 144 OF SUCH ACT.
A-PROMISSORY NOTE
$1,000,000.00 Dallas, Texas February 27, 1998
FOR VALUE RECEIVED, the undersigned, Redwood Gaming Limited Liability
Company, an Ohio limited liability company (formerly known as Golden Gate
Gaming, limited liability company) ("Maker"), hereby unconditionally promises to
pay to the order of Hollywood Casino Corporation, a Delaware corporation
("Payee"), the principal sum of One Million and No/100 Dollars ($1,000,000.00),
in lawful money of the United States of America, together with interest
(calculated on the basis of a 365 or 366-day year, as appropriate), on the
unpaid principal balance from day-to-day remaining, computed from the date
hereof until maturity at the rate per annum which shall from day-to-day be equal
to thirteen percent (13%); provided, however, all past due principal of and, to
the extent permitted by applicable law, interest on this Note shall bear
interest at the rate per annum which shall from day-to-day be equal to the
lesser of (a) the Maximum Rate, or (b) eighteen percent (18%).
The term "Maximum Rate," as used herein, shall mean, with respect to the
holder hereof, the maximum nonusurious interest rate, if any, that at any time,
or from time to time, may be contracted for, taken, reserved, charged, or
received on the indebtedness evidenced by this Note. To the extent that Chapter
303 of the Texas Finance Code, as amended, is relevant to any holder of this
Note for the purposes of determining the Maximum Rate, the Payee hereby notifies
Maker that the "applicable ceiling" shall be the "weekly ceiling" referred to in
Chapter 303 of the Texas Finance Code from time to time in effect, as limited
therein; provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable ceiling" from time to time by
further notice and disclosure to Maker; and, provided further, that the "Maximum
Rate" for purposes of this Note shall not be limited to the applicable ceiling
under Chapter 303 of the Texas Finance Code if federal laws or other state laws
now or hereafter in effect and applicable to this Note (and the interest
contracted for, charged and collected hereunder) shall permit a higher rate of
interest.
This Note has been executed and delivered pursuant to, and is subject to
certain terms and conditions set forth in, that certain Master Agreement (the
"Agreement") among Maker, Xxxxxx X.
A-PROMISSORY NOTE ($1,000,000) - Page 1
XxXxxxxxx, Jr., Xxxxxxx X. XxXxxxxxx and Payee, executed as of the date hereof,
and is the "1,000,000 A Note" referred to therein.
Payment for all amounts due hereunder shall be made by wire transfer of
federal funds to Payee to the account designated by Payee from time to time so
that such funds are available to Payee on or before the date such funds are due
hereunder or by any other means agreed to, in writing, by Payee.
The principal of and interest upon the Note shall be due and payable on
February 27, 1999.
Maker and each surety, endorser, guarantor and other party ever liable for
payment of any sums of money payable on this Note, jointly and severally waive
presentment, protest, notice of protest and non-payment, or other notice of
default, notice of acceleration and intention to accelerate, and agree that
their liability under this Note shall not be affected by any renewal or
extension in the time of payment hereof, or in any indulgences, or by any
release or change in any security for the payment of this Note, and hereby
consent to any and all renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions, indulgences, releases or
changes.
No waiver by Payee of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise shall be considered
a waiver of any other subsequent right or remedy of Payee; no delay or omission
in the exercise or enforcement by Payee of any rights or remedies shall ever be
construed as a waiver of any right or remedy of Payee; and no exercise or
enforcement of any such rights or remedies shall ever be held to exhaust any
right or remedy of Payee.
Regardless of any provisions contained in this Note, the Agreement or any
other document executed or delivered in connection therewith, Payee shall never
be deemed to have contracted for or be entitled to receive, collect or apply as
interest on this Note, any amount in excess of the Maximum Rate, and, in the
event that Payee ever receives, collects or applies as interest any such excess,
such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance of this Note, and, if the principal balance of
this Note is paid in full, any remaining excess shall forthwith be paid to
Maker. In determining whether or not the interest paid or payable under any
specific contingency exceeds the Maximum Rate, Maker and Payee shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest, (ii)
exclude voluntary pre-payments and the effect thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout such term; provided, that if this
Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, if any, Payee or any holder hereof shall
refund to Maker the amount of such excess.
A-PROMISSORY NOTE ($1,000,000) - Page 2
This Note is being executed and delivered, and is intended to be performed
in the State of Texas. Except to the extent that the laws of the United States
may apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this Note.
In the event of a dispute involving this Note or any other instruments executed
in connection herewith, the undersigned irrevocably agrees that venue for such
dispute shall lie in any court of competent jurisdiction in Dallas County,
Texas.
This Note is given in renewal, extension, modification and amendment (and
not in novation or extinguishment) of that certain Promissory Note (Series
B-Subject to Mandatory Exercise Right) in the stated principal amount of
$5,000,000.00, dated November 16, 1995, executed by Maker and payable to the
order of Payee.
MAKER:
REDWOOD GAMING LIMITED LIABILITY
COMPANY
(formerly known as Golden Gate Gaming,
limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
Address:
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
A-PROMISSORY NOTE ($1,000,000) - Page 3
EXHIBIT G
SPRINGING A GUARANTY
($1,000,000 A Note)
This Springing Guaranty (this "Guaranty"), effective as of February 27,
1998, is made by Xxxxxx X. XxXxxxxxx, Xx. (the "Guarantor"), in favor of
Hollywood Casino Corporation (the "Lender").
WHEREAS, the Lender has entered into a Master Agreement dated as of
February 27, 1998 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time being the "Master Agreement") with Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company) (the "Borrower") and the Guarantor. It is a condition
precedent to the effectiveness of the Master Agreement that the Guarantor shall
have entered into this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lender to extend certain financial accommodations to Borrower pursuant to
the Master Agreement, and recognizing that Guarantor has benefited or shall
benefit directly or indirectly from such financial accommodations, and that but
for this Guaranty, Lender would not make such financial accommodations available
to Borrower, the Guarantor hereby agrees with the Lender as follows:
1. Guaranty. (a) Subject to the provisions of Section 2, below, the
Guarantor hereby, unconditionally and irrevocably, guarantees to the Lender the
prompt and complete payment and performance by the Borrower when due of its
obligations to the Lender under that certain A-Promissory Note (the "Note"),
dated February 27, 1998, in the original principal amount of One Million and
No/100 Dollars ($1,000,000.00) (including, without limitation, all interest
thereon, whether accruing prior or subsequent to the commencement of a
bankruptcy or similar proceeding involving the Borrower as a debtor)
(collectively, the "Obligations"), and the Guarantor further agrees to pay any
and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantor under this Guaranty.
(b) No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other person or received or collected by the Lender from
the Borrower, the Guarantor, any other guarantor or any other person by virtue
of any action or proceeding or any setoff or appropriation or application at any
time or from time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the Obligations,
remain liable for the Obligations, subject to the conditions under Section 2(a)
above, until the Obligations are paid in full.
(c) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
2. Springing Nature of Guaranty. Notwithstanding anything herein to the
contrary, the Guarantor shall have no liability under this Guaranty unless and
until the Existing Bank Restructure (as defined in the Master Agreement) is
consummated, at which time this Guaranty will automatically become valid,
binding and enforceable, in accordance with its terms, without any further
action by either the Lender, the Borrower or the Guarantor.
3. No Subrogation. Notwithstanding any payment or payments made by the
Guarantor hereunder, or any application of funds of the Guarantor by the Lender,
the Guarantor shall not be entitled to be subrogated to any of the rights of the
Lender against the Borrower nor shall the Guarantor have any rights of
reimbursement, assignment, indemnification or implied contract or any similar
rights against the Borrower or against any endorser or other guarantor of all or
any part of the Obligations, until all amounts owing to the Lender by the
Borrower for or on account of the Obligations or otherwise under this Guaranty
are paid in full. If, notwithstanding the foregoing, any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Lender, segregated from other funds of the Guarantor,
and shall, forthwith upon (and in any event within two (2) Business Days of)
receipt by the Guarantor, be turned over to the Lender, if required, in the
exact form received by the Guarantor (duly endorsed by the Guarantor to the
Lender, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Lender may determine.
4. Amendments, etc., With Respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lender, and the Note, and any other document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Lender may deem advisable from time to time, and any guaranty at any time held
by the Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. When making any demand hereunder against the Guarantor,
the Lender may, but shall be under no obligation to, make a similar demand on
the Borrower or the Guarantor or any other guarantor, and any failure by the
Lender to make any such demand or to collect any payments from the Borrower or
the Guarantor or any such other guarantor or any release of the Borrower or the
Guarantor or guarantor shall not relieve the Guarantor in respect of which a
demand or collection is not made or the Guarantor not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the Lender
against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
5. Guaranty Absolute and Unconditional; Termination. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Lender upon this Guaranty
or acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Guaranty; and all dealings between the Borrower or the Guarantor, on
the one
hand, and the Lender, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guaranty. The Guarantor
waives diligence, presentment, protest, demand for payment, notice of intent to
accelerate, notice of acceleration, and notice of default or nonpayment to or
upon the Borrower or itself with respect to the Obligations. This Guaranty shall
be construed as a waiver of intent to accelerate continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Note, any of the Obligations or guaranty, or (b) any
defense, setoff or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by the Borrower against the
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Borrower or any other person or
guaranty for the Obligations or any right of offset with respect thereto, and
any failure by the Lender to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other person or to realize upon any
such guarantee or to exercise any such right of offset, or any rlease of the
Borrower or any such other person or any guaranty or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Lender against the Guarantor. This Guaranty shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and the successors and assigns thereof, and shall inure
to the benefit of the Lender, and its successors, endorsees, transferees and
assigns, until all the Obligations and the obligations of the Guarantor under
this Guaranty shall have been satisfied by payment in full, upon the occurrence
of all of which this Guaranty shall, subject to Section 5 hereof, terminate.
6. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
7. Payments. The Guarantor hereby agrees that the Obligations will be paid
to the Lender without setoff or counterclaim in U.S. dollars at the office of
the Lender located at Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX00,
Xxxxxx, Xxxxx 00000.
8. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Interest. All amounts payable from time to time by the Guarantor
hereunder shall bear interest at the per annum rate which shall from day-to-day
be equal to the lesser of (a) the Maximum Rate (as defined in the Note), or
(b) eighteen percent (18%).
10. Paragraph Headings. The paragraph headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
11. No Waiver; Cumulative Remedies. The Lender shall not by an act (except
by a written instrument pursuant to Paragraph 11 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
12. Waivers and Amendments; Successors and Assigns; Governing Law. None of
the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Guarantor and
the Lender, provided that any provision of this Guaranty may be waived by the
Lender in a letter or agreement executed by the Lender or by telex or facsimile
transmission from the Lender. This Guaranty shall be binding upon the heirs,
executors, administrators and personal representatives of the Guarantor and
shall inure to the benefit of the Lender and its successors and assigns. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS.
13. Notices. Notices by the Lender to the Guarantor may be given by mail,
by telex or by facsimile transmission, addressed to the Guarantor at its address
or transmission number set forth under its signature below and shall be
effective (a) if by registered or certified mail, return receipt requested,
three (3) Business Days following the date when sent, (b) if by telex, when sent
and answerback received, (c) if by overnight courier, when received, (d) if by
telecopier, when sent, or (e) if personally delivered or delivered by messenger,
when receipted for. The Guarantor may change its address and transmission
numbers by written notice to the Lender.
14. Submission to Jurisdiction; Waivers. (a) THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH
HE IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF TEXAS, THE COURTS OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES TRIAL BY JURY AND ANY
OBJECTION THAT HE MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE
SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HIM HIS ADDRESS SET FORTH UNDER HIS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
(b) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a)
ABOVE.
(c) THE GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE, IRRESPECTIVE OF THE NATURE OF
SUCH SETOFF, RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM, UNLESS SUCH SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF ANY APPLICABLE
FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER
ACTION.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
/s/ Xxxxxx X. XxXxxxxxx, Xx.
----------------------------
Xxxxxx X. XxXxxxxxx, Xx.
Address for Notices:
c/o Xxxxxx X. XxXxxxxxx Corporation
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT H
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. IT MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITY UNDER SUCH ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MAKER (AND ANY PERSON THAT SUCCEEDS TO
OR ASSUMES ITS OBLIGATIONS UNDER THIS SECURITY) THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUIT TO RULE 144 OF SUCH ACT.
B-PROMISSORY NOTE
$1,000,000.00 Dallas, Texas February 27, 1998
FOR VALUE RECEIVED, the undersigned, Redwood Gaming Limited Liability
Company, an Ohio limited liability company (formerly known as Golden Gate
Gaming, limited liability company) ("Maker"), hereby unconditionally promises to
pay to the order of Hollywood Casino Corporation, a Delaware corporation
("Payee"), the principal sum of One Million and No/100 Dollars ($1,000,000.00),
in lawful money of the United States of America, together with interest
(calculated on the basis of a 365 or 366-day year, as appropriate), on the
unpaid principal balance from day-to-day remaining, computed from the date
hereof until maturity at the rate per annum which shall from day-to-day be equal
to thirteen percent (13%); provided, however, all past due principal of and, to
the extent permitted by applicable law, interest on this Note shall bear
interest at the rate per annum which shall from day-to-day be equal to the
lesser of (a) the Maximum Rate, or (b) eighteen percent (18%).
The term "Maximum Rate," as used herein, shall mean, with respect to the
holder hereof, the maximum nonusurious interest rate, if any, that at any time,
or from time to time, may be contracted for, taken, reserved, charged, or
received on the indebtedness evidenced by this Note. To the extent that Chapter
303 of the Texas Finance Code, as amended, is relevant to any holder of this
Note for the purposes of determining the Maximum Rate, the Payee hereby notifies
Maker that the "applicable ceiling" shall be the "weekly ceiling" referred to in
Chapter 303 of the Texas Finance Code from time to time in effect, as limited
therein; provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable ceiling" from time to time by
further notice and disclosure to Maker; and, provided further, that the "Maximum
Rate" for purposes of this Note shall not be limited to the applicable ceiling
under Chapter 303 of the Texas Finance Code if federal laws or other state laws
now or hereafter in effect and applicable to this Note (and the interest
contracted for, charged and collected hereunder) shall permit a higher rate of
interest.
This Note has been executed and delivered pursuant to, and is subject to
certain terms and conditions set forth in, that certain Master Agreement (the
"Agreement") among Maker, Xxxxxx X. XxXxxxxxx, Xx., Xxxxxxx X. XxXxxxxxx and
Payee, executed as of the date hereof, and is the "1,000,000 B Note" referred to
therein.
Payment for all amounts due hereunder shall be made by wire transfer of
federal funds to Payee to the account designated by Payee from time to time so
that such funds are available to Payee on or before the date such funds are due
hereunder or by any other means agreed to, in writing, by Payee.
The principal of and interest upon the Note shall be due and payable on
February 27, 1999.
Maker and each surety, endorser, guarantor and other party ever liable for
payment of any sums of money payable on this Note, jointly and severally waive
presentment, protest, notice of protest and non-payment, or other notice of
default, notice of acceleration and intention to accelerate, and agree that
their liability under this Note shall not be affected by any renewal or
extension in the time of payment hereof, or in any indulgences, or by any
release or change in any security for the payment of this Note, and hereby
consent to any and all renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions, indulgences, releases or
changes.
No waiver by Payee of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise shall be considered
a waiver of any other subsequent right or remedy of Payee; no delay or omission
in the exercise or enforcement by Payee of any rights or remedies shall ever be
construed as a waiver of any right or remedy of Payee; and no exercise or
enforcement of any such rights or remedies shall ever be held to exhaust any
right or remedy of Payee.
Regardless of any provisions contained in this Note, the Agreement or any
other document executed or delivered in connection therewith, Payee shall never
be deemed to have contracted for or be entitled to receive, collect or apply as
interest on this Note, any amount in excess of the Maximum Rate, and, in the
event that Payee ever receives, collects or applies as interest any such excess,
such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance of this Note, and, if the principal balance of
this Note is paid in full, any remaining excess shall forthwith be paid to
Maker. In determining whether or not the interest paid or payable under any
specific contingency exceeds the Maximum Rate, Maker and Payee shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest, (ii)
exclude voluntary pre-payments and the effect thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout such term; provided, that if this
Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, if any, Payee or any holder hereof shall
refund to Maker the amount of such excess.
This Note is being executed and delivered, and is intended to be performed
in the State of Texas. Except to the extent that the laws of the United States
may apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this Note.
In the event of a dispute involving this Note or any other instruments
executed in connection herewith, the undersigned irrevocably agrees that venue
for such dispute shall lie in any court of competent jurisdiction in Dallas
County, Texas.
This Note is given in renewal, extension, modification and amendment (and
not in novation or extinguishment) of that certain Promissory Note (Series
B-Subject to Mandatory Exercise Right) in the stated principal amount of
$5,000,000.00, dated November 16, 1995, executed by Maker and payable to the
order of Payee.
MAKER:
REDWOOD GAMING LIMITED LIABILITY
COMPANY
(formerly known as Golden Gate Gaming,
limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
Address:
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT I
SPRINGING B GUARANTY
($1,000,000 B Note)
This Springing Guaranty (this "Guaranty"), effective as of February 27,
1998, is made by Xxxxxx X. XxXxxxxxx, Xx. (the "Guarantor"), in favor of
Hollywood Casino Corporation (the "Lender").
WHEREAS, the Lender has entered into a Master Agreement dated as of
February 27, 1998 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time being the "Master Agreement") with Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company) (the "Borrower") and the Guarantor. It is a condition
precedent to the effectiveness of the Master Agreement that the Guarantor shall
have entered into this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lender to extend certain financial accommodations to Borrower pursuant to
the Master Agreement, and recognizing that Guarantor has benefited or shall
benefit directly or indirectly from such financial accommodations, and that but
for this Guaranty, Lender would not make such financial accommodations available
to Borrower, the Guarantor hereby agrees with the Lender as follows:
1. Guaranty. (a) Subject to the provisions of Section 2, below, the
Guarantor hereby, unconditionally and irrevocably, guarantees to the Lender the
prompt and complete payment and performance by the Borrower when due of its
obligations to the Lender under that certain B-Promissory Note (the "Note"),
dated February 27, 1998, in the original principal amount of One Million and
No/100 Dollars ($1,000,000.00) (including, without limitation, all interest
thereon, whether accruing prior or subsequent to the commencement of a
bankruptcy or similar proceeding involving the Borrower as a debtor)
(collectively, the "Obligations"), and the Guarantor further agrees to pay any
and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantor under this Guaranty.
(b) No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other person or received or collected by the Lender from
the Borrower, the Guarantor, any other guarantor or any other person by virtue
of any action or proceeding or any setoff or appropriation or application at any
time or from time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the Obligations,
remain liable for the Obligations, subject to the conditions under Section 2(a)
above, until the Obligations are paid in full.
(c) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
2. Springing Nature of Guaranty. Notwithstanding anything herein to the
contrary, the Guarantor shall have no liability under this Guaranty unless and
until the Existing Bank Restructure (as defined in the Master Agreement) is
consummated, at which time this Guaranty will automatically become valid,
binding and enforceable, in accordance with its terms, without any further
action by either the Lender, the Borrower or the Guarantor.
3. No Subrogation. Notwithstanding any payment or payments made by the
Guarantor hereunder, or any application of funds of the Guarantor by the Lender,
the Guarantor shall not be entitled to be subrogated to any of the rights of the
Lender against the Borrower nor shall the Guarantor have any rights of
reimbursement, assignment, indemnification or implied contract or any similar
rights against the Borrower or against any endorser or other guarantor of all or
any part of the Obligations, until all amounts owing to the Lender by the
Borrower for or on account of the Obligations or otherwise under this Guaranty
are paid in full. If, notwithstanding the foregoing, any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Lender, segregated from other funds of the Guarantor,
and shall, forthwith upon (and in any event within two (2) Business Days of)
receipt by the Guarantor, be turned over to the Lender, if required, in the
exact form received by the Guarantor (duly endorsed by the Guarantor to the
Lender, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Lender may determine.
4. Amendments, etc., With Respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lender, and the Note, and any other document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Lender may deem advisable from time to time, and any guaranty at any time held
by the Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. When making any demand hereunder against the Guarantor,
the Lender may, but shall be under no obligation to, make a similar demand on
the Borrower or the Guarantor or any other guarantor, and any failure by the
Lender to make any such demand or to collect any payments from the Borrower or
the Guarantor or any such other guarantor or any release of the Borrower or the
Guarantor or guarantor shall not relieve the Guarantor in respect of which a
demand or collection is not made or the Guarantor not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the Lender
against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
5. Guaranty Absolute and Unconditional; Termination. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Lender upon this Guaranty
or acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Guaranty; and all dealings between the Borrower or the Guarantor, on
the one hand, and the Lender, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guaranty. The
Guarantor waives diligence, presentment, protest, demand for payment, notice of
intent to accelerate, notice of acceleration, and notice of default or
nonpayment to or upon the Borrower or itself with respect to the Obligations.
This Guaranty shall be construed as a waiver of intent to accelerate continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Note, any of the Obligations or guaranty, or
(b) any defense, setoff or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower against the Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Obligations, or of the Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, the Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Borrower or any other person or guaranty for the Obligations or any right of
offset with respect thereto, and any failure by the Lender to pursue such other
rights or remedies or to collect any payments from the Borrower or any such
other person or to realize upon any such guarantee or to exercise any such right
of offset, or any rlease of the Borrower or any such other person or any
guaranty or right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Lender against the
Guarantor. This Guaranty shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantor and the
successors and assigns thereof, and shall inure to the benefit of the Lender,
and its successors, endorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantor under this Guaranty shall have
been satisfied by payment in full, upon the occurrence of all of which this
Guaranty shall, subject to Section 5 hereof, terminate.
6. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
7. Payments. The Guarantor hereby agrees that the Obligations will be paid
to the Lender without setoff or counterclaim in U.S. dollars at the office of
the Lender located at Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX00,
Xxxxxx, Xxxxx 00000.
8. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9. Interest. All amounts payable from time to time by the Guarantor
hereunder shall bear interest at the per annum rate which shall from day-to-day
be equal to the lesser of (a) the Maximum Rate (as defined in the Note), or
(b) eighteen percent (18%).
10. Paragraph Headings. The paragraph headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
11. No Waiver; Cumulative Remedies. The Lender shall not by an act (except
by a written instrument pursuant to Paragraph 11 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
12. Waivers and Amendments; Successors and Assigns; Governing Law. None of
the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Guarantor and
the Lender, provided that any provision of this Guaranty may be waived by the
Lender in a letter or agreement executed by the Lender or by telex or facsimile
transmission from the Lender. This Guaranty shall be binding upon the heirs,
executors, administrators and personal representatives of the Guarantor and
shall inure to the benefit of the Lender and its successors and assigns. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS.
13. Notices. Notices by the Lender to the Guarantor may be given by mail,
by telex or by facsimile transmission, addressed to the Guarantor at its address
or transmission number set forth under its signature below and shall be
effective (a) if by registered or certified mail, return receipt requested,
three (3) Business Days following the date when sent, (b) if by telex, when sent
and answerback received, (c) if by overnight courier, when received, (d) if by
telecopier, when sent, or (e) if personally delivered or delivered by messenger,
when receipted for. The Guarantor may change its address and transmission
numbers by written notice to the Lender.
14. Submission to Jurisdiction; Waivers. (a) THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT TO WHICH
HE IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF TEXAS, THE COURTS OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES TRIAL BY JURY AND ANY OBJECTION THAT HE MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HIM HIS ADDRESS SET FORTH UNDER HIS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
(b) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a)
ABOVE.
(c) THE GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE, IRRESPECTIVE OF THE NATURE OF
SUCH SETOFF, RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM, UNLESS SUCH SETOFF,
RECOUPMENT, COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF
ANY APPLICABLE FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR
ALLEGED IN ANY OTHER ACTION.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
/s/ Xxxxxx X. XxXxxxxxx, Xx.
----------------------------
Xxxxxx X. XxXxxxxxx, Xx.
Address for Notices:
c/o Xxxxxx X. XxXxxxxxx Corporation
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT J
ESCROW AGREEMENT
The undersigned have deposited in escrow with Xxxxxx & Xxxx, L.L.P., as
escrow agent (the "Escrow Agent"), the following (referred to as the "Subject
Matter of the Escrow"):
(a) that certain A-Promissory Note (the "$1,000,000 A Note"), dated
February 27, 1998, in the original principal sum of One Million and No/100
Dollars ($1,000,000.00) executed by Redwood Gaming Limited Liability
Company (formerly known as Golden Gate Gaming, limited liability company)
("Redwood") and payable to the order of Hollywood Casino Corporation
("Hollywood");
(b) that certain Springing A Guaranty (the "Springing A Guaranty"),
dated as of February 27, 1998, executed by Xxxxxx X. XxXxxxxxx, Xx.
("EJD") for the benefit of Hollywood, which guaranties Redwood's
indebtedness under the $1,000,000 A Note to Hollywood;
(c) that certain B-Promissory Note (the "$1,000,000 B Note"), dated
February 27, 1998, in the original principal sum of One Million and No/100
Dollars ($1,000,000.00) executed by Redwood and payable to the order of
Hollywood; and
(d) that certain Springing B Guaranty (the "Springing B Guaranty"),
dated as of February 27, 1998, executed by EJD for the benefit of
Hollywood, which guaranties Redwood's indebtedness under the $1,000,000 B
Note to Hollywood.
Escrow Agent is authorized and directed hereby to deliver the $1,000,000 A
Note and the Springing A Guaranty to Hollywood upon presentation by Hollywood to
Escrow Agent of an affidavit from a purported officer of Hollywood stating:
(a) that three (3) days have passed since Hollywood received the
Redwood Interest (as defined in that certain Master Agreement (the "Master
Agreement "), of even date herewith, among Redwood, Hollywood, EJD and
Xxxxxxx X. XxXxxxxxx ("CRD")); and
(b) that Hollywood has exercised its rights under the Put Option (as
defined in the Master Agreement) to "put" the Redwood Interest.
Escrow Agent is authorized and directed hereby to deliver the $1,000,000 B
Note and the Springing B Guaranty to Hollywood upon presentation by Hollywood to
Escrow Agent of an affidavit from a purported officer of Hollywood stating
either:
(a) that Redwood and Xxxxxx X. Xxxxxxxx ("EM") failed to deliver the
$600,000 Letter of Credit (as defined in the Master Agreement) to
Hollywood on or before April 28, 1998; or
(b) that Redwood and CRD failed to deliver the $1,000,000 Letter of
Credit (as defined in the Master Agreement) to Hollywood on or before
April 28, 1998.
Escrow Agent is authorized and directed hereby to deliver the $1,000,000 B
Note and the Springing B Guaranty to Redwood upon presentation by Redwood to
Escrow Agent of an affidavit from the purported manager of Redwood stating:
(a) that Redwood and EM delivered the $600,000 Letter of Credit to
Hollywood on or before April 28, 1998; and
(b) that Redwood and CRD delivered the $1,000,000 Letter of Credit
to Hollywood on or before April 28, 1998.
The undersigned agree that the following provisions shall control with
respect to the rights, duties, liabilities, privileges and immunities of the
Escrow Agent:
(a) Escrow Agent is not a party to, and is not bound by or charged
with notice of, any agreement out of which this escrow may arise.
(b) Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency,
correctness, genuineness, or validity of the Subject Matter of the Escrow,
or any part thereof, or for the identity or authority of any person
executing or depositing it.
(c) In the event Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree
to indemnify and save Escrow Agent harmless from all loss, cost, damages,
expenses and attorneys' fees suffered or incurred by Escrow Agent as a
result thereof. The obligations of the undersigned under this subparagraph
shall be performable at the office of Escrow Agent in Dallas, Dallas
County, Texas.
(d) Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization,
power of attorney or other paper or document that Escrow Agent in good
faith believes to be genuine and what it purports to be.
(e) Escrow Agent shall not be liable for anything that it may do or
refrain from doing in connection herewith, except its own gross negligence
or willful misconduct.
(f) Escrow Agent may advise with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof
or its duties hereunder; and Escrow Agent shall incur no liability and
shall be fully protected in acting in accordance with the opinion and
instructions of such counsel.
(g) In the event of disagreement between any of the parties to this
Agreement, or between them or either or any of them and any other person,
resulting in adverse claims or
demands being made in connection with the Subject Matter of the Escrow, or
in the event that Escrow Agent, in good faith, be in doubt as to what
action it should take hereunder, Escrow Agent may, at its option, refuse
to comply with any claims or demands on it, or refuse to take any other
action hereunder, so long as such disagreement continues or such doubt
exists. In any such event, Escrow Agent shall not be or become liable in
any way or to any person for its failure or refusal to act. Escrow Agent
shall be entitled to continue to refrain from acting until (a) the rights
of all parties shall have been adjudicated fully and finally by a court of
competent jurisdiction, or (b) all differences shall have been adjusted
and all doubt resolved by agreement among all of the interested persons,
and Escrow Agent shall have been notified thereof in writing signed by all
such persons. The rights of Escrow Agent under this paragraph are
cumulative of all other rights that Escrow Agent may have by law or
otherwise.
(h) For normal services, a minimum escrow fee of $1.00 per year or
part of a year shall be payable to Escrow Agent. For services in addition
to normal services, a reasonable fee based upon the time spent by Escrow
Agent's officers, employees or agents in performing such additional
services shall be payable to Escrow Agent. Reimbursement to Escrow Agent
for all legal fees, expenses, disbursements and advances incurred or made
by Escrow Agent in the performance of its services shall be payable to
Escrow Agent. All such fees and reimbursements shall be paid by Redwood.
Upon satisfaction of the conditions for delivery of any document(s)
constituting a portion of the Subject Matter of the Escrow, the party receiving
such document(s) will execute and deliver to Escrow Agent, a Release of Escrow
in the form attached hereto as Exhibit A.
Upon the request of Escrow Agent, the other party, Hollywood or Redwood,
as the case may be, will execute and deliver to Escrow Agent, a Release of
Escrow in the form attached hereto as Exhibit B; provided, however, such party's
failure to execute and deliver such release shall in no way indicate that Escrow
Agent has failed to act strictly in accordance with this Escrow Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Executed as of the 27th day of February, 1998.
REDWOOD GAMING LIMITED LIABILITY
COMPANY
(formerly known as Golden Gate
Gaming, limited liability company)
By: DEMUR, INC., its Manager
By: /s/ Xx Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
XXXXXX & XXXX, L.L.P.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
EXHIBIT A
FORM OF RELEASE OF ESCROW
Reference is made to that certain Escrow Agreement (the "Escrow
Agreement"), dated as of February 27, 1998, executed by and among Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company), Hollywood Casino Corporation and Xxxxxx & Xxxx, L.L.P., as
Escrow Agent (the "Escrow Agent").
The undersigned hereby acknowledges receipt from Escrow Agent under the
Escrow Agreement of the following item(s) of the Subject Matter of the Escrow as
described in the Escrow Agreement:____________________________________________.
The undersigned acknowledges a faithful and proper performance by Escrow
Agent of its duties under the Escrow Agreement; and in consideration of such
delivery, hereby releases and discharges Escrow Agent from all further
responsibility and liability as Escrow Agent under the Escrow Agreement with
regard to the Subject Matter of the Escrow so delivered.
Executed this ___ day of _____, 1998.
_______________________________________
By:____________________________________
EXHIBIT B
FORM OF RELEASE OF ESCROW
Reference is made to that certain Escrow Agreement (the "Escrow
Agreement"), dated as of February 27, 1998, executed by and among Redwood Gaming
Limited Liability Company (formerly known as Golden Gate Gaming, limited
liability company), Hollywood Casino Corporation and Xxxxxx & Xxxx, L.L.P., as
Escrow Agent (the "Escrow Agent").
The undersigned hereby acknowledges delivery by Escrow Agent under the
Escrow Agreement to _______________________ of the following item(s) of the
Subject Matter of the Escrow as described in the Escrow Agreement:
_________________________________________.
The undersigned acknowledges a faithful and proper performance by Escrow
Agent of its duties under the Escrow Agreement; and in consideration of such
delivery, hereby releases and discharges Escrow Agent from all further
responsibility and liability as Escrow Agent under the Escrow Agreement with
regard to the Subject Matter of the Escrow so delivered.
Executed this ___ day of _____, 1998.
_______________________________________
By:____________________________________
ACKNOWLEDGMENT OF RECEIPT
Reference is made to the Escrow Agreement (the "Escrow Agreement"), dated
as of February 27, 1998, executed by and among Redwood Gaming Limited Liability
Company (formerly known as Golden Gate Gaming, limited liability company),
Hollywood Casino Corporation and Xxxxxx & Xxxx, L.L.P., as Escrow Agent (the
"Escrow Agent").
Escrow Agent hereby acknowledges receipt of the Subject Matter of the
Escrow, as described in the Escrow Agreement, and hereby accepts the Subject
Matter of the Escrow as Escrow Agent thereunder, subject to the terms and
conditions therein set forth.
Executed as of the 27th day of February, 1998.
XXXXXX & XXXX, L.L.P.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
EXHIBIT K
IRREVOCABLE STANDBY LETTER OF CREDIT NO. ______
ISSUE DATE: ______________, 1998
BENEFICIARY
Hollywood Casino Corporation
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Dallas, Texas 75240
Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit No. ______ in your
favor, up to the aggregate amount of USD SIX HUNDRED THOUSAND AND NO/100 U.S.
DOLLARS ($600,000.00) for the account of Redwood Gaming Limited Liability
Company (formerly known as Golden Gate Gaming, limited liability company)
("Redwood") and Xxxxxx X. Xxxxxxxx, available by your draft drawn on us at sight
and accompanied by an affidavit from a purported officer of Hollywood Casino
Corporation ("Hollywood") stating:
(a) that Redwood has failed to pay, on or before August 31, 1998, the
principal of or interest upon that certain Promissory Note (the
"Note"), dated February 27, 1998, in the original principal amount
of Six Hundred Thousand and No/100 Dollars ($600,000.00), executed
by Redwood and payable to the order of Hollywood;
(b) that the amount of the draft presented is equal to the lesser of
$600,000.00 or the outstanding balance due, as of the date of
presentation to Canadian Imperial Bank, on the loan evidenced by the
Note; and
(c) that Hollywood has not received evidence in the form of copies of
signed loan documentation that the obligations of XxXxxxxxx, Inc.
and The Xxxxxx X. XxXxxxxxx Corporation, as borrowers (the
"Borrowers") to existing bank lenders under that certain (i) Second
Amended and Restated Restructuring Facility Agreement dated as of
March 31, 1994, among the Borrowers, Xxxxx Fargo Realty Advisors
Funding, Incorporated, as the Administrative Agent, and certain
Co-Lenders; and (ii) Second Amended and Restated New Facility Credit
Agreement dated as of March 31, 1994, among the Borrowers, Xxxxx
Fargo Bank, N.A., as the Issuing Bank, certain Co-Lenders, and Xxxxx
Fargo Realty Advisors Funding, Incorporated, as the Administrative
Agent, have been refinanced, repaid or restructured, so as to permit
the guaranty of the Note by Xxxxxx X. XxXxxxxxx, Xx.
The original of this Letter of Credit and any amendments should be returned with
any drawing for endorsement purposes and upon letter of credit expiration and/or
cancellation.
LETTER OF CREDIT ($600,000) - Page 1
IRREVOCABLE STANDBY LETTER OF CREDIT NO. ______
ISSUE DATE: ______________, 1998
Any draft drawn under this credit must be marked "Drawn under Canadian Imperial
Bank, Irrevocable Standby Letter of Credit No. ___________ dated ____________,
1998".
We hereby engage with you that any draft drawn under and in compliance with the
terms of this Letter of Credit shall be duly honored upon presentation at our
office located at ____________, Attn: _______________ if presented after June
30, 1998 and by _______________, _______, the expiration date of this Letter of
Credit, or any subsequent extension of the expiration date by endorsement to
this Letter of Credit.
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993) Revision, International Chamber of Commerce Brochure No. 500.
CANADIAN IMPERIAL BANK
By: ____________________________________
Authorized Signature and Title
LETTER OF CREDIT ($600,000) - Page 2
EXHIBIT L
IRREVOCABLE STANDBY LETTER OF CREDIT NO. _________
ISSUE DATE: ____________, 1998
BENEFICIARY
Hollywood Casino Corporation
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Dallas, Texas 75240
Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit No. ______ in your
favor, up to the aggregate amount of USD ONE MILLION AND NO/100 U.S. DOLLARS
($1,000,000.00) for the account of Redwood Gaming Limited Liability Company
(formerly known as Golden Gate Gaming, limited liability company) ("Redwood")
and Xxxxxxx X. XxXxxxxxx, available by your draft drawn on us at sight and
accompanied by an affidavit from a purported officer of Hollywood Casino
Corporation ("Hollywood") stating:
(a) that Redwood has failed to pay, on or before February 27, 1999, the
principal of or interest upon that certain A-Promissory Note (the
"Note"), dated February 27, 1998, in the original principal amount
of One Million and No/100 Dollars ($1,000,000.00), executed by
Redwood and payable to the order of Hollywood;
(b) that the amount of the draft presented is equal to the lesser of
$1,000,000.00 or the outstanding balance due, as of the date of
presentation to Canadian Imperial Bank, on the loans evidenced by
the Note; and
(c) that Hollywood has not received evidence in the form of copies of
signed loan documentation that the obligations of XxXxxxxxx, Inc.
and The Xxxxxx X. XxXxxxxxx Corporation, as borrowers (the
"Borrowers") to existing bank lenders under that certain (i) Second
Amended and Restated Restructuring Facility Agreement dated as of
March 31, 1994, among the Borrowers, Xxxxx Fargo Realty Advisors
Funding, Incorporated, as the Administrative Agent, and certain
Co-Lenders; and (ii) Second Amended and Restated New Facility Credit
Agreement dated as of March 31, 1994, among the Borrowers, Xxxxx
Fargo Bank, N.A., as the Issuing Bank, certain Co-Lenders, and Xxxxx
Fargo Realty Advisors Funding, Incorporated, as the Administrative
Agent, have been refinanced, repaid or restructured, so as to permit
the guaranty of the Note by Xxxxxx X. XxXxxxxxx, Xx.
The original of this Letter of Credit and any amendments should be returned with
any drawing for endorsement purposes and upon letter of credit expiration and/or
cancellation.
Any draft drawn under this credit must be marked "Drawn under Canadian Imperial
Bank, Irrevocable Standby Letter of Credit No. ___________ dated ____________,
1998".
We hereby engage with you that any draft drawn under and in compliance with the
terms of this
Letter of Credit shall be duly honored upon presentation at our office located
at ____________, Attn: _______________ if presented after June 30, 1998 and by
_______________, _______, the expiration date of this Letter of Credit, or any
subsequent extension of the expiration date by endorsement to this Letter of
Credit.
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993) Revision, International Chamber of Commerce Brochure No. 500.
CANADIAN IMPERIAL BANK
By:_____________________________________
Authorized Signature and Title
LETTER OF CREDIT ($1,000,000) - Page 2
