EXHIBIT 10.42
EXHIBIT XV
[FORM OF GUARANTY]
GUARANTY
This GUARANTY is entered into as of August 25, 1995 by the
undersigned (each a "Guarantor" and collectively, "Guarantors") in favor of and
for the benefit of FIRST INTERSTATE BANK OF NEVADA, N.A. ("FIB"), as
administrative agent for and representative of (in such capacity herein called
"Administrative Agent") the financial institutions ("Lenders") party to the
Credit Agreement (as hereinafter defined).
RECITALS
A. Players International Inc., a Nevada corporation
("Company"), has entered into that certain Credit Agreement dated as of August
25, 1995 with Administrative Agent, Lenders, FIB and Bankers Trust Company, as
Managing Agents, and FIB and BT Securities Corporation, as Co-Arrangers (said
Credit Agreement, as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement"; capitalized terms
defined therein and not otherwise defined herein being used herein as therein
defined).
B. A portion of the proceeds of the Loans or Letters of Credit
may be advanced to Guarantors and thus the Guarantied Obligations (as
hereinafter defined) are being incurred for and will inure to the benefit of
Guarantors (which benefits are hereby acknowledged).
C. It is a condition precedent to the making of the initial
Loans and the issuance of the Letters of Credit under the Credit Agreement that
Company's obligations thereunder be guarantied by Guarantors.
D. Guarantors are willing irrevocably and unconditionally to
guaranty such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce Lenders and Administrative Agent to enter
into the Credit Agreement and to make the Loans and to issue the Letters of
Credit thereunder, Guarantors hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Certain Defined Terms. As used in this Guaranty, the following
terms shall have the following meanings unless the context otherwise requires:
"Guaranteed Principal" has the meaning assigned to that term in
subsection
2.1.
"Guarantied Obligations" has the meaning assigned to that term
in subsection
2.1.
"Guaranty" means this Guaranty dated as of August 25, 1995, as
it may be amended, supplemented or otherwise modified from time to
time.
"payment in full", "paid in full" or any similar term means
payment in full of the Guarantied Obligations including, without
limitation, all principal, interest, costs, fees and expenses
(including, without limitation, legal fees and expenses) of Lenders and
Administrative Agent as required under the Loan Documents.
1.2 Interpretation.
(a) References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Guaranty unless
otherwise specifically provided.
(b) In the event of any conflict or inconsistency between the
terms, conditions and provisions of this Guaranty and the terms,
conditions and provisions of the Credit Agreement, the terms,
conditions and provisions of this Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 Guaranty of the Guarantied Obligations. Subject to the provisions of
subsection 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty, as primary obligors and not merely as sureties, the
due and punctual payment in full of all Guarantied Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term "Guarantied Obligations" is
used herein in its most comprehensive sense and includes:
(a) any and all Obligations of Company now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, and however arising under or in
connection with the Credit Agreement and the
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other Loan Documents, including those arising under successive
borrowing transactions under the Credit Agreement which shall either
continue the Obligations of Company or from time to time renew them
after they have been satisfied; and
(b) those expenses set forth in subsection 2.8 hereof.
Notwithstanding the foregoing, the maximum aggregate liability of each
Guarantor under this Guaranty for the prompt payment in full by Company of all
obligations under the Notes and all outstanding Letters of Credit (collectively,
the "Guaranteed Principal") shall not exceed $120,000,000. In addition to such
amounts, however, each Guarantor irrevocably and unconditionally guarantees the
following obligations and liabilities: (i) any and all interest accruing on the
Guaranteed Principal under any Loan Document; and (ii) any and all fees, charges
and costs of collecting the Guaranteed Principal or otherwise enforcing
Administrative Agent's and Lenders' rights hereunder, including, without
limitation, the reasonable fees and expenses of counsel to Administrative Agent
and each Lender.
2.2 Limitation on Amount Guarantied; Contribution by Guarantors. (a)
Anything contained in this Guaranty to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guaranty, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of indebtedness subordinated in manner of payment to the
Obligations which guaranty contains a limitation as to maximum amount similar to
that set forth in this subsection 2.2(a), pursuant to which the liability of
such Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement (including without limitation any such right of contribution under
subsection 2.2(b).
(b) Guarantors under this Guaranty together desire to allocate among
themselves, in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "Funding Guarantor") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the
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amount of such other Guarantor's Fair Share Shortfall (as defined below) as
of such date, with the result that all such contributions will cause each
Guarantor's Aggregate Payments (as defined below) to equal its Fair Share as of
such date. "Fair Share" means, with respect to a Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Guarantor to (y) the aggregate of
the Adjusted Maximum Amounts with respect to all Guarantors, multiplied by (ii)
the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations guarantied. "Fair
Share Shortfall" means, with respect to a Guarantor as of any date of
determination, the excess, if any, of the Fair Share of such Guarantor over the
Aggregate Payments of such Guarantor. "Adjusted Maximum Amount" means, with
respect to a Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Guarantor under this Guaranty, determined as
of such date in accordance with subsection 2.2(a); provided that, solely for
purposes of calculating the "Adjusted Maximum Amount" with respect to any
Guarantor for purposes of this subsection 2.2(b), any assets or liabilities of
such Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such Guarantor. "Aggregate
Payments" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions made
on or before such date by such Guarantor in respect of this Guaranty (including,
without limitation, in respect of this subsection 2.2(b)) minus (ii) the
aggregate amount of all payments received on or before such date by such
Guarantor from the other Guarantors as contributions under this subsection
2.2(b). The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable
Funding Guarantor. The allocation among Guarantors of their obligations as set
forth in this subsection 2.2(b) shall not be construed in any way to limit the
liability of any Guarantor hereunder.
2.3 Payment by Guarantors; Application of Payments. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
Administrative Agent or any other Person may have at law or in equity against
any Guarantor by virtue hereof, that upon the failure of Company to pay any of
the Guarantied Obligations when and as the same shall become due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.
362(a)), Guarantors will upon demand pay, or cause to be paid, in cash, to
Administrative Agent for the ratable benefit of Lenders, an amount equal to the
sum of the unpaid principal amount of all Guarantied Obligations then due as
aforesaid, accrued and unpaid interest on such Guarantied Obligations
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to Company, would have accrued on such Guarantied
Obligations, whether or not a claim is allowed against Company for such interest
in any such bankruptcy proceeding) and all other Guarantied Obligations then
owed to Administrative
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Agent and/or Lenders as aforesaid. All such payments shall be applied
promptly from time to time by Administrative Agent:
First, to the payment of the costs and expenses of any
collection or other realization under this Guaranty, including
reasonable compensation to Administrative Agent and its agents and
counsel, and all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith;
Second, to the payment of all other Guarantied Obligations in
such order as Administrative Agent shall elect; and
Third, after payment in full of all Guarantied Obligations, to
the payment to Guarantors, or their respective successors or assigns,
or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then
remaining from such payments.
2.4 Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default under the Credit Agreement
notwithstanding the existence of any dispute between Lenders and
Company with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent
of the obligations of Company under the Loan Documents and the
obligations of any other guarantor (including any other Guarantor) of
the obligations of Company under the Loan Documents, and a separate
action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Company or any of such
other guarantors and whether or not Company is joined in any such
action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge
any Guarantor's liability for any portion of the Guarantied Obligations
which has not been paid. Without limiting the generality of the
foregoing, if Administrative Agent is awarded a judgment in any suit
brought to enforce any Guarantor's covenant to pay a portion of the
Guarantied Obligations, such judgment shall not be deemed to release
such
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Guarantor from its covenant to pay the portion of the Guarantied
Obligations that is not the subject of such suit, and such judgment
shall not, except to the extent satisfied by such Guarantor, limit,
affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guarantied Obligations.
(e) Administrative Agent or any Lender, upon such terms as it
deems appropriate, without notice or demand and without affecting the
validity or enforceability of this Guaranty or giving rise to any
reduction, limitation, impairment, discharge or termination of any
Guarantor's liability hereunder, from time to time may (i) renew,
extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (ii) settle, compromise, release or discharge, or accept
or refuse any offer of performance with respect to, or substitutions
for, the Guarantied Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of
this Guaranty or the Guarantied Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for
payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person
(including any other Guarantor) with respect to the Guarantied
Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of Administrative Agent or any Lender in respect
of this Guaranty or the Guarantied Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that
Administrative Agent or Lenders, or any of them, may have against any
such security, as Administrative Agent in its discretion may determine
consistent with the Credit Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one
or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against Company
or any security for the Guarantied Obligations; and (vi) exercise any
other rights available to it under the Loan Documents.
(f) This Guaranty and the obligations of Guarantors hereunder
shall be valid and enforceable and shall not be subject to any
reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guarantied Obligations),
including without limitation the occurrence of any of the following,
whether or not any Guarantor shall have had notice or knowledge of any
of them: (i) any failure or omission to assert or enforce or agreement
or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy
(whether arising under the Loan Documents, at law, in equity or
otherwise) with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied
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Obligations; (ii) any rescission, waiver, amendment or modification of,
or any consent to departure from, any of the terms or provisions
(including without limitation provisions relating to events of default)
of the Credit Agreement, any of the other Loan Documents or any
agreement or instrument executed pursuant thereto, or of any other
guaranty or security for the Guarantied Obligations, in each case
whether or not in accordance with the terms of the Credit Agreement or
such Loan Document or any agreement relating to such other guaranty or
security; (iii) the Guarantied Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received
from any source (other than payments received pursuant to the other
Loan Documents or from the proceeds of any security for the Guarantied
Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guarantied Obligations) to
the payment of indebtedness other than the Guarantied Obligations, even
though Administrative Agent or Lenders, or any of them, might have
elected to apply such payment to any part or all of the Guarantied
Obligations; (v) any Lender's or Administrative Agent's consent to the
change, reorganization or termination of the corporate structure or
existence of Company or any of its Subsidiaries and to any
corresponding restructuring of the Guarantied Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any
collateral which secures any of the Guarantied Obligations; (vii) any
defenses, set-offs or counterclaims which Company may allege or assert
against Administrative Agent or any Lender in respect of the Guarantied
Obligations, including but not limited to failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or
omission, or delay to do any other act or thing, which may or might in
any manner or to any extent vary the risk of any Guarantor as an
obligor in respect of the Guarantied Obligations.
2.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of
Lenders and Administrative Agent:
(a) any right to require Administrative Agent or Lenders, as a
condition of payment or performance by such Guarantor, to (i) proceed
against Company, any other guarantor (including any other Guarantor) of
the Guarantied Obligations or any other Person, (ii) proceed against or
exhaust any security held from Company, any other guarantor (including
any other Guarantor) of the Guarantied Obligations or any other Person,
(iii) proceed against or have resort to any balance of any deposit
account or credit on the books of Administrative Agent or any Lender in
favor of Company or any other Person, or (iv) pursue any other remedy
in the power of Administrative Agent or any Lender whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Company including,
without limitation, any defense based on or arising out of the lack of
validity or the unenforceability of the Guarantied Obligations or any
agreement or instrument relating thereto or by reason of the
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cessation of the liability of Company from any cause other than payment
in full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the
principal;
(d) any defense based upon Administrative Agent's or any
Lender's errors or omissions in the administration of the Guarantied
Obligations, except behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this
Guaranty and any legal or equitable discharge of such Guarantor's
obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims,
and (iv) promptness, diligence and any requirement that Administrative
Agent or any Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Guaranty, notices of default under the
Credit Agreement or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guarantied
Obligations or any agreement related thereto, any Notice of Borrowing
received by Administrative Agent or any Lender, any extension of credit
to Company and notices of any of the matters referred to in subsection
2.4 and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty,
including, without limitation, (i) the provisions of Nevada Revised
Statutes Sections 40.430-40.459, 40.475 and 40.485 only to the extent
permitted by Nevada Revised Statutes Section 40.495, and any successor
provisions, and (ii) the provisions of Louisiana Civil Code Title XVI,
including, but not limited to all rights of division and discussion and
any right of any Guarantor to terminate the Guaranty under Louisiana
Civil Code article 3061, it being understood that Administrative Agent
and each Lender have irrevocably changed their respective position by
advancing or agreeing to advance funds to Company under the Credit
Agreement based upon the continued existence of this Guaranty and the
grant of collateral by certain Guarantors to secure their obligations
under this Guaranty.
2.6 Guarantors' Rights of Subrogation, Contribution, Etc. Until the
Guarantied Obligations shall have been paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been terminated
or cancelled, each Guarantor shall
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withhold exercise of (a) any claim, right or remedy, direct or indirect,
that such Guarantor now has or may hereafter have against Company or any of its
assets in connection with this Guaranty or the performance by such Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and
including without limitation (i) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company, (ii) any right to enforce, or to participate in, any claim, right or
remedy that Administrative Agent or any Lender now has or may hereafter have
against Company, and (iii) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by Administrative Agent or any
Lender, and (b) any right of contribution such Guarantor may have against any
other guarantor (including any other Guarantor) of any of the Guarantied
Obligations (including without limitation any such right of contribution. Each
Guarantor further agrees that, to the extent the agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
Administrative Agent or Lenders may have against Company, to all right, title
and interest Administrative Agent or Lenders may have in any such collateral or
security, and to any right Administrative Agent or Lenders may have against such
other guarantor. Administrative Agent, on behalf of Lenders, may use, sell or
dispose of any item of collateral or security as it sees fit without regard to
any subrogation rights any Guarantor may have, and upon any such disposition or
sale any rights of subrogation such Guarantor may have shall terminate. If any
amount shall be paid to any Guarantor on account of any such subrogation,
reimbursement or indemnification rights at any time when all Guarantied
Obligations shall not have been paid in full, such amount shall be held in trust
for Administrative Agent on behalf of Lenders and shall forthwith be paid over
to Administrative Agent for the benefit of Lenders to be credited and applied
against the Guarantied Obligations, whether matured or unmatured, in accordance
with the terms hereof.
2.7 Subordination of Other Obligations. Any indebtedness of Company now or
hereafter held by any Guarantor is hereby subordinated in right of payment to
the Guarantied Obligations, and any such indebtedness of Company to such
Guarantor collected or received by such Guarantor after an Event of Default has
occurred and is continuing shall be held in trust for Administrative Agent on
behalf of Lenders and shall forthwith be paid over to Administrative Agent for
the benefit of Lenders to be credited and applied against the Guarantied
Obligations but without affecting, impairing or limiting in any manner the
liability of such Guarantor under any other provision of this Guaranty.
2.8 Expenses. Guarantors jointly and severally agree to pay, or cause to be
paid, on demand, and to save Administrative Agent and Lenders harmless against
liability for, any and all costs and expenses (including fees and disbursements
of counsel and allocated costs of
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internal counsel) incurred or expended by Administrative Agent or any
Lender in connection with the enforcement of or preservation of any rights under
this Guaranty.
2.9 Continuing Guaranty. This Guaranty is a continuing guaranty and shall
remain in effect until the day following the date that all of the Guarantied
Obligations shall have been paid in full and the Commitments shall have
terminated and all Letters of Credit shall have expired or been terminated or
cancelled; provided, however, that this Guaranty shall, in the event Kentucky
law is (notwithstanding the choice of Nevada law set forth in section 5.6)
deemed applicable hereto, terminate as to Players Bluegrass Downs, Inc. only on
September 30, 2010, if not theretofore terminated as to such Guarantor pursuant
to the preceding provisions of this sentence. Each Guarantor hereby irrevocably
waives any right to revoke this Guaranty as to future transactions giving rise
to any Guarantied Obligations.
2.10 Authority of Guarantors or Company. It is not necessary for Lenders or
Administrative Agent to inquire into the capacity or powers of any Guarantor or
Company or the officers, directors or any agents acting or purporting to act on
behalf of any of them.
2.11 Financial Condition of Company. Any Loans may be granted or Letters of
Credit issued to Company or continued from time to time without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation. Lenders and
Administrative Agent shall have no obligation to disclose or discuss with any
Guarantor their assessment, or any Guarantor's assessment, of the financial
condition of Company. Each Guarantor has adequate means to obtain information
from Company on a continuing basis concerning the financial condition of Company
and its ability to perform its obligations under the Loan Documents, and each
Guarantor assumes the responsibility for being and keeping informed of the
financial condition of Company and of all circumstances bearing upon the risk of
nonpayment of the Guarantied Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of Administrative Agent or any Lender to
disclose any matter, fact or thing relating to the business, operations or
conditions of Company now known or hereafter known by Administrative Agent or
any Lender.
2.12 Rights Cumulative. The rights, powers and remedies given to Lenders
and Administrative Agent by this Guaranty are cumulative and shall be in
addition to and independent of all rights, powers and remedies given to Lenders
and Administrative Agent by virtue of any statute or rule of law or in any of
the other Loan Documents or any agreement between any Guarantor and Lenders
and/or Administrative Agent or between Company and Lenders and/or Administrative
Agent. Any forbearance or failure to exercise, and any delay by any Lender or
Administrative Agent in exercising, any right, power or remedy hereunder shall
not impair any such right, power or remedy or be construed to be a waiver
thereof, nor shall it preclude the further exercise of any such right, power or
remedy.
2.13 Bankruptcy; Post-Petition Interest; Reinstatement of Guaranty. (a) So
long as any Guarantied Obligations remain outstanding, no Guarantor shall,
without the prior
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written consent of Administrative Agent in accordance with the terms of the
Credit Agreement, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency proceedings of or against Company. The
obligations of Guarantors under this Guaranty shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Company or by any defense which
Company may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion
of the Guarantied Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of Guarantors and Administrative Agent that the Guarantied Obligations
which are guarantied by Guarantors pursuant to this Guaranty should be
determined without regard to any rule of law or order which may relieve Company
of any portion of such Guarantied Obligations. Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay Administrative Agent, or allow the claim
of Administrative Agent in respect of, any such interest accruing after the date
on which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied Obligations are
paid by Company, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from Administrative Agent or any Lender as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guarantied Obligations for all purposes under this
Guaranty.
2.14 Notice of Events. As soon as any Guarantor obtains knowledge thereof,
such Guarantor shall give Administrative Agent written notice of any condition
or event which has resulted in (a) a material adverse change in the financial
condition of any Guarantor or Company or (b) a breach of or noncompliance with
any term, condition or covenant contained herein or in the Credit Agreement, any
other Loan Document or any other document delivered pursuant hereto or thereto.
2.15 Set Off. In addition to any other rights any Lender or Administrative
Agent may have under law or in equity, if any amount shall at any time be due
and owing by any Guarantor to any Lender or Administrative Agent under this
Guaranty, such Lender or Administrative Agent is authorized at any time or from
time to time, without notice (any such notice being hereby expressly waived), to
set off and to appropriate and to apply any and all deposits (general or
special, including but not limited to indebtedness evidenced by
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certificates of deposit, whether matured or unmatured) and any other
indebtedness of any Lender or Administrative Agent owing to such Guarantor and
any other property of such Guarantor held by any Lender or Administrative Agent
to or for the credit or the account of such Guarantor against and on account of
the Guarantied Obligations and liabilities of such Guarantor to any Lender or
Administrative Agent under this Guaranty.
2.16 Discharge of Guaranty Upon Sale of Guarantor. If all of the stock of
any Guarantor or any of its successors in interest under this Guaranty shall be
sold or otherwise disposed of (including by merger or consolidation) in an Asset
Sale not prohibited by subsection 7.7 of the Credit Agreement or otherwise
consented to by Requisite Lenders and pursuant to which the Net Cash Proceeds of
such Asset Sale are required to be delivered to Secured Party pursuant to
subsection 2.4A(ii)(a) of the Credit Agreement, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall automatically
be discharged and released without any further action by Administrative Agent or
any Lender or any other Person effective as of the time of such Asset Sale;
provided that, as a condition precedent to such discharge and release, Secured
Party shall have received evidence satisfactory to it that arrangements
satisfactory to it have been made for delivery to Administrative Agent of the
Net Cash Proceeds of such Asset Sale to the extent required by subsection
2.4A(ii)(a) of the Credit Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Administrative Agent to accept this Guaranty
and to enter into the Credit Agreement and to make the Loans and to issue the
Letters of Credit thereunder, each Guarantor hereby represents and warrants to
Lenders that the following statements are true and correct:
3.1 Corporate or Partnership Existence. Such Guarantor is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation (or, in the case of Showboat Star Partnership ("SSP"), is duly
formed, validly existing and in good standing under the laws of its jurisdiction
of formation), has the corporate or, in the case of SSP, partnership power to
own its assets and to transact the business in which it is now engaged and is
duly qualified as a foreign corporation or, in the case of SSP, partnership, and
in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
except for failures to be so qualified, authorized or licensed that would not in
the aggregate have a material adverse effect on the business, operations, assets
or financial condition of such Guarantor.
3.2 Corporate or Partnership Power; Authorization; Enforceable Obligations.
Such Guarantor has the corporate or, in the case of SSP, partnership power,
authority and legal right to execute, deliver and perform this Guaranty and all
obligations required hereunder and has taken all necessary corporate or, in the
case of SSP, partnership action to authorize its Guaranty hereunder on the terms
and conditions hereof and its execution,
XV-12
delivery and performance of this Guaranty and all obligations required
hereunder. No consent of any other Person including, without limitation,
stockholders and creditors of such Guarantor or, in the case of SSP, other
partners, and no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required by such Guarantor in connection with this
Guaranty or the execution, delivery, performance, validity or enforceability of
this Guaranty and all obligations required hereunder. This Guaranty has been,
and each instrument or document required hereunder will be, executed and
delivered by a duly authorized officer of such Guarantor or, in the case of SSP,
by a duly authorized officer of each of its general partners, and this Guaranty
constitutes, and each instrument or document required hereunder when executed
and delivered by such Guarantor hereunder will constitute, the legally valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws or
equitable principles relating to or limiting creditors' rights generally.
3.3 No Legal Bar to this Guaranty. The execution, delivery and performance
of this Guaranty and the documents or instruments required hereunder, and the
use of the proceeds of the borrowings under the Credit Agreement, will not
violate any provision of any existing law or regulation binding on such
Guarantor, or any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on such Guarantor, or the certificate of
incorporation or bylaws of such Guarantor or any securities issued by such
Guarantor, or any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which such Guarantor is a party or by which such
Guarantor or any of its assets may be bound, the violation of which would have a
material adverse effect on the business, operations, assets or financial
condition of such Guarantor and will not result in, or require, the creation or
imposition of any Lien on any of its property, assets or revenues pursuant to
the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
SECTION 4. AFFIRMATIVE COVENANTS
Each Guarantor covenants and agrees that, unless and until all of the
Guarantied Obligations shall have been paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been terminated
or cancelled, unless Requisite Lenders shall otherwise consent in writing:
4.1 Corporate or Partnership Existence, Etc. Except as permitted by
subsection 7.7 of the Credit Agreement, such Guarantor shall at all times
preserve and keep in full force and effect its corporate or, in the case of SSP,
partnership existence and all rights and franchises material to its business.
XV-13
4.2 Compliance with Laws, Etc. Such Guarantor shall comply in all material
respects with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, paying when due all taxes,
assessments and governmental charges imposed upon it or upon any of its
properties or assets or in respect of any of its franchises, businesses, income
or property before any penalty or interest accrues thereon.
4.3 Books and Records. Such Guarantor shall keep and maintain books of
record and account with respect to its operations in accordance with generally
accepted accounting principles and shall permit Administrative Agent or any
Lender and their respective officers, employees and authorized agents, to the
extent Administrative Agent in good ▇▇▇▇▇ ▇▇▇▇▇ necessary for the proper
administration of this Guaranty, to examine, copy and make excerpts from the
books and records of such Guarantor and its Subsidiaries and to inspect the
properties of such Guarantor and its Subsidiaries, both real and personal, at
such reasonable times as Administrative Agent may request.
4.4 Reporting Requirements. As soon as possible after the same are
available to such Guarantor, such Guarantor will deliver to Administrative Agent
and Lenders the financial statements required to be delivered by Subsection 6.1
of the Credit Agreement.
SECTION 5. MISCELLANEOUS
5.1 Survival of Warranties. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty and the
other Loan Documents, any increase in the Commitments under the Credit
Agreement, the making of the Loans and the issuance of the Letters of Credit.
5.2 Notices. Any communications between Administrative Agent and any
Guarantor and any notices or requests provided herein to be given shall be in
writing and may be personally served, telexed or sent by telefacsimile or United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile or
telex, or five Business Days after depositing it in the United States mail with
postage prepaid and properly addressed. For the purposes hereof, the address of
each Guarantor shall be as set forth under such Guarantor's name on the
signature pages hereof or such other address as shall be designated by such
Guarantor in a written notice delivered to Administrative Agent. All notices
addressed to Administrative Agent should be sent to its address set forth on the
signature pages to the Credit Agreement or to such other address as
Administrative Agent may in writing hereinafter indicate.
5.3 Severability. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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5.4 Amendments and Waivers. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders under the Credit Agreement and, in the case of
any such amendment or modification, each Guarantor against whom enforcement of
such amendment or modification is sought. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.
5.5 Headings. Section and subsection headings in this Guaranty are included
herein for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose or be given any substantive effect.
5.6 Applicable Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
GUARANTORS, ADMINISTRATIVE AGENT AND LENDERS HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEVADA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.7 Successors and Assigns. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its respective successors and assigns
except as provided in subsection 2.16. This Guaranty shall inure to the benefit
of Lenders, Administrative Agent and their respective successors and assigns. No
Guarantor shall assign this Guaranty or any of the rights or obligations of such
Guarantor hereunder without the prior written consent of all Lenders. Any Lender
may, without notice or consent, assign its interest in this Guaranty in whole or
in part (subject to subsection 10.1 of the Credit Agreement). The terms and
provisions of this Guaranty shall inure to the benefit of any transferee or
assignee of any Loan, and in the event of such transfer or assignment the rights
and privileges herein conferred upon Lenders and Administrative Agent shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
5.8 Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE OF NEVADA, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY EACH
GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. Each Guarantor
hereby agrees that service of all process in any such proceeding in any such
court may be made by registered or certified mail, return receipt requested, to
such Guarantor at its address as provided in subsection 5.2, such service being
hereby acknowledged by such Guarantor to be sufficient for personal jurisdiction
in any
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action against such Guarantor in any such court and to be otherwise
effective and binding service in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of Administrative Agent or any Lender to bring proceedings against any
Guarantor in the courts of any other jurisdiction.
5.9 Waiver of Trial by Jury. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each Guarantor and, by its acceptance of the benefits hereof,
Administrative Agent, each (i) acknowledges that this waiver is a material
inducement for such Guarantor and Administrative Agent to enter into a business
relationship, that such Guarantor and Administrative Agent have already relied
on this waiver in entering into this Guaranty or accepting the benefits thereof,
as the case may be, and that each will continue to rely on this waiver in their
related future dealings and (ii) further warrants and represents that each has
reviewed this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
5.10 No Other Writing. This writing is intended by Guarantors and
Administrative Agent as the final expression of this Guaranty and is also
intended as a complete and exclusive statement of the terms of their agreement
with respect to the matters covered hereby. No course of dealing, course of
performance or trade usage, and no parol evidence of any nature, shall be used
to supplement or modify any terms of this Guaranty. There are no conditions to
the full effectiveness of this Guaranty.
5.11 Further Assurances. At any time or from time to time, upon the request
of Administrative Agent or Requisite Lenders, Guarantors shall execute and
deliver such further documents and do such other acts and things as
Administrative Agent or Requisite Lenders may reasonably request in order to
effect fully the purposes of this Guaranty.
5.12 Additional Guarantors. The initial Guarantors hereunder shall be such
of the Subsidiaries of Company as are signatories hereto on the date hereof.
From time to time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "Additional
Guarantor"), by executing a counterpart of this Guaranty. Upon delivery of any
such counterpart to Administrative Agent, notice of which is hereby waived by
Guarantors, each such Additional Guarantor shall be a
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Guarantor and shall be as fully a party hereto as if such Additional
Guarantor were an original signatory hereof. Each Guarantor expressly agrees
that its obligations arising hereunder shall not be affected or diminished by
the addition or release of any other Guarantor hereunder, nor by any election of
Administrative Agent not to cause any Subsidiary of Company to become an
Additional Guarantor hereunder. This Guaranty shall be fully effective as to any
Guarantor that is or becomes a party hereto regardless of whether any other
Person becomes or fails to become or ceases to be a Guarantor hereunder.
5.13 Counterparts; Effectiveness. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
PLAYERS LAKE ▇▇▇▇▇▇▇, INC.
By ______________________________
Title ____________________________
PLAYERS NEVADA, INC.
By ______________________________
Title ____________________________
SOUTHERN ILLINOIS RIVERBOAT/CASINO
CRUISES, INC.
By ______________________________
Title ____________________________
PLAYERS BLUEGRASS DOWNS, INC.
By ______________________________
Title ____________________________
PLAYERS RIVERBOAT MANAGEMENT, INC.
By ______________________________
Title ____________________________
PLAYERS RIVERBOAT, INC.
By ______________________________
Title ____________________________
S-1
PLAYERS MESQUITE GOLF CLUB, INC.
By ______________________________
Title ____________________________
PLAYERS INDIANA, INC.
By ______________________________
Title ____________________________
PLAYERS RIVERBOAT, LLC
By ______________________________
Title ____________________________
PLAYERS MESQUITE LAND, INC.
By ______________________________
Title ____________________________
PLAYERS MARYLAND HEIGHTS, INC.
By ______________________________
Title ____________________________
RIVER BOTTOM, INC.
By ______________________________
Title ____________________________
S-2
SHOWBOAT STAR PARTNERSHIP
By PLAYERS RIVERBOAT, LLC
General Partner
By ____________________________
Title _________________________
By PLAYERS RIVERBOAT MANAGEMENT, INC.
General Partner
By ____________________________
Title _________________________
Notice Address for each Guarantor:
c/o Players International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:President and Chief
Financial Officer
With copies to:
c/o Players International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
c/o Players International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
S-3
IN WITNESS WHEREOF, the undersigned Additional Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, .
----------------------------------------
(Name of Additional Guarantor)
By
Title
Notice Address:
S-4